Gipson v. Social Security Administration
Filing
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OPINION AND ORDER by Magistrate Judge T Lane Wilson , remanding case (terminates case) (crp, Dpty Clk)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OKLAHOMA
DEBRA S. GIPSON,
)
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Plaintiff,
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vs.
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CAROLYN W. COLVIN,
)
Acting Commissioner of Social Security )
Administration,
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Defendant.
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Case No. 13-cv-647-TLW
OPINION AND ORDER
Plaintiff Debra S. Gipson seeks judicial review of the decision of the Commissioner of
the Social Security Administration denying her claim for disability insurance benefits under Title
II of the Social Security Act (“SSA”), 42 U.S.C. §§ 416(i), 423. In accordance with 28 U.S.C. §
636(c)(1) & (3), and Fed. R. Civ. P. 73, the parties have consented to proceed before a United
States Magistrate Judge. (Dkt. 15). Any appeal of this decision will be directly to the Tenth
Circuit Court of Appeals.
INTRODUCTION
In reviewing a decision of the Commissioner, the Court is limited to determining whether
the Commissioner has applied the correct legal standards and whether the decision is supported
by substantial evidence. See Grogan v. Barnhart, 399 F.3d 1257, 1261 (10th Cir. 2005).
Substantial evidence is more than a scintilla but less than a preponderance and is such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion. Id. The Court’s
review is based on the record, and the Court will “meticulously examine the record as a whole,
including anything that may undercut or detract from the ALJ’s findings in order to determine if
the substantiality test has been met.” Id. The Court may neither re-weigh the evidence nor
substitute its judgment for that of the Commissioner. See Hackett v. Barnhart, 395 F.3d 1168,
1172 (10th Cir. 2005). Even if the Court might have reached a different conclusion, if supported
by substantial evidence, the Commissioner’s decision stands. See White v. Barnhart, 287 F.3d
903, 908 (10th Cir. 2002).
BACKGROUND
Plaintiff, then a forty-nine year old female, completed her application for Title II benefits
on May 24, 2011. (R. 108-10). Plaintiff alleged a disability onset date of September 22, 2010. (R.
108). Plaintiff claimed that she was unable to work due to “COPD, nerve damage in back, neck
condition, shoulder condition, leg condition, high blood pressure, [and] osteoarthritis.” (R. 127).
Plaintiff’s claims for benefits were denied initially on June 27, 2011, and on reconsideration on
October 10, 2011. (R. 51, 55-59; 52, 65-67). Plaintiff then requested a hearing before an
administrative law judge (“ALJ”), and the ALJ held the hearing on March 5, 2012. (R. 23-50).
The ALJ found that plaintiff was unable to perform her past relevant work, but that other jobs
existed in significant numbers that plaintiff could perform. Therefore, the ALJ issued a decision
on April 19, 2012, denying benefits and finding plaintiff not disabled. (R. 6-19). The Appeals
Council denied review, and plaintiff appealed. (R. 1-4; Dkt. 2).
The ALJ’s Decision
The ALJ found that plaintiff’s last insured date was December 31, 2015. The ALJ found
that plaintiff had not performed substantial gainful activity since her alleged onset date of
September 22, 2010. (R. 11). At step two, the ALJ found that plaintiff had the severe
impairments of “history of left shoulder arthropathy, chronic obstructive pulmonary (COPD)
disease in smoker, and history of neck and back pain.” Id. After analyzing the “paragraph B”
criteria for mental impairments, the ALJ determined that plaintiff’s “medically determinable
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mental impairments” of depression and anxiety were non-severe because they caused no more
than a minimal limitation in her ability to “perform basic mental work activities.” (R. 12).
At step three, the ALJ determined that plaintiff’s impairments did not meet or equal a
listed impairment. (R. 13). After reviewing plaintiff’s testimony, the medical evidence, and other
evidence in the record, the ALJ concluded that plaintiff retained the RFC to:
perform the full range of light work as defined in 20 CFR 404.1567(b). She can
occasionally lift and or/carry [sic] 20 pounds, frequently lift and/or carry 10
pounds, stand and/or walk at least 6 hours out of an 8-hour workday, and sit at
least [sic] hours out of an 8-hour workday, all with normal breaks. She must
avoid work above shoulder level, and avoid concentrated exposure to dust or
fumes.
Id. At step four, the ALJ found that plaintiff was unable to perform her past relevant work as a
nurse aide because it exceeded the light exertional level. (R. 17). At step five, the ALJ found that
plaintiff could perform the light jobs of fruit cutter and screw eye assembler, and the sedentary
jobs of call out operator and touch-up screener. (R. 18-19). Because he found that other work
existed that plaintiff could perform, the ALJ determined that plaintiff was not disabled since her
alleged onset date. (R. 19).
ANALYSIS
On appeal, plaintiff raises two similar issues: (1) that the ALJ’s RFC determination was
not based upon substantial evidence; and (2) that the ALJ’s decision is based on an incomplete
hypothetical question presented to the vocational expert. (Dkt. 19 at 3).
Residual Functional Capacity
Plaintiff argues that the ALJ failed to consider her need for supplemental oxygen in
formulating plaintiff’s RFC. (Dkt. 19 at 4-5). The Commissioner responds by attempting to
supply missing reasoning for the ALJ’s failure to include any discussion regarding plaintiff’s
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diagnosed COPD and prescribed use of oxygen. (Dkt. 20 at 4-6). The Court agrees with
plaintiff’s argument.
At step four, the ALJ must determine plaintiff’s residual functional capacity, which
reflects the most a claimant can do despite her limitations. See 20 C.F.R. § 404.1545(a)(1); SSR
96-8p. The ALJ must consider all of a claimant’s medically determinable impairments, whether
they are severe or not severe. See 20 C.F.R. §§ 404.1545(a)(2), 416.945(a)(2). The Tenth Circuit
has held that “failure to consider all of the impairments is reversible error.” Salazar v. Barnhart,
468 F.3d 615, 621 (10th Cir. 2006). The residual functional capacity findings “must include a
narrative discussion describing how the evidence supports each conclusion, citing specific
medical facts (e.g., laboratory findings) and nonmedical evidence (e.g., daily activities,
observations).” SSR 96-8p.
Here, the ALJ listed “chronic obstructive pulmonary (COPD) disease in smoker” as a
severe impairment, and stated that he considered whether plaintiff’s impairments met or
medically equaled any listed impairment, including “3.00, et. seq., Respiratory.” (R. 11, 13). The
ALJ included a limitation that plaintiff needed to “avoid concentrated exposure to dust or fumes”
in his RFC assessment. Additionally, the ALJ noted in his summary of plaintiff’s testimony that
upon release from hospitalization in December 2011, she was prescribed oxygen, and that she
“coughs continuously, and at times cannot stop.” (R. 14). However, beyond this brief testimonial
summary, the ALJ does not discuss plaintiff’s records of respiratory problems. (R. 13-17). The
ALJ does discuss plaintiff’s remaining medical records in accurate detail.
The only mention of plaintiff’s respiratory issues at all in the ALJ’s RFC determination is
a single sentence that “[s]he denied any respiratory status problems” in progress notes from
Tulsa Pain Consultants. (R. 15). A review of Tulsa Pain Consultants’ records shows that plaintiff
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was routinely asked about pulmonary function because she was using a prescribed Fentanyl pain
patch. (R. 296-307). Serious side effects of this patch include “difficult or labored breathing” and
“rapid breathing.” See http://www.drugs.com/sfx/duragesic-side-effects.html, (last visited March
4, 2015.)
Plaintiff brought a portable oxygen tank to the March 5, 2012 hearing. The ALJ noted the
tank and confirmed that plaintiff was prescribed oxygen. (R. 28). The ALJ held the record open
for 10 days after the hearing for plaintiff to submit records from her December 2011 hospital stay
for COPD. (R. 25, 49). Plaintiff’s attorney submitted the records within the 10 day time frame,
therefore, they were before the ALJ for review, yet he failed to discuss them at all. (R. 9-19; 308340).
Due to the ALJ’s omission of any discussion regarding plaintiff’s COPD and prescribed
oxygen use, the Court is unable to follow his reasoning in determining that “given the claimant’s
history of degenerative disc disease of the cervical spine and left shoulder arthropathy by history
and COPD,” she would be able to perform work as limited by her light RFC. Therefore, this case
must be remanded to the Commissioner with instruction to discuss plaintiff’s COPD records,
including her prescribed oxygen use, and how those records support his RFC of light work.
Hypothetical
This allegation of error is very similar to plaintiff’s RFC argument. Because the Court
determined that the ALJ’s RFC determination is not based on the entire record, this issue may
also be reconsidered on remand.
CONCLUSION
For the foregoing reasons, the ALJ’s decision finding plaintiff not disabled is
REVERSED and REMANDED for further proceedings. Specifically, the ALJ should discuss
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plaintiff’s COPD records and oxygen use and reconsider any other aspects of the Decision as
appropriate.
SO ORDERED this 5th day of March, 2015.
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