Parsons v. Colvin

Filing 15

MEMORANDUM OPINION. Signed by Magistrate Judge Pamela Meade Sargent on 05/03/2017. (Bordwine, Robin)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
BIG STONE GAP DIVISION
JOSEPH B. PARSONS,
Plaintiff
v.
NANCY A. BERRYHILL,1
Acting Commissioner of
Social Security,
Defendant

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Civil Action No. 2:16cv00007
MEMORANDUM OPINION

By: PAMELA MEADE SARGENT
United States Magistrate Judge

I. Background and Standard of Review
Plaintiff, Joseph B. Parsons, (“Parsons”), filed this action challenging the
final decision of the Commissioner of Social Security, (“Commissioner”), denying
his claims for disability insurance benefits, (“DIB”), and supplemental security
income, (“SSI”), under the Social Security Act, as amended, (“Act”), 42 U.S.C.A.
§§ 423 and 1381 et seq. (West 2011 & West 2012). Jurisdiction of this court is
pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3). This case is before the
undersigned magistrate judge upon transfer by consent of the parties pursuant to 28
U.S.C. § 636(c)(1). Neither party has requested oral argument; therefore, this case
is ripe for decision.
The court’s review in this case is limited to determining if the factual
findings of the Commissioner are supported by substantial evidence and were
reached through application of the correct legal standards. See Coffman v. Bowen,
1

Nancy A. Berryhill became the Acting Commissioner of Social Security on January 23,
2017. Berryhill is substituted for Carolyn W. Colvin, the previous Acting Commissioner of
Social Security.
-1-

829 F.2d 514, 517 (4th Cir. 1987). Substantial evidence has been defined as
“evidence which a reasoning mind would accept as sufficient to support a
particular conclusion. It consists of more than a mere scintilla of evidence but may
be somewhat less than a preponderance.” Laws v. Celebrezze, 368 F.2d 640, 642
(4th Cir. 1966). “‘If there is evidence to justify a refusal to direct a verdict were the
case before a jury, then there is “substantial evidence.”’” Hays v. Sullivan, 907
F.2d 1453, 1456 (4th Cir. 1990) (quoting Laws, 368 F.2d at 642).
The record shows that Parsons previously filed applications for DIB and SSI

on September 11, 2008, alleging disability as of February 24, 2007. (Record, (“R.”),
at 98.) The claims were denied initially and on reconsideration. (R. at 98.) Parsons
requested a hearing before an administrative law judge, (“ALJ”), which was held on
September 8, 2011. (R. at 98.) By decision dated September 16, 2011, an ALJ denied
Parsons’s claim, finding that he suffered from severe impairments, namely
hypertension; obesity; two-level disease of the lumbar spine, including disc protrusion
and extrusion; obstructive sleep apnea; and depressive disorder, not otherwise
specified, but that he retained the ability to perform a limited range of light work.2 (R.
at 98-109.) The Appeals Council thereafter denied Parsons’s request for review; and
by order dated November 4, 2013, this court upheld the Commissioner’s denial of
benefits. See Parsons v. Colvin, Civil Action No. 2:12cv00030 (W.D. Va. Nov. 4,
2013). 3

2

Light work involves lifting items weighing up to 20 pounds at a time with frequent
lifting or carrying of items weighing up to 10 pounds. If someone can do light work, he also can
do sedentary work. See 20 C.F.R. §§ 404.1567(b), 416.967(b) (2016).
3

I find that this prior decision is res judicata. In the 2014 decision, the ALJ found that the
record was “generally consistent with the findings of the prior ALJ …. New and material
evidence was submitted into the record, however, and this evidence warrants the somewhat
different residual functional capacity determined herein.” (R. at 14.) The ALJ found that a more
restricted residual functional capacity was warranted based on the new evidence. (R. at 14.)
-2-

The record shows that Parsons protectively filed his current applications for
DIB and SSI on August 23, 2012, alleging disability as of September 17, 2011, due
to back problems; high blood pressure; sleep apnea; breathing problems; obesity;
high cholesterol; swelling in his legs; heart problems; depression; anxiety; joint
and hip pain; fatigue; chest pain; and shortness of breath. (R. at 31, 56, 330-37,
354, 379, 392.) The claims were denied initially and upon reconsideration. (R. at
166-68, 172-74, 177-79, 183-85, 188-91, 193-98, 200-02.) Parsons then requested
a hearing before an ALJ. (R. at 203-04.) The ALJ held hearings on July 23, 2013,
December 4, 2013, and June 16, 2014, at which Parsons was represented by
counsel. (R. at 29-50, 51-81, 82-93.)
By decision dated July 1, 2014, the ALJ denied Parsons’s claims. (R. at 1322.) The ALJ found that Parsons met the nondisability insured status requirements
of the Act for DIB purposes through March 31, 2012.4 (R. at 16.) The ALJ found
that Parsons had not engaged in substantial gainful activity since February 24,
2007, the alleged onset date. (R. at 16.) The ALJ found that the medical evidence
established that Parsons had severe impairments, namely morbid obesity;
hypertension; degenerative disc disease of the lumbar spine; obstructive sleep
apnea; and depression, not otherwise specified, but she found that Parsons did not
have an impairment or combination of impairments that met or medically equaled
one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. (R. at
16.) The ALJ found that Parsons had the residual functional capacity to perform
simple, repetitive, unskilled, sedentary work5 that did not require more than
Therefore, Parsons had to show that he was disabled between September 17, 2011, the
day following the prior ALJ’s decision, and March 31, 2012, the date last insured, in order to be
eligible for DIB benefits.
4

5

Sedentary work involves lifting items weighing up to 10 pounds at a time and
occasionally lifting or carrying articles like docket files, ledgers and small tools. Although a
-3-

occasional climbing of ramps and stairs, balancing and stooping; that did not
require crawling or climbing ladders, ropes or scaffolds; and did not expose him to
heights, hazards and vibrations. (R. at 18.) The ALJ found that Parsons was unable
to perform his past relevant work. (R. at 21.) Based on Parsons’s age, education,
work history and residual functional capacity and the testimony of a vocational
expert, the ALJ found that a significant number of other jobs existed in the national
economy that Parsons could perform, including jobs as an assembler, a packer and
an inspector/tester. (R. at 21-22.) Thus, the ALJ concluded that Parsons was not
under a disability as defined by the Act, and was not eligible for DIB or SSI
benefits. (R. at 22.) See 20 C.F.R. §§ 404.1520(g) 416.920(g) (2016).
After the ALJ issued her decision, Parsons pursued his administrative
appeals, (R. at 7), but the Appeals Council denied his request for review. (R. at 15.) Parsons then filed this action seeking review of the ALJ’s unfavorable decision,
which now stands as the Commissioner’s final decision. See 20 C.F.R. §§ 404.981,
416.1481 (2016). This case is before this court on Parsons’s motion for summary
judgment filed September 15, 2016, and the Commissioner’s motion for summary
judgment filed October 20, 2016.
II. Facts
Parsons was born in 1972, (R. at 330, 334), which classifies him as a
“younger person” under 20 C.F.R. §§ 404.1563(c), 416.963(c). Parsons obtained
his general education development, (“GED”), diploma and has past relevant work
sedentary job is defined as one which involves sitting, a certain amount of walking or standing is
often necessary in carrying out job duties. Jobs are sedentary if walking or standing are required
occasionally and other sedentary criteria are met. See 20 C.F.R. §§ 404.1567(a), 416.967(a)
(2016).
-4-

as a construction worker, a heavy equipment operator, a mechanic and a tester. (R.
at 47, 380.) Parsons stated that he played cards at times, talked on the phone and
attended church once or twice a month. (R. at 37-38.) He stated that he could walk
up to 100 feet without interruption; sit for up to 20 minutes without interruption;
that he could not lift and carry objects due to pain and weakness; that stooping
caused him to become lightheaded; and that he could not bend. (R. at 39-40, 42.)
Parsons stated that he had been on oxygen 24 hours a day, seven days a week since
February 2010. (R. at 41.) Parsons stated that he spent up to five hours a day
reclining or lying down. (R. at 45.)
John F. Newman, a vocational expert, was present and testified at Parsons’s
July 2013 hearing. (R. at 46-50.) Newman was asked to consider a hypothetical
individual of Parsons’s age, education and work history, who would be limited to
simple, routine, repetitive, light work that did not require more than occasional
climbing of stairs or ramps, balancing, stooping, kneeling and crouching; that did
not require him to crawl or climb ladders, scaffolds or ropes; and that did not
require him to work around concentrated exposure to hazardous machinery,
unprotected heights and vibrations. (R. at 48.) Newman stated that the individual
could perform jobs existing in significant numbers in the national economy,
including those of an assembler, a packer and an inspector, tester and sorter. (R. at
48-49.) Newman stated that these jobs also would be available at the sedentary
level should the individual be limited to standing two hours at a time. (R. at 49.)
He stated that, should the individual be required to use a large oxygenator
continuously, it would not be tolerated in a competitive work environment. (R. at
49-50.) Newman stated that, should the individual be absent from work at least two
days a month, competitive employment would be precluded. (R. at 50.)

-5-

Dr. Edwin Cruz, M.D., a medical expert, testified at Parsons’s December
2013 hearing. (R. at 56-77.) Dr. Cruz stated that, when he completed his functional
capacity assessment, he only considered Parsons’s pulmonary issues. (R. at 69.) He
stated that he found no objective medical evidence in the record that would
indicate that Parsons needed oxygen 24 hours a day, seven days a week. (R. at 72.)
Dr. Cruz recommended that Parsons obtain a pulmonary function test. (R. at 72.)
Asheley Wells, a vocational expert, testified at Parsons’s June 2014 hearing.
(R. at 89-92.) She was asked to consider an individual who would be limited as
indicated in the functional capacity assessment completed by Dr. Cruz. (R. at 8990, 807-12.) Wells stated that there would be jobs available that such an individual
could perform, including jobs as a dishwasher, a grocery bagger and a hospital
cleaner. (R. at 90.) Wells stated that, if an individual was required to utilize oxygen
24 hours a day, seven days a week, the sedentary job of a call center position
would accommodate this requirement. (R. at 91.) She stated that, if the individual
was seriously limited 6 in his ability to deal with co-workers, to interact with
supervisors, to deal with work stress and to demonstrate reliability, there would be
no jobs available that the individual could perform. (R. at 91.) Wells was asked to
consider an individual who would be off task more than 10 percent of the time;
who could be on his feet for only two hours in an eight-hour workday; who was
limited to simple, routine tasks; and who had no ability to deal with work stresses
or to demonstrate reliability. (R. at 91.) She stated that these limitations would
preclude all competitive employment. (R. at 92.) She stated that, if the first
hypothetical individual would be limited to simple, routine, repetitive jobs, the jobs
identified would not be impacted. (R. at 92.)
6

Seriously limited was defined as a limitation resulting in inadequate work performance.
(R. at 91.)
-6-

In rendering her decision, the ALJ reviewed records from Wise County
Public Schools; Dr. Brian Strain, M.D., a state agency physician; Stephen P.
Saxby, Ph.D., a state agency psychologist; Dr. Joseph Duckwall, M.D., a state
agency physician; Wellmont Holston Valley Medical Center; Robert S. Spangler,
Ed.D., a licensed psychologist; Wellmont Lonesome Pine Hospital; Dr. Sam G.
Vorkpor, M.D.; Dr. Bryan L. Watson, D.O.; and Dr. Edwin Cruz, M.D. Parsons’s
attorney submitted additional medical records from Dr. Watson and Wellmont
Health System to the Appeals Council.7
The record shows that Parsons was treated by Dr. Sam G. Vorkpor, M.D.,
and Dr. Bryan L. Watson, D.O., since March 2009 for hypertension; morbid
obesity; sleep apnea; anxiety; chronic back pain; hyperlipidemia; restless leg
syndrome; tobacco abuse; insomnia; dyspnea; and respiratory abnormality. (R. at
591-609, 697-714, 719-26, 764-70, 780-82, 784-86, 815-20, 836-69.) Dr. Vorkpor
repeatedly reported from 2009 through 2012 that Parsons’s chest and lung
examinations were normal. (R. at 591, 593-95, 601, 603, 606, 698, 709.)
Throughout 2010 and 2011, Parsons reported significant improvement with his
symptoms of sleep apnea since using his CPAP and BiPAP machine and
medications, and Dr. Vorkpor noted that Parsons’s sleep apnea was stable. (R. at
591, 593-95, 703.) On September 6, 2011, Parsons reported that he was
experiencing severe stress related to domestic issues. (R. at 709.) That same day,
Dr. Vorkpor completed a medical assessment, 8 indicating that Parsons could
occasionally lift and carry items weighing up to 10 pounds and frequently lift and
7

Since the Appeals Council considered and incorporated this additional evidence into the
record in reaching its decision, (R. at 1-5), this court must also take these new findings into
account when determining whether substantial evidence supports the ALJ's findings. See Wilkins
v. Sec'y of Dep't of Health & Human Servs., 953 F.2d 93, 96 (4th Cir. 1991).
8

This assessment was considered by the ALJ in Parsons’s previous claim. (R. at 105.)
-7-

carry items weighing up to 20 pounds. (R. at 756-58.) He opined that Parsons
could stand and/or walk up to 15 minutes in an eight-hour workday and that
Parsons’s ability to sit was not impaired. (R. at 756-57.) Dr. Vorkpor opined that
Parsons could occasionally climb, stoop and crouch and frequently kneel, balance
and crawl. (R. at 757.) He found that Parsons had a limited ability to push and pull.
(R. at 757.) Dr. Vorkpor opined that Parsons would be absent from work more than
two days a month. (R. at 758.) He placed these limitations due to Parsons having
difficulty breathing; sleep apnea; uncontrolled hypertension; and morbid obesity.
(R. at 757.)
On January 6, 2012, Parsons stated that he felt well and voiced only minor
complaints. (R. at 702.) He reported that he was under severe stress due to
domestic problems. (R. at 702.) On April 6, 2012, Parsons reported that he felt well
and voiced only minor complaints. (R. at 700.) His blood pressure reading was
124/88, and his respiratory and musculoskeletal examinations were normal. (R. at
700-01.) On August 6, 2012, Parsons weighed 375 pounds, and his body mass
index was 46.87. (R. at 697.) He reported that he continued to smoke one pack of
cigarettes a day. (R. at 697.)
On January 18, 2011, Parsons was admitted at Wellmont Lonesome Pine
Hospital, (“Lonesome Pine”), with complaints of intractable vomiting and chest
pain. (R. at 539-42.) Parsons’s respiration reading was 26 per minute; his oxygen
saturation level was 95 percent; and he had decreased bilateral breath sounds. (R.
at 541.) X-rays of Parsons’s chest showed an enlarged heart and mild pulmonary
vascular congestion. (R. at 535.) He was discharged the following day with
diagnoses of chest pain; accelerated hypertension; and chronic obstructive
pulmonary disease, (“COPD”). (R. at 539.) On July 3, 2012, Parsons presented to
-8-

the emergency room at Lonesome Pine with complaints of chest pain, weakness
and nausea. (R. at 626-57.) A chest x-ray showed a significantly enlarged heart and
clear lungs. (R. at 656.) Parsons’s respiration reading was 20 per minute; his
oxygen saturation level was 98 percent on room air; and he had good breath sounds
with no rales, rhonchi or wheezing. (R. at 626, 629.). He weighed 375 pounds; his
extremities were normal with adequate strength and full range of motion; no lower
extremity swelling or edema was noted; and he had appropriate demeanor and
interpersonal interaction. (R. at 628, 630.) It was recommended that Parsons be
admitted to rule out myocardial infarction; however, he signed out against medical
advice. (R. at 649.)
On September 27, 2012, Dr. Brian Strain, M.D., a state agency physician,
completed a medical assessment, indicating that Parsons had the residual
functional capacity to perform light work. (R. at 121-23.) He opined that Parsons
could frequently climb ramps and stairs and balance; occasionally stoop, kneel,
crouch and crawl; and never climb ladders, ropes or scaffolds. (R. at 122.) No
manipulative, visual or communicative limitations were noted. (R. at 122-23.) Dr.
Strain opined that Parsons should avoid concentrated exposure to fumes, odors,
dusts, gases and poor ventilation and hazards, such as machinery and heights. (R.
at 123.)
The record shows that Parsons treated with Dr. Bryan L. Watson, D.O., from
November 2012 through October 2015. During this time, Parsons repeatedly
reported that he felt well and voiced only minor complaints. (R. at 722, 765, 780,
784, 815, 818.) Parsons routinely reported that he was compliant with treatment for
his lower back pain and that he had fair to good symptom control. (R. at 719, 722,
765, 780.) He repeatedly reported that his symptoms were relieved with
-9-

medications. (R. at 765, 768, 815, 818, 836, 854-55, 858, 862, 866.) Dr. Watson
consistently reported that Parsons’s chest and lung examination was normal. (R. at
719-20, 722-23, 768-69, 781, 784-85, 815-16, 818-19, 845, 850, 853, 860, 864,
867.) Dr. Watson reported that Parsons’s neurologic and musculoskeletal
examinations were normal with the exception of lumbosacral spine tenderness. (R.
at 723, 769, 781-82, 785-86, 816-17, 819-20.)
Dr. Watson routinely reported that Parsons was able to articulate well with
normal speech, rate, volume and coherence; his thought content was normal; he
displayed

no

evidence

of

hallucinations,

delusions,

obsessions

or

homicidal/suicidal ideation; he demonstrated appropriate judgment and insight; he
was able to recall recent and remote events; his fund of knowledge was intact; his
attention span was intact; his ability to concentrate was normal; and his mood and
affect were normal. (R. at 766, 781, 785, 816, 819, 838, 845, 850, 853, 857, 860,
864, 868.)
On August 5, 2013, Parsons’s blood pressure reading was 112/80; his
respiration reading was 14 per minute, unlabored; his oxygen saturation level was
92 percent; and he weighed 383 pounds. (R. at 819.) On August 6, 2013, Dr.
Watson indicated that Parsons was on oxygen 24 hours a day, seven days a week
and that the date the oxygen treatment was prescribed was February 2010. (R. at
788.) On September 5, 2013, Parsons’s blood pressure reading was 130/80; his
oxygen saturation level was at 94 percent; and he weighed 376 pounds. (R. at 816.)
On December 4, 2013, Dr. Watson indicated that it was medically necessary that
Parsons be provided oxygen treatment 24 hours a day, seven days a week. (R. at
822.)

-10-

On January 13, 2014, Parsons’s blood pressure reading was 90/70; his
oxygen saturation level was at 94 percent; and he weighed 374 pounds. (R. at 845.)
On April 28, 2014, Parsons’s blood pressure reading was 114/80; his oxygen
saturation level was at 98 percent; and he weighed 374 pounds. (R. at 837.)
Pulmonary examination was normal. (R. at 838.) On July 28, 2014, it was noted
that Parsons’s hypertension was controlled and that medication provided moderate
pain relief. (R. at 865-66) His blood pressure reading was 110/76; his oxygen
saturation level was at 93 percent; and he weighed 364 pounds. (R. at 867.) On
October 28, 2014, it was noted that Parsons’s hypertension was controlled and that
medication provided moderate pain relief. (R. at 862.) Parsons smoked one pack of
cigarettes a day. (R. at 863.) His blood pressure reading was 126/82; his oxygen
saturation level was at 98 percent; his respiration reading was 18 per minute; he
weighed 357 pounds; and his body mass index was assessed at 44.7. (R. at 864.)
On January 29, 2015, it was noted that Parsons’s hypertension was
controlled and that medication provided moderate pain relief. (R. at 858.) His
blood pressure reading was 146/86; his oxygen saturation level was at 96 percent;
his respiration reading was 16 per minute; he weighed 368 pounds; and his body
mass index was assessed at 46. (R. at 859.) On July 9, 2015, Parsons reported that
he occasionally experienced symptoms of anxiety. (R. at 851.) His blood pressure
reading was 110/70; his oxygen saturation level was at 96 percent; he weighed 353
pounds; and his body mass index was assessed at 44.1. (R. at 852-53.) On August
6, 2015, an MRI of Parsons’s lumbar spine showed a central protruded disc at the
L5-S1 level encroaching on the left S1 root and abutting the right S1 root with a
smaller protruded disc at the L4-L5 level. (R. at 869.) On October 22, 2015,
Parsons’s blood pressure reading was 110/76; his oxygen saturation level was at 94
percent; and he weighed 342 pounds. (R. at 849.)
-11-

On March 13, 2013, Stephen P. Saxby, Ph.D., a state agency psychologist,
completed a Psychiatric Review Technique form, (“PRTF”), finding that Parsons
had no limitations in his activities of daily living, experienced mild difficulties in
maintaining social functioning and in maintaining concentration, persistence or
pace and had experienced no repeated episodes of decompensation of extended
duration. (R. at 155.) Saxby noted that Parsons would have mild limitations in
social interaction and concentration, persistence and pace. (R. at 155.)
On March 14, 2013, Dr. Joseph Duckwall, M.D., a state agency physician,
completed a medical assessment, indicating that Parsons had the residual
functional capacity to perform light work. (R. at 156-58.) He opined that Parsons
could occasionally climb ramps and stairs, balance, stoop, kneel and crouch and
never climb ladders, ropes or scaffolds and crawl. (R. at 157.) No manipulative,
visual or communicative limitations were noted. (R. at 157.) Dr. Duckwall opined
that Parsons should avoid concentrated exposure to temperature extremes;
vibration; and hazards, such as machinery and heights. (R. at 158.)
On June 7, 2013, Robert S. Spangler, Ed.D., a licensed psychologist,
evaluated Parsons at the request of Parsons’s attorney. (R. at 772-78.) Spangler
reported that Parsons presented confused and slow paced. (R. at 772.) Parsons had
awkward gross motor movements secondary to back injury surgery and morbid
obesity. (R. at 772.) Spangler reported that Parsons was alert, but intermittently
confused; he had adequate recall of remote events; he had inadequate recall of
recent events; he had fair eye contact; his motor activity was calm, but in
discomfort; his affect was blunted; his mood was depressed; he was cooperative,
compliant and forthcoming; his stream of thought was unremarkable; he had
logical

associations;

his

thought

content
-12-

was

nonpsychotic;

perceptual

abnormalities were noted; and he had adequate social skills. (R. at 773-74.) The
Wechsler Adult Intelligence Scale - Fourth Edition, (“WAIS-IV”), was
administered, and Parsons obtained a full-scale IQ score of 84. (R. at 774.)
Spangler noted that Parsons’s then-current full-scale IQ score showed a 36-point
loss from his highest and last school IQ score of 120. (R. at 774.) He noted that,
when comparing Parsons’s IQ score of January 29, 2010, to his last school IQ
score, there was a 28-point difference. (R. at 749, 774.) Thus, Spangler opined that
Parsons met the listing of impairment § 12.02 on January 29, 2010, and continued
to do so. (R. at 774.) Spangler diagnosed moderate depression disorder, not
otherwise specified; cognitive disorder, not otherwise specified; and low average
intellectual functioning. (R. at 775.) He assessed Parsons’s then-current Global
Assessment of Functioning, (“GAF”), 9 score at 55 to 60.10 (R. at 775.)
Spangler completed a mental assessment, indicating that Parsons had a
limited, but satisfactory, ability to maintain attention and concentration for up to 20
minutes. (R. at 776-78.) He found that Parsons had a seriously limited ability11 to
follow work rules; to relate to co-workers; to deal with the public; to use judgment;
to interact with supervisors; to function independently; to maintain attention and
concentration after 20 minutes; to understand, remember and carry out simple job
instructions; to maintain personal appearance; to behave in an emotionally stable
9

The GAF scale ranges from zero to 100 and “[c]onsider[s] psychological, social, and
occupational functioning on a hypothetical continuum of mental health-illness.” DIAGNOSTIC
AND STATISTICAL MANUAL OF MENTAL DISORDERS FOURTH EDITION, (“DSM-IV”), 32
(American Psychiatric Association 1994).
10

A GAF score of 51-60 indicates that the individual has “[m]oderate symptoms... OR
moderate difficulty in social, occupational, or school functioning....” DSM-IV at 32.
11

Fair is defined as an individual’s ability to function is seriously limited, resulting in
inadequate work performance. (R. at 776.)
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manner; and to relate predictably in social situations. (R. at 776-77.) Spangler
opined that Parsons had no useful ability to deal with work stresses; to understand,
remember and carry out complex and detailed job instructions; and to demonstrate
reliability. (R. at 776-77.) Spangler also found that Parsons could not manage his
benefits in his own best interest. (R. at 778.)
On August 25, 2013, at the request of Disability Determination Services, Dr.
Edwin Cruz, M.D., reviewed Parsons’s medical records pertaining to Parsons’s
need for oxygen therapy. (R. at 802-12.) Dr. Cruz found that none of the medical
evidence supported Parsons’s need for oxygen 24 hours a day, seven days a week,
and he opined that Parsons did not meet or equal any of the listings of impairment.
(R. at 803.)
Dr. Cruz completed a medical assessment, indicating that Parsons had the
ability to frequently lift and carry objects weighing up to 100 pounds and that he
could continuously lift and carry objects weighing up to 50 pounds. (R. at 807-12.)
He found that Parsons could sit up to eight hours in an eight-hour workday and that
he could do so for up to four hours without interruption. (R. at 808.) Dr. Cruz
found that Parsons could stand and/or walk eight hours in an eight-hour workday
and that he could do so for up to two hours without interruption. (R. at 808.) He
found that Parsons could frequently use his hands to reach overhead and to push
and pull and continuously use his hands to reach, to handle, to finger and to feel.
(R. at 809.) Dr. Cruz opined that Parsons could continuously use his feet to operate
foot controls. (R. at 809.) He found that Parsons could frequently balance, stoop,
kneel, crouch and crawl; occasionally climb stairs and ramps; and never climb
ladders or scaffolds. (R. at 810.) Dr. Cruz found that Parsons could frequently
work around extreme heat and loud noise; occasionally work around dust, odors,
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fumes and pulmonary irritants; and never work around unprotected heights. (R. at
811.)
On January 30, 2014, a pulmonary function test was performed at Norton
Community Hospital at the request of Disability Determination Services. (R. at
826-31.) It was noted that Parsons did not smoke and that he put forth good effort.
(R. at 826.) Although Parsons was advised during one of his hearings not to use
oxygen during testing, (R. at 80), he proceeded to test with oxygen. (R. at 826-31.)
His FEV1 level was 3.73, and his FVC level was 4.33, (R. at 830), which measured
his FEV1 and FVC ratio at 86 percent. (R. at 830.)
III. Analysis
The Commissioner uses a five-step process in evaluating DIB and SSI
claims. See 20 C.F.R. §§ 404.1520, 416.920 (2016). See also Heckler v. Campbell,
461 U.S. 458, 460-62 (1983); Hall v. Harris, 658 F.2d 260, 264-65 (4th Cir. 1981).
This process requires the Commissioner to consider, in order, whether a claimant
1) is working; 2) has a severe impairment; 3) has an impairment that meets or
equals the requirements of a listed impairment; 4) can return to his past relevant
work; and 5) if not, whether he can perform other work. See 20 C.F.R. §§
404.1520, 416.920. If the Commissioner finds conclusively that a claimant is or is
not disabled at any point in this process, review does not proceed to the next step.
See 20 C.F.R. §§ 404.1520(a), 416.920(a) (2016).
Under this analysis, a claimant has the initial burden of showing that he is
unable to return to his past relevant work because of his impairments. Once the
claimant establishes a prima facie case of disability, the burden shifts to the
-15-

Commissioner. To satisfy this burden, the Commissioner must then establish that
the claimant has the residual functional capacity, considering the claimant’s age,
education, work experience and impairments, to perform alternative jobs that exist
in the national economy. See 42 U.S.C.A. §§ 423(d)(2)(A), 1382c(a)(3)(A)-(B)
(West 2011 & West 2012); McLain v. Schweiker, 715 F.2d 866, 868-69 (4th Cir.
1983); Hall, 658 F.2d at 264-65; Wilson v. Califano, 617 F.2d 1050, 1053 (4th Cir.
1980).
As stated above, the court’s function in this case is limited to determining
whether substantial evidence exists in the record to support the ALJ’s findings.
This court must not weigh the evidence, as this court lacks authority to substitute
its judgment for that of the Commissioner, provided her decision is supported by
substantial evidence. See Hays, 907 F.2d at 1456. In determining whether
substantial evidence supports the Commissioner’s decision, the court also must
consider whether the ALJ analyzed all of the relevant evidence and whether the
ALJ sufficiently explained her findings and her rationale in crediting evidence.
See Sterling Smokeless Coal Co. v. Akers, 131 F.3d 438, 439-40 (4th Cir. 1997).
Thus, it is the ALJ’s responsibility to weigh the evidence, including the
medical evidence, in order to resolve any conflicts which might appear therein.
See Hays, 907 F.2d at 1456; Taylor v. Weinberger, 528 F.2d 1153, 1156 (4th Cir.
1975). Furthermore, while an ALJ may not reject medical evidence for no reason
or for the wrong reason, see King v. Califano, 615 F.2d 1018, 1020 (4th Cir. 1980),
an ALJ may, under the regulations, assign no or little weight to a medical opinion,
even one from a treating source, based on the factors set forth at 20 C.F.R. §§
404.1527(c), 416.927(c), if she sufficiently explains her rationale and if the record
supports her findings.
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Parsons argues that the ALJ erred by failing to find that he suffered from a
severe respiratory impairment other than obstructive sleep apnea. (Plaintiff’s
Memorandum In Support Of His Motion For Summary Judgment, (“Plaintiff’s
Brief”), at 5-7.) Parsons argues that the ALJ erred by failing to adhere to the
treating physician rule. (Plaintiff’s Brief at 7-8.) In particular, Parsons argues that
the ALJ failed to give controlling weight to the opinions of Dr. Vorkpor and Dr.
Watson. (Plaintiff’s Brief at 7-8.) Parsons also argues that the ALJ erred by failing
to give full consideration to the findings of Spangler. (Plaintiff’s Brief at 8-10.)
Parsons argues that the ALJ erred by failing to find that he suffered from a
severe respiratory impairment other than obstructive sleep apnea. (Plaintiff’s Brief
at 5-7.) I agree. I note that Dr. Watson routinely reported that Parsons did not have
difficulty breathing, noting quiet, even and easy respiratory effort with no use of
accessory muscles and no wheezes, rhonchi, rales or crackles. (R. at 698, 701, 709,
720, 723, 726, 766, 769, 781, 785, 816, 819, 838, 845, 849-50, 852-53, 856-57,
859-60, 863-64, 867.) However, I also note that, in September 2012 a state agency
physician opined that Parsons should avoid concentrated exposure to fumes, odors,
dusts, gases and poor ventilation. (R. at 123.) In addition, Dr. Cruz found that
Parsons could only occasionally work around dust, odors, fumes and pulmonary
irritants. (R. at 811.) These limitations were never presented to the vocational
expert. Furthermore, the ALJ failed to address these limitations in her findings. It
is well-settled that, in determining whether substantial evidence supports the ALJ’s
decision, the court also must consider whether the ALJ analyzed all of the relevant
evidence and whether the ALJ sufficiently explained her findings and her rationale
in crediting evidence. See Sterling Smokeless Coal Co., 131 F.3d at 439-40. “[T]he
[Commissioner] must indicate explicitly that all relevant evidence has been
weighed and its weight.” Stawls v. Califano, 596 F.2d 1209, 1213 (4th Cir. 1979).
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“The courts … face a difficult task in applying the substantial evidence test when
the [Commissioner] has not considered all relevant evidence. Unless the
[Commissioner] has analyzed all evidence and has sufficiently explained the
weight [she] has given to obviously probative exhibits, to say that [her] decision is
supported by substantial evidence approaches an abdication of the court’s ‘duty to
scrutinize the record as a whole to determine whether the conclusions reached are
rational.’” Arnold v. Sec’y of Health, Educ. & Welfare, 567 F.2d 258, 259 (4th Cir.
1977) (quoting Oppenheim v. Finch, 495 F.2d 396, 397 (4th Cir. 1974)). Thus, I do
not find that substantial evidence exists to support the ALJ’s finding that Parsons
did not suffer from a severe respiratory impairment other than sleep apnea.
I also note that there is objective evidence in the record showing that Parsons
suffered from an enlarged heart as early as January 2011. (R. at 535.) Parsons also
was diagnosed with COPD in January 2011. (R. at 539.) The ALJ’s one paragraph
“analysis” of Parsons’s severe impairments makes no mention of these conditions.
(R. at 16.) The ALJ even recognizes this diagnosis in her analysis of Parsons’s
work-related abilities. (R. at 19.) There, however, she incorrectly states that
Parsons’s treatment records “do not suggest an ongoing need for oxygen,” ignoring
Dr. Watson’s December 4, 2013, statement that oxygen use was medically
necessary. (R. at 822.)
Parsons also argues that the ALJ erred by failing to give full consideration to
the findings of Spangler. (Plaintiff’s Brief at 8-10.) Based on my review of the
record, I do not find that the ALJ addressed Spangler’s finding with regard to an
organic mental disorder. Therefore, I do not find that substantial evidence supports
the ALJ’s decision as to Parsons’s mental residual functional capacity. The ALJ
noted that she was giving “some weight” to Spangler’s opinion that Parsons could
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perform simple, routine work, but she did not accept his finding that Parsons would
be expected to miss more than two days of work a month. (R. at 20.) It is noted that
Spangler administered the WAIS-IV, and Parsons obtained a full-scale IQ score of
84. (R. at 774.) Spangler noted that Parsons’s then-current full-scale IQ score
showed a 36-point loss from his highest and last school IQ score of 120. (R. at
774.) He also noted that when comparing Parsons’s IQ score of January 29, 2010,
to his last school IQ score, there was a 28-point difference. (R. at 774.) Thus,
Spangler opined that Parsons met the listing of impairment § 12.02 on January 29,
2010, and continued to do so. (R. at 774.)
In addition, Spangler found that Parsons was seriously limited, resulting in
inadequate work performance, in his ability to follow work rules; to relate to coworkers; to deal with the public; to use judgment; to interact with supervisors; to
function independently; to maintain attention and concentration after 20 minutes;
to understand, remember and carry out simple job instructions; to maintain
personal appearance; to behave in an emotionally stable manner; and to relate
predictably in social situations. (R. at 776-77.) Spangler opined that Parsons had no
useful ability to deal with work stresses; to understand, remember and carry out
complex and detailed job instructions; and to demonstrate reliability. (R. at 77677.)
Section 12.02 is the listing of impairment for organic mental disorders
involving psychological or behavioral abnormalities associated with a dysfunction
of the brain. The required level of severity for these disorders is met when the
requirements in both A and B are satisfied, or when the requirements in C are
satisfied. Section 12.02(A)(7) states that demonstration of a loss of specific
cognitive abilities or affective changes and the medically documented persistence
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of loss of measured intellectual ability of at least 15 IQ points from premorbid
levels or overall impairment index clearly within the severely impaired range on
neuropsychological testing resulting in at least two of the following: (1) marked
restriction of activities of daily living; or (2) marked difficulties in maintaining
social functioning; or (3) marked difficulties in maintaining concentration,
persistence or pace; or (4) repeated episodes of decompenstation, each of extended
duration. See 20 C.F.R. Part 404, Subpart P, Appendix 1, § 12.02(A)(7), (B)(1-4)
(2016).
The ALJ failed to address Spangler’s finding that Parsons met the listing of
impairment for § 12.02(A)(7). Thus, I cannot determine if the ALJ considered this
evidence in making her determination with regard to Spangler’s mental residual
functional capacity.
It is for all of these reasons that I find that the ALJ erred by failing to
analyze all of the relevant evidence and state the weight given to it, thereby
precluding the court’s ability to determine whether the ALJ’s decision is supported
by substantial evidence.
An appropriate Order and Judgment will be entered.
DATED:

May 3, 2017.
/s/

Pamela Meade Sargent

UNITED STATES MAGISTRATE JUDGE

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