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Parsons v. Berryhill

United States District Court, W.D. Virginia, Big Stone Gap Division

May 3, 2017

JOSEPH B. PARSONS, Plaintiff
v.
NANCY A. BERRYHILL, [1] Acting Commissioner of Social Security, Defendant

          MEMORANDUM OPINION

          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, 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]

         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 13-22.) 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 work[5] that did not require more than 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 1-5.) 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 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.)

         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 89-90, 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.)

         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 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 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 ...


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