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Parker v. Colvin

United States District Court, S.D. Indiana, Indianapolis Division

March 25, 2015

JODI D. PARKER, Plaintiff,



This is an action for judicial review of the final decision of Defendant Commissioner of Social Security ("Commissioner") finding Plaintiff Jodi D. Parker ("Ms. Parker") not entitled to Disability Insurance Benefits ("DIB") or Supplemental Security Income ("SSI") under Title II and Title XVI of the Social Security Act. See 42 U.S.C. §§ 416(i), 423(d), & 1382c(a)(3).

Procedural History

Ms. Parker filed an application for DIB and SSI in September 2010 in which she alleged a disability onset date of July 5, 2009. This application was denied both initially on January 31, 2011, and upon reconsideration on April 21, 2011. Subsequently, an Administrative Law Judge ("ALJ") found that Ms. Parker failed to qualify as disabled because she was capable, even with her impairment, of performing other available work in the national and local economy. R. at 26-29. After the Appeals Council denied Ms. Parker's request for review on December 4, 2013, the Commissioner's decision became final, and Ms. Parker timely exercised her right to judicial review under 42 U.S.C. § 405(g). This case was referred for consideration to Magistrate Judge Dinsmore, who on September 22, 2014 issued a Report and Recommendation ("R & R") that the Commissioner's decision be upheld because it was supported by substantial evidence and was otherwise in accordance with law. This cause is now before the Court on Plaintiff's Objections to Magistrate Judge's R & R.

Factual Background

Jodi Parker was forty-six years old when she filed her application for DIB and SSI on the basis of hip and knee injuries, bipolar disorder, and hearing loss. R. at 90.[1]She had previously been employed as a cashier for companies such as Menard's and Wal-Mart. R. at 45-52. Ms. Parker received medical treatment from her primary care physician, Dr. Jose Valena, between 2008 and 2012. Dr. Valena diagnosed Ms. Parker with hypertension, diabetes mellitus, chronic back pain; osteoarthritis of the spine, knees, and hips, anxiety disorder, and bipolar disorder. R. at 19, 267, 273, 286, 480, 588.

In 2009, Ms. Parker visited the emergency room several times to obtain medical care. In January, she received treatment for left knee pain, but X-rays came back negative. R. at 372-74. In April, Ms. Parker returned to the emergency room for back and hip pain, but X-rays again came back negative. R. at 364-67. Finally, in May, Ms. Parker returned to the emergency room for chest and left arm pain, R. at 345, but tests indicated "no active disease" or anomalies. R. at 356, 358. Ms. Parker was released from the emergency room in stable condition. R. at 360.

In 2010, Ms. Parker underwent a series of medical consultations as required by the benefits application process. In November 2010, Dr. Nicole Caldwell performed a physical consultative exam, during which Ms. Parker reported that she had been involved in a car accident several years prior and, as a result, suffered from back, hip, and knee pain. R. at 420. Ms. Parker also reported that she had been diagnosed as bipolar, but stated that her medication properly managed that condition. Id. Furthermore, although Ms. Parker reported having a history of hearing loss, Dr. Caldwell observed that Ms. Parker could understand speech at a normal volume and without looking at the speaker's face. R. at 420-22. Dr. Caldwell noted that Ms. Parker's lungs were clear, her extremities were normal, her neurological function was intact, and her posture and gait were normal. R. at 421. Dr. Caldwell diagnosed Ms. Parker with chronic hip pain, chronic back pain, and osteoarthritis, and he recommended additional imaging tests to assess those conditions. Id. Those tests yielded mixed results. X-rays of Ms. Parker's hip were negative, R. at 424, but X-rays of her knees showed a loose body and osteoarthritis, R. at 425-26. X-rays of Ms. Parker's back showed mild degenerative changes, R. at 427, and subsequent X-rays of her knees showed a potential meniscus tear. R. at 637-40.

In addition, in November 2010, Dr. Javan Horwitz conducted a psychological consultative exam. R. at 412. Dr. Horwitz found that Ms. Parker had good social skills, attempted each task with full effort, and related to the examiner with average ability. R. at 414-16. Dr. Horwitz noted Ms. Parker's history of bipolar disorder and anxiety, R. at 413, and stated that her "mood instability may slow her [work] performance down at times." R. at 416. Dr. Horwitz nonetheless determined Ms. Parker could perform simple tasks "without much difficulty." Id.

Disability Determination Bureau doctors also conducted physical and mental Residual Functional Capacity ("RFC") evaluations in January 2011. R. at 428, 436. Dr. A. Dobson completed a physical RFC analysis, R. at 435, and he concluded that Ms. Parker could stand and/or walk for about six hours per day, sit for about six hours per day, and otherwise engage in a range of light work. R. at 428-35. Dr. Randal Horton completed the mental RFC analysis. R. at 440. Dr. Horton concluded that Ms. Parker could relate to coworkers "on at least a superficial basis" and focus on tasks for "sufficient periods of time" to complete them. R. at 438. Dr. Horton's Psychiatric Review submission indicated that Ms. Parker's impairments did not meet or medically equal a listing in 20 C.F.R. Part 404's Listing of Impairments. R. at 440-52.

In 2012, Ms. Parker was hospitalized twice. In March of that year, she visited the hospital due to complaints of muscle pain and weakness. R. at 549. Tests revealed that Ms. Parker had low potassium levels and, as a result, she was given a potassium supplement. R. at 557. During this visit, Ms. Parker was also diagnosed with chronic obstructive pulmonary disease ("COPD"). R. at 557. Ms. Parker's oxygen saturation was low (85%), R. at 548, and the hospital staff heard "crackles" in her lungs. R. at 581. The oxygen saturation level increased to 96% after Ms. Parker was placed on supplemental oxygen. R. at 548. During the same hospital visit, Ms. Parker underwent two CT scans-one of her abdomen and the other of her chest. R. at 566-69. The CT scan of her abdomen revealed "small bilateral pleural effusions with bibasilar dependent atelectasis" in her lungs as well as "[l]inear bands of atelectasis and/or scarring [ ] within the lingual and right middle [lung] lobe." R. at 566. With respect to the CT scan of Ms. Parker's chest, the radiologist observed "[i]nterlobular septal thickening throughout the upper and lower lungs, with minimal subpleural groundglass airspace disease, and mild bilbasilar airspace consolidation with adjacent trace bilateral pleural effusions. Taken together, these findings are most suggestive of fluid overload with mild interstitial edema and effusions, with adjacent passive atelectasis." R. at 568. At the conclusion of her hospital visit, Ms. Parker was instructed to use "[o]xygen per nasal cannula with activity, " R. at 558, but Ms. Parker denied having shortness of breath or respiratory distress at that moment. R. at 548.

Following that first hospital visit, Ms. Parker obtained a home oxygen unit. R. at 563. The technician delivering the unit completed a home oxygen evaluation. Id. After conducting the evaluation, the technician observed that Ms. Parker's SpO2 level fluctuated depending on her activity. See R. at 564. While sitting, Ms. Parker's SpO2 level was in the "low 90s"; while walking, it increased to the "high 90s"; after walking and sitting down, it decreased to 86%; and after being placed on supplemental oxygen, it increased to 93%. Id.

In April 2012, Ms. Parker visited the hospital a second time, this time complaining of nausea and back pain. R. at 596. The hospital determined that her potassium levels were abnormally high, and that she was suffering renal failure. R. at 597. This time Ms. Parker did not complain of respiratory symptoms. R. at 604. Her lungs were "clear, " R. at 606, and her oxygen saturation level was much higher than it was in March. R. at 597.

At the June 2012 hearing before the ALJ, Ms. Parker testified about her condition. Ms. Parker said she could stand for 45 minutes at most, could walk perhaps a few blocks, and likely could not sit for periods long enough to work behind a desk. R. at 58-62. The ALJ found this testimony not to be credible, noting that Ms. Parker had previously reported being able to care for her mother and perform routine chores, such that she could likely perform light work. R. at 24. The ALJ also credited Dr. Dobson's and Dr. Horton's reports, both of which concluded Ms. Parker could perform certain unskilled work. R. at 23-24.

At the hearing, Ms. Parker further testified that, because of respiratory difficulties, she had begun using supplemental oxygen when exerting herself. R. at 68-69. Ms. Parker testified that in May 2012 she attempted to push a lawn mower outside for fifteen to twenty minutes, but had had to stop because of shortness of breath. R. at 70. However, the ALJ noted there was little evidence of oxygen or respiratory ailments in the record, and Parker's attorney agreed that he was "surprised" and "curious about the oxygen thing." R. at 38-39. The ALJ held the record open to receive additional evidence of Ms. Parker's respiratory condition, but Ms. Parker never submitted any new evidence. R. at 11.

Vocational expert Robert Barber also testified at the hearing. The ALJ asked Mr. Barber whether a hypothetical person of Ms. Parker's age, education, and work experience could perform Ms. Parker's past work as a cashier. R. at 77. The ALJ included several limitations. For example, this hypothetical person could sit for one hour at a time for a total of six hours, stand for one hour at a time for a total of four hours, or walk for four hours at a time for a total of eight hours. R. at 76. Also, the hypothetical person could only work in environments with "quiet" or "moderate" noise ...

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