COLLINS v. ASTRUE

Filing 21

MEMORANDUM OPINION re: 14 MOTION for Summary Judgment filed by Plaintiff, GARY L. COLLINS, and 19 MOTION for Summary Judgment filed by the Defendant, COMMISSIONER OF SOCIAL SECURITY. Signed by Judge William L. Standish on 07/17/2012. (md) Modified on 7/18/2012. (md)

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

GARY L. COLLINS,

Plaintiff,
vs.

Civil Action No. 11-1275

MICHAEL J. AS TRUE ,
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
MEMORANDUM OPINION
INTRODUCTION
Plaintiff, Gary L. Collins, seeks judicial review of a
decision of Defendant, Commissioner of Social Security ("the
Commissioner"), denying his applications for disability
insurance benefits ("DIB") and supplemental security income
("SSI") under Titles I I and XVI, respectively, of the Social
Security Act, 42 U.S.C.

§§

401-433 and

§§

1381-1383f. 1

Presently

before the Court are the parties' cross-motions for summary
judgment pursuant to Fed.R.Civ.P. 56.

For the reasons set forth

below, Plaintiff's motion for summary judgment will be denied,

1 The

Social Security system provides two types of benefits based on an
inability to engage in substantial gainful activity: the first type, DIB,
provides benefits to disabled individuals who have paid into the Social
Security system through past employment, and the second type, SSI, provides
benefits to disabled individuals who meet low-income requirements regardless
of whether the individuals have ever worked or paid into the Social Security
system. with respect to Plaintiff's appli~ation for DIB, his earnings record
shows that he acquired sufficient quarters of coverage to remain insured
through March 31, 2012.
(R. 12).

1

and the Commissioner's cross-motion for summary judgment will be
granted.
PROCEDURAL HISTORY
Plaintiff filed applications for DIB and SSI on August 7,
2009, alleging disability since August I,

2009 due to severe

aortic valve regurgitation,2 syncope) and hypertension. 4
134-39, 165).

(R.

Following the denial of Plaintiff's applications

on December 22, 2009, he requested a hearing before an
administrative law judge ("ALJ").

(R. 65-76,

77-88,

89-90)

Plaintiff, who was represented by counsel, testified at the

2Aortic valve regurgitation is a condition that occurs when your heart's
aortic valve does not close tightly, allowing some of the blood that was just
pumped out of your heart's main pumping chamber (left ventricle) to leak back
into it. The leakage of blood may prevent your heart from efficiently
pumping blood out to the rest of the body. As a result, you may feel
fatigued and short of breath. Aortic valve regurgitation, which can develop
suddenly or over decades, has a variety of causes ranging from congenital
heart defects to complications of infectious illnesses.
Once aortic valve
regurgitation becomes severe, surgery is often required to repair or replace
the aortic valve.
www.mayoclinic.com.
3 Syncope, or fainting,
is a temporary loss of consciousness. You lose muscle
control at the same time, and may fall down. Most people recover quickly and
completely.
Fainting usually happens when your blood pressure drops
suddenly, causing a decrease in blood flow to your brain. Other causes of
fainting include heat or dehydration, emotional distress, standing up too
quickly, certain medicines, a drop in blood sugar and heart problems.
www.nlm.nih.gov/medlineElus.
4Blood pressure is the force of your blood pushing against the walls of your
arteries.
Each time your heart beats, it pumps out blood into arteries.
Your blood pressure is highest when your heart beats, pumping the blood.
This is called the systolic pressure. When your heart is at rest, between
beats, your blood pressure falls.
This is the diastolic pressure. Blood
pressure readings use these two numbers, the systolic and diastolic
pressures. Usually they are written one above or before the other. A
reading of 120/80 or lower is normal blood pressure. A reading of 140/90 or
higher is high blood pressure. Between 120 and 139 for the top number or
between 80 and 89 for the bottom number is prehypertension.
High blood
pressure, also referred to as hypertension, usually has no symptoms, but it
can cause serious problems such as stroke, heart failure, heart attack and
kidney failure.
www.nlm.nih.gov/medlineplu~.

2

hearing which was held on April 7, 2011.
("VE") also testitied.

(R.

A vocational expert

22-61).

The ALJ issued a decision on May 17, 2011, denying
Plaintiff's applications for DIB and SSI based on his
determination that, despite several severe physical impairments
Plaintiff retained the residual functional capacity

(\\RFCII)

I

to

perform work existing in significant numbers in the national
economy.S

(R. 10-21).

Plaintiff's request for review of the

ALJ's decision was denied by the Appeals Council on September 71
2011.

(R. 1-6).

Thus, the ALJ's decision became the final

decision of the Commissioner.

This appeal followed.

BACKGROUND

Plaintiff's testimony during the hearing before the ALJ may
be summarized as follows:
Plaintiff was born on July 16 1 1957. 6
weighs 220 pounds.
a-year old daughter.

Plaintiff

l

He is 5111" tall and

who is single

l

resides with his

Plaintiff has a driver's license; however,

he does not drive due to episodes of syncope 2 to 3 times a week
on average.

(R. 27-29).

With respect to education, Plaintiff is a high school
graduate.

In addition, he received training in HVAC (heating,

ventilation and air conditioning) installation and service.
The Social Security Regulations define RFC as the most a disability claimant
can still do despite his or her physical or mental limitations. See 20
C.F.R. §§ 404.1545(a), 416.945(a).

6 At the time of the hearing, Plaintiff was 53 years of age.

5

3

Between 1996 and 2009 t

Plaintiff worked for various companies as

an HVAC installer and service technician t an electrician t a
plumber and an industrial maintenance worker.

(R.

30-34)

Plaintiff suffers from aortic valve regurgitation and will
require surgery in the future to replace his aortic valve.
Plaintiff also suffers from hypertension for which he takes
medication that "knocks [him] off [his] feet.1I

Despite the

medication t Plaintiffts hypertension is not controlled.
39) .

FinallYt Plaintiff receives treatment for depression at

the Community Counseling Center of Mercer County ("CCCMCII).7

(R.

35-36) .
At the time of the hearing t Plaintiff was taking two
medications for his heart conditions and one medication for
depression. s

In addition to "extreme fatigue t

ll

Plaintiff

testified that the medications caused leg cramping and
stiffness.

(R.

40 t

202).

7At CCCMC, Plaintiff receives counseling from Alexandra Naglia, B.A., a
caseworker, and John W. Uber, Ph.D., a psychologist.
(R. 35-37, 203).
sThe heart medications prescribed for Plaintiff at the time of the hearing
were Losartan and Nifedipine (brand name Procardia).
Losartan is used alone
or in combination with other medications to treat high blood pressure.
Losartan is also used to decrease the risk of stroke in people who have high
blood pressure and a heart condition called left ventricular hypertrophy.
It
works by blocking the action of certain natural substances that tighten the
blood vessels, allowing the blood to flow more smoothly and the heart to pump
more efficiently. Nifedipine is used to treat high blood pressure and to
control angina (chest pain).
It works by relaxing the blood vessels so the
heart does not have to pump as hard.
It also increases the supply of blood
and oxygen to the heart.
The medication prescribed for Plaintiff's
depression was Citalopram (brand name Celexa), which is in a class of
antidepressants called selective serotonin reuptake inhibitors.
Citalopram
is thought to work by increasing the amount of serotonin, a natural substance
in the brain that helps maintain mental balance.
www.nlm.nih

4

On a typical day, Plaintiff gets up at 7:00 a.m.; wakes his
daughter up, lays out clothes for her to wear and gets her to
the bus stop at 8:20 a.m.; sleeps from 8:30 a.m. until 2:30
p.m.; meets his daughter at the bus stop at 3:30 p.m.; prepares
dinner for his daughter; sleeps for

2~

hours while his daughter

is at counseling;9 and goes to bed at 10:00 p.m.
perform housework in short intervals.

Plaintiff can

His daughter nis very

helpful as far as maintaining the house."

Friends assist

Plaintiff in doing the laundry and going grocery shopping.
41-44).

(R.

With respect to hobbies, Plaintiff was an avid hunter

and fisherman.

However, due to his medical conditions, he can

no longer engage in these activities.
newspaper and sports magazines.

Plaintiff reads the

He does not attend church or

belong to any social organizations. 10

(R. 44-45).

9Plaintiff's daughter also receives services from CCCMC. At times, Plaintiff
and his daughter attend joint counseling sessions.
(R. 36).
lOPlaintiff completed a Function Report on October 27, 2009 in connection with
his applications for DIB and 8SI.
In contrast to his testimony during the
hearing before the ALJ, Plaintiff described a typical day as follows:
"Wake up daughter and get her ready for school

Put daughter on bus @ 8:25 AM

Housework if needed/shop if needed/laundry if needed

Get daughter off of bus @ 3:50 PM

Prepare dinner

Get daughter ready for bed/assist in homework ect. (sic)

Daughter in bed @ 9:00 PM - Myself at 10:00 PM"

(R. 180).

Plaintiff also indicated in the Function Report that he took care of a petj
he had no problem with personal care; the meals he prepared varied from day
to day (i.e., crock pot, oven roasts, fried foods or frozen dinners); he was
able to clean and do laundry, although some days he had to push himself to
perform these chores; when he went out, he could walk, drive a car and ride
in a carj he shopped for food and personal care items twice a month for an

5

As to physical limitations, Plaintiff can sit for 1 to
hours.

1~

Then, he must stand because his left leg "bothers" him.

Due to fatigue, Plaintiff can only stand for 15 to 20 minutes,
and he "[doesn't] dare" walk more than 100 yards due to fatigue
and syncopal episodes.

Plaintiff has been instructed by his

cardiologist to limit lifting activities to no more than 50
pounds twice a day.

(R. 46-48).

Regarding mental limitations,

Plaintiff has "problems sometimes remembering ... things that
concern [his] daughter."
on things on occasion.

Plaintiff also has difficulty focusing
Plaintiff does not have any difficulty

getting along with others because he "[doesn't] bother with
other people."

(R. 48-50).

VE TESTIMONY

During the hearing before the ALJ, the VE testified that
all of Plaintiff's past relevant work would be classified as
skilled work at the heavy exertion level. 11

(R. 54-55).

The ALJ

asked the VE to assume a hypothetical person of Plaintiff's age,
education and work history who is (1) limited to lifting 20
pounds occasionally and 10 pounds frequentlYi

(2) limited to

standing and walking for 1 to 2 hours during an 8-hour workdaYi
(3) not limited in his ability to sit during an 8-hour workday;
hour or two each timej he could no longer hunt due to his illness, but he
read and watched television on a daily basisj and he had problems getting
along with family, friends and neighbors.
(R. 181-85).
11 The Social Security Regulations define "heavy work" as "lifting no more than
100 pounds at a time with frequent lifting or carrying of objects weighing up
to 50 pounds." 20 C.F.R. §§ 404.1567(d), 416.967{d).

6

(4) unable to climb ladders, ropes or scaffolding, crawl or
kneel;

(5) able to climb ramps and stairs and engage in

balancing activities only on occasional; and (6) unable to
engage in hazardous activities such as working with dangerous
machinery or at unprotected heights.

The ALJ then asked the VE

whether the hypothetical person could engage in Plaintiff's past
relevant work or any other work existing in the national
economy.

In response, the VE testified that the hypothetical

person could not perform any of Plaintiff's past relevant work
but could perform the light exertion jobs of a bench assembler
(737,000 jobs nationally), a hand packer {200,OOO jobs
nationally}, and a document preparer (300,000 jobs nationally)
(R.

.12

55-57).
The ALJ then asked the VE to assume that, in addition to

the physical limitations described in his first hypothetical
question, the hypothetical person was markedly limited (severely
limited but not altogether precluded) in his (I) ability to
understand and remember short, simple instructionsi

(2) ability

to make judgments on simple work-related decisionsi

(3) ability

to interact appropriately with supervisors, coworkers and the
IZ"Light work" is defined in the Social Security Regulations as "lifting no
more than 20 pounds at a time with frequent lifting or carrying of objects
weighing up to 10 pounds. Even though the weight lifted may be very little,
a job is in this category when it requires a good deal of walking or
standing, or when it involves sitting most of the time with some pushing and
pulling of arm or leg controls. To be considered capable of performing a
full or wide range of light work, you must have the ability to do
substantially all of these activities." 20 C.F.R. §§ 404.1567(b)
416.967(b) .
I

7

publici and (4) ability to respond appropriately to changes in a
routine work setting.

The ALJ then asked the VE whether there

were any jobs the second hypothetical person could perform, and
the VE responded: "no."

(R.

57-58).

MEDICAL EVIDENCE

On August 3, 2009, Plaintiff was evaluated by his primary
care physician ("PCP"), Dr. Scott Morgan, for "episodes of
sudden, severe dizziness where he goes down."

Plaintiff denied

complete loss of consciousness, indicating that he can get back
up and function shortly after the episodes.
complained of fatigue.

Plaintiff also

Plaintiff was admitted to Sharon

Regional Health System for cardiology and neurology
consultations.
On August

(R.
4/

217/

233-34).

2009/ an echocardiogram was performed which

showed that Plaintiff/s left ventricular cavity was at the upper
limits of normal; his systolic dimension was normal with
moderately severe hypertrophy;13 his ejection fraction (65%) was
normal;14 he had moderately severe to severe 3+ to 4+ aortic

13 Left ventricular hypertrophy ("LVH") is enlargement (hypertrophy) of the
muscle tissue that makes up the wall of your heart's main pumping chamber
(left ventricle).
LVH develops in response to some factor, such as high
blood pressure that requires the left ventricle to work harder. As the
workload increases, the walls of the chamber grow thicker, lose elasticity
and eventually may fail to pump with as much force as a healthy heart. LVH
is more common in people who have high blood pressure or other heart
problems.
14Ejection fraction is a measurement of the percentage of blood leaving your
heart each time it pumps. Because the left ventricle ("LV") is the heart's
main pumping chamber, ejection fraction is usually measured only in the LV.
www.
c com.
A normal LV ejection fraction is 55 to 70%.

8

insufficiency; and he had mild mitral and tricuspid
regurgitation.

(R.

209-10).

The same day, Plaintiff was evaluated in the hospital by
Dr. Dilip Patel, a pulmonologist.
reviewing his test results

l

After examining Plaintiff and

Dr. Patel/s clinical diagnoses

included dizziness with recurrent syncopal episodes, severe
aortic regurgitation, and uncontrolled hypertension.

Dr. Patel

recommended a transesophageal echocardiogram and cardiac
catheterization to evaluate Plaintiff's left ventricular
function, aortic regurgitation and any coronary artery disease.
In the event these tests revealed severe aortic regurgitation

l

Dr. Patel indicated that a cardiothoracic surgical consultation
probably would be ordered for Plaintiff.

(R.

217-19).

On August 5, 2009, Plaintiff underwent a transesophageal
echocardiogram and a right and left heart catheterization.

The

transesophageal echocardiogram revealed normal systolic left
ventricular function, mild left atrial dilatation,15 mild 1+
mitral regurgitation with mild sclerosis of the valve,16 mild 1+

15Dilatation is the condition of being stretched beyond normal dimensions
especially as a result of overwork or disease or of abnormal relaxation.
www.merriam-webster.com/medical.
16Aortic valve calcification is a condition in which calcium deposits form on
the aortic valve in the heart. These deposits can cause narrowing at the
opening of the aortic valve.
This narrowing can progress to become severe
enough to reduce blood flow through the aortic valve, a condition called
aortic valve stenosis. Calcification and stenosis typically affect people
older than age 65. When it occurs in younger people, it is often caused by a
heart defect that is present at birth, other illnesses such as kidney failure
or high cholesterol.
It is important to have your cholesterol checked
because you may need medications to lower cholesterol and help prevent aortic

9

tricuspid regurgitation, mild 1+ pulmonic regurgitation and
moderately severe 3+ aortic regurgitation.

(R. 211-12).

The

right heart catheterization showed mild pulmonary hypertension,17
and the left heart catheterization showed abnormal valve
function with moderate aortic insufficiency.
was recommended.

Medical management

(R. 207-08).

Prior to his discharge from Sharon Regional Health System
on August 6, 2009, Plaintiff underwent a consultation with Dr.
Gary Marrone, a cardiothoracic surgeon, for his near syncopal
episodes, severe aortic regurgitation and possible need for
aortic valve replacement surgery.

Plaintiff informed Dr.

Marrone that he had developed episodes of near syncope over the
previous 6 months.

He denied palpitations, antecedent symptoms

and exertional chest pain or shortness of breath, stating that
he could walk at least a half a mile without experiencing
shortness of breath.

Based on his physical examination of

Plaintiff and Plaintiff's test results, Dr. Marrone described
his impression as (1) near syncopal episodes of uncertain
etiology,

(2) accelerated hypertension, and (3) severe aortic

valve sclerosis from getting worse.
If the valve becomes severely narrowed,
aortic valve replacement surgery may be necessary. www.mayoclinic.com.
"The right side of the heart pumps blood through the lungs where it picks up
oxygen. Then, the blood returns to the left side of the heart where it is
pumped to the whole body. When the small arteries (blood vessels) of the
lung become narrowed, they cannot carry as much blood. When this happens,
pressure builds up. This is called pulmonary hypertension. The heart needs
to work harder to force the blood through the vessels against this pressure.
Over time, this causes the right side of the heart to become larger. Not
enough blood flows to the lungs to pick up oxygen.
www.nlm.nih.gov/medlineplus/encyc.

10

regurgitation with preserved left ventricular function.

To

exclude an arrhythmia (irregular heartbeat), an event monitor
was ordered for Plaintiff to use upon his discharge from the
hospital.

Because Plaintiff's left ventricle was not dilated,

his left ventricular function was preserved and he reported
"fairly good exercise tolerance," Dr. Marrone concluded that
surgery to replace Plaintiff's aortic valve was not warranted at
that time.

Rather, Plaintiff would be followed with serial

echocardiograms.

(R.

222-23).

Plaintiff's final diagnoses upon discharge from Sharon
Regional Health System on August 6, 2009 included (1) severe
aortic regurgitation "not yet surgical;"
collapse;

(3) hypertension;

disease ("COPD

II

)

i 18

(2) syncope and

(4) chronic obstructive pulmonary

and (5) coronary artery disease.

His

discharge medications included a 325 mg. aspirin daily,
Lisinopril 19 and Nifedipine (brand name Procardia) .

(R. 229).

On September 12, 2009, Plaintiff was admitted to Sharon
Regional Health System from the emergency room for continued
complaints of blacking out.

Plaintiff reported that the

episodes lasted for 30 to 60 seconds during which he could not

18 With respect to the COPD diagnosis, at the time of his admission to the
hospital on August 3, 2009, Plaintiff reported that he had been a smoker
until September of 2008.
(R. 253). During a consultation with Dr. Robert
Salcedo the next day, Plaintiff reported that he was "a long-term chronic
smoker, trying to quit."
(R.270).
19Lisinopril is used alone or in combination with other medications to treat
high blood pressure. _w_w~w._.______..~~.~~ _____~__~___ ~___

11

see or move.

Plaintiff denied chest pain or palpitations, but

complained of shortness of breath with exertion.

Dr. James

Ryan, who evaluated Plaintiff during this hospital admission,
noted that recent event monitoring for near syncope did not
reveal any significant arrhythmia during episodes, and that
Plaintiff suffered from valvular heart disease (3+ aortic
regurgitation) and hypertension.

Dr. Ryan indicated that

Plaintiff's heart rhythm would continue to be monitored and a
further consultation with neurology would be ordered to ensure
that Plaintiff did not have a seizure disorder.

(R.

220-21).

While hospitalized, Plaintiff was re-evaluated by Dr.
Marrone for aortic valve replacement surgery.

Plaintiff

reported that over the previous 8 days, he had experienced
sudden onset weakness, blurry vision, lightheadedness and
myalgias at both rest and with exertion; the symptoms resolved
spontaneously within a minute; and he had no definite loss of
consciousness, chest pain, shortness of breath or palpitations
during the episodes.

Dr. Marrone concluded that arrhythmia and

neurologic causes must be excluded, and Plaintiff was agreeable
to cardiology and neurology evaluations.

However, in the event

no reason for the near syncopal episodes was discovered,

12

Plaintiff expressed his desire to be considered for aortic valve
replacement surgery. 20

(R.

337 38).

Plaintiff signed himself out of the hospital on September
15, 2009 against medical advice.

(R. 315).

However, he

returned shortly thereafter with continued complaints of
lightheadedness, syncope and dizziness.

He also reported

ringing in his ears, nausea and weakness, indicating that the
episodes may have been brought on by stress.

Dr. Marrone

described Plaintiff as a "little bit anxious" during his
physical examination but in no acute distress.

He re-admitted

Plaintiff, indicating that a psychiatric consultation, as well
as a prescription for Citalopram (brand name Celexa), would be
considered for possible panic attacks. 21

(R.

227-28).

During a mental status examination the day of his re­
admission to the hospital, Plaintiff reported that he had lost
his employment at a steel mill; he was homeless; and he was
feeling helpless, hopeless and overwhelmed by stressors with
"frequent thoughts of ending his life,
over with."

to have everything

Plaintiff's appearance and grooming were described

20Although the doctor believed Plaintiff's aortic valve could be followed
safely with serial echocardiograms and physical exams, Plaintiff expressed
interest in aortic valve replacement to ~eliminate worry about his heart
function deteriorating. 1I
(R. 338).
21 Plaintiff reported that he had signed himself out of the hospital against
medical advice to rush to his daughter whom he believed was in danger and his
ex-wife would not answer the telephone.
Plaintiff contacted the police.
However, it had turned out to be nothing of consequence. Nevertheless, he
became very agitated when his ex-wife refused to communicate with him and had
a syncopal episode in her driveway. At that time, paramedics were called.
Plaintiff was transported back to the hospital and re-admitted.
(R. 227).

13

as "clean, cared for;" his eye contact as "good;" his speech as
"normal;" his affect and mood as "anxiouSi" his memory as
"good;" and his judgment and insight as "fair."

Plaintiff was

diagnosed with an anxiety disorder.
On September 19, 2009, Plaintiff was transferred to the
psychiatric unit of Sharon Regional Health System for treatment
in an attempt to determine whether his near syncopal episodes
were anxiety-related.

(R. 429-31).

The notes of Dr. Wally

Novero, a psychiatrist who examined Plaintiff on September 20,
2009, state Plaintiff "strongly admits that he has no anxiety
and does not want to consider anxiety [to be the cause of his
near syncopal episodes) yet until he is fully worked up
medically."

Dr. Novero's assessment of Plaintiff was mood

disorder, and rule out anxiety disorder, conversion disorder and
depression.

Plaintiff was encouraged to attend group therapy

while in the hospital.

However, he declined psychiatric

services on an outpatient basis following his discharge from the
hospital.

(R. 417-19).

The same day, plaintiff executed a

Request to Withdraw from Treatment within 72 hours.

(R.

413).

He was described as "doing well" at the time of discharge from
the hospital on September 22, 2009, and he was given contacts
for supportive housing. 22

(R. 414, 455).

220n March 23, 2011, Alexandra Nagel, B.A., a caseworker at CCCMC, sent a
letter to Plaintiff's counsel indicating Plaintiff had been in CCCMC's
supportive housing program since September 22, 2009 (the day of his discharge

14

During a follow-up visit on September 28, 2009 with his
PCP, Dr. Morgan, Plaintiff's aortic valve regurgitation was
described as stable, and the dosage of his hypertension
medication was increased.

As to anxiety, Plaintiff was

described as doing well on Citalopram (brand name Celexa).

Dr.

Morgan noted that since Plaintiff had started this medication,
he had not experienced a panic attack or a near syncopal
episode, despite increased stressors at home.

(R.

497).

On November 25, 2009, Plaintiff was evaluated by Dr. Nicola
Nicoloff, a cardiologist with Sharon Cardiology Specialists, to
follow-up on his recent hospitalization for near syncope.
Plaintiff reported that he experienced near syncopal episodes
when rising from a squatting position; he occasionally had
atypical chest discomfort and shortness of breath with exertion;
and he lacked energy.

Dr. Nicoloff's plan for Plaintiff

included possible referral for additional tests; a repeat
echocardiogram in February 2010; the rescheduling of a follow-up
appointment with Dr. Marrone, the cardiothoracic surgeon who had
evaluated Plaintiff for possible aortic valve replacement during
his hospitalizations at Sharon Regional Health System in August

from Sharon Regional Health System); that this program provides services to
individuals with mental health problems who are living independently in the
community; that she had provided assistance to Plaintiff in finding
affordable housing for him and his daughter; and that she also provided
assistance to Plaintiff with regard to Social Security Office and medical
appointments and domestic relations hearings.
(R. 203).
In fact, Ms. Nagel
drove Plaintiff to his hearing before the ALJ.
{R. 35}.

15

and September 2009, because Plaintiff had not attended his
scheduled one-month follow-up appointment with Dr. Marrone; and
a follow-up visit with Sharon Cardiology Specialists in March
2010 after Plaintiff's echocardiogram.

(R.

214-15).

On December 9, 2009, Plaintiff underwent a consultative
disability examination by Dr. Mary Dougherty.

Plaintiff

reported that he continued to experience "some" near syncopal
episodes which usually happened if he walked more than 100 feet,
exerted himself or climbed an incline.

Plaintiff also reported

that he had custody of his then 7-year old daughter; he lived in
a one-story home; he was able to perform activities of daily
living; he did all of the grocery shopping; and he was afraid to
drive due to the near syncopal episodes. 23

Plaintiff's physical

examination revealed, among other things, no edema in his
extremities; no evidence of atrophy in any major muscle group;
motor strength of 5+ throughout; reflexes of 2+ bilaterally; and
the ability to squat and bend with no dizziness.

(R.

512-16).

In a Medical Source Statement of Claimant's Ability to
Perform Work Related Physical Activities completed the day of
the consultative examination, Dr. Dougherty opined that
Plaintiff could occasionally lift and carry 25 pounds; stand and
walk 1 to 2 hours in an 8-hour workday; sit without limitation

With regard to employment, Plaintiff told Dr. Dougherty that he last worked
the previous year for 3 months.
Plaintiff indicated that due to problems
with his ex-wife, he had been "let go."
(R. 514).

23

16

during an 8-hour workday; push and pull with his upper and lower
extremities without limitation; should never engage in balancing
and climbing activitiesi and had no environmental limitations.
(R.

501-02).
In a Medical Source Statement of Claimant's Ability to

Perform Work-Related Physical Activities completed on December
IS, 2009, Dr. Ronnie Mignella, a cardiologist with Sharon
Cardiology Specialists, opined that Plaintiff could occasionally
lift and carry 25 pounds; could stand, walk and sit "as
tolerated;" could not excessively push and pull with his upper
and lower extremities; could engage in postural activities and
other physical functions

(bending, kneeling, stooping,

crouching, balancing, climbing, reaching, handling, feeling)

"as

tolerated;" and must avoid poorly ventilated environments,
temperature extremes, fumes, odors, gases and humidity.

(R.

204-05) .
On December 21, 2009, Dr. Paul Fox, a State agency medical
consultant, completed a physical RFC assessment of Plaintiff
based on a review of the administrative file.

Dr. Fox opined

that Plaintiff could occasionally lift and carry 50 pounds and
frequently lift and carry 25 pounds; he could stand and/or walk
about 6 hours in an 8-hour workdaYi he could sit about 6 hours
in an 8-hour workdaYi his ability to push and pull with his
upper and lower extremities was unlimitedi he could occasionally
17

climb and balance but never kneel or crawl; he had no
manipulative, visual or communicative limitations; and he should
avoid exposure to hazards such as dangerous machinery and
heights.

(R.

517-23).

Edward Zuckerman, Ph.D., a State agency psychological
consultant, completed a Psychiatric Review Technique form based
on a review of Plaintiff's file on December 22, 2009.

Dr.

Zuckerman based his opinion of the severity of Plaintiff's
mental impairments on anxiety-related disorders.

Dr. Zuckerman

opined that Plaintiff had no restriction in his activities of
daily living and no difficulty maintaining social functioning.
Dr. Zuckerman further opined that Plaintiff's difficulties in
concentration, persistence or pace were mild, and there was
insufficient evidence of repeated episodes of decompensation,
each of extended duration.

In sum, Dr. Zuckerman opined that

Plaintiff's mental impairments were not severe.

(R.

524-36).

During a follow-up visit with Dr. Jose Millan, a
cardiologist with Sharon Cardiology Specialists, on May 20,
2010, Plaintiff admitted to periodic chest pain throughout the
day, as well as brief, infrequent heart palpitations and
dizziness with rapid positional changes (i.e., rising from a
squatting position).
he had no ankle edema.

Plaintiff denied shortness of breath, and
Plaintiff reported that he smoked 8

cigarettes a day; did not try to follow a low-fat diet; but
18

exercised, estimating that he walked 2 miles per week.
Plaintiff reported compliance with his medication regime, but
stated that he was tired "all of the time" and had "more bad
days than good."

As a result, Plaintiff wanted to discuss

aortic valve replacement surgery.

With respect to his

assessment/plan, Dr. Millan indicated that, prior to a further
cardiothoracic surgery consult, an echocardiogram would be
ordered for Plaintiff.

Plaintiff was instructed to take the

Nifedipine (brand name Procardia) in the morning and the
Lisinopril in the evening which may alleviate his feelings of
fatigue.

Dr. Millan noted that Plaintiff's hypertension was

controlled, and his coronary artery disease was mild in nature
and asymptomatic.
smoking.
that time.

Plaintiff was strongly encouraged to stop

He declined any formal smoking cessation counseling at
Plaintiff was advised to follow-up with Dr. Millan

in 6 months after having an echocardiogram.

(R.

546-48).

The echocardiogram ordered by Dr. Millan was performed on
September 17, 2010.

The test showed that Plaintiff's left

ventricle was normal in size and systolic function; he had
moderately severe left ventricular hypertrophy with evidence of
diastolic relaxation abnormality; his right ventricle was
hypertrophied with normal systolic function; he had mild 1+
mitral valve regurgitation, moderately severe 3+ aortic valve
insufficiency, and mild 1+ tricuspid valve insufficiency; his
19

pulmonary artery pressure was normal; and he had mild 1+
pulmonic valve insufficiency.

When compared with his

echocardiogram on August 5, 2009, Plaintiff's systolic function
had not changed significantly, and the degree of aortic
insufficiency had remained consistent at moderately severe 3+.
(R.

551-52).
Plaintiff was seen by Dr. Marrone for another

cardiothoracic surgical consultation on November 10, 2010.
Based on an examination of Plaintiff and the results of his
recent echocardiogram, Dr. Marrone concluded that surgery could
be delayed because Plaintiff did not have any significant left
ventricle dysfunction or dilatation.

In his letter to Dr.

Millan following the consultation, Dr. Marrone suggested
additional tests to determine the etiology of Plaintiff's near
syncope, expressing his opinion that surgery to replace his
aortic valve may not resolve the near syncopal episodes.
Plaintiff's next follow-up visit with Dr. Millan occurred
on January 13, 2011.

Plaintiff complained of persistent

fatigue, occasional lightheadedness and increasing exertional
dyspnea.

He denied chest pain, palpitations, ankle edema or

claudication (pain in the calf, thigh or hip muscle) with daily
activities which he performed "as tolerated./I

Following his

physical examination of Plaintiff, Dr. Millan noted that
Plaintiff's coronary artery disease remained mild with no overt

20

symptomatology; he adjusted Plaintiff's medications for
hypertension; he encouraged Plaintiff to continue to work on
reducing his high cholesterol levels; he ordered a complete
blood count to determine whether Plaintiff's fatigue was the
result of anemia; he urged Plaintiff to pursue a neurology
evaluation for a recent episode of double vision; and he
instructed Plaintiff to return in one month for a follow-up
visit.

(R.

605-07).

During the follow-up visit with Dr. Millan on February 28,
2011, Plaintiff denied chest pain, palpitations, ankle edema and
lightheadedness, and indicated that there had been no change in
his exertional dyspnea.

Plaintiff reported that he was

compliant with his medication regime, but he had not been
following any dietary restrictions.

Plaintiff reported that he

remained active with regard to activities of daily living;
however, he was not on an exercise regime.

Dr. Millan

instructed Plaintiff to follow-up with him in 4 months.

(R.

610-12) .
On April 21, 2011, two weeks after Plaintiff's disability
hearing, John W. Uber, Ph.D., sent the following letter to
Plaintiff's attorney who, in turn, submitted the letter to the
ALJ for consideration prior to rendering his decision on
Plaintiff's applications for DIB and 881:

21

Mr. Collins met with me on March 10, 2011 and March 24,
2011. At the initial session he discussed concerns
regarding his physical health and how he was not able to do
the work that he had been doing his whole life. He
discussed his concerns for his daughter and his ability to
care for her due to his poor physical health. He reported
that his medical concern was such that he could not return
to the work that he was trained to do. At the second
session he reported that things had made slight improvement
in his medical condition but not to the point that he would
be able to return to a productive life style. He continued
to have depressive symptoms with occasional thoughts of
giving up and not wanting to be alive.
He still reported
being "worn out" from the court battles in regard to his
daughter's custody concerns.
(R.

616).

Dr. Uber also provided Plaintiff's counsel with a Medical Source
Statement of Ability to Do Work-Related Activities (Mental), in
which he opined that Plaintiff was slightly limited in his
ability to carry out short, simple instructions and markedly
limited in the following abilities:
short, simple instructions;
out detailed instructions;
related decisions;
supervisors and

(1) understand and remember

(2) understand, remember and carry
(3) make judgments on simple, work-

(4) interact appropriately with the public,

co~workers;

(5) respond appropriately to normal

work pressures; and (6) respond appropriately to changes in a
routine work setting.

(R.

582-84).

ALJ'S DECISION

In order to establish a disability under the Social
Security Act, a claimant must demonstrate an inability to engage
in any substantial gainful activity due to a medically

22

determinable physical or mental impairment which can be expected
to result in death or which has lasted or can be expected to
last for a continuous period of not less than 12 months.
U.S.C.

§

423(d) (1).

See 42

A claimant is considered unable to engage

in any substantial gainful activity only if his physical or
mental impairment or impairments are of such severity that he is
not only unable to do his previous work but cannot, considering
his age, education, and work experience, engage in any other
kind of substantial gainful work which exists in the national
economy.

See 42 U.S.C.

§

423(d) (2) (A).

When presented with a claim for disability benefits, an ALJ
must follow a sequential evaluation process.
§§

404.1520(a) (4), 416.920(a) (4).

See 20 C.F.R.

The process was described by

the Supreme Court in Sullivan v. Zebley, 493 U.S. 521 (1990), as
follows:

*

*

*

Pursuant to his statutory authority to implement the
SSI Program, (footnote omitted) the Secretary has
promulgated regulations creating a five-step test to
determine whether an adult claimant is disabled.
Bowen v.
Yuckert, 482 U.S. 137, 140-42 (1987).
(footnote omitted).
The first two steps involve threshold determinations that
the claimant is not presently working and has an impairment
which is of the required duration and which significantly
limits his ability to work.
See 20 C.F.R. §§ 416.920{a)
through (c) (1989).
In the third step, the medical evidence
of the claimant's impairment is compared to a list of
impairments presumed severe enough to preclude any gainful
work.
See 20 C.F.R. pt. 404, subpt. P, App. 1 (pt.
A) (1989).
If the claimant's impairment matches or is
"equal" to one of the listed impairments, he qualifies for
23

benefits without further inquiry.
§ 416.920(d).
If the
claimant cannot qualify under the listings, the analysis
proceeds to the fourth and fifth steps. At these steps,
the inquiry is whether the claimant can do his own past
work or any other work that exists in the national economy,
in view of his age, education, and work experience.
If the
claimant cannot do his past work or other work, he
qualifies for benefits.

493 U.S. at 525-26.

*

*

*

The claimant bears the burden of establishing steps one
through four of the sequential evaluation process for making
disability determinations.

At step five, the burden shifts to

the Commissioner to consider "vocational factors"

(the

claimant's age, education and past work experience) and
determine whether the claimant is capable of performing other
jobs existing in significant numbers in the national economy in
light of his or her RFC.

Ramirez v. Barnhart, 372 F.2d 546,

550-51 (3d Cir.2004) .
With respect to the ALJ's application of the five-step
sequential evaluation process in the present case, steps one and
two were resolved in Plaintiff's favor: that is, the ALJ found
that Plaintiff had not engaged in substantial gainful activity
since August I, 2009, the alleged onset date of disability, and
the medical evidence established that Plaintiff suffers from the

24

severe physical impairments of hypertension and aortic valve
regurgi tation. 24

(R. 12).

Turning to step three, the ALJ found that Plaintiff's
physical impairments were not sufficiently severe to meet or
equal the requirements of any impairment listed in 20 C.F.R.,
Pt. 404, Subpt. P, App. I, and, in particular, Listing 4.00,
relating to the cardiovascular system.
Before proceeding to step four,

(R.14).

the ALJ assessed

Plaintiff's RFC, concluding that Plaintiff retained the RFC to
perform less than a full range of light work due to the
following limitations:

(1) the ability to balance and climb

ramps and stairs only on occasionj

(2) the inability to crawl,

kneel or climb ropes, ladders or scaffoldingj and (3) the
inability to perform work involving unprotected heights and
hazardous machinery.
four,

(R. 15).

The ALJ then proceeded to step

finding that Plaintiff is unable to perform any of his

past relevant work.

(R.

19).

Finally, at step five, considering Plaintiff's age,
education, work experience, RFC and the VE's testimony, the ALJ
found that Plaintiff could perform other work existing in the
national economy, including the jobs of a bench assembler, a
hand packer and a document preparer.

(R. 20).

24After discussing the evidence in the record relating to depression and
anxiety, the ALJ found that Plaintiff's mental impairments were not severe.
(R.

13-14).

25

STANDARD OF REVIEW

The Court's review of the Commissioner's decision is
limited to determining whether the decision is supported by
substantial evidence, which has been described as "such relevant
evidence as a reasonable mind might accept as adequate to
support a conclusion."
(1971).

Richardson v. Perales, 402 U.S. 389

1

401

It consists of something more than a mere scintilla l

but something less than a preponderance.
Califano l

Dobrowolsky v.

606 F.2d 403, 406 (3d Cir.1979).

Even if the Court

would have decided the case differentlYI it must accord
deference to the Commissioner and affirm the findings and
decision if supported by substantial evidence.

Monsour Medical

Center v. Heckler, 806 F.2d 1185, 1190-91 (3d Cir.1986) .
DISCUSSION
I

Plaintiff's initial argument in support of his motion for
summary judgment pertains to the ALJ/s finding on the
credibility of Plaintiff/s statements regarding the work-related
limitations reSUlting from his impairments.

Specifically,

Plaintiff contends that "the ALJ/s two-sentence [credibility]
evaluation did not comport with the requirements of Social
Security Ruling ("SSR") 96_7p,25 nor (sic) the Commissioner's

25Social Security Rulings are agency rulings published "under the authority of
the Commissioner of Social Security" and "are binding on all components of

26

regulations."

(Docket No. 15, p. 11).

After consideration, the

Court finds Plaintiff's argument regarding the ALJ's credibility
determination unpersuasive.
A symptom is an individual's own description of his or
physical or mental impairments.
threefold:

The purpose of SSR 96-7p is

(1) to clarify cases in which evaluation of a

claimant's symptoms requires a determination of the credibility
of the claimant's statements about his or her symptoms and their
functional effects;

(2) to explain the factors the ALJ should

consider in assessing the credibility of a claimant's statements
about symptoms; and (3) to state the importance of an ALJ's
explanation of the reasons for his or her credibility
determination in the disability decision.

SSR 96-7p provides in

part:

*

*

*

... when evaluating the credibility of an individual's
statements, the adjudicator must consider the entire case
record and give specific reasons for the weight given to
the individual's statements.
The finding on the credibility of the individual's
statements cannot be based on an intangible or intuitive
notion about an individual's credibility.
The reasons for
the credibility finding must be grounded in the evidence
and articulated in the determination or decision.
It is
not sufficient to make a conclusory statement that "the
individual's allegations have been considered" or that "the
allegations are (or are not) credible." It is also not
enough for the adjudicator simply to recite the factors

the Social Security Administration."
Cir.2000) .

Sykes v. Apfel, 228 F.3d 259, 271 (3d

27

that are described in the regulations for evaluating
symptoms. The determination or decision must contain
specific reasons for the finding on credibility, supported
by the evidence in the case record, and must be
sufficiently specific to make clear to the individual and
to any subsequent reviewers the weight the adjudicator gave
to the individual's statements and the reasons for that
weight. This documentation is necessary in order to give
the individual a full and fair review of his or her claim,
and in order to ensure a well-reasoned determination or
decision.

*

*

*

Contrary to Plaintiff's assertion, the ALJ's evaluation of
his credibility in the adverse decision was not limited to two
sentences.

In fact,

the issue was discussed at length by the

ALJ (R. 16-19), and the Court agrees with the Commissioner that
substantial evidence supports the ALJ's determination that
Plaintiff's statements regarding the extent to which he is
limited by his impairments were not entirely credible.

(Docket

No. 20, p. 11).
With regard to Plaintiff's testimony during the hearing
that he has memory issues, difficulty focusing and does not
socialize, the ALJ noted the scant evidence of mental health
treatment in the record.

In particular, the ALJ noted that

during the September 28, 2009 visit with his PCP to follow-up on
the recent admission to the psychiatric unit of Sharon Regional
Health System, Plaintiff reported that he was doing well on the
medication which had been prescribed for anxiety.

In fact,

Plaintiff reported "no further panic attacks or near syncopal

28

episodes since starting [Celexa] despite increased stressors at
home."

As to Plaintiff's testimony regarding treatment by Dr.

Uber, the ALJ noted the failure of Plaintiff's counsel to submit
any treatment records, despite being given 30 days following the
hearing to do so.

The only evidence concerning Plaintiff's

mental health that was provided following the disability hearing
consisted of Dr. Uber's letter to counsel dated April 21, 2011,
which states that Dr. Uber had seen Plaintiff on two occasions
the preceding month t and the accompanying medical source
statement which was not supported by any of the psychologist's
treatment notes.

(R. 17).

In sum, with the exception of a

prescription for an anti-depressant medication, there is no
evidence that Plaintiff received mental health treatment between
October 2009 and March 2011, a gap of 17 months.
The ALJ also adequately explained his reasons for not
entirely crediting Plaintiff's testimony during the hearing
regarding the severity of the limitations resulting from his
physical impairments.

SpecificallYt the ALJ noted the following

evidence:
1. The November 25 t 2009 office note of Dr. Nicoloff, a
treating cardiologist, states that Plaintiff's exercise
included daily activities and walking; although Plaintiff
had moderately severe aortic valve regurgitation, his left
ventricle remained normal in size; Plaintiff's hypertension
was controlled; and Plaintiff's mild coronary artery
disease was stable (R. 18);

29

2. The report of Plaintiff's consultative examination by
Dr. Dougherty on December 9, 2009 states that Plaintiff
reported the ability to do all activities of daily living,
including all of the grocery shopping, and indicates that
Plaintiff's physical examination revealed well-controlled
blood pressure, no atrophy in any major muscle group,
normal motor strength in all of his extremities and the
ability to squat and bend without experiencing dizziness
(R.18);
3. During an office visit with his cardiologist on May
20, 2010, Plaintiff reported walking approximately 2 miles
a week; the only change in his medication management was an
instruction on the time of day to take his medications in
an attempt to alleviate his complaints of fatigue; his
blood pressure was controlled; and his coronary artery
disease was mild in nature and completely asymptomatic (R.
18) ;
4. The echocardiogram performed on September 17, 2010,
showed that Plaintiff's aortic valve regurgitation remained
unchanged since his August 5, 2009 echocardiogram and his
pulmonary artery pressure was normal (R. 18-19);
5. Plaintiff's work history prior to his alleged onset
date was sporadic (R. 19) i and
6. There is no evidence from any treating source with
whom Plaintiff has a long treatment history indicating that
Plaintiff's physical impairments preclude him from engaging
in some type of gainful activity (R. 19).
Simply put, there is no basis for a finding that the ALJ failed
to comply with SSR 96-7p in making the credibility determination
in this case.
II

Next, Plaintiff asserts the ALJ erred in the analysis of
the evidence relating to his mental impairments.

Specifically,

Plaintiff maintains the ALJ failed to address his psychiatric
hospitalization in September, 2009, as well as Dr. Uber's

30

opinion regarding the severity of his mental limitations that
were set forth in the medical source statement provided to his
counsel on April 21, 2011.

In conclusion, Plaintiff argues: "To

state that there is no medical objective evidence that
substantiates a showing of mental health impairment is simply
error by the ALJ."

(Docket No. 15, p. 13)

Again, the Court

finds Plaintiff's argument unpersuasive.
The ALJ's decision does, in fact, discuss both Plaintiff's
psychiatric hospitalization in September 2009 (" ... the
claimant's hospital records suggest that stress or panic may
have been involved in his near syncopal episode,

... the

claimant was prescribed Celexa by his primary care physician at
Sharon Regional Health System,"), and the opinion rendered by
Dr. Uber in the medical source statement completed in
conjunction with the psychologist's April 21, 2011 letter to
Plaintiff's counsel ("nothing in the record suggests that the
claimant ... even approaches the 'marked' and 'extreme' level of
psychological limitation apparently opined in an undated opinion
prepared by Dr. Uber which fails to reference the claimant or
any other individual") .

(R.

14).

As the foregoing paragraph indicates, the ALJ clearly did
not find a lack of evidence concerning a mental impairment in
this case.

Rather, the ALJ concluded that Plaintiff's mental

impairment was not severe; that is, Plaintiff's mental
31

impairment did not cause more than minimal limitations in his
work-related functioning.

This finding is clearly supported by

substantial evidence, including the Psychiatric Review Technique
form completed by Dr. Zuckerman, a State agency psychological
consultant,26 and the substantial gap in Plaintiff's treatment
for mental health issues.
III

Finally, as noted in the Court's summary of the VE's
testimony during Plaintiff's disability hearing, the ALJ posed
two hypothetical questions to the VE.

The first hypothetical

question included the limitations resulting from Plaintiff's
physical impairments, and the VE testified that the first
hypothetical person retained the ability to perform substantial
gainful activity.

The second hypothetical question incorporated

the medical source statement of Dr. Uber (opining that Plaintiff
was markedly limited in a significant number of work-related
mental activities) into the first hypothetical question, and the
VE testified that the second hypothetical person could not
engage in substantial gainful activity.

Plaintiff maintains the

26State agency medical and psychological consultants are highly qualified
physicians and psychologists who are also experts in Social Security
disability evaluation. ALJs must consider findings and other opinions of
State agency medical and psychological consultants as opinion evidence. See
20 C.F.R. §§ 404.1527(f) (2), 416.927(f) (2).
In concluding that Plaintiff's
mental impairment was not severe, the ALJ gave significant weight to Dr.
Zuckerman's opinion.
(R. 14).

32

ALJ erred in not basing his decision on the VE's response to the
second hypothetical question.

The Court does not agree.

As discussed above, substantial evidence supported the
ALJ's rejection of the opinions rendered in Dr. Uber's medical
source statement.

As a result, the ALJ was free to disregard

the VE's response to the second hypothetical question and base
his decision on the VE's testimony in response to the first
hypothetical question.

William L. Standish
United States District Judge

Date: July

17,

2012

33