United States District Court, M.D. Tennessee, Nashville Division
ROBERT COBASKY, JR. Plaintiff,
NANCY BERRYHILL, Acting Commissioner of Social Security, Defendant.
WAVERLY D. CRENSHAW, JR. CHIEF UNITED STATES DISTRICT JUDGE
before the Court is pro se Plaintiff Robert Cobasky,
Jr.'s Motion for Judgment on the Administrative Record
(Doc. No. 20), to which Defendant Commissioner of Social
Security has filed a Response in Opposition. (Doc. No. 21).
On August 22, 2014, this case was referred to the Magistrate
Judge for, inter alia, a Report and Recommendation
on disposition of the Complaint for judicial review of the
Social Security Administration's decision. (Doc. No. 3).
The Court hereby withdraws that referral. Upon consideration
of the parties' filings and the transcript of the
administrative record (Doc. No. 12), and for the reasons set
forth below, Plaintiff's Motion will be denied.
applied for Disability Insurance Benefits (“DIB”)
under Title II of the Social Security Act in March 2011,
alleging a disability onset of May 11, 2010. (A.R. 86-89).
His claim was denied both at the initial and reconsideration
stages of state agency review. (A.R. 41-51). Plaintiff
subsequently requested a review of his case by an ALJ (A.R.
55-56), who held a hearing on January 30, 2013 (A.R. 26-40).
Among those present at the hearing were Plaintiff, his
attorney, and an impartial vocational expert. (A.R. 26). On
March 6, 2013, the ALJ issued an unfavorable notice of
decision. (A.R. 8-22). That decision contains the following
1. The [Plaintiff] meets the insured status requirements of
the Social Security Act through December 31, 2015.
2. The [Plaintiff] has not engaged in substantial gainful
activity since May 11, 2010, the alleged onset date (20 CFR
404.1571 et seq.).
3. The [Plaintiff] has the following severe combination of
impairments: obesity, ischemic cardiomyopathy, congestive
heart failure, obstructive sleep apnea, hypertension,
non-insulin diabetes mellitus, and hyperlipidemia (20 CFR
4. The [Plaintiff] does not have an impairment or combination
of impairments that meets or medically equals the severity of
one of the listed impairments in 20 CFR Part 404, Subpart P,
Appendix 1 (20 CFR 404.1520(d), 404.1525 and 404.1526).
5. After careful consideration of the entire record, . . .
the [Plaintiff] has the residual functional capacity to
perform light work as defined in 20 CFR 404.1567(b) except
that he can sit, stand, and walk for six hours in an
eight-hour workday; with occasional ability to climb
ramps/stairs, balance, stoop, kneel, crouch, and crawl; never
climb ladders, ropes, or scaffolds; with an avoidance of
concentrated exposure to temperature extremes and all
pulmonary irritants; and with avoidance of all exposure to
hazards, such as machinery and heights.
6. The [Plaintiff] is unable to perform any past relevant
work (20 CFR 404.1565).
7. The [Plaintiff] was 48 years old at the alleged onset
date, which is defined as a younger individual. The
[Plaintiff] subsequently changed age category to closely
approaching advanced age (20 CFR 404.1563).
8. The [Plaintiff] has at least a high school education and
is able to communicate in English (20 CFR 404.1564).
9. Transferability of job skills is not material to the
determination of disability because using the
Medical-Vocational Rules as a framework supports a finding
that the [Plaintiff] is “not disabled, ” whether
or not the [Plaintiff] has transferable job skills (See SSR
82-41 and 20 CFR Part 404, Subpart P, Appendix 2).
10. Considering the [Plaintiff's] age, education, work
experience, and residual functional capacity, there are jobs
that exist in significant numbers in the national economy
that the [Plaintiff] can perform (20 CFR 404.1569 and
11. The [Plaintiff] has not been under a disability, as
defined in the Social Security Act, from May 11, 2010,
through the date of this decision (20 CFR 404.1520(g)).
20, 2014, the Appeals Council denied Plaintiff's request
for review of the ALJ's decision, thereby rendering the
ALJ's decision the final decision of the Commissioner of
Social Security. (A.R. 1). Thereafter, Plaintiff timely filed
this civil action (Doc. No. 1), and this Court has
jurisdiction. 42 U.S.C. § 405(g).
REVIEW OF THE RECORD
decision, the ALJ presented a detailed recitation of the
evidence in this case. (A.R. 14-21). Unless otherwise noted,
the Court incorporates the ALJ's recitation of evidence
and reproduces the majority of it below:
The claimant testified he was currently 51 years old,
attended two years of college, drove, and used the computer
only to check his emails. He was right-handed. He lived with
his 15 year-old son and wife, who worked. He had last worked
in May 2010. He preferred to work but did not think it was
possible. When the issue of self-employment was raised, as
referenced at exhibit 8F, the claimant had no explanation for
this. He testified that his main disabling impairments were
cardiomyopathy, congestive heart failure, stents, sleep
apnea, and edema. He had pain in his hands and feet with the
swelling, so it was hard to stand. He had a heart attack in
2007 and had always had shortness of breath since then. He
quit smoking at that time. He testified that he was five
feet, 10 inches tall, and weighed 306 pounds. He had gained
about 70 pounds over the past couple of years. His doctor put
him on a low calorie diet and he tried to ride a stationary
bike, but it was too hard for him. He was complying with the
diet. Regarding activities of daily living, he stated that he
watched TV with his feet up if he was swelling and heated
food in the microwave. He was unable [to] vacuum and do
laundry because he could not lift heavy things. He testified
that he drove half way to the hearing and his wife drove the
rest of the distance. It took two hours and they stopped
twice. The claimant testified that he could walk 25-55 feet
at a time and sit in a straight chair 45-60 minutes at a
time. When his legs swelled, he lied [sic] in bed or sat with
his feet up for six to seven hours most days. He was not
supposed to lift over 10 pounds and said his doctor
doesn't want him to work. The claimant further testified
that one of his medications caused diarrhea and he used the
bathroom three times an hour.
The claimant stated in the function report at exhibits 4E and
6E that throughout the day, he did the following: got his son
off the school, ate breakfast, cleaned up a little, ate
lunch, walked or rode a stationary bike, ate supper, watched
television, and went to bed. He also fed the cats. He had no
problems caring for his personal needs without reminders. He
sometimes wrote notes to remind himself to take medication.
He prepared simple meals daily; did laundry; mowed the lawn
with a riding mower, but needed help trimming the yard
because he could not use the weed eater. He went outside
daily, walked and drove. He shopped in stores once a week for
two to three hours, “normally.” He read, went to
the library, fished weekly, and socialized with others
(family gatherings and cookouts). He sometimes attended
church. He could no longer hunt.
The claimant alleged disability on May 11, 2010, due to
congestive heart failure, cardiomyopathy, and obstructive
The evidence established that the claimant had a history of
bladder carcinoma, with cystoscopy and transluminal resection
of the bladder in October 2004 and myocardial infarction with
deployment of stents in March 2007, followed by the placement
of an implantable cardioverter defibrillator in April 2007.
However, he recovered, such that he was able to return to
work and worked for a number of years, thereafter. A June
2009 cardiology note indicated that the claimant had
cardiomyopathy with an ejection fraction of 25 percent, and
ventricular tachycardia in 2008. However, he had done well
from the standpoint of arrhythmia. Exhibits 1F and 2F.
Treating cardiologist, David A. Slosky, M.D., described the
claimant as an individual with a history of ischemic
cardiomyopathy, who was currently treated medically, in
January 2010. Notes indicated that the claimant's only
current complaint was of occasional lower extremity swelling.
He denied chest pain, shortness of breath, dyspnea on
exertion, palpitations, paroxysmal nocturnal dyspnea (PND),
orthopnea, and consistent pedal edema, as well. He was noted
as being compliant with medical therapy and tried to limit
his salt intake. He also did not smoke. His medications
consisted of Lisinopril, Zocor, aspirin, Lasix,
nitroglycerin, Aldactone, and Plavix. The claimant was
described as being in no acute distress. He weighed 278
pounds. His blood pressure was read as 120/80, while pulse
was 80 and regular. Pertinent physical findings included the
following: “jugular venous pressure to be less than 10
cm. of water. The apical impulse is not displaced. The first
heart sound in [sic] normal. The second heart sound is
normal. There is no S3. Central and peripheral pulses are
intact. There is no clubbing, cyanosis or edema. Chest is
clear to percussion and auscultation. Extremities are normal.
Neurological exam is normal. HEENT is normal. Lymph nodes are
negative. Skin is negative. Abdominal exam reveals a markedly
obese abdomen.” Impression was that from a cardiac
standpoint, the claimant was stable and currently euvolemic.
However, the claimant did not appear to be able to lose
weight. Therefore, Dr. Slosky recommended the claimant be
evaluated at the surgical weight loss clinic for
consideration of gastric banding or a new Sleeve procedure.
Exhibits 2F and 4F.
The claimant underwent a urologic evaluation by Joseph A.
Smith, M.D., in April 2010 for follow-up of his history of
bladder cancer. Notes indicated that the claimant had not had
any interval problems. Cystoscopic examination revealed mild
trabeculation. However, the efflux was clear; and there were
no tumors, stone, or areas of infection appreciated. Exhibit
In July 2010, Dr. Slosky stated that the claimant
continued to do well; denying chest pain, shortness of
breath, PND, and orthopnea. However, notes indicated that the
claimant had recently seen Dr. Wathen and had complaints of
swelling in the bilateral hands and lower extremities,
particularly after a day of work. “The swelling would
go away when he would not work since he was not standing in
his feet and would resolve by the next day.”
Consequently, the claimant's Lasix was increased for two
days, with improvement. However, “there was some return
in the edema since reducing the Lasix back to its original
dose, which was 40 mg." Regardless, it was interesting
that notes indicated that the claimant was only mildly
bothered by this on occasion. Additionally, he continued to
live an active and healthy lifestyle (denying smoking and
following a heart healthy diet). The claimant weighed 269
pounds, while his blood pressure was 130/62. The only
difference in examination from the described in detail above
was one-plus edema below the knees, bilaterally; with
“good” peripheral perfusion, was appreciated. Dr.
Slosky felt the claimant's edema was most likely
hydrostatic, and did not represent a manifestation of
worsening congestive heart failure (CHF). Since this was only
a “minor annoyance, ” he recommended the claimant
take a higher dose of Lasix for approximately two to three
days, only if fluid buildup or increase in weight was noted.
Exhibits 2F and 4F.
The claimant was hospitalized for two days in August 2010. At
that time, he presented with complaints of low energy for
approximately two to three months, associated with diarrhea
and acute onset of fevers, which spiked during the day and
responded to Tylenol. Aside from his acute symptoms, he also
endorsed increasing dyspnea on exertion and PND, night
sweats, one migraine, and loss of appetite. His blood
pressure was 102/56; while his oxygenization [sic] level was
95 percent. There were scattered crackles as the base of the
bilateral lung fields, otherwise air moved well. Heart rate
was regular and with a 2/6 systolic murmur; pulse rate was
127. Trace pitting edema was noted in the bilateral lower
limbs. Laboratory testing was notable for leukopenia and
thrombocyctopnia [sic]. Chest x-ray revealed a possible tine
[sic] retrocardiac opiacity [sic], felt to be vasculature in
nature, but was described as being without acute infiltrate.
The clinical picture that emerged was most consistent with
Ehrlichiosis or other tick-borne disease. The claimant
defervesced on Doxycycline and was released. Exhibit 2F.
The claimant returned to Dr. Slosky, approximately three
weeks after the above-described short hospital stay. Notes
indicated that the claimant was still somewhat fatigued and
short of breath on exertion. He had had no further episodes
of diarrhea, but said he [sic] wife would detect a mild fever
(in the 99 range) at night. He denied PND and orthopnea. The
claimant's blood pressure was 138/74. Examination was
only significant for “one-plus edema.” Notes also
indicated that the claimant did not feel like he was able to
perform his job, although he was able to perform other
activities of daily living. Dr. Slosky again stated the
claimant was stable from a cardiac standpoint. However, he
added that it did not appear that the claimant could perform
his job duties as they required heavy lifting and standing 10
to 12 hours a day. Dr. Slosky stated that he would support
the claimant's request for a potential job change or
inability to work at that time. Exhibits 2F and 4F.
The claimant was also scheduled for a check of his
defibrillator with Dawood Darbar, M.D., that same day. Notes
indicated that the claimant had not been followed at the
Arrhythmia clinic since implantation (2007) and that he
returned because he had an ICD shock in May 2010. Notes also
indicated that the claimant was operating a chain saw when
this shock occurred. The device only fired once and he had
not experienced any preceding dizziness, lightheadedness, or
presyncope or syncope. The device fired only once and since
then, he had experience [sic] no further shocks. The claimant
currently described symptoms of progressive heart failure
with progressive tiredness and fatigue, dyspnea with walking
less than one block, two-pillow orthopnea, PND, and ankle
swelling. He denied any chest pain. Notes stated that he had
quit smoking in 2007, and had gained 40 pounds since then.
Device interrogation revealed that all testing and
measurements were within normal limits. However, the claimant
did receive a “30J” shock for sinus tachycardia.
Dr. Darber [sic] recommended re-initiating a beta-blocker to
reduce the risk of additional inappropriate ICD shocks and
progressive heart failure symptoms. It was noted that the
beta-blockers had resulted in diarrhea in the past; however,
the claimant agreed to take this medication again. An EKG
revealed sinus tachycardia and multiple ventricular premature
complexes. Exhibits 1F-2F, 4F and 7F.
The claimant had complaints of exertional shortness of
breath, fatigue, and chronic edema when he returned to Dr.
Slosky in September 2010. However, he was described as being
in no acute distress. He denied orthopnea and PND. Notes
indicated that he had worked for the last three years, but
had become unable to continue this. His blood pressure was
128/68. The only positive clinical finding, per examination
was two-plus edema below the knees, bilaterally. Even though
the claimant's cardiovascular status was deemed stable,
Dr. Slosky stated that the claimant was not able to perform
his work ...