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Cobasky v. Berryhill

United States District Court, M.D. Tennessee, Nashville Division

July 12, 2017

NANCY BERRYHILL[1], Acting Commissioner of Social Security, Defendant.



         Pending 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)[2], and for the reasons set forth below, Plaintiff's Motion will be denied.


         Plaintiff 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 findings:

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 404.1520(c)).
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 404.1569(a)).
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)).

(A.R. 13-22).

         On June 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).


         In her 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 sleep apnea.
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 2F.
In July 2010[3], 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 ...

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