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Clifford Swortfiguer v. Michael J. Astrue

August 21, 2012

CLIFFORD SWORTFIGUER,
PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Barbara A. McAuliffe United States Magistrate Judge

ORDER AFFIRMING DENIAL OF BENEFITS AND ORDERING JUDGMENT FOR COMMISSIONER

Plaintiff Clifford Swortfiguer, by his attorneys, Law Office of Bess Brewer & Associates, seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner") denying his application for disability insurance benefits (DIB) under Title II of the Social Security Act and for supplemental security income ("SSI") pursuant to Title XVI of the Social Security Act (42 U.S.C. § 301 et seq.) (the "Act"). The matter is currently before the Court on the parties' cross-briefs, which were submitted, without oral argument, to the Honorable Barbara A. McAuliffe, United States Magistrate Judge. Following a review of the complete record and applicable law, this Court affirms the agency's determination to deny benefits to Plaintiff.

I. Administrative Record

A. Procedural History

Plaintiff was insured under the Act through September 30, 2012. On April 17, 2008, Plaintiff applied for disability insurance benefits pursuant to Title II; on April 22, 2008, Plaintiff applied for supplemental security income ("SSI") under Title XVI. He alleged disability beginning February 27, 2008. His claims were initially denied on June 20, 2008, and upon reconsideration, on October 1, 2008. On November 5, 2005, Plaintiff filed a timely request for a hearing. Plaintiff appeared and testified at a hearing on January 13, 2010. On February 26, 2010, Administrative Law Judge Timothy S. Snelling denied Plaintiff's applications. The Appeals Council denied review on July 1, 2010. On October 1, 2010, Plaintiff filed a complaint seeking this Court's review.

B. Administrative Record

Plaintiff's testimony. Plaintiff (born March 15, 1961) completed the eleventh grade and obtained a GED. He had previously worked in construction and as a local and long-haul trucker. Although he had sometimes worked part-time jobs, he testified that he had not worked since April 17, 2006, despite numerous job applications. Plaintiff explained that he could no longer pass the test required for Class A drivers, which required prospective drivers to demonstrate their ability to climb stairs and to lift weights over their heads. In addition, he was unable to remain seated for long hours, as is required for a driver or a passenger, and was constantly too tired to drive safely.

Plaintiff's heart problems began as child with a congenital heart defect that was surgically repaired when he was seven. At about age fourteen, he was diagnosed with lymphoma, which was treated with radiation therapy. In 1996, at the age of 34, he underwent quadruple bypass surgery. Thereafter, he developed congestive heart failure. Plaintiff also experienced recurrent problems with his left leg, from which blood vessels were harvested for the bypass, including recurrent staph infections and cellulitis. He had frequent chest pains, which he initially treated with nitroglycerine, but for which he sought emergency room treatment if the pain was not reduced after two doses of nitroglycerine.

Over recent years, Plaintiff's health and stamina have declined. Plaintiff testified that as a result of his heart condition, he experienced shortness of breath and fatigue. His legs swelled faster than Lasix, a diuretic, could eliminate the fluid. He needed to elevate his legs at least oneto-two hours a day and could not sit without moving for more than an one and a half to two hours.

He also experienced headaches and disturbances of vision which his physicians attributed to side effects of his medications. His shoulder was too painful to lift anything over his head. Plaintiff stopped working after his gall bladder was removed in 2008.

Plaintiff lived with five of his nine children. He rose at 6:30 or 7:00 a.m. to take his sons to school. In the course of the day, he took two one-hour naps, although on bad days, he could nap for three or four hours. He chauffeured the children, attended his sons' sporting events, shopped for groceries, ran other errands, and washed dishes. He retired between 8:30 and 10:00 p.m., but slept poorly; he frequently woke, gasping for air.

Exertion Questionnaire. On April 30, 2008, Plaintiff completed an exertion questionnaire of a form apparently prepared by counsel. He was then living in a 37-foot travel trailer with three sons aged 14, 12, and 10. On a typical day, he awoke, showered, dressed, prepared school lunches, and drove his sons to school. He would complete any errands, then return home to rest and read until picking the boys up at the end of the school day, supervising their homework, and reading with them. He shared responsibility for preparing supper with his sons. Plaintiff shopped for groceries once a week, accompanied by a son to lift for him. He no longer worked on cars or did yard work. He slept eight hours daily.

Plaintiff reported that when he exerted himself physically, he immediately began to experience shortness of breath and chest discomfort, followed by weakness, fatigue, and severe migraine headaches. He could walk about 100 feet before needing to rest for one to two minutes. He did not lift more than ten pounds.

Plaintiff's medications included Lipitor, Tricor, Lasix, Amiodarone, Coreg, Potassium, and Benazepril HCl.

Medical records. On June 26, 2006, John B. Krpan, M.D., treated Plaintiff for an upper gastrointestinal bleed in the emergency room of Mark Twain St. Joseph Hospital. On September 25, 2006, Dr. Krpan treated Plaintiff in the emergency room for cellulitis. Plaintiff complained of chest pain and palpitations. Dr. Krpan noted his rapid heart rate.

On January 3, 2007, Joydev Acharya, M.D., conducted an invasive evaluation of Plaintiff's coronary arteries and bypasses, including left heart catheterization, right and left coronary angiography, left ventriculography, saphenous vein graft angiography, left internal mammary artery angiography, and right heart catheterization. Following testing, Dr. Acharya noted severe native vessel disease; left ventricular dysfunction with an ejection fraction of 40%; no residual pulmonic stenosis; no evidence of intercardiac shunts, and no evidence of constricted physiology. Although only three of the four grafts were patent, Dr. Acharya opined that Plaintiff was then adequately revascularized.

Plaintiff first saw primary care doctor Ryan S. Thompson, M.D., on April 6, 2007, apparently for treatment of an open wound on his right leg. On May 7, 2007, Dr. Thompson treated Plaintiff for a cough with no shortness of breath. On May 21, 2007, Plaintiff's cough was better. Dr. Thompson noted that Plaintiff's blood count was normal, his blood sugar was slightly elevated (115), triglycerides were high (415), and HDL was 30, putting him at increased risk of recurrent disease.

On September 10, 2007, Plaintiff told Dr. Thompson of recent episodes in which he had felt stunned for 5 to 10 seconds while at rest. Dr. Thompson recommended a Holter monitor to rule out arrythmia.

On February 27, 2008, Dr. Thompson noted Plaintiff's shortness of breath and labored breathing had increased in the past three to four weeks. Although Plaintiff had increased his Lasix dosage, he had 1-2 pitting edema. Because Plaintiff had run out of insurance benefits, he had run out of Lipitor and Tricor. Dr. Thompson noted that the EKG revealed atrial flutter with a 3 to 1 block and, following consultation with Plaintiff's cardiologist, prescribed coumadin.

Cardiologist Rajesh K. Dubey, M.D., examined Plaintiff on March 3, 2008, and confirmed the diagnosis of atrial flutter. Plaintiff complained of worsening shortness of breath. Dr. Dubey opined that if Plaintiff's symptoms worsened, he would need elective cardioversion to resolve the atrial flutter.

On March 6, 2008, Plaintiff was treated for chest pain in the emergency room.

On March 8, 2008, Plaintiff received emergency room treatment for poison oak. On March 9, 2008, Plaintiff received stitches to a leg wound*fn1 incurred while trying to clear brush while riding a dirt bike.

On March 14, 2008, Dr. Thompson noted that Plaintiff looked ill, tired, and exhausted. He was experiencing orthopnea (inability to breath when lying down) with associated jaw and neck pain. Plaintiff was also experiencing severe shortness of breath on exertion. Because he had no insurance, Plaintiff was unable to schedule an appointment with his cardiologist, Dr. Dubey. After consultation with Dr. Dubey's office, Dr. Thompson sent Plaintiff to the emergency room.

Cardiologist Kent Wong, M.D., admitted Plaintiff to Doctors Medical Center from the emergency room for severe shortness of breath. Wong noted that Plaintiff had orthopnea and paroxysmal nocturnal dyspnea. He described Plaintiff's heart sounds, S1 and S2, as "irregularly irregular." AR 205. His second pulmonic heart sound was loud with a 1/6 holosystolic murmur at the left sternal border. Edema was 1. Wong noted that Plaintiff was in mild congestive heart failure, likely related to left ventricle dysfunction, exacerbated by atrial flutter and fibrillation. He ordered coumadin held, commenting that Plaintiff was over anticoagulated. Plaintiff was first to be diuresed with IV Lasix, with a Persantine-Cardiolite stress test to follow. An x-ray indicated that Plaintiff's heart was enlarged to the upper limits of normal.

On March 15, 2008, Dana Buchanan, O.D., reviewed Plaintiff's chest x-ray, noting cardiomegaly and mild pulmonary edema, but no infiltrates or effusions. His blood pressure had decreased following application of nitroglycerine paste. Buchanan transferred Plaintiff to the telemetry floor to rule out a myocardial infarction and for administration of an echocardiogram in the morning.

Cardiologist Hassan Hussain, M.D., administered the Persantine-Cardiolite stress test on March 16, 2008. Dr. Hussain concluded that the study appeared negative for ischemia pending perfusion scan images for correlation. Dr. Hussain also evaluated the echocardiogram, noting:

Normal left ventricular size with left contractility being moderately depressed. Ejection fraction is in the range of about 40%. The study is technically very limited and the endocardium is not well visualized in all views. Moderate mitral and moderate tricuspid regurgitation is noted. The right-sided pressures are moderately elevated with suggestion of pulmonary hypertension. There ...


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