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Orfao v. Berryhill

United States District Court, D. Connecticut

February 26, 2018

AGOSTINHO MESQUITA ORFAO, Plaintiff,
v.
NANCY A. BERRYHILL, ACTING COMMISSIONER OF SOCIAL SECURITY, Defendant.

          ORDER AFFIRMING THE COMMISSIONER'S DECISION

          Alvin W. Thompson, United States District Judge

         Plaintiff Agostinho Orfao has appealed under § 205(g) of the Social Security Act, as amended, 42 U.S.C. § 405(g), a final decision by the Commissioner denying his application for disability insurance benefits. The plaintiff has filed a motion for reversal or remand, and the Commissioner has filed a motion for an order affirming the Commissioner's decision. For the reasons set forth below, the court concludes that the findings by the Administrative Law Judge (ALJ) are supported by substantial evidence, and the Commissioner's final decision should be affirmed.

         Legal Standard

         “A district court reviewing a final [] decision . . . [of the Commissioner of Social Security] pursuant to section 205(g) of the Social Security Act, 42 U.S.§ 405(g), is performing an appellate function.” Zambrana v. Califano, 651 F.2d 842, 844 (2d Cir. 1981). The court may not make a de novo determination of whether a plaintiff is disabled in reviewing a denial of disability benefits. See Wagner v. Sec'y of Health & Human Servs., 906 F.2d 856, 860 (2d Cir. 1990). Rather, the court's function is to ascertain whether the Commissioner applied the correct legal principles in reaching a conclusion and whether the decision is supported by substantial evidence. See Johnson v. Bowen, 817 F.2d 983, 985 (2d Cir. 1987). The Second Circuit has defined substantial evidence as “‘such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'” Williams v. Bowen, 859 F.2d 255, 258 (2d Cir. 1988) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)). Substantial evidence must be “more than a mere scintilla or touch of proof here and there in the record.” Williams, 859 F.2d at 258. Therefore, absent legal error, this court may not set aside the decision of the Commissioner if it is supported by substantial evidence. See Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982); 42 U.S.C. § 405(g)(“The findings of the Commissioner of Social Security as to any fact, if supported by substantial evidence, shall be conclusive . . . .”). Further, if the Commissioner's decision is supported by substantial evidence, that decision will be sustained, even where there may also be substantial evidence to support the plaintiff's contrary position. See Schauer v. Schweiker, 675 F.2d 55, 57 (2d Cir. 1982).

         Substantial Evidence

         The plaintiff filed an application for a period of disability and disability insurance benefits, alleging disability beginning January 24, 2012. His earnings record shows that he had acquired sufficient quarters of coverage to remain insured through December 31, 2016, so he was required to establish disability on or before that date. The ALJ “considered the following applicable listings: 4.02 (chronic heart failure), 4.06 (symptomatic congenital heart disease) and 12.06 (anxiety-related disorders).” R. at 18. The plaintiff does not dispute the ALJ's determination with respect to his anxiety-related disorders, so that is not discussed in this order.

         In reaching his conclusion that the plaintiff had the residual capacity to perform medium work, subject to certain limitations, the ALJ took into account the medical evidence from the plaintiff's treating physicians as well as the opinions of state agency non-examining medical physicians who had reviewed the plaintiff's records.

         The ALJ accurately summarized the plaintiff's medical history. With respect to the earlier portion of that history the Decision states:

The record fails to support the claimant's allegations in their entirety. It does establish that he had a history of heart murmur and in 2009, he was found to have critical aortic valve stenosis, requiring valve replacement (Exhibit 1F). At the time, his symptoms were increasing shortness of breath and chest tightness. Post-operatively, he recovered well, but has complained of persistent shortness of breath. Cardiology follow-up records indicate that he underwent a number of diagnostic tests, including EKG, stress test, cardiac catheterization. His stress test in May 2012 revealed reversible ischemia, but catheterization revealed only mild coronary artery disease without any obstructive lesions, normal heart pressures and oxygen saturations and normal aortic valve function (Exhibit 3F; duplicate records at Exhibit 5F). Following this battery of tests, it was concluded that "it does not appear that any of his symptoms of chest discomfort and shortness of breath are secondary to cardiac etiology" (Id. at page 2; see also Exhibit 5F at page 44). All pulmonary and cardiac ·testing to determine the cause of his shortness of breath has been negative and "completely within normal limits” (Exhibit 5F at pages 9, 56, 57; see also Exhibit 6F). A chest CT scan was also normal (Id. at page 70). On repeated exams, he has no wheezing, rhonchi, crackles, or rales. Breath sounds and arterial pulses are normal. Heart rate and rhythm are normal with no abnormal heart sounds or murmurs. He has no lower extremity edema, cyanosis, distal extremity coldness, dysphagia, orthopnea, sputum, fevers, chills, or hemoptysis.

R. at 21.

         The ALJ noted that the plaintiff saw Prasad Srinivasan, M.D. in April 2012 for complaints of chest congestion, chest tightness and cough which had been present for over one year; that the doctor found that the pulmonary function studies were normal, taking note of the plaintiff's history of asthma and allergies; that “[a]llergy testing revealed sensitivity to dust, mold, dust mites, grasses, trees, weeds, cats and dogs”, and “Dr. Srinivasan's impression was bronchial asthma”; and that the doctor discussed with the plaintiff environmental controls as well as medication. R. at 22.

         The ALJ noted that when the plaintiff saw his primary care doctor in August and October 2012 he reported shortness of breath but was described as stable. He was observed getting winded with talking and frequently clearing his throat but all other exam findings were unremarkable. The record reflects that the plaintiff was repeatedly advised to engage in regular exercise. When the plaintiff saw his primary care doctor again in November 2012, after traveling to Portugal for four weeks and not following a low-fat diet, he did not complain of any difficulties with traveling overseas for a month and reported that his shortness of breath was a bit better. When he saw his cardiologist in February 2013, the doctor noted that he was “stable from a clinical standpoint”. Ex. 12F p.3; R. at 543. Then, in September 2013 his cardiologist described his persistent symptoms as “allergic”. Ex. 12F pp.5, 7; R. at 545, 547. The ALJ noted that the plaintiff continued to be seen at six-month intervals, had remained stable, and that the March 2014 notes of his cardiologist reflect that he had remained stable.

         The ALJ highlighted the fact that “in April 2014, the [plaintiff]'s primary care doctor noted that he had ‘no complaints of chest pain, sob [shortness of breath], palpitations, nausea, diarrhea, fever, headache, dizziness or any other complaints' . . . . Pulmonary function studies were repeated at this time and were again ‘normal'.” R. at 22 (citing Ex. 14F pp.2, 23). Although the plaintiff contends that “the ALJ focuses on a single medical visit (Dr. Singh, 4/14/14) in which the plaintiff apparently reported no complaints”, Pl.'s Reversal/Remand Mem. (“Pl.'s Mem.”) (Doc. No. 16-1) at 10, the ALJ does not rely on this visit but simply highlights it appropriately.

         The ALJ also considered and placed evidentiary weight on the administrative findings of fact made by the state agency non-examining medical physicians, which ...


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