Cullinane v . SSA CV-02-213-JD 01/09/03
UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEW HAMPSHIRE
Donna Cullinane
v. Civil N o . 02-213-JD
Opinion N o . 2003 DNH 003
Jo Anne B . Barnhart
O R D E R
The plaintiff, Donna Cullinane, seeks judicial review,
pursuant to 28 U.S.C. § 405(g), of the decision of the
Commissioner of the Social Security Administration denying her
application for social security benefits. Cullinane moves to
reverse the decision on the grounds that the Administrative Law
Judge (“ALJ”) erred in finding that she did not have a severe
impairment, failed to properly develop the record, and failed to
properly advise her of her right to counsel. The Commissioner
moves to affirm the decision.
Background
Donna Cullinane applied for social security benefits in July
of 1998, alleging a disability beginning on June 1 5 , 1995, caused
by a heart condition, supraventricular tachycardia (“SVT”). Her
insured status expired on December 3 1 , 1997.
Cullinane complained of heart palpitations in August of
1995. Her doctor noted that she smoked a pack of cigarettes and
drank ten cups of coffee per day. She was referred to D r . Joel
Cutler for a cardiovascular evaluation. Although D r . Cutler
noted a diagnosis of paroxysmal SVT, subsequent testing did not
produce any arrhythmia. Other testing produced normal results.
By March of 1996, her medical records indicate that her
tachycardia was fairly well controlled by medication.
Cullinane reported three episodes of tachycardia in one week
at a medical appointment in February of 1997. The medical record
indicates that Cullinane was under stress at that time, had
recently changed from trade name to generic medication, and had
missed several medication doses during the week when the episodes
occurred. The nurse practitioner concluded that the episodes
were secondary to stress, caffeine use, smoking, and noncompliance with her medication regime.
The next medical record is from an appointment in January of
1998 when Cullinane was examined by D r . John Daley, after moving
from Maine to New Hampshire. D r . Daley noted that Cullinane
presented vague symptoms of fatigue and shortness of breath which
had increased around the time of her move, that she reported her
tachycardia was controlled by medication, and that she was still
smoking a pack a day and drinking coffee. D r . Daley thought that
stress could be causing Cullinane’s symptoms.
On D r . Daley’s recommendation, Cullinane underwent a Bruce
Protocol exercise tolerance test. D r . Brian Shea interpreted the
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results finding no ischemic EKG changes or arrhythmias but also
finding that her chest tightness might suggest angina. A followup test in February was negative for ischemia but positive for
angina. Cullinane also reported to D r . Connor Haugh in February
that she was experiencing monthly episodes of palpitations.
Due to Cullinane’s continued complaints of fatigue,
shortness of breath, and pain between the shoulder blades,
Cullinane used a “long-term event monitor” in March of 1998 which
showed symptomatic sinus tachycardia and SVT. In June of 1998,
Dr. Daley reported that Cullinane continued to be bothered by
tachycardia and that it caused her to be exhausted. In his
opinion she was very disabled by tachycardia.
In September of 1998, D r . Craig Campbell, a non-examining
state agency physician, reviewed Cullinane’s records from June of
1995 to December of 1997 and concluded that she had no functional
limitations. D r . Burton Nault, another non-examining state
agency physician, reviewed her records for the same period and
concluded that Cullinane was limited to work at the light
exertional level.
A hearing before an ALJ was held on April 5 , 1999.
Cullinane appeared without counsel. The ALJ questioned her about
her lack of representation and whether she understood that she
could be represented at the hearing. Cullinane’s mother, sister,
and husband also testified at the hearing. Cullinane and her
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family members testified about the effects of her illness on her
activities. In his decision, the ALJ found that Cullinane had
not shown that she had a medically severe impairment and
concluded that she was not disabled at the second step of the
disability analysis.
Discussion
The court must uphold a final decision of the Commissioner
denying benefits unless the decision is based on legal or factual
error. Manso-Pizarro v . Sec’y of Health & Human Servs., 76 F.3d
1 5 , 16 (1st Cir. 1996) (citing Sullivan v . Hudson,
490 U.S. 8 7 7 ,
885 (1989)). The Commissioner’s factual findings are conclusive
if based on substantial evidence in the record. See § 405(g).
Substantial evidence is “such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.”
Richardson v . Perales,
402 U.S. 389, 401 (1971) (quotation
omitted). In making the disability determination, “[i]t is the
responsibility of the [Commissioner] to determine issues of
credibility and to draw inferences from the record evidence.”
Irlanda Ortiz v . Sec’y of Health & Human Servs.,
955 F.2d 765,
769 (1st Cir. 1991).
To be eligible for social security benefits, the claimant
must show that she was disabled, meaning that she had a medically
determinable physical impairment that lasted for at least twelve
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months, beginning before the expiration of her insured status,
and that the impairment made her unable to engage in any
substantial gainful activity. 42 U.S.C. § 423(a)(1)(D); Henrie
v . U.S. Dep’t of Health & Human Servs.,
13 F.3d 359, 360 (10th
Cir. 1993). The Commissioner uses a five-step sequential
analysis to determine disability under the Social Security Act.
20 C.F.R. § 404.1520. At the second step of the analysis, the
claimant bears the burden of showing that she had a medically
severe impairment. See
20 C.F.R. § 404.1520(c); Bowen v .
Yuckert,
482 U.S. 1 3 7 , 146 n.5 (1987).
At step two, an impairment is severe if it “significantly
limits [the claimant’s] physical or mental ability to do basic
work activities.” § 404.1420(c). The step two requirement is
intended only to screen out meritless claims. See McDonald v .
Sec’y of Health & Human Servs., 795 F.2d 1118, 1124 (1st Cir.
1986). Therefore, a claim may be denied at step two only if the
medical evidence establishes nothing more than a slight
abnormality that “would have no more than a minimal effect on an
individual’s ability to work.” Barrientos v . Sec’y of Health &
Human Servs.,
820 F.2d 1 , 2 (1st Cir. 1987) (internal quotation
omitted).
The ALJ found that Cullinane had supraventricular and sinus
tachycardia before her insured status expired. He considered the
medical evidence both before and after her last insured date. He
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concluded, however, that her impairment was not severe because
her symptoms were generally controlled by medication and “the
record simply does not support any long term disability or any
underlying cardiac condition that would cause further
complication.” Decision at 4 . He noted that her symptoms
appeared to have been “at worst a nuisance.” Id.
Cullinane’s testimony at the hearing, and the testimony of
her family members, support her complaints of a severe impairment
due to fatigue. The medical evidence is not clear as to what
symptoms or degree of impairment might reasonably be caused by
SVT. Some of the medical evidence credits Cullinane’s reports of
fatigue resulting from SVT, while some suggests that her symptoms
might have resulted from stress or other causes. Given
Cullinane’s pro se status at the hearing stage and the
inconclusive record, it may have been error for the ALJ to
conclude the analysis at the threshold level of the second step.
The record establishes, however, that a remand would be
futile. See Ward v . Comm’r of Soc. Security, 211 F.3d 6 5 2 , 656
(1st Cir. 2000). Even if Cullinane were deemed to have a severe
impairment due to SVT at step two, all of the residual functional
capacity assessments in the record found her to be capable of
work.
The most restrictive assessment, completed by D r . Haugh in
July of 1999, credited her subjective complaints of fatigue but
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nevertheless found her to be capable of activities at the
sedentary exertional level. She does not claim any other
exertional limitations. Cullinane was forty-one years old on her
last insured date and forty-three years old when the ALJ issued
his decision. Based on the Medical-Vocational Guidelines
applicable to a younger individual age 18-44, limited to
sedentary work, she was not disabled. See 20 C.F.R. P t . 4 0 4 ,
Subpt. P, App. 2 , § 201.23, et seq. Therefore, the
Commissioner’s decision denying Cullinane’s application for
benefits is affirmed on other grounds.
Conclusion
For the foregoing reasons, the claimant’s motion to reverse
the decision of the Commissioner (document n o . 9 ) is denied, and
the Commissioner’s motion to affirm (document n o . 11) is granted.
The clerk of court shall enter judgment accordingly and
close the case.
SO ORDERED.
Joseph A . DiClerico, J r .
United States District Judge
January 9, 2003
cc: Raymond J. Kelly, Esquire
David L . Broderick, Esquire
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