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Cotter v. Harris

decided: February 20, 1981.



Before Adams, Garth and Sloviter, Circuit Judges.

Author: Sloviter


In this action, appellant, Daniel P. Cotter, seeks review of the decision of the Secretary of Health and Human Services denying Cotter's concurrent applications for disability benefits under Title II of the Social Security Act as amended, 42 U.S.C. §§ 416(i), 423 (1976), and for Supplemental Security Income Benefits under Title XVI of the Act as amended, 42 U.S.C. § 1381a (1976). Benefits were denied initially, and again on reconsideration. After the subsequent hearing before an Administrative Law Judge, at which Cotter was represented by counsel, the ALJ ruled that Cotter was not disabled within the meaning of the Act and thus denied him benefits.*fn1 The decision of the ALJ was approved by the Appeals Council. See 20 C.F.R. §§ 404.951, 404.957 (1980). Cotter then filed suit in district court pursuant to sections 205(g) and 1631(c)(3) of the Act, 42 U.S.C. §§ 405(g), 1383(c)(3) (1976), seeking review of the Secretary's decision. Both parties moved for summary judgment, and the district court granted judgment in favor of the Secretary. For the reasons stated below we will vacate that judgment and remand the matter to the agency.


Cotter was 57 years old on June 21, 1978, the alleged date of the disability. He had an eighth grade education, completed a welding course, and worked for at least the past 15 years as a welder of heavy equipment. He last worked on June 20, 1978, several days following an accident at work. In the work activity report filed by Mr. Cotter in connection with his disability claim, he stated that his last job as a welder of heavy equipment in the coal stripping industry required sitting eight hours a day, occasional lifting of from 21 to 50 pounds, carrying a 50 pound box 50 feet to a truck, and frequent exposure to fumes and dust. (A-134). At the hearing, Cotter also testified that this job required sometimes dragging 100 pound tanks. (A-47-48). In the report filed about his earlier employment, Cotter indicated that from 1970 to 1976 he had welded road construction equipment which required frequently lifting up to 50 pounds and occasionally up to 100 pounds, and carrying these weights approximately 10 feet. (A-136).

Cotter claimed disability for a variety of reasons, including a heart condition.*fn2 The medical evidence presented to the ALJ concerning this claim is conflicting. Cotter has a history of frequent premature ventricular contractions (PVC)*fn3 (bigeminy) and takes medication for the condition. On June 18, 1978 Cotter was seen in the emergency room at Clearfield Hospital for double vision resulting from a work accident. Subsequently, an ophthalmologist noted an irregular heartbeat and advised Cotter to see Dr. Baltazor Corcino, an internist and Cotter's physician since July 1975, who was associated with Clearfield Hospital. An electrocardiogram showed frequent premature ventricular contractions with a bigeminal pattern, and Cotter was hospitalized at Clearfield Hospital from June 28 to June 30, 1978 for treatment. Cotter was advised to resume use of medication for his heart condition, and he was discharged from the hospital.

Dr. Corcino's report, dated June 30, 1978, diagnosed Cotter as having arteriosclerotic heart disease with bigeminy (A-150). In a subsequent report dated September 28, 1978, Dr. Corcino stated that he had last seen Cotter on September 9, 1978; he reaffirmed his diagnosis of arteriosclerotic heart disease "with PVCs controlled." Dr. Corcino noted that there was recurrent cardiac arrythmia but that none had occurred since the last visit. He reported dyspnea*fn4 on fast walking and exertion but apparently was uncertain whether it was attributable to a cardiac condition. He also reported a two to three year history of chest pain consisting of a mild fluttering feeling occurring on and off even at rest. Current status showed regular sinus rhythm (A-163). On March 8, 1979 and March 28, 1979 Dr. Corcino reported his opinion that Cotter was unable to work; on the latter date Dr. Corcino reported: "Although (Cotter) feels okay, I don't think he is able to go back to his usual work." (A-216).

Several months after his hospitalization, Cotter was referred to Dr. William Kimber, a specialist with the Department of Cardiovascular Medicine at Geisinger Medical Center. After an initial series of tests performed on October 9, 1978, Kimber reported his "impression" of "Ventricular premature beats rule out associated cardiac disease." (A-167). Further tests were scheduled and on October 25, 1978 a treadmill exercise ECG was administered. Following examination of the results of this test, Kimber reported that although Cotter experienced no chest pain or ST segment changes of significance, he did have a bigeminal rhythm during the warm-up period and short runs of ventricular tachycardia, a significant rhythm disturbance of the heart,*fn5 during the test. (A-168). Kimber recommended that Cotter "not return to a vigorous and physically demanding occupation because of the ventricular tachycardia noted coming on with exercise." (A-168). In a letter dated March 6, 1979, Kimber reviewed his previous findings and reiterated his concern that, due to the evidence of ventricular tachycardia coming on with physical stress, Cotter should not "return to any type of work that would entail physical labor." (A-213).

In sharp contrast to Drs. Corcino's and Kimber's diagnosis and recommendations were the conclusions of Dr. Tito Trinidad, an internist, who performed a consultative examination in October/November 1978. In a letter dated November 6, 1978. Dr. Trinidad reported that Cotter's heart was "Regular with occasional premature ventricular contractions. No murmur." Dr. Trinidad concluded that Cotter's prognosis was good and that he should be able to go back to work without any sequelae. These conclusions were apparently based on the results of a series of ECGs, including a two-step exercise ECG, taken on October 18, 1978. In a physical capacity evaluation, dated October 16, 1978, Dr. Trinidad estimated that Cotter had the ability to frequently lift from 21 to 50 pounds, occasionally lift from 51 to 100 pounds, and to frequently bend, squat, crawl and climb. (A-170). Dr. Trinidad's report does not indicate the clinical tests or observations, if any, on which this evaluation is based.


The ALJ denied Cotter's application, finding that although Cotter had an "occasional premature ventricular heart beat" he still had "the physical capacity to perform his past customary work as a welder." (A-29). The following portion of the decision entitled "Evaluation of the Evidence" represents the entire discussion of the evidence relating to Cotter's heart condition:

Claimant was examined at the Geisinger Medical Clinic and it was noted that the claimant had experienced a ventricular occasional premature heart beat.... The examinations made at the Geisinger Medical Clinic indicated that a treadmill test found the sinus was regular and test results were normal and the claimant was asymptomatic. Associated heart disease was ruled out at the clinic. Physical examination conducted by Dr. Trinidad, the premature ventricular contractions were noted and in spite of the contractions the doctor gave a good prognosis and indicated that the claimant should be able to go back to work without any sequelae.... Physical capacities evaluation made at the same time, indicated that the claimant had the physical capacity to ... frequently lift up to 50 pounds and occasionally lift up to 100 pounds ... and was able to frequently bend, squat, crawl and climb. (A-27).

The ALJ has a duty to hear and evaluate all relevant evidence in order to determine whether an applicant is entitled to disability benefits.*fn6 The ALJ's decision must be in writing and contain findings of fact and a statement of reasons in support thereof. 20 C.F.R. § 404.939 (1980).

We note that in his somewhat abbreviated discussion of the evidence relating to the heart condition, the ALJ makes no mention of any medical findings or opinions supporting Cotter's claim. Dr. Corcino's opinion that Cotter could not return to work is entitled to substantial weight because he is Cotter's treating physician. Bastien v. Califano, 572 F.2d 908, 912 (2d Cir. 1978). It is not even mentioned by the ALJ. Perhaps more significant, the ALJ does not mention the findings of Dr. Kimber, a specialist in cardiovascular medicine, that Cotter had runs of ventricular tachycardia brought on by physical stress; that this condition is a significant rhythm disturbance of the heart which he believed was of more concern than premature ventricular contractions, the only arrythymia mentioned by the ALJ; and that because of the tachycardia Cotter should not "return to any type of work that would entail physical labor." (A-213).

Further, the discussion by the ALJ indicates some confusion over the medical evidence. The ALJ stated that the treadmill test conducted at Geisinger indicated "that the sinus was regular and test results were normal." In fact, Dr. Kimber's evaluation of the treadmill test cannot fairly be characterized as showing normal results. In addition the ALJ stated that "Associated heart disease was ruled out at the clinic." It is true that this was Dr. Kimber's "impression" after his initial examination on October 9, 1978. However, the ALJ failed to mention that this report was written before Dr. Kimber had the benefit of the treadmill ECG's, which resulted in Dr. Kimber's subsequent findings and conclusions discussed above.

Apparently, the ALJ based his ultimate conclusion that Mr. Cotter could perform his prior job on Dr. Trinidad's report and evaluation. Significantly, the ALJ gave no reason for implicitly rejecting the obviously probative and significant but conflicting findings and ...

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