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IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

FORT WORTH DIVISION

DAVID CORNWALL, §

PLAINTIFF, §

§

VS. § CIVIL ACTION NO. 4:04-CV-797-Y

§

JO ANNE B. BARNHART, §

COMMISSIONER OF SOCIAL SECURITY, §

DEFENDANT. §

FINDINGS, CONCLUSIONS AND RECOMMENDATION

OF THE UNITED STATES MAGISTRATE JUDGE

AND

NOTICE AND ORDER

This case was referred to the United States Magistrate Judge pursuant to the provisions of

Title 28, United States Code, Section 636(b). The Findings, Conclusions and Recommendation of

the United States Magistrate Judge are as follows:

FINDINGS AND CONCLUSIONS

A. STATEMENT OF THE CASE

Plaintiff David Cornwall brings this action pursuant to Sections 405(g) and 1383(c)(3) of

Title 42 of the United States Code for judicial review of a final decision of the Commissioner of

Social Security denying his claim for disability benefits under Title II and supplemental security

income or SSI benefits under Title XVI of the Social Security Act. Cornwall applied for SSI

benefits on February 19, 2002 (protective filing date) and disability insurance benefits on February

22, 2002, and alleges that he has been disabled since October 22, 2001. (Tr. 259). Cornwall meets

the requirements for disability insured status through at least 2006. (Tr. 233).

 

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After the Social Security Administration denied his applications for benefits initially and on

reconsideration, Cornwall requested a hearing before an administrative law judge (the "ALJ"), and

ALJ J. Frederick Gatzke held a hearing on December 6, 2002 in Fort Worth, Texas. (Tr. 257-88).

Cornwall was represented by counsel. On February 27, 2003, the ALJ issued a decision that

Cornwall was not disabled and was not entitled to disability insurance or SSI benefits because he

retained the ability to perform his past relevant work. (Tr. 13-18). The Appeals Council denied

Cornwall’s request for review of his case, leaving the ALJ’s decision to stand as the final decision

of the Commissioner. (Tr. 3).

B. STANDARD OF REVIEW

The Social Security Act defines a disability as a medically determinable physical or mental

impairment lasting at least twelve months that prevents the claimant from engaging in substantial

gainful activity. 42 U.S.C. § 423(d), 1382c(a)(3)(A); McQueen v. Apfel, 168 F.3d 152, 154 (5th Cir.

1999). To determine whether a claimant is disabled, and thus entitled to disability benefits, a fivestep analysis is employed. 20 C.F.R. §§ 404.1520, 416.920. First, the claimant must not be presently

working at any substantial gainful activity. Substantial gainful activity is defined as work activity

involving the use of significant physical or mental abilities for pay or profit. 20 C.F.R. §§ 404.1527,

416.972. Second, the claimant must have an impairment or combination of impairments that is

severe. An impairment or combination of impairments is severe if it has more than minimal effect

on the claimant’s physical or mental ability to do basic work activities. 20 C.F.R. §§ 404.1520(c),

416.920(c); Stone v. Heckler, 752 F.2d 1099, 1101 (5th Cir. 1985), cited in Loza v. Apfel, 219 F.3d

378, 392 (5th Cir. 2000). At the third step, disability will be found if claimant’s impairment or

 

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combination of impairments meets or equals an impairment listed in the appendix to the regulations.

Id. §§ 404.1520(d), 416.920(d). Fourth, if disability cannot be found on the basis of claimant’s

medical status alone, the impairment or impairments must prevent the claimant from returning to

his past relevant work. Id. §§ 404.1520(e), 416.920(e). And fifth, the impairment must prevent the

claimant from doing any work, considering the claimant's residual functional capacity, age,

education, and past work experience. Id. §§ 404.1520(f), 416.920(f); Crowley v. Apfel, 197 F.3d

194, 197-98 (5th Cir.1999). 

At steps one through four, the burden of proof rests upon the claimant to show he is disabled.

If the claimant satisfies this responsibility, the burden shifts to the Commissioner at step five of the

process to show that there is other gainful employment the claimant is capable of performing in spite

of his existing impairments. Crowley, 197 F.3d at 198. If the Commissioner meets this burden, the

claimant must then prove that he cannot in fact perform the work suggested. Waters v. Barnhart, 276

F.3d 716, 718 (5th Cir. 2002). A finding at any point in the five-step process that a claimant is

disabled or not disabled is conclusive and terminates the analysis. Masterson v. Barnhart, 309 F.3d

267, 272 (5th Cir. 2002).

A denial of disability benefits is reviewed only to determine whether the Commissioner

applied the correct legal standards and whether the decision is supported by substantial evidence in

the record as a whole. Leggett v. Chater, 67 F.3d 558, 564 (5th Cir. 1995); Hollis v. Bowen, 837

F.2d 1378, 1382 (5th Cir. 1988). Substantial evidence is such relevant evidence as a responsible

mind might accept to support a conclusion. Boyd v. Apfel, 239 F.3d 698, 704 (5th Cir. 2001). It is

more than a mere scintilla, but less than a preponderance. Id. A finding of no substantial evidence

 

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1

 Atrial fibrillation is an arrhythmia in which minute areas of the atrial myocardium are in various

uncoordinated stages of depolarization and repolarization due to multiple reentry circuits within the atrial

myocardium; instead of intermittently contracting, the atria quiver continuously in a chaotic pattern, causing a totally

irregular, often rapid ventricular rate. DORLAND’S ILLUSTRATED MEDICAL DICTIONARY 670 (29th ed. 2000).

2

 Hypercholesterolemia is an excess of cholesterol in the blood. Id. at 849.

3

 Cardioversion is a procedure to restore normal heart rhythm by administering electrical shock. Id. at 288.

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is appropriate only if no credible evidentiary choices or medical findings support the decision. Id.

This Court may neither reweigh the evidence in the record nor substitute its judgment for the

Commissioner's, but will carefully scrutinize the record to determine if the evidence is present.

Harris v. Apfel, 209 F.3d 413, 417 (5th Cir.2000); Hollis, 837 F.2d at 1383.

C. ISSUES

Whether substantial evidence supports the ALJ’s determination at Step Four of the sequential

evaluation process that Cornwall could perform his past relevant work.

D. ADMINISTRATIVE RECORD

1. Treatment History

Cornwall was hospitalized in June 2001 for atrial fibrillation1

 and rapid ventricular response

as confirmed by an electrocardiogram (ECG). (Tr. 145, 148). He was seen on an outpatient basis

in July and August to monitor his condition. (Tr. 141-47). 

Cornwall was hospitalized on October 22, 2001 with complaints of increased heart

palpitations and fatigue. (Tr. 216). His admitting diagnoses included atrial fibrillation,

hypertension, and hypercholesterolemia.2 After direct current cardioversion3 was administered and

proved unsuccessful, Cornwall underwent implantation of a pacemaker on October 26, 2001. (Tr.

102-39, 214). Cornwall developed gastrointestinal bleeding after being placed on Coumadin, and

 

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 Ischemic heart disease refers to any of a group of acute or chronic cardiac disabilities resulting from

insufficient supply of oxygenated blood to the heart. Id. at 518.

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underwent a colonoscopy and esophogastroduodenoscopy to locate the source of the bleeding. (Tr.

115, 133). Cornwall was discharged on November 2, 2001 with diagnoses of chronic atrial

fibrillation, status post pacemaker, and gastrointestinal bleeding. (Tr. 103, 213-15).

Cornwall was seen on an outpatient basis on November 13, 2001 for complaints of fatigue

and soreness at the pacemaker site. (Tr. 98). During a follow-up visit at the cardiology clinic on

December 10, 2001, Cornwall reported left-sided chest pain. (Tr. 96). Examining physician Rim

Bannout, M.D., reported that Cornwall denied having palpitations, was doing well, and had inquired

about returning to work. (Tr. 211). Cornwall’s blood pressure remained elevated. (Tr. 212).

Cornwall returned the following week with complaints of fatigue and sluggishness. (Tr. 94). 

During a check-up with physician Robert Capper, M.D., on February 11, 2002, Cornwall was

found to be asymptomatic with a well-healed pacemaker site. His blood pressure was 132/90 with

an irregular pulse. (Tr. 210). Capper diagnosed heart disease of unknown etiology, probably mixed

with hypertensive cardiovascular disease; possible asymptomatic ischemic heart disease4

complicated by atrial fibrillation and a permanent pacemaker. (Tr. 210). 

On April 1, 2002, Cornwall complained of pain in his right leg that was worse with walking

and relieved by rest. He denied experiencing any numbness or muscle weakness. (Tr. 88). His

blood pressure was recorded as 130/100. Cornwall was diagnosed with chronic atrial fibrillation,

a permanent pacemaker, congestive heart failure, and leg pain with a recommendation that

peripheral vascular disease be ruled out. (Tr. 88). A vascular Doppler imaging report dated April

 

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5

 Vasculitis refers to inflammation of a blood or lymph vessel. Id. at 1935.

6

 A vacuum disc is a disc with imaging characteristics suggestive of gas in the center of the disc space,

usually a manifestation of disc degeneration. American Journal of Neuroradiology, Nomenclature and Classification

of Lumbar Disc Pathology (2001), http://www.asnr.org/spine__nomenclature/glossary.shtml.

7

 Hypertrophy is an enlargement or overgrowth of an organ or part due to an increase in size of the

constituent cells. Id. at 859.

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24, 2002 found no evidence of deep vein thrombosis in either lower extremity. (Tr. 171).

Cornwall returned to the clinic on April 30, 2002 because he was experiencing chronic leg

cramps and pain. (Tr. 86). His blood pressure was 150/90, his height was 5'11", and he weighed

260 pounds. His physician diagnosed chronic atrial fibrillation and leg pain secondary to vasculitis5

versus peripheral vascular disease. (Tr. 86). 

In June 2002, Cornwall complained that his blood pressure was fluctuating because of his

back and leg pain. His blood pressure reading was 144/100. (Tr. 82). Cornwall continued to

complain of low back pain and cramps in his legs during a check-up in July. He was given pain

medication, and lumbar spine x-rays were ordered. (Tr. 80).

On August 23, 2002, Cornwall’s physicians ordered follow-up testing after Cornwall

reportedly had an abnormal lumbar spine series. (Tr. 227). A computed tomography (CT) scan was

performed October 3, 2002, and showed a diffuse disc bulge at L3-L4 with mild stenosis; a vacuum

disc phenomenon6

 at L4-L5 with prominent osteophytes and broad-based disc herniation with facet

joint hypertrophy7 that caused significant stenosis; and a broad-based disc protrusion at L5-S1. (Tr.

225).

Cornwall was seen on October 22, 2002 for complaints of numbness in both hands, dizziness

possibly due to low blood pressure, and pain in his neck, back and right foot. (Tr. 222). His

 

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hypertension and atrial fibrillation were noted to be controlled, and his congestive heart failure was

assessed as stable. Additional diagnoses included chronic low back pain and degenerative joint

disease of the cervical and lumbar spine. (Tr. 222). He was given a referral to the orthopedic

department for assessment of his degenerative joint disease, and physical therapy was ordered to

address his low back pain. (Tr. 222). 

Cornwall reported bilateral numbness and weakness in his arms during a follow-up visit on

November 18, 2002. (Tr. 221). His blood pressure was recorded as 158/90 with an irregular heart

rate. An electromyogram of his upper extremities was ordered, but no test results are in the

administrative record. X-rays of his foot and a CT scan of his neck were also ordered, but

subsequently cancelled with a notation that the tests were not warranted. (Tr. 221). Cornwall was

instructed to attend physical therapy and exercise. (Tr. 221).

2. Administrative Hearing

Born February 21, 1946, Cornwall was fifty-six years old on the date of the administrative

hearing. (Tr. 260). He completed high school and his most recent job was delivering automobile

parts. (Tr. 261). He stopped working because he needed surgery, and testified that he had been

consistently ill since having his pacemaker implanted. (Tr. 261).

Cornwall testified that he felt lethargic from his medications, and walking to the bathroom

left him short of breath. (Tr. 263). He testified that he was scheduled to see an orthopedic surgeon

in February for evaluation of his back problems and leg cramps. (Tr. 264-65). 

Cornwall also testified that he experienced numbness in his hands that made it difficult to

write or hold a cup. He also testified that he is dizzy at times, which impairs his ability to drive.

 

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(Tr. 271). He testified that he has difficulty sleeping, and he has daily episodes of a rapid heart beat

that last five to ten minutes until he calms down. (Tr. 270). Cornwall complained of chronic pain

in his right foot, and he described his back pain as excruciating, although medication would numb

the area. (Tr. 268). Cornwall testified that degenerative spinal changes limit his ability to stand, sit

for prolonged periods, or bend over. Sitting more than ten or fifteen minutes causes a backache. (Tr.

277). Cornwall complained of the recent onset of problems with his concentration and memory as

well. (Tr. 271). 

Cornwall testified that, in addition to delivering automobile parts, he has work experience

as a telemarketer and a truck dispatcher. He testified that the telemarketing job was a stressful, highpressure job. (Tr. 273). He testified that dispatching was also a high-pressure job with constant

activity. (Tr. 274). Cornwall also testified that he did not think he could deal with people on a

regular basis. (Tr. 276). Cornwall no longer participated in social activities, nor did he help his wife

with house work or yard work. (Tr. 277). He had asked one of his cardiologists if he could expect

to return to work, but was told to discuss the issue with his primary doctor. (Tr. 281-83).

Vocational expert Shelly Eike also testified. She classified the job of auto parts delivery

person as semiskilled work requiring heavy exertion. Work as a telemarketer is considered

semiskilled, sedentary work, and work as a dispatcher is also semiskilled, sedentary work activity.

(Tr. 286). In response to the ALJ’s questions, Eike testified that a telemarketing job could be

considered stressful due to quota requirements, and the dispatching job could be stressful because

it required problem-solving skills and judgment. (Tr. 286). Eike noted that all of Cornwall’s

previous work had required dealing with people on a frequent or constant basis. (Tr. 287).

 

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8

 Sedentary work involves lifting no more than ten pounds at a time and occasionally lifting or carrying

articles like docket files, ledgers and small tools. 20 C.F.R. §§404.1567(a), 416.967(a). Although a sedentary job is

defined as one which involves sitting, a certain amount of walking and standing is often necessary in carrying out

job duties. 20 C.F.R. §§404.1567(a), 416.967(a). 

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3. ALJ Decision

The ALJ found that Cornwall had not engaged in substantial gainful activity since October

22, 2001 and suffered from severe impairments that included arrhythmia, status post pacemaker, a

history of hypertension and cardiomegaly, degenerative disc disease, and obesity. (Tr. 17). The

ALJ found that none of Cornwall’s impairments or combination of impairments met or equaled the

severity of any listed impairment. (Tr. 17). Instead, the ALJ found that Cornwall retained the

residual functional capacity for a full range of sedentary work activity8

 with no nonexertional

limitations. The ALJ further found that Cornwall’s previous work as a telemarketer and dispatcher

did not require job duties exceeding Cornwall’s residual functional capacity. Accordingly, the ALJ

found Cornwall was not disabled at Step Four of the sequential evaluation process because he was

capable of returning to his past relevant work. (Tr. 17-18).

D. DISCUSSION

Cornwall asserts that the determination that he can perform his past relevant work as a

telemarketer and dispatcher is unsupported by substantial evidence. Cornwall asserts that the ALJ

assessed a residual functional capacity that omits Cornwall’s nonexertional impairments, including

his inability to handle stress, impaired use of his upper extremities, and his need for a sit/stand

option to accommodate his back problems. Cornwall contends that the ALJ intentionally omitted

these limitations after learning that these limitations would prevent Cornwall from returning to his

 

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 One of Cornwall’s physicians completed an insurance form in June 2002 on Cornwall’s behalf and stated

that Cornwall was disabled, (Tr. 229); however, the ALJ found that the boilerplate form was not completed for

medical purposes and was a conclusory statement of disability that did not quantify Cornwal’s actual functional

capabilities. (Tr. 15). See 20 C.F.R. §§ 404.1527(e)(1), 416.927(e)(1). The ALJ identified good reasons for

discounting the value of this statement. See generally 20 C.F.R. §§ 404.1527(d)(2), 416.927(d)(2).

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previous work.

Cornwall contends that he requires a low-stress environment due to his cardiac impairments.

For support, Cornwall relies on reference sources not found in the administrative record that address

the relationship between atrial fibrillation and exposure to stress. (Plf. Br. at 7-8). But no evidence

in the record before the ALJ demonstrates that Cornwall’s particular circumstances warranted a

vocational limitation to avoid stress. Contrary to Cornwall’s testimony during the hearing, his

physicians noted improvement in his cardiac condition after he was given a pacemaker. At various

points in Cornwall’s progress notes, his physicians described his condition as stable, asymptomatic,

and controlled. No physician or other acceptable medical source has opined that Cornwall must be

limited to a low-stress environment.9

Cornwall also testified about restrictions in his ability to use his upper extremities and an

inability to sit for lengthy periods. He asserts that the ALJ erred in finding that his subjective

complaints were exaggerated because there were diagnostic tests that established degenerative

changes in his cervical and lumbar spine. 

The ALJ reviewed the results of the various diagnostic tests contained in the record.

However, the ALJ noted no objective signs of an incapacitating orthopedic impairment, such as

muscle atrophy or grossly abnormal neurological deficits. (Tr. 16). He also found no indication of

intractable pain, such as weight changes, guarding, premature aging, or lifestyle adaptations to

 

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10 The state agency medical consultants who evaluated Cornwall’s disability applications initially and on

reconsideration opined that he could perform light or medium work activity and imposed no additional work-related

restrictions. (Tr. 63-78).

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accommodate the types of restrictions Cornwall described. (Tr. 16). In addition, the ALJ noted that

Cornwall had completed disability forms earlier in the application process and related having no

difficulty sitting. (Tr. 14). The ALJ agreed that Cornwall had some pain and discomfort, but not

to the debilitating degree alleged. Instead, the ALJ found that Cornwall’s complaints could be

accommodated by limiting him to sedentary work.10 Cornwall fails to demonstrate a lack of

substantial evidence to support the ALJ’s residual functional capacity assessment. 

Cornwall also complains that the ALJ failed to ask any hypothetical questions of the

vocational expert, and asserts that he was given no opportunity to correct deficiencies in the ALJ’s

questions and ask his own follow-up questions. The ALJ asked the vocational expert about

particular aspects of Cornwall’s previous work, but did not submit a formal question incorporating

Cornwall’s age, education, work experience and residual functional capacity.

In deciding whether a claimant can return to her past relevant work, an ALJ must make

findings of fact regarding the claimant's remaining residual functional capacity (RFC) and the

physical and mental demands of past relevant work, then the ALJ must compare the two. Latham

v. Shalala, 36 F.3d 482, 484 (5th Cir. 1994). SOCIAL SECURITY RULING 82-62. Social Security

Ruling 82-62 considers the claimant to be the primary source for vocational documentation of past

work, and the claimant’s statements are generally considered sufficient for determining skill level,

exertional demands, and nonexertional demands of past work. Ruling 82-62 also contemplates

acquiring supplementary or corroborative information from other sources, such as employers or the

 

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DOT, regarding the requirements of the work as generally performed nationwide. SOCIAL SECURITY

RULING 82-62. For situations where available documentation and vocational resource materials are

insufficient to determine how a particular job is usually performed, it may be necessary to obtain

the services of a vocational expert. SOCIAL SECURITY RULING 82-61. The ALJ has a duty to

sufficiently develop the record, but the claimant has the burden at Step Four to prove an inability

to perform past relevant work. Villa v. Sullivan, 895 F.2d 1019, 1023 (5th Cir. 1990).

In accordance with the administrative regulations and rulings, the ALJ asked the vocational

expert questions to clarify the skill and exertional levels of Cornwall’s previous work, as well as

expected mental demands. Cornwall has not cited any authority that would require the ALJ to

present a more formal hypothetical question to the vocational expert. In addition, Cornwall was

given the opportunity and took the opportunity to question the vocational expert. (Tr. 287). He

does not specify what additional questions he would have asked of the vocational expert if the ALJ

had submitted a formal hypothetical question during the hearing. 

Cornwall is also critical of the ALJ’s decision to question the vocational expert about issues

of stress, problem-solving, and interacting with others when he ultimately found that none of these

limitations exist. He complains that the ALJ effectively wasted government resources by having

a vocational expert attend the administrative hearing. Cornwall’s complaint does not warrant

disturbing the Commissioner’s decision. Even if it was unnecessary for the ALJ to have a vocational

expert present, Cornwall demonstrates no substantial prejudice to his rights because of the

vocational expert’s presence. See Mays v. Bowen, 837 F.2d 1362, 1364 (5th Cir. 1988)(court will

not vacate administrative decision for procedural imperfections unless substantial rights have been

 

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affected). The Commissioner’s decision is supported by substantial evidence and has not been

shown to be a product of legal error.

RECOMMENDATION

It is recommended that the Commissioner’s decision be affirmed.

NOTICE OF RIGHT TO OBJECT TO PROPOSED

 FINDINGS, CONCLUSIONS AND RECOMMENDATION

 AND CONSEQUENCES OF FAILURE TO OBJECT

Under 28 U.S.C. § 636(b)(1), each party to this action has the right to serve and file specific

written objections in the United States District Court to the United States Magistrate Judge’s

proposed findings, conclusions and recommendation within ten (10) days after the party has been

served with a copy of this document. The court is hereby extending the deadline within which to

file specific written objections to the United States Magistrate Judge’s proposed findings,

conclusions and recommendation until November 15, 2005. The United States District Judge need

only make a de novo determination of those portions of the United States Magistrate Judge’s

proposed findings, conclusions and recommendation to which specific objection is timely made.

See 28 U.S.C. § 636(b)(1). Failure to file by the date stated above a specific written objection to a

proposed factual finding or legal conclusion will bar a party, except upon grounds of plain error or

manifest injustice, from attacking on appeal any such proposed factual findings and legal

conclusions accepted by the United States District Judge. See Douglass v. United Services Auto

Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996)(en banc).

ORDER

Under 28 U.S.C. § 636, it is hereby ORDERED that each party is granted until November

 

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15, 2005 to serve and file written objections to the United States Magistrate Judge’s proposed

findings, conclusions and recommendation. It is further ORDERED that if objections are filed and

the opposing party chooses to file a response, the response shall be filed within seven (7) days of

the filing date of the objections.

It is further ORDERED that the above-styled and numbered action, previously referred to

the United States Magistrate Judge for findings, conclusions and recommendation, be and hereby

is returned to the docket of the United States District Judge.

SIGNED OCTOBER 25, 2005.

 /s/ Charles Bleil 

CHARLES BLEIL

UNITED STATES MAGISTRATE JUDGE

 

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