Filed: Mar. 10, 2006
Latest Update: Mar. 02, 2020
Summary: Opinions of the United 2006 Decisions States Court of Appeals for the Third Circuit 3-10-2006 Titterington v. Comm Social Security Precedential or Non-Precedential: Non-Precedential Docket No. 05-2676 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2006 Recommended Citation "Titterington v. Comm Social Security" (2006). 2006 Decisions. Paper 1454. http://digitalcommons.law.villanova.edu/thirdcircuit_2006/1454 This decision is brought to you for free and
Summary: Opinions of the United 2006 Decisions States Court of Appeals for the Third Circuit 3-10-2006 Titterington v. Comm Social Security Precedential or Non-Precedential: Non-Precedential Docket No. 05-2676 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2006 Recommended Citation "Titterington v. Comm Social Security" (2006). 2006 Decisions. Paper 1454. http://digitalcommons.law.villanova.edu/thirdcircuit_2006/1454 This decision is brought to you for free and o..
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Opinions of the United
2006 Decisions States Court of Appeals
for the Third Circuit
3-10-2006
Titterington v. Comm Social Security
Precedential or Non-Precedential: Non-Precedential
Docket No. 05-2676
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2006
Recommended Citation
"Titterington v. Comm Social Security" (2006). 2006 Decisions. Paper 1454.
http://digitalcommons.law.villanova.edu/thirdcircuit_2006/1454
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 05-2676
JAMES R. TITTERINGTON,
Appellant
v.
JO ANNE B. BARNHART, COMMISSIONER
OF SOCIAL SECURITY
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
D.C. Civil 04-cv-00117E
District Judge: The Honorable Sean J. McLaughlin
Submitted Under Third Circuit LAR 34.1(a)
February 10, 2006
Before: SCIRICA, Chief Judge, BARRY and FISHER, Circuit Judges
(Opinion Filed: March 10, 2006 )
OPINION
BARRY, Circuit Judge
James Titterington is forty-four. He worked in a variety of skilled and semi-skilled
mechanical and construction jobs between 1977 and 2001. In December 2000, he began
to suffer from dizziness and fainting, medically known as syncope. An Administrative
Law Judge (“ALJ”) in the Social Security Administration (“SSA”) held that Titterington
was not entitled to disability insurance benefits (“DIB”) and supplemental security
income benefits (“SSI”), a decision upheld by the District Court. The ALJ’s
determination that Titterington was not disabled within the meaning of the Social Security
Act was supported by substantial evidence. Accordingly, we will affirm.
I.
Because we write for the parties, we omit a discussion of facts not relevant to our
disposition of this appeal. Titterington, who has smoked a pack of cigarettes a day since
the age of sixteen, has a severe cough. On New Year’s Eve in 2000, he fainted during a
coughing episode and fell, hitting a counter and injuring his nose. Over the next two
years, Titterington saw at least six doctors and underwent dozens of tests to determine the
etiology of his increasingly frequent syncopal episodes, which now average two to three
per week.1 The syncope has never been reproduced clinically and none of the doctors has
1
Tests administered to Titterington included physical exams, cranial nerve exams,
Holter monitor, event monitor, tilt table test, treadmill stress test, nerve conduction study,
echocardiogram, CT chest scan, duplex carotid sonography, MRI, MRA, MRV, EKG,
EMG, EEG, spinal tap, transcranial doppler ultrasound, and chest x-ray. The tests were all
negative for any condition that could generate Titterington’s syncope. The tests did reveal
a benign adenopathy in the mediastinum and/or pulmonary hilus, congenital anisocoria,
and the possibility of hyperkinetic heart syndrome, emphysema, and asthma. Titterington
does not contend that these conditions render him disabled other than through his
syncope.
2
been able to produce a definitive diagnosis of its etiology or a therapy guaranteed to
eliminate it. None of the many drugs Titterington has been prescribed has significantly
affected his syncope.2
All of the information about the actual symptoms of the syncope was provided by
Titterington to his doctors. In addition to the initial fall, particularly severe incidents have
included an automobile accident in which his car went off an embankment, a triple
fracture of his right zygomatic arch (repaired in an outpatient procedure), and a fall in his
bathroom that broke the fiberglass fixtures there. During his syncopal episodes, he feels
off-balance and sees fuzzy red spots before losing consciousness. When he awakes, he is
disoriented and exhausted and often has a severe headache. Sometimes he can tell when
an episode is coming; at other times episodes come on without warning. At first, his
syncopal episodes followed coughing spells. Most still do. According to Titterington,
however, a third of his syncopal episodes are not associated with coughing. He stated to
one doctor that he had been able to avoid passing out by sitting down when he felt
lightheaded. He also reported sleep problems. At his doctors’ advice, he stopped
working in March 2001 and stopped driving in December 2001.
Titterington has primarily seen Joseph Gent, M.D., an internist, for diagnosis and
treatment of his syncope. In January 2001, Dr. Gent believed that the initial episode was
2
His doctors have recommended two antibiotics, a bronchodilator, an anti-
inflammatory agent, an anti-allergen, a cough suppressant, decongestants, a beta-blocker,
painkillers, an anti-migraine drug, an anti-acid reflux drug, and support stockings.
3
cough-induced and diagnosed Titterington with bronchitis. In May 2001, Dr. Gent
diagnosed with him “syncope secondary to cough.” In August 2001, Dr. Gent believed
that Titterington’s syncope was caused by his cough, that suppressing the cough would
suppress the syncope, and that Titterington was capable of suppressing the cough. In
December 2001, Dr. Gent assessed him as having “syncopal episodes” and vertigo but
still did not know the etiology of the syncope. Dr. Gent diagnosed a respiratory infection
and rhinitis in April 2002 and bronchitis in May 2002, which cleared up after treatment
with antibiotics. Also in May 2002, Dr. Gent advised Titterington to quit smoking. In
September and October 2002, Dr. Gent again concluded that the syncope’s etiology was
unknown.
Dr. Gent referred Titterington to James McLaughlin, D.O., a neurologist, who
diagnosed a cough and syncope in March 2001, and in December 2001 found “syncopal
episodes associated with cough.” Dr. McLaughlin “continue[d] to feel that this is likely
cough syncope.” Also in 2001, Dr. Gent referred Titterington to Manuel Forero, M.D., a
cardiologist. Dr. Forero conducted a number of tests but did not reach a more definite
diagnosis than “syncope.”
In 2002, Dr. Gent referred Titterington to the Cleveland Clinic for testing.
Titterington first met with Robert Shields, M.D., a neurologist. Dr. Shields evaluated
Titterington’s condition as consistent with neurocardiogenic syncope, although the
disorientation and headache suggested seizure or migraine. Another doctor at the
4
Cleveland Clinic, F.M. Fouad-Tarazi, M.D., diagnosed him with “syncopal spells
probably neurocardiogenic some induced by cough,” chronic obstructive pulmonary
disorder (“COPD”) induced by smoking, and headaches. A third doctor at the Cleveland
Clinic, Georges Juvelekian, M.D., diagnosed syncope, partly cough-induced, with the
cough exacerbated by COPD, post-nasal drip, and gastroesophageal reflux disease. He
told Titterington to stop smoking. Dr. Shields’s October 23, 2002 letter summarizing the
results of the Cleveland Clinic tests ruled out several causes for the syncope, found that
the episodes were most often cough-induced neurocardiogenic syncope, and stated that
controlling the cough would help.
Dr. Gent completed a Residual Functional Capacity (“RFC”) evaluation indicating
that Titterington could work for four days in a week but not a full-time week, and could
not work at substantial and gainful employment. Specifically, he indicated that
Titterington: could sit, stand, walk, or sit/stand combined for less than two hours each in
the work day; could lift and carry up to ten pounds a third of the day and twenty pounds
less than a third of the day; could not crawl, climb, or reach above shoulder level; could
bend and squat for less than a third of the day; could be exposed to changes in
temperature and humidity; and could not be exposed to heights, machinery, driving, dust,
fumes, or gasses.
A state-conducted RFC evaluation in March 2002 found Titterington capable of
full-time work. It indicated that Titterington could occasionally climb stairs and
5
frequently stoop, kneel, crouch, and crawl, but should never be required to climb a ladder
or balance and should avoid exposure to fumes and hazards. It found no exertional
limitations. A state review found no medically determinable mental impairments.
II.
Titterington applied for DIB and SSI on February 20, 2002, with a protective filing
date of January 18, 2002. He claimed that he had been disabled as of March 3, 2001.
The SSA denied his application on April 2, 2002, and he requested a hearing.3 A hearing
was held by the ALJ on November 13, 2002. Titterington testified to substantially the
same symptoms he had described to his doctors. He has two to three spells a week in
which he loses consciousness; most but not all are cough-related. He continues to smoke
a pack of cigarettes daily. A vocational expert also testified that an individual unable to
perform work above a light exertional level or to be exposed to hazards could not fulfill
the work requirements of any of Titterington’s past jobs. An individual who could
perform only unskilled sedentary work could nonetheless work as a cashier, alarm
monitor, or hand packer. Finally, an individual with dizzy spells two to three times a
week (each requiring the individual to be off task between thirty minutes and two hours)
could not perform any job in the national economy on a full-time basis.
The ALJ issued a written decision on February 14, 2003 denying Titterington’s
3
Titterington’s application was processed under a test program that did not provide for
an agency reconsideration between the initial determination and the hearing. See 20
C.F.R. §§ 404.906(b)(4), 416.1406(b)(4).
6
application and finding him not disabled. The Appeals Council received additional
evidence and denied his request for review on March 12, 2004. Titterington brought suit
in the United States District Court for the Western District of Pennsylvania, and cross
motions for summary judgment were filed. On February 18, 2005, a magistrate judge
issued a report and recommendation that the decision of the ALJ be affirmed. The
District Court reviewed the record, adopted the recommendations of the report, and
granted the government’s motion for summary judgment in an order dated March 24,
2005. Titterington filed a timely notice of appeal.
III.
The District Court had jurisdiction under 42 U.S.C. § 405(g). We have
jurisdiction under 28 U.S.C. § 1291. The decision of the ALJ must be supported by
substantial evidence. 42 U.S.C. § 405(g); Markle v. Barnhart, 324 F.3d 182, 187 (3d Cir.
2003). “Substantial evidence ‘does not mean a large or considerable amount of evidence,
but rather such relevant evidence as a reasonable mind might accept as adequate to
support a conclusion.’” Hartranft v. Apfel,
181 F.3d 358, 360 (3d Cir. 1999) (quoting
Pierce v. Underwood,
487 U.S. 552, 565 (1988)).
IV.
The Social Security Act defines a disability as the “inability to engage in any
substantial gainful activity by reason of any medically determinable physical or mental
impairment which can be expected to result in death or which has lasted or can be
7
expected to last for a continuous period of not less than 12 months.” 42 U.S.C. §
423(d)(1)(A). Substantial gainful activity includes not just the claimant’s former work
but “any other kind of substantial gainful work which exists in the national economy.” Id.
§ 423(d)(2)(A). A “physical or mental impairment is an impairment that results from
anatomical, physiological, or psychological abnormalities which are demonstrable by
medically acceptable clinical and laboratory diagnostic techniques.”
Id. § 423(d)(3). The
claimant bears the burden of establishing a disability.4 20 C.F.R. §§ 404.1512, 416.912.
Disability determinations are evaluated using a five-step process. 20 C.F.R. §§
404.1520, 416.920. The ALJ must determine: (1) whether the claimant is currently
engaged in substantial gainful activity; (2) if not, whether the claimant has a severe
medically determinable impairment; (3) if so, whether the impairment meets or equals one
of the listings in 20 C.F.R. pt. 404 subpt. P, app. 1; (4) if not, whether the claimant’s
residual functional capacity permits him to perform his past work; and (5) if not, whether
the claimant’s RFC, age, education, and work experience permit him to perform any other
work that exists in the national economy in substantial numbers. Id.; Sykes v. Apfel, 228
F.3d 259, 262-63 (3d Cir. 2000).
4
Although the burden shifts to the Commissioner to show that other jobs that the
claimant could perform exist in significant numbers in the national economy, Rutherford
v. Barnhart, 399 F.3d 546, 551 (3d Cir. 2005), Titterington does not contend that the
Commissioner failed to show that significant numbers of appropriate jobs existed for one
with the residual functional capacity the ALJ determined that Titterington had. He
challenges only the ALJ’s determination of the RFC itself.
8
At step one, the ALJ found that Titterington was not engaged in substantial gainful
activity. At step two, the ALJ found that Titterington’s syncope was severe.5 At step
three, the ALJ found that Titterington’s condition was not severe enough to meet or equal
any of the listed impairments. Neither party challenges the findings at the first three
steps.
Before proceeding to step four, the ALJ determined Titterington’s RFC. The ALJ
discussed both Dr. Gent’s opinion that Titterington could not engage in full-time work
and the state agency’s opinion that Titterington had no exertional limitations. The ALJ
discounted the state agency’s opinion because it was produced by an adjudicator, not a
medical expert. He found that Titterington could perform full-time sedentary work, but
could not be exposed to hazards such as heights or dangerous machinery, and could not
be exposed to poor ventilation, or extremes of dust, humidity, or temperature. See 20
C.F.R. §§ 404.1568(a), 416.968(a), 416.967(a).
Titterington objects on two grounds to the finding that he was capable of
performing full-time sedentary work. He argues, first, that the ALJ incorrectly
concluded, without substantial evidence, that his syncope was entirely cough-induced.
Because a cough-induced syncope could be controlled by controlling the underlying
cough, the ALJ concluded that it would not prevent Titterington from performing
5
The ALJ also found that Titterington’s headaches were not severe, a finding
Titterington challenged before the District Court but not in the present appeal.
9
sedentary work. Titterington argues, however, that a third of his syncopal episodes are
not cough-induced and are, therefore, uncontrollable. He claims that the ALJ improperly
ignored the uncontradicted testimony of numerous doctors that the syncope has unknown
etiology and that many of the syncopal episodes were not induced by coughing.
The ALJ’s diagnosis of cough-induced syncope was supported by substantial
evidence. Titterington continues to smoke a pack of cigarettes per day. He concedes that
the substantial majority of his syncopal episodes are cough-induced. His syncope has
never been clinically observed, despite extensive testing. Diagnoses that his syncope has
unknown etiology do not prove that it has a cause other than his cough. His doctors’
reports of non-cough-induced syncopal episodes consist of nothing more than their
repetitions of what he reported to them. Further, because the burden of proof to establish
his disability rests with Titterington, the lack of specific etiological diagnoses makes it
more difficult, not easier, for him to meet that burden. The above factors, discussed by
the ALJ, constitute substantial evidence for his finding that Titterington’s syncope was
cough-induced.
Titterington also argues that the ALJ improperly discounted Dr. Gent’s finding of
disability. He claims that Dr. Gent’s finding that he could not perform full-time sedentary
work was not considered by the ALJ. He further claims that the only finding that he
could perform sedentary work came from the state agency, a source the ALJ discounted.
Accordingly, Titterington argues that the ALJ erred in his finding that his RFC included
10
sedentary work.
Again, this finding was supported by substantial evidence. The ALJ considered
and discussed Dr. Gent’s opinion but found that the disability finding therein was based
on Titterington’s syncope. The ALJ’s diagnosis of cough-induced syncope provided a
principled basis to depart from Dr. Gent’s findings. The ALJ’s RFC finding addressed
Dr. Gent’s principal concerns. Indeed, in restricting Titterington to sedentary work,
rather than light work, it went further in some respects than Dr. Gent had gone. There is
no legal requirement that a physician have made the particular findings that an ALJ
adopts in the course of determining an RFC. Surveying the medical evidence to craft an
RFC is part of the ALJ’s duties. A reasonable factfinder, considering the evidence in the
record, could well have agreed with the ALJ that Titterington could perform sedentary
work.
At step four, the ALJ concluded that Titterington’s condition prevented him from
returning to his past work. Relying on the vocational expert’s testimony, the ALJ
concluded that Titterington’s past work was not sedentary and that his work skills did not
transfer to work within his RFC. At step five, the ALJ concluded that Titterington’s RFC
did allow him to work at jobs that existed in significant numbers in the national economy.
Applying medical-vocational rule 201.28 of 20 C.F.R. pt. 404 subpt. P. app. 2 and the
testimony of the vocational expert, he found that an individual of Titterington’s age,
education, work experience, and RFC could perform work as a cashier, alarm monitor, or
11
hand packer, jobs with a total of 725,000 jobs in the national economy. He, therefore,
concluded that Titterington was not disabled. Titterington does not dispute that the
conclusions at steps four and five were justified given the ALJ’s assessment of his RFC.
Because that assessment was supported by substantial evidence, so also was the
determination that Titterington was not disabled.
We will uphold the Commissioner’s determination and affirm the judgment of the
District Court.
12
