                                                                                                                           Opinions of the United
2009 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


1-14-2009

Mark Bonanno v. Comm Social Security
Precedential or Non-Precedential: Non-Precedential

Docket No. 08-1709




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                                                      NOT PRECEDENTIAL

             UNITED STATES COURT OF APPEALS
                  FOR THE THIRD CIRCUIT


                            No. 08-1709


                       MARK BONANNO,
                                  Appellant

                                 v.

            COMMISSIONER OF SOCIAL SECURITY




           On Appeal from the United States District Court
                    for the District of New Jersey
                   (D.C. Civil No. 07-cv-02744)
              District Judge: Hon. Susan D. Wigenton




             Submitted Under Third Circuit LAR 34.1(a)
                         January 12, 2009

       Before: SLOVITER and BARRY, Circuit Judges,
                and POLLAK * , District Judge

                      (Filed: January 14, 2009)




                             OPINION



       *
        Hon. Louis H. Pollak, Senior Judge, United States District
Court for the Eastern District of Pennsylvania, sitting by
designation.
SLOVITER, Circuit Judge.

        Appellant Mark Bonanno appeals the order of the United States District Court

affirming the Commissioner’s denial of his claim for Supplemental Security Income

(“SSI”). The Commissioner found that although Bonanno was unable to return to his past

relevant work, he was able to perform other work that exists in the national economy. We

will affirm.

                                              I.

        Because the parties are familiar with the facts and the record, we need not discuss

them in detail. Bonanno was forty-four years old when he filed his SSI application, and

he thus qualified as a “younger individual ages 18-44” until July 28, 2005; he now falls

within the “younger individual ages 45-49” class for purposes of the Medical-Vocational

Guidelines. Tr. at 16; 20 C.F.R. pt. 404, subpart P, app. 2. He has a high school

education and worked as a car service driver from 1999 until December 2003, when his

employer went out of business. Bonanno applied for SSI benefits in November 2004,

claiming that his heart condition causes him to be so weak and fatigued that he cannot

work.

        His cardiologist, Dr. Domenic Mariano, submitted a report dated December 2004

stating that Bonanno’s heart had an ejection fraction of fifteen to twenty percent, and that

he was limited in lifting and carrying and pulling, but not limited in standing, walking or

sitting. He also reported that Bonanno did not have chest discomfort. In March 2006, Dr.



                                              2
Mariano estimated that Bonanno would be disabled due to his heart condition for at least

twelve months.

       Dr. Michael Pollack, the government’s consulting cardiologist, examined Bonanno

and reported that Bonanno’s heart exhibited “regular rate and rhythm” and that his heart

and lungs were clear of numerous other abnormalities. Tr. at 131. Dr. Pollack also

reported that Bonanno’s coordination was intact and that he had full range of motion.

       At his ALJ hearing on July 18, 2006, Bonanno testified that he suffered from

constant fatigue, stress, shortness of breath, nosebleed, daily headaches, lack of appetite,

diarrhea and frequent urination. He testified that he could sit for about an hour before he

gets “crampy” and his legs “fall asleep,” Tr. at 185, but admitted that he was able to drive

about two miles to his parents’ home, shop, cook, watch television, and play on the

computer.

       After the hearing, Dr. Mariano reported that although Bonanno’s ejection fraction

increased from ten percent to thirty percent, Bonanno could lift and carry less than ten

pounds, could stand and/or walk “at least 2 hours” and sit “less than 6 hours.” Tr. at 155-

56. He nonetheless concluded that Bonanno was “severely debilitated.” Tr. at 154.

       The ALJ, after proceeding along the required five-step sequential analysis, see 20

C.F.R. § 416.920(a), concluded that: (1) Bonanno has not engaged in substantial gainful

activity since May 6, 2004; (2) Bonanno has severe impairments, including

cardiomyopathy, congestive heart failure, obesity, and hypertension; (3) Bonanno “does



                                              3
not have an impairment or combination of impairments that meets or medically equals

any of the listed impairments in 20 C.F.R. Part 404 Subpart P Appendix 1;” (4) Bonanno

“has the residual functional capacity to perform work involving lifting and carrying

objects weighing up to ten pounds; sitting up to six hours, and standing and walking up to

two hours in an eight-hour day; and the full range of sedentary work;” but “is unable to

perform any past relevant work;” and (5) “[c]onsidering [Bonanno’s] age, education,

work experience, and residual functional capacity, there are jobs that exist in significant

numbers in the national economy that [he] can perform.” Thus, the ALJ concluded that

Bonanno is not under a “disability” as defined by the Act. Tr. at 13-17.

       The Appeal Council denied Bonanno’s request for review of the ALJ decision, and

the District Court affirmed the Commissioner’s decision to deny benefits.

                                             II.

       We review the Commissioner’s factual findings to determine if they were based on

substantial evidence. 42 U.S.C. § 405(g); Knepp v. Apfel, 204 F.3d 78, 83 (3d Cir.

2000).1

                                            III.

       The ALJ’s findings at step one and two are not disputed. However, Bonanno

challenges the ALJ’s finding at step three that his impairment does not meet or equal a




                    1
                     The District Court had jurisdiction under 42 U.S.C. §§
            405(g), 1383(c)(3). We have jurisdiction under 28 U.S.C. § 1291.

                                              4
listed impairment. The ALJ found that Bonanno’s impairment “does not ‘very seriously

limit the ability to independently initiate, sustain, or complete activities of daily living.’”

Tr. at 13 (quoting 20 C.F.R. pt. 404, subpart P, app. 1, listing 4.02.B.1).

       Bonanno insists that the ALJ should have consulted a medical expert prior to

finding that his impairments did not meet the listed impairments. The relevant regulation

provides that the ALJ “may,” but is not required to, consult medical experts. 20 C.F.R.

416.927(f)(2)(iii). Social Security Administration policy directs the ALJ to obtain an

updated medical opinion “when additional medical evidence is received that in the

opinion of the [ALJ] . . . may change the State agency medical . . . consultant’s findings.”

Soc. Sec. R. 96-6p (1996) (emphasis added).

       Bonanno alleges that the ALJ ignored relevant medical evidence and made his own

medical judgment. The ALJ may not reject pertinent or probative evidence without an

explanation. Johnson v. Comm’r of Soc. Sec., 529 F.3d 198, 204 (3d Cir. 2008).

Although the treating physician’s opinion is generally given controlling weight, that

opinion is entitled to controlling weight only when it is “well-supported by medically

acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the

other substantial evidence in [the claimant’s] case record.” 20 C.F.R. § 404.1527(d)(2).

The ALJ is required to choose between medical evidence that is conflicting. Cotter v.

Harris, 642 F.2d 700, 705 (3d Cir. 1981).

       The ALJ determined that Dr. Mariano’s opinion did not warrant controlling weight



                                               5
because it was undermined by other medical evidence indicating that Bonanno’s

condition improved within a short period of time after treatment. In order to qualify for

SSI, the applicant’s impairment must be expected to last for a period of “not less than 12

months.” 42 U.S.C. § 423(d)(1)(A). An echocardiogram performed on October 28, 2004,

revealed that Bonanno’s “pulmonary artery pressure [was] severely elevated” and “[his]

ejection fraction was 15% to 20%.” Tr. at 111. On February 22, 2005, a catheterization

performed showed an improved ejection fraction of thirty percent, that his arteries were

“free of disease,” and that he had “normal coronaries” and “good ventricular function.”

Tr. at 148. Moreover, in August 2006, Bonanno’s ejection fraction remained at thirty

percent. Thus, the ALJ’s finding that Dr. Mariano’s prognosis was incompatible with

Bonanno’s rapid improvement was based on substantial evidence, and the ALJ correctly

concluded at step three that Bonanno’s impairments did not meet or equal a listed

impairment.

       Furthermore, the ALJ found that Dr. Mariano’s assessment was inconsistent with

Bonanno’s own “testimony that he is able to perform activities on a daily basis which are

at least equal to a sedentary level of work activity.” Tr. at 16. Hence, the record provides

substantial evidence to support the ALJ’s finding that Bonanno was able to perform

sedentary work, notwithstanding his obesity, moderate shortness of breath, and fatigue.

       Bonanno asserts that it was a legal error for the ALJ to rely exclusively on the

medical vocational guidelines. The Commissioner is precluded from relying solely on the



                                             6
guidelines only if the claimant has both exertional and non-exertional impairments.

Sykes v. Apfel, 228 F.3d 259, 266-67 (3d Cir. 2000). However, the ALJ found no non-

exertional impairment. Here, the reports of Drs. Mariano and Pollack support the ALJ’s

finding that Bonanno had no non-exertional limitations and, therefore, the ALJ properly

relied on the guidelines.

                                           IV.

       For the above-stated reasons, we will affirm.




                                            7
