Lopes v. Barnhart

372 F. Supp. 2d 185, 2005 U.S. Dist. LEXIS 10892, 2005 WL 1330450
CourtDistrict Court, D. Massachusetts
DecidedJune 3, 2005
DocketCIV.A. 03-12549-WGY
StatusPublished
Cited by19 cases

This text of 372 F. Supp. 2d 185 (Lopes v. Barnhart) is published on Counsel Stack Legal Research, covering District Court, D. Massachusetts primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Lopes v. Barnhart, 372 F. Supp. 2d 185, 2005 U.S. Dist. LEXIS 10892, 2005 WL 1330450 (D. Mass. 2005).

Opinion

MEMORANDUM AND ORDER

YOUNG, Chief Judge.

I. INTRODUCTION

This action is brought under sections 205(g) and 1631(c)(3) of the Social Security Act, codified at 42 U.S.C. §§ 405(g) and 1383(c)(3). The plaintiff, Everett Lopes (“Lopes”), seeks judicial review of the final decision of the Commissioner of Social Security (the “Commissioner”) denying his application for Disability Insurance Benefits and Supplemental Security Income payments. Lopes argues the hearing officer’s decision was not supported by substantial evidence because it failed to follow the appropriate procedures for the evaluation of pain and credibility and failed to give appropriate weight to the treating source opinions. Pl.’s Mot. for Summ. J. or Alternatively for Remand [Doc. No. 12]; Pl.’s Mem. in Supp. of Mot. for Summ. J. (“Pl.’s Mem.”) [Doc. No. 13]. Lopes requests this Court reverse the Commissioner’s decision with an order for calculation of benefits, or, alternatively, remand the case for proper evaluation of the evidence. The Commissioner filed a motion to affirm the Commissioner’s decision. Def.’s Mot. for Order Affirming Decision of the Commissioner [Doc. No. 14]; Defs Mem. of Law in Supp. of Mot. for Order Affirming Decision of the Commissioner (“Def.’s Mem.”) [Doc. No. 15].

II. BACKGROUND

A. Procedural History

On September 18, 2001, Lopes filed for Disability Insurance Benefits and Supple *187 mental Security Income payments. R. at 81-83. The Commissioner denied Lopes’ application claim on November 21, 2001. Id. at 56-60. Lopes’ request for reconsideration, R. at 61, was denied on January 31, 2002, id. at 62-65, and his request for a hearing was granted and heard on January 22, 2003. Id. at 25-52. The hearing officer denied Lopes’ claim on June 19, 2003 after a review of the evidence and hearing testimony because: 1) Lopes’ assertion of incapacity was inconsistent with the whole record, 2) Lopes is not disabled under the regulations, and 3) Lopes could perform a significant number of jobs in the national economy (including “hand packer, production inspector and assembler in a variety of industries”). Id. at 14-24. Lopes made a timely request for review by the Appeals Council which was denied on October 1, 2003. Id. at 8-9. Therefore, the hearing officer’s decision became the final decision of the Commissioner. Lopes filed an action in this Court on December 31, 2003 to review the decision of the Commissioner pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3). PL’s Compl. at 1. [Doc. No. 3].

B. Factual Background

Lopes was born on February 11, 1965. R. at 279. He completed high school and one year of college. Id. at 107. His previous employment included a boatyard laborer, computer board inspector, telemarketer, cook, warehouse laborer, and (paid) volunteer firefighter. Id. at 102, 114. Lopes applied for disability benefits claiming an inability to sleep, fatigue and pain from lyme disease, heart palpitations, and back problems. Id. at 101; Pl.’s Mem. at 2. Lopes also complained of difficulty being around people and having “no desire to do anything.” R. at 127-128; Pl.’s Mem. at 2.

On January 8, 2002 Lopes completed the Commissioner’s Questionnaire on Pain and Activities of Daily Living stating he lives with his parents and does not cook, do any housework or chores, nor his own shopping. Id. at 122-128. Lopes is transported by family if travel is necessary. Id. He claimed he was in constant pain in his entire body and the pain medication affects his stomach. Id. at 123-124.

1. Medical Evidence

a. Southcoast Hospital Groups (To-bey Hospital, Inc. and St. Luke’s Hospital)

Lopes visited the Southcoast Hospital Groups in January, March, April, and June of 2001 with complaints of fatigue and heart palpitations. R. at 131-187; PL’s Mem. at 4. Lopes had a Holter study 1 in March and June of 2001. Although the March Holter Study reported thirty four minutes and eight seconds of tachycardia, 2 four minutes and fourteen seconds of bra-dycardia, 3 and nineteen late beats, Dr. Bruce Brown reported the March echocar-diogram study was normal. R. at 178; Pi’s Mem. at 4. The discharge instruction *188 sheet recommended using a heating pad, taking Vieodin as needed for pain, ceasing alcohol use, and abstaining from lifting or any physical activity, as well as a follow-up appointment and returning to the hospital if symptoms worsen. R. at 155.

Dr. Jagdish R. Shah concluded the examination was normal on April 12, 2001. Id. at 152. He noted the “the aerated lungs are clear. The heart is normal in size. The hilar and medistinal structures are within normal limits. No bony abnormalities are appreciated.” Id. The discharge instruction sheet from this exam notes a diagnosis of muscular pain and acute alcohol intoxication with instructions “to stop drinking alcohol [as it] can cause heart palpitations [and] many other problems.” Id. at 143. Additionally, heat application was recommended, as was Napro-sin for pain (which is not to be taken during alcohol consumption). Id.

Dr. Daniel Le reported that the June 13, 2001 visit showed there “is no evidence of acute cardiopulmonary disease.” Id. at 140. Dr. Brown opined that the June Holier study was normal. Id. at 131; Pl.’s Mem. at 4. Additionally, the discharge instruction sheet contained four instructions which reiterated: “1) Take your Naprosin instead of alcohol for pain, 2)[s]top abusing alcohol, 3)[f]ollow up with Dr. Brown tomorrow, and 4)[r]eturn for further problems.” R. at 146.

b. Falmouth Free Clinic

In September and October of 2001, Lopes was seen by nurse practitioner Maureen T. McKay, R.N., C.S., A.N.P., at the Falmouth Free Clinic. Id. at 188-197. During the September 6th and 19th visits, Lopes complained of an upset stomach from tetracycline and back pain, while Ms. McKay found that Lopes’ chest was tender to the touch and was experiencing rhonchi, crackling and wheezing. Id. at 189, 193; Def.’s Mem. at 3. Ms. McKay prescribed Toprol with discharge instructions for Lopes to decrease his cigarette smoking and stop his caffeine intake. R. at 193; Def.’s Mem. at 3. During the October 2, 2001 visit, Lopes complained that he “continues to feel achy and sore,” but “palpitations have become less prevalent” and he is “sleeping better.” R. at 188; Pl.’s Mem. at 4.

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Bluebook (online)
372 F. Supp. 2d 185, 2005 U.S. Dist. LEXIS 10892, 2005 WL 1330450, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lopes-v-barnhart-mad-2005.