Lopez v. SSA CV-96-159-M 05/09/97 UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Sterling Lopez
v. Civil No. 96-159-M
Shirley Chater, Commissioner Social Security Administration
O R D E R
Sterling Lopez moves pursuant to 42 U.S.C.A. § 405(g) to
reverse the Commissioner's decision denying him social security
benefits. He asserts that the Commissioner's decision is not
supported by substantial evidence in the record. The
Commissioner moves to affirm the decision. For the reasons that
follow, the Commissioner's decision is affirmed.
BACKGROUND
The parties submitted a joint statement of material facts,
and plaintiff submitted a factual supplement that adds medical
evidence which was included in the administrative record,
although it was generated both prior to and after the relevant
benefits period. Plaintiff, Sterling Lopez, does not dispute
that to be eligible for social security benefits for his present
claim, he had to be disabled from work after March 10, 1988, when a previous social security decision denied him benefits, and
before December 1991, when his insured status expired. Lopez
contends that medical evidence outside of the eligibility period
provides both a "longitudinal picture" and retrospective
diagnosis of his condition during the eligibility period, and so
is relevant to his disability determination.
The "longitudinal picture" referred to by Lopez originates
from a phrase in the Social Security Administration's regulation
describing the benefit of a treating doctor's perspective of an
applicant's condition:
Generally, we give more weight to opinions from your treating sources, since these sources are likely to be the medical professionals most able to provide a detailed, longitudinal picture of your medical impairment(s) and may bring a unigue perspective to the medical evidence that cannot be obtained from the objective medical findings alone or from reports of individual examinations, such as consultative examinations or brief hospitalizations.
20 C.F.R. § 404.1527(d)(2) (1996) (emphasis added). Accordingly,
supplemental medical information may be considered to the extent
it demonstrates that plaintiff's treating physicians also treated
him prior to and after the relevant period, and to the extent it
provides a "longitudinal picture" of his impairments. In
addition, an Administrative Law Judge ("ALJ") may consider
medical evidence from a prior period, but only for the limited
purpose of understanding background facts and cumulative medical
2 history about the claimant. Frustaqlia v. Secretary of H.H.S.,
829 F .2d 192, 193 (1st Cir. 1987).
Retrospective diagnoses (medical opinions of claimants'
impairments which relate back to the covered period) may be
considered only to the extent that such opinions both
substantiate a disability that existed during the eligible period
and are corroborated by evidence contemporaneous with the
eligible period. See Evangelista v. Secretary of H.H.S., 826
F.2d 136, 140 (1st Cir. 1987); see also, e.g., Adams v. Chater,
93 F.3d 712, 714 (10th Cir. 1996); Perez v. Chater, 77 F.3d 41,
48 (2d Cir. 1996); Jones v. Chater, 65 F.3d 102, 103-04 (8th Cir.
1995); Flaten v. Secretary of H.H.S., 44 F.3d 1453, 1457-62 (9th
Cir. 1995). Accordingly, the following is a summary of the
parties' stipulated facts with relevant additional evidence taken
from plaintiff's supplement.
A. Evidentiary Background
Sterling Lopez was forty-eight years old at the time of the
administrative hearing, in August 1994, on his application for
social security benefits. He had a high school education. He
worked at Phillips Andover Academy from 197 9 to 198 6 in
maintenance, which included repair work and installing flooring
materials. He also worked as a cabinet maker from 1977 to 1979.
3 Lopez's first medical treatment for the condition that is
the subject of his application for benefits was provided at the
Exeter Clinic in May 1986. He complained of vertigo and
described seeing flashing lights and other visual disturbances.
In June 1986, he began treating with Dr. Michael Lannon for
vertigo. He was also treated by Dr. Richard Levy, a neurologist,
and Dr. Thomas Hackett, a roentgenologist. Lopez underwent a
series of tests resulting in a primary diagnosis of multiple
sclerosis. Despite various treatments, Lopez continued to suffer
symptoms of vertigo and vision disturbance which kept him from
working.
In December 1986, Lopez began treating with Dr. Stephen
Kott, a neurologist at the Lahey Clinic Medical Center in Boston.
Dr. Kott continued to treat Lopez into 1994. Dr. Kott's initial
diagnosis was that Lopez did not have multiple sclerosis, but was
suffering from migraine headaches and anxiety. Lopez was
examined by Dr. Kveton, an otolaryngologist at Lahey Clinic, in
January 1987. Dr. Kveton noted Lopez's continuing symptoms.
Testing and treatment at the Lahey Clinic continued to focus on
migraines and anxiety, with some concern about other disease
involvement. A cerebral angiogram in June 1987 revealed
narrowing of the vertebral arteries, which was diagnosed as
vertebral basilar insufficiency. In March 1988, Dr. Kott wrote
4 to Lopez and told him that the majority of his symptoms were
related to migraine, stress, and tension.
In April 1988, Dr. Kveton noted in the record that Lopez
complained of severe tinnitus (noise) in his left ear and
occasional tinnitus in his right ear, monthly episodes of a loss
of balance, and trouble reading. Dr. Kveton referred Lopez to
Dr. Jules Friedman at Braintree Hospital for an otoneurology (the
nervous system pertaining to the ear) evaluation in May 1988.
Dr. Friedman's testing showed normal results for Lopez's ear
membranes, canals and hearing, but abnormal results for the
vestibular system indicating a "well-compensated lesion" within
the vestibular system. Dr. Friedman stated that although Lopez's
symptoms were greater than the objective findings of deficit, his
symptoms were typical of the condition, and he suggested
retraining exercises.
In November 1988, Dr. Lannon wrote a letter on Lopez's
behalf to a retirement fund in which he provided his opinion that
while Lopez's diagnosis was uncertain, his symptoms caused him to
be totally disabled.
Dr. Kott examined Lopez again in January 1989 and noted a
prior episode of vertigo along with new symptoms of numbness in
the left foot and hand. Testing revealed no weakness and no
signs of nerve damage or carpal tunnel syndrome, but x-rays
5 showed some degenerative disc disease at the C5-6 level. Dr.
Kott prescribed medications for hypertension, for distress
associated with dizziness, and to control anxiety, as well as
aspirin. Dr. Kott noted that Lopez's symptoms continued in
February along with tendinitis in his right shoulder and periodic
visual disturbances similar to migraine episodes. An MRI of
Lopez's cervical spine showed only a minimal cervical bulge at
C5-6. Dr. Kott's opinion at that time was that Lopez was
disabled.
Lopez was examined by Dr. R. Kirk Bohigian, an
otolaryngologist at Lahey Clinic, in September 1989. At that
time, Lopez complained of persistent vertigo, increased
dizziness, and imbalance. Based on Lopez's history. Dr. Bohigian
diagnosed right vestibular dysfunction. An audiogram test done
in October 1989 was normal.
Also in October, Dr. Kott noted increased freguency of
vertigo which at times was severe enough to cause Lopez to fall
to the ground. He wrote that Dr. Dennis Poe was treating Lopez
for Meniere's disease--hearing loss, tinnitus, and vertigo caused
by disease in the ear labyrinth. Lopez was prescribed medication
for hypertension and for seizures which helped his symptoms. In
November, Dr. Kott reported that Lopez was a bit better and that
a test for blood flow had unremarkable results. Dr. Kott
6 indicated in an attending physician's statement that Lopez was
still totally disabled from work due to a combination of his
impairments, but he suggested training for sedentary work.
In January 1990, Dr. Kott reported that Lopez was
experiencing daily dizziness and had one episode of vertigo
during the month. His vision disturbance and tinnitus was not
active but he complained of headaches. Lopez continued on his
previous medications. Dr. Kott concluded that although Lopez's
symptoms had changed and some were better, he was still disabled
by dizziness and loss of balance. He did not know if the
dizziness and loss of balance was due to anxiety or vestibular
dysfunction.
Dr. Poe examined Lopez again in June 1990 following three
vertigo spells. He diagnosed vertigo caused by right Meniere's
disease, migraines, and vestibular imbalance.
In October 1990, Dr. Kott reported Lopez's symptoms as daily
headaches, vertigo, increased imbalance, light headedness and
blurred vision. His anti-seizure medication was increased to
three doses per day. Dr. Kott's assessment was possible
Meniere's disease, migraines, anxiety, and vertebral artery
stenosis. An MRI scan of the head in November was consistent
with a prior scan done in 1986 showing an old area of atrophy or
7 vascular obstruction on the lower left side with no other
abnormalities.
In February 1991, Dr. Lindsey, an ophthalmologist at Lahey
Clinic, examined Lopez and diagnosed ocular migraines,
nearsightedness, and age-related changes in the eyes. Dr. Kott
reported Dr. Lindsey's findings to Dr. Lannon along with the
other recent diagnoses.
Dr. Poe noted in June 1991 that Lopez's imbalance continued
with moderate vertigo which he thought was probably caused by a
combination of Meniere's disease and vestibular dysfunction.
However, by July 1992, Dr. Poe had revised his diagnosis,
concluding that Lopez had only a migraine complex and not
Meniere's disease, because his symptoms did not arise from the
inner ear.
Dr. Kott examined Lopez in August 1992 finding the same
possible diagnoses as he had previously — migraines, decreased
hearing, vertigo, and possible Meniere's disease. In September,
Dr. Kott completed an attending physician's statement in which he
reported Lopez's various medical conditions and stated that Lopez
was then incapable of minimal sedentary activity. Lopez was
evaluated by the outpatient physical therapy department at Lahey
Clinic in December 1992 on Dr. Kott's referral. The physical
therapist determined that Lopez did not need regular physical therapy and instead could follow a program at home for improving
his balance.
In July and August 1993, Lopez's medical records through
December 1991 were reviewed by two Disability Determination
Services physicians for state benefits eligibility. The first
DDS physician made diagnoses of migraines and vertigo, found no
exertional limitations, but limited work to exclude ladders,
machinery, or working at heights. That opinion was affirmed by
the second DDS physician.
On December 27, 1993, Dr. Kott wrote that he diagnosed
Lopez's symptoms as Meniere's disease, migraines, and anxiety.
In the same letter. Dr. Kott wrote: "I have felt that this
symptom freguency and severity was sufficient to render him
totally disabled. I do not feel there has been any significant
change in his condition and that he still should be considered
disabled because of the above-mentioned conditions." Two months
later Lopez discussed the possibility of working in a janitorial
position with Dr. Kott, and he noted in the record that although
Lopez could try to work, he believed Lopez's symptoms gualified
him for disability benefits.
B. Procedural Background Lopez first filed an application for benefits in October
1986. That application was denied on March 10, 1988, and the
decision was upheld by the Appeals Council. In that decision,
the Commissioner found that Lopez suffered from intermittent
migraine headaches, chronic vertigo, and occasional visual
difficulties, and concluded that he could do sedentary work as
long as he was protected from dangerous machinery and heights.
Lopez filed the present application in July 1993. An
administrative hearing was held in August 1994. The ALJ
determined that the prior decision precluded Lopez's application
for benefits based on disability alleged prior to March 10, 1988.
Lopez's earnings records show that he last met the insured status
reguirement for social security benefits eligibility on December
31, 1991.
Lopez attended the hearing on August 30, 1994, with a
representative and testified that his symptoms had continued
since 198 6, but that there had been some improvement over time.
He said that he experienced vertigo spells, difficulties with
balance, dizziness, migraine headaches, pain in his neck and
shoulder, numbness in his left side, particularly his hand and
foot, visual disturbances, ringing in his ears, and anxiety. The
vertigo episodes, as Lopez described them, were preceded by a
burning sensation on his face and visual disturbances and
10 progressed to an intense high-speed spinning feeling with a loss
of orientation. The vertigo episodes occurred two to three times
per month and lasted for about twenty minutes, but Lopez
testified that he needed between a day and three days to recover
from the resulting weakness and fatigue. Lopez explained that
dizziness was part of his constant balance problem.
Lopez also testified that he had tried to return to work in
July 1994 without success. He worked for two weeks in a school
janitorial job which exacerbated his symptoms so that he had to
resign the position.
With regard to his daily activities, Lopez testified that he
could drive as long as he was feeling well, although night
driving was a problem. He said that he did very few household
chores and rarely went into stores because of difficulty with
imbalance. He said that he attended a church camp with his
family each summer.
The ALJ found that Lopez could not return to his prior work
but that he had not been disabled during the relevant period
between March 1988 through December 1991. In support of his
decision, the ALJ determined that Lopez's description of his
impairments was not entirely credible and that Dr. Kott's
assessment of Lopez's functional capacity was based on Lopez's
subjective complaints rather than objective medical findings and
11 was not supported by other evidence in the record. The ALJ
concluded that Lopez was capable of performing light work that
did not reguire balancing, driving, or operating dangerous
machinery or similar eguipment. The ALJ then referred to the
Medical-Vocational Guidelines ("the Grid") and found that even at
the sedentary exertional level, Lopez was not disabled. 20
C.F.R. Pt. 404, Subpt P, Ap p . 2, §§ 201.27-29; § 201.21;
§ 2 0 1 .22; §§ 2 0 2 .20-2 2 .
The Appeals Council denied Lopez's reguest for a review of
the ALJ's determination in January 1996, making the ALJ's
decision the final decision of the Commissioner. Thereafter, the
present action was filed in this court. Lopez now moves to
reverse the Commissioner's decision on grounds that the decision
is not supported by substantial evidence in the record, and the
Commissioner moves to affirm.
STANDARD OF REVIEW
After a final determination by the Commissioner and upon
reguest by a party, the court is empowered "to enter, upon the
pleadings and transcript of the record, a judgment affirming,
modifying, or reversing the decision of the Secretary, with or
without remanding the cause for a rehearing." 42 U.S.C.A. §
405(g). The Commissioner's factual findings are conclusive if
12 supported by substantial evidence. Id.; Irlanda-Ortiz v.
Secretary of H.H.S., 955 F.2d 765, 769 (1st Cir. 1991).
Substantial evidence is "'such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.'"
Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting
Consolidated Edison Co. v. N.L.R.B., 305 U.S. 197, 229 (1938));
see also Rodriquez Pagan v. Secretary of H.H.S., 819 F.2d 1, 3
(1st Cir.1987).
In making factual findings, the Commissioner must weigh and
resolve conflicts in the evidence, settle credibility issues, and
draw inferences from the record evidence. Ortiz, 955 F.2d at
7 69; Burgos Lopez v. Secretary of H.H.S., 747 F.2d 37, 40 (1st
Cir. 1984). The court will defer to the ALU's credibility
determinations, particularly where those determinations are
supported by specific findings. Frustaqlia, 829 F.2d at 195.
Accordingly, the Commissioner's decision to deny benefits will be
affirmed unless it is based on a legal or factual error.
Manso-Pizarro v. Secretary of H.H.S., 76 F.3d 15, 16 (1st Cir.
1996).
DISCUSSION
The ALJ made his determination that Lopez was not disabled
within the relevant period at the fifth step of the sequential
13 analysis.1 At the fifth step, the burden shifts to the
Commissioner to show that despite the claimant's severe
impairment, he retains the residual functional capacity to do
work other than his prior work and that work the claimant can do
exists in significant numbers in the national and regional
economies. 20 C.F.R. § 404.1520(f); Keating v. Secretary of
H .H .S ., 848 F.2d 271, 276 (1st Cir. 1988). Lopez challenges the
ALJ's determination on three grounds: (1) that the ALJ improperly
discounted the opinions of Lopez's treating physicians; (2) that
the ALJ erroneously found that his testimony was not entirely
credible; and (3) that the ALJ improperly relied on the Grid to
satisfy the Commissioner's burden at step five. Each issue is
examined in turn.
1 The ALJ is reguired to consider the following five steps when determining if a claimant is disabled: (1) whether the claimant is engaged in substantial gainful activity at the time of the claim; (2) whether the claimant has a severe impairment that has lasted for twelve months or had a severe impairment for a period of twelve months in the past; (3) whether the impairment meets or eguals a listed impairment; (4) whether the impairment prevents or prevented the claimant from performing past relevant work; (5) whether the impairment prevents or prevented the claimant from doing any other work. 20 C.F.R. § 404.1520 (1995) .
14 A. Medical Opinions
Lopez is correct that a treating physician's medical opinion
generally is entitled to greater weight than an opinion of a
nonexamining physician. 20 C.F.R. § 404.1527(d). In addition,
there is no guestion that Dr. Kott had a long-term treating
relationship with Lopez and that Dr. Kott is a specialist in
neurology, an appropriate specialty to treat Lopez's condition.
See § 404.1527(d)(1)-(6). Lopez also acknowledges that Dr. Kott,
and Lopez's other treating physicians, had difficulty
ascertaining a consistent medical diagnosis for Lopez's reported
symptoms, but the ALJ nevertheless accepted the diagnoses of
Meniere's disease and vertebral basilar insufficiency, and Lopez
does not suggest that the ALJ rejected other appropriate medical
diagnoses. C f . Weller v. Shalala, 922 F. Supp. 689, 697-98 (D.
Mass. 1996) (ALJ improperly rejected treating physician's medical
diagnosis). The DDS reviewing physicians' assessments, completed
in July and August of 1993, based on all of Lopez's medical
evidence through December 1991, gave diagnoses of migraines and
recurrent vertigo.
The ALJ did not accept Dr. Kott's (or other physicians')
conclusions that Lopez was totally disabled by his symptoms and
conditions. Because the social security disability determination
is the responsibility of the ALJ, opinions of others as to
15 disability may be considered only as evidence of the severity of
a claimant's impairments, and have no other significance in
decision making. 20 C.F.R. § 1527(e). The physician's
statements completed by Dr. Kott in October of 1989 and 1992 do
not specifically address Lopez's exertional limitations — in each
Dr. Kott gives his opinion that Lopez is incapable of even
sedentary activity, but without providing any information about
Lopez's particular strength or mobility limitations. Lopez does
not point to evidence in the record that shows that Dr. Kott, or
any other source, tested or evaluated his exertional abilities.
As the ALJ notes, the record does include a report from the Lahey
Clinic physical therapy department, where Lopez was evaluated for
balance retraining and exercise. The physical therapist
concluded that Lopez's vestibular hypofunction was not related to
his complaints of dizziness and vertigo and that regular physical
therapy was not needed as he could follow a home program to
improve his balance.
The DDS physicians' assessment indicates a residual
functional capacity for all work without exertional limitations
but with nonexertional limitations due to vertigo. The
assessment determined that Lopez's vertigo impairment precluded
jobs which reguired climbing, or heights, or working with
machinery. Assessments by state agency consulting physicians are
16 properly considered as part of the record evidence. 20 C.F.R.
§ 404.1527(f). While a report by a nonexamining doctor that
consists of merely checking boxes on a form to indicate
functional capacity is entitled to little weight, this assessment
also included the physician's evaluative comments, which adds to
its significance. See Berrios Lopez v. Secretary of H.H.S., 951
F .2d 427, 431 (1st Cir. 1991).
Accordingly, the ALJ gave appropriate weight to the treating
physicians' medical opinions and did not err in failing to give
controlling weight to the treating physicians' opinions that he
was "totally disabled." In addition, the ALJ did not interpret
Lopez's medical records himself to determine an RFC, but instead
relied on the assessments provided by both the treating and
consulting physicians. C f . Rivera-Fiqueroa v. Secretary of
H .H .S ., 858 F.2d 48, 52 (1st Cir. 1988) (ALJ's own assessment of
RFC from medical data not substantial evidence).
B. Credibility
The ALJ determined that Lopez's subjective complaints of
impairment were not entirely credible based on the medical and
other record evidence, as well as Lopez's testimony about his
daily activities. Lopez contends that the record supports his
credibility.
17 An ALJ must evaluate a claimant's subject complaints in
light of the Avery factors. Avery v. Secretary of H.H.S., 797
F.2d 19 (1st Cir. 1986). Under Avery, the ALJ was required to
consider: "(1) the nature, location, onset, duration, frequency,
radiation, and intensity of pain; (2) any precipitating or
aggravating factors; (3) the type, dosage, effectiveness and
adverse side-effects of any pain medication; (4) any treatment,
other than medication, for the relief of pain; (5) any
functional restrictions; and (6) the claimant's daily
activities." Pedis v. Chater, No. 95-302-43, 1997 WL 64029, at
*8 (D. Mass. Feb. 11, 1997).
Lopez testified at the hearing, in response to questions
from his representative and the ALJ, about his symptoms and his
activities. The ALJ noted that despite Lopez's description of
his symptoms, including vision disturbances, he continued to
drive and was using a circular saw in September of 1993, which,
the ALJ decided, damaged Lopez's credibility concerning the
disabling nature of his complaints. The physical therapist's
report in December 1992 that Lopez did not need regular physical
therapy for his balance undermined his claim of disabling
impairment in that regard. The ALJ found Lopez's activities of
driving to do errands, light housework, occasional hunting and
fishing, visiting, eating at restaurants, watching television,
18 listening to the radio, and reading, all demonstrated that
Lopez's activities were not significantly changed since the onset
date of March 10, 1988 .2 The ALJ also found no evidence in the
medical record to support exertional limitations on Lopez's
ability to do work and found medical support only for Lopez's
complaint of vertigo two or three times each month (although the
ALJ did not credit Lopez's description of the two or three day
recovery period from each episode). Conseguently, the ALJ
concluded that despite Lopez's subjective complaints he was not
disabled by his claimed impairments.
When a claimant's subjective complaints are appropriately
considered in light of the Avery factors, the credibility
determination is left to the ALJ. Frustaqlia, 829 F.2d at 195.
Accordingly, as the ALJ's credibility findings are properly
supported by the record, they stand.
2 Lopez challenges the ALJ's conclusion that his condition had not changed, perhaps forgetting that the onset date for purposes of this application was not 1986 when Lopez first stopped working, but March 1988, following the previous denial of benefits. In the March 1988 decision, the ALJ stated that the medical evidence established that Lopez had severe migraine syndrome with chronic vertigo and peripheral vestibular neuronitis. At that time, the ALJ found from the evidence submitted by Lopez that he was capable of reading, tying flies for his fishing tackle, and installing plastic insulation on the windows of his home. At the 1994 hearing, Lopez testified that his condition had improved since the ALJ's unfavorable decision in 1988.
19 C. Use of the Grid
The Grid is not an appropriate shortcut for the vocational
aspect of the Commissioner's burden at step five when a
claimant's nonexertional limitations are significant. See
Heggartv v. Sullivan, 947 F.2d 990, 996 (1st Cir. 1991). In this
case, however, the ALJ found that Lopez's credible impairment,
related to vertigo episodes occurring two or three times a month
and lasting for twenty minutes each, did not significantly
restrict his ability to do the full range of light work. The ALJ
then used the Grid to determine that jobs existed that he could
perform either at that exertional level or at the sedentary
level. Given the ALJ's credibility determination limiting the
scope of Lopez's subjective complaints, Lopez's argument that his
vertigo is a significant nonexertional limitation on his ability
to work is misplaced.
As substantial evidence exists in the record to support the
ALJ's determination that Lopez is able to perform work at the
light work or sedentary exertional levels as provided in the
Grid, the ALJ's conclusion that Lopez was not disabled within the
relevant period is affirmed.
CONCLUSION
20 For the foregoing reasons, Lopez's motion to reverse the
Commissioner's decision (document no. 7) is denied, and the
Commissioner's motion to affirm (document no. 10) is granted.
The clerk of court is directed to close the case.
SO ORDERED.
Steven J. McAuliffe United States District Judge
May 9, 1997
cc: Raymond J. Kelly, Esg. David L. Broderick, Esg.