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

(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.

(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.,

(1st Cir. 1987); see also, e.g., Adams v. Chater,

(10th Cir. 1996); Perez v. Chater,

(2d Cir. 1996); Jones v. Chater,

(8th Cir.

1995); Flaten v. Secretary of H.H.S.,

(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."

(g). The Commissioner's factual findings are conclusive if

12 supported by substantial evidence. Id.; Irlanda-Ortiz v.

Secretary of H.H.S.,

(1st Cir. 1991).

Substantial evidence is "'such relevant evidence as a reasonable

mind might accept as adequate to support a conclusion.'"

Richardson v. Perales,

(1971) (quoting

Consolidated Edison Co. v. N.L.R.B.,

(1938));

see also Rodriquez Pagan v. Secretary of H.H.S.,

(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,

69; Burgos Lopez v. Secretary of H.H.S.,

(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.,

(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.

(f); Keating v. Secretary of

H .H .S .,

(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.

(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.

(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,

(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.

(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.

(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 .,

(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.,

(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,

, 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,

(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.

21