Lindahl v. SSA CV-02-400-B 08/21/03

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Scott C . Lindahl

v. Civil N o . 02-400-B Opinion N o .

Jo Anne Barnhart, Commissioner, Social Security Administration

MEMORANDUM AND ORDER

Scott Lindahl first applied for disability insurance

benefits (“DIB”) and Supplemental Security Income in November

1995. His applications were denied. He refiled a new

application for DIB in November 1999, alleging a disability since

October 1996. After this application was denied initially and

upon reconsideration, Lindahl requested a hearing before an

administrative law judge (“ALJ”). ALJ Robert S . Klingebiel

presided over a hearing held March 1 5 , 2001 and, on June 2 6 ,

2001, issued a decision denying Lindahl’s application.

Pursuant to

(g) (1991 & Supp. 2002 ) , Lindahl

seeks judicial review of the Commissioner of the Social Security

Administration’s (“SSA”) decision denying his 1999 application.

Lindahl moves to reverse Commissioner’s decision arguing that it is not supported by substantial evidence in the record. (Doc. N o .

9 ) . Specifically, Lindahl contends that the ALJ erred by: (1)

declining to hear corroborating testimony from Lindahl’s ex-wife;

and (2) indicating that he would consider a consultative

examination paid for by the government if he could not find in

Lindahl’s favor. Lindahl also makes a general, unspecified

challenge that the medical evidence clearly justifies finding

Lindahl disabled. The Commissioner moves to affirm the decision.

(Doc. N o . 1 1 ) .

I. BACKGROUND

A. Education and Work History

At the time of the hearing before the ALJ, Lindahl was 45

years old. Lindahl received a General Educational Development

diploma (“GED”) which is a high school equivalency certificate

awarded after passing an examination. Prior to 1995, Lindahl

worked primarily as an auto body repairman. After 1995, Lindahl

worked in varying capacities, but he did not work continuously

for any significant amount of time.

-2- B. Medical Evidence

By means of an overview, Lindahl’s medical problems consist

of: pain related to fibromyalgia; mild sleep apnea; fatigue;

depression; diminished mental capacity; and a personality

disorder. He also has a history of drug abuse and recurrent

alcoholism, but has been sober since 1997.

In 1995, Lindahl complained of pain in his side and constant

fatigue. Lindahl underwent a sleep study which indicated he

suffered from sleep apnea. In May 1995, James Bartels, M.D.,

indicated that Lindahl suffered from obstructive sleep apnea.1

Dr. Bartels noted that CPAP2 or surgical treatment may alleviate

the effects of obstructive sleep apnea.

Lindahl visited psychiatrist Paul Harris, Ph.D, for a

psychological evaluation in May 1996. Lindahl informed D r .

Harris that he was unemployed and did not feel that he was

1 Obstructive Apnea- a sleep apnea resulting from collapse or obstruction of the airway with the inhibitation of muscle tone that occurs during REM sleep. Dorland Illustrated Medical Dictionary, (“Dorlands”) page 106 (28th ed. 1994). 2 CPAP is an abbreviation for “continuous positive airway pressure,” a non-surgical treatment for sleep apnea that requires a patient to wear a special mask that regulates air pressure in the nose and throat as he or she sleeps.

-3- capable of work because of his fatigue and memory problems. D r .

Harris recommended further neurological testing, but indicated

that if permanent neurological damage is ruled out, Lindahl is

likely capable of “average level work.” (Transcript at 170)

(hereinafter “Tr.”).

In November 1996, Bennett Slotnick, Ph.D., conducted a

neuropsychological evaluation as recommended by D r . Harris. D r .

Slotnick noted that Lindahl’s IQ placed him in the upper portion

of the low average range of intellectual ability; however,

Lindahl fell in the low average range in social judgment. Dr.

Slotnick opined that his fatigue was “the primary culprit

responsible for his [attention] difficulty.” (Tr. 2 1 4 ) . Dr.

Slotnick concluded that there was “no evidence of

neurodevelopmental learning disability” and therefore opined that

a diagnosis of attention deficit disorder was inappropriate.

(Tr. 2 1 8 ) . In addition, D r . Slotnick found that given his

fatigue level and pain complaints, Lindahl did not appear to be a

candidate for resuming regular employment; however, “should he

desire t o . . . resume regular employment, work in the area of

auto body would seem the most appropriate.” (Tr. 2 1 9 ) .

In early December 1996, Lindahl visited Lorenzo Gallon,

-4- M.D., complaining of headaches, joint pain, fatigue and also

suicidal ideation. Lindahl informed D r . Gallon that he did not

try to kill himself, but he has been hallucinating. D r . Gallon

prescribed medication for his pain and indicated that Lindahl

should visit a psychiatrist. A month later, D r . Gallon examined

Lindahl after a “negative work-up for chronic fatigue.” (Tr.

186). D r . Gallon prescribed Zoloft and Trazadone, both

antidepressants and opined that his fatigue may be due to

depression. D r . Gallon also indicated that Lindahl should avoid

work that involved neck strain because X-rays indicated

degenerative disc disease at C5-6.

Over a year later, in April 1997, Lindahl underwent a trial

of CPAP therapy for his sleep disorder. David P. White, M.D.,

conducted the trial and noted that while Lindahl had some trouble

adjusting the CPAP mask, CPAP therapy permitted Lindahl to sleep

properly. D r . White indicated that Lindahl should utilize this

therapy as it is helpful for his “mild sleep apnea,” but that if

Lindahl found CPAP intolerable, Lindahl could try other

therapies. That same month, Lindahl underwent yet another

psychiatric evaluation. Lindahl indicated that he recently

began a part-time job. D r . Potenza conducted the evaluation and

-5- noted that “a diagnosis could not be determined due to the fact

that [Lindahl] is a poor historian and somewhat withholding.”

(Tr. 2 2 5 ) .

A month later, in May 1997, Lindahl complained of neck,

shoulder and back pain, numbness and tingling. Patricia

Daigneault, M.D., noted that Lindahl was a walk-in requesting

percocet. After examining Lindahl, D r . Daigneault found a normal

range of motion and strength. She prescribed motrin and informed

Lindahl to discontinue his use of naprosyn, an anti-inflammatory.

Also in May 1997, Lindahl went on a week-long alcohol binge

resulting in a DWI conviction, his second. Lindahl canceled

various medical appointments due to his incarceration for his DWI

offense.

Lindahl returned to D r . Gallon in September 1997. He

informed D r . Gallon that he could not tolerate his CPAP therapy

for his sleep apnea and, as a result, he was exhausted. He also

complained of chronic joint pain, but upon examination, D r .

Gallon found his joints normal. D r . Gallon indicated that he

would look into whether surgery was appropriate for his sleep

apnea, but ultimately decided that further exploration into CPAP

therapy was warranted.

-6- In October 1997, Lindahl visited D r . Turnbull, a

psychiatrist with The Mental Health Center of Greater Manchester.

Lindahl complained that his memory was poor and that he was

depressed. Lindahl indicated that he was doing “better,” but not

“great” on Zoloft. (Tr. 2 3 8 ) . D r . Turnbull prescribed Prozac

and discussed its potential side effects. A month later when

Lindahl revisited the Center, D r . Turnbull noted that Lindahl

appeared tired and depressed. D r . Turnbull explained that the

benefits of Prozac appeared to have waned and instead prescribed

Serzone, indicated for depression. In December 1997, Lindahl

explained to D r . Turnbull that he believed his concentration

difficulties as well as his depression were the result of sleep

apnea.

A few months later, in February 1998, Lindahl was referred

to a job counselor and indicated that he would like to get

training in electrical assembly and repair work. Lindahl never

showed up for his appointments with his job counselor.

In June 1998, after another failed attempt to adjust to CPAP

therapy, Lindahl underwent surgery to correct airway obstructions

that caused his sleep apnea. Lindahl indicated that he breathed

easier after surgery, but that he was not sleeping well and his

-7- motivation to find work decreased. In July 1998, Lindahl met

with D r . Potenza, who noted that Lindahl showed no signs of

memory or concentration problems and despite being fatigued,

Lindahl felt “quite good.” (Tr. 2 7 2 ) . In August, Lindahl

decided to stop taking anti-depressants because he disliked their

side effects. At that time, D r . Potenza found Lindahl’s mood to

be good and his mental status to be normal. Throughout the fall

of 1998, however, Lindahl complained of concentration problems

and fatigue.

In March 1999, Lindahl visited D r . John Yost at the

Hitchcock Clinic. Lindahl complained, once again, of fatigue.

In May, D r . Yost noted that Lindahl’s fatigue had “no defined

etiology” and that he did not seem to meet any recognized

criteria for chronic fatigue syndrome or fibromyalgia. (Tr.

290). D r . Yost noted that Lindahl did not appear particularly

depressed.

At the referral of D r . Yost, Lindahl visited D r . Margaret

Caudill-Slosberg in June 1999. D r . Caudill-Slosberg corroborated

that Lindahl did not have the trigger points for fibromyalgia.

She further opined that Lindahl was in good shape and reiterated

that his neuropsychological evaluation did not show any

-8- indication of a learning disability despite Lindahl’s complaints

of memory problems. D r . Caudill-Slosberg asked Lindahl to keep a

symptom diary, but Lindahl did not do s o . In addition, Lindahl

resisted any type of anti-depressant, but he indicated that he

was sleeping six to eight hours a night and was not having mood

problems. Furthermore, D r . Caudill-Slosberg noted that despite

complaining of joint pain all over, he rode his bicycle on a

daily basis. D r . Caudill-Slosberg also stated that Lindahl did

not show up for the pain management program she recommended.

Lindahl indicated the same complaints in his August 1999

appointment with D r . Caudill-Slosberg. D r . Caudill-Slosberg

noted that Lindahl was having a hard time distinguishing his

symptoms and displayed little in the way of pain. She further

noted that Lindahl’s mood was appropriate. Lindahl informed D r .

Caudill-Slosberg that he dropped out of the pain management

program, but wanted a prescription for pain medication so he

could take it “as needed.” (Tr. 2 9 7 ) .

In September 1999, Lindahl visited D r . Brian Binczewski and

requested pain medication for “acute flares.” (Tr. 2 9 9 ) . Dr.

Binczewski recommended participation in a pain management

program, but Lindahl declined stating “he had learned to live

-9- with the pain for the most part.” (Id.). Lindahl stated he only

needed medication once every one or two weeks.

In March 2000, D r . Robert Mullaly completed a psychological

evaluation for Lindahl. The results of the evaluation were

normal and Lindahl showed no sign of significant memory or

concentration problems, or any sign of attention deficient

disorder. D r . Mullaly opined that Lindahl had a personality

disorder, but did not believe Lindahl had any significant

functional limitations due to his personality disorder.

C. SSA Ordered Medical Opinions

In January 2000, D r . Hugh Fairley, a state physician,

reviewed Lindahl’s medical record and completed a residual

functional capacity form. (Tr. 305-314). D r . Fairley determined

that his surgery was successful, but that there were “still some

residuals from the sleep apnea.” (Tr. 3 1 2 ) . He indicated that

Lindahl was in good physical shape and never met the requirements

of establishing a diagnosis for chronic fatigue or fibromyalgia.

He further discussed that Lindahl was uncooperative in his

treatments for depression and pain management. D r . Fairley

ultimately found Lindahl capable of performing a full range of

medium work.

-10- A state psychologist, D r . Craig Stenslie, examined Lindahl

in April 2000. After reviewing Lindahl’s medical record, he

concluded that Lindahl has no significant limitations of basic

mental functioning. D r . Stenslie relied on D r . Mullaly’s finding

that Lindahl has a personality disorder, but did not have

functional limitations as a result. In addition, D r . Stenslie

opined that Lindahl’s allegations of concentration, stress

management, and attention difficulties were not credible. To the

extent Lindahl did have actually have these difficulties, D r .

Stenslie opined that they were episodic and not severe.

D. Hearing before ALJ

ALJ Klingebiel presided over a hearing on March 1 5 , 2001, in

which he heard testimony concerning Lindahl’s prior unfavorable

decision on his 1999 application for DIB. Lindahl testified that

he was unable to work for more than just a few weeks at a time

because he was “limited in what [he] can do physically. . . [he

has] trouble seeing things the way that other people see them. .

. and also [he] has a very bad memory.” (Tr. 2 5 ) . He stated

that on an average day, he would take one to three naps, make

something to eat and attend an Alcoholics Anonymous (“AA”)

meeting. After the AA meetings, Lindahl stated he would return

-11- home and do some housework, such as picking up or doing the

dishes. Lindahl’s attorney also testified that his treating

physician, who he identified as D r . Richmand, refused to complete

a treating physician medical form for purposes of the hearing.

He further noted that D r . Richmand has not examined Lindahl since

1999. The ALJ noted that Lindahl underwent a consultative

psychological examination ordered by the SSA, but did not have an

SSA ordered physical evaluation. The ALJ stated that i f , after

reviewing the record, he determined a physical evaluation was

necessary, he would so order.

Lindahl’s ex-wife, Debbie, was willing to testify.

Lindahl’s counsel stated that Lindahl currently lives with Debbie

and that she was present to corroborate his claims of fatigue.

After hearing what Debbie purported to add, the ALJ stipulated

that Debbie would corroborate what Lindahl testified to in regard

to his symptoms.

E. ALJ’s Findings

The ALJ applied the five-step sequential evaluation process

-12- under which DIB applications are reviewed.3 He found that

Lindahl carried his burden through step four. The ALJ did not,

however, find Lindahl’s testimony credible based on objective

medical evidence. Specifically, the ALJ noted physicians who

examined him did not find Lindahl had either fibromyalgia or

chronic fatigue syndrome. In addition, the ALJ found that

Lindahl’s treatment history was sparse and that he refused

additional treatment for pain management. The ALJ also found

that although Lindahl complained of sleep difficulties, studies

revealed only a mild disorder. Lastly, the ALJ noted that

Lindahl’s complaints of depression were not supported by the

record and “there has been minimal treatment for [the] alleged

symptoms.” (Tr. 1 4 ) .

At step five, the ALJ found that Lindahl retained the

residual functional capacity for medium work. He thus determined

3 The five-step evaluation process requires the ALJ adhere to the following sequential analysis: (1) whether the claimant is performing substantial gainful activity; (2) whether the claimant has a severe impairment; (3) whether the impairment meets or equals a listed impairment; (4) whether the impairment prevents the claimant from performing past relevant work; and (5) whether the claimant is capable of performing any work that exists in significant numbers in the national economy. See

.

-13- that Lindahl was not capable of performing his past work as an

auto body worker because auto body work is categorized as heavy

work. The ALJ then applied the Medical-Vocational Guidelines

(the “Grid”), and the Grid directed him to find Lindahl not

disabled under the Act.

II. STANDARD OF REVIEW

After a final determination by the Commissioner denying a

claimant’s application for benefits and upon a timely request by

the claimant, this court is authorized to review the transcript

of the administrative record and enter a judgment affirming,

modifying, or reversing the Commissioner’s decision. See

(g). The court’s review is limited in scope,

however, and the Commissioner’s factual findings are conclusive

only if they are supported by substantial evidence. See id.;

Irlanda Ortiz v . Sec’y of Health & Human Servs.,

(1st Cir. 1991). The Commissioner is responsible for

settling credibility issues, drawing inferences from the record

evidence, and resolving conflicting evidence. See Irlanda Ortiz,

; Frustaglia v . Sec’y of Health & Human Servs.,

9 2 , 195 (1st Cir. 1987); see also Tsarelka v . Sec’y of

-14- Health & Human Servs.,

(1st Cir. 1988).

Therefore, the court must “‘uphold the [Commissioner’s] findings

. . . if a reasonable mind, reviewing the evidence in the record

as a whole, could accept it as adequate to support [the

Commissioner’s] conclusion.’” Irlanda Ortiz,

(quoting Rodriguez v . Sec’y of Health & Human Servs.,

(1st Cir. 1981)).

While the ALJ’s findings of fact are conclusive when

supported by substantial evidence, they “are not conclusive when

derived by ignoring evidence, misapplying the law, or judging

matters entrusted to experts.” Nguyen v . Charter,

1 ,

35 (1st Cir. 1999) (per curiam) (citations omitted). If the

Commissioner has misapplied the law or has failed to provide a

fair hearing, deference to the Commissioner’s decision is not

appropriate, and remand for further development of the record may

be necessary. See Carroll v . Sec’y of Health & Human Servs.,

3 8 , 644 (2d Cir. 1983); see also Slessinger v . Sec’y of

Health & Human Servs.,

3 7 , 939 (1st Cir. 1987) (“The

[Commissioner’s] conclusions of law are reviewable by this

court.”) I apply these standards in reviewing the issues Lindahl

raises on appeal.

-15- III. ANALYSIS

Lindahl challenges the Commissioner’s decision for two

reasons: (1) the ALJ denied Lindahl a full opportunity to present

his case by declining to hear testimony from Lindahl’s ex-wife

and stipulating that it would corroborate what Lindahl testified

t o , yet subsequently finding Lindahl’s testimony not credible;

(2) the ALJ erred by indicating that if he could not find in

Lindahl’s favor, an additional physical consultative examination

would be ordered at the government’s expense. In the

alternative, Lindahl argues generally that the medical evidence

of record “clearly justifies a finding that M r . Lindahl is

disabled.” Pl.’s Mot. for Reversal.

1. Argument Concerning Testimony of Lindahl’s Ex-Wife

Before discussing the merits of this argument, I note that

Lindahl’s entire argument consists of one sentence, cites no

precedent, and does not identify what facts Lindahl’s ex-wife

would have testified to if given the opportunity. Lindahl does

nothing more than assert that his ex-wife should have been

permitted to testify to corroborate Lindahl’s testimony.

Although the ALJ did not hear testimony from Lindahl's ex-wife,

-16- he agreed to stipulate that she would corroborate Lindahl’s

testimony. In addition, Lindahl did not challenge the ALJ’s

stipulation in any way. In fact, Lindahl agreed that his ex-wife

would merely corroborate Lindahl's testimony and provide no new

facts. Simply because the ALJ did not ultimately find Lindahl’s

testimony credible in light of physicians’ opinions and his

objective medical record, does not mean Lindahl was deprived a

full opportunity to present his case. As such, I do not find

Lindahl’s first argument persuasive.

2. Failure to Order a Consultative Examination

As with Lindahl’s first argument, his second argument is

utterly skeletal. Again, it consists of one summary sentence

without citing to the record or to precedent. Lindahl argues

that the ALJ erred by failing to order a physical examination. I

disagree. At the March 1 5 , 2001 hearing, the ALJ clearly stated

that he would only order a physical evaluation if he found it was

necessary based on the medical evidence presented to him.

Lindahl does not explain why such an examination would have

provided different or additional information than that which was

provided by the various physicians who treated Lindahl since

1995. As such, I reject Lindahl’s second challenge to the

-17- Commissioner’s decision.

3. Lindahl’s “Not Supported by Substantial Evidence” Challenge

In the alternative, Lindahl argues that the medical record

does not support a finding that Lindahl is not disabled. The

only evidence Lindahl uses to support this argument are block

quotes taken out of context from physicians. He does not make a

specific challenge to the medical record nor does he challenge

the state physicians’ medical examinations. D r . Fairley, a state

physician, found him in good physical condition and noted that he

never met the diagnostic criteria for either chronic fatigue or

fibromyalgia. He further indicated that Lindahl was capable of

performing medium work. D r . Stenslie, a state psychologist,

found that Lindahl’s personality disorder did not impact his

ability to perform work.

The record is replete with support for the ALJ’s decision

regarding Lindahl’s physical symptoms. For example, in a more

recent visit to D r . Binczewski, Lindahl himself stated that his

physical pain was limited to “acute flares” and that he only

needed medication once every one or two weeks. (Tr. 2 9 9 ) . In a

June 1999 visit to D r . Caudill-Slosberg, Lindahl described how he

rode his bicycle on a daily basis, was sleeping six to eight

-18- hours a night, and was not having mood problems. D r . Caudill-

Slosberg noted that Lindahl did not have symptoms of

fibromyaglia. In addition, the ALJ’s findings regarding

Lindahl’s psychological state are supported by substantial

evidence. Lindahl’s 1996 neuropsychological evaluation showed no

evidence of a learning disability and in a March 2000

psychological examination, D r . Mullaly found that Lindahl had no

signs of significant memory or concentration problems or any sign

of attention deficient disorder.

The ALJ’s decision that Lindahl is both physically and

mentally capable of performing medium work is supported by

substantial evidence in the record. As such, I deny Lindahl’s

motion to reverse the decision of the Commissioner.

IV. CONCLUSION

For the forgoing reasons, Lindahl’s motion to reverse the

decision of the Commissioner is denied. (Doc. N o . 6 ) . The

Commissioner’s motion for order affirming is granted. (Doc. N o .

11). The clerk of court shall enter judgment accordingly and

close the case.

-19- SO ORDERED.

Paul Barbadoro Chief Judge

August 2 1 , 2003

cc: David L . Broderick, Esq. Maureen Raiche Manning, Esq.

-20-