372 F.Supp.2d 185 (2005) | Cited 9 times | D. Massachusetts | June 3, 2005



This action is brought under sections 205(g) and 1631(c)(3) ofthe Social Security Act, codified at 42 U.S.C. §§ 405(g) and1383(c)(3). The plaintiff, Everett Lopes ("Lopes"), seeksjudicial review of the final decision of the Commissioner ofSocial Security (the "Commissioner") denying his application forDisability Insurance Benefits and Supplemental Security Incomepayments. Lopes argues the hearing officer's decision was notsupported by substantial evidence because it failed to follow theappropriate procedures for the evaluation of pain and credibilityand failed to give appropriate weight to the treating sourceopinions. 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 theCommissioner's decision with an order for calculation ofbenefits, or, alternatively, remand the case for properevaluation of the evidence. The Commissioner filed a motion toaffirm the Commissioner's decision. Def.'s Mot. for OrderAffirming Decision of the Commissioner [Doc. No. 14]; Def's Mem.of Law in Supp. of Mot. for Order Affirming Decision of theCommissioner ("Def.'s Mem.") [Doc. No. 15].


A. Procedural History

On September 18, 2001, Lopes filed for Disability InsuranceBenefits and Supplemental 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. at61, was denied on January 31, 2002, id. at 62-65, and hisrequest for a hearing was granted and heard on January 22, 2003.Id. at 25-52. The hearing officer denied Lopes' claim on June19, 2003 after a review of the evidence and hearing testimonybecause: 1) Lopes' assertion of incapacity was inconsistent withthe whole record, 2) Lopes is not disabled under the regulations,and 3) Lopes could perform a significant number of jobs in thenational economy (including "hand packer, production inspectorand assembler in a variety of industries"). Id. at 14-24. Lopesmade a timely request for review by the Appeals Council which was denied on October 1, 2003. Id. at 8-9. Therefore, the hearingofficer's decision became the final decision of the Commissioner.Lopes filed an action in this Court on December 31, 2003 toreview the decision of the Commissioner pursuant to42 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 completedhigh school and one year of college. Id. at 107. His previousemployment included a boatyard laborer, computer board inspector,telemarketer, cook, warehouse laborer, and (paid) volunteerfirefighter. Id. at 102, 114. Lopes applied for disabilitybenefits claiming an inability to sleep, fatigue and pain fromlyme disease, heart palpitations, and back problems. Id. at101; Pl.'s Mem. at 2. Lopes also complained of difficulty beingaround people and having "no desire to do anything." R. at127-128; Pl.'s Mem. at 2.

On January 8, 2002 Lopes completed the Commissioner'sQuestionnaire on Pain and Activities of Daily Living stating helives with his parents and does not cook, do any housework orchores, nor his own shopping. Id. at 122-128. Lopes istransported by family if travel is necessary. Id. He claimed hewas in constant pain in his entire body and the pain medicationaffects his stomach. Id. at 123-124.

1. Medical Evidence a. Southcoast Hospital Groups (Tobey 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 heartpalpitations. R. at 131-187; Pl.'s Mem. at 4. Lopes had a Holterstudy1 in March and June of 2001. Although the MarchHolter Study reported thirty four minutes and eight seconds oftachycardia,2 four minutes and fourteen seconds ofbradycardia,3 and nineteen late beats, Dr. Bruce Brownreported the March echocardiogram study was normal. R. at 178;Pl's Mem. at 4. The discharge instruction sheet recommended usinga heating pad, taking Vicodin as needed for pain, ceasing alcoholuse, and abstaining from lifting or any physical activity, aswell as a follow-up appointment and returning to the hospital ifsymptoms worsen. R. at 155. Dr. Jagdish R. Shah concluded the examination was normal onApril 12, 2001. Id. at 152. He noted the "the aerated lungs areclear. The heart is normal in size. The hilar and medistinalstructures are within normal limits. No bony abnormalities areappreciated." Id. The discharge instruction sheet from thisexam notes a diagnosis of muscular pain and acute alcoholintoxication with instructions "to stop drinking alcohol [as it]can cause heart palpitations [and] many other problems." Id. at143. Additionally, heat application was recommended, as wasNaprosin for pain (which is not to be taken during alcoholconsumption). Id.

Dr. Daniel Le reported that the June 13, 2001 visit showedthere "is no evidence of acute cardiopulmonary disease." Id. at140. Dr. Brown opined that the June Holter study was normal.Id. at 131; Pl.'s Mem. at 4. Additionally, the dischargeinstruction sheet contained four instructions which reiterated:"1) Take your Naprosin instead of alcohol for pain, 2) [s]topabusing 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 nursepractitioner Maureen T. McKay, R.N., C.S., A.N.P., at theFalmouth Free Clinic. Id. at 188-197. During the September 6thand 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 todecrease his cigarette smoking and stop his caffeine intake. R.at 193; Def.'s Mem. at 3. During the October 2, 2001 visit, Lopescomplained that he "continues to feel achy and sore," but"palpitations have become less prevalent" and he is "sleepingbetter." R. at 188; Pl.'s Mem. at 4. The nurse's diagnosis waschronic lyme disease and she prescribed Vioxx.4 R. at188.

c. Massachusetts Department of Transitional AssistanceEvaluations

Ms. McKay completed an evaluation on January 8, 2002 diagnosingLopes with chronic lyme disease and stating that he was ontetracycline. Id. at 222-223. Ms. McKay was unable to assessthe functional capacity of Lopes including any physical or mentalactivities. Id. at 223-224. Ms. McKay also completed a ResidualFunctional Capacity Questionnaire and opined that the chroniclyme disease creates a marked limitation to deal with work stressand would likely cause Lopes to be absent from work more thanthree times a month. Id. at 225-228; Def.'s Mem. at 4. Dr. Lisa Zandonella-Huhta completed an evaluation on January20, 2002 diagnosing Lopes with chronic lyme disease,palpitations, and depression. R. at 229-235. The record concludedLopes' mental activities were considerably limited as to allactivities listed on the form. Id. at 235; Pl.'s Mem. at 5. Inaddition, Lopes could walk about five hundred feet, stand and sitfor two hours each, and occasionally bend and lift twenty pounds.R. at 233.

d. Donta Infectious Diseases

Ms. McKay saw Lopes on June 1, 2002 at Donta InfectiousDiseases and noted that Lopes was "alert and oriented," and "inno acute distress." R. at 236. Ms. McKay instructed Lopes to takeClarithromycin and Hydroxychloroquine5 for the LymeDisease and refrain from alcohol use. Id. at 236.

e. Raymond E.H. Partridge, M.D., F.R.C.P.

Dr. Partridge saw Lopes on referral from Dr. Zandonella-Huhtaon June 3, 2002. Id. at 252. Dr. Partridge opined that Lopes'past history included a "weakly positive IgM Lyme titer" and uponexamination found moderate muscle tenderness in his forearmextensors, shoulder girdle, knees, and hips which was "suggestive of fibromyalgia"6 and recommended treatmentat a rehabilitation program. Id.

f. Duffy Health Center

Lopes was seen by Dr. Zandonella-Huhta on July 16, September 1,and October 7, 2002. Id. at 238-251. During the visits, Lopescomplained of short term memory loss, weight loss, fatigue, nightsweats, joint pain, and headaches. Id. at 239, 245, 250; Pl.'sMem. at 5. Dr. Zandonella-Huhta opined that the MRI ordered toinvestigate Lopes' headaches appeared normal. R. at 241. Additionally, she observed that Lopes was in no acutedistress and was "sitting comfortably." Id. at 240; Def.'s Mem.at 6. Dr. Zandonella-Huhta referred Lopes to Saint Anne'sHospital Pain Management Center. R. at 275.

g. Saint Anne's Hospital Pain Management Center

Dr. Christopher Stowe saw Lopes on December 20, 2002 and foundhe would not benefit from interventional pain procedures. R. at275. As such, he declined to accept Lopes as a patient. Id. Dr.Stowe's examination concluded that Lopes was alert and oriented,with normal heart sounds, a full range of motion of the neck withpain titling side to side, and some "generalized myofascialtenderness with multiple tender fibromyalgia points." Id. at276.

h. Disability Determination Services

Disability Determination Services referred Lopes to Dr. JoelOlubodun for an evaluation of his physical complaints on November3, 2001. Id. at 198-200; Def.'s Mem. at 6. Dr. Olubodun notedthat Lopes was in no distress, his lung fields were clear, andthere was limitation in the use of his left upper extremity. R.at 198-199.

Dr. Mark Colb's assessment of the records on November 16, 2001noted the following exertional limitations: Lopes couldoccasionally lift and carry fifty pounds, frequently lift twentyfive pounds, and stand and walk about six hours in an eight hour workday. Id. at 201-209. The manipulative limitations notedwere that Lopes could perform no reaching above ninety degrees.Id. at 204.

Dr. Mary Connelly's assessment of the record on January 29,2002 noted findings generally consistent with the previousreport, except for a decrease in Lopes' ability occasionally tolift and carry to 20 pounds and frequently lift and carry to 10pounds. Id. at 211.

i. Lopes' Hearing Testimony

The hearing officer questioned Lopes on January 22, 2003 abouthis inability to work and Lopes responded that he is on severalmedications which make him drowsy, he has pains throughout hisbody, and his legs swell if he is on his feet for any period oftime. Id. at 34-35. Lopes specified that the joint painoccurred in his elbows, hands, knees, ankles, back, neck, andhead. Id. at 36. Lopes lives alone in an apartment and isresponsible for all of the chores, including the medium weightchores of laundry and taking out the trash. Id. at 39.Additionally, Lopes does his own food shopping, cooks, takes thecity buses or his apartment bus to do his shopping. Id. at 40.Lopes feels that his being tired and the pain he experienceswould prevent him from doing any type of work. Id. at 39.

j. Vocational Expert Testimony Mr. Michael Laraia, the vocational expert, questioned Lopesabout responsibilities in several of his previous jobs. Id. at41-44. Mr. Laraia then classified the skill and exertion levelsof Lopes' past work.7 Id. at 44. He then identifiedother jobs in the regional or national economy that could beperformed by a hypothetical claimant confined to light exertionwith a moderate reduction in ability to maintain attention andconcentration (eight hours per day with short work breaks everytwo hours). Id. at 45. The identified jobs included handpackager, assembler, or production inspector. Id. at 44. Thevocational expert concluded that Lopes could perform these jobseven with the limited use of his non-dominant left upperextremity. Id. at 47.


A. Standard of Review

The Social Security Act limits judicial review of a SocialSecurity disability benefit determination. This Court's review ofthe Commissioner's decision is limited by section 405(g) of theSocial Security Act, which provides that "[t]he findings of theCommissioner of Social Security as to any fact, if supported by substantial evidence, shall be conclusive."42 U.S.C. § 405(g); Richardson v. Perales, 402 U.S. 389, 390, 401 (1971);Manso-Pizarro v. Secretary of Health and Human Servs.,76 F.3d 15, 16 (1st Cir. 1996). Substantial evidence is "more than amere scintilla. It means such relevant evidence as a reasonablemind might accept as adequate to support a conclusion."Richardson, 402 U.S. at 401 (quoting Consolidated Edison Co.of New York v. NLRB, 305 U.S. 197, 229 (1938)). This Courtmust therefore affirm the Commissioner's decision "even if therecord arguably could justify a different conclusion, so long asit is supported by substantial evidence." Rodriguez Pagan v.Secretary of Health & Human Servs., 819 F.2d 1, 3 (1st Cir.1987) (citation omitted). The Court's function, therefore, islimited to deciding "whether there is substantial evidence tosupport the Secretary's findings and whether the decisionconformed to statutory requirements." Geoffroy v. Secretary ofHealth and Human Servs., 663 F.2d 315, 319 (1st Cir. 1981)(citations omitted).

B. Disability Determination Process

Claimants must show that they are "disabled" as defined in theSocial Security Act in order to receive benefits.42 U.S.C. §§ 423(a)(1)(E), 423(d). A "disability" is the "inability to engagein any substantial gainful activity by reason of any medicallydeterminable physical or mental impairment . . . which has lasted or can be expected to last for a continuous period ofnot less than 12 months." 42 U.S.C. § 423(d)(1)(A). In addition, [a]n individual shall be determined to be under a disability only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy.42 U.S.C. § 423(d)(2)(A).

The Social Security Administration's regulations require afive-step sequential evaluation for determining whether aclaimant is disabled. The hearing officer must determine: 1. whether the claimant is engaged in 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 impairment prevents the claimant from doing any other work when considering claimant's age, education and work experience.20 C.F.R. §§ 404.1520(a)(4) and 416.920(a)(4). If at any stepduring the application of the test the claimant is found not tobe disabled the inquiry ends. While the claimant bears the burdenof proving the first four steps, the hearing officer bears theburden of proving the fifth step. See Goodermote v. Secretaryof Health & Human Servs., 690 F.2d 5, 7 (1st Cir. 1982). C. Lopes' Challenge to the Hearing Officer's Determination ofPain and Credibility

Lopes argues that the hearing officer's decision is notsupported by substantial evidence because the hearing officerfailed to follow the proper procedures as set forth in Avery v.Secretary of Health and Human Servs., 797 F.2d 19, 27-30 (1stCir. 1986), when evaluating Lopes' pain and credibility. Pl.'sMem. at 10. Lopes asserts that the hearing officer failed to asksufficient questions in order to "draw conclusions about theplaintiff's activities and credibility." Id. Furthermore, Lopescontends that the hearing officer was required to explain hisreasoning and that the hearing officer's "general, vaguestatement"8 does not satisfy this standard. Id. Under Avery, 797 F.2d at 29, the court must consider theclaimant's subjective assertion of pain by examining thefollowing six factors: 1. The nature, location, onset, duration, frequency, radiation, and intensity of any pain; 2. Precipitating and aggravating factors (e.g., movement, activity, environmental conditions); 3. Type, dosage, effectiveness, and adverse sideeffects of any pain medication; 4. Treatment, other than medication, for relief of pain; 5. Functional restrictions; and 6. The claimant's daily activities.The First Circuit has held that a hearing officer's credibilitydetermination, "is entitled to deference, especially whensupported by specific findings." Frustaglia v. Secretary ofHealth and Human Servs., 829 F.2d 192, 195 (1st Cir. 1987).

Lopes argues that the hearing officer "failed to elicit thenecessary testimony and therefore had insufficient informationfrom which to draw conclusions about the plaintiff's activitiesand credibility" because the hearing officer only considered theplaintiff's functional restrictions, daily activities andmedications. Pl.'s Mem. at 11. A searching review of the hearingtestimony, however, reveals that the hearing officer covered —despite the cursory conclusion — all of the Avery factors. Specifically, Lopes first testified he had "pains throughout[his] body" and stated "if I'm on my feet for a long time or fora short period, they . . . bother me. My legs they swell. Just alot of joint pain." R. at 35. This addresses the first Averyfactor by describing the nature, location, onset, frequency, andintensity of the pain. Lopes was further questioned about thelocation of his joint pain and responded that he experienced painin his elbows, hands, knees, ankles, back, neck and head. Id.at 36. The precipitating and aggravating factors are discussedwhen Lopes stated he could stand for ten minutes before having tosit again, but could only sit for two hours before he isagitated. Id. at 41. In regards to the fourth Avery factor,Lopes testified that he does not participate in any exercise ortherapy program which addresses whether there is any treatmentfor relief of pain other than medication. Id. at 39. This Courthas previously ruled there existed no grounds for reversal whenthe hearing officer omitted one factor, but adequately attendedto the other relevant factors. Lacroix v. Barnhart, 352 F.Supp.2d 100, 115 (D. Mass. 2005) ("By and large, the hearingofficer gave adequate attention to all of the relevant Averyfactors."). Likewise, in this case, there are no grounds forreversal because the hearing officer adequately, albeit barely,attended to all of the Avery factors.

Next, Lopes claims that the hearing officer is required toexplain his reasoning in determining Lopes' credibility. Pl.'s Mem. at 11; see Guyton v. Apfel, 20 F. Supp. 2d 156 (D.Mass. 1998) (ruling that though Avery was properly applied, thedecision inadequately explained the determination ofcredibility). Lopes asserts that his subjective statementsregarding pain should have been addressed because the medicalevidence establishes that Lopes suffers from "severe impairments,fibromyalgia, and chronic lyme disease." Pl.'s Mem. at 10.

In Guyton, this Court was concerned with the hearingofficer's general statement because there must be "specificfindings as to the relevant evidence [she] considered indetermining to disbelieve the appellant." Guyton20 F. Supp. 2d at 167 (citing DaRosa v. Secretary of Health and HumanServs., 803 F.2d 24, 26 (1st Cir. 1986)). The First Circuit hasupheld a hearing officer's determination where the findings aresupported by examining the entire record, even though moreexpress findings would have been preferable. Frustaglia,829 F.2d at 195.

In this case, the hearing officer compared Lopes' subjectivecomplaints with the objective medical diagnosis and records. R.at 22. The hearing officer reviewed Dr. Partridge'srecommendation to attend a rehabilitation program, the notes fromthe Pain Clinic that Lopes would not benefit from theirtreatment, and the hearing testimony that Lopes does not attendany exercise or therapy programs. In addition, the record as awhole shows an improvement in Lopes' activity level over a oneyear period. On January 8, 2002, Lopes' Questionnaire on Pain and Activities of Daily Living stated that Lopes lived with hisparents and did not cook, do any housework, chores, nor his ownshopping; yet, just over a year later, on January 23, 2003,Lopes' hearing testimony revealed he now lived alone in anapartment, is responsible for all of the chores, includinglaundry, taking out the trash, and grocery shopping by takingpublic transportation. Moreover, the hearing officer noted thatLopes' testimony of pain in the legs was contradicted by the lackof any prior mention of such a symptom. The hearing officer,therefore, provided sufficient evidence on which to base hiscredibility determination and the analysis of the Averyfactors. In conclusion, the hearing officer's opinion must herebe given deference as it is supported by substantial evidenceupon a thorough review of the entire record as a whole.

D. Lopes Challenges the Weight Applied to the Treating SourceOpinions

Lopez contends the hearing officer's residual functionalcapacity decision9 is not based on substantial evidencebecause it is inconsistent with Lopes' testimony and treatmentrecords. Pl.'s Mem. at 13. Therefore, Lopes contends that thehearing officer relied solely on the findings of the non-examiningphysicians and did not give controlling weight to the examiningphysicians. Id.

Lopez correctly states that the degree of weight to be affordeda treating physician's opinion is guided by Social SecurityRuling No. 96-2p and 20 C.F.R. § 404.1527(d)(2). Id. at 12.Accordingly, the treating physician's opinion is generallyafforded controlling weight if it "is well-supported by medicallyacceptable clinical and laboratory diagnostic techniques" and is"not inconsistent with the other substantial evidence in [the]case record." 20 C.F.R. § 404.1527(d)(2) (2004). Furthermore, thehearing officer is instructed to give "good reasons" for theamount of weight afforded the treating physician's opinion. Id.In all cases, the Commissioner is responsible for determiningwhether the statutory definition of disability has been met.20 C.F.R. § 404.1527(e).

First, Lopes contends that the hearing officer's decision wasnot based on Lopes' hearing testimony. Pl.'s Mem. at 13. Thehearing officer, however, reasonably found Lopes' statements notfully credible. R. at 23. The residual functional capacityreflected the hearing officer's determination as drawn from hisassessment of the record.

Next, Lopes argues that the hearing officer's determination wasnot based on the treatment records but solely on the opinions ofthe non-examining physicians. Pl.'s Mem. at 13-14. Lopes claims that more weight should be given to Dr. Zandonella-Huhta'sopinion which states that Lopes is limited to performing lessthan sedentary work. Id.

The treatment records from Lopes' three visits to Dr.Zandonella-Huhta contain evidence that somewhat contradicts herultimate "less than sedentary" finding as to residual functioningcapacity. R. 229-251; Pl.'s Mem. at 13; Def.'s Mem. at 15. Forexample, the July visit notes that Lopes "has no new complaintsand feels he is doing well . . . he can sleep some nights withouttaking Elavil," and the doctor made an objective observation thatLopes was "sitting comfortably." R. at 238, 240. Again, duringthe October visit the record states that while Lopes "continuesto [complain of] pain in his knees, elbows, back and headache,"Id. at 250, he is "doing very well . . . still pains at timesbut not like in the past." Id. at 246. Although Lopes claimsDr. Zandonella-Huhta's opinion ought be given greater weight eventhough the medical notes in the record are incomplete, the SocialSecurity Ruling instructs a hearing officer to weigh the treatingphysician's opinion by evaluating it against her own medicalnotes and other evidence in the record.20 C.F.R. § 404.1527(d)(2), S.S.R. 96-2p.

Additionally, Dr. Zandonella-Huhta's opinion contradicts othertreatment records. For instance, Ms. McKay, on June 1, 2002,found Lopes in "no acute distress," "alert and oriented," and"more confident and relaxed." R. at 236. Dr. Partridge, on June 3, 2002, noted that Lopes had good range of motion in allhis joints, mild muscle tenderness, which was suggestive offibromyalgia, and no evidence of active Lyme disease. Id. at252. Since Dr. Zandonella-Huhta's opinion was not consistent withthe doctor's objective findings or the record as a whole, thehearing officer did not err in according greater weight to Dr.Partridge's opinion.

Lopes claims that Dr. Partridge's reports do not support afinding of ability to work at the light exertion level, butrather support a finding that Lopes had severe pain. Pl.'s Mem.at 14. Not so. Dr. Partridge's treatment records provide findingsconsistent with the hearing officer's determination of residualfunctioning capacity. The doctor's records indicate Lopes had agood range of motion in all his joints, mild muscle tenderness,which was suggestive of fibromyalgia, and no evidence of activeLyme disease. Id. at 252. Dr. Partridge felt a fibromyalgiaprogram would be helpful for treatment of the symptoms andfurthermore provide sufficient evidence for the hearing officer'sdetermination to perform light work. Id.

Lopes argues that fibromyalgia ought be treated like chronicfatigue syndrome, and once the diagnosis is established thehearing officer must find the claimant "suffers from the symptomsusually associated with th[e] disorder." Pl.'s Mem. at 15; Rosev. Shalala, 34 F.3d 13 (1st Cir 1994). In Rose, the courtdisagreed with the hearing officer's finding that the claimant had "possible" chronic fatigue symptoms and that the claimant'ssubjective symptoms did not rise to a significant level offatigue, even though the medical evidence compelled a finding ofchronic fatigue symptom. Id. at 17-18. Here, in contrast, thehearing officer concluded that Lopes has a history of Lymedisease and fibromyalgia, but found that the level of incapacityasserted was inconsistent with the record as a whole. R. at20-21. Due to the hearing officer's acknowledgment of Lopes'impairments, the Rose case is not applicable. Moreover, Roseis specific to Social Security Ruling No. 99-2p which delineateshow a hearing officer is to deal with chronic fatigue syndrome.Def.'s Mem. at 19; 20 C.F.R. § 404.1527; S.S.R. 96-2p, 96-5p. Inthis case, Lopes does not have chronic fatigue syndrome and,therefore, the hearing officer is not required to give greaterweight to claimants that complain of subjective pain.

Lastly, the hearing officer is required to give "good reasons"for his determination. In this case, the hearing officerreasonably explained his decision to "afford? much greaterweight" to Dr. Partridge's opinion because he examined andtreated Lopes on several occasions, while Dr. Donta's nursepractitioner was the one who examined Lopes. R. at 22 n. 6.Therefore, the hearing officer's decision properly evaluated themedical opinions in the record and there is no error in theamount of weight afforded in the evaluation of the medicalrecords. E. CONCLUSION

This Court "must uphold the Secretary's findings in this caseif a reasonable mind, reviewing the entire record as a whole,could accept it as adequate to support the Secretary'sconclusions." Agresti v. Secretary of Health and HumanServs., 631 F.Supp. 1245, 1248 (citing Rodriguez v. Secretaryof Health and Human Servs., 647 F.2d 218, 222 (1st Cir. 1981)).This Court rules that a reasonable mind could accept the entirerecord as adequate to support the hearing officer's conclusions.This Court also holds that the hearing officer's decision wassupported by substantial evidence and free from errors of law.Geoffroy, 663 F.2d at 319. Accordingly, Lopes' Motion toReverse or Remand the Decisions of the Commissioner of the SocialSecurity Administration [Doc. No. 12] is DENIED, and theCommissioner's Motion for Order Affirming the Decision of theCommissioner [Doc. No. 14] is ALLOWED.

The request for attorney's fees is DENIED.


1. A Holter study or echocardiogram is the continuousmonitoring of the electrical activity of a patient's heart musclefor twenty-four hours. Electrocardiography is "a method ofrecording electrical currents traveling the heart muscle."Stedman's Medical Dictionary 573 (27th ed. 2000).

2. Tachycardia is "a [r]apid beating of the heart,conventionally applied to rates over 90 [beats per minute]."Stedman's Medical Dictionary at 1782. "Tachycardia may betriggered by conditions such as heart disease, an overactivethyroid gland, fever, or by drinking alcohol or caffeinatedbeverages." Univ. of Michigan Health Sys. Health Topics,Tachycardia, at www.med.umich.edu/1libr/heart/rate08.htm (lastvisited May 19, 2005).

3. Bradycardia is a "[s]lowness of the heartbeat usuallydefined . . . as a rate under 50 [beats per minute]." Stedman'sMedical Dictionary at 232.

4. "Vioxx is a nonsteroidal anti-inflammatory drug (NSAID)that exhibits anti-inflammatory, analgesic, and antipyreticactivities in animal models." Physician's Desk Reference forPrescription Drugs (Micromedex, Inc. 2005). Vioxx has been shownto reduce joint pain and is used for rheumatoid arthritis, painreliever, and migraine headaches. Id.

5. Clarithromycin is "effective against a wide spectrum of . . .bacteria, used in the treatment of respiratory tract infectionsand skin and soft tissue infections." Dorland's IllustratedMedical Dictionary 372 (30th ed. 2003); Def.'s Mem. at 5.Hydroxychloroquine is used as a lysosomotropic agent to assistthe Clarithromycin. R. at 236.

6. Fibromyalgia is "pain and stiffness in the muscles andjoints that is either diffuse or has multiple trigger points."Dorland's Illustrated Medical Dictionary at 697. It is describedas a common, but elusive and mysterious, disease, much like chronic fatigue syndrome, with which it shares a number of features. Its cause or causes are unknown, there is no cure, and, of greatest importance to disability law, its symptoms are entirely subjective. There are no laboratory tests for the presence or severity of fibromyalgia. The principal symptoms are pain all over, fatigue, disturbed sleep, stiffness, and — the only symptom that discriminates between it and other diseases of a rheumatic character-multiple tender spots, more precisely [eighteen] fixed locations on the body (and the rule of thumb is that the patient must have at least [eleven] of them to be diagnosed as having fibromyalgia) that when pressed firmly cause the patient to flinch. All these symptoms are easy to fake, although few applicants for disability benefits may yet be aware of the specific locations that if palpated will cause the patient who really has fibromyalgia to flinch. There is no serious doubt that Sarchet is afflicted with the disease but it is difficult to determine the severity of her condition because of the unavailability of objective clinical tests. Some people may have such a severe case of fibromyalgia as to be totally disabled from working, but most do not.Sarchet v. Chater, 78 F.3d 305, 306-307 (7th Cir. 1996)(internal citations omitted).

7. Lopes' previous employment classifications included:warehouse laborer (medium and unskilled), telemarketer (sedentaryand semi-skilled), computer board circuit board inspector (lightand semi-skilled), boatyard laborer (heavy and unskilled), cook(medium and skilled), meter installation repair (semi-skilled andlight), and fire fighter (very heavy skilled). R. at 44.

8. The hearing officer's finding states only "[t]he degree ofincapacity asserted by the claimant as resulting from hisimpairments is not consistent with the record as a whole." R. at23.

9. The hearing officer found Lopes' residual functionalcapacity allows "light work that could accommodate limited use ofthe non-dominant left upper extremity encompassing no work aboveshoulder level or lifting of over [ten] pounds, and with amoderate restriction on the ability to maintain attention andconcentration (related to pain)." R. at 22 (footnote and citationomitted); Pl.'s Mem. at 13.

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