Tsarelka v. Secretary of Health and Human Services

• Decision Date: 12 May 1988
• Docket Number: No. 87-1587,87-1587
• Citation: 842 F.2d 529
• Parties: , Unempl.Ins.Rep. CCH 17,963 Lisa TSARELKA, Plaintiff, Appellant, v. SECRETARY OF HEALTH AND HUMAN SERVICES, Defendant, Appellee.
• Court: U.S. Court of Appeals — First Circuit

Page 529

842 F.2d 529

21 Soc.Sec.Rep.Ser. 71, Unempl.Ins.Rep. CCH 17,963

Lisa TSARELKA, Plaintiff, Appellant, v. SECRETARY OF HEALTH AND HUMAN SERVICES, Defendant, Appellee.

No. 87-1587.

United States Court of Appeals First Circuit.

Submitted Dec. 11, 1987.

Decided March 17, 1988.

Rehearing En Banc Denied May 12, 1988.

Lisa Tsarelka, pro se.

Thomas D. Ramsey, Asst. Regional Counsel, Dept. of Health and Human Services, and Frank L. McNamara, Jr., U.S. Atty., Boston, Mass., on brief for defendant-appellee.

Before CAMPBELL, Chief Judge, COFFIN and SELYA, Circuit Judges.

PER CURIAM.

Lisa Tsarelka (claimant) appeals from the district court's affirmance of the decision of the Secretary of Health and Human Services denying her applications for Social Security disability insurance benefits and Supplemental Security Income. The Secretary denied the applications on the basis that claimant could perform her past relevant work. We affirm.

I.

Claimant applied for disability insurance benefits on June 8, 1981. She alleged disability due to a back problem, with an onset date of August 1, 1980. Her application was denied initially and upon reconsideration. On March 29, 1983, a hearing was held before an Administrative Law Judge (ALJ). The ALJ found that claimant did not have a "severe" impairment and, therefore, was not disabled. See 20 C.F.R. Secs. 404.1520(c) and 416.920(c) ("step 2" of the sequential evaluation process). On August 4, 1983, the Appeals Council denied claimant's request for review. Claimant appealed to the United States District Court for the District of Massachusetts. She apparently raised there, for the first time, an allegation that she suffered from "fibrositis." On August 14, 1985, the court remanded the case to the Secretary "with instructions to obtain expert testimony relating to the plaintiff's claim that she suffers from fibrositis. Once the Secretary has obtained this evidence, she shall re-evaluate the plaintiff's claim that she is disabled within the meaning of the Social Security Act." (emphasis in original).

A new hearing was held on July 3, 1986. Claimant, a medical advisor, and a vocational expert testified. On July 24, 1986, the ALJ found that a diagnosis of fibrositis had been established and that claimant's symptoms of fatigue, pain and functional limitations supported the vocational expert's conclusion that there were no jobs in the national economy that she could perform. He also relied on the medical advisor's testimony that claimant was disabled. The Appeals Council reversed on December 3, 1986. It found that claimant's complaints of pain, stiffness and fatigue were not credible to the extent alleged and that she could perform her past work as a secretary or bookkeeper. This became the final decision of the Secretary. On June 17, 1987, the district court (by the same judge who had remanded the matter on August 14, 1985) found that the Secretary's decision that claimant was not disabled was supported by substantial evidence. ¹

II.

We review the relevant medical evidence:

In August, 1980, claimant was seen at Boston City Hospital for an injury to her right elbow. In March, 1981, claimant was diagnosed as having a fibroid tumor; the tumor was removed surgically. A note indicates that she was unable to work at this time. X-rays showed normal heart and lungs with "mild spondylosis deformans of the dorsal spine." Additional x-rays, taken on June 22, 1981, revealed no evidence of fractures, compression deformity, subluxation, dislocation, spondylolisthesis or defects in the region of the neural arches. Minimal changes of degenerative arthritis were noted, but there were no areas of decalcification, bone destruction or narrowing of the lumbar intervertebral disc spaces.

Dr. Donald Greene examined claimant on June 22, 1981. He noted her history of back, neck and leg pain for which she stated that she had last received treatment about twenty-five years ago. He noted that she stated that she could walk eight to ten blocks, take public transportation, clean her room and go out to eat. His examination revealed an alert, obese female who could sit and move about comfortably. There was no evidence of muscle spasm and she could flex 90 degrees. She could stand well on her heels and toes. He noted no weakness on flexion extension of the hips, knees and feet. Knee jerks were 1 +, ankle jerks, a trace. Dr. Greene concluded that the examination was "entirely unremarkable with regard to her locomotor neurological systems" and that there was "no restriction in her functional capacity."

A Massachusetts Department of Public Welfare report completed by Dr. Charles Brusch on July 29, 1982 indicated that claimant suffered from hypertension, sinusitis, bronchial phlegm and abdominal gas. He noted that her prognosis was "not good."

Another x-ray taken on September 13, 1982, showed no change from the June 22, 1981 x-ray. Dr. Greene also reevaluated claimant on September 13, 1982. Claimant reported to Dr. Greene that she was having trouble with her eyesight. She stated that she could still walk for eight blocks, stand for five minutes, cook, sweep, shop, vacuum and make her bed; she had trouble taking public transportation. She also complained of having difficulty swallowing when she sleeps. Her flexion was 60? at this time. Dr. Greene again concluded that there was no restriction in her functional capacity.

On February 14, 1983, Dr. Thomas P.R. Hinchey, a neurosurgeon, examined claimant. She presented with complaints of bamboo spine, spondylitis, bronchitis, severe allergies, dermatographia and double vision. On examination, claimant's ankle jerks were absent, but her gait was normal. There was no major weakness. Dr. Hinchey noted that if claimant needed evidence of bamboo spine, she should see an orthopedic surgeon.

On February 2, 1983, Dr. Bernard S. Henken, a psychologist, examined claimant. He opined that claimant was undergoing psychological turmoil and insecurity which might be related to her physical problems. If the psychological problems continued, he stated, claimant might be precluded from functioning in an occupational environment. On March 23, 1983, Dr. Henken wrote a letter to claimant's attorney. In it, he stated that the financial stress of claimant's situation affected her ability to cope generally. He noted that her stress level possibly could result in severe psychosomatic reactions.

On remand, the following additional medical evidence was considered.

On August 16, 1984, Dr. T. Scott Johnson, a physician at the Beth Israel sleep disorder unit, wrote in a pulmonary note that claimant came in with complaints of difficulty swallowing and breathing as she falls asleep. If she is able to get to sleep, she stated that she sleeps soundly for eight hours. She presented with no symptoms of excessive daytime somnolence. Dr. Johnson noted that claimant seemed to have a sleep-related swallowing disorder versus a sleep apnea syndrome. ² He recommended an overnight sleep test to rule out a significant sleep apnea syndrome. There are no further records concerning this test.

On August 28, 1984, Dr. Don L. Goldenberg, a physician in the rheumatology section at Boston University Medical Center, examined claimant. He describes his findings in a letter to Dr. Johnson. He states that her chronic musculoskeletal pain syndrome best fits into a diagnosis of fibrositis. The best-studied characteristics of this disease have been sleep disturbances. Claimant reported generalized aches and pain with "sensitivity" in her back, neck, buttocks, and knees. On examination, claimant had no joint effusions, severe muscle weakness, or evidence of arthritis or myositis. She had "typical trigger tender points in the usual locations in patients with fibrositis...." Dr. Goldenberg decided not to treat claimant at the time, but gave her some reading. He told claimant that her sleep disorder could play a part in her problems. He concluded by stating that fibrositis is "a chronic painful condition which is not defined clearly as far as treatment or prognosis" is concerned.

In another letter, dated September 15, 1984, and in his deposition, Dr. Goldenberg stated that claimant's condition "could be disabling depending on the patient's response to therapy as well as the level of the patient's pain and sleep disorder." He specifically stated that he was unable to form an opinion, based on his examination of claimant, whether she was disabled. In his deposition, Dr. Goldenberg outlined the possible therapies for fibrositis: anti-inflammatory medicines, pain medicine, muscle relaxants, sleep medicine and physical therapy such as exercise programs. Dr. Goldenberg stated that he had seen approximately 120 patients suffering from fibrositis; of these, only a few could not work.

Dr. John A. Bolzan, a consultant, examined claimant on November 18, 1985. He noted her complaints of difficulty sleeping due to problems with breathing, stiffness on awakening, back pain and leg pain. His diagnostic impression was obesity, probable osteoarthritis, psoriasis and question of sleep apnea disorder. He noted that there were tender bony swellings at the fifth TIP on her left hand, and second TIP on the right. An x-ray ordered by Dr. Bolzan showed moderate to pronounced narrowing of the disc spaces in the mid to lower thoracic spine; the impression was of moderate to advanced degenerative disc disease in the mid to lower thoracic spine. Dr. Bolzan completed a Medical Assessment of Ability to do Work-Related Activities. It is mostly illegible, but seems to reflect reports of claimant's subjective complaints of pain on engaging in activities such as lifting, carrying, walking, standing and bending.

On March 18, 1986, Dr. Theoharis Seghorn, a psychologist, examined claimant. He describes claimant as a person of above-average abilities, with no signs of deterioration. He states that she has a characterological personality disorder which...