Opinion
Civil No. 02-1443 (JAG)
August 11, 2003
Rafael A. Oliveras-Lopez, SAN JUAN, PR., Counselor for Plaintiff.
Camille L. Velez-Rive, United States Attorney's Office, SAN JUAN, PR., Defendant's Counselor.
REPORT AND RECOMMENDATION
Plaintiff filed this action seeking judicial review of the final decision of the Commissioner of Social Security (the Commissioner) denying the application for a period of disability and entitlement to disability benefits. Social Security Act, 42 U.S.C. § 405 (g). The issue at hand relates to the period of April 11, 1997, onset date of alleged disability, up to January 1, 1999, since above plaintiff was thereafter granted benefits on a second application.
This action relates to a forty years old male, with high school education and prior work as carpenter. He suffered a work related accident upon falling from a height of some 8-10 feet and had trauma to his head, neck, back, which resulted also in some loss hearing. His job was considered medium to heavy in level of exertion.
The decision of the presiding Administrative Law Judge (ALJ), adopted as the final decision of the Commissioner, denied plaintiff's disability claim. It is from the latter decision that plaintiff has now requested judicial review.
The ALJ concluded that the medical evidence established claimant had a spinal disorder, which was considered severe. It is also shown that claimant underwent a closed reduction and immobilization for a fractured right clavicle when he fell from a height of eight (8) to ten (10) feet. Thereafter he received physical therapy and was noted to be disabled by physicians until June of 1997 when he was considered able to return to some light work. However, this date was thereafter modified to September of 1997. Audiological tests showed light to moderate bilateral hearing loss. The cervical spine showed minimal retrolisthesis of C4 over C5, at the time, but EEG tests were normal in October of 1997, as well as CT Scans of the head. In March of 1998 there was right ulnar nerve neuropathy and right C6-7 radiculitis. There are reports that claimant suffered less pain and numbness by October of 1997 and the neurological evaluation of 1998 was normal.
The ALJ considered the above medical evidence and the testimony of a medical expert who testified at the hearing and concluded that prior to January of 1999 claimant retained the residual functional capacity to perform work, except exertion in excess of fifty (50) pounds. Since claimant's prior work would require exertion up to 100 pounds, he was unable to perform same. Still, taking into consideration his age, education, and work experience, the ALJ reached the conclusion that claimant could perform all work at medium level of exertion and no analysis of non-exertional limitation was made.
To be found disabled, claimant must suffer a severe impairment which precludes his ability to perform other forms of substantial gainful activity. The initial showing of disability places on claimant the burden to show inability to perform his past relevant job. It is then that the burden shifts to the Commissioner to prove the existence of other jobs in the national economy that plaintiff can still perform. Goodermore v. Secretary of Health Human Servs., 690 F.2d 6 (1st Cir. 1982);Torres v. Secretary of Health Human Servs., 677 F.2d 167 (1st Cir. 1982). See also Vazquez v. Secretary of Health Human Servs., 683 F.2d 1 (1st Cir. 1982); Geoffrey v. Secretary of Health Human Servs., 663 F.2d 315 (1st Cir. 1981).
A summary of the available medical record for the time period at issue shows in the year 1997 there is cervical lordosis, minimal retrolisthesis of C4 over C5 and minimal narrowing of the posterior intervertebral disc space C5-C6. A neurological evaluation in 1998 refers to bilateral sensorineural hearing loss, a normal CT brain scan, an EMG/NCV of upper extremities showing right ulnar nerve axonal neuropathy, right ulnar nerve sensory neuropathy and right radial nerve sensory neuropathy. The patient had cervical muscle spasm and there were moderate muscle spasm of the spine and tenderness to percussion. The back had muscle spasm on cervical and lumbar areas. The patient was observed with depressed mood, fair insight and judgment, with adequate memory for recent and immediate events, alert and well oriented. He had adequate gait and was able to do tandem gait. The motor system showed mild atrophy on the left leg. There was a half an inch difference in the measurement of the extremities. The diagnosis was of status post head and multiple body trauma, status post brain concussion, post traumatic headache, post traumatic cervical radiculopathy, right radial nerve axonal neuropathy and right cubital tunnel syndrome.
Dr. Benjamin Rodriguez' report shows he has treated plaintiff since 1997 after head and back trauma in April 11, 1997. The diagnosis was of high frequency sensorial hearing loss. Dr. Juan Jose Felix Reyes refers to excruciating pain in the left clavicle, severe headache (constantly) and severe pain to the left elbow, hip, thigh, and knee. The patient suffered a comminuted fracture of the distal third of the right clavicle. He also suffered from dizzy spells and was referred to a neurologist. The patient had developed spondylolysis of the lumbosacral spine and as evidenced by X-rays had minimal retrolisthesis at C4-C5 and narrowing of the disc space at C5-C6, very painful. There was weakness in the cervical and lumbosacral spine and in the right shoulder. This was also observed in the left lower extremity due to trauma. There was muscle spasm in the cervical, dorsal, and lumbosacral region, severe. The range of movement was diminished in the upper and lower back. There was no vertebral fracture but present were osteoarthritis changes at C7-T1 and lumbar myositis. The patient suffered from numbness in both hands and muscle spasms in the upper and lower back severe type. Surgery had been performed in the right shoulder and clavicle. After the close reduction surgery the patient was rushed to physical therapy. There was callosity in the fracture and the prognosis was poor. Dr. Felix makes reference to an emotional disease. He strongly recommended neurological and psychiatric treatment.
Dr. Angela Manana, a neurologist, indicated she saw plaintiff for the first time in August 6, 1997, with complaints of recurrent cephaleas, dizziness, and episodes of lack of concentration, buzzy tinnitus in left ear, severe cervical muscle pain and low back pain that radiated to the left leg. The last visits were in October of 1998 and the patient was very symptomatic, including episodes of absences which lasted few seconds. Examination revealed diminished pin prick sensation on left upper extremities and diminished measurements in the calves. The report dated March 1999 refers to psychiatric treatment with Dr. Cuevas for depression.
Progress notes from physical therapy sessions in 1998 refer to complaints of pain. Prescriptions include Neurontin, Celebrex, and B12 vitamin. Additional therapy was recommended to reduce pain and increase strength and endurance. The patient was also infiltrated. The condition was not static and presented progressive deterioration in addition to chronic pain syndrome.
There are abnormal findings as to the upper extremities in 1998 while claimant was undergoing physical therapy. It was therein recommended that he should visit a hand surgeon. The findings included decreased amplitude motor wave (R) ulnar nerve; prolonged conduction velocity (R) ulnar nerve; prolonged sensory latency (R) ulnar nerve and prolonged sensory latency (R) radial nerve. The patient had been complaining of having no strength in his right arm and was found with decreased pin prick sensation. Cervical rotation was limited, more so to the left. He was prescribed Skelaxin and Darvocet. Additionally, the Physical Therapy Fitness Center's notes refer to the patient having dizzy spells and difficulty for concentration besides poor tolerance to high noise levels.
The psychiatric report by Dr. Jose Hernandez Cuevas although dated in March of 1999, makes reference to the first sign of illness as April of 1997. The notes also make reference to the patient concurrently (after the labor accident) developing an emotional picture of depression, state of hyper vigilance, poor concentration, and disorganization. Claimant's testimony refers to waist pain, no strength in his arms, a deficiency in the left leg, pain in the lower and upper back, and having problems with memory and concentration. Claimant's wife also testified. The medical advisor, Dr. Guzman, testified at the administrative hearing that because of claimant's condition, the record shows limitation of his right shoulder movement and on forward bending, as well as limitation on lateral flexing. He received, as shown in the record examined, appropriate prescriptions for the type of pain, vertigo, headaches, and for a mental component claimed and also underwent therapy from 1997 through the present. By April of 1997, claimant was considered able to carry up to twenty (20) pounds, walk for one (1) hour in an eight (8) hour period and one hour (1) standing and could remain sitting for more than an hour and a half. His left lower limb may lack enough muscle strength since measurements indicate a difference of half an inch. The medical expert disagreed with the non-examining physicians' assessment on the administrative record that claimant could sit, stand, and walk about six (6) hours in an eight (8) hour day.
This Magistrate's concern is that the record fails to present the ALJ's opinion regarding pain under Avery v. Secretary of Health and Human Services, 797 F.2d 19 (1st Cir. 1986) and/or any credibility determination for the complaints of pain which claimant testified at the administrative hearing and are shown in the medical evidence of record and throughout the medications thereof prescribed. As a result, the record is devoid of any assessment from where a non-exertional component was considered and/or disregarded as being non-existent when determining that claimant retained the residual functional capacity for medium type of work. The ALJ did acknowledge that claimant had a spinal disorder, a condition from which pain could be reasonably expected. Even if pain is considered subjective, there must still be some evaluation on the issue of pain, in light of its existence in the medical evidence, complaints, medications and claimant's and the medical expert's testimonies at the administrative hearing. Additionally, although this case submits no vocational expert's testimony, when a non-exertional assessment may be brought into light, the existence of jobs within such a modified residual functional capacity might become necessary. The record also leaves out a consideration as to the question that although a psychiatric condition was clearly assessed by March of 1999, prior to that time, there is medical evidence of prescriptions for a mental component and annotations of complaints of lack of concentration, depressed mood, and abandonment. Even conditions that became disabling after an insured period has elapsed are considered not always wholly irrelevant. Medical evidence generated after a claimant's insured status expires may be still considered for what light, if any, it sheds on the question whether claimant's impairment(s) reached disabling severity before claimant's insured status expired. See, e.g., Smith v. Bowen, 849 F.2d 1222, 1225 (9th Cir. 1988); Basinger v. Heckler, 725 F.2d 1166, 1169 (8th Cir. 1984) (collecting cases); Gonzalez v. Secretary of Health and Human Services, 757 F. Supp. 130, 134 (D.P.R. 1991); Alcaide v. Secretary of Health and Human Services, 601 F. Supp. 669, 672-73 (D.P.R. 1985).
The ALJ could have properly rejected the credibility of claimant's statements concerning the limiting effects of pain and other symptoms, but this cannot be assessed in the record before this Magistrate. See Irlando Ortiz v. Secretary of Health Human Servs., 955 F.2d 765, 769 (1st Cir. 1991) ( per curiam) (explaining that it is the responsibility of the Secretary to determine issues of credibility). See also 20 C.F.R. § 404.1529 (explaining how the Secretary evaluates pain), 416.929 (same). Avery has been construed to mean that "complaints of pain need not be precisely corroborated by objective findings, but they must be consistent with medical findings."Dupuis v. Secretary of Health and Human Services, 869 F.2d 622, 623 (1st Cir. 1989). "`[I]f an impairment is reasonably expected to produce some pain, allegations of [disabling] pain emanating from that impairment are sufficiently consistent to require consideration of all relevant evidence.'" Hargis v. Sullivan, 945 F.2d 1482, 1489 (10th Cir. 1991) (emphasis in original; citation omitted). In assessing complaints of pain some of the possible factors include the levels of medication and their effectiveness, the extensiveness of the attempts (medical or non-medical) to obtain relief, the frequency of medical contacts, the nature of daily activities [and] subjective measures of credibility that are peculiarly within the judgment of the ALJ.
The ALJ's credibility determination "is entitled to deference, especially when supported by specific findings." Frustaglia v. Secretary of Health and Human Services, 829 F.2d 192, 195 (1st Cir. 1987). In determining a claimant's residual functional capacity, the ALJ may rely on reports submitted by non-testifying, non-examining physicians. See generally Berrios Lopez v. Secretary of Health and Human Services, 951 F.2d 427, 429-32 (1st Cir. 1991). This is not an absolute rule since a treating physician's conclusions regarding the ultimate question of disability is not binding to the ALJ. Rodriguez v. Celebrezze, 349 F.2d 494, 496 (1st Cir. 1965). See Arroyo v. Secretary of Health and Human Services, 932 F.2d 82 (1st Cir. 1991). Still, if the treating physicians' assessment are uncontroverted by substantial evidence in the record, and is well supported by medically acceptable clinical and laboratory diagnostic techniques, that is, not inconsistent with other substantial evidence, it should be given some controlling weight. In Tremblay v. Secretary of Health and Human Services, 676 F.2d 11, 13 (1st Cir. 1982), the emphasis placed in the conclusory nature of a treating physician's opinion.
Courts must uphold the Commissioner's findings if a reasonable mind, reviewing the record as a whole, would accept it as adequate to support his [her] conclusions. Irlando Ortiz v. Secretary of Health Human Servs., 955 F.2d at 769 (1st Cir. 1991); Rodriguez v. Secretary of Health Human Servs., 647 F.2d 218, 222 (1st Cir. 1981).
To review the final decision of the Commissioner courts must determine if the evidence of record meets the substantial evidence criteria to support the Commissioner's denial of plaintiffs disability claim. Substantial evidence is "more than a mere scintilla and such, as a reasonable mind might accept as adequate to support a conclusion". Richardson v. Perales, 402 U.S. 389 (1971), quotingConsolidated Edison Co. v. N.L.R.B., 305 U.S. 197 (1938). The findings of the Commissioner as to any fact are conclusive, if supported by the above stated substantial evidence. The court would set aside a denial of benefits only if it is not supported by substantial evidence or if it is based on a legal error. Seavey v. Barnhart, 276 F.3d 1, 9 (1st Cir. 2001). See Rodriguez v. Secretary of Health and Human Servs., 647 F.2d 218, 222 (1st Cir. 1981).
Falu v. Secretary of Health Human Servs, 703 F.2d 24 (1st Cir. 1983).
This Magistrate considers that no substantial evidence in the record as a whole supports the decision of the Commissioner. The decision of the Commissioner denying plaintiff's entitlement to a period of disability and ensuing benefits should be REMANDED for consideration of pain and the testimony of a vocational expert, if necessary,
IT IS SO RECOMMENDED.
The parties have ten (10) days to file any objections to this report and recommendation. Failure to file same within the specified time waives the right to appeal this order. Henley Drilling Co. v. McGee, 36 F.3d 143, 150-151 (1st Cir. 1994); United States v. Valencia, 792 F.2d 4 (1st Cir. 1986). See Paterson-Leitch Co. v. Mass. Mun. Wholesale Elec. Co., 840 F.2d 985, 991 (1St Cir. 1988) ("Systemic efficiencies would be frustrated and the magistrate's role reduced to that a mere dress rehearser if a party were allowed to feint and weave at the initial hearing, and save its knockout punch for the second round").