Opinion
Civil No. 99-1294 (PG/JAC)
October 11, 2000
For Plaintiff, Fabio A, Román. Esq.
For Defendant, Lilliam E. Mendoza, Assistant U.S. Attorney.
OPINION AND ORDER
Plaintiff filed this application for disability insurance benefits with the Social Security Administration requesting entitlement to a determination of disability and ensuing benefits as of an onset date of June 20, 1996. He claimed inability to work due to pain in his shoulders, right knee and back, irritable colon, headaches, insomnia, and tension. He is closely approaching advanced age, with high school education and past relevant experience as inspector and supervisor in the agricultural industry, which is considered semiskilled to skilled kind of work.
The application was initially denied and after the requested administrative hearing held on November 7, 1997, the Administrative Law Judge (ALJ) issued an opinion finding that claimant should not be considered to be under disability since he could perform substantial gainful activity on a sustained basis. This was adopted as the final decision of the Commissioner of Social Security (the Commissioner). Plaintiff now seeks judicial review of this final decision denying his disability claim. Social Security Act, 42 U.S.C. § 405 (g).
Section 205(g) provides:
"[t]he court shall have power to enter, upon the pleadings and transcripts of record, a judgment affirming, modifying, or reversing the decision of the commissioner, with or without remanding the cause for a rehearing".
To establish entitlement to benefits, claimant has the burden of proving that he became disabled within the meaning of the Social Security Act. Disability is determined in §§ 216(i)(1) and 223(d)(1), 42 U.S.C. 416(i)(1) and 423(d)(1). See Bowen v. Yuckert, 482 U.S. 137, 107 S.Ct. 2287, 2294 n. 5 (1987); Deblois v. Secretary of H.H.S., 686 F.2d 76, 79 (1st Cir. 1982). Claimant may be considered disabled if he is unable to perform any substantial gainful employment because of a medical condition that is expected to last for a continuous period of at least 12 months. The impairments imposed by the condition or combination of conditions must be so severe as to prevent him from working in his usual occupation and in any other substantial gainful employment upon further taking in consideration age, education, training, and work experience. Social Security Act, 42 U.S.C. 423(d)(2)(A).
Once claimant has established he is unable to perform his previous work, then the burden shifts to the Commissioner to prove the existence of other jobs in significant numbers in the national economy that claimant is still able to perform. Goodermote v. Secretary of H.H.S., 690 F.2d 5 (1st Cir. 1982); Torres v. Secretary of H.H.S., 677 F.2d 167 (1st Cir. 1982). See Vázquez v. Secretary of H.H.S., 683 F.2d 1 (1st Cir. 1982); Geoffrey v. Secretary of H.H.S., 663 F.2d 315 (1st Cir. 1981).
The ALJ determined that claimant showed he had right carpal tunnel syndrome, arterial hypertension, diabetes mellitus, irritable bowel syndrome, lumbosacral spondylosis, peritendinitis calcificans of the right shoulder and arthritis of the right knee. The claimant's mental condition was characterized with anxiety. Still orientation and affect were adequate, with poor capacity to tolerate work pressure. The longitudinal aspect of the medical evidence was considered not to support the severity assessment of the private psychiatrist As such, ALJ concluded that claimant did not have significant intellectual or personality deterioration and his effective intelligence was within normal limits, except for a restriction to perform complex work functions. Further considering complaints of pain, the ALJ found claimant was limited to light, unskilled, simple work activity, that would allow the opportunity to alternate positions, without requiring performance of complex tasks. As such, claimant could not carry out his previous employment, which was of medium level of exertion. With the assistance of a vocational expert, the ALJ found there were jobs within the above residual functional capacity that claimant could perform, such as inspector of boots, shoe packer, and conveyor loaders. Although the claimant's additional non-exertional limitations did not allow him to perform the full range of light work, having found the existence of jobs in the national economy that claimant could perform, the ALJ issued a determination that claimant was not under disability.
During the administrative hearing claimant testified, with the assistance of counsel, that he was retired with a pension from the Department of Health, his prior work. He had suffered pain in the back and spine, a spur in his left ankle, and had suffered a dislocated shoulder. He has an irritable colon and accelerated intestine. He also claims to be treated by a cardiologist for enlarged heart, high blood pressure, and resulting headaches. He was also undergoing treatment with a psychiatrist.
The medical record shows that plaintiff underwent surgery for removal of two colonic polyps in August of 1996. X-rays of the spine found no evidence of acute bony injury or dislocation, except for the presence of mild spur formation consistent with mild degenerative joint disease. Arterial wall calcifications were noted incidentally. Further studies showed a borderline left atrial dimension of the cardiac chamber, but the valves had normal opening. The left ventricular wall had moderate left ventricle hypertrophy with preserved systolic function at rest
An internist's evaluation described an individual who was hypertensive for four to five years, and diabetic for two years responding to oral hypoglycemiants. He had complaints of chronic diarrhea. A gastroenterologist's assessment is reported as presenting colon diverticulitis and irritable bowel syndrome, for which Metamucil powder, and high fiber diet were prescribed. The musculoskeletal system shows left ankle sprain two years previous with mild pain sometimes. There was mild weakness of legs when he walked long distances and mild chronic low-back pain when he raises from bed in the morning. The endocrine-metabolic system presented mild elevation of triglycerides and only diet was recommended. The neurological-psychiatric aspect refers to no prior history of a nervous disorder and no neurological disorder at the time of evaluation, that is, October 6, 1996. The general appearance was an individual in no acute distress, who was well oriented and cooperative. The back spine showed mild tenderness to percussion of right paravertebral lumbar muscles. The extremities presented no leg edema, no varicose veins, no joint swelling or tenderness. Peripheral pulses were adequate and the neurological aspect was grossly normal without motor or sensory deficit. The diagnosis was of arterial hypertension, controlled; diabetes mellitus, type II, controlled, irritable bowel syndrome, spondylosis of the lumbosacral spine and small left posterior calcaneal spur. The prognosis was fair. The patient could tolerate walking and standing for up to one to two hours and sitting for up to four hours, without limitations in lifting, carrying or handling objects of up to 60 pounds.
X-rays of the lumbosacral spine showed vertebral bodies and intervertebral spaces as normal. The impression was of spondylosis. The left ankle showed a small posterior calcaneal spur, without any other bone or articular pathology. The chest had a calcified sortic arch. There is a range of movement chart that was essentially normal in all aspects, except for lumbar region flexion and extension of 80 degrees. The report of the gastroenterologist, Dr. Edward S. Singh refers to the presence of multiple colonic polyps and diverticulitis. Tissue removal reports at the time indicated the excision of two fragments and four other small fragments.
Heart X-rays indicated borderline cardiomegaly, mild dilatation of the dular calcification, probably representing an old healed granulomas.
In 1997 examinations showed the thoracic spine had intervertebral disc spaces and vertebral bodies heights well maintained and bony alignment was intact, without bony lesions. There were spondnotic changes of the spine and there were muscle spasms present The knees had normal joint spaces and normal articular surfaces. The impression was of early degenerative disease.
There is an additional neurological evaluation by Dr. Samuel Méndez, describing a patient who was alert, oriented fully, cooperative, with adequate memory. No motor deficit and normal reflexes were assessed. Strength was intact in all extremities. Pinpricking and proprioception were intact in all areas. Wide-based gait is described and superficial reflexes were symmetrical. The diagnosis was of right carpal tunnel syndrome, chronic lumbalgia, diffuse arthralgia, and depression by history.
A psychiatric report by Dr. lbzan Pérez Muñoz is dated March 1997 and refers to numerous somatic complaints. The patient had a low tone of voice with clear articulation. There were no tics or mannerisms and he established poor visual contact Verbal contact was poor and movements showed diminution. The affect was adequate. The mood was serious, worried, frustrated and depressive. The thinking process appeared coherent, relevant and goal directed, without blocking or neologisms. Judgment was diminished and insight was adequate. Attention and concentration were low. The patient was oriented in the three spheres and memory for remote, recent and immediate events were considered low. The diagnosis was of chronic major depression. The patient was under active treatment with antidepressants and with psychotherapy with poor respond. The other physical conditions were considered to cause his emotional problems to become chronic.
A psychiatric evaluation by Dr. Luis F. Iturrino refers to an individual who was hostile, not spontaneous, not cooperative, dramatic, apathetic, with sad expression. He spoke in a soft tone of voice with normal underproductive speech. There was no blocking or pressure of thoughts. The answers were relevant and coherent, guarded and evasive, with good abstraction. The attention was not easily distracted. The patient was oriented in person and place. Immediate, recent and remote memory was good. Judgment, social and personal, was good and insight was moderate. The diagnosis was of depressive disorder.
A neurological evaluation refers to numerous complaints of pain for muscle spasms. There were no heart pain and no shortness of breath. The patient is described as a beard and combed hair individual, who is clean, spontaneous, with good attention. He was a good informant of the history of his present illness and had a slight limb. The motor system had a normal tone and no atrophy. Lasegue was negative bilaterally seated and there was some limitation of the lumbar flexion and lateral movement. The spine had moderate lumbar spasm, no swelling, trophic changes, deformity or contracture. The diagnosis was of left L5 radiculopathy, lumbar myositis, dislocation of the right shoulder, peripheral neuropathy, and bilateral carpal tunnel syndrome.
The vocational expert, Dr. Miguel Cruz, testified that plaintiff's prior jobs as inspector in the agricultural industry, handling chemicals and pesticides, range from low to moderate initially and after information was provided is considered skilled and light, with transferable skills. The job as a medical service technician in the military is skilled and heavy, without transferable skills. If the plaintiff was considered to retain the functional capacity for light jobs that would allow him to alternate positions, there were jobs in the national economy that he could still perform. These jobs included work in the boot and shoe industry as inspector, shoe packer, and conveyor loader in the medical industry.
The ALJ considered the above medical evidence, and concluded that physical examinations failed to reveal significant sensory deficits, muscular weakness, motor atrophy or significant reflex abnormalities. As to the gastrointestinal condition, there was no marked weight loss, hemorrhages, ascites, enlargement of the organs or any other significant complications. The diabetes and the arterial hypertension indicated no end-organ damage was present nor any significantly elevated blood pressure. Notwithstanding the depressive condition, the claimant was not significantly impaired and activities of daily living were moderately restricted, with slight difficulties of social functioning and seldom deficiencies of concentration, persistence and pace. Thus, there was no significant intellectual or personality deterioration. The complaints of pain were given due consideration but not to the extent claimed, since it was not of such disabling frequency and intensity to prevent claimant from lifting and carrying a maximum of 20 pounds and occasionally 10 pounds or otherwise functioning normally in activities not requiring prolonged sitting, standing and walking or performance of complex tasks.
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 plaintiff's 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), quoting Consolidated 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.
Falú v. Secretary of H.H.S., 703 F.2d 24 (1st Cir. 1983).
The undersigned magistrate considers that an examination of all the evidence in the record as a whole shows there is substantial evidence to support the final decision issued by the Commissioner and thus it is AFFIRMED.
The Clerk is to enter judgment accordingly.
IT IS SO ORDERED.