Opinion
CIVIL NO. 99-1172 (DRD-JAC).
August 25, 2000.
Oscar CRESPO-LOACUTEPEZ, Esq., for Plaintiff.
Lilliam E. MENDOZA-TORO, Assistant U.S. Attorney, for Defendant.
OPINION AND ORDER
Plaintiff, a fifty-five-year-old individual, with ninth grade education and past relevant work as maintenance man, assembler, driver, carpenter and store manager in his own business, filed this action seeking judicial review of the final decision of the Commissioner of Social Security (the Commissioner) denying his Dr. Finnessy application for a period of disability and ensuing benefits. Social Security Act, 42 U.S.C. § 405(g).
The initial application was filed in April of 1992, alleging inability to work as of April of 1991, due to back pain caused by an herniated disc and arthritis. Plaintiff is insured for disability purposes until December 31, 1994, for which he must show to have been under disability prior to the expiration of his insured status.
The application was initially denied. The first administrative hearing was held on July 6, 1994. After the presiding Administrative Law Judge (ALJ) issued an opinion finding claimant was not under disability, the case was remanded by the Appeals Council for reconsideration determinations. A second administrative hearing was then held on October 15, 1996, wherein claimant appeared and testified again while represented by counsel. The ALJ considered the evidence and issued an opinion concluding that on the date the insured status expired, claimant was not affected by a physical or mental impairment or combination thereof that would meet the listing of impairments. Considering the medical findings, as well as the complaints of pain, the ALJ determined that claimant should not perform strenuous work activity but was still able to engage in light exertion, lifting a maximum of 20 pounds and frequently lifting and carrying up to 10 pounds occasionally, alternating positions. The ALJ also found that there were no mental conditions that would significantly limit work-related activities. Claimant was able to work with co-workers, adapt to work settings, and meet production requirements, without distractions. The low scores obtained in the intelligence testing were found unsubstantiated if considered against a prior ability to perform skilled work and manage living income for the last fifteen years and further considering the medical record and claimant's own admissions of alcohol abuse.
Since the record contained the vocational expert's testimony as to the existence of jobs within the light level of exertion in the national economy, the ALJ concluded there were many similar light kinds of jobs where claimant would be able to alternate positions and within his residual functional capacity, for which he was found not disable.
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. The burden then shifts to the Commissioner to prove the existence of other jobs in the national economy that plaintiff can still perform. Goodermore v. Secretary of H.H.S., 690 F.2d 6 (1st Cir. 1982); Torres v. Secretary of H.H.S., 677 F.2d 167 (1st Cir. 1982). See also 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).
This magistrate has examined the medical evidence and the record as a whole, including counsel's arguments in the memorandum of law as to advanced age at the time last insured for disability purposes and the objections to the store managers position as being a skilled, as performed, or the alcoholism problem to be unsubstantiated. It should be noted that although the ALJ stated a claimant should not be awarded disability because of alcohol abuse, it was also indicated the diminished attention and concentration as tested might have been at the time consequence of the alcohol abuse which the claimant had indicated that he had stopped drinking by 1994. Although under Section 105 of Public Law 104-121 he would be precluded from establishing a disability if the condition was secondary to alcohol abuse, the ALJ delved into the mental condition claim and found it was not significant to hinder work related activities. As such, the mental condition was not a determinative factor in the decision not to find a disabling condition. Still, the opinion of the ALJ in discussing a prior alcohol abuse was grounded both in the medical record and on claimant's own admissions during the administrative hearings.
In 1996, claimant testified he was not under the care of a treating doctor nor was taking medication, except for over-the-counter Tylenol. He was using a cane but such assistive device has not been recommended by a physician. The claimant indicated he would feel pain if he remains seated for more than fifteen minutes or when he went to the doctor or went shopping. He would be laying down in his house watching television. He began to drink excessively when he got depressed, sometimes 12 beers in a day and sometimes a day in between drinking, but most of the time every day. If there was rum, he would also have it.
His previous job as a store manager involved working with his wife in their own business. She handled the receipts and books and he would take care of the merchandise.
Plaintiff indicated he would listen to the radio very little, would watch television, and would visit his sister who lived down the street but not very frequently.
The vocational expert, Mr. Miguel Pellicier testified as to the jobs claimant previously held. He worked at the store mostly as a dependent but was also in charge of delivering the goods and buying the merchandise. Works claimant previously performed were of medium level of exertion, and even the store manager job was also considered medium in the way he performed it. Still, the vocational expert testified, given the questions and hypothesis submitted, that claimant was able to perform only jobs of light nature.
The record shows that by 1992 plaintiff would still drive, but not for long periods and could use public transportation. He would also watch television for two or three hours about twice a day and would do some reading for about half an hour. He would visit relatives or friends about once a week just to talk.
The medical evidence is being succinctly indicated below. Dr. Alfred Palmieri considered the nerve conduction studies in 1990 to be within normal limits. The electromyography was consistent with left L5, S1 root irritation. A lumbar MRI scan did confirm left lateral disc herniation, without evidence of spinal stenosis or "spondylolisthesis." There was a normal signal within the marrow spaces of the spine and a mild compression of the thecal sac, without evidence of significant compression upon the S1 nerve root.
Dr. Robert V. Finnessy, an orthopedic surgeon, would report the patient's visits with complaints that initiated in 1989 for chest pains. After hospitalization there was no indication of coronary occlusion or myocardial infarction. Examination of the X-rays provided and the subjective complaints reiterated, a history of right elbow pain and lower back pain. There was no evidence of bone, joint or periosteal pathology, except for mild degenerative arthritic spurs in the entire lumbosacral spine, compatible with the patient's age and no narrowing of the intervertebral disc spaces. The physical examination showed no evidence of right upper extremities abnormalities, no visible or palpable atrophy of shoulder girdle, arm, forearm or hand musculature. There was active range of motion and full movement of the right shoulder, elbow, wrist and, all fingers and thumb. The patient complained of tenderness over the lateral edge of the right lateral humeral epicondyle compatible with a diagnosis of chronic lateral epicondylitis. Examination of the lumbosacral spine showed an odd gait demonstrating a mild antalgic limp to the left, but the stress gait testing components of toe-walking and heel-walking at either foot was paradoxically resolved, indicating no distinctive imbalance or weakness of lower extremity musculature. Active and passive range of motion of the hips and knees was bilaterally complete. There was limitation of forward bending as to the lower back, with complaints of pain, but arcs of right and left rotation were complete. Palpation of the back indicated bilateral paraspinal lumbosacral muscle spasm, more evident on the left than at the right.
From an objective orthopedic examination, the patient was found to have chronic lateral epicondylitis of his right elbow which would probably respond to conservative treatment, inclusive of steroid injections. He also had indication of relatively mild disc herniation at L5-S1, without neurological deficit.
In 1991, Dr. Finnessy conducted another examination and the patient complained of pain over the lateral aspect of the left elbow that started a few months before. Still, there were no abnormal soft tissue or bone prominences or depressions over or about either elbow and one was identical in appearance to the other. The previous range of motions described of shoulder, head, neck, fingers, writs and forearms, were still bilaterally complete. There was a normal postural attitude and no visible atrophy of the trunk, pelvic girdle or lower extremities. The patient displayed normal walking pattern which was this time unadorned by limp, imbalance or visible evidence of weakness. The neurological examination revealed equally active and normally responsive reflexes and the muscle power testing had no detectable weakness. There was also active range of movement of the hips, knees and ankles bilaterally complete. The back showed on palpation bilateral paraspinal mild lumbosacral muscle spasms. The physical examination revealed objective abnormal physical findings referable to the lower back of a minimal disc herniation, with a probable mild left sciatic radiculopathy. There was no abnormality of the cervical spine, other than spontaneous development of degenerative arthritis and degenerative cervical disc disease which was believed age-related.
Dr. Michael Lospinuso, a spinal surgeon, reports the patient was treated for episodes of pain twice in 1991. The patient was found to be neurologically intact, without tension sign present. He found no objective testing, upon review of all the reports presented, that precluded some form of gainful employment. Previously in 1989, upon complaints of chest pain, the patient had been transported to the hospital for cardiac evaluation but did not follow-up for an office visit.
X-rays of the lumbosacral spine dated 1991 showed minimal degenerative spurring. A medical report in 1992 by Dr. Alfred Hess stated the patient had pain in his back and in the left arm. The patient had been treated for Lyme's disease by one Dr. González on two occasions. Medication being used was Tylenol and at times Nuprin. No mark deviation of the spinal axis was noted and no remarkable pain over the sciatic notch areas bilaterally. Muscle spasm was noted. The range of motion was essentially normal. The extremities had no signs of active joint, acute inflammation or joint swelling. The range of motion and strength in all extremities was normal. The neurological assessment was normal sensation, without pathological reflexes and no decrease in muscle tone. The upper extremities were also normal. Although the patient used a cane for ambulation, there was no remarkable antalgia or ataxia during ambulation. Although a prior MRI study showed some degree of disc herniation, the physician found no remarkable orthopedic finding. The range of motion chart was normal, except for lumbar flexion of up to 85 degrees, not the full 90 degrees.
Dr. Finnessy reiterates his prior findings upon examination in 1992, after the patient had indicated having two episodes of emergency treatment for his back pain. Other two consultative examinations in 1994 by Dr. Hoheb and Dr. K. Pitta are consonant with above described. A psychiatric report appears in 1997, well after plaintiff's insured status had expired in 1994, and which is not in any way related to previous medical examinations or reports regarding the existence of a mental condition.
Rodriquez v. Secretary of H.H.S., 647 F.2d 218, 222 (1st Cir. 1981) (claimant is not entitled to disability benefits unless he can demonstrate that his disability existed prior to the expiration of his insured status and that the impairment reached a disabling level of severity by that date. See Cruz Rivera v. Secretary of H.H.S., 818 F.2d 96, 97 (1st Cir 1987).
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).
This magistrate concludes that an examination of the evidence in the record as a whole provides substantial evidence to support the decision of the Commissioner denying plaintiff's entitlement to a period of disability and benefits. Thus, it is hereby AFFIRMED.
The Clerk is to enter judgment accordingly.
IT IS SO ORDERED.
San Juan, Puerto Rico, August 21, 2000.