Opinion
CIVIL NO. 02-2359 (HL)
January 22, 2004
Raymond Rivera-Esteves, Esq., San Juan, PR, for Plaintiff
Camille Vélez Rivé, San Juan, PR, for Defendant
REPORT AND RECOMMENDATION
Plaintiff filed her last application for disability insurance benefits with the Social Security Administration on April 27, 1997, which was denied. She had previously claimed benefits in 1995, alleging disability as of June 25, 1993, but she failed to appeal the decision. She now claims being disabled under her second application because of cervical spasms and carpal tunnel syndrome.
An administrative hearing was held on February 24, 2000. Thereafter, the Administrative Law Judge (ALJ) issued an opinion, that was adopted as the final decision of the Commissioner of Social Security (the Commissioner) determining that claimant should not be considered disabled since she retained the residual functional capacity for light level of work. Since her previous work as a secretary was well within such level of exertion, claimant was considered able to perform her previous work. 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".
In order to establish entitlement to benefits, claimant has the burden of proving that she 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.C. 2287, 2294 n. 5 (1987); Deblois v. Secretary of Health Human Servs., 686 F.2d 76, 79 (1st Cir. 1982). Claimant may be considered disabled if she 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 twelve (12) months. The impairments imposed by the condition or combination of conditions must be so severe as to prevent her from working in her usual occupation, that is, in this particular case, as a secretary, and, if appropriate, 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). Plaintiff herein has completed three (3) years of college and secretarial courses. She is considered a younger individual, a thirty seven year-old female, who met the requirements for disability insurance status up to December 31, 1998.
Once a claimant has established she is unable to perform her previous work, it is then that 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 Health Human Servs., 690 F.2d 5 (1st Cir. 1982); Torres v. Secretary of Health Human Servs., 677 F.2d 167 (1st Cir. 1982). See V´zquez 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).
Although reopening of her already adjudicated period was denied, the ALJ made a threshold inquiry as to the medical evidence to allow a longitudinal review as to claimant's condition. There had been complaints of back pain with some numbness, without neurological deficit. These symptoms were aggravated in 1995 and during her pregnancy. No evidence of muscle weakness, atrophy, lost of tone or abnormality in gait or station were present. The diagnosis was of low back pain radiculopathy. X-rays and a computerized tomography scan did not reveal joint, soft tissue or bone pathology.
A consultative neurological evaluation in 1998 failed to reveal any significant abnormality. There was no limitation in the range of motion. On September of 1998 claimant was for the first time evaluated by a psychiatrist. She was depressed, with psychomotor retardation but concentration and memory were not significantly impaired. She was coherent, relevant, logical, and oriented in the three spheres, without disturbance in the thought process. She could perform daily activities at her home, would watch television, read the newspapers, listen to the radio, attend medical evaluations on her own, and take the children to school.
The ALJ gave due consideration to claimant's allegations of pain as an additional disabling factor but found that the credible evidence did not support the degree, intensity, persistence, or duration alleged. See Section 3(a)(1), which amended Section 223(d)(5) of the Social Security Act, 42 U.S.C. § 423 (d)(5). Where a potential basis for pain and restriction exists, the subjective symptoms must be evaluated with due consideration for credibility, motivation, and medical evidence of impairment. Gray v. Heckler, 760 F.2d 369, 374 (1st Cir. 1985); Alvarado v. Weinberger, 511 F.2d 1046, 1049 (1st Cir. 1975). Although the Commissioner cannot be at the whim of any subjective allegation of pain, so long as the statements of claimant or of her physician as to pain are not inconsistent with the medical findings, these should permit a finding of disability where the medical findings alone would not. Avery v. Secretary of Health Human Servs., 797 F.2d 19 (1st Cir. 1986).
The ALJ provided specific findings in support of the decision to discount claimant's complaints of pain to the degree and intensity alleged. When pain or restriction is shown to exist, the actual degree of pain plaintiff suffers is for the Commissioner to evaluate in light of the supporting evidence. Gagnon v. Secretary of Health and Human Services, 666 F.2d 662, 665 (1st Cir. 1981). Although pain is subjective, clinical techniques are appropriate to use in evaluating the probability of its existence, magnitude, and disabling effects. Rico v. Secretary of Health, Education and Welfare, 593 F.2d 431, 433 (1st Cir. 1979). See DaRosa v. Secretary of Health Human Servs., 803 F.2d 24, 26 (1st Cir. 1986).
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), 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.
Fal v. Secretary of Health Human Servs, 703 F.2d 24 (1st Cir. 1983).
Succinctly, the examination of the record shows the findings of the ALJ are well supported. X-rays of the lumbosacral, thoracic, and cervical spine in 1997 and 1998 found no abnormalities. There is an abnormal study dated 1997 upon complaints of lateral leg numbness which indicated there was no evidence of entrapment neuropathy.
A neurological evaluation dated June 29, 1998, described the patient as alert, cooperative and clean, who came to the examination alone and driving her own car. There was no limitation in the range of movement and the measurement of the calves, arms and forearms were symmetrical. She had normal coordination. The motor system had normal muscle tone with tenderness to palpation, without atrophy or fasciculation. The strength in all tested muscles was normal, and so was station, gait, and posture. She could stand over heels and toes. The assessment was of lumbar pain without restriction in the range of motion. She could sit, stand, walk, and travel and could handle and lift common objects. The diagnosis was of chronic lumbar painful syndrome.
There is a nerve conduction study upon complaints of hand pain that refers to sensory nerve entrapment at the wrist level in 1997. The neurological study found normal pin prick light touch and proprioception intact without dermatome or sensory level. X-rays of both hands in 1997 found no evidence of fracture, dislocation or any other significant bony or joint abnormalities.
In relation to her mental complaints, there is a psychiatric report dated September 15, 1998. It describes a well-developed, well-nourished female, with adequate appearance, who represented her chronological age. She looked sad but was cooperative and spontaneous, with sporadic visual contact. Psychomotor activity is described as moderate to severe. She was coherent, logical, and relevant. The mood was depressed and her affect was adequate. The diagnosis was of major depression. There is no additional previous or subsequent treatment for a mental component.Manso Pizarro v. Secretary of Health Human Servs., 76 F.3d 15, 17-18 (1st Cir. 1996).
The administrative determination that claimant is not disabled where she remains physically and mentally able to do her previous work, even without investigating whether work exists in significant numbers in the national economy, has been sustained as a reasonable interpretation of the corresponding regulation. Barnhart v. Thomas, 124 S.C. 376 (2003) ( citing Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.C. 2778 (1984)).
There is substantial evidence in the record as a whole to support the decision of the Commissioner, for which reason it is recommended that IT BE AFFIRMED.
IT IS SO RECOMMENDED.
The parties have ten days to file their objections to this report and recommendation. Templeman v. Chris Craft Corp., 770 F.2d 245, 247 (1st Cir. 1985). Failure to do so may be considered a waiver of the party's right to review and claims not preserved by objection are precluded on appeal. Davet v. Maccarone, 973 F.2d 22, 30-31 (1st Cir. 1992). See Henley Drilling Co. v. McGee, 36 F.3d 143, 150-151 (1st Cir. 1994). See generally United States v. Valencia, 792 F.2d 4, 6 (1st Cir. 1986).