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Marengo v. Apfel, Comm'r. of Social Security

United States District Court, D. Puerto Rico
Aug 25, 2000
CIVIL NO. 99-1787 (DRD-JAC); 14 (D.P.R. Aug. 25, 2000)

Opinion

CIVIL NO. 99-1787 (DRD-JAC); 14.

August 25, 2000.

Raymond Rivera-Esteves, Esq., for Plaintiff

Lilliam E. Mendoza-Toro, Assistant U.S. Attorney, for Defendant.


REPORT AND RECOMMENDATION

Plaintiff filed an application for a determination of entitlement to a period of disability and benefits alleging inability to work since April 25, 1995, because of back and neck painful conditions, high blood pressure and status post surgery of the shoulders. After the application was denied and the decision of the Administrative Law Judge (ALJ) was adopted by the Commissioner of Social Security (the Commissioner), plaintiff filed this action seeking judicial review of the final decision of the Commissioner denying his application and finding him not to be under disability. Social Security Act, 42 U.S.C. § 405(g).

The requested administrative hearing was held on March 13, 1997, and claimant testified, while represented by counsel. Thereafter, the ALJ issued an opinion concluding that claimant retained the ability to perform his previous work as a supervisor. He had been working with the Electric Power Authority before he suffered the work-related accident and was at the time allowed to receive a pension for years of service. Since the job did not required engaging in medium nor heavy exertion, it was not precluded by the limitations imposed by the subjective complaints of pain nor the combination of musculoskeletal and hypertensive conditions suffered by the claimant.

The ALJ indicated the medical evidence indeed established the presence of some hyper tropic changes at the C4-C5 level, anterior spur formation and minimally reduced spaces and spastic changes, and spondylosis at the L4-L5 level. He had cervical and lumbar spasms after receiving trauma to both hands upon a fall related to his work. There were also degenerative arthritic changes with minimal narrowing bilaterally and central disc herniation and bulging annulus with moderate muscle spasms in both upper trapeziums. Still, neck and shoulder range of movements were within normal limits. There was no neurological deficit, no cervical radiculopathy or peripheral nerve entrapment. Medical examinations revealed no weakness or atrophy. The high blood pressure seemed to be under control with medication.

Although there was a combination of musculoskeletal impairments that could cause pain and discomfort, imposing some limitation to performance of work related activities, it was not of such intensity and persistence as to preclude work activity of light or sedentary nature. Thus, the ALJ reached the conclusion that the residual functional capacity allowed claimant to perform his past relevant work and should be considered not under disability.

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).

A perusal of the evidence in the record as a whole shows there is substantial evidence to support the finding of the Commissioner. Plaintiff testified at the administrative hearing of March 13, 1997, that he did not have to lift heavy objects in his previous job as a supervisor. Some of the work was done at the office, mostly seated, yet able to alternate positions, and other times he was in the field. He had worked for fifteen (15) years doing that work until he reported to the State Insurance Fund after a fall. He returned to work at his previous position for three months, but was unable to keep performing same. He could remain seated for a couple of hours due to the pain and had no difficulty walking.

The record of the State Insurance Fund refers to cervical sprain and herniated nucleous pulposus at L5-S 1, with bulging annulus at L4-5. The EMG and NCV were normal. He received physical therapy without improvement and was referred to the orthopedist. There was no evidence of cervical radiculopathy or of peripheral nerve entrapment.

X-rays of the hands showed no evidence of fracture, dislocation, arthritic or inflammatory changes. The joint spaces were adequately maintained. There was no evidence of neurological deficit.

The Special Medical Report of the State Insurance Fund refers to spondylitic degenerative changes. Gait and movements, sensory, reflexes, tone and coordination were normal.

A CT-Scan of the cervical spine showed the degenerative arthritic changes with for animal narrowing bilaterally of the C4-C5 level. The lumbar spine had no disc degeneration. The diagnosis was of herniated lumbar disc at L5-S1 and bulging annulus at L4-5. The examination of the right and left hands were within normal limits.

A medical report by Dr. Melvyn Acosta Ruiz refers to arterial hypertension producing no end organ damage. Stress test showed no ischemic changes. A neurological evaluation by Dr. Evelyn Rodrúguez refers to complaints of pain. The patient represented his chronological age and was in no distress. He had normal gait and posture, no limping or imbalance. He sat, stood, got on and off the examining table in a normal manner, without supportive device. He was alert and with good memory and cooperative. The motor system had a normal tone and no atrophy. The column had no spasm. He could alternate movement with his extremities and could pinch, travel, be in heights and drive; he could also bend, stoop, and drag, and could understand and remember instructions.

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 there is substantial evidence to support the decision of the Commissioner denying plaintiff's entitlement to a period of disability and benefits. Thus, it is hereby recommended that the decision of the Commissioner BE AFFIRMED.

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).

San Juan, Puerto Rico, August 21, 2000.


Summaries of

Marengo v. Apfel, Comm'r. of Social Security

United States District Court, D. Puerto Rico
Aug 25, 2000
CIVIL NO. 99-1787 (DRD-JAC); 14 (D.P.R. Aug. 25, 2000)
Case details for

Marengo v. Apfel, Comm'r. of Social Security

Case Details

Full title:EMILIO MARENGO, Plaintiff, v. KENNETH S. APFEL, Commissioner of Social…

Court:United States District Court, D. Puerto Rico

Date published: Aug 25, 2000

Citations

CIVIL NO. 99-1787 (DRD-JAC); 14 (D.P.R. Aug. 25, 2000)