Opinion
CIVIL NO. 03-2854 (JAG)
January 27, 2004
Camille L. Vélez-Rivé AUSA, U.S. Attorney's Office, Torre Chordóon, San Juan, Pr, Defendant's Counselors
REPORT AND RECOMMENDATION
Plaintiff filed an application for disability insurance benefits with the Social Security Administration that was initially denied. He is a forty eight (48) years-old individual, with high school education, and previous work experience as a quality inspector and machine operator. Plaintiff claimed he was disabled since December 31, 1997, and in his application he claimed benefits as of January 3, 2001, because of bronchial asthma, muscle and back pain, and a major depression.
An administrative hearing was held on June 6, 2002, wherein claimant, a medical expert, and a vocational expert, testified. Thereafter, the Administrative Law Judge (ALJ) issued an opinion finding that claimant should not be considered to be under disability because he was able to perform a significant range of light work. This was adopted as the final decision of the Commissioner of Social Security (the Commissioner) from which plaintiff herein seeks judicial review. 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 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 Health Health Servs., 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 twelve (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, that is, in this particular case as a quality inspector and/or a machine operator, 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 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 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).
The ALJ's opinion indicated the medical record did not show any neurological deficit. Although claimant had been treated for bronchial asthma, the progress notes of treatment failed to show any disabling condition and the examination of the chest X-rays was within normal limits, as well as his blood pressure. Insofar as the mental condition, the ALJ found same not disabling since he was well oriented, coherent, and relevant. No controlling weight was given to the treating psychiatrist's opinion upon considering a consultative evaluation by a psychiatrist and claimant's appearance at the hearing.
An examination of the medical evidence and the record as a whole shows that chest X-rays were normal and plaintiff's lung fields appeared clear. The patient had underwent surgery on his right wrist, without complications, except that after a fracture, the carpal bones were fixed using two orthopedic needles.
The psychiatric report by Dr. Humberto Suarez Torres refers to a first visit in May 30, 2000, and the last visit in May 28, 2002. The patient had received medication and was in Wellbutrin Sr 150 mgs. twice a day and Prozac 20 mgs. daily, with Dalmane 30 mgs. at bedtime. It refers to no sign of improvement. The patient is described as talking very rapid in short statements and with long pauses and his volume was low. The affect was dysphoric and his mood desperate. The flow of thought was moderate and without continuity of ideas. He was not oriented in time. His memory is described as very confused. The immediate, recent, and past memory are considered markedly impaired, as well as his judgment. The diagnosis was of major depressive disorder.
The psychiatric evaluation dated April 28, 2001, refers to symptoms of irritability and depressed mood. Treatment was followed since February of 2001 with Dr. Humberto Suarez. The patient engaged in daily activities, such as watching television and listening to the radio, taking care of his personal hygiene, and having control of his finances. He was not cooperative during the interview with the consultative psychiatrist and was hardly communicative, not spontaneous, and worried. His speech was clear, articulate, and with diminished verbal production. He was observed as not having any problem walking or having difficulty sitting. Affect was appropriate. The flow of ideas was slow and his process of thought was logic, coherent, and relevant. He maintained a sequence in the production of ideas; was oriented in person, and place. Recent and remote memory was preserved. His attention and concentration were diminished. He had good insight and understood the symptoms related to his mental health.
A treating physician's opinion is not the final word on a claim of disability. Under its regulations, the ALJ cannot altogether ignore a treating physician's opinions. 20 C.F.R. § 404.1527(d)(2). See Goatcher v. United States Dept. of Health Human Services, 52 F.3d 288, 289-90 (10th Cir. 1995). During the administrative hearing in the year 2002, claimant indicated he had been receiving treatment from Dr. Suarez for a couple of years, although Dr. Suarez mentions treatment as of 1997.
The neurological evaluation took notice of a fracture that was repaired on the patient's right hand, without complications. He is described as a well-developed, well-nourished male in no acute distress, who was well oriented and able to sit, stand, walk, lie down, and get up without assistance. There was good tone and strength in trapezius and stern muscles. The motor system had no involuntary movements, no atrophy, and had a good tone. Muscles tested were normal and so were his reflexes. There was no tenderness or deformities in the extremities, no atrophy, and good dexterity. There was mild cervical muscle spasm in the neck area and moderate paravertebral lumbosacral muscle spasm in the back. The diagnosis was of chronic cervical and lumbosacral strain. The radiologist's reading indicated the cervical spine had well preserved intervertebral disc spaces and straightening compatible with muscle spasm. The lumbosacral spine showed also well preserved intervertebral disc spaces and straightening compatible with muscle spasm and scoliosis. There is a range of movement chart showing no limitation of movement of the cervical region. The lumbar region had some limitation in lateral flexion.
Due consideration was given by the ALJ to claimant's allegations of pain as an additional disabling factor. 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). 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).
Although the Commissioner cannot be at the whim of any subjective allegation of pain, so long as the statements of claimant or of his 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).
A medical expert, Dr. Jose Ramirez Rivera, testified and narrated at the administrative hearing the medical evidence available. As to the asthma, there were clear lungs and the pulmonary function, with the respiratory flux, was well above the Listing of Impairments. Visits to the emergency room had been of short duration. Making reference to the cervical and lumbosacral condition, the medical expert considered that patient could not bend more than 45 degrees and his lateral flexion was 20 degrees instead of the normal 30 degrees, but there were no other significant limitation of movement. Neither was there limitation as to sitting and standing nor with bending and he could occasionally lift up to 25 pounds, which was well within the residual functional capacity for light kind of work.
The testimony of the vocational expert, Ms. Carmen Margarita Valladares Diaz, was also entertained by the ALJ. Plaintiff's previous work in a factory was low and semi-skilled, allowing to alternate positions, and requiring sedentary to light level of exertion. His previous work as a quality control clerk was also sedentary and/or light, except that if he had to lift something he may need medium level of exertion. This job was also semi-skilled. If additional consideration was given to plaintiff's mental condition, although not to the degree referred to by Dr. Suarez, plaintiff would still have no significant limitations for simple instructions or to keep concentration and attention in activities related to work. For this reason, the vocational expert considered there were available jobs such as ticketer and sorter. These jobs are routine and repetitive and existed in the national economy.
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 Health Human Servs, 703 F.2d 24 (1st Cir. 1983).
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).