Opinion
CIVIL NO. 03-1106 (PG)
February 9, 2004
Camille L. Vélez-Rivé AUSA, U.S. Attorney's Office, Torre Chordóon, San Juan, Pr, for Defendant's Counselors
REPORT AND RECOMMENDATION
Plaintiff filed an application for disability insurance benefits on Novembers, 2000, alleging inability to work since June 1, 2000, at age 52, because of dizzy spells, low back pain, and a mental condition. An administrative hearing was held on February 21, 2002, solely to entertain the testimony of the vocational expert. Thereafter, the presiding Administrative Law Judge (ALJ) issued an opinion denying claimant's disability and finding that he retained the residual functional capacity for light work, which was adopted as the final decision of the Commissioner of Social Security (the Commissioner).
Plaintiff has filed this action seeking judicial review of the final decision of the Commissioner denying him entitlement to a period of disability and ensuing benefits. 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".
The opinion of the ALJ refers to medical evidence of a previous brain contusion after claimant suffered an automobile accident in the year 1998. X-rays of the cervical spine dated October 21, 2000, revealed small anterior spur, mild osteoarthritis, and cervical spasms. An MRI of the lumbar spine of November 7, 2001, showed annular disc bulge at L3-L4 level, disc protrusion at L5-S1, and degenerative disc disease at L3-L4 and L5-S1 levels. Thereafter, in 2002, the MRI of the cervical spine revealed bulging annulus at C4-C5, C5-C6 and C6-C7 levels. The ALJ also referred to a consultative examination which was construed to be unremarkable. The diagnosis was of chronic lumbalgia and cervicalgia and lumbo-sacral syndrome. In regard to the mental condition, the ALJ referred to a diagnosed adjustment disorder but progress notes showed that claimant was improving. The two consultative psychiatric evaluations referred to major depression r/o organic depression where the patient was considered logical, coherent, and relevant. The ALJ concluded that claimant had the residual functional capacity to perform at least light work activity not involving skilled, complex or detailed tasks. Although he could not perform his previous relevant work as claims adjuster, cabinet maker and collector that was semi-skilled and requiring medium exertional activity, through the testimony of the vocational expert the ALJ found jobs that existed in significant numbers. Light kind of work included, consonant with the hypothesis submitted by the presiding ALJ, that claimant could perform work as stenciler, marker, and sorter. On the above grounds, claimant was considered not to be disabled and thus his application was denied.
This Magistrate's main concern is with the ALJ selectively disregarding some of the evidence of record, including its own consultative evaluation by a neurologist, Dr. Samuel Mendez, foremost, and the only residual functional capacity assessment in the record. For which reason Dr. Mendez' report remains uncontested. No medical expert's testimony was obtained to explain the residual limitations, if any, that the combination of impairments imposed on the claimant. The interpretation of plaintiff's residual functional capacity for light work as presented in the record oversteps a lay person's competence and would at east require the testimony of a medical expert.
Gordils v. Secretary of Health Human Servs, 921 F.2d 327, 329 (1st Cir. 1990), Rivera Torres v. Secretary of Health Human Servs, 837 F.2d 4, 6-7 (1st Cir. 1988).
The ALJ indicated solely that Dr. Mendez' assessment was contradicted by unremarkable objective findings. Still, Dr. Mendez described an individual who had a lumbar HNP, with tender cervical, and lumbar paraspinal muscles. The range of movement was limited as to flexion of the spine. The exertional limitations form shows the patient able to carry occasionally and frequently up to 10 pounds. Standing and walking was allowed for at least 2 hours in an 8-hour workday.
The medical evidence also shows the medication and dosage prescribed for musculoskeletal and for a dizzy spell conditions; such as Relafen 750 mg., Atenolol 50 mg., Ketorolac 30 mg., Dramanine 50 mg., and Kenalog 40 mg. The patient also received Risperdal, Celexa, and Xanax for his mental health condition.
A psychiatric report by Dr. Cotto Porez in 2001 refers that medication provided at the San German Behavioral Center includes Effexor 75 mg., Trazodone 50 mg., at bedtime, and Alprazolam 0.5 mg. during the morning and at bedtime. It describes an individual who looks healthy but old for his chronological age and who was in emotional stress. He was clean but unkempt, with surgical scar on his back, and accidental scars on the forehead and right leg. The patient was cooperative, with appropriate behavior. Gait was normal but slow. He spoke coherently, slowly, with clear articulation and variable tone. Thought process was organized and he was logical, pertinent, and productive. There were no delusions and he was oriented in the three spheres. Memory was preserved in remote time but immediate and recent memory was slightly diminished. Attention and concentration were satisfactory. Insight and judgment were fair.
Progress notes from the Behavioral Center report some improvement in August of 2001, but thereafter presented a deterioration by October of 2001 when the patient was seemly affected by news of the terrorist attack. The patient had difficulty to obtain approval for the medication that suits him the most, the Risperdal, although it makes him sleepy during the day; when the medication is made available, it is rationed and he sometimes obtained samples of another medication. The patient also developed stuttering for which he tried to speak slowly. There is a partial residual functional assessment indicating that due to dizzy spells, the patient should never climb nor balance. He had also lost the sense of smell and taste after the automobile accident.
The MRI of the lumbosacral spine refers to an impression of annular disc bulge at L3-L4 and a broad based disc protrusion at L5-S1 with mild stenosis of the neural foramina bilaterally. There was also disc degeneration from L3-L4 down to L5-S1.
The vocational expert's testimony concluded claimant would be unable to perform above stated light kind of jobs or any other jobs, if due consideration was given to the imitations imposed by the combination of physical and mental impairments and the resulting pain.
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. he 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 Health Human Serv., 690 F.2d 6 (1st Cir. 1982); Torres v. Secretary of Health Human Servs., 677 F.2d 167 (1st Cir. 1982). See also 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).
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. Paralyze, 402 U.S. 389 (1971), quotingConsolidated 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).
This Magistrate has examined the medical evidence and the record as a whole and [considers] the case should be remanded to further consider aspects of plaintiffs residual functional capacity on the basis of medical not lay person appropriate assessment The `examination of the evidence in the record provides grounds to conclude there Is no substantial evidence to support the decision of the Commissioner denying plaintiffs entitlement to a period of disability and benefits. Thus, It is hereby recommended that the decision of the Commissioner BE REMANDED.
The parties have ten (10) days to file any objections to this report and recommendation. Failure to fife 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). See Paterson-Latch Co. v. Mass. Mun. wholesale Elec. Co., 840 F.2d 985, 991 (1st Cir. 1988) (" Systemic efficiencies would be frustrated and the magistrate's role reduced to that a mere dress rehearser if a party were allowed to feint and weave at the Initial hearing, and save Its Knockout punch for the second round").