Opinion
CIVIL NO. 02-2728 (PG)
January 27, 2004
Camille L. Vélez-Rivé AUSA, U.S. Attorney's Office, Torre Chordóon, San Juan, Pr, for Defendant's Counsellors
REPORT AND RECOMMENDATION
Plaintiff, who was 44 years old at time of alleged disability, with a sixth grade education, and relevant work experience as automobile mechanic, filed an application for disability insurance benefits with the Social Security Administration on August 27, 1997. The disability claim relates to complaints of a back condition with pain radiating to the lower extremities, neck, and left arm pain after he had suffered a work accident. He has been diagnosed with an herniated nucleus pulposus at L4-L5 with right radiculopathy and lumbar myositis and initially received treatment through the State Insurance Fund.
An administrative hearing was held on February 1999 to entertain the testimony of the vocational expert, Mr. Miguel Cruz. Thereafter, the Administrative Law Judge (ALJ) issued an opinion finding that claimant should not be considered to be under disability. This was adopted as the final decision of the Commissioner of Social Security (the Commissioner). Plaintiff now seeks judicial review of this final decision. 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".
To establish entitlement to benefits, claimant has the burden of proving that he became disabled within the meaning of the Social Security Act. See Bowen v. Yuckert, 482 U.S. 137, 107 S.Ct. 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 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 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 inability 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).
In his opinion the ALJ considered prior medical evidence solely to make a longitudinal assessment of claimant's condition without granting a reopening of the first application denied on April 22, 1997, for which no appeal was filed. The ALJ noted that there was no evidence of a mental impairment and, in that respect, the treating physician only mentioned a depressive mood but no particularized details or treatment.
As to the musculoskeletal condition, a computerized tomography of the lumbosacral spine showed L4-L5 disc herniation, central and extrinsic towards the right, with secondary impingement on the proximal right side of the L5 nerve root. The claimant continued with complaints of back pain that radiated to his leg. He underwent physical therapy and private medical treatment. The ALJ also considered a neurological consultative evaluation on February of 1998 that did not show atrophy. The patient had by then a normal gait, no sensory loss, and normal motor strength. There was a diagnosis of osteoarthritis of the hands and knees, but there were no signs of redness, joint effusion, or swelling nor of mark limitation of motion as to any joint.
The ALJ indicated that although the treating physician opined that claimant was unable to do work activity, such statement was not supported by findings or medical reports and was inconsistent with the evidence of record. A treating physician's opinion is not the final word on a claim of disability. Thus, proper consideration of a treating physician's evaluations were afforded by the ALJ. 20 C.F.R. § 404.1527(d)(2). 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).
The ALJ also considered 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). The amendments to the Social Security Disability Benefits Act of 1984, Pub.L. No. 98-460, Section 3, 98 Stat 1794 (1984), make clear there must be a medical impairment that can reasonably be expected to produce the pain alleged. Other evidence, including statements of claimant and/or his physician shall be considered. 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).
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).
A perusal of the medical evidence in the record is indicative of a severe medical impairment insofar that by 1996 the patient presented moderate to mild muscular spasm of the lumbosacral area, with limitation in flexion of the trunk, and shortening of the muscles in the back area. A computerized tomography of the lumbosacral spine was consonant with disc herniation and impingement on proximal right sided L5 nerve root. There was lumbar scoliosis with convexity to the left and the L4-L5 intervertebral space was slightly decreased in height. An electromyographic test was suggestive of right L4-L5 radiculopathy. However, the nerve conduction velocity study of the lower extremities was normal.
The neurological evaluation by Dr. Perez Canabal describes an alert, active, and oriented individual. He had adequate motor and sensory functions. There was no atrophy or deviation, and had adequate strength and tone. Gait and pinprick were also adequate. The range of motion chart showed limitation of flexion in the lumbar region of 60 degrees from normal 90 degrees. The residual functional capacity assessment was prepared by another medical consultant on February 29, 1998. The patient was considered able to sit for up to six (6) hours and same as to standing and walking.
The treating physician, Dr. Ramon Toro Torres indicates poor response to therapy because of gastrointestinal intolerance of the anti-inflammatory drugs. A residual functional assessment is also included. Contrary to above, the patient was considered able to walk for less than one (1) hour and same as to standing and sitting. He was restricted as to climbing and bending and from doing repetitive movements of hands and endurance to carry weight was none. These restrictions were a constant in the reports for the years 1998 through 1999.
Through the testimony of the vocational expert, the ALJ elicited the existence of jobs that were unskilled, simple, and repetitive, and of a light nature that would permit to alternate positions and which do not require frequent bending or to operate controls with his right foot. These jobs included tester in the health industry and as cutter in the garment industry or shoe packer. However, if credibility was afforded to limitations above indicated by Dr. Toro Torres, the individual would not be able to perform these or any other jobs. To cross-examination by counsel for claimant, the vocational expert further considered that if pain was present to the degree alleged, the claimant would be very limited by pain in the areas of concentration and attention.
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), 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).
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).