Opinion
Civil No. 02-2307 (HL)
January 27, 2004
Salvador Medina de la Cruz, Esq., Rio Piedras, PR, for Counselors Plaintiff's
Camille L. Vélez-Rivé, San Juan, PR, for Counselors Defendant's
REPORT AND RECOMMENDATION
Plaintiff filed an application for disability and for disability benefits alleging inability to work due to high blood pressure, a heart condition, leg cramps, and right shoulder capsulitis. The request was subsequently amended for a closed period commencing on October 15, 1996, and ending on October 9, 1997, since he had returned to work to his previous job as a supervisor in plumbing and has continued working.
There is no dispute in the medical nor in the administrative record that plaintiff had a severe impairment when he underwent by-pass surgery after a myocardial infarction. The plaintiff waived being present at the administrative hearing. The Administrative Law Judge (ALJ) thereafter determined that the impairments, although originally severe, did not prevent plaintiff from performing his past relevant work as a plumbing inspector as that job was performed in the national economy. This was adopted as the final decision of the Commissioner of Social Security (the Commissioner) from which plaintiff seeks judicial review. 42 U.S.C. § 405(g).
The question on whether, as defined in the regulations, plaintiff's impairments precluded "substantial gainful work activity" for a continuous twelve-month period is one reserved to the Commissioner. See 20 C.F.R. § 404.1527(e). At first glance, the disability which resulted from this impairment did not prevent claimant from engaging in substantial gainful activity for "a continuous period of not less than 12 months" as required by 42 U.S.C. § 423(d)(1)(A), since any disabling nature of the condition lasted for only 11 months and 24 days. Chester v. Callahan, 193 F.3d 10, 12 (1st Cir. 1999). To qualify for benefits under the Act, claimant bore the burden of proving that by reason of one or a combination of these conditions, [he]she had an "inability to engage in any substantial gainful activity due to . . . impairment(s) which can be expected to result in death or last for a continuous period of not less than 12 months. . . ." 42 U.S.C. § 423(d)(1)(A); 42 U.S.C. § 416(i)(1); 20 C.F.R. § 404.1505; Bowen v. Yuckert, 482 U.S. 137, 140 (1987): McDonald v. Secretary of Health Human Servs., 795 F.2d 1118 (1st Cir. 1986). Plaintiff should carry this burden of proof throughout the first four steps of the sequential evaluation of the evidence required by the regulations. 20 C.F.R. § 1520;Goodermote v. Secretary of Health Human Servs, 690 F.2d 5, 7 (1st Cir. 1982). The Supreme Court has held that the Social Security Administration's interpretation of statutory definition of "disability" as requiring that claimant's "inability to engage in any substantial gainful activity" last, or be expected to last, for at least 12 months, was based on a lawful construction of the statute and its regulation, providing that a return to work prior to the lapse of a 12-month period after onset of impairment, and prior to adjudication of disability, precludes a finding that a claimant is disabled or entitlement to a trial work period, constituted reasonable interpretation of same statute.Barnhart v. Walton, 535 U.S. 212, 122 S.Ct. 1265 (2002).
Although as an alternative, plaintiffs conditions under the substantial evidence criteria will be further examined, this Magistrate is of the opinion that the issue merits summary dismissal since the requirements for a continuous twelvemonth period of disability have not been met in the instant case.
Notwithstanding, the ALJ herein fully examined the medical evidence submitted. Claimant established that he was on status post open heart surgery for a three vessel coronary artery disease by-pass that was performed on February 19, 1997, after he had suffered a myocardial infarction on October 15, 1996. According to his own treating sources, by August of 1997, the patient had recovered from his major heart surgery and was stable.
The claimant also suffered from right shoulder tendinitis and he underwent physical therapy. By October of 1997 he had limitation in the range of motion of his shoulder and occasional mild discomfort, but was able to grip up to 30 pounds with his right arm and 60 pounds with his left arm. The ALJ also concluded the evidence established claimant could perform at the medium level of exertion. He should avoid heavy exertion because of possible exacerbation of symptoms. Still, he could lift, carry, and pull up to 25 pounds frequently and 50 pounds occasionally, and could stand, walk, and sit for six hours within an eight-hour workday. There were no neurological deficits or significant limitations of motions during the enclosed period.
Plaintiff is an individual with high school equivalent education and closely approaching advanced age, that is, he was 54 years-old at the time of the alleged disability. His past relevant work as inspector (plumbing) was according to his own description, heavy in exertion. The ALJ determined, however, that under the Dictionary of Occupational Titles, the job equivalent to plumbing supervisor was considered of medium level. Plaintiff was able to return to his previous work indicating he avoided carrying or making heavy exertion. Thus, the ALJ concluded, and it was adopted as the final decision of the Commissioner of Social Security (the Commissioner), that claimant would not be considered disabled.
Claimant bears the burden of showing that he could no longer perform his former job and to provide "some minimal information about the activities that [his] past usual work required." Santiago v. Secretary of Health and Human Servs., 944 F.2d 1, 5(1st Cir. 1991); accord Dudley v. Secretary of Health and Human Servs., 816 F.2d 792, 794 (1st Cir. 1987) (per curiam). Compare Gray v. Heckler, 760 F.2d 369, 373 (1st Cir. 1985) (an ALJ may rely on vocational publications in determining whether a claimant could return to past work where the claimant had the opportunity to, but did not, testify about the demands of her prior job). In the present case claimant did not testify at the administrative hearing and the presiding ALJ could reasonably rely on the U.S. Dep't of Labor, Selected Characteristics of Occupations Defined in the Revised Dictionary of Occupational Titles (SCO) to verify the physical demands required by claimant's usual occupation.
In addition, this Magistrate has reviewed the medical evidence and the record as a whole, which provides substantial evidence consonant with the administrative decision. In 1996 the medical examination and a myocardial perfusion scan revealed the patient had distal anteroapical and posterolateral wall ischemia and inferior wall scarring tissue. He had an episode of acute myocardial infarction and a history of high blood pressure. The diagnosis was of coronary artery disease. After cardiac catheterism, a surgical intervention for aorta coronary by-pass was performed on February 19, 1997. During his follow-up visits every two months, he had no episodes of angina, SOB, DOE, or palpitations. Dr. Aponte Gracia informed the patient was in no acute distress, was well oriented, and cooperative. He also suffered pain in the right shoulder with limitation of motion.
The X-rays of the right shoulder showed findings consonant with calcified tendinitis. Soft tissue was normal. In June of 1997, the patient complained that he could not walk more than two hours daily, due to numbness, and cramps of the left leg. He tolerated standing and sitting for up to four hours.
In 1997 Progress Notes from the State Insurance Fund made reference to the leg being fine. The patient had improved and received a 25% disability. His condition is described as presently stable with thoracic pain in the surgical wound. At one time when he was to receive physical therapy for his shoulder to improve the range of movement, he developed tachycardia, and the therapy was suspended. Thereafter, he continued with the therapies and his cardiac condition was considered stable. The stress test from the Cardiac Board was considered fair since the chest pain was not suggestive of ischemic origin. No significant ST segment abnormalities were noted during and post exercise.
In October of 1997 notes from the State Insurance Fund, after the Cardiac Board's report became available, showed the patient was referred for vocational rehabilitation while at work ("CT"). He was to continue with physical therapy for his shoulder pain since the patient, and the record, provided information that his heart condition was stable.
The ALJ also considered claimant's allegations of pain as an additional disabling factor. However, the ALJ concluded that the intensity and persistence of claimant's subjective complaints, limitations, and reported restrictions of daily activities were not supported by the evidence to the extent alleged. 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).
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.
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).
In San Juan, Puerto Rico, this 27th day of January, 2004