Opinion
CIVIL NO. 02-1893 (JAG)
June 24, 2003
Rafael Colon-Flores, Ponce, PR., Plaintiff's Counselors.
Camille L. Velez-Rive, United States Attorney's Office, Hato Rey, PR., Defendant's Counselors.
REPORT AND RECOMMENDATION
Plaintiff filed this application for disability insurance benefits with the Social Security Administration which was initially denied. She is a forty three years old individual, with limited education, and previous work experience as a sewing machine operator. She requested benefits as of October 11, 1999, upon an inability to work because of cervical and back pain.
An administrative hearing was held on September 25, 2000, wherein claimant, testified. The testimonies of a medical expert and a vocational expert were also received. Thereafter, the Administrative Law Judge (ALJ) issued an opinion finding that claimant should not be considered to be under disability which 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 she 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 she 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 her from working in her 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 she is unable to perform her 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 Vázquez 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 administrative decision denying benefits agreed that plaintiff suffered from osteoarthritis, cervical and lumbar spondylosis, as a result of a fall she suffered in 1997, and trauma to the right shoulder and back. She has also a bulging of the L5-S1 disc. These impairments were considered severe. However, there was no marked restriction of movement and no neurological deficit was established.
Through the testimony of the medical expert Dr. Edrick López, a rheumatologist, the ALJ determined that the conditions did not meet the severity of the Listing of Impairments. The medical expert considered that plaintiff retained the functional capacity for work that did not require prolong sitting, standing, or walking and not carrying over twenty pounds maximum or over ten pounds frequently. The ALJ further considered that she should not bend frequently or engage in frequent bending and fingering.
Considering the above residuals, the testimony of the vocational expert, Mr. Camilo Gutiérrez, indicated that although unable to perform her previous work as a machine operator, there were other jobs available well within the residual functional capacity described. These jobs included garment sorter, which is light and unskilled and where she could alternate positions; office helper, a clerical kind of work that is also light and unskilled, and garment folder, also light kind of work.
In accordance with above development of the administrative record, the ALJ concluded, and was adopted as the final decision of the Commissioner, that claimant retained the capacity for work that existed in significant numbers in the national economy and was not under disability.
An examination of the medical evidence and the record as a whole shows that plaintiff received treatment by the State Insurance Fund in 1997 and continued to work while under treatment. In the year 1999 she stopped working because of her condition and was finally released from treatment in the year 2000 upon receiving the maximum benefits allowed by the Fund. She thereafter continued treatment with a private physician. Proper consideration of a treating physician's evaluations were afforded by the ALJ. 20 C.F.R. § 404.1527(d)(2). A treating physician's opinion is not the final word on a claim of disability. Uder 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).
In addition, due consideration should be given to 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), states:
"An individual's statement as to pain or other symptoms shall not alone be conclusive evidence of disability as defined in this section; there must be medical signs and findings, established by medically acceptable clinical or laboratory techniques, which show the existence of a medical impairment that results from anatomical, physiological or psychological abnormalities which could reasonably be expected to produce the pain or their symptoms alleged and which, when considered with all evidence required to be furnished under this paragraph (including statements of the individual or his physician as to the intensity and persistence of such pain or other symptoms which may reasonably be accepted as consistent with the medical signs and findings), would lead to a conclusion that the individual is under a disability. Objective medical evidence of pain or other symptoms established by medically acceptable clinical or laboratory techniques (for example, deteriorating nerve or muscle tissue) must be considered in reaching a conclusion as to whether the individual is under a disability".
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 her 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 her 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).
Insofar as pain, to make a determination of pain as a disabling factor, medical signs or findings must show there is a medical condition that could be reasonably expected to produce said symptoms. 20 C.F.R. § 404.1529.
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).
The ALJ's opinion considered the issue of pain, but not to the extend alleged by plaintiff, upon considering her response to prescribed treatment, no adverse side effects, and the absence of persistent musculoskeletal pathology. Additionally, the evidence shows claimant had adequate interpersonal relations and attended religious services regularly, as well as was able to go shopping. The medical expert, who had also examined the available medical record, testified that treatment afforded has been conservative and no pathology was found in regard to her back other than the pain she claims.
A perusal of the medical evidence in the record is indicative of several electromyographic examinations of lower extremities that were normal. CT Scan of the lumbosacral spine revealed no bony abnormalities in 1999 and well preserved intervertebral spaces, without evidence of herniated nucleous pulposus.
Medical examinations indicated the right shoulder was lower than the left one and was painful to palpation and with spasms. Palpation of the middle upper trapezium bilaterally displayed severe discomfort. Complaints of low back pain are consistent throughout the record. It was determined there was a mild central disc protrusion at L5- S1 level. The neurosurgeon examination reported no focal neurological deficits.
There is a diagnosis of cervical spondylosis. The patient received physical therapy and blockage for her complaints of pain. Evaluation after physical therapy shows a patient who was feeling somewhat better. The range of movement of the neck was normal; shoulder had flexion of 140º, abduction 105º and had a normal extension and abduction. She also complained of pain radiating to the legs, worse on the left one, but she was still working while undergoing treatment. An electromyographic study in March of 1999, because of the lower back pain, found normal nerve conduction velocity.
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).