Opinion
Civil No. 99-1798 (JAC-SEC)
September 19, 2000
Hector M. Hernandez-Nazario, Esq., Luis A. DeMier-Le Blanc, Esq., Attorney(s) for Appellant.
Lilliam E. Mendoza, Assistant U.S. Attorney, for Appellee.
OPINION AND ORDER
Above plaintiff filed this application for disability insurance benefits with the Social Security Administration requesting entitlement to a determination of disability and ensuing benefits as of November 1, 1991. Plaintiff claimed inability to work after he suffered a fall and injured his back, in addition to having an auditive impairment, and a mental condition.
The application was initially denied and after the requested administrative hearing was held on July 11, 1997, the Administrative Law Judge (ALJ) issued an opinion finding that claimant should not be considered to be under disability. The ALJ heard claimant's testimony, a vocational expert, and a medical expert. Claimant is insured for disability purposes through September 30, 1997. While working, he suffered a fall and hit his head and back. He had undergone prior surgery in his right ear and claims to suffer from headaches and pain, in addition to an emotional problem.
The initial application filed on February 27, 1992, had been remanded to the ALJ for further consideration. As such, this second application was determined as an implied request for reopening. The reopening was denied, for which this application, adopted as the final decision of the Commissioner of Social Security (the Commissioner) refers to the unadjudicated period after December 22, 1992. Plaintiff now seeks judicial review of this final decision denying his disability claim. 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. 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 H.H.S., 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 12 months. The impairments imposed by the condition or combination of conditions must be so severe as to prevent 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). Only when claimant is able to establish that he is unable to perform his previous work, 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 H.H.S., 690 F.2d 5 (1st Cir. 1982); Torres v. Secretary of H.H.S., 677 F.2d 167 (1st Cir. 1982). SeeVazquez v. Secretary of H.H.S., 683 F.2d 1 (1st Cir. 1982); Geoffrey v. Secretary of H.H.S., 663 F.2d 315 (1st Cir. 1981).
The ALJ determined that claimant had sought psychiatric treatment for anxiety, nervousness and aggressiveness, but claimed had discontinued treatment for economic reasons. He has been treated for a musculoskeletal condition, with pain in the shoulder, general weakness, malaise, and right otitis. The patient does not show a significant neurological deficit or muscular weakness and is able to engage in normal and independent ambulation. A tomography showed no evidence of disc herniation or spinal stenosis. Nerve conduction tests only revealed bilateral posterior tibial axonal neuropathy; otherwise findings were normal. Because the annotations by treating physician Dr. Hernandez seem contradictory, these were considered unsupported by other clinical conclusions and no controlling weight was afforded. In relation to the ear condition, he has been treated for loss of hearing and vertigo and has right ear moderate auditive loss.
Insofar as the mental condition, there is moderate concentration deficit and depressed mood, but he was considered alert, coherent, logical and relevant, and was well oriented. Short term memory was impaired, but remote and past memory were good. The patient is described as attentive and cooperative, without significant limitations to activities of daily living. A diagnosis of organic mood disorder and depressed mood was made and rebutted by the medical expert during the hearing as not supported by the clinical findings. Instead, a generalized anxiety disorder was considered appropriate.
The ALJ further indicated that claimant had worked as a laundry worker, a job that required medium to heavy level of exertion, and was unskilled to low-semiskilled work. It was also considered that pain was not of the intensity and persistence as claimant subjectively stated. The ALJ concluded that claimant had a musculoskeletal impairment and an anxiety related disorder, but had no significant exertional limitation and could perform work at all exertional levels. Since he could carry out simple instructions and maintain attention and concentration, his only limitation was not to perform complex work. Thus, he was considered able to return to his former work as a laundry worker and was not found to be under disability.
Claimant testified that he takes Motrin as oral medication to alleviate his pain.
The medical expert, Dr. Ramon Fortuno, examined the medical record and treatment. The record indicated an individual with a transformation of anxiety, basically a generalized transformation of anxiety, but no requirements are present to indicate a major depression. The observations of claimant during the hearing showed his demeanor as not having such a severe condition, no anxious affect, and was able to respond adequately to questions, which fail to reveal poor concentration as depicted. Although claimant indicated not having been under treatment because of economical reasons, the medical expert opined that a person who is not under treatment indicates that the patient had gotten better since if the condition had been of marked severity, he would look for a way to continue treatment and/or relatives would arrange for at least occasional treatment.
The vocational expert, Mr. Hector Puig, testified that claimant's previous work as a laundry attendant was a low-semiskilled job that required, as performed, a lot of musculoskeletal activity, such as bending, walking, lifting weights, etc. It was considered a medium kind of work and was routine. If his condition was considered mild, he would have no problem in performing his previous job since his hearing condition showed he had previously performed with such limitation there and was no impediment to communicate. Even if claimant was considered able to carry only light kind of work, there were other jobs, such as classifier and ticket labeling, that he could perform and that were available 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 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.
Falu v. Secretary of H.H.S., 703 F.2d 24 (1st Cir. 1983).
The examination of the available medical evidence shows plaintiff was diagnosed in 1993 by a neurologist, Dr. Hernandez, with a lumbar disorder with pain, a lumbar sprain, myositis, cervical sprain, and a depressive disorder. He was found with spasms and tenderness. Use of analgesics and relaxants, without any side effects, showed fair results. A medical report was submitted as to monthly visits through 1992 for complaints of back pain. The notes from the State Insurance Fund treatment indicated the EMG and the nerve conduction study were normal and there was no neurological deficit and no evidence of disc herniation. The patient had moderate spasms in the lumbosacral region and was described as able to walk independently, with normal gait. The x-rays of the spine showed mild spondylotic changes with minimal loss of height at L3 and L4.
A neurological report dated 1995 by Dr. Renato Santori indicates the patient's mental state was alert, cooperative, with no gross intellectual or emotional impairment. There were normal reflexes and coordination. There were no paravertebral or muscular spasm and no tender points. No consistent objective neurological deficit was present. A CT-Scan of the lumbar spine indicated minimal degenerative hypertrophic disease of the lumbar spine and lumbar myositis. Disc spaces and posterior elements were intact.
The tests regarding claimant's auditive impairment showed the right ear was congested and full of secretions and the tympanic membrane had a perforation. There was loss of hearing in the right conduct, the left was within normal limits.
Dr. Eduardo Caussade submitted a psychiatric report indicating he started treating plaintiff in November 1994 on a monthly basis. Through history he relates the early signs of his condition to 1992 since the patient referred to the presence of anxiety that started while still at work. He was observed with poor hygiene, with psychomotor agitation and pressure of speech, with evidence of loose associations and blocking of thoughts. The mood was of anxiety and sadness, the affect was of fear. He was well oriented in person and place, but not fully oriented in time. His attention span was considered poor and the ability to concentrate was markedly impaired. The patient performed poor at mathematical calculations and the level of information was fair. The diagnosis was of generalized anxiety disorder, depressed (obsessive compulsive traits).
A psychiatric evaluation by Dr. Mary Anne Pagan refers to an individual who is clean, with good hygiene, and who represents his chronological age. He was cooperative and kept visual contact. The affect and mood were restricted. The thought process was logic, coherent and relevant. He was oriented in person and place, disoriented in time. Memory was adequate for immediate, short term and recent. His attention was adequate and so was concentration and the simple arithmetic skills. The diagnosis was of organic mood disorder, depressed type.
Dr. Jose Rios submitted a psychiatric evaluation. He described an adequately dressed and clean individual who represented his chronological age, with facial expression of anxiety. He was alert and in good contact with the interviewer and looked apprehensive, nervous, and a bit hyperactive. His behavior was appropriate, and he was able to offer information. Psychomotor activity looked accelerated, verbalization was adequate. There was a tendency towards perseveration in terms of his emotional and physical state. There was moderate difficulty for concentration, with some blockages, but with adequate association of ideas. The diagnosis was of atypical anxiety disorder with depressive traits.
There is another mental evaluation by Dr. Victor Mariano dated in March of 1997, that describes an individual with good visual contact and clear articulation. He was alert and motor activity was normal. His affect was anxious and depressed. He was oriented in the three spheres. The diagnosis was of generalized anxiety and recurrent episode of major depression.
Considering the evidence in the record as a whole, as well as the medical and vocational experts' testimonies, the claimant was considered not to have significant non-exertional limitations, except being able to perform complex work. He was capable to perform his previous job that was unskilled to low semiskilled, as a laundry worker, and as such, was determined not to be disabled.
Having reviewed all the record and the medical evidence therein, the undersigned magistrate finds there is substantial evidence to support the final decision issued by the Commissioner and thus it is AFFIRMED.
The Clerk is to enter judgment accordingly.
IT IS SO ORDERED.