Opinion
CIVIL NO. 99-1359 (DRD-JAC); 13.
August 25, 2000.
Salvador Medina de LA CRUZ, Exq., for Plaintiff.
Lilliam E. MENDOZA, Assistant U.S. Attorney.
REPORT AND RECOMMENDATION
Plaintiff, who had filed an initial application for disability insurance benefits on March 14, 1995, alleging inability to work since September 12, 1994, filed this action seeking judicial review of the final decision of the Commissioner of Social Security (the Commissioner) denying her entitlement to a period of disability and ensuing benefits. Social Security Act, 42 U.S.C. § 405(g).
The initial application was denied, and the requested first administrative hearing was held on April 8, 1996. After the presiding Administrative Law Judge (ALJ) issued an opinion denying that claimant was under disability, the Appeals Council remanded with instructions to further consider the same. Another hearing was then held on January 13, 1998. The ALJ then issued an opinion again denying benefits. However, the issues previously remanded were left unattended and the request by counsel to subpoena the medical advisor's testimony that was being disregarded or to be allowed to clarify through interrogatories the treating physician's assessment of issues raised by the remand, were denied. Because this magistrate considers that the record is devoid of appropriate consideration of the conditions presented and failed to clarify evidence necessary to support the decision to deny benefits, by selectively disregarding some of the evidence of record, the case should be remanded to allow the agency to further consider its decision.
The remand required to obtain a clarification and all updated treatment records from Dr. Toro-Torres; reevaluate the maximum residual functional capacity and the weight to be give to Dr. Toro-Torres' opinion (the treating physician).
Above plaintiff, who has worked as a practical nurse, is insured for disability purposes until September 30, 1995. The medical evidence supports and the ALJ also found that she suffers from diabetes mellitus, bronchial asthma, soft tissue rheumatism, degenerative joint disease. She underwent a partial colectomy because of diverticular disease in May 1995. The treating physician, Dr. A. Padua and the medical advisor for the agency agreed that since 1991, regardless that treatment appears in 1995, she was suffering from bronchial asthma that required frequent medication, which causes as side effect tachycardia and insomnia. There is an annotation that she also has mild depressive disorder with anxiety.
The ALJ determined that neither of these medical reports would be granted credibility for lack of objective evidence establishing significant pulmonary impairments. The treating physician Dr. Padua had opined that the patient was limited to less than slight physical activity. The medical consultant, Dr. Toro, opined the patient was limited to a narrow range of sedentary work, and in both instances within an environment free of dust, fumes, odors, chemical irritants or marked changes in temperature and humidity. However, the ALJ concluded that claimant retained the residual functional capacity for sedentary work and under such hypothesis submitted questions to the vocational expert. The residual functional capacity for sedentary work oversteps a lay person's competence.
Gordils v. Secretary of H.H.S., 921 F.2d 327, 329 (1st Cir. 1990); Rivera Torres v. Secretary of H.H.S., 837 f.2d 4, 6-7 (1st Cir. 1988).
The testimony of a vocational expert, Mr. Miguel Cruz, was also considered. He testified as to existence of jobs within the physical exertion of sedentary level, such as packer and label coder. With the residuals that the physicians have indicated that she could not exert a lot of effort, the vocational expert concluded claimant would be unable to perform these or any other jobs.
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. The 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 H.H.S., 690 F.2d 6 (1st Cir. 1982); Torres v. Secretary of H.H.S., 677 F.2d 167 (1st Cir. 1982). See also Vázquez 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).
This magistrate has examined the medical evidence and the record as a whole, including evidence closely related to the conditions that had been developed closely to the time her insured status had expired. Evidence which relates to a date after plaintiff's insured status had expired, that is, September 1995, and which is not in any way related to previous medical examinations or reports cannot be the basis for a finding of disability. Nevertheless, medical evidence from the post-insured period may be considered for what light, if any, it sheds on the question whether claimant's impairments reached disabling severity before such insured status expired. Smith v. Bowen, 849 F.2d 1222, 1225 (9th Cir. 1988).
Rodrguez v. Secretary of H.H.S., 647 F.2d 218, 222 (1st Cir. 1981) (claimant is not entitled to disability benefits unless he can demonstrate that his disability existed prior to the expiration of his insured status and that the impairment reached a disabling level of severity by that date. See Cruz Rivera v. Secretary of H.H.S., 818 F.2d 96, 97 (1st Cir. 1987).
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 H.H.S., 703 F.2d 24 (1st Cir. 1983).
This magistrate concludes that an examination of the evidence in the record as a whole provides there is no such substantial evidence to support the decision of the Commissioner denying plaintiff's entitlement to a period of disability and benefits. Thus, it is hereby recommended that the decision of the Commissioner BE REMANDED.
IT IS SO RECOMMENDED.
The parties have ten (10) days to file any objections to this report and recommendation. Failure to file 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).
San Juan, Puerto Rico, August 21, 2000.