FERMAINTT v. COMMISSIONER OF SOCIAL SECURITY

2004 | Cited 0 times | D. Puerto Rico | January 22, 2004

REPORT AND RECOMMENDATION

Plaintiff filed her last application for disability insurancebenefits with the Social Security Administration on April 27, 1997, whichwas denied. She had previously claimed benefits in 1995, allegingdisability as of June 25, 1993, but she failed to appeal the decision.She now claims being disabled under her second application because ofcervical spasms and carpal tunnel syndrome.

An administrative hearing was held on February 24, 2000. Thereafter,the Administrative Law Judge (ALJ) issued an opinion, that was adopted asthe final decision of the Commissioner of Social Security (theCommissioner) determining that claimant should not be considered disabledsince she retained the residual functional capacity for light level ofwork. Since her previous work as a secretary was well within such levelof exertion, claimant was considered able to perform her previous work.Social Security Act, 42 U.S.C. § 405(g).1

In order to establish entitlement to benefits, claimant has the burdenof proving that she became disabled within the meaning of the SocialSecurity 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.C. 2287, 2294 n.5 (1987); Deblois v. Secretaryof Health & Human Servs., 686 F.2d 76, 79 (1st Cir. 1982).Claimant may be considered disabled if she is unable to performany substantial gainful employment because of a medical condition that isexpected to last for a continuous period of at least twelve (12) months.The impairments imposed by the condition or combination of conditionsmust be so severe as to prevent her from working in her usual occupation,that is, in this particular case, as a secretary, and, if appropriate, inany other substantial gainful employment upon further taking inconsideration age, education, training, and work experience. SocialSecurity Act, 42 U.S.C. § 423(d)(2)(A). Plaintiff herein has completedthree (3) years of college and secretarial courses. She is considered ayounger individual, a thirty seven year-old female, who met therequirements for disability insurance status up to December 31, 1998.

Once a claimant has established she is unable to perform her previouswork, it is then that the burden shifts to the Commissioner to prove theexistence of other jobs in significant numbers in the national economythat claimant is still able to perform. Goodermote v. Secretary ofHealth & Human Servs., 690 F.2d 5 (1st Cir. 1982); Torresv. Secretary of Health & Human Servs., 677 F.2d 167 (1st Cir.1982). See V´zquez v. Secretary of Health & HumanServs., 683 F.2d 1 (1st Cir. 1982); Geoffrey v. Secretary ofHealth & Human Servs., 663 F.2d 315 (1st Cir. 1981).

Although reopening of her already adjudicated period was denied, theALJ made a threshold inquiry as to the medical evidence to allow alongitudinal review as to claimant's condition. There had been complaintsof back pain with some numbness, without neurological deficit. Thesesymptoms were aggravated in 1995 and during her pregnancy. No evidence ofmuscle weakness, atrophy, lost of tone or abnormality in gait or stationwere present. The diagnosis was of low back pain radiculopathy. X-raysand a computerized tomography scan did not reveal joint, soft tissue orbone pathology.

A consultative neurological evaluation in 1998 failed to reveal anysignificant abnormality. There was no limitation in the range of motion.On September of 1998 claimant was for the first time evaluated by apsychiatrist. She was depressed, with psychomotor retardation butconcentration and memory were not significantly impaired. She wascoherent, relevant, logical, and oriented in the three spheres, withoutdisturbance in the thought process. She could perform daily activities ather home, would watch television, read the newspapers, listen to theradio, attend medical evaluations on her own, and take the children toschool.

The ALJ gave due consideration to claimant's allegations of pain as anadditional disabling factor but found that the credible evidence did notsupport the degree, intensity, persistence, or duration alleged.See Section 3(a)(1), which amended Section 223(d)(5) of theSocial Security Act, 42 U.S.C. § 423 (d)(5). Where a potential basis forpain and restriction exists, the subjective symptoms must be evaluatedwith due consideration for credibility, motivation, and medical evidenceof impairment. Gray v. Heckler, 760 F.2d 369, 374 (1st Cir.1985); Alvarado v. Weinberger, 511 F.2d 1046, 1049 (1st Cir.1975). Although the Commissioner cannot be at the whim of any subjectiveallegation of pain, so long as the statements of claimant or of herphysician as to pain are not inconsistent with the medical findings,these should permit a finding of disability where the medical findingsalone would not. Avery v. Secretary of Health & HumanServs., 797 F.2d 19 (1st Cir. 1986).

The ALJ provided specific findings in support of the decision todiscount claimant's complaints of pain to the degree and intensityalleged. When pain or restriction is shown to exist, the actual degree ofpain plaintiff suffers is for the Commissioner to evaluate in light ofthe supporting evidence. Gagnon v. Secretary of Health and HumanServices, 666 F.2d 662, 665 (1st Cir. 1981). Although pain issubjective, clinical techniques are appropriate to use in evaluating theprobability of its existence, magnitude, and disabling effects. Ricov. Secretary of Health, Education and Welfare, 593 F.2d 431, 433(1st Cir. 1979). See DaRosa v. Secretary of Health & HumanServs., 803 F.2d 24, 26 (1st Cir. 1986).

To review the final decision of the Commissioner, courts must determineif the evidence of record meets the substantial evidence criteria tosupport the Commissioner's denial of plaintiffs disability claim.Substantial evidence is "more than a mere scintilla and such, as areasonable 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). Thefindings of the Commissioner as to any fact are conclusive, if supportedby the above-stated substantial evidence.2

Succinctly, the examination of the record shows the findings of the ALJare well supported. X-rays of the lumbosacral, thoracic, and cervicalspine in 1997 and 1998 found no abnormalities. There is an abnormal studydated 1997 upon complaints of lateral leg numbness which indicated therewas no evidence of entrapment neuropathy.

A neurological evaluation dated June 29, 1998, described the patient asalert, cooperative and clean, who came to the examination alone anddriving her own car. There was no limitation in the range of movement andthe measurement of the calves, arms and forearms were symmetrical. Shehad normal coordination. The motor system had normal muscle tone withtenderness to palpation, without atrophy or fasciculation. The strengthin all tested muscles was normal, and so was station, gait, and posture.She could stand over heels and toes. The assessment was of lumbar painwithout restriction in the range of motion. She could sit, stand, walk,and travel and could handle and lift common objects. The diagnosis was ofchronic lumbar painful syndrome.

There is a nerve conduction study upon complaints of hand pain thatrefers to sensory nerve entrapment at the wrist level in 1997. Theneurological study found normal pin prick light touch and proprioceptionintact without dermatome or sensory level. X-rays of both hands in 1997found no evidence of fracture, dislocation or any other significant bonyor joint abnormalities.

In relation to her mental complaints, there is a psychiatric reportdated September 15, 1998. It describes a well-developed, well-nourishedfemale, with adequate appearance, who represented her chronological age.She looked sad but was cooperative and spontaneous, with sporadic visualcontact. Psychomotor activity is described as moderate to severe. She wascoherent, logical, and relevant. The mood was depressed and her affectwas adequate. The diagnosis was of major depression. There is noadditional previous or subsequent treatment for a mental component.Manso Pizarro v. Secretary of Health & Human Servs.,76 F.3d 15, 17-18 (1st Cir. 1996).

The administrative determination that claimant is not disabled whereshe remains physically and mentally able to do her previous work, evenwithout investigating whether work exists in significant numbers in thenational economy, has been sustained as a reasonable interpretation ofthe corresponding regulation. Barnhart v. Thomas, 124 S.C. 376(2003) (citing Chevron U.S.A., Inc. v. Natural Resources DefenseCouncil, Inc., 467 U.S. 837, 104 S.C. 2778 (1984)).

There is substantial evidence in the record as a whole to support thedecision of the Commissioner, for which reason it is recommended that ITBE AFFIRMED.

IT IS SO RECOMMENDED.

The parties have ten days to file their objections to this report andrecommendation. Templeman v. Chris Craft Corp., 770 F.2d 245,247 (1st Cir. 1985). Failure to do so may be considered a waiver of theparty's right to review and claims not preserved by objection areprecluded 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).

1. 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".

2. Fal v. Secretary of Health & Human Servs,703 F.2d 24 (1st Cir. 1983).

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