Opinion
Civil No. 99-1414 (JAC)
September 6, 2000
Carlos a. Garcia, Enchautequi, Esq., Attorney for Appellant.
Lilliam E. Mendoza, Assistant U.S. Attorney for Appellee.
OPINION AND ORDER
Plaintiff filed this application for disability insurance benefits with the Social Security Administration which was initially denied. He is a 49-year-old individual, with a fourth grade education, and previous work experience as a laborer in the sugar cane industry and construction. He requested benefits as of October 3, 1993, upon an inability to work since the date of an accident, April 16, 1991. Since his previous application had become a final administrative decision that was not subject to reopening, the application herein entails solely an unadjudicated period from July 16, 1993 through December 31, 1993, the last date plaintiff was insured for disability purposes under the Social Security Act. This case has been previously remanded by the court upon considering that the decision of the Administrative Law Judge (ALJ) has failed to consider and mention the weight, if any, given to the treating physician's opinion and his medical record. Upon remand, an administrative hearing was again held, wherein claimant, although present, waived having to testify and submitted his previous two testimonies offered in 1993 and 1994. Thereafter, the 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 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 him 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).
Once claimant has established he is unable to perform his 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 H.H.S., 690 F.2d 5 (1st Cir. 1982); Torres v. Secretary of H.H.S., 677 F.2d 167 (1st Cir. 1982). See Vazquez 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).
After the administrative hearing, the presiding ALJ found that claimant had a combination of lumbar and mental conditions with a history of polyneuropathy. He had also received treatment for pulmonary complications that remained well controlled with occasional outpatient treatment and medication. Nerve conduction studies were compatible with polyneuropathy. After the 1991 car accident where claimant suffered six broken ribs, a fracture clavicle and pelvis, the ALJ concluded he had recovered without significant residuals. The pulmonary function tests indicated the patient had mild to moderate condition and he retained a fairly good range of motion that allowed him to engage in at least light exertion.
Insofar as the findings and record of the treating pneumologist, Dr. Luis Buitrago, the ALJ determined the conclusions were not supported by the preponderance of the medical evidence in the record. Dr. Buitrago reported shortness of breath, bronchial asthma and a mental condition, with other medical complications. The ALJ determined that the pain and shortness of breath reported by the treating physician were not present in other treating sources, for which the severity of the pulmonary condition was unsupported by other inconclusive pulmonary tests. As such, the ALJ indicated the opinion of the treating physician was not given controlling weight.
The ALJ further concluded that the claimant's combination of medical conditions remained well controlled with occasional outpatient treatment and medication and did not preclude light work. He was precluded, however, from performing heavy and medium exertion. As such, the testimony of the vocational expert was considered as to the existence of work within claimant's residual functional capacity. Mr. Miguel testified to the hypothetical question that claimant had limitations of environmental type, that is, required a clean environment, free of fumes, dust, smoke, avoid extreme temperatures and humidity, with the residuals that he may occasionally climb and crawl, and with limitations in reaching in all directions, including above his head, with other limitations to his upper left extremity, but not to the right one, and he could push or pull only less than 20 pounds. The vocational expert indicated there were jobs such as cutting electrical wires and as a mounter in the manufacturing of electronics that an individual with said limitations could still perform. However, if the opinion of the treating physician was considered, claimant would not have been able to perform any jobs in the national economy.
The examination of the record shows claimant was assessed by the interviewing officers as an individual who was breathing heavily and who appeared tired. He walked slowly and with a limp. When signing his name, his hands were slightly closed and with difficulty grabbing. He was poorly dressed, unshaven, with body odors.
The public health records, although brief in their annotations and sometimes illegible portions, consistently described the patient as having complaints of neck and back pain, diminished pulmonary sounds, and pulmonary dysfunctions after the car accident where he had suffered a broken left clavicle and ribs. The patient had developed respiratory distress and exhaustion upon exertion for which treatment with the pneumologist was continued under the auspices of the ACAA, Vehicle Accident Compensation Administration.
There is a medical study in 1991 indicating left carpal tunnel syndrome and left ulnar nerve partial compression at elbow level. There is a normal EMG except for partial denervation of left thorax muscles. No evidence of cervical radiculopathy or myopathy.
Dr. Raul Montalvo had evaluated the patient on three occasions for complaints of respiratory distress. The pulmonary function tests revealed moderate obstruction that could be due to thoracic trauma or poor inspiratory effort. The medical evaluation submitted to ACAA by Dr. Buitrago in 1991 refers to trauma to the thorax with fracture of ribs and left clavicle, resulting in severe restriction of the thoracic cage and air flow. The pulmonary test of September 1991 concluded there was mild airway obstruction and the response to bronchodilators indicated a reversible component. The lung volumes were reduced indicating a concurrent restrictive process.
The pneumologist, Dr. Juan Carlos Buitrago, had diagnosed the patient to be suffering from a permanent thoracic wall deformity due to thorax trauma with resultant restrictive lung dysfunction. He is considered unable to take a deep breath due to chest wall deformity.
The upper nerve conduction studies dated December 17, 1991, were suggestive of polyneuropathy. There is an evaluation by Dr. Cuebas Vazquez describing an anxious individual with limitation of movement of the left shoulder and strong pain in the anterior left region of the thorax. The lungs are cleared with evidence of prolonged expiratory phase. The pulmonary restriction problem seems related to the chest trauma. The pulmonary test referred by the ALJ is an inconclusive one which noted that the patient failed to follow instructions. A medical consultant, Dr. Rivera Marrero, informed the record shows rare wheezes and limited movement of the left arm for elevation above 90 degrees. The patient has osteoarthritis of lumbosacral spine and the cervical and thoracic spine.
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 is 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).
An examination of the medical evidence and the record as a whole show that plaintiff, considered a younger individual, with high school education, engaged in work as a laborer until he suffered an accident and received multiple body injuries. He has a not well healed fractured clavicle which causes limitation of movement of the arm. The treating physician's notes and medical evaluations are consonant with the objective medical examinations, except for inconclusive additional pulmonary tests. To disregard such medical opinion as not supported by the record fails the substantial evidence test, as well as proper consideration of a treating physician's evaluations. 20 C.F.R. § 404.1 527(d)(2). A treating physician's opinion is not the final word on a claim of disability. Still, under the 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 his 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 his physician as to pain are consistent with the medical findings these should permit a finding of disability where the medical findings alone would not. Avery v. Secretary, 797 F.2d 19 (1st Cir. 1986).
Insofar as pain is concerned 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 undersigned magistrate considers that an examination of all the evidence in the record as a whole shows it lacks substantial evidence to support the final decision issued by the Commissioner and thus it is VACATED.
The Clerk is to enter judgment accordingly.
IT IS SO ORDERED.