Suarez-Linares v. Commisioner of Social Security et al, No. 3:2012cv01653 - Document 13 (D.P.R. 2013)

Court Description: OPINION AND ORDER dismissing re 1 Complaint, filed by Hiram Suarez-Linares Signed by U.S. Magistrate Judge Justo Arenas on 7/17/2013.(Arenas, Justo)

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Suarez-Linares v. Commisioner of Social Security et al Doc. 13 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO 1 2 3 4 HIRAM SUAREZ-LINARES, 5 Plaintiff 6 v. 7 CIVIL 12-1653 (JA) COMMISSIONER OF SOCIAL SECURITY, 8 9 Defendant 10 OPINION AND ORDER 11 12 Plaintiff suffered a fall at his home on September 21, 2007 and broke his left 13 wrist. He was operated on four days later. Because of complications, a fracture 14 malformation, another operation was performed and a metal plate surgically 15 inserted weeks later. Plaintiff, who is right handed, filed for social security 16 disability benefits on October 3, 2008, which initial application was denied. 17 Having exhausted the administrative process, and having been denied benefits 18 throughout, he filed a petition for review of the final decision of the Commissioner 19 of Social Security which denied his application for a period of disability and Social 20 Security disability insurance benefits. 21 The case was transferred to me on August 27, 2012, pursuant to the 22 authority of 28 U.S.C. § 636(c). (Docket No. 5). The answer to the complaint was 23 filed on January 3, 2013 (Docket No. 8). 24 Plaintiff filed a memorandum against the final decision of the Commissioner 25 of Social Security on June 6, 2013. (Docket No. 11). The defendant filed a 26 memorandum in support of the final decision on July 2, 2013 (Docket No. 12). 27 Dockets.Justia.com 1 CIVIL 12-1653 (JA) 2 2 3 The only issue for the court to determine is whether the final decision that 4 plaintiff is not under a disability is supported by substantial evidence in the record 5 when looking at such record as a whole. In order to be entitled to disability 6 insurance benefits, plaintiff must establish that he was disabled under the Social 7 Security Act at any time on or before December 31, 2007, the date plaintiff last 8 met the earnings requirements for disability benefits under the Act. (Tr. at 22); 9 see Evangelista v. Sec y of Health & Human Servs., 826 F.2d 136, 140 n.3 (1st Cir. 10 11 12 1987). After evaluating the evidence of record, administrative law judge Glenn G. Meyers entered the following findings on May 14, 2010: 13 1. 14 2. 15 16 3. 17 18 4. 19 20 5. 21 22 23 6. 24 25 7. 26 27 Tr. at 20-24. The claimant last met the insured status requirements of the Social Security Act on December 31, 2007. The claimant did not engage in substantial gainful activity during the period from his alleged onset date of September 21, 2007, through his date last insured of December 31, 2007. (20 CFR § 404.1571 et seq.). Through the date last insured, the claimant had the following severe impairment: s/p fracture of left wrist with residuals (20 CFR § 404.1520(c)). Through the date last insured, the claimant did not have an impairment or combination of impairments that met or medically equaled one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR § 404.1520(d), 404.1525 and 404.1526). After careful consideration of the entire record, the undersigned finds that, through the date last insured, the claimant had the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b) except left hand limited to gross manipulation. Through the date last insured, the claimant was capable of performing past relevant work as assistant manager in a bank. This work did not require the performance of work related activities precluded by the claimant s residual functional capacity (20 CFR 404.1565). The claimant was not under a disability, as defined in the Social Security Act, at any time from September 21, 2007, the alleged onset date, through December 31, 2007, the date last insured (20 CFR § 404.1520(f)). 1 CIVIL 12-1653 (JA) 3 2 3 4 In the court s review of a Social Security final decision, the factual findings 5 of the Commissioner are conclusive if supported by substantial evidence in the 6 record. See Ortiz v. Sec y of Health & Human Servs., 955 F.2d 765, 769 (1st Cir. 7 1991) (quoting 42 U.S.C. § 405(g)). Substantial evidence is more than a mere 8 scintilla, see Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420 (1971), in 9 other words, it is such relevant evidence as a reasonable mind might accept as 10 adequate to support a conclusion. Id.; see also Currier v. Sec y of Health & 11 Human Servs., 612 F.2d 594, 597 (1st Cir. 1980). 12 Plaintiff has the burden of proving that he has become disabled within the 13 meaning of the Social Security Act. See Bowen v. Yuckert, 482 U.S. 137, 138, 14 107 S.Ct. 2287 (1987). A finding of disability requires that plaintiff be unable to 15 perform any substantial gainful activity or work because of a medical condition 16 which has lasted or which can be expected to last for a continuous period of at 17 least twelve months. See 42 U.S.C. § 416(i)(1). 18 a physical or mental impairment or a combination of both is insufficient for the 19 Commissioner to award benefits. There must be a causal relationship between 20 such impairment or impairments and plaintiff s inability to perform substantial 21 gainful activity. See McDonald v. Sec y of Health & Human Servs., 795 F.2d 1118, 22 1120 (1st Cir. 1986). Partial disability does not qualify a claimant for benefits. 23 See Rodríguez v. Celebrezze, 349 F.2d 494, 496 (1st Cir. 1965); Rodriguez- 24 Gonzalez v. Astrue, 854 F.2d 176, 179 (D.P.R. 2012); Hatcher v. Comm r of Social 25 Sec., 770 F.2d 452, 455 (D.P.R. 2011). In general terms, evidence of 26 The finding of the Commissioner in this case reflects an application of step 27 four of the sequential evaluation process. See 20 C.F.R. § 404.1520(e). At step 1 CIVIL 12-1653 (JA) 4 2 3 four the initial burden is on the claimant to show that he can no longer perform 4 his former work because of his impairment(s). Manso-Pizarro v. Sec y of Health 5 & Human Servs., 76 F.3d 15, 17 (1st Cir. 1996); see Santiago v. Sec y of Health 6 & Human Servs., 944 F.2d 1, 5 (1st Cir. 1991). Thence, the Commissioner must 7 compare the physical and mental demands of the past work with the current 8 functional capability. 9 administrative law judge is entitled to credit a claimant s own description of his 10 former job duties and functional limitations but has some burden independently 11 to develop the record. See Manso-Pizarro v. Sec y of Health & Human Servs., 76 12 F.3d at 17; Santiago v. Sec y of Heath & Human Servs., 944 F.2d at 5-6; Mercado 13 v. Commissioner of Social Security, 767 F. Supp. 2d 278, 281 (D.P.R. 2010). The 14 administrative law judge, or adjudicator, makes a residual functional capacity 15 assessment by weighing all of the relevant evidence in the record. 20 C.F.R. § 16 404.1545(a)(1); SSR 96-8p. See 20 C.F.R. § 404.1560(b). At this stage, the 17 Plaintiff argues in his memorandum of law that the administrative law judge 18 did not adequately consider the record as a whole because of reliance on and the 19 reference to the void of evidence after January 2009. (Docket No. 11 at 6-7). 20 Plaintiff considers this determination to be completely erroneous since it is a far 21 stretch from the end of the insured period ending December 31, 2007. (Docket 22 No. 11 at 7-8). 23 in determining that he had the residual functional capacity for performing his past 24 relevant work assistant manager based on the testimony of the vocational expert, 25 without posing adequate hypothetical questions. 26 analysis of the administrative law judge and insists that the administrative law 27 judge failed to give valid reasons why plaintiff s allegations were not credible. He Plaintiff argues further that the administrative law judge erred He complains of the Avery 1 CIVIL 12-1653 (JA) 5 2 3 4 complains of the lack of questions geared to the Avery factors, described below. Plaintiff requests that the final decision be revoked. 5 The Commissioner argues that the objection to the administrative law 6 judge s statement that there is nothing in the record after January 2009 has no 7 bearing on the decision that plaintiff failed to establish disability prior to December 8 31, 2007, the date last insured. The Commissioner also argues that plaintiff s own 9 testimony supports the finding of the Commissioner that the physical residual 10 functional capacity is limited to gross manipulation with the left hand. (Tr. at 22- 11 23). The Commissioner emphasizes that at step four of the sequential evaluation, 12 a claimant may be found not disabled if he can perform his past relevant work as 13 generally performed or actually performed, and the vocational expert was 14 obviously familiar with the requirements of the job of assistant manager as 15 generally performed, and also as actually performed since plaintiff includes his 16 explanation of his duties in the record. 17 Plaintiff has the following severe physical impairment: s/p fracture of left 18 wrist with residuals. (20 C.F.R. 404.1520(c)). There are no mental limitations or 19 physical limitations aside from the ones caused by the left wrist injury. 20 At the April 22, 2010 administrative hearing before administrative law judge 21 Glenn Meyers, plaintiff, then 62, testified that he had an accident on September 22 21, 2007 where his . . .arm was torn in two. (Tr. at 32). 23 surgery four months later and has had no other surgery on the arm. He testified 24 that he has lost strength in the left arm, he cannot lift equipment or push. The left 25 arm is also thinner than the right arm. He constantly feels internal throbbing. Two 26 of his fingers are numb and appear to be getting deformed. (Tr. at 323). As to 27 daily activities, plaintiff owns a jeep with manual transmission and he cannot drive He underwent 1 CIVIL 12-1653 (JA) 6 2 3 it. It has been parked for two years. He cannot do any manipulative movement 4 with his left hand. He cannot sleep and has to sleep on his right side, getting up 5 two or three times a night. 6 Plaintiff wears long sleeve shirts most of the time because people comment 7 on how his left arm is thinner than the right arm. He wears an arm brace most 8 of the time since it stabilizes his hand. (Tr. at 34). He can untie and tie his shoes 9 a little bit. He can button and unbutton his shirt with the right hand only. He 10 can hold meat with the left hand and cut it with the right hand. (Trat 35). 11 Basically, he cannot do anything with his left hand. 12 Vocational expert Dr. Marieva Puig, Ph.D., testified regarding the 13 requirements of plaintiff s past relevant work as manager, assistant which is 14 characterized as being skilled, and having light physical demand. (Tr. at 37). 15 Plaintiff also worked as a loan officer. Plaintiff s dominant hand is his right hand. 16 The vocational expert testified that plaintiff had no mental limitations and that in 17 her opinion plaintiff could not perform the duties of loan officer because of the 18 large amount of clerical work involved, but that he could perform the duties of a 19 manager, assistant, as defined in the Dictionary of Occupational Titles, referred 20 to as the DOT. (Tr. at 39). 21 A. MEDICAL EVIDENCE 22 Plaintiff was injured in an accident at home and suffered a displaced fracture 23 of the distal radius, undergoing a closed reduction operation (realigning the bones 24 from the outside) four days later, under general anesthesia. (Tr. at 222). There 25 were complications. In January 2008, plaintiff underwent an osteotomy (where 26 the bone is rebroken and recast) with the insertion of a metallic fixation device. 27 Subsequently, plaintiff underwent a total of 45 sessions of physical therapy 1 CIVIL 12-1653 (JA) 7 2 3 although he discontinued them in late December, 2007 (four out of 10 remained) 4 and in August 2008. (Tr. at 74, 75, 76, 89, 257, 101, 102, 270, 265, 269). 5 Progress notes dated May 20, 2008 reflected notable improvement in the range 6 of movement of the left wrist and recommended a repeat of the physical therapy 7 course. (Tr. at 85). 8 A radiologist report by Dr. Rafael Grovas Porrata, M.D. dated January 29, 9 2008 mentions a side plate with multiple surgical screws fixating a fracture of the 10 distal radius. The fracture fragments are in anatomical alignment. There is a 11 narrowing of the radiocarpal joint. There is subchondral cyst formation involving 12 the ulnar styloid with subtle subchondral cyst formation as well involving the 13 carpal bones. Bony osteopenia is present. There is soft tissue swelling. (Tr. at 14 240). 15 results. (Tr. at 239). Yet another radiologist report, this one by Dr. Caroline 16 Rodriguez Ferrer, reflects s/p upper reduction and internal fixation of a fracture 17 of the distal radius. There is deformity of the distal ulna. Profound osteopenia is 18 noted. No periarticular osteopenia is noted. (Tr. at 238). Another radiologist report dated February 19, 2008 contained similar 19 On December 19, 2008, Dr. Gilberto Fragoso noted that the fracture was 20 healed by April 11, 2008 ...so [] was severe but did no[t] last 12 months... and 21 no sequelae was expected. (Tr. at 289). 22 evaluation dated May 12, 2009 that by June 2008, there was no evidence of joint 23 contracture. There was good muscle tone, and no evidence of muscle atrophy. 24 The severity assessment at the initial level was adopted (Tr. at 295) (at the initial 25 level, the condition was considered not severe). There is a report dated January 26 21, 2009 by Dr. Jacobo Quinones Bayron who diagnosed left wrist distal radius 27 fracture surgical fixture and alignment. His recommendation was to continue the Dr. Idalia Pedroza noted in a case 1 CIVIL 12-1653 (JA) 8 2 3 physical therapies to determine if the wrist at that moment was at maximum 4 medical level of improvement to determine disability. (Tr. at 294). 5 Finally, an X-ray of the left wrist dated February 3, 2010, well beyond the 6 covered period, reads as follows: There is a metallic fixation device in relation to 7 the distal radius. Radiocarpal relationship is preserved. There is no evidence bony 8 displacement. (Tr. at 312). 9 B. PAIN 10 The administrative law judge acknowledged allegations of severe disabling 11 pain. 12 analysis was governed by SSR 96-4p, SSR 96-7p, and circuit case law. See Avery 13 v. Sec y of Health & Human Servs., 797 F.2d 19 (1st Cir. 1986). The factors to be 14 weighed under the correct standard are the following: 15 16 17 Consequently, as the rationale reflects, the administrative law judge s (i) (ii) (iii) (iv) 18 19 (v) 20 (vi) 21 22 23 24 (vii) Your daily activities; The location, duration, frequency, and intensity of your pain or other symptoms; Precipitating and aggravating factors; The type, dosage, effectiveness, and side effects of any medication you take or have taken to alleviate your pain or other symptoms; Treatment, other than medication, you receive or have received for relief of your pain or other symptoms; Any measures you use or have used to relieve your pain or other symptoms (e.g., lying flat on your back, standing for 15 to 20 minutes every hour, sleeping on a board, etc.); and Other factors concerning your functional limitations and restrictions due to pain or other symptoms. 20 C.F.R. § 404.1529(c)(3); see also SSR 96-7p. 25 The administrative law judge observed plaintiff at the administrative hearing 26 and took his observations into account in making his findings. (Tr. at 23.) While 27 not going down the list in ordinal fashion, the administrative law judge addressed 1 CIVIL 12-1653 (JA) 9 2 3 all of the Avery factors (generally mentioned in SSR 96-8p), some more than 4 others (except for vi), within the supporting rationale for the final decision. (Tr. 5 at 23); cf. Quintana v. Comm r of Social Security, 294 F. Supp. 2d 146, 149-50 6 (D.P.R. 2003). 7 The physical therapy reports are dated between the dates of November 14, 2007 8 and July 23, 2008 when he visited the Centro Rehabilitacion Fisica in San German, 9 Puerto Rico for physical therapy. (Tr. at 181). They reveal a pain level of 2-3 10 (2:moderate pain; 3-4 intense pain; 5: unbearable pain) on a scale of 0-5, with 11 5 as the maximum level of pain. (Tr. at 77, 82, 86, 93, 98, 103, 246, 251, 254, 12 261, 266, 271). The pain was described by plaintiff as constant. Plaintiff notes 13 that he was on prescribed medication for pain. In early 2008, plaintiff was taking 14 Advil, Aleve, Ibuprofen (over-the-counter analgesics) and Endocet (a compound 15 of acetaminophen and oxycodone) for pain, the later two prescribed by Dr. Jose 16 A.Cancio-Berrios, orthopedic surgeon. (Tr. at 183). There are numerous notations of plaintiff s pain in the record. 17 C. VOCATIONAL EXPERT: DICTIONARY OF OCCUPATIONAL TITLES 18 Commonly vocational experts at social security administrative hearings refer 19 to the Dictionary of Occupational Titles (DOT) during their testimony, and just as 20 commonly, administrative law judges rely on such testimony in making disability 21 determinations as was done here. While plaintiff was represented by counsel at 22 the administrative hearing, the vocational expert s testimony went unchallenged 23 in her conclusion that plaintiff could not perform the duties of loan officer (code 24 241.367-018) which required a great amount of writing whereas assistant 25 manager (code 186.167-070)1 did not require so much writing and entailed other 26 27 Prior to his retirement from the bank industry on June 1, 2002, plaintiff worked as an assistant bank manager, a job he held since 1997. (Tr. at 178). 1 1 CIVIL 12-1653 (JA) 10 2 3 duties. While the conflict of apparent duties as performed and as defined in the 4 DOT may seem clear, it was not apparent at the hearing and does not reach the 5 level of injury to the substantial evidence rule which would welcome remand. See 6 e.g. Merritt v. Astrue, 872 F. Supp.2d 742, 756-57 (N.D. Ill. 2012). 7 vocational expert was clearly aware of the requirements of both of plaintiff s past 8 relevant jobs in favoring one over the other in terms of their requirements and the 9 required performance of the left wrist. To more fully develop the record, the 10 administrative law judge was not required to formulate hypothetical questions 11 regarding the duties of an assistant bank manager, duties which are described in 12 the DOT, and duties as performed which plaintiff also described in the record. (Tr. 13 at 63-64). The 14 It is clear that the administrative law judge was not required to weigh the 15 evidence in this case and then determine that plaintiff was disabled under the Act. 16 Furthermore, the administrative law judge was entitled to observe plaintiff at the 17 hearing, and his demeanor did not reflect any extreme discomfort or distress 18 during the hearing, see Frustalgia v. Sec y of Health & Human Svcs., 829 F.2d 19 192, 195 (1st Cir. 1987), this notwithstanding the fact that he wore a wrist brace 20 apparently prescribed by Dr. Cancio in either 2007 or February 2008. (Tr. at 220). 21 D. CONCLUSION 22 After reviewing the same record reviewed by the administrative law judge, 23 I conclude that the final decision reflects a reasonable balancing and weighing of 24 the evidence and the making of credibility determinations. See Gray v. Heckler, 25 760 F.2d 369, 374 (1st Cir. 1985); Tremblay v. Sec y of Health & Human Servs., 26 27 The job is classified as light and skilled work by the DOT. 1 CIVIL 12-1653 (JA) 11 2 3 676 F.2d 11, 12 (1st Cir. 1982); Rodríguez v. Sec y of Health & Human Servs., 647 4 F.2d 218, 222 (1st Cir. 1981); Rodriguez-Gonzalez v. Astrue, 854 F. Supp. 2d at 5 185. 6 Commissioner, not the courts. Id.; see Barrientos v. Sec y of Health & Human 7 Servs., 820 F.2d 1, 2-3 (1st Cir. 1987). In the resolution of such conflicts, I 8 cannot say that the substantial evidence rule has been violated. The mention of 9 the absence of medical evidence after January 2009 is given some weight in 10 plaintiff s memorandum, and also gives cause to pause on judicial review, but 11 again, the substantial evidence rule trumps reliance on such a detail. 12 Nevertheless, sometimes evidence outside the period of coverage or possible 13 disability eligibility may be relevant to a determination of disability within a 14 covered period. Further, the power to resolve conflicts in the evidence lies with the 15 Plaintiff alleges debilitating pain and it is reasonable to conclude that the 16 evidence as a whole does not support such a determination. Plaintiff alleges that 17 he can do nothing with his left hand. The evidence of record, including range of 18 motion studies and the details of his physical therapy sessions, contradict that 19 statement. The physical therapy evaluations reflect poor muscle strength in the 20 fingers of the left hand. Plaintiff has noted that he cannot lift or hold heavy 21 objects (Tr. at 215). Plaintiff s allegations when compared to his own description 22 of daily activities (such as driving, dressing or cutting meat), the self-described 23 pain levels included in the physical therapy evaluations, the medical report of Dr. 24 Pedroza dated May 12, 2009 (Tr. at 295) and Dr. Fragoso dated December 19, 25 2008 (Tr. at 289), the generally conservative nature of the pain medication (over- 26 the-counter) except for Endocet (prescribed by the orthopedic surgeon and no 27 longer being taken), the allegation of atrophy but lack of atrophy in the medical 1 CIVIL 12-1653 (JA) 12 2 3 record (Tr. at 295), lead to the conclusion that the final decision is reasonable. 4 If there is a substantial basis in the record for an administrative law judge s 5 decision, the court must affirm the decision, whether or not another conclusion is 6 possible. See Ortiz v. Sec y of Health & Human Svcs., 955 F.2d 765, 769 (1st Cir. 7 1991). Such a possibility need not be considered with this record. 8 In view of the above, I find that the administrative law judge has complied 9 with the requirements of the substantial evidence rule. See Richardson v. Perales, 10 402 U.S. at 401. 11 Social Security and dismiss this action. The Clerk will enter judgment accordingly. I therefore affirm the final decision of the Commissioner of 12 13 At San Juan, Puerto Rico, this 17th day of July, 2013. 14 15 16 17 18 19 20 21 22 23 24 25 26 27 S/ JUSTO ARENAS United States Magistrate Judge

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