Mercado v. Comm'r of Soc. Sec., Civil No. 09–2288 (JA).

• Decision Date: 01 December 2010
• Docket Number: Civil No. 09–2288 (JA).
• Citation: 167 Soc.Sec.Rep.Serv. 430,767 F.Supp.2d 278
• Parties: Hemeregilda MERCADO, Plaintiffv.COMMISSIONER OF SOCIAL SECURITY, Defendant.
• Court: U.S. District Court — District of Puerto Rico

767 F.Supp.2d 278

167 Soc.Sec.Rep.Serv. 430

Hemeregilda MERCADO, Plaintiff

v.COMMISSIONER OF SOCIAL SECURITY, Defendant.

Civil No. 09–2288 (JA).

United States District Court, D. Puerto Rico.

Dec. 1, 2010.

Salvador Medina–De–La–Cruz, Salvador Medina–De–la–Cruz Law Office, San Juan, PR, for Plaintiff.Ginette L. Milanes, U.S. Attorney's Office, District of Puerto Rico, San Juan, PR, for Defendant.

OPINION AND ORDER

JUSTO ARENAS, United States Chief Magistrate Judge.

On December 28, 2009, plaintiff filed this complaint seeking review of a final decision of the Commissioner of Social Security which denied her application for a period of disability and Social Security disability insurance benefits. The defendant filed a 23–page memorandum in support of the final decision on August 23, 2010 (Docket No. 13) and plaintiff filed a 28–page memorandum with attachments against such final decision on July 23, 2010. (Docket No. 10.)

The only issue for the court to determine is whether the final decision that plaintiff is not under a disability is supported by substantial evidence in the record when looking at such record as a whole. In order to be entitled to such benefits, plaintiff must establish that she was disabled under the Act at any time on or before December 30, 2007, when she last met the earnings requirements for disability benefits under the Social Security Act. See Evangelista v. Sec'y of Health & Human Servs., 826 F.2d 136, 140 n. 3 (1st Cir.1987).

After evaluating the evidence of record, the administrative law judge entered the following findings on January 7, 2008:

1. The claimant meets the insured status requirements of the Social Security Act through December 30, 2007.

2. The claimant has not engaged in substantial gainful activity since July 1, 2002, the alleged onset date (20 CFR 404.1520(b) and 404.1571 et seq.).

3. The claimant has the following impairments: hypothyroidism, cervical myositis, peripheral polyneuropathy of the lower extremities and bilateral radiculopathy at the L5(L4) levels by elecrotromyogram and nerve conduction (EMG/NCS) studies, lower back pain, herniated discs at the L4–L5 and L5–S1 levels by magnetic resonance imaging (MRI) study, and moderate major depressive disorder (20 CFR 404.1520(c)).

4. The claimant does not have an impairment or combination of impairments that meets or medically equals one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525 and 404.1526).

5. After careful consideration of the entire record, the undersigned finds that, from the physical standpoint, the claimant has the residual functional capacity to perform medium work not requiring frequent climbing, frequent stooping, frequent crouching, exposure to unprotected heights or exposure to moving machinery. On the other hand, from the mental standpoint, the claimant's major depressive disorder does not preclude following both simple and complex work instructions.

6. The claimant is capable of performing past relevant work as sewing machine operator. This work does not require the performance of work-related activities precluded by the claimant's residual functional capacity (20 CFR 404.1565).

7. The claimant has not been under a disability, as defined in the Social Security Act, from July 1, 2002 through the date of this decision (20 CFR 404.1520(f)).

(Docket No. 16, at 7, 10, 12.)

Plaintiff has the burden of proving that she has become disabled within the meaning of the Social Security Act. See Bowen v. Yuckert, 482 U.S. 137, 107 S.Ct. 2287, 96 L.Ed.2d 119 (1987). A finding of disability requires that plaintiff be unable to perform any substantial gainful activity or work because of a medical condition which has lasted or which can be expected to last for a continuous period of at least twelve months. See 42 U.S.C. § 416(i)(1). In general terms, evidence of a physical or mental impairment or a combination of both is insufficient for the Commissioner to award benefits. There must be a causal relationship between such impairment or impairments and plaintiff's inability to perform substantial gainful activity. See McDonald v. Sec'y of Health & Human Servs., 795 F.2d 1118, 1120 (1st Cir.1986). Partial disability does not qualify a claimant for benefits. See Rodríguez v. Celebrezze, 349 F.2d 494, 496 (1st Cir.1965).

The finding of the commissioner reflects an application of step four of the sequential evaluation process. See 20 C.F.R. § 404.1520(e). At step four the initial burden is on the claimant to show that she can no longer perform her former work because of her impairment(s). Manso–Pizarro v. Sec'y of Health & Human Servs., 76 F.3d 15, 17 (1st Cir.1996); see Santiago v. Sec'y of Health & Human Servs., 944 F.2d 1, 5 (1st Cir.1991). Thence, the Commissioner must compare the physical and mental demands of the past work with the current functional capability. See 20 C.F.R. § 404.1560(b). At this stage, the administrative law judge is entitled to credit a claimant's own description of her former job duties and functional limitations but has some burden independently to develop the record. See Manso–Pizarro v. Sec'y of Health & Human Servs., 76 F.3d at 17; Santiago v. Sec'y of Health & Human Servs., 944 F.2d at 5–6.

Plaintiff worked from February 1984 until June 2002 as a (sewing machine) operator for Hanes in Camuy, a manufacturer of men's underwear. (Tr. at 89, 98, 121.) Plaintiff described her job as sewing leg parts and preparing packages of six dozens. She sat and crouched eight hours a day and frequently lifted packages that weighed 10 pounds. (Tr. at 98.) More specifically, she sat for 7.3 hours a day and stooped for .3 hours a day. (Tr. at 122, 126.) She would take bundles of six dozens of underwear and carry them to another operator two feet away. (Tr. at 126.)

The medical evidence reveals that plaintiff received treatment at the State Insurance Fund up to September 4, 2002. On September 14, 2001, plaintiff was diagnosed with disc herniations and moderate degenerative disc disease by Dr. Ricardo Olazabal. (Tr. at 209.) She continued to receive medical treatment from an endocrinologist up to December 14, 2004, from a physiatrist through July 12, 2005, and from a general practitioner through March 10, 2005. A consultative neurologist evaluated her on March 5, 2005.

A general medical report of March 10, 2005 by Dr. Erlando Méndez Morales resulted in a diagnosis of hypothyroidism, major depression with psychotic features, lumbar disc hernia, and radiculopathy. The prognosis was poor. There was a notation that plaintiff could not work by any means. (Tr. at 176.)

Plaintiff was tested by physiatrist Dr. Jorge Padilla Rodríguez on July 12, 2005. His findings were consistent with bilateral L5 (L4) radiculopathy, sub-acute in nature, and peripheral polyneuropathy involving both motor and sensory fibers, with mainly demyelinating features, most probably secondary to thyroid disease. (Tr. at 157.)

A physical residual functional capacity assessment dated July 13, 2004 by internist Dr. Asciclo A. Marxuach reflected limitations in lifting in that plaintiff could occasionally lift 20 pounds, and frequently lift 10 pounds. (Tr. at 340.) There were postural limitations in that plaintiff could occasionally climb, stoop, crouch and crawl. (Tr. at 341.) There were no environmental limitations.

A mental residual functional capacity assessment dated September 21, 2004 by clinical psychologist Zulma McDougall López, Ph.D., reflected moderate limitations in sustained concentration and persistence, and in the ability to understand and remember detailed instructions. There were also moderate limitations in the ability to interact appropriately with the general public, as well as in adaptation. The clinical psychologist noted that plaintiff suffers from a major depression which did not impose at that moment serious restrictions in her functioning. Plaintiff was determined to be able to remember and carry out instructions, both simple and complex. (Tr. at 296–98.) The assessment was affirmed by clinical psychologist Orlando Reboredo, Ph.D. A psychiatric review technique form reflective affective disorder with depressive syndrome characterized by psychomotor agitation, or decreased energy, or feelings of guilt or worthlessness, or difficulty concentrating or thinking. (Tr. at 303.) There were moderate functional limitations in restriction of activities of daily living, difficulties in maintaining social functioning, concentration, persistence or pace. (Tr. at 310.)

Dr. José R. Gándara Carbonell reported on plaintiff's thyroid on February 15, 2005. The report is fairly unremarkable and the prognosis was good. (Tr. at 204.)

A March 3, 2005 neurological evaluation by Dr. Alfredo Pérez Canabal resulted in a diagnostic impression of low back pain and cervical myositis. (Tr. at 193.) Plaintiff was found to be alert, active, and oriented in time, place and person. Due to the pain, plaintiff had to change positions frequently. X-rays of that date showed straightening of the lower lordosis, possibly due to muscle spasm. (Tr. at 201.)

A current physical residual functional capacity assessment dated April 8, 2005 by internist Dr. Idalia Pedroza López reflects no significant exertional limitations. There were postural limitations, especially in kneeling, but also in climbing, balancing, stooping, crouching and crawling. (Tr. at 105.) In terms of environmental limitations, plaintiff was determined to avoid even moderate exposure to hazards such as machinery and heights. (Tr. at 167.)

A mental residual functional capacity assessment dated June 27, and signed on July 2, 2007 by Dr. María de los Ángeles Pujols, reflects that plaintiff was unable to meet competitive standards in many categories such as understanding and remembering very short and simple instructions, complete a normal workday and workweek without interruptions from psychologically based symptoms, and deal with...