Rosado v. Richardson, Civ. No. 535-72.

• Decision Date: 07 August 1973
• Docket Number: Civ. No. 535-72.
• Citation: 372 F. Supp. 469
• Parties: Maria B. Torres ROSADO, Plaintiff, v. Elliot L. RICHARDSON, Secretary of Health, Education and Welfare, Defendant.
• Court: U.S. District Court — District of Puerto Rico

372 F. Supp. 469

Maria B. Torres ROSADO, Plaintiff, v. Elliot L. RICHARDSON, Secretary of Health, Education and Welfare, Defendant.

Civ. No. 535-72.

United States District Court, D. Puerto Rico.

August 7, 1973.

Edgardo Marquez Lizardi, Caguas, P. R., for plaintiff.

Julio Morales-Sanchez, U. S. Atty., San Juan, P. R., for defendant.

ORDER

TOLEDO, Chief Judge.

This action is brought to us under Section 205(g) of the Social Security Act (hereinafter the Act), Title 42, United States Code, Section 405(g), to determine whether the Secretary's decision denying this plaintiff disability benefits under the Act is supported by substantial medical evidence in the record.

The plaintiff is a 34 year old woman who alleges inability to work as of 1962 due to Parkinson's disease (Tr. 37). She met the insured status requirement prescribed in the Act on September 30, 1967 (Tr. 19), Title 42, United States Code, Section 416(i).

There is scant medical evidence taken on or before this date, although several recent diagnoses have been made indicating that this plaintiff is severely handicapped. Dr. Hector J. Cases reports in 1971 that she needs immediate therapy (Tr. 86). He does not indicate what he feels the result of such therapy will be or whether such therapy will permit realization by this plaintiff of substantial gainful activity. Title 42, United States Code, Section 423. Dr. Diaz Rivera puts this plaintiff's case more strongly. He states she suffers from Parkinson's disease, she is very seriously ill and that her capacity to do work is "nil" (Tr. 84).

Nevertheless, as these medical reports were rendered after this woman last met the insured status requirement, the hearing examiner had the vocational expert testify whether this woman could work based on medical reports made while she was still insured. None of these reports mention the presence of Parkinson's disease (Tr. 6, 80-82). But Dr. Diaz Rivera states in 1971 that this patient's present condition has existed for the past 10 years, and indicates in his report that perhaps the tremors of the hand reported then was wrongly identified as nervousness (Tr. 83).

The vocational expert testified at the hearing that if in fact this plaintiff has been suffering from Parkinson's disease since 1962, then "she was unable to work" since that time (Tr. 50).

The hearing examiner quickly points out that the mere existence of a disease does not necessarily mean that it is severe enough to establish a disability under the Act (Tr. 50), Matías Rivera v. Gardner (D.C.P.R.1968), 286 F.Supp. 305. But in his decision, he states that the fact that this plaintiff completed a secretarial course in 1968-69 shows her incapacity was not of disabling proportions.

We would rather have such a determination of lack of incapacity rest on medical evidence instead of a deduction based on activity this plaintiff has in fact realized. Put more strongly the ultimate decision regarding a claimant's ability to do work depends on medical reports. Title 42, United States Code, Section 423(d)(3).

We recognize that a claimant has the burden of coming forth with medical evidence showing disability. Hernández v. Secretary of Health, Education and Welfare (D.C.P.R.1972), 336 F.Supp. 1077. Looking at this case strictly, this plaintiff did not meet her burden as very little medical evidence has been introduced pertaining to her insured status period which shows a...