Davila v. Commisioner of Social Security

Filing 20

OPINION AND ORDER dismissing re 1 Complaint filed by Luis E. Davila Clerk to enter judgment. Signed by Chief Mag. Judge Justo Arenas on 8/14/2009.(nydi)

1 2 3 4 5 6 7 8 9 10 11 Plaintiff v. LUIS E. DÁVILA,

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO

CIVIL 08-2098 (ADC)

COMMISSIONER OF SOCIAL SECURITY, Defendant

OPINION AND ORDER 12 13 14 Benefits. The claim was denied. A hearing was held on March 7, 2006. An 15 16 17 18 19 20 21 22 23 24 25 February 11, 2009. (Docket No. 16.) Plaintiff filed a reply memorandum on 26 27 February 21, 2009. (Docket No. 17.) of December 13, 1989 at the age of 6 due to epilepsy, visual-motor problems, language problems, attention deficit and immunological problems. Plaintiff filed a memorandum against such final decision on December 30, 2008. (Docket No. 12.) The defendant filed a memorandum in support of the final decision on unfavorable decision resulted. On September 25, 2008, plaintiff filed this petition for judicial review of a final decision of the Commissioner of Social Security which denied his application for a period of disability and Childhood Disability benefits. He alleges disability as On April 8, 2003, plaintiff filed an application for Childhood Disability

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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 he was disabled under the Act at any time on or before May 26, 2006, the date of the final decision. See Evangelista v. Sec'y of Health & Human Servs., 826 F.2d 136, 140 n.3 (1st Cir. 1987).

10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 4. 2. 3. immunological problems. After evaluating the evidence of record, administrative law judge Solomon Goldman entered the following findings on May 26, 2006: 1. The claimant meets the non-disability requirements for Childhood Disability Benefits set forth in Section 202(d) of the Social Security Act (with the exceptions noted in 20 CFR § 404.335(b)(2)). The claimant has not engaged in substantial gainful activity since the alleged onset of disability. The claimant's generalized seizure disorder and allergies are considered "severe" based on the requirements in the Regulations 20 CFR § 404.1520(c). These medically determinable impairments do not meet or medically equal one of the listed impairments in Appendix 1, Subpart P, Regulation No. 4. Plaintiff was born on May 30, 1985, does not communicate in English, has no vocationally relevant past work experience and has completed one year of college. He alleges being disabled since birth due to epilepsy, visual-motor

problems, language problems, attention deficit disorder, depression and

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5.

The undersigned finds the claimant's allegations regarding his limitations are not totally credible for the reasons set forth in the body of the decision. 6. The claimant has the following residual functional capacity: the claimant retains the ability to comply with the exertional requirements of work, whereby he could lift/carry 20 pounds; sit for 6 hours; stand/walk for 6 hours. From the nonexertional aspect, the claimant cannot climb; he cannot be around unprotected heights; he cannot be around moving machinery; he cannot climb, and he cannot drive. 7. The claimant has no past relevant work (20 CFR § 404.1565). 8. The claimant is a `younger individual' (20 CFR § 404.1563). 9. The claimant has `a high school (or high school equivalent) education' (20 CFR § 404.1564). 10. The claimant has the residual functional capacity to perform a significant range of light work (20 CFR § 404.1567). 11. Although the claimant's exertional limitations do not allow him to perform the full range of light work, using MedicalVocational Rule 202.21 of Table 2, Appendix 2, Subpart P, of Regulations No. 4 as a framework for decision-making, there are a significant number of jobs in the national economy that he could perform. Examples of such jobs include work as a hand packager, floor boy, ticketer and inspector, all of which exist in significant numbers in the economy in the high hundreds, each. The vocational expert also testified that the claimant could also work as a tester of electrical components (900 jobs), as a central supply clerk (1200 jobs), as a bottle line attendant (1100 jobs), and as an electronic assembler (1200 jobs). 12. The claimant was not under a "disability," as defined in the Social Security Act, at any time through the date of this decision (20 CFR § 404.1520(g)). Tr. at 19-20. Plaintiff has the burden of proving that he has become disabled within the meaning of the Social Security Act. See Bowen v. Yuckert, 482 U.S. 137 (1987). A finding of disability requires that plaintiff be unable to perform any substantial

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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

10 11 12 13 14 15 16 17 18 19 20 experience to see if the claimant can do other work. If the claimant cannot, a 21 22 23 24 25 26 27 finding of disability will follow. See 20 C.F.R. § 404.1520(f). At step five, the Commissioner bears the burden of determining that significant jobs exist in the national economy given the above factors. See Nguyen v. Chater, 172 F.3d 31, 33 (1st Cir. 1999); Lancelotta v. Sec'y of Health & Human Servs., 806 F.2d 284, this level, it has already been determined that the claimant cannot perform any work he has performed in the past due to a severe impairment or combination of impairments. The inquiry requires a consideration of the claimant's residual 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 administrative law judge ended the sequential inquiry at step five. At

functional capacity as well as the claimant's age, education, and past work

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285 (1st Cir. 1986); Vázquez v. Sec'y of Health & Human Servs., 683 F.2d 1, 2 (1st Cir. 1982). Plaintiff poses the following errors before the court. He argues that the administrative law judge considered incorrect information given to the vocational expert as to the existence of significant numbers of jobs in the national economy. He also argues that the hypothetical questions posed by the administrative law

10 11 12 13 14 15 16 17 18 19 20 affirmed by clinical psychologist Orlando Reboredo on January 14, 2004. (Tr. at 21 22 23 24 25 26 27 activities of daily living, marked restrictions in maintaining social functioning, 401.) A physical residual functional capacity assessment dated February 12, 2004 showed no exertional limitations. There were postural limitations in using a ladder or rope. (Tr. at 418.) A mental residual functional capacity assessment made by Dr. Lourdes Barreras on December 21, 2005 reflected moderate restrictions in the chosen evidence. A psychiatric review technique form dated June 24, 2003 by clinical psychologist Hilario de la Iglesia, Ph.D., showed mental retardation. (Tr. at 40114.) There were mild functional limitations. (Tr. at 411.) The assessment was judge that included selective portions of the medical record are not listed in plaintiff's medical conditions. Plaintiff also attacks the manner in which the

evidence of record was weighed by the administrative law judge, as well as his relying on residual functional capacity assessments that were based on selectively

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constant deficiencies of concentration, persistence or pace resulting in failure to complete tasks in a timely manner. Also noted was that once or twice, plaintiff has had episodes of deterioration or decompensation in a work-like setting. (Tr. at 425-26.) The psychiatrist also found plaintiff to have a global assessment of functioning of 65% to 75%. At the administrative hearing held on January 11, 2006, plaintiff was

10 11 12 13 14 15 16 17 18 19 20 vocational expert testified that plaintiff could work within the electronics industry, 21 22 23 24 25 26 27 related to the detailed requirements of the jobs. The vocational expert noted that at jobs such as tester, electronic component, or assembler of large parts; or in the hospital industry, in central supply work, light and unskilled in nature. In the food industry, plaintiff could perform as an auto bottle line attendant, unskilled and sedentary in nature. (Tr. at 679.) The attorney for plaintiff asked questions school and one year of college, and that where his emotional condition would only preclude work where he would be under intense tension and stress in performing work functions of a routine, repetitive and simple work functions within his mental capacity. He also asked the expert to assume no work background. The represented by counsel. Vocational expert Héctor Guerra testified responding to hypothetical questions from the administrative law judge. The judge asked the vocational expert to assume epileptic seizures of a petit-mal nature and not frequent, that plaintiff has an attention deficit condition, has completed high

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the electronics job had no moving parts involved, and that the hospital employment was a routine. The attention needed would not be intense. (Tr. at 681.) Bottle line attendant would require use of moving machinery. In

electronics, the working with large parts would not require moving machinery. Assuming a hypothetical question of plaintiff's counsel that plaintiff has a seizure disorder, uncontrolled with medication, diagnosed as complex, partial seizure with

10 11 12 13 14 15 16 17 18 19 20 and marked restrictions in maintaining social functioning, deficiency of 21 22 23 24 25 26 27 administrative hearing held on March 7, 2006. The administrative law judge concentration and persistence of task, and deterioration in a work setting. The expert replied that it would be hard to maintain an activity five days a week. (Tr. at 682.) Another vocational expert, psychologist Margarita Valladares, testified at the factors such as depression, attention hyper activity disorder, an organic affective disorder, supported by a brain scan indicating changes compatible with normalization disease, collagen vascular disease or substance effects (although the person has never used drugs). This with moderate restrictions of daily activity intractable generalized tonic, chronic seizure disorder and environmental restrictions and positional activities and standing and walking, lifting and carrying restricted because of the seizure attacks, uncontrolled, the expert stated that such a person would be at risk all the time. (Tr. at 681-82.) The attorney added

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asked a hypothetical question including the consideration of limitations of light to sedentary work, normal epileptic attacks, excluding exposure to dangerous moving machinery, with ability to follow certain instructions, use judgment in making work-related decisions, respond to supervisors, and deal with changes. The vocational expert considered the hypothetical questions and considered plaintiff could perform jobs such as hand packager, floor boy, ticketer and

10 11 12 13 14 15 16 17 18 19 20 published in March 2000. (Tr. at 666.) The record contains a publication which 21 22 23 24 25 26 27 stated that she could not evaluate epilepsy and related factors. The expert is entitled "Industrial Composition by Municipality, Second Trimester 2005". (Tr. at 432-54.) The expert was asked to assume roughly the same hypothetical question asked of the previously testifying expert, including factors like the presence of gases, humidity, and vibrations. (Tr. at 670.) The psychologist their particular locations, including eleven industries in Guaynabo. (Tr. at 666.) The expert noted that the jobs existed in certain industries without pinpointing at which factories any particular job was available. The expert made use of a inspector of finished products in different industries. (Tr. at 662.) The expert felt the previously mentioned jobs could also be performed. Plaintiff's attorney

questioned in relation to the numbers of the jobs available in the national economy. Emphasis was made on the availability of such jobs in Puerto Rico and

publication "Directory of Manufacturing Establishments of Puerto Rico", last

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insisted that she could not evaluate the medical part of the hypothetical in recognizing her limitations, considering her particular expertise. (Tr. at 671.) The psychologist yielded to the expertise of a neurologist for determinations related to epilepsy. Considering residuals, the expert stated that such a person could not work. In relation to plaintiff's residual functional capacity, when a nonexertional

10 11 12 13 14 15 16 17 18 19 20 `directs a conclusion as to whether the individual is or is not disabled.' 20 C.F.R. 21 22 23 24 25 26 27 capable of performing, then the Grid is only a `framework to guide [the] decision.' pt. 404, subpt. P, App. 2, § 200.00(a), cited in 20 C.F.R. § 416.969. However, if the applicant has non-exertional limitations (such as mental, sensory, or skin impairments, or environmental restrictions such as an inability to tolerate dust, id. § 200(e))[,] that restrict his ability to perform jobs he would otherwise be chart contained in the Social Security regulations. 20 C.F.R. § 416.969; limitation is found to impose no significant restriction on the range of work a claimant is exertionally able to perform, reliance on medical-vocational guidelines, known as the Grid, is appropriate. "If the applicant's limitations are exclusively exertional, then the Commissioner can meet [the] burden through the use of a

Medical-Vocational Guidelines, 20 C.F.R. pt. 404, subpt. P, App. 2, tables 1-3 (2001), cited in 20 C.F.R. § 416.969; Heckler v. Campbell, 461 U.S. 458 (1983). . . . If the facts of the applicant's situation fit within the Grid's categories, the Grid

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20 C.F.R. § 416.969a(d) (2001)." Seavey v. Barnhart, 276 F.3d 1, 5 (1st Cir. 2001). "[T]he more that [the] occupational base is reduced by a nonextertional impairment, the less applicable are the factual predicates underlying the Grid rules, and the greater is the need for vocational testimony." Candelario v.

Comm'r of Soc. Sec., 547 F. Supp. 2d 92, 99 (D.P.R. 2008); see Ortiz v. Sec'y of Health & Human Servs., 890 F.2d 520, 524-25 (1st Cir. 1989); Burgos López v.

10 11 12 13 14 15 16 17 18 19 20 jobs existed in the national economy considering seminal factors. The answers 21 22 23 24 25 26 27 & Human Servs., 659 F. 2d 8, 9 (1st Cir. 1981); see 20 C.F.R. § 416.966(a). included the existence of hundreds of jobs in the economy which plaintiff was considered able to perform. "`[W]ork which exists in the national economy'" numbers in the national economy. 42 U.S.C. §423(d)(2); see Vélez-Ramos v. Astrue, 571 F. Supp. 2d at 304-05; Miranda-Monserrate v. Barnhart, 520 F. Supp. 2d 318, 331-32 (D.P.R. 2007). The administrative law judge asked both vocational experts whether certain Sec'y of Health & Human Servs., 747 F.2d 37, 42 (1st Cir. 1984); cf. Vélez-Ramos v. Astrue, 571 F. Supp. 2d 301, 305 (D.P.R. 2008). Considering the erosion on the occupational base, vocational experts thus provided testimony about the effect of such erosion on plaintiff's ability to perform specific jobs existing in significant

means work which exists in significant numbers either in the region where such individual lives or in several regions of the country." Thomas v. Sec'y of Health

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Notwithstanding plaintiff's attack during the second administrative hearing, it is immaterial whether work exists in the immediate area where plaintiff lives, or whether a particular job vacancy is available. See 20 C.F.R. § 404.1566(a). It is equally immaterial if the administrative law judge could not identify specific companies or locations where jobs could be had, or whether job vacancies existed, or whether there is a lack of work in plaintiff's area. See, e.g., Carpenter v.

10 11 12 13 14 15 16 17 18 19 20 they yielded normal results. 21 22 23 24 25 26 27 for his age group. Progress notes of Dr. Marina Virella, treating neurologist from development increased over the years to high normal scales. (Tr. at 14.) In 2003, a test showed that the intellectual The administrative law judge related the long and documented history of plaintiff's receiving treatment since childhood for several conditions. He noted that plaintiff responded well to the treatments. The administrative law judge noted that plaintiff has been given intelligence scale tests over the years and that Astrue, 2009 WL 1632079, at *10 (E.D. Ky. June 10, 2009). Based upon the testimony of both experts, the judge considered plaintiff's age, educational background, work experience and residual functional capacity in determining that he was not disabled.

Psychiatrist, Dr. Lourdes Barreras, started treating plaintiff on October 12, 1994. She found him generally to be coherent, relevant and logical and that his social functioning was adequate although he did not participate in activities appropriate

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2002 through 2004 reflected that plaintiff's seizures were controlled. Plaintiff had poor compliance with his anti-seizure medication. Neurologist Dr. Teresa Castro Ponce completed a physical residual functional capacity assessment on December 19, 2005 and noted that plaintiff lost control during a seizure or attack, and that consequently exposure to certain factors, such as fumes, dust and chemicals, had to be avoided. The administrative law judge discussed in detail

10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 (vi) (v) (i) (ii) (iii) (iv) 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, impairments. These were required to be considered under SSR 96-7p and circuit case law. See Avery v. Sec'y of Health & Human Servs., 797 F.2d 19, 20-21 (1st Cir. 1986). following: The factors to be weighed under the correct standard are the how he weighed the medical reports of the physicians, and why he gave less weight to some, for example, noting the inconsistency in Dr. Barreras' assessment. (Tr. at 16.) The administrative law judge acknowledged allegations of nonexertional

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(vii)

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. 7 8 9 10 11 12 13 14 15 16 17 with the weighing of the Avery factors in his rationale. (Tr. at 17.) 18 19 20 21 22 23 24 25 26 27 questions by both the administrative law judge and claimant's representative were based upon hypothetical combinations which could be created from this record. There was no error in the administrative law judge's determining that certain jobs existed in the national economy which plaintiff was capable of performing taking While plaintiff takes issue with the manner in which questions were posed to the vocational experts, in that they arguably did not refer to facts in the record, the questions are an example of typical multi-layered hypothetical questions asked by an administrative law judge as well as by the claimant's representatives. The suggested neurological compromise. (Tr. at 17.) He considered numerous The administrative law judge noted in his rationale that the medical record is unremarkable aside from establishing plaintiff's allegations. The judge noted that the record failed to specify any limitations arising out of the allegations and clinical findings failed to show significant motor, reflex or sensory deficits that

factors, such as response to treatment, normal IQ, lack of major side-effects, and adequate physical mobility. The administrative law judge also noted plaintiff's limitations as reflected by the evidence of record. Clearly, the judge complied

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into consideration the hypothetical individual's work restrictions. (Tr. at 19.) See, e.g., Rivera-Rivera v. Barnhart, 330 F. Supp. 2d 35, 37-38 (D.P.R. 2004). The administrative law judge conducted a thorough review of the evidence in this extensive record which spans early childhood to adulthood. Having

reviewed the same administrative record considered by the administrative law judge, I adopt the rationale leading to the findings. Looking at the evidence as

10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 S/JUSTO ARENAS Chief United States Magistrate Judge The Clerk is directed to enter judgment accordingly. At San Juan, Puerto Rico, this 14th day of August, 2009. a whole, without balancing the medical evidence or making credibility determinations, I cannot decide that the final decision has failed to comply with the requirements of the substantial evidence rule. There being no good cause to remand, the complaint is dismissed.