Cuevas-Lopez v. Comminssioner of SS

Filing 20

OPINION AND ORDER. The Commissioner of Social Security's denial of disability is AFFIRMED. Signed by Judge Salvador E Casellas on 7/16/2010.(LB)

Cuevas-Lopez v. Commissioner of Social Security

Doc. 20

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IN THE UNITED STATES DISTRICT COURT F O R THE DISTRICT OF PUERTO RICO

W IL L IA M CUEVAS-LOPEZ Plaintiff v. Civil No. 09-1905 (SEC) C O M M IS S IO N E R OF SOCIAL S E C U R IT Y (MICHAEL J. ASTRUE) D efendant

O P I N I O N AND ORDER T h is is an action brought under §205(g) of 42 U.S.C. §405(g), the "Social Security Act." Plaintiff William Cuevas-Lopez ("Plaintiff") seeks a review of the Commissioner of Social S e c u rity's ("the Commissioner") denial of his application for disability and disability insurance b e n e f its . Docket No. 1. The Commissioner filed a Memorandum of Law in support of the d e c is io n to deny benefits (Docket No. 19) and Plaintiff filed his own Memorandum of Law in o p p o s itio n (Docket No. 17). After reviewing the parties' filings, and the applicable law, the d e c is io n of the Commissioner denying Plaintiff disability benefits is AFFIRMED. Factual and Procedural Background P la in tif f filed an application for disability and disability insurance benefits on December 1 5 , 2004, alleging disability since October 20, 2004 due to vision problems, anxiousness, a k id n e y condition, left leg pain, diabetes, and low back pain. Record of Transcript ("T.R.") 14, 4 0 0 . The application was denied initially on July 20, 2005, T.R. 28, and upon reconsideration o n September 19, 2005, T.R. 23. Plaintiff then requested a hearing, which was held on February 2 , 2007 before Administrative Law Judge ("ALJ") Solomon Goldman. T.R. 398. On March 2 6 , 2007, the ALJ issued an decision holding that Plaintiff is not disabled as defined in the S o c i a l Security Act either under general disability, or statutory blindness. T.R. 18. Plaintiff

Dockets.Justia.com

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a p p e a l e d the ALJ's decision, yet the Appeals Council denied Plaintiff's request, T.R. 4, 3 re n d e rin g the ALJ's decision the final decision of the Commissioner, see 20 C.F.R. § 404.981. 4 Having exhausted his administrative remedies, Plaintiff filed a complaint in this Court seeking 5 ju d ic ia l review of the Commissioner's final decision. Docket No. 1. 6 According to the record, Plaintiff was born on July 8, 1945. T.R. 37. He was fifty-nine 7 ye a rs old on October 20, 2004, the alleged disability onset date, T.R. 37, although he worked 8 u n til March 2005, T.R. 402. Plaintiff has a fifth-grade education and has previously worked in 9 re sta u ra n ts , factories, carpentry and agriculture. T.R. 69, 404. His last job was packing 10 o ra n g e s . T.R. 403. However, Plaintiff stated at the administrative hearing that, throughout his 11 lif e , he worked without reporting income tax for several years because he was unaware of his 12 o b lig a tio n to file taxes. T.R. 403, 405. 13 During the hearing, Plaintiff testified about his numerous health problems. He stated that 14 h e could not work due to dizzy spells and kidney pain, T.R. 404, in addition to leg and back 15 p a in , T.R. 404. Plaintiff has also suffered from diabetes for approximately eight years, T.R. 16 4 0 6 , for which Plaintiff's wife administers insulin twice a day, T.R. 411. He has vision 17 p ro b le m s , and claims that he cannot see at night, nor read text, despite wearing eye glasses. 18 T.R. 405. Plaintiff also stated that his mood is affected by the weather and that it is difficult to 19 re m a in either standing or seated for more than an hour. T.R. 410. According to his testimony, 20 h e cannot carry any weight, has trouble walking more than fifteen or twenty minutes, and 21 o c c a s io n a lly needs his wife's help to bathe. T.R. 410-11. 22 A d d itio n a lly, Plaintiff testified about his mental condition, for which he is treated every 23 o n e to two months. T.R. 407. According to Plaintiff, he has trouble sleeping and has bumps 24 o n his head, which he scratches. 25 h o s p ita liz a tio n at Monitec Hospital for a short period of time. T.R. 407. 26 T.R. 407. These symptoms led to an involuntary

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3 O n January 5, 2005, Plaintiff was examined by Dr. Jovino Diaz-Fernandez, an 4 o p to m e t r is t, who found that even though Plaintiff presented blurry vision on both eyes, his 5 o c u la r history was unremarkable. T.R. 119. Dr. Diaz found that Plaintiff had small, round, 6 re a c ti v e pupils with no afferent pupillary defect, normal extraocular mobility test, abnormal 7 c o lo r vision, healthy optic nerves, and no apparent retinal pathologies. T.R. 119. During this 8 v isit, Plaintiff's best corrected visual acuity from a distance was 20/40 and 20/25 on the right 9 a n d left eye, respectively, and 20/40, 20/30 from a short distance. T.R. 119. Dr. Diaz referred 10 P la in tif f to an ophthalmologist for a dilated fundus examination. T.R. 119. 11 12 o p h th a lm o lo g i s t , who reported a visual acuity after correction of 20/25 in the right eye and 13 2 0 /2 0 in the left one. T.R. 123. Dr. Alicea diagnosed type II diabetes mellitus, incipient non 14 p ro lif e ra tiv e diabetic retinopathy, bilateral posterior vitreous detachment, error of refraction, 15 n e p h ro lith ia s is , and assessed a poor prognosis. T.R. 124. 16 Plaintiff presented numerous other reports that evidence his remaining conditions 17 in c lu d in g hypertension, diabetes, and his mental conditions. 18 d o c u m e n ts , however, were not used in the ALJ's disability determination and are not under 19 re v ie w by this Court. See T.R. 16-18. 20 Standard of Review 21 T h e scope of this Court's judicial review of the Commissioner's final decision is limited 22 b o th by statute and case law. See 42 U.S.C. §405(g). Section 405(g) provides that the findings 23 o f the Secretary as to any fact, if supported by substantial evidence, shall be conclusive . . . ." 24 In Richardson v. Perales, 402 U.S. 389 (1971) (quoting Consolidated Edison Co. v. N.L.R.B., 25 3 0 5 U.S. 197 (1938)), the United States Supreme Court defined "substantial evidence" as "more 26 See T.R. 125-397. These Thereafter, on May 2n d , 2005, Plaintiff saw Dr. Valeriano Alicea-Cruz, an

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th a n a mere scintilla. It means such relevant evidence as a reasonable mind might accept as 3 a d e q u a te to support a conclusion." Id. at 401; see also Tsarelka v. Secretary of H.H.S., 842 F. 4 2 d 529, 534 (1st Cir. 1987); Chaparro v. Massanari, 190 F. Supp. 2d 260, 262 (D.P.R. 2002). 5 M o re o v e r, the First Circuit has held that this determination of substantiality must be made on 6 th e record as a whole. See Ortiz v. Secretary of H.H.S., 955 F.2d 765, 769 (1st Cir. 1991). It 7 is , however, the Secretary's responsibility to choose between conflicting evidence." Burgos 8 9 10 11 S e c re ta ry's findings of fact shall be conclusive and shall not be overturned. 42 U.S.C. §405(g). 12 To establish entitlement to disability benefits, the burden is on the claimant to prove that 13 h e or she is both disabled within the meaning of the Social Security Act, and insured for 14 d isa b ility insurance benefits. 42 U.S.C. § 423 (a)(1)(A) & (E); see also Bowen v. Yuckert, 482 15 U .S . 137, 146-47, n.5 (1987). It is well settled law that a claimant is disabled under the Social 16 S e c u rity Act if he is (1) generally disabled, or unable "to engage in any substantial gainful 17 a c tiv ity by reason of any medically determinable physical or mental impairment which can be 18 e x p e c te d to result in death or which has lasted or can be expected to last for a continuous period 19 o f not less than 12 months; or" (2) statutorily blind within the meaning of the Social Security 20 A c t. 42 U.S.C. §§416(i)(1) and 423(d)(1). 21 Apart from establishing inability to engage in substantial gainful activity, a claimant for 22 g e n e ra l disability must be fully insured as defined in 42 U.S.C. §414 and comply with the 20/40 23 re q u ire m e n t. §§ 416(i)(3) and 423(c)(1); 20 C.F.R. 404.130(b)(1996). Fully insured status is 24 25 26 L ó p e z v. Secretary of H.H.S., 747 F.2d, 37, 41 (1st Cir. 1984); see also Tremblay v. Secretary o f H.H.S., 676 F. 2d 11, 12 (1st Cir. 1982); Freeman v. Barnhart, 274 F.3d at 609 (citing Seavey v . Barnhart, 276 F.3d 1, 15 (1st Cir. 2001). When supported by substantial evidence, the

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f u lf ille d if the claimant has at least 40 quarters of coverage,1 or "one quarter of coverage for e a c h calendar year elapsing after 1950 or, if later, after the year in which you became age 21,

4 a n d before the year you reach retirement age...." 5 re q u ire m e n t entails having twenty quarters of coverage in the last forty quarters, ending with 6 th e quarter in which the disability occurred. 42 U.S.C. §§416(i)(3)(B) and 423(c)(1)(B); 20 7 C .F .R . 404.130(b)(2). In other words, in the 10 years (40 quarters) leading up to when the 8 d isa b ility began, a claimant must have worked and paid taxes for at least 5 years (20 quarters). 9 Under the Social Security Act, a claimant is statutorily blind if, having obtained 55 years 10 o f age and being fully insured, he or she has a "central visual acuity of 20/200 or less in the 11 b e tte r eye with the use of a correcting lens." 42 U.S.C. §§416(i)(1)(B) and 423(d)(1)(B). "An 12 e ye which is accompanied by a limitation in the fields of vision such that the widest diameter 13 o f the visual field subtends an angle no greater than 20 degrees shall be considered... as having 14 a central visual acuity of 20/200 or less." 42 U.S.C. §416(i)(1)(B); 20 C.F.R. §404.1581. 15 Plaintiff's blindness must be the cause claimant is unable to engage in substantial gainful 16 a c tiv ity "comparable to any gainful activity in which he has previously engaged with some 17 re g u la rity...." 42 U.S.C. §423(d)(1)(B). 18 A claimant is unable to engage in any substantial gainful activity when the claimant is 19 n o t only unable to do his previous work but cannot, considering age, education, and work 20 e x p e rie n c e , engage in any other kind of substantial gainful work which exists in the national 21 e c o n o m y, regardless of whether such work exists in the immediate area in which he lives, or 22 23 24 25 26 Table for determining the quarters of coverage a claimant needs to be fully insured. Applicants born after January 2nd, 1929 need at least 40 quarters of coverage to be fully insured. 20 C.F.R. §404.115(a). A quarter of coverage is a legal term used to determine eligibility for Social Security Benefits. As a person works and pays taxes, he or she earns quarters of coverage, up to a maximum of four quarters a year. A Glossary of Social Security Terms, Social Security Online, Jul. 2, 2010.
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20 C.F.R. §404.110(b).

The 20/40

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w h e t h e r a specific job vacancy exists for him, or whether he would be hired if he applied for 3 w o rk . 42 U.S.C. §423(d)(2)(a). In making this determination, the ALJ employs a five-step 4 s e q u e n t i a l evaluation process. 20 C.F.R. § 404.1520; see, e.g., Goodermote v. S.H.H.S., 690 5 6 d e te rm in a tio n may be concluded at any step along the process." Freeman v. Barnhart, 274 F.3d 7 8 A p p lic a b le Law and Analysis 9 P la in tif f 's application for disability benefits was reviewed by the ALJ for both general 10 d isa b ility and statutory blindness. See T.R. 16-18. The ALJ held that Plaintiff was entitled to 11 n e ith e r since (1) Plaintiff did not meet the 20/40 requirement and was thus ineligible to receive 12 g e n e ra l liability benefits, and (2) Plaintiff's impaired vision did not meet the statutory definition 13 o f blindness. See T.R. 17. Claimant, however, argues that the ALJ committed several errors in 14 f in d in g Plaintiff was not entitled to disability benefits, namely in holding that claimant could 15 p e rf o rm his past agricultural work. Docket No. 17. These alleged errors include (1) failure to 16 c o n s id e r Plaintiif's non-visual impairments, (2) failure to review the findings of claimant's 17 tre a tin g physicians who found claimant severely impaired, (3) failure to enlist a medical expert 18 to review the record and make the disability determination, (4) failure to enlist a vocational 19 e x p e r t to determine if Plaintiff was able to do his past work, and (5) failure to consider the 20 e v id e n c e as a whole by only focusing on evidence favorable to the Commissioner. Docket No. 21 1 7 . Additionally, Plaintiff argues that the case should be remanded to the Commissioner for a 22 re c a lc u la tio n of his quarters of coverage, given that additional earnings evidence was submitted 23 a f te r the administrative hearing to comply with the 20/40 rule. Docket No. 17. 24 Defendant, on the other hand, argues that Plaintiff is ineligible for general disability 25 b e n e f its because, since he failed to meet the 20/40 rule, he is categorically ineligible for 26 6 0 6 , 608 (1 st Cir. 2001). F .2 d 5, 6-7 (1st Cir. 1982). However, "all five steps are not applied to every applicant, as the

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d isa b ility benefits, and would be ineligible despite considering the new earnings information. 3 Docket No. 19. Furthermore, Defendant argues that Plaintiff is also ineligible for disability for 4 s ta tu to ry blindness because he does not meet the Act's legal definition of blind. Docket No. 19. 5 This Court must examine the parties' claims and evaluate whether there was substantial 6 e v id e n c e to support the ALJ's determinations. In so doing, we shall first determine whether 7 P l a in tif f is entitled to general disability benefits. As previously stated, to receive general 8 d isa b ility benefits Plaintiff must be fully insured, meet the 20/40 requirement, and be unable of 9 e n g a g in g in any substantial gainful activity. 42 U.S.C. §423(c)(1) & (d)(1)(A). The ALJ 10 d e te rm in e d that Plaintiff was fully insured. T.R. 16. Specifically, according to the record, 11 P la in tif f has fifty-three (53) quarters of coverage throughout his work history, see T.R. 47-48, 12 th e r e b y meeting the 40 quarters of coverage requirement to be fully insured, see 20 C.F.R. 13 § 4 0 4 .1 1 0 (b ); see also 20 C.F.R. §404.115(a). However, the ALJ held that Plaintiff was not 14 e n title d to general disability benefits because he did not comply with the 20/40 rule, T.R. 17, 15 a n d this Court agrees. Based on the record before the Court, Plaintiff accumulated only 10 16 q u a rte rs of coverage in the 40 quarters preceding Plaintiff's application for benefits, see T.R. 17 4 8 , when he needed 20 to qualify for benefits, 20 C.F.R. §404.130. 18 Moreover, Plaintiff's argument that the case should be remanded to review new earnings 19 in f o rm a tio n also fails. The record shows that Plaintiff provided evidence of earnings for 2002, 20 2 0 0 3 , 2004, and 2005. See T.R. 53-56. If earnings are recalculated to include the new 21 e v id e n c e , even when viewed most favorably to the Plaintiff, he would still not comply with the 22 2 0 / 4 0 rule. 23 c a lc u la tio n . If 8 more were added for years 2004 and 2005, 3 quarters for which Plaintiff is not 24 e n title d to since he worked only until March 2005, Plaintiff would still come up short of 25 m e e t in g the 20/40 rule with only 18 quarters. 26 Since Plaintiff does not meet the 20/40 Eight quarters for years 2002 and 2003 are already included in the current

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re q u ire m e n t, and would not comply with it despite the new earnings information, claimant is 3 4 (sta tin g that "Harvell earned no quarters of coverage during the relevant forty-quarter period, 5 a n d ... was therefore not eligible for disability insurance benefits."). A determination of whether 6 P la in tiff can engage in substantial gainful activity is superfluous and irrelevant because Plaintiff 7 is categorically barred from general disability benefits for failure to meet the 20/40 rule. See 8 F re e m a n , 274 F.3d at 608 (holding that the determination may be concluded at any step along 9 th e process). A qualitative analysis of Plaintiff's condition and the seriousness of his mental 10 a n d physical impairments would have no bearing on the result. 11 The second issue is to determine whether there is substantial evidence to support the 12 A L J 's holding that Plaintiff is not statutorily blind within the meaning of the Social Security 13 A c t. It is clear from the record that Plaintiff complies with the following two requirements to 14 b e eligible for statutory blindness disability benefits: he is past the age of 55, see T.R.37, and 15 h e is fully insured. Nonetheless, Plaintiff's visual conditions do not meet the Social Security 16 A c t's definition of statutory blindness. After reviewing Plaintiff's records, the ALJ found that 17 P la in tif f suffered from the following severe impairments: incipient non proliferative diabetic 18 re tin o p a th y, bilateral posterior vitreous detachment and error of refraction. T.R. 17. However, 19 w h ile 42 U.S.C. §416(i)(1)(B) requires that a claimant have a "central visual acuity of 20/200 20 o r less in the better eye with the use of a correcting lens[,]" Plaintiff's last examination with Dr. 21 A lic e a -C ru z revealed visual acuity after correction of 20/25 in the right eye and 20/20 in the left 22 o n e , T.R. 123. Additionally, a previous examination by Dr. Diaz-Fernandez showed a corrected 23 v isu a l acuity from a distance was 20/40 and 20/25 on the right and left eye, respectively, and 24 2 0 /4 0 , 20/30 from near. T.R. 119. This Court agrees with Defendant that substantial evidence 25 s u p p o rts the ALJ's decision that Plaintiff's impaired vision did not rise to the level of legal 26 in e lig ib le for general disability benefits. See Harvell v. Chater, 87 F.3d 371, 373 (9 th Cir. 1996)

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b lin d n e s s . Based on the evaluations and medical reports from Dr. Diaz-Fernandez and Dr. 3 4 d id not even meet the level of impairment required for statutory blindness. Both these 5 e v a lu a tio n s were submitted by the Plaintiff, and there is nothing on the record challenging their 6 a c c u ra c y. Thus there is substantial evidence supporting the ALJ's holding that Plaintiff does 7 n o t meet the statutory definition of blindness, and as a result, he is not entitled to disability 8 b e n e f its . 9 Plaintiff contends that, nonetheless, the ALJ erred in making the determination that 10 P la in tif f could return to his past work. Docket No. 17. Defendant correctly points out that the 11 A L J was not required to make this determination in order to deny Plaintiff disability benefits. 12 Docket No. 19. A qualitative analysis of Plaintiff's impairments was not necessary for general 13 d isa b ility since he was categorically barred due to his failure to meet the 20/40 rule. Nor was 14 it necessary under the statutory blindness analysis since Plaintiff did not meet the legal 15 d e f in itio n of blindness. 16 Nevertheless, when examining statutory blindness, the ALJ inquired as to whether 17 P la in tif f 's visual impairments rendered claimant unable to perform substantial gainful activity. 18 T.R. 17. He found that his visual acuity would not preclude him from any work activity, even 19 w o rk that required good binocular vision. T.R. 17-18. This Court, although finding the 20 d e te rm in a tio n superfluous, notes that in fact, claimant's visual problems do not preclude him 21 f ro m engaging in his past work. Pursuant to the medical evaluation from Dr. Alicea-Cruz and 22 D r. Diaz-Fernandez, Plaintiff's corrected visual acuity of 20/20 does not impede him from 23 e n g a g in g in his previous job. Albeit this Court recognizes that there is ample evidence on 24 25 26 Generally, more weight should be given to an examining physician thatn to a non-examining pysician. 20 C.F.R. §404.1527(d)(1).
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A lic e a -C ru z , both examining physicians,2 Plaintiff's corrected vision bordered on normal and

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re c o rd of Plaintiff's mental and physical impairments, said evidence has no bearing on whether 3 P la in tif f 's visual impairments disable him from performing his past work in an analysis for 4 d isa b ility requirements for statutory blindness. Thus, the ALJ correctly disregarded this 5 in f o rm a tio n under the blindness analysis, and did not make a disability determination based on 6 n o n -v is u a l impairments. Likewise, as stated before, evidence of non-visual impairments has no 7 b e a rin g for general disability purposes because Plaintiff was categorically ineligible for such 8 b e n e f its . 9 In light of the above, the Court find that the ALJ's decision to deny disability benefits 10 b o th under general disability and statutory blindness was correct. 11 Conclusion 12 B a s e d on the foregoing, the ALJ's determination is AFFIRMED, and the instant case 13 is DISMISSED with prejudice. 14 IT IS SO ORDERED. 15 16 17 18 19 20 21 22 23 24 25 26 S / Salvador E. Casellas S A L V A D O R E. CASELLAS U n ite d States District Judge In San Juan, Puerto Rico, this 16 th day of July, 2010.