Agostini-Cisco v. Commissioner of Social Security
Filing
30
OPINION AND ORDER re 1 SOCIAL SECURITY COMPLAINT, filed by Nilda I. Agostini-Cisco. Signed by US Magistrate Judge Camille L. Velez-Rive on 2/12/13.(ljt)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
NILDA I. AGOSTINI CISCO,
Plaintiff,
v.
CIVIL NO. 11-1950 (CVR)
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
OPINION AND ORDER
INTRODUCTION
On September 27, 2011, plaintiff Nilda I. Agostini-Cisco (hereafter plaintiff
“Agostini-Cisco”) filed the above action to obtain judicial review of the final decision of the
defendant, the Commissioner of Social Security (hereafter “Commissioner”), denying the
application for a protected period of disability and corresponding benefits. (Docket No. 1).
On May 24, 2012, the Commissioner filed the answer to the Complaint with copy of the
administrative record. On October 12, 2011, the Court ordered the Clerk to randomly assign
the case to a Magistrate Judge as an implied consent upon plaintiff having failed to inform
by October 5, 2011 whether she consented to jurisdiction. (Docket Nos. 5, 6, and 7). On
September 19, 2012, plaintiff filed the corresponding memorandum of law and the
Commissioner filed his memorandum on February 7, 2013. On February 8, 2013, counsel
Salvador Medina-De La Cruz for plaintiff filed a motion consenting to jurisdiction by this
Magistrate Judge. (Docket Nos. 27 and 29). It is now proper to dispose of the issues raised
in the present action.
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ADMINISTRATIVE AND PROCEDURAL HISTORY
On March 13, 2007, plaintiff Agostini-Cisco filed an application for a period of
disability with onset date of October 26, 2004 which was denied initially and upon
reconsideration. Thereafter, the requested administrative hearing was held on October 8,
2009. After considering the evidence of record and the testimonies of the medical and
vocational experts, the presiding Administrative Law Judge (hereafter “ALJ”) issued an
opinion finding Agostini-Cisco was not under disability.
Plaintiff Agostini-Cisco is insured for disability purposes up to March 31, 2010. She
claims the impairments resulting from mitral valve prolapse, high blood pressure, cervical
and back condition and a depressive disorder resulted in a disability to perform substantial
gainful activity as of onset date of October 26, 2004.
In the ALJ’s opinion issued on November 3, 2009, the ALJ determined at step one
of the required sequential evaluation process that Agostini-Cisco had not engaged in gainful
activity since alleged date of disability. It was also found she had severe impairments as to
her back, neck and left ankle as well as a severe depressive disorder but did not have an
impairment or combination thereof that could meet the requirements for the Listing of
Impairments. Appendix 1, 20 C.F.R. Part 404, Subpart P. Considering the available
medical evidence, the ALJ found plaintiff Agostini-Cisco retained the residual functional
capacity to perform work within the range of light type of work, which was consonant, at
step four, with her previous relevant work as a sewing machine operator. As such, the ALJ
concluded plaintiff Agostini-Cisco was not under disability for she retained the capacity to
perform her past relevant work. The ALJ did not continue to step five of the sequential
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Civil No. 11-1950 (CVR)
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evaluation process because the ALJ concluded plaintiff Agostini-Cisco was not disabled at
step four. The Appeals Council denied review, rendering the ALJ’s decision the final
decision of the Commissioner.
Seeking judicial review, plaintiff Agostini-Cisco submits the ALJ’s decision did not
comply with application of the correct legal standard and it lacks substantial evidence in
support. The Commissioner’s memorandum of law objects both contentions.
THE ALJ’S DECISION AND THE APPEALS COUNCIL
The ALJ applied the evaluation process mandated by law, insofar as concluding that
plaintiff Agostini-Cisco: (1) met the non-disability requirements for a period of disability
and disability insurance benefits up through March 31, 2010; (2) had not engaged in
substantial gainful activity since the alleged onset date of disability of October 26, 2004; (3)
allegations of severe impairments or combination thereof had more than a minimal affect
on her ability to perform basic work-related activities constituting severe impairments, but
plaintiff did not have an impairment or combination that meets or equals the listed
impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1; (4) upon consideration of the
entire record, plaintiff Agostini-Cisco retained the residual functional capacity to perform
the full range of light type of work. Considering plaintiff’s residual functional capacity for
light work, the ALJ determined she could perform her previous job as a sewing machine
operator, and as such, there was no need to continue up to step 5 to find if there were jobs
available within the residual functional capacity for light/sedentary work.
The ALJ also discussed the available medical evidence regarding plaintiff AgostiniCisco’s mental condition. The ALJ referred plaintiff had moderate restrictions in activities
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of daily living. Notwithstanding, the record showed she could prepare breakfast and light
meals for the family, would watch television, feed the cat, do the laundry and dishes. As to
activities dealing with social functioning, plaintiff had moderate difficulties and she related
well with her husband and son, drove short distances and went out weekly to buy
medication and groceries. (Docket No. 10, Transcript, p. 23). The ALJ indicated there was
no evidence of hospitalization. Plaintiff Agostini-Cisco was assessed upon the medical
record that she had adequate thought process, there was no evidence of intellectual or
personality deterioration and no perceptual disorders or delusions. She provided adequate
and detail descriptions of her symptoms and work history at different interviews. Although
Agostini-Cisco had been depressed and anxious, there were no emergency room visits and
her mental treatment was ambulatory and limited in scope. (Id.).
Plaintiff Agostini-Cisco also received treatment from Dr. Ariel Rojas (hereafter “Dr.
Rojas”), a psychiatrist, since May 10, 2007 for complaints of insomnia, sadness, loss of
interest, lack of concentration and frequent crying spells. Dr. Rojas’ report of July 16, 2007
found the patient tense, with motor retardation, with depressed affect and mood, but she
was coherent, relevant, with logical thought process, oriented in the three spheres and with
preserved memory with good insight. (Docket No. 10, Transcript, p. 25).
Insofar as the neck and back condition, the ALJ concluded the record revealed a
history of back and cervical pain due to the sitting position at her job. Cervical pain
irradiated to upper extremities. Plaintiff Agostini-Cisco received treatment through the
State Insurance Fund (hereafter “SIF”) since 2004. An MRI of the spine revealed central
disc protrusion at C4-C5 and C5-C6 levels with indents to the ventral dural sac. Plaintiff
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received therapy, medication and epidural blocks for the pain. The condition improved but
she developed a mental condition that was also treated at the SIF, diagnosed as depressive
disorder.
Agostini-Cisco also presented a cardiovascular condition. Cardiologist Dr. Grace
Marini (hereafter “Dr. Marini”) treated and diagnosed the condition on January 13, 2003
as mitral valve prolapse and hyperlipidemia. There were complaints of burning chest pain
radiating to the back, precipitated by stress and alleviated by rest. The complaints were also
of palpitations, fatigue and weakness. The cardiologist indicated plaintiff Agostini-Cisco
was able to walk two blocks, sit for two hours and stand for five minutes. She should not
lift or carry more than ten pounds, rarely twist, stoop, crouch or climb and was to avoid
exposure to extreme temperatures, noises, fumes, odors, and hazards such as moving
machinery and unprotected heights. (Id., pp. 24-25).
An internist, Dr. Geraldo González (hereafter “Dr. González”), treated plaintiff
Agostini-Cisco since January 4, 2008 for the back condition. There was evidence by X-rays
of thoracic scoliosis. Likewise, medical evidence revealed left ankle and foot presented
plantar and posterior calcaneal spur formation at the distal tibia, suggesting bone island.
An MRI of the lumbar spine of September 15, 2009 revealed degenerative end plate changes
at L4-L5, mild degenerative facet changes at L5-S1 level and small posterolateral disc
herniation at L2-L3 level. The patient manifested muscle spasms and weakness, spastic
gait, sensory and reflex changes and lack of coordination involving mainly the neck and
back, with headaches associated with the cervical condition. (Docket No. 10, Transcript p.
25).
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Civil No. 11-1950 (CVR)
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In consideration of the medical evidence of record, the ALJ concluded that AgostiniCisco’s cervical and back condition was not of disabling severity. The discogenic disc
disease and muscle spasms responded to medication and to conservative treatment,
including physical therapy and epidural blocks. Additionally, the ALJ noted plaintiff
Agostini-Cisco continued to work while under said treatment for these conditions. As to the
mental condition, the same did not restrict plaintiff’s activities of daily living or social
functioning, was controlled with medication and did not affect concentration, persistence
and pace. The arterial hypertension was under control.
Dr. Antonio Aponte (hereafter “Dr. Aponte”) , an examining Internal Medicine
specialist, upon examination on September 24, 2007, found no limitation for walking,
standing, sitting, lifting, carrying or handling. Another examination by Dr. Armando Caro
(hereafter “Dr. Caro”), a psychiatrist, described the patient with good eye contact, normal
speech, appropriate affect, neutral mood, preserved memory, oriented, with no
hallucination. She also presented fair concentration, judgment and insight. Dr. Caro
diagnosed a moderate major depression, with good prognosis. Medications were reported
to improve sleep and decrease anxiety. (Id., p. 26).
Considering all the above medical evidence, the ALJ determined the residual
functional capacity was supported by the evidence of record as to ability to perform light
work, but limited to lifting no more than ten pounds frequently and twenty pounds
occasionally, carrying from five to seven pounds frequently, pushing and pulling up to five
pounds, stand and walk for up to six hours in terms of an eight hour workday in an
environment without significant changes in temperature and without chemical or strong
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odors. She was mentally limited to perform simple, repetitive tasks, without contact with
the public and only occasional contact with other workers and supervisors. (Id.).
Since Agostini-Cisco’s previous relevant work as sewing machine operator did not
require performance of work related activities precluded by her residual functional capacity,
the ALJ found plaintiff was able to perform same. Through the testimony of the vocational
expert, Dr. Héctor Puig (hereafter “Dr. Puig”), it was further ruled the previous job
performed by plaintiff was low, semi-skilled in physical and mental demands and fell within
the light level of exertion. (Docket No. 10, Transcript pp. 48-51). Having determined
plaintiff Agostini-Cisco could still perform her past relevant work, the ALJ’s above findings
concluded that plaintiff was not considered disabled.
LEGAL ANALYSIS
The Court’s review is limited to determine whether the ALJ deployed the proper legal
standards and found facts upon the proper quantum of evidence. See Manso-Pizarro v.
Secretary of Health and Human Services, 76 F.3d 15, 16 (1st Cir. 1996). The ALJ’s findings
of fact are conclusive when supported by substantial evidence, 42 U.S.C. § 405(g), but are
not conclusive when derived by ignoring evidence, misapplying the law, or judging matters
entrusted to experts. Nguyen v. Chater, 172 F.3d 31, 35 (1st Cir. 1999); Da Rosa v. Secretary
of Health and Human Services, 803 F.2d 24, 26 (1st Cir. 1986); Ortiz v. Secretary of Health
and Human Services, 955 F.2d 765, 769 (1st Cir. 1991).
To establish entitlement to disability benefits, the burden is on the claimant to prove
that she is disabled within the meaning of the Social Security Act. See Bowen v. Yuckert,
482 U.S. 137, 146-47, n. 5 (1987). It is well settled law that a claimant is disabled under the
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Act if he/she is unable “to engage in any substantial gainful activity by reason of any
medically determinable physical or mental impairment which can be expected to result in
death or which has lasted or can be expected to last for a continuous period of not less than
12 months.” 42 U.S.C. § 423(d)(1)(a). A claimant is unable to engage in any substantial
gainful activity when the claimant is not only unable to do his/her previous work but,
considering age, education, and work experience, cannot engage in any other kind of
substantial gainful work which exists in the national economy, regardless of whether such
work exists in the immediate area in which he/she lives, or whether a specific job vacancy
exists, or whether he/she would be hired if he/she applied for work. 42 U.S.C.
§ 423(d)(2)(a).
In making a determination as to whether a claimant is disabled, all of the evidence
in the record must be considered. 20 C.F.R. § 404.1520(a). A five-step sequential
evaluation process must be applied in making a final determination as to whether a
claimant is or not disabled. 20 C.F.R. §§ 404.1520; see Bowen v. Yuckert, 482 U.S. 137,
140-42 (1987); Goodermote v. Sec. of Health & Human Servs., 690 F.2d 5, 6-7 (1st Cir.
1982).
Through step one the ALJ determines whether the claimant is engaged in
“substantial gainful activity.” If he/she is, disability benefits are denied. §§ 404.1520(b).
If not, the decision-maker proceeds to step two, through which it is determined whether the
claimant has a medically severe impairment or combination of impairments. See §§
404.1520(c). If the claimant does not have a severe impairment or combination of
impairments, the disability claim is denied.
If the impairment or combination of
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impairments is severe, the evaluation proceeds to the third step, in order to determine
whether the impairment or combination of impairments is equivalent to one of a number
of listed impairments that the Commissioner acknowledges are so severe as to preclude
substantial gainful activity. §§ 404.1520(d); 20 C.F.R. pt. 404, subpt. P, App. 1. If the
impairment meets or equals one of the listed impairments, the claimant is conclusively
presumed to be disabled. If the impairment is not one that is conclusively presumed to be
disabling, the evaluation proceeds to the fourth step, through which the ALJ determines
whether the impairment prevents the claimant from performing the work he/she has
performed in the past. If the claimant is able to perform his/her previous work, he/she is
not disabled. §§ 404.1520(e). If it is determined that the claimant cannot perform this
work, then the fifth and final step of the process demands a determination on whether
claimant is able to perform other work in the national economy in view of the residual
functional capacity, as well as age, education, and work experience. The claimant would be
entitled to disability benefits only if he/she is not able to perform other work. §§
404.1520(f). The ALJ in the instant case examined and analyzed plaintiff Agostini-Cisco
following up to the fourth step above described.
The claimant has the burden, under steps one through four, of proving that he/she
cannot return to his/her former employment because of the alleged disability. Santiago v.
Secretary of Health and Human Services, 944 F.2d 1, 5 (1st Cir. 1991). In the present case,
the ALJ found plaintiff Agostini-Cisco able to perform her previous past relevant work as
sewing machine operator and, thus, did not need to continue examination after said step
four consideration. By determining the residual functional capacity for full range of light
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level of exertion, which logically follows also able to perform sedentary type of work, and
upon the testimony of a vocational expert, the ALJ concluded the past relevant work was
not precluded by the limitations imposed by plaintiff Agostini-Cisco’s exertional and nonexertional conditions. The ALJ opined plaintiff was not under disability and the Appeals
Council thereafter affirmed.
Counsel for plaintiff Medina De-La Cruz discussed in the memorandum of law the
ALJ did not deploy the proper legal standard and there was no discussion if plaintiff could
still perform other alternate work. (Docket No. 21, p. 2). Plaintiff’s memorandum of law
further discussed the same medical evidence, treatment and diagnosis considered by the
ALJ, but concludes there was no substantial evidenced in support of the administrative
decision denying her application.
In addition to the above discussed medical evidence of Dr. Marini, González and
Aponte, plaintiff refers to Dr. German Malaret (hereafter “Dr. Malaret”), an internist, who
testified during the administrative hearing insofar as plaintiff was limited to lifting no more
than ten pounds frequently and twenty pounds occasionally. Due to plaintiff’s asthma, she
could not tolerate extreme temperature, dust or chemical. (Id., p. 5). Plaintiff refers to the
ALJ’s determination she could still perform past relevant work as sewing machine operator
at step four of the evaluation process, as a generic statement for failure to perform a
function to function comparison. (Id., pp. 8-9).
The Commissioner objected to statement as to failure to establish how an occupation
is generally performed for the testimony of Dr. Malaret, as well as consultative opinion of
Dr. Aponte, which referred to plaintiff’s ability without limitations as to walking, standing,
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sitting, lifting, carrying and handling objects, as well as the weight exertion falling within
the requirements of a sewing machine operator job. (Docket No. 26, pp. 9-10). The
assessments of Dr. Aponte and Dr. Malaret were deemed sufficient for the ALJ to conclude
the exertional capacities of plaintiff for light type of work.
Similarly, the mental ability assessed by the ALJ as being nearly normal was
supported by the report of Dr. Carol, an examining consultative psychiatrist. This was also
substantiated by the opinion of Dr. Piñeiro, a state agency psychological consultant, who
upon review of the medical evidence did not preclude the ALJ’s finding that plaintiff could
sustain pace and concentration, adjust to changes in work setting, understand, remember
and carry out simple and detail instructions. (Docket No. 26, pp. 11-12). The ALJ took into
consideration that plaintiff Agostini-Cisco complained of depression, but psychiatric
treatment showed in January 2007 that after five sessions with Dr. Carmen Cotto her
mental condition was stable with medication and she was discharged. (Id., p. 13). The
Commissioner discussed how the ALJ fully evaluated the physical and mental demands of
plaintiff’s past relevant work and compared them to plaintiff’s residual functional capacity
by referring to the vocational expert’s testimony. (Id., p. 14).
A review of the administrative hearing transcript indeed reveals Dr. Puig, the
vocational expert, testified plaintiff’s work as sewing machine operator, a job she had
performed during the last 25 years, had no transferability of skills and was light, because
only occasionally surpasses ten pounds in exertion. (Docket No. 10, Transcript, pp. 48-49).
The sewing job was mainly done seated, which plaintiff was not precluded, nor exceeded
plaintiff’s limitations as to lifting and carrying, pulling and pushing.
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As to any limitations from plaintiff’s mental condition, plaintiff was not to have
contact with people. The sewing job was done only with the machine and the fabric. (Id.,
p. 50). The ALJ also indicated the presence of mild pain would not affect performance
either. (Id., p. 51).
Plaintiff Agostini-Cisco must prove disability claimed is serious enough to prevent
performance of the former jobs at the fourth level of the sequential evaluation process and
it is only at the fifth stage that the Commissioner bears the burden to show there are other
jobs in the economy that plaintiff can nonetheless perform.1 Goodermore v. Secretary of
Health & Human Servs., 690 F.2d 5, 7 (1st Cir. 1982). At step four, it is the claimant who
must show that she can no longer perform her former work because of the impairments.
Santiago v. Secretary of Health & Human Servs., 944 F.2d 1, 5 (1st Cir. 1991).
The record shows plaintiff Agostini-Cisco was treated conservatively for her
exertional conditions. As to the non-exertional condition, she was also found not
significantly affected in that she retained the ability to function properly in a work setting.
Both the medical evidence of record and the vocational expert’s testimony supported the
ALJ’s determination that plaintiff was able to perform light, unskilled work, including one
wherein she could understand, carry out and remember simple instructions. The general
rule is that an expert is needed to assess the extent of functional loss. Manso-Pizarro v.
Secretary of Health & Human Servs., 76 F.3d 15, 17 (1st Cir. 1996). Such combination was
consonant with plaintiff’s past relevant work as sewing machine operator. The ALJ can rely
1
20 C.F.R. §404.1520(e) - a claimant will be found not disabled when he/she retains the residual functional
capacity to perform the actual functional demands and job duties of a particular past relevant job.
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Civil No. 11-1950 (CVR)
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in consultative and non-examining physicians, as well as may piece together relevant
medical facts from the findings and opinions of multiple physicians. Evangelista v.
Secretary of Health & Human Servs., 826 F.2d 136, 144 (1st Cir. 1987).
In the present case, the ALJ availed himself of the testimony of the vocational expert
to ascertain that plaintiff’s past relevant work was consonant with the residual functional
capacity, which in turn was consonant with the medical record. Said residual functional
capacity assessment was sustained by the evidence of record and the consultative examining
and non-examining physicians, as well as by the testimony of the medical expert who
testified at the administrative hearing, Dr. Malaret.2 The ALJ was entitled to rely on these
testimonies, which together with the remaining medical record, was substantial evidence
in support of the determination that plaintiff Agostini-Cisco could perform her past relevant
work and, thus, at step four was found not to be under disability.
CONCLUSION
For the reasons above discussed, this United States Magistrate Judge finds the
decision of the Commissioner is supported by substantial evidence in the record as a whole
and shall be AFFIRMED.
2
Dr. Malaret testified the plaintiff’s lumbar and neck discogenic conditions would allow exertion in the lifting
of weight of no more than twenty pounds. (Docket No. 10, Transcript p. 42). She can remain standing four at least six
hours and sitting, without limitation. (Id., p. 43). Lifting frequently was limited to ten pounds. (Id., p. 44). There were
some environmental limitations as to being too cold, too hot, dusty, with chemical odors, strong smells. (Id., p. 46).
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Judgment is to be entered accordingly.
IT IS SO ORDERED.
In San Juan, Puerto Rico, on this 12th day of February of 2013.
S/CAMILLE L. VELEZ-RIVE
CAMILLE L. VELEZ RIVE
UNITED STATES MAGISTRATE
JUDGE
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