Flores Cruz v. Secretary of Health, Education & Welfare

409 F. Supp. 1243, 1975 U.S. Dist. LEXIS 13458
District Court, D. Puerto Rico·Decided March 10, 1975·No. Civ. A. No. 563-73·Published

Opinion

OPINION

JULIAN,* Senior District Judge.

This action is brought pursuant to section 205(g) of the Social Security Act, 42 U.S.C.A. § 405(g), to obtain judicial review of a final decision of the Secretary of Health, Education and Welfare.

The Secretary found that plaintiff met the alternate insured status requirement of Title II of the Social Security Act, 42 U.S.C.A. §§ 416(i)(3), 423(c), through June 30, 1968. He also found her “significant impairments on June 30, 1968 were her mental condition and associated somatic complaints; her renal condition and associated complications of mercury intoxication; and an allergic rhinitis condition.” (Tr. 24r-25.) The Secretary further found that the plaintiff’s condition precluded her return to her former type of work.

Once plaintiff established that her medically determinable impairment would not permit her to return to her former type of work, the burden was on the government to offer evidence that there is generally available employment for which she is fit and qualified. Torres v. Celebrezze, 349 F.2d 342 (1 Cir. 1965). If the government shows that there are specific jobs in the national economy which the claimant is capable of doing, the claimant has the overall burden of showing that her disability precludes substantial gainful work. Hernandez v. Weinberger, 493 F.2d 1120, 1122-1123 (1 Cir. 1974).

The findings of the Secretary as to any fact, if supported by substantial evidence, are conclusive. 42 U.S.C.A. § 405(g).

The Secretary found as fact that “claimant retains sufficient residual physical and mental capacity and transferable motor skills to perform substantial gainful activity of a light nature. . . . Specific types of employment which are suitable for claimant and which exist in significant numbers in Puerto Rico are knitting machine operator, seamer, sewer, checker, packer, sewing machine operator, topside inspector, and lens polisher.”

(Tr. 25.) The plaintiff does not assert that the specified types of employment do not exist in significant numbers in Puerto Rico. The plaintiff argues, however, that the Secretary’s finding is not supported by substantial evidence for two reasons: first, there was no evidence concerning the effect of plaintiff’s mental impairments on her employment capabilities; and, second, the Secretary erred in failing to determine whether plaintiff’s impairments caused such a diminution of her ability to meet normal[1245] ly required quality and production standards on a sustained basis as to make her disabled.

The transcript of the record is replete with evidence concerning plaintiff’s physical and mental health. A vocational expert witness testified. The expert had been present during plaintiff’s testimony and was given all available information concerning the plaintiff’s age, education and work experience. In formulating her opinion the expert considered all available medical reports, including an extensive psychiatric evaluation of plaintiff which was prepared by a physician.

The plaintiff’s counsel, who also represented plaintiff at the administrative hearing, was given the opportunity to cross-examine the expert. He stated that he had no questions. (Tr. 73.) The expert subsequently considered additional evidence submitted after the hearing (Exhs. 31-40, Tr. 152-166), including a psychiatric report (Exh. 32, Tr. 153 — 154)/ and modified her opinion because of that evidence (Tr. 166). The expert’s modified testimony and the evidence which she considered in forming her opinion were submitted to plaintiff’s counsel, who made no objection and stated that he had no comments or additions to make and that he submitted the case for decision on the record.1 The transcript of the record thus reveals substantial evidence concerning the effect of plaintiff’s mental impairments on her employment capabilities. This evidence supports the Secretary’s findings. Plaintiff’s first contention is thus untenable.

The plaintiff relies on Caraballo v. Secretary of Health, Education and Welfare, 346 F.Supp. 93 (D.P.R.1972) and Lebron v. Secretary of Health, Education and Welfare, 370 F.Supp. 403 (D.P.R.1974), as the basis of her second contention. See also Rodriguez v. Secretary of Health, Education and Welfare, 355 F.Supp. 304 (D.P.R.1973); Miranda v. Secretary of Health, Education and Welfare, 382 F.Supp. 777 (D.P.R.1974).

Caraballo involved a vocational expert witness who testified that jobs were available which the claimant could perform but that the claimant would be a less than desirable candidate for the jobs. There was no evidence to show whether or not the claimant’s undesirability as a candidate for jobs flowed from diminished productivity due to his impairment. In that context the court ruled:

“If there is no evidence in the record which would demonstrate that the degree of efficiency of a claimant who is disabled is not markedly inferior from one not so disabled with respect to the particular jobs which a Vocational Expert testifies that a claimant may perform, then the conclusion that there exists work in the national economy which claimant could perform is not supported by substantial evidence. This means that a person is disabled under the law if he will not be employed because of a substantial diminishment of his productivity due to a medically determinable disability, even if he can theoretically perform the jobs.”

346 F.Supp. at 95-96. The case was remanded to the Secretary.

In Lebrón the vocational witness “quibbled uncertainly,” 370 F.Supp. at 406, when the claimant’s counsel inquired concerning the effect the claimant’s impairment would have on his performance in jobs, which, according to the [1246] witness, existed in the region. The court cited Caraballo and ruled that the expert’s testimony was not sufficient to support a finding that the claimant was capable of performing the jobs.

In Rodriguez a 56-year-old claimant suffered from several impairments, including amputation of an arm. The vocational expert witness testified that the claimant could perform several available jobs. The expert, however, qualified his opinion by stating, apparently without further elaboration: “This witness understands that a person with both arms is a better candidate for employment and is in a better personnel field than claimant.” 355 F.Supp. at 307. The expert’s testimony was further qualified by indications that it would be impossible to retrain the claimant because of his age. Id. at 309. The court ruled that the expert’s testimony failed to meet the requirements established in Caraballo and remanded for expert testimony which complied with the decision in Caraballo.

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Flores Cruz v. Secretary of Health, Education & Welfare, 409 F. Supp. 1243, 1975 U.S. Dist. LEXIS 13458 (prd 1975).

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372 F. Supp. 463 (D. Puerto Rico, 1973)
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370 F. Supp. 403 (D. Puerto Rico, 1974)
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