
USCA1 Opinion

	




          September 23, 1992    [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ___________________          No. 92-1460                                                CARMEN TORRES,                                Plaintiff, Appellant,                                          v.                       SECRETARY OF HEALTH AND HUMAN SERVICES,                                 Defendant, Appellee.                                  __________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                    [Hon. Jaime Pieras, Jr., U.S. District Judge]                                             ___________________                                 ___________________                                        Before                              Torruella, Cyr and Stahl,                                   Circuit Judges.                                   ______________                                 ___________________               Salvador Medina De La Cruz on brief for appellant.               __________________________               Daniel F.  Lopez Romo, United States  Attorney, Jose Vazquez               _____________________                           ____________          Garcia, Assistant  United States Attorney, and  Nancy B. Salafia,          ______                                          ________________          Assistant  Regional Counsel, Dept. of Health & Human Services, on          brief for appellee.                                  __________________                                  __________________                 Per Curiam.   Claimant contends she  is disabled due  to                 __________            fibromyositis,  muscle spasm,  and thoracic  outlet syndrome.            The secretary disagreed, concluding that while claimant could            not  return  to her  former  secretarial work,  she  could do            certain sedentary  jobs identified by a  vocational expert in            response to a hypothetical  question and consequently was not            entitled to disability benefits.   Claimant contends that the            decision denying benefits was  faulty in three main respects.            First, the  ALJ  impermissibly interpreted  raw medical  data            without any  expert medical assistance  to assess  claimant's            residual  functional capacity (RFC).  Second, the RFC the ALJ            arrived  at  is not  supported  by  substantial evidence  and            failed   adequately   to   consider   claimant's   subjective            complaints.  Third, the ALJ  concluded claimant could not use            her  hands repeatedly  for fine  manipulation, but  failed to            include this limitation  in the hypothetical posed to the VE.            Consequently, the VE's testimony can not serve as substantial            evidence  to  support   the  denial  of   benefits,  claimant            maintains.    We  review  the  evidence   and  then  turn  to            claimant's arguments.                                          I.                 Claimant worked as a  secretary until October 1987 when,            she  claims, the pain in  her neck, arms,  and back prevented            her from continuing.                                         -2-                 The  first   medical  report  is  from   Dr.  Kindy,  an            orthopedic surgeon, who examined claimant in January 1988 and            reported  his  results  to  claimant's  employer's  insurance            carrier.   Claimant complained  of numbness in  both trapezii            and pain  in the arms,  neck, back  and legs.   The pain  had            persisted,  worsening, for over a  year.  Range  of motion of            the  cervical and  lumbar  back was  complete with  "moderate            discomfort,"  and  range of  motion  of  the extremities  was            complete with  "minimal  stiffness."   Dr. Kindy  recommended            evaluation  by a  neurologist  and said  claimant could  then            return to work.                   Claimant saw  a neurologist,  Dr. Ramirez Vincenty,  the            next  month.  In addition  to the complaints  reported to Dr.            Kindy, Dr. Ramirez noted  complaints of paresthesia (abnormal            sensation)  of  the  limbs  and arm  weariness  resulting  in            frequently dropping  things.   Dr.  Ramirez  reported  normal            gait,  no  difficulty  sitting  or standing,  and  no  motor,            sensory, or cerebellar abnormalities.  He noted hardening and            tenderness  of cervical  and  shoulder  girdle  muscles,  and            tenderness  to  pressure  at   thoracic  spine,  but  without            limitation  of  motion.    His impression  was  "chance[]  of            fibromyositis   contemplated,"  and  he  projected  a  "good"            prognosis.                 Beginning in April 1988, claimant began physical therapy            with  Dr. Garcia  and physiatrist  Dr. Martinez  Deliz.   The                                         -3-            first report  (4/12/88) noted  x-ray evidence of  neck muscle            spasm  and straighted cervical spine, but found full range of            motion, though  with tenderness.  The  diagnosis was cervical            thoracic  myositis.   The  next  notation (4/26/88)  reported            claimant's  complaints  of  foot  pain and  swelling  due  to            bilateral posterior  spurs.  In May,  claimant was "improving            slowly" with therapy.  "Moderate tenderness" continued in the            neck.   On May 24, 1988, Dr. Garcia executed a return to work            certificate  stating claimant  could resume  work on  May 30,            1988.   In August 1988,  Dr. Martinez conducted  an EMG study            and reported bilateral thoracic outlet syndrome.                   Dr. Garcia  referred claimant  to Dr. Acosta,  who began            treating  claimant  in  late  May  1988.    Dr.  Acosta noted            cervical and lumbar joint pain, morning stiffness in neck and            shoulders,  limitation of  flexion-extension in  lumbar zone,            hypoesthesia    (abnormally    decreased    sensitivity    to            stimulation)   of  both  hands   with  paresthesia  (abnormal            sensation  such  as  tingling), respiratory  difficulty  upon            minimal exertion, and  edema of  both ankles.   He  diagnosed            "rheumatism-rheumatic  fibromyalgia"  and  prescribed  muscle            relaxants (flexeril) and other medications.  On May 26, 1988,            about the time Dr. Garcia said claimant could return to work,            Dr. Acosta filled  out a similar return  to work certificate,            but projected the return date to  be July 15, 1988 in view of            severe back muscle spasm and fibromyalgia.                                         -4-                 In  May 1988,  claimant filled  out a  disability report            form.  Questioned  about her ability to do  household chores,            claimant said she did work at  home as she had three children            to care for  and no one  to help her,  but the effort  caused            great pain.  The only household  task she said she could  not            do was ironing.  She drove in emergencies at the time.                 Dr. Acosta saw claimant monthly.  His progress notes are            largely  illegible, but  notations of  hand numbness  in June            1988 and spasm in August and September 1988 are discernible.                 Dr. Carreras examined claimant in August 1988.  Gait was            normal.  Motor, sensory,  and cerebellar systems were intact.            A test for  thoracic outlet syndrome was  positive.  Moderate            tenderness  to  palpation  of  the  right  neck  muscles  and            trapezius muscle  was noted.   Dr. Carreras's  impression was            "postural  cervical  myositis   [muscle  inflammation]   with            secondary  bilateral  thoracic  outlet  syndrome"  and  "mild            chronic lumbar strain."                 In September 1988,  Dr. Acosta (the  treating physician)            filled out an "Attending Physician's Statement of Disability"            supplied by claimant's employer's insurance  carrier covering            the four month period  May 1988 through September 1988.   His            diagnosis   was   bilateral    thoracic   outlet    syndrome,            fibromyalgia, and back muscle spasm.   He stated claimant had            "very  much" improved  during that  period, and  he projected                                         -5-            that claimant could return  to part-time light work  (but not            her secretarial job) by the end of November 1988.                 After examining the reports  of Dr. Acosta, Dr. Martinez            Deliz, and  Dr. Carreras,  a  non-examining doctor  concluded            that  none   of   claimant's  conditions   severely   limited            claimant's  ability to  perform  basic work  duties and  that            consequently claimant was not disabled.                 In November, claimant completed another disability form.            She said that her  neck was stiff, arm movement  was limited,            and  she could  not keep  her arms in  a raised  position and            hence  could not  hang  her clothes.    Also, she  could  not            perform activities requiring  her to lower her  head, such as            reading or  washing dishes, because her  muscles would become            very stiff.   She said  her doctor  had advised her  to avoid            stress and strenuous exercise.                 Dr.  Acosta continued treating  claimant.   The progress            notes  are again  largely  illegible, but  mild shortness  of            breath was noted in October and muscle spasm in November.  In            December 1988 spasm was "minimal."                 After  reviewing   the   earlier  reports   plus   these            additional  progress notes  from  Dr. Acosta,  a second  non-            examining doctor  concluded that claimant had  no severe loss            of movement, sensation, or reflexes and was not disabled.                                         -6-                 Dr. Justiniano conducted an  arterial study of the upper            extremities in  November 1988.  His  impression was bilateral            mild obstructive disease of ulnar and radial arteries.                 The last medical  report is from  Dr. Bonilla Torres,  a            neurologist,  who examined  claimant in  May 1989.   Claimant            complained  of tension in the nape of the neck, tiredness and            numbness of both  arms, hand tremor,  loss of hand  strength,            loss of  finger dexterity,  chest pain, and  occasional dizzy            spells.   Dr. Bonilla noted  diminution of grasp  both hands,            pain at pressure  over both  trapezii, pain  in muscles  upon            counter movements of the  neck, and pain and numbness  of the            arms upon  hyperabduction of  the arms.   His  impression was            bilateral thoracic outlet  syndrome and myofascial  syndrome,            both trapezii.                 The  ALJ  accepted the  doctors'  diagnoses  of thoracic            outlet  syndrome  and  myofascial  syndrome.    He  concluded            claimant  "should avoid the  repeated use  of hands  for fine            movements" and  raising arms  above shoulder level,  but that            she retained  the residual functional capacity  (RFC) for the            segment of  unskilled sedentary work which  would not require            those  arm and  hand movements  and would  allow claimant  to            alternate  positions.    Based  on  the  vocational  expert's            testimony, the ALJ concluded  claimant could perform the jobs            of table worker, label picker, and tester.                                                    II.                                         -7-                                          A.                 No doctor (either examining or  non-examining) completed            an RFC form checking off how much weight claimant could lift,            how many hours  she could sit  or stand, or her  capacity for            other physical  functions such as reaching, grasping, bending            and stooping.  Consequently, citing Berrios v. Secretary, 796                                                _______    _________            F.2d 574 (1st  Cir. 1986) (Appeals  Council, composed of  lay            persons,  is  not  competent  to  interpret  and  apply  raw,            technical  medical  data),  claimant  argues  that   the  ALJ            impermissibly interpreted  raw medical data to  arrive at the            conclusion  that  claimant   could  do  sedentary   work  not            requiring  repeated  fine   manipulation  or  reaching  above            shoulder level.                   The  ALJ did  not  impermissibly  interpret raw  medical            data.  While it is true that no doctor completed an RFC form,            various doctors  did  indicate functional  capacity in  other            forms.    For example,  in May  1988,  Dr. Garcia  executed a            return to work certificate  and did not place any  limitation            on  the  type  of work.    The  same month,  Dr.  Acosta, the            treating physician,  projected claimant could return  to work            in  July 1988,  a  date less  than  a year  after  claimant's            alleged onset date of  disability.  See 20 C.F.R.    404.1505                                                ___            (to be  eligible for benefits, the  disabling impairment must            last, or be expected to  last, for a continuous period  of at            least 12  months).   Claimant, too,  described a fairly  wide                                         -8-            range of  activity she performed  as of May 1988.   She drove            (in emergencies), cared for three children, and did household            chores except ironing.  From this evidence it was permissible            to  conclude, as the ALJ did, that claimant could handle some            range of sedentary work.                 Even if claimant's conditions flared up or worsened some            time  after  May  1988,  nevertheless  there  is  substantial            evidence  that  claimant could  perform  sedentary  work once            again  by November 1988.   In his September  1988 report, Dr.            Acosta stated claimant had  very much improved.   Although as            of  that date  limitations  in head  flexion, arm  movements,            bending, and  prolonged sitting prevented her from performing            her secretarial  job full time, Dr.  Acosta believed claimant            could begin part  time work at a different, light  job in two            months.   He stated that claimant should work "at first" part            time, a phrasing which suggests he did not think claimant was            permanently limited to part time work.  Consequently, this is            not a case where an ALJ  had to interpret raw medical data to            determine   claimant's  RFC.    Rather,  claimant's  treating            physician indicated in general terms what type of work (light            duties) claimant could do despite her limitations.                 Claimant argues that the Secretary  should have obtained            a detailed assessment from a doctor specifically addressed to            claimant's manual  abilities and the  effect fatigue produced            by a  full time  job  would have.   In  the  context of  this                                         -9-            record,  we disagree.   Dr.  Acosta, the  treating physician,            filled  out a form  labelled "Attending Physician's Statement            of  Disability"  to  be  submitted  to  claimant's employer's            disability insurer.   It was  clear that this  form would  be            used  in  assessing claimant's  capacity  for  work, yet  Dr.            Acosta, while  diagnosing bilateral thoracic  outlet syndrome            and noting limitations  as of September 1988 in hand flexion,            arm movements, bending, and prolonged sitting which prevented            claimant from returning to  her secretarial position, did not            focus particularly on manual   limitations.  We do  not think            the  Secretary  was  required  to  recruit  a  more  detailed            analysis than claimant's own treating physician had provided.                                          B.                 Claimant contends  the ALJ  did not  adequately consider            and assess  her complaints of  pain and  numbness and  should            have found a complete absence of bimanual dexterity rendering            her  unable  to work.   We  disagree.   The  ALJ specifically            followed Avery v. Secretary of Health and Human Services, 797                     _____    ______________________________________            F.2d 19  (1st Cir. 1986), in  assessing claimant's subjective            complaints.    He  was  not  required  to  accept  claimant's            assertions, particularly in view  of the treating physician's            opinion that claimant could work and the treating physician's            failure to  focus  on severe  manual  limitations  precluding            claimant from returning to work.                                         C.                                           -10-                 The  ALJ did  credit claimant's  complaints in  part and            stated  that claimant "should avoid the repeated use of hands            for fine  movements."  He  concluded that claimant  could not            return to her past  secretarial job, but could do  other jobs            described by the  ALJ.  Claimant argues  that she may  not be            able  to perform the jobs  the VE identified  because the ALJ            did  not include the limitation  in repeated fine movement in            his  question to the VE and hence  the jobs the VE enumerated            may require fine manipulation abilities.                   The ALJ posed the following question to the VE:                           Q     If  we   determined  that  the                      claimant had or has the residual capacity                      to do sedentary jobs that would allow her                      to change  positions  and if  she  didn't                      have  to  use  her hands  or  raise  them                      higher  than  shoulders height,  and that                      she weren't near  unprotected heights  or                      dangerous operating machinery, I  ask you                      if she  could do the  job she did  in the                      past, and if she couldn't if there is any                      jobs [sic] that she could perform.            The  VE responded that  in the  shoe industry  claimant could            either  classify shoe  parts or  verify that labels  had been            properly cut and  glued.   In the  electronics industry,  she            could  be a tester,  which would entail  testing currents and            electrical  parts  with capacitators.    These  jobs, the  VE            summed up,  were sedentary,  allowed for change  of position,            did not  require reaching  overhead, and  did not  expose the            worker to dangerous heights.  In other words, while the ALJ's            question had  included the broad condition  that claimant not                                         -11-            have  to "use" her hands,  the VE's response  did not include            such an absolute limitation,  but rather described jobs which            apparently involved some use of the hands.                 The ALJ's second question  to the ALJ added limitations.            He asked the  VE whether claimant could handle any job if her            subjective  complaints  of  pain   and  numbness  were  fully            credited  and if claimant "had  a limitation from moderate to            severe to utilize her  hands in a sustained manner,  for even            sedentary tasks."  The  VE responded that there were  no jobs            claimant could perform.                 The fair  thrust  of  the  VE's  testimony  is  that  if            claimant has  a moderate  to severe  limitation in  using her            hands  in a sustained manner,  she can not  perform the three            jobs he  listed, but if the  restriction in use of  her upper            extremities is  limited to overhead  reaching, she can.   The            problem here is  that claimant's functioning, as found by the            ALJ,  fell  somewhere  in  between that  posited  in  the two            hypotheticals -- claimant could  generally use her hands, but            should not repeatedly  perform fine movements  -- but the  VE            was not asked, and  did not directly say, what  jobs claimant            could handle if she were so restricted.                          We have indicated  that the hypothetical  posed to a  VE            must  accurately reflect the  claimant's limitation  in order            for  the VE's  response  to constitute  substantial  evidence            sustaining the  Secretary's burden  at step five  to identify                                         -12-            alternate work the claimant can perform.  Arocho v. Secretary                                                      ______    _________            of Health and Human  Services, 670 F.2d 374 (1st  Cir. 1982).            _____________________________            See  also Cooper v. Sullivan,  880 F.2d 1152,  1158 n.13 (9th            ___  ____ ______    ________            Cir.  1989)  ("A   vocational  expert's  testimony   can  not            constitute  substantial   evidence   to  support   an   ALJ's            determination as to a  claimant's disability status unless it            accurately reflects all of  the claimant's limitations ...").            Hence, the hypothetical  was materially deficient in  failing            to include the limitation on fine manipulation.  Particularly            in view  of claimant's  repeated complaints of  hand numbness            and weakness,  as well  as the diagnosis  of thoracic  outlet            syndrome -- a condition characterized by pain in the arms and            weakness  and wasting  of  the  small  muscles of  the  hand,            Sloane-Dorland Annotated Medical Legal Dictionary  697 (1987)            -- it was important for the VE to focus on  claimant's manual            abilities  in  identifying  what  jobs  the   claimant  could            perform.    Not  being  vocational experts,  we  do  not know            whether the identified jobs require repeated fine movements.                  The Secretary  argues, and the district court concluded,            that  claimant's failure  to object  to  the phrasing  of the            hypothetical question or to  elicit more information from the            VE on cross-examination forecloses claimant from now claiming            error.   In support, the  district court relied  on Torres v.                                                                ______            Secretary of  Health and Human  Services, 870  F.2d 742  (1st            ________________________________________            Cir. 1989).  In Torres, claimant based disability on a visual                            ______                                         -13-            complaint.   The  VE, who  had reviewed  the file,  was asked            whether claimant could perform his past work (as a waiter) or            any  other work in the national economy.  On appeal, claimant            argued that the  question was inadequate  because it did  not            specifically  describe claimant's limitations.   While noting            that  claimant's  argument  might  be valid  in  general,  we            concluded  that  it  was   unavailing  in  the  circumstances            presented by that case where the record  was limited, medical            evidence  was  addressed   substantially  to  one  impairment            (vision),   all  doctors  had  reported  successful  cataract            surgery and good prognosis, and it was not likely that the VE            would  have  failed to  focus  on  the visual  impairment  in            answering the  question.   In those circumstances,  we stated            that  if  claimant  felt the  hypothetical  was  inadequately            phrased, he should have posed his own.                   The   circumstances  in  the   present  case   are  very            different.    Multiple  impairments  with   multiple  alleged            manifestations  were claimed.   The  ALJ found  a significant            limitation on  fine manipulative  ability, but did  not focus            the ALJ's attention upon it.   We think it is unrealistic  to            require the  claimant to  anticipate what complaints  the ALJ            will credit and  what limitations  the ALJ will  find and  to            require the claimant to  insure that the hyothetical reflects            those limitations.                                         -14-                 As  the  hypothetical  did  not  include  a  significant            limitation, we conclude that  a remand is required so  that a            VE,   properly  informed   of  claimant's   limitations,  can            determine whether there are jobs she can perform.                 The judgment  of the district  court is vacated  and the            case  is remanded with directions to  remand to the Secretary            for further proceedings consistent with the opinion.                                                       -15-
