
USCA1 Opinion

	




          September 25, 1995                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                                            ____________________        No. 95-1045                                      FELIX ROSSI,                                Plaintiff, Appellant,                                          v.              DONNA E. SHALALA, SECRETARY OF HEALTH AND HUMAN SERVICES,                                 Defendant, Appellee.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                   [Hon. Edward F. Harrington, U.S. District Judge]                                               ___________________                                 ____________________                                        Before                                Torruella, Chief Judge,                                           ___________                          Selya and Boudin, Circuit Judges.                                            ______________                                 ____________________            Barbara E. Oro on brief for appellant.            ______________            Donald K.  Stern, United  States Attorney,  Charlene A.  Stawicki,            ________________                            _____________________        Special  Assistant  United  States  Attorney,  and  Jessie  M.  Klyce,                                                            _________________        Assistant Regional  Counsel, Department of Health  and Human Services,        on brief for appellee.                                 ____________________                                 ____________________                      Per  Curiam.    Claimant  Felix Rossi  appeals  the                      ___________            Secretary's decision that he is not disabled under either the            Social  Security Disability  Insurance  program ("SSDI"),  42            U.S.C.    401  et seq., or  the Supplemental Security  Income                           __ ___            program  ("SSI"), 42  U.S.C.   1381  et seq.1   The  district                                                 __ ___            court  granted judgment in favor of the Secretary.  We affirm            the district court's decision.              Background            __________                 Claimant,  formerly   a  laborer  in   the  construction            industry,  filed for disability benefits  on January 3, 1992,            with  a protected  filing  date of  December  30, 1991.    He            alleged disability  as of June  14, 1990, the date  of a slip            and fall accident which  caused him to suffer a  back injury.            Claimant met  the insured status requirements  through March,            1992.   The Administrative Law  Judge ("ALJ") held  a hearing            and  heard testimony  from claimant  and a  vocational expert            ("VE").  Claimant was represented by an attorney.                   After the hearing, the  ALJ found that claimant was  not            working;  that  he suffered  a  severe  impairment; that  his            symptoms did not meet or equal any listed impairment; that he            could not return to  his past relevant work; and  that he was            not  disabled  since he  could perform  other  work.   See 20                                                                   ___            C.F.R.     404.1520.   The  Appeals  Council refused  review.                                            ____________________            1.  For  simplicity, we  refer only  to the  SSDI regulations            since they are  identical in all relevant particulars  to the            SSI regulations.                                            -3-            Claimant appealed  to the district court,  which affirmed the            Secretary.  This appeal followed.            Discussion            __________                 We  address each  of  claimant's arguments  in turn  and            incorporate  facts  and  medical  evidence as  needed.    Our            standard  of review is limited.   The Secretary's findings of            fact  are conclusive  if  they are  supported by  substantial            evidence.  "`We must uphold the Secretary's findings ... if a            reasonable mind,  reviewing the evidence  in the record  as a            whole,   could  accept   it  as   adequate  to   support  his            conclusion.'"  Irlanda Ortiz v. Secretary of Health and Human                           _____________    _____________________________            Services,  955  F.2d  765,   769  (1st  Cir.  1991),  quoting            ________            Rodriguez v. Secretary of Health and Human Services, 647 F.2d            _________    ______________________________________            218, 222 (1st Cir. 1981).                   1.    Claimant  argues  first  that  the  ALJ  erred  in            concluding  that he did not  suffer from a listed impairment.            See   20   C.F.R.  Part   404,   Subpart   P.,  Appendix   I.            ___            Specifically,  claimant alleges  that his condition  meets or            equals in severity Listing 1.05(C).2                                             ____________________            2.  Disorders of the spine:              ...              C.  Other vertebrogenic  disorders (e.g., herniated nucleus            pulposus,  spinal stenosis) with the following persisting for            at least  3 months despite prescribed therapy and expected to            last 12 months.  With both 1 and 2:              1.    Pain, muscle  spasm,  and  significant limitation  of            motion in the spine; and              2.  Appropriate radicular distribution of significant motor            loss with muscle weakness and sensory and reflex loss.                                          -4-                 We agree with the Secretary that the medical evidence of            record does not indicate that claimant's  condition satisfies            the  requirements  set out  in the  Listing.   We  review the            evidence  of reflex loss.  In his  exam of July 30, 1990, Dr.            Dorsey found the  left knee and both  ankle jerks diminished,            but the right  knee jerk active.   In  his September 4,  1990            exam,  Dr. Baradaran  found  normal knee  jerks and  slightly            diminished ankle  jerks; he  specifically found "no  motor or            sensory deficit in the right or left lower extremity."  Other            record evidence reflects diminished patella and absent  ankle            jerks in December, 1991, and diminished left patella reflexes            in April  and May, 1992.   In July, 1992, Dr.  Beal found "no            radicular-type sensory  deficits," and "no focal  deficits in            the  reflexes,   strength  or  sensation."     This  evidence            indicates absent  ankle reflex  only in December,  1991, with            periodic  and occasional  reflex  loss or  diminution in  the            ankle  and left  knee.   Only  in  December, 1991,  does  the            evidence indicate  that there was any diminution in the right            knee reflex.3  In  light of the criteria  set out in  Listing                                            ____________________            3.  We  are puzzled by a  reference in Dr.  Grady's report to            "electrodiagnostic   studies"  done  September  4,  in  which            "tibial  H  reflexes were  absent in  both  legs."   The only            electromyographic  report of  record  is  dated September  4,            1985.  R. 164.  It discusses an "absen[t] ... H reflex on the            ____            right side,  [and a] clinically absent ankle jerk."  Claimant            visited  Dr.   Baradaran  on   September  4,  1990,   and  he                                                          ____            recommended  an  EMG; however,  there are  no results  in the            record.  Assuming  arguendo that  there was an  EMG study  of                               ________            September 4,  1990, indicating  that "tibial H  reflexes were            absent in both  legs," this would  not change our  conclusion                                         -5-            1.05(C), we  conclude that there was  substantial evidence in            support  of the  Secretary's decision  that claimant  did not            satisfy the Listing requirements.                   2.  Claimant argues  next that the ALJ erred  in failing            to   consider  his   impairments  in   combination.     Nurse            Demerjian's Progress  Notes, from the South  Boston Community            Health Center,  reflect that  on December 13,  1991, claimant            was  deemed  to  have high  blood  pressure.    A later  note            (December 27, 1991) indicates that claimant's  blood pressure            was  elevated, and  suggests  that he  lose weight,  decrease            caffeine   and  stressors,   and  stop  smoking.     Claimant            apparently  began  taking some  type  of  medication for  his            pressure in May, 1992, and his blood pressure was  controlled            by medication by June 26, 1992.  Claimant argues as well that            he  suffers   from  chronic  obstructive   pulmonary  disease            ("COPD")  and  that  this,  too,  impairs  him  vocationally.            However, there  is no evidence of  any vocational limitations            as a result of the COPD.  Claimant has the burden of proof on            this issue, see generally 20 C.F.R.                         ___ _________              404.1512, and has failed to carry it.                 3.    Claimant's  third argument  challenges  the  ALJ's            conclusion that he is capable of performing the full range of                                            ____________________            that  there   is  substantial   evidence  in  favor   of  the            Secretary's conclusion that the Listing 1.05(C) criteria were            not satisfied.                                         -6-            light work.4   We note  first that  although the  ALJ did  so            conclude  in  his findings,  he  did  not  treat claimant  as            capable of performing the full range of light work.  Instead,            he accepted for the most part the limitations set out  in the            RFC  prepared by  Nurse  Demerjian and  he  accepted as  well            claimant's  professed  need  to  change  position  regularly.            These qualifications  were part  of the hypotheticals  put to            the VE, and discussed in detail infra.                                              _____                 Nonetheless,  claimant  insists  that  in  reaching  his            "light  work" conclusion,  the ALJ  mistakenly relied  on two            medical  reports  which  gave  no opinion  as  to  claimant's            ability to perform work-related  activities, and that the ALJ            misapplied  the limitations  set out in  the report  of Nurse            Demerjian.                 Nurse Demerjian submitted an RFC, dated June 1, 1993, in            which she indicated  that claimant could sit for three hours;            stand for  two hours; and walk  for four hours as  long as he            could change position every two hours.  She indicated that he            could frequently lift up to 5  pounds, occasionally lift 5-10                                            ____________________            4.  20 C.F.R.   404.1567(b) provides:                Light work involves lifting  no more than 20 pounds  at a            time with frequent lifting or carrying of objects weighing up            to 10  pounds.   Even though  the weight lifted  may be  very            little, a job  is in  this category when  it requires a  good            deal of walking or standing, or when it involves sitting most            of the  time  with some  pushing and  pulling of  arm or  leg            controls.  To be  considered capable of performing a  full or            wide range  of light work,  you must have  the ability to  do            substantially all of these activities.                                           -7-            pounds, and never lift any greater weight.  While she thought            that claimant could bend  occasionally, she indicated that he            could  never  squat, crawl,  climb  or  reach above  shoulder            level, and  that he could use only  his right foot to operate            foot controls.   Nurse  Demerjian revised her  assessment one            week later,  indicating that  because of shortness  of breath            and leg problems,  claimant could walk for only 20-30 minutes            at a time, up to a total of one hour per day.                 The  record  contains  other  RFCs.   The  first,  dated            February 27, 1992, indicates that claimant could occasionally            lift  20 pounds; frequently lift 10 pounds; stand and/or walk            about 6 hours;  sit up  to 6 hours;  and occasionally  climb;            balance; stoop;  kneel; crouch and crawl.   The second, dated            July 23,  1992, reflects the same  exertional limitations but            differs in its assessment of claimant's postural limitations,            limiting his stooping capacity to "occasionally," but finding            that he  could frequently  climb; balance; kneel;  crouch and            crawl.                  In   determining   a   claimant's  residual   functional            capacity, the  ALJ  is not  limited  to reliance  on  reports            submitted by claimant's caregivers.   The ALJ may also, under            certain  circumstances,  rely on  reports  submitted  by non-            testifying, non-examining physicians.  See  generally Berrios                                                   ___  _________ _______            Lopez  v. Secretary of Health  and Human Services,  951 F. 2d            _____     _______________________________________            427,  429-32 (1st Cir. 1991).  This is especially true where,                                         -8-            as here,  these reports  include medical findings  to support            the  conclusions; the reports were prepared after most of the            relevant medical data was generated;  and the reports tend to            reinforce one another.  Berrios Lopez, 951 F.2d at 431.                                      _____________                 Thus,  we conclude that the ALJ could have relied on the            RFCs of the non-treating physicians, and we find further that            these would have supported  a light work exertional capacity.            We note again that in any event the ALJ did not hold claimant            to this standard, but assessed his work capabilities in light            of his particular non-exertional impairments.                   4.  Claimant's fourth argument is that the hypotheticals            given  to the VE did  not accurately reflect  the evidence in            the record and so were improper under the standard set out in            Arocho v.  Secretary of Health  and Human Services,  670 F.2d            ______     _______________________________________            374  (1st Cir.  1982).    We  observed in  Arocho that  for a                                                       ______            vocational expert's answer to  a hypothetical to be relevant,            "the  inputs  into  that  hypothetical  must  correspond   to            conclusions  that  are  supported  by the  outputs  from  the            medical  authorities."    Id. at  375.    "To guarantee  that                                      ___            correspondence,  the  Administrative  Law  Judge   must  both            clarify the outputs (deciding what testimony will be credited            and  resolving  ambiguities),  and  accurately  transmit  the            clarified output to  the expert in the  form of assumptions."            Id.            __                                         -9-                 Claimant described his daily activities  at the hearing.            He  indicated that he can walk twenty minutes before he needs            to stop  to catch  his breath,  and that if  he sits  for "an            average of three hours, that's a lot."  He does  not make his            bed,  but he  does dust,  and he  prepares frozen  dinners or            hamburgers  for meals.  He  shops for groceries  once a month            and he has them delivered.                   The ALJ questioned  the vocational  expert about  "light            jobs  with an  option  to change  position."   After  the  VE            identified various jobs, such as security guard/gate  keeper,            self service gas station attendant and cashier, the ALJ added            claimant's  restrictions  regarding   sitting,  walking   and            standing,  and the need to  alternate position.   He added as            well  the   exertional   requirements  described   by   Nurse            Demerjian, which were lower than  the exertional requirements            described in the  other RFPs in the record.  The VE indicated            that  the jobs he had identified did not involve any lifting,            and did not  require the operation of any  machinery.   These            jobs  assumed  a  sixth grade  level  of  education, and  the            ability to read  a newspaper.   If claimant  could not  reach            above the shoulder, that would eliminate the self service gas            station attendant.                      We perceive no problem with the data given by the ALJ to            the VE.   The record  evidence supports the  ALJ's conclusion            that the claimant can perform light  work.  The fact that the                                         -10-            strength limitations the ALJ gave to  the VE approximated the            sedentary strength requirements does not change this.  First,            as indicated above,  the ALJ could reasonably  have relied on            the other  RFCs of record which found  claimant somewhat more            able  than did  the RFC  completed by  Nurse Demerjian.   See                                                                      ___            generally Berrios Lopez, 951 F.2d at 429-32.  Next, we see no            _________ _____________            reason why  a VE  cannot testify  that particular light  jobs            involve little or no lifting.  Cf. Moncada v. Chater, 60 F.3d                                           __  _______    ______            521, 524 (9th Cir. 1995)(fact that "some jobs listed by VE as            sedentary  are  also listed  as "light"  work  in the  DOT is            irrelevant; VE `can testify whether particular applicants for            disability benefits would be able to perform subcategories of            jobs within the DOT'")(citation omitted).                 The ALJ apparently did not credit claimant's allegations            of  disabling  pain  as  imposing any  additional  exertional            limitations  (see infra) and so  was not obligated to present                          ___ _____            these to the VE.  The ALJ otherwise tailored his hypothetical            to  reflect claimant's  particular  needs.5   We perceive  no            error.    5.   Claimant's  final  challenge is  to the  ALJ's            failure to credit his  complaints of unremitting and constant                                            ____________________            5.  Insofar as claimant may  be arguing that the ALJ  in fact            applied the grid to  reach his conclusion against disability,            we do not agree.  The ALJ cited to the grid in his  findings,            but  observed that  the  conclusion of  "not disabled"  which            would have been directed by the  relevant grid rule coincided            with vocational expert testimony.  As indicated above, we are            satisfied   that  the  ALJ   adequately  conveyed  claimant's            limitations to the VE.                                             -11-            pain as  imposing a non-exertional impairment  in addition to            the exertional  and  positional impairments  set out  above.6            It  appears to us that the ALJ properly followed the approach            endorsed in Avery v. Secretary of Health and Human Services,                         _____    ______________________________________            797 F. 2d 19 (1st Cir. 1986).                   We have construed Avery to mean that "complaints of pain                                   _____            need not be precisely corroborated by objective findings, but            they  must be consistent  with medical findings."   Dupuis v.                                                                ______            Secretary  of Health  and Human  Services, 869 F.2d  622, 623            _________________________________________            (1st Cir. 1989).  Assuming without  more that claimant's back            impairment  could reasonably cause pain, the ALJ investigated            claimant's activities  and medications,  and observed him  at            the  hearing.   The ALJ concluded,  after considering  all of            this, that  claimant's allegations did not  impose additional            restrictions other than limiting him to light work.  Id.   We                                                                 __            have said  repeatedly that we pay  "`particular attention' to            an ALJ's evaluation of  complaints of pain in light  of their            `subjective nature.'"  Ortiz v. Secretary of Health and Human                                   _____    _____________________________            Services,  890  F.2d  520,  523 (1st  Cir.  1989)  (citations            ________                                            ____________________            6.  The ALJ's credibility finding,  to the effect that "[t]he            claimant  is accepted as a credible witness to the extent set            forth  above (Social  Security Ruling  88-13)" means  what it            says.   Above,  the  ALJ had,  in  accordance with  Avery  v.                                                                _____            Secretary of Health and Human Services, 797 F.2d 19 (1st Cir.            ______________________________________            1986), reviewed claimant's activities, his description of his            pain  and his  medication,  and had  concluded that  claimant            could perform light work.  We reject the suggestion that this            specific  finding in  favor of  claimant's credibility  means            that the  ALJ found  credible claimant's assertions  that his            pain further limited him from performing work.                                               -12-            omitted).  We find  no error.  There is  substantial evidence            in the record  to support the Secretary's decision  which is,            accordingly, affirmed.                         ________                                         -13-
