
USCA1 Opinion

	




                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 94-1515                                ANTONIO RIVERA GARAY,                                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. Hector M. Laffitte, U.S. District Judge]                                              ___________________                                 ____________________                                        Before                        Cyr, Boudin and Stahl, Circuit Judges.                                               ______________                                 ____________________            Juan  R.  Requena  Davila,  Raymond Rivera  Esteves  and  Juan  A.            _________________________   _______________________       ________        Hernandez Rivera on brief for appellant.        ________________            Guillermo Gil,  United  States  Attorney,  Maria  Hortensia  Rios,            _____________                              ______________________        Assistant United States  Attorney, and Robert  M. Peckrill,  Assistant                                               ___________________        Regional  Counsel, Department of Health & Human Services, on brief for        appellee.                                 ____________________                                 ____________________                      Per Curiam.  Claimant Antonio Rivera Garay filed an                      __________            application  for  social  security  disability   benefits  on            January  9, 1990, alleging disability  due to a  back and leg            condition, associated pain, and an anxiety disorder.  After a            hearing,  the Administrative  Law Judge  (ALJ)  conceded that            claimant  had   a  severe  impairment  or   impairments,  but            concluded that claimant  was not  disabled at step  4 of  the            sequential evaluation process,  20 C.F.R.    404.1520(e),  on            the ground  that claimant's impairments did  not preclude his            return to his former job as a lottery ticket vendor.  The ALJ            based  this determination  on the  testimony of  a vocational            expert  at the  hearing  that an  individual with  claimant's            impairments, as described by the ALJ, could perform that job.                      After the Appeals Council denied claimant's request            for review of  the ALJ's decision,  claimant appealed to  the            district  court, which affirmed.   On  appeal to  this court,            claimant  argues  that   the  Secretary's  decision   is  not            supported by substantial evidence.  We agree, and we direct a            remand  to  the  Secretary   for  the  taking  of  additional            vocational evidence.                                  Background                                  __________                                         -2-                      We   review  the   Secretary's  decision   under  a            "substantial evidence" standard; we will affirm that decision            if it is supported by "such relevant evidence as a reasonable            mind  might  accept as  adequate  to  support a  conclusion."            Richardson v. Perales, 402  U.S. 389, 401 (1971).   The ALJ's            __________    _______            determination that  claimant could perform his  past work was            based  on the  vocational  expert's  answers to  hypothetical            questions  posed by the ALJ.  We must, therefore, examine the            soundness of  those questions' premises.  If the premises are            supported  by substantial  evidence in  the record,  then the            vocational expert's responses constitute substantial evidence            to support the ALJ's vocational determination that claimant's            impairment  do not preclude his former work.  If the premises            lack record  support, then the vocational  expert's responses            are  not substantial evidence.  "[I]n  order for a vocational            expert's answer  to a  hypothetical question to  be relevant,            the  inputs   into  that  hypothetical   must  correspond  to            conclusions  that  are  supported  by the  outputs  from  the            medical  authorities."   Arocho  v. Secretary  of Health  and                                     ______     _________________________            Human Services, 670 F.2d 374, 375 (1st Cir. 1982).            ______________                      The ALJ described claimant's  exertional impairment            to the vocational expert as follows:                      [C]onsidering  the claimant's  age, education                    and working experience;  considering that  he                    can alternate positions, can perform fine and                    gross manipulation,  he can push and  pull up                    to  25  pounds,  frequently.    That  he  can                    occasionally lift more than 25  pounds.  That                                         -3-                    he  would  be  limited  in the  use  of  foot                    controls, but that he  could bend, squat,  he                    could  pull  and  push  the  weight mentioned                    before.  If this  is the situation, are there                    jobs in  a significant number  that a  person                    like the  one we have described  before could                    do?              The vocational expert responded that claimant could return to            his former job as a lottery ticket vendor.                      The  ALJ  then  added a  hypothetical  directed  to            claimant's  mental impairment,  asking,  "And if  we added  a            mental  condition  where  the  memory  seems  preserved,  the            recent, remote and immediate memory is present, there is good            attention,  concentration,  mental  capacity, good  judgment,            good introversion.   Would your  opinion vary at  all?"   The            vocational expert responded that it would not.                        Finally, the ALJ asked, "And if we gave credibility            to the claimant's complaints as indicated here today, that he            feels pain in the leg, that the left leg gets  numb, that the            knee  fails him, that he has to use a cane, that he has chest            pains, that he  likes to be alone, that he  hears voices.  If            we  gave   credibility  to   these  complaints,  would   your            appreciation change at all?"  The vocational expert responded            that  claimant  could  not  perform  his  past  job  in  that            condition.                         Claimant's Exertional Impairment                         ________________________________                                         -4-                      Substantial record evidence  exists to support  the            ALJ's  description of claimant's  exertional impairment.  Two            non-examining  physicians,  Dr.  Fragoso and  Dr.  Hernandez,            reviewed   the  record   and  assessed   claimant's  residual            functional capacity.  Both found that claimant could lift and            carry up to 50 pounds, 25 pounds frequently; could sit, walk,            and stand up to six hours each day; could push  and pull; had            no manipulative limitations; and could climb, balance, stoop,            kneel, crouch and crawl at least occasionally.  These medical            findings, which  constituted the only  medical assessments of            claimant's  residual  exertional  capacity  in   the  record,            adequately supported the ALJ's hypothetical.                        It is true that the weight to be given the residual            functional capacity assessments  of non-examining  physicians            "will vary  with the  circumstances, including the  nature of            the  illness  and  the  information  provided   the  expert."            Rodriguez v. Secretary of Health and Human Services, 647 F.2d            _________    ______________________________________            218, 223  (1st Cir. 1981).   Claimant's benefits application,            however, was denied at step 4, and at step 4 it is ordinarily            claimant's burden,  not the Secretary's, to  produce evidence            to  demonstrate that  he cannot  return to  his former  work.            Gray v.  Heckler, 760 F.2d 369,  375 (1st Cir. 1985).   Since            ____     _______            claimant   was   represented   by   counsel,   there  is   no            justification  here for  a  departure from  that  rule.   See                                                                      ___            Currier v.  Secretary of  Health, Education and  Welfare, 612            _______     ____________________________________________                                         -5-            F.2d 594,  598 (1st Cir.  1980).  The  onus was  on claimant,            therefore,  to  introduce   additional  residual   functional            capacity assessments  relevant to the  step 4  determination.            Claimant having  failed to do so, the  Secretary was entitled            to rely on the assessments of these non-examining physicians.                          Claimant's Allegations of Pain                          ______________________________                      We  also find  no error  in the ALJ's  treatment of            claimant's  subjective complaints  of  pain.   The exertional            aspects of claimant's  pain, associated with  claimant's back            and leg condition, are covered by our above remarks.   It was            partly because  of claimant's "pain or  discomfort related to            back syndrome" that the ALJ concluded that claimant faced the            exertional limitations the  ALJ outlined in her  hypothetical            to the vocational expert.                      As for  the  non-exertional aspects  of  claimant's            pain, we find that the ALJ conducted the kind of inquiry into            claimant's allegations of pain required by Avery v. Secretary                                                       _____    _________            of  Health and Human Services,  797 F.2d 19  (1st Cir. 1986),            _____________________________            and  that  the ALJ's  decision  to  discredit allegations  of            disabling pain  was supported  by substantial evidence.   The            record supports,  and claimant has not  challenged, the ALJ's            findings  that claimant  "has been  taking medication  on his            own, has  not been  going for  treatment consistently and  he                                         -6-            should complain  to the  treating sources so  that corrective            action  may  be undertaken  such  as  prescribe a  substitute            medication,  decreasing the  frequency or  the dosage  of the            medication  or  orienting the  claimant  in  terms of  taking            medication consistently."  The ALJ also permissibly relied on            her  own observations  at  the hearing  that claimant  "had a            cane, but he did not appear to actually need it for  support.            He  admitted that such cane was not prescribed by any medical            source and that he bought it on his own.  He was able to sit,            stand  up  and  exercise  body control  with  no  significant            limitations."  This  evidence adequately supported  the ALJ's            finding, as reflected in  her hypotheticals to the vocational            expert, that  claimant did  not suffer from  significant pain            beyond that which contributed to his exertional limitations.                           Claimant's Mental Impairment                          ____________________________                      The  deficiency  in  the Secretary's  determination            concerns   the   ALJ's  description   of   claimant's  mental            impairment  in  the  ALJ's  hypothetical  to  the  vocational            expert.  The  hypothetical merely stated that  claimant had a            mental  condition,  without any  description of  any specific            mental  impairment or  any specific  functional consequences.            The hypothetical  then went on to  list a number  of areas in            which claimant's mental capabilities were found to be normal.                                         -7-             As  claimant  argues in  his brief  on appeal,  "the subject            hypothetical  having to do  with appellant's mental condition            poses no mental impairment at all."                      The  medical  evidence does  not  permit claimant's            mental  condition to  be ignored  in this  manner.   Even the            psychological  evaluation most  favorable  to the  Secretary,            that of Dr. Orlando Maldonado Rodriguez conducted on March 7,            1990,  found a "mild anxiety  disorder."  It  did not discuss            what, if  any,  functional limitations  that disorder  posed.            The two assessments by non-examining agency review physicians            of claimant's  residual  mental  capacity,  provided  by  Dr.            Reboredo and Dr. Jeanette  Maldonado, found that claimant had            a  severe anxiety-related  disorder which  imposed "moderate"            limitations  in  various  functional  areas,   including  the            following:    maintaining  attention  and  concentration  for            extended periods, performing  within a schedule,  maintaining            regular attendance and punctuality, completing a normal  work            day or week  without interruption from  psychologically based            symptoms,  performing  at  a   consistent  pace  without   an            unreasonable number  and length of rest  periods, interacting            appropriately with the general public, getting along with co-            workers  without  distracting them  or  exhibiting behavioral            extremes, and  responding appropriately to changes  in a work            setting.     Of particular  relevance, given  claimant's past            work as a  lottery ticket  salesman and the  ALJ's denial  of                                         -8-            benefits on the ground that claimant could still perform that            job,  Dr. Reboredor  wrote  that claimant  "cannot relate  to            public . . . on a  steady basis," and Dr. Jeanette  Maldonado            expressed a similar view.                      The  ALJ  herself  specifically  concluded  in  her            decision  that claimant  has "some  anxiety related  disorder            although it is mild to moderate in nature," and that he could            not "perform . . . complex tasks with detailed instructions."            The ALJ  failed to address, however, what affect the moderate            limitations  on, for  example,  dealing with  the public  and            completing a normal workday  would have on claimant's ability            to perform his past work as a salesman.                        Although  we  recognize that  the  medical evidence            supported the  ALJ's finding of  a "mild to  moderate" mental            disorder,  the hypothetical  presented  to the  ALJ --  which            effectively  described no mental limitation  at all -- was at            odds  with  the  medical  evidence  and  with the  ALJ's  own            finding.    It may  be that  claimant's  former job  could be            performed by an individual with claimant's "mild to moderate"            mental  impairment.  This court is certainly not qualified to            make  that  determination nor  is it  clear  why the  ALJ was            entitled  to  do  so  in  the  absence  of  expert vocational            testimony.  Such was not obtained here and, if  there is some            basis  on which  the  ALJ was  justified  in disregarding  or                                         -9-            discounting the medical evidence  as to mental disorder, that            explanation is not set forth in the ALJ' decision.                                  Conclusion                                 __________                      For the  reasons stated above, the  judgment of the            district  court is  vacated.   We  remand  this case  to  the                                _______            district court  with instructions to remand  to the Secretary            for  further proceedings,  which  may include  the taking  of            additional  vocational evidence,  not inconsistent  with this            opinion.                                                   -10-
