
USCA1 Opinion

	




          August 18, 1992                                [NOT FOR PUBLICATION]                                 ___________________          No. 91-2300                                             LYDIA E. MALDONADO,                                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                                 Breyer, Chief Judge,                                         ___________                            Selya and Cyr, Circuit Judges.                                           ______________                                 ___________________               Nestor Juan Rodriguez on brief for appellant.               _____________________               Daniel F.  Lopez Romo, United States  Attorney, Jose Vazquez               _____________________                           ____________          Garcia, Assistant United States Attorney, and Robert M. Peckrill,          ______                                        __________________          Assistant  Regional  Counsel,  Department  of  Health  and  Human          Services, on brief for appellee.                                  __________________                                  __________________                    Per Curiam.  Lydia Maldonado (claimant) appeals from  a                    __________          district court  judgment affirming the decision  of the Secretary          of  Health  and  Human  Services  denying  her  application   for          disability benefits.  For the  reasons discussed below, we vacate          the  judgment of the district court  and remand with instructions          to  enter an  order  remanding this  case  to the  Secretary  for          further proceedings consistent with this opinion.                                            I.               Claimant applied for benefits on July 13, 1987, when she was          48 years old.  She had been employed for thirty years as a sewing          machine operator for the Maidenform company.  (Tr. 109).  She has          a sixth  grade  education  and  cannot  communicate  in  English.          Claimant's initial  application alleged that she  was disabled by          circulatory problems in both legs and rheumatoid arthritis.   She          stopped working on October 31, 1986, the alleged date of onset of          her disability.1   Claimant's insured status  expired on December          31, 1991.                Between October 1986 and December 1987, claimant was treated          as    an   outpatient   for    numerous   complaints,   including          peripherovascular  insufficiency,  gout,  arthritis,  and  herpes          zoster.    She also  underwent minor surgery  for the removal  of          sebaceous  cysts on her eyelids.   Claimant complained of general          bone  pain  and  pain  in  both  legs  throughout   this  period.                                        ____________________               1 In  explaining how her  condition kept  her from  working,          claimant stated, "[t]he  place I  worked was close[d].   I  can't          find a  job since I can't  be standing or walking  due to swollen          (sic)  and pain in  both legs.   I have  pain in all  my joints."          (Tr. 105).           Occasional references to pain  in her right foot are  also noted.          (Tr. 159-61,  197).   She was  treated with  numerous medications          including  Naprosyn  (for gout),  Vasodilan  and Persantine  (for          circulation).  She  applied for disability  benefits on July  13,          1987.  At that time,  the Social Security Administration's  (SSA)          interviewer  observed no  limitations  of  movement, swelling  or          deformities.  (Tr. 112).                 Dr. Roberto Jimenez, a vascular surgeon,  evaluated claimant          for the  SSA on August 10,  1987.  Claimant related  a history of          cramps,  numbness  and occasional  uncontrollable  drooling.   He          observed  fullness in  her lower  legs without  pitting pretibial          edema.    Her  skin was  normal.    Dr.  Jimenez found  bilateral          varicose veins which were worse in  claimant's right leg.  He did          not assess how this condition might affect claimant's  functional          capacity to work.                  Claimant was treated for  gout and right foot pain  again in          September  1987.2     Her  initial  application   was  denied  on          September  15, 1987. (Tr. 89-90).   Claimant filed  a request for          reconsideration  and secured  treatment  from  Dr. Alberto  Abreu          Rivera,  a neurosurgeon,  between September  and November  1987.3          She complained of  leg cramps  and polyarthralgias  (simultaneous          inflammation  of several joints).   Dr. Abreu found mild swelling                                        ____________________               2An October 1987 x-ray of claimant's right foot disclosed no          abnormalities.               3Claimant's reconsideration disability  report alleged  high          cholesterol and  gout as  additional limiting impairments.   (Tr.          113).   The SSA interviewer observed swelling in claimant's face,          arms  and hands, and that she exhibited difficulty grasping a pen          and moving about.   (Tr.   117-18).  In  contrast to her  initial          application disability  report (which described claimant  as  "of          normal weight" (Tr. 112)), claimant's  reconsideration disability          report described claimant as "relatively obese." (Tr. 117).                                          -3-          in  claimant's   left  knee,  unquantified  loss   of  motion  in          claimant's lower  back, and  straight leg  raising limited  to 45          degrees bilaterally.   He diagnosed osteoarthritis,  chronic back          pain   and  anxiety-depressive   syndrome  and   prescribed  more          medications.  Dr. Abreu specifically noted that  claimant did not          need  any  assistive  devices.   (Tr.  185).    Claimant appeared          improved in October 1987,  but less than a month later, Dr. Abreu          concluded that her final prognosis was poor.                 In December 1987 claimant underwent  a venogram of her right          leg which revealed patency  of her deep venous system.   Although          no obstructions were noted, a medical consultant recommended that          claimant not  remain standing for  long periods.  (Tr. 193,  200,          204).  Claimant was seen at  the Ponce District Hospital in early          1988.   Edema  of her  right leg  was  noted.   (Tr. 192).    She          continued to be  treated with medications  including Motrin  (for          inflammation) and Persantine.                 On  April   12,  1988,   a  hearing  was   held  before   an          administrative law judge  (ALJ), who observed  ample swelling  in          claimant's right leg and  left ankle and that claimant  could not          press her index finger  to the table. (Tr. 43,  48-49).  Claimant          used a cane because  she had fallen upon occasion,  although none          had  been  prescribed.   The  ALJ  found  that  claimant was  not          disabled at step five of  the sequential evaluation process.  See                                                                        ___          Goodermote v. Secretary of  Health and Human Services, 690  F. 2d          __________    _______________________________________          5,  6-7  (1st  Cir. 1982).    The  Appeals  Council vacated  this          decision  on  the grounds,  inter alia,  that  the ALJ  failed to                                      _____ ____          evaluate properly  the claimant's allegations of  disabling pain,          and erred in applying the Grid to reach a finding of not disabled                                         -4-          when  the record indicated that  the claimant was  not capable of          performing the full range of light or sedentary work.  (Tr. 216).          The  Appeals  Council  remanded  for  the  taking  of  additional          evidence, including vocational expert testimony.               On remand,  the Secretary  convened two  additional hearings          before  a   different  ALJ  and  secured   two  medical  residual          functional  capacity  assessments.    Claimant and  a  vocational          expert  testified at  the hearings.   Dr.  Robert Leon  Perez, an          internal medicine and  rheumatology specialist, examined claimant          on or about February 15, 1989.  Her chief complaints at that time          were varicose  veins and  arthritis.   Claimant exhibited  a full          range of  motion in her neck and spine and no gait abnormalities.          All joints were  cool; there was no effusion, redness  or loss of          motion  noted in  the  upper or  lower  extremities.   Edema  was          present at the ankles.   Skin hyperpigmentation was found  at the          right ankle.  A February 15, 1989  x-ray disclosed a plantar spur          on  the right ankle.  Claimant's sedimentation rate (an indicator          of  swelling)   was  normal.  Antinuclear  antibody  testing  for          systemic disease (e.g. lupus) was also negative. (Tr. 223-26).               Dr.  Leon found  that  claimant's  impairments affected  her          ability  to lift  and  carry, but  he  did not  state  claimant's          limitations in numbers  of pounds.  Dr. Leon indicated claimant's          varicose veins limited her ability to stand, walk and sit without          interruption to a total of 3-4 hours  at one time and a total  of          6-7 hours over an 8 hour day.  (Tr. 227-29).                        Dr.  Juan   Diaz  Troche,  a  vascular   surgeon,  completed          claimant's second RFC assessment after examining her on  February          16,  1989.   He  found right  hand  weakness without  evidence of                                         -5-          muscular  atrophy.   Tinel's  sign  was negative  for  nerve root          irritation  in the right wrist.  Stasis dermatitis was present on          the right ankle.   Dr. Diaz indicated that claimant's  right hand          weakness affected her ability to lift or carry but he too did not          indicate  how many pounds claimant  was limited to.   Claimant is          right handed. (Tr. 60).  Dr. Diaz found that claimant's abilities          to  reach, handle, push and pull were  all impaired, and that she          could occasionally climb, but never balance, stoop, crouch, kneel          or  crawl.    In  assessing whether claimant  was subject  to any          environmental  restrictions, Dr.  Diaz recommended  that claimant          avoid moving machinery. (Tr. 232-34).               On remand, the ALJ questioned vocational expert (VE)  Miguel          Pellicier  about claimant's  ability to  work.   After concluding          that  claimant could  not do her  past work  as a  sewing machine          operator if she needed  to change positions, this expert  went on          to identify three  other jobs that  claimant could perform  which          enabled  her to alternate positions.  The ALJ found that claimant          suffered  from a  severe peripherovascular  condition,  right leg          (mild) varicose veins, rheumatoid  arthritis, right hand weakness          and occasional gout that precluded her from returning to her past          work.  Based on the assessments of Dr. Diaz and Dr. Leon, the ALJ          concluded that claimant retained the residual functional capacity          to stand,  walk, or  sit up  to  3-4 hours  at a  time, with  the          ability to  perform these activities a  total of 6-7 hours  in an          eight hour day,  that claimant was  unable to lift or  carry more          than  10 pounds  frequently and  twenty pounds  occasionally, and          that she was unable to grasp, reach, push pull or handle with her                                         -6-          right  hand.4  The ALJ  concluded that claimant  was not disabled          at step five because she could perform the jobs identified by the          vocational  expert.  The district  court  affirmed this  finding.          This appeal followed.                                                      II.               On  appeal, claimant argues that the ALJ erred in using Grid          Rule  202.11  as  a  framework  because this  rule  assumes  that          claimant  can communicate  in English.    Claimant says  that she          should be  considered unskilled  since  she has  no  transferable                                _________          skills and that the ALJ should have found her disabled under Rule          202.09.    This  rule directs  a  finding  of  "disabled" for  an          unskilled  claimant, who is approaching advanced  age with an RFC          for light work, but who cannot communicate in English.5               Claimant's  argument overlooks the  fact that hers  is not a          case which calls for a straightforward application of the Grid.          The   presence  of  significant  nonexertional  limitations  will          preclude  the Secretary from  exclusively relying on  the Grid to          resolve  the issue of disability.  See, e.g., DaRosa v. Secretary                                             ___  ____  ______    _________          of  Health and Human  Services, 803 F.2d 24,  26 (1st Cir. 1986);          ______________________________          Burgos  Lopez v. Secretary of Health and Human Services, 747 F.2d          _____________    ______________________________________          37, 39 (1st Cir. 1984).   The ALJ found that claimant had several          nonexertional limitations, including an inability to sit or stand          more than 3-4 hours at a time, an inability to reach, grasp, push          or  pull with  her right  hand, and an  environmental restriction                                        ____________________               4The  ALJ also  found  that claimant  could balance,  stoop,          kneel, crouch or crawl only occasionally.  (Tr. 19).               5Claimant further contends that her exertional RFC is closer          to sedentary than  light work  and that a  "disabled" finding  is          also  required by the grid  rule that applies  to sedentary work.          (Grid Rule 201.09).                                         -7-          against  working  around  moving  machinery.   These  limitations          rendered  the  Grid useful  only  as  a framework  of  reference.          DaRosa, 803 F.2d at  26. The ALJ thus  did not err by  failing to          ______          rely  on either  Rule  202.09 or  Rule  201.09 to  find  claimant          disabled.  Claimant's  inability to communicate  in English  does          not  call for  the application  of  Rule 202.09,  for "it  is the          ability  to  communicate  in Spanish,  not  in  English, that  is          vocationally  relevant in Puerto Rico."  Arce Crespo v. Secretary                                                   ___________    _________          of Health and Human Services, 831 F.2d 1, 6 (1st Cir. 1986).            ____________________________               Claimant  further  argues   that  the  vocational   expert's          testimony does  not provide  substantial evidence supporting  the          ALJ's conclusion  that claimant retained the  capacity to perform          other work  because the ALJ posited  claimant's age as 49  in his          hypothetical  (which qualifies  as a  "younger" person"  under 20          C.F.R.   404.1563(b)), while claimant was  50 at the  time of the          second  hearing and  adjudication.6    This  does not  render the          vocational expert's  testimony  unreliable.    To  be  sure,  the          claimant's age may  be a  dispositive factor when  a case may  be          resolved under the Grid alone.  But we have previously noted that          this is not such a case.  The difference between age 49 and 50 is          not so great as to preclude  the ALJ from relying on the expert's          testimony.                 Nevertheless, the  appellant cites numerous  cases which  do          highlight a  serious defect in the hypothetical.  After eliciting          the vocational expert's  opinion that claimant  could not do  her                                        ____________________               6Under  20  C.F.R.   404.1563(c), someone  between  50-54 is          "closely  approaching advanced  age,"  and entitled  to have  the          Secretary  consider  that  his/her age,  "severe  impairment  and          limited  work experience,  may seriously  affect your  ability to          adjust to a significant number of jobs in the national economy."                                         -8-          past work  as a sewing machine  operator if she  needed to change          positions, the ALJ asked:                Q.   If  she  had  any  difficulty  or  limitation,  or                    otherwise, if she did not have difficulty to  lift                    up to 20  pounds, or difficulty  when standing  or                    sitting, or if  she could not  balance, crouch  or                    kneel down,  touch the  floor  or the  ground,  or                    reaching, handling, pushing  or pulling or  moving                                                                ______                    machinery or  trying to move machinery,  would she                    ______________________________________                    have  difficulty doing  her former  job? (emphasis                    supplied).                A.   That is, if she didn't have difficulty to --               Q.   If she had difficulty in these areas.               A.   She would have to deal with moving machinery.               Q.   What can she do under this premise?               A.   Under that  premise she could mainly  perform jobs                    of a  classification or revision  within that kind                    of    manufacture,  for  example,  ...  she  could                    perform  the   task as "Garment  Sorter"... [which                    the VE went  on to describe  as light,  unskilled,                    and   which   allowed     claimant   to  alternate                    positions] ...  Also, she may  perform the task as                    "Finished  Garment  Inspector"...     [and]  "Hand                    Sorter"  [which  were also  light,  unskilled, and                    which allowed one to alternate positions].          While the ALJ's hypothetical posited that claimant had difficulty          "reaching, handling, pushing  or pulling or  moving machinery  or          trying to  move  machinery,"  the  ALJ  subsequently  found  that          claimant was not  able to reach, grasp, handle, push or pull with          her right hand.  (Tr.  19).  But an inability to  move machinery,          or "to  deal with  moving machinery,"  (as the  vocational expert          testified)  is not  the same  as an  inability to  "reach, grasp,          handle, push or  pull" with  the claimant's dominant  hand.   The          latter  sounds like  a  far more  serious  limitation.   The  ALJ          credited the medical evidence which showed that claimant suffered          from right  hand weakness, evidence that  appears corroborated by          the first ALJ  (who observed  that claimant could  not press  her                                         -9-          index  finger to  the table)  and by  the claims  interviewer who          observed that  claimant had  difficulty grasping  a pen  when she          applied  for reconsideration.  That being so, the ALJ should have          asked the vocational expert:               Q.   Assuming  the  aforementioned   limitations,  can   the                    claimant still be expected to perform these jobs if she                    is  not able to reach, grasp, handle, push or pull with                    her major right hand?7               The ALJ's hypotheticals to a vocational expert should convey          the claimant's limitations  precisely in order to yield relevant           responses.  See Arocho v. Secretary of Health and Human Services,                      ___ ______    ______________________________________          670  F.2d 374,  375  (1st  Cir.  1982).  "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  the  claimant's  limitations...  ."          Cooper  v. Bowen,  880  F.2d 1152,  1158  n.13 (9th  Cir.  1989);          ______     _____          Whitman v. Bowen, 785 F.2d 262,  263-64 (8th Cir. 1986).  Because          _______    _____          the ALJ failed to include the claimant's right hand impairment in          posing his hypothetical,  we cannot say  the vocational  expert's          testimony  constitutes substantial evidence  that the claimant is          able to  perform the three jobs he identified, particularly where          each  of  these   jobs  appears  to   require  significant   hand          movements.8   On  remand,  then,  the  Secretary  must  determine                                        ____________________               7And,  if  the ALJ  determined  that  claimant's right  hand          limitations  were partial, not total, (which is not clear on this          record),  he should have asked  the expert whether claimant could          perform these jobs (or any  others) assuming a partial disability          in her right hand.               8In  this regard,  the  "Hand Sorter"  position required  an          ability  to classify  and  tie clothes  (presumably in  bundles),          while  the  "Finished  Garment  Inspector"  position required  an          ability to spread, mark  and measure garments, and an  ability to          use  scissors   to  trim   excess  threads.  See   Dictionary  of                                                       ___   ______________          Occupational Titles (1991), p. 838. The "Garment Sorter" position          ___________________                                         -10-          whether a substantial number of jobs remain available to claimant          in  light  of  all  her impairments,  including  her  right  hand          limitations.                    Accordingly, the  judgment of the district  court is vacated          and  the case is remanded to the district court with instructions          to enter an order remanding the case to the Secretary for further          proceedings consistent with this opinion.                                                                 ____________________          required   claimant  to  organize   finished  garments,  possibly          ironing, folding, and packaging same.  Id., p. 204.                                                    ___                                         -11-
