
USCA1 Opinion

	




          February 3, 1993                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 92-1829                                     ANA GIMENEZ,                                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,                                         ___________                          Torruella and Cyr, 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 Jan B. Brown, Assistant        ______                                         ____________        Regional  Counsel, Department of  Health and Human  Services, on brief        for appellee.                                 ____________________                                 ____________________                      Per Curiam.  Claimant, Ana M. Gimenez, appeals from                      __________            a  district  court judgment  affirming  the  decision of  the            Secretary of  Health  and  Human Services  that  she  is  not            entitled to Social Security disability benefits.  We affirm.                                          I.                                          _                      Claimant   applied   for  disability   benefits  on            November 7, 1989.  She claimed an onset  date of December 31,            1988;  her insured status expired  on December 31,  1992.  At            the  time she filed her application, she was fifty years old.            Claimant's alleged impairments included herniated discs, left            hand injury, migraine headaches, osteoporosis, pinched nerves            and cardiac arrythmia.   Her claim  was denied initially  and            upon reconsideration.  An administrative law judge (ALJ) held            a hearing and determined that claimant could perform her past            work.   The Appeals  Council  denied claimant's  request  for            review.  Thus,  the ALJ's decision became the  final decision            of the Secretary.                      From  her   testimony  at   the  hearing   and  the            disability  report  completed  by  claimant,   the  following            evidence  emerges.  Claimant worked for  the same company for            nineteen years until it  closed in December 1988.   While she            was there she held  several positions.  She began  working as            an accounting clerk.  In this  position, she took care of the            accounts receivable books and did filing.   Her next position            as  a   productions   clerk  involved   keeping   handwritten            production reports and assisting with taking inventory.   She            then became  an inventory control clerk and  worked solely on            keeping  track  of  inventory.    These  positions  generally            required  her  to  be  seated  fifty  percent  of  the  time.            Claimant's last position was as a receptionist.  At this job,            she  sat all of the  time.  She stated that  she used both of            her  hands  for tasks  such  as  operating a  calculator  and            working the switchboard.                      Claimant  sustained  a  back  injury  in  1980  and            asserted that due to  back and hip pain, she could not remain            in  one position too  long; she often had  missed work due to            this pain.  After  her job ended in December  1988, she tried            working as  a drug  store clerk.   This  job lasted  one week            because claimant could not stand.  Claimant also alleged pain            in her left  big toe, left  leg and right  knee.  She  stated            that due to left foot spurs the foot would swell so much that            she could  not stand.   Claimant receives injections  for the            pain in her knees.  She  also takes other medication for  the            pain but  is limited in  the amount  she can use  due to  her            cardiac problems.   This  medication gives her  "some relief"            from the pain.                      As for  her headaches, claimant testified  that, at            the  time  of  the  hearing,  she  had  been  suffering  from            migraines on a daily basis for the past six years.   During a            migraine attack, she is unable  to concentrate, read or think            and  cannot  tolerate  light.    The  medication  she  takes,            however, alleviates the symptoms.                                         -3-                      Claimant stated that she also suffered from pain in            her left shoulder, arm,  hand and fingers.  She  averred that            the nerves in her fingers are  pinched and that, as a result,            she  cannot perform any tasks with her left hand (claimant is            left-handed).  Specifically, her  left hand becomes  swollen,            cramped and numb; she  cannot uncurl her fingers to  open her            hand all  the way.   She testified  that her  right hand  was            beginning to develop similar symptoms.                        Claimant shares a duplex  with relatives.  She is            able  to take  care of  her personal needs.   Her  mother and            sister help with the cooking.  She sweeps and mops about once            or  twice a  month, washes  dishes, irons  and takes  out the            trash.  Her mother does all the laundry because of claimant's            problems  with her hands.   Claimant goes to  church when she            can,  drives an  automobile and  does her  household shopping            with  help  from relatives.    However, she  cannot  do heavy            household cleaning chores and yard work.   She reads, watches            television and  receives visitors two to three times a month.            She  spends a  lot of  time in  a prone  position due  to her            headaches.                      The ALJ  determined that  claimant suffered  from a            combination  of  impairments  including   degenerative  joint            disease,  essential  hypertension,  left trapezius  myositis,            mild right and left carpal tunnel syndrome and a painful left            foot  hallux valgus (angulation of great toe).  He noted that                                         -4-            one  physician had  reported that  claimant suffered  from an            anxiety  disorder  but  that  claimant  never   had  received            treatment for it.  Thus, he determined, this mental condition            did  not reduce, in any significant way, her capacity for the            performance of basic work activities.  He credited claimant's            subjective complaints  of disabling  pain only to  the extent            that her residual functional capacity was limited to the full            range  of light exertion.   He  then concluded  that claimant            could perform her past work.                                         II.                                         __                      A claimant for Social Security  disability benefits            bears  the initial  burden  of establishing  that  he or  she            cannot perform  past relevant work.   Goodermote v. Secretary                                                  __________    _________            of Health and Human Services, 690  F.2d 5, 7 (1st Cir. 1982).            ____________________________            This  burden includes  proving that  a claimant  is prevented            from  returning to  his or  her type  of work  generally, not                                                           _________            solely to the  particular job.   See Dudley  v. Secretary  of                                             ___ ______     _____________            Health  and Human Services, 816 F.2d 792, 795 (1st Cir. 1987)            __________________________            (per  curiam); Gray v. Heckler,  760 F.2d 369,  372 (1st Cir.                           ____    _______            1985)  (per curiam).  Our standard of review under the Social            Security  Act is  whether  the  Secretary's determination  is            supported  by "substantial  evidence."   42 U.S.C.    405(g).            Although the record may support  more than one conclusion, we            will uphold  the Secretary  if "a reasonable  mind, reviewing            the evidence  in the record  as a  whole, could accept  it as                                         -5-            adequate to support his  conclusion."  Rodriguez v. Secretary                                                   _________    _________            of Health and  Human Services,  647 F.2d 218,  222 (1st  Cir.            _____________________________            1981).   The resolution of  conflicts in the  evidence is for            the Secretary, not the courts.  Id.                                            ___                      On  appeal  claimant  presents   essentially  three            arguments:   (1) the severity  of her carpal  tunnel syndrome            prevented her from  performing the full  range of both  light            and  sedentary work; (2) due to her back and foot conditions,            she could not sit or stand for sufficient  periods of time to            engage in any work;  and (3) the ALJ did  not properly credit            her allegations of  pain.   Before turning to  the merits  of            these  claims, we  note  that this  is  an especially  sparse            record.   Claimant's  evidence consists  of three  very brief            progress notes  from the  State Insurance Fund,  four cursory            responses   to   Social  Security   disability  determination            questionnaires prepared by claimant's treating physicians and            two radiology reports.   In addition, the Secretary submitted            the   record  to  two  non-examining  doctors  who  completed            residual  functional capacity  (RFC) forms  and  had claimant            examined by  a consultative rheumatologist.   We will discuss            this evidence in light of claimant's issues on appeal.                      1.    Claimant   argues,  that,   based  upon   her            testimony, the  carpal tunnel syndrome  is so severe  that it            amounts to a serious nonexertional impairment.  She refers to            Social Security Ruling (SSR) 83-14, entitled Capability to do                                         -6-            Other Work -- the Medical-Vocational Rules as a Framework for            Evaluating  a  Combination  of  Exertional  and Nonexertional            Impairments.   Although  not directly  on point,  this ruling            states that  sedentary work requires good use  of the fingers            and  hands.   Given  this, claimant  concludes,  the ALJ  was            required to  secure the testimony  of a vocational  expert to            assess the extent  to which her carpal tunnel syndrome eroded            the occupational base for light and sedentary work.1  Id.                                                                  ___                      We  do not  believe  that  the  ALJ  erred  in  not            securing  such testimony.    In claimant's  medical evidence,            there is only  one reference to any impairment  involving her            hands.  In an arthritis  medical questionnaire, Dr. Victor M.            Gonzalez states  that claimant has swelling of  the joints of            her left  hand and that the fourth finger of her left hand is            a  "trigger  finger."   He  provided  no further  explanation            despite the  specific request for "a  detailed description of                                            ____________________            1.  Claimant also relies on SSR 85-15, which concerns the use            of the Medical-Vocational Guidelines for solely nonexertional            limitations, for the  argument that for  unskilled, sedentary                                                     _________            work,  claimant  must  be able  to  use  her  hands for  fine            manipulations  such as  picking, pinching,  grasping, holding            and  turning.  We only note that the ALJ described claimant's            past work as semi-skilled  in nature, a finding she  does not                         ____________            dispute.    In  any event,  the  two  RFC  forms stated  that            claimant had no limits in performing fine manipulations.                Similarly, Sec. 201.00(h)  of Pt. 404,  Subpt. P, App.  2            (the  Medical-Vocational  Guidelines)  which states  that  an            injury resulting  in the inability to  perform jobs requiring            bilateral  manual  dexterity  would  support  a   finding  of            disabled  is  inapposite.    Subsection  (h)  is  an  example            concerning an  individual  under  45  years  of  age  who  is            restricted to unskilled sedentary work.                          _________                                         -7-            the affected major joints in terms of . . .  loss of strength            of hand function (grasp, grip, pinch)."  Nor did Dr. Gonzalez            complete  the  range  of  motion  chart  or  the  periods  of            exacerbation table  as requested.  Finally,  Dr. Gonzalez did            not   list   carpal   tunnel  syndrome   under   the  heading            ___            "diagnosis".                      Indeed,   the   only  physician   to   so  diagnose            claimant's problems with her hands was Dr.  Luis Olivari, the            doctor  to  whom  the   Secretary  referred  claimant  for  a            consultative examination.  He noted that  claimant had a weak            left  hand grip  and related  the  weakness to  carpal tunnel            syndrome.  However,  he noted that her  hand condition "might            improve with adequate treatment."                      The Social Security regulations require claimant to            submit  medical  reports which  include "[a]  statement about            what you can still do despite your impairment(s). . . . "  20            C.F.R.     404.1513(b)(6).   This statement must  refer to  a            claimant's ability to  handle objects. Id.    404.1513(c)(1).                                                   ___            Further, the  medical evidence  should be complete  enough to            enable  the Secretary  to  determine  a claimant's  "residual            functional  capacity to  do work-related  . .  . activities."            Id. 404.1513(d)(3).   None of the  medical evidence submitted            ___            by claimant contains this information.                      In the  absence of any  such evidence, the  ALJ was            entitled to rely on  the RFC forms which both  indicated that                                         -8-            claimant  had  no limitation  in using  her fingers  for fine            manipulation.   The  only limit  noted in  both forms  was in            using  the  hands  for  gross manipulations.    Further,  the            examining  physician found  normal wrist motion  and, besides            the   left  hand   weakness,  did   not  mention   any  other            manipulative difficulties  that would indicate  that claimant            did  not retain  the  "good use  of  the hands  and  fingers"            required for most sedentary  work.  See SSR 83-14.   Although                                                ___            we  have pointed out  in the past,  and now  point out again,            that  the  Secretary  should  have  the  examining consultant            complete an RFC evaluation, see Rivera-Torres v. Secretary of                                        ___ _____________    ____________            Health and Human Services, 837 F.2d 4, 6 (1st Cir. 1988) (per            _________________________            curiam), we find  that there was  sufficient evidence in  the            record to support the ALJ's conclusion.2                        2.  Claimant argues  that two C.T. scans --  one in            July  1990 and one in October 1990 -- establish her inability            to work due to her  back and foot conditions.  The  July 1990            C.T. scan showed a narrowing of the disc spaces at L4-L5  and            L5-S1; the disc at  L5-S1 was bulging.  In addition, the scan            showed mild osteoarthritis changes of the L5-S1 and right L4-            L5  facet joints.  The  October 1990 C.T.  scan report stated            that claimant suffered from severe degenerative joint disease                                            ____________________            2.  We  also note in this  context that there  is no evidence            that claimant ever sought treatment for the problems with her            hands,  another basis for upholding the  ALJ's decision.  See                                                                      ___            Tsarelka  v. Secretary of Health and Human Services, 842 F.2d            ________     ______________________________________            529, 534 (1st Cir. 1988) (per curiam).                                         -9-            in  her  left great  toe  with spur  formation  and sclerotic            changes.     Claimant  points   out  that   the  nonexamining            physicians  who   completed  the  RFC   assessments  and  the            consultant  who examined  claimant in  December 1989  did not            have the benefit  of these  "objective" medical data.   As  a            result,  she  argues,  a  medical  advisor  was  required  to            interpret  them  because the  ALJ,  a  lay  person,  may  not            translate  such data into  functional terms.   See Berrios v.                                                           ___ _______            Secretary  of Health  and Human  Services, 796 F.2d  574, 576            _________________________________________            (1st Cir. 1986) (per curiam).                      We  reject  this  argument.    First,  one  of  the            nonexamining physicians completed his  RFC assessment on  May            21, 1990.  At this time, the medical questionnaire, completed            by  Dr.  Irizarry on  May  8,  1990, was  in  the  file.   In            answering this  questionnaire, Dr. Irizarry refers  to a C.T.            scan  of March  9, 19903  which showed  essentially  the same            condition  as the July  scan -- degenerative  disc disease at            L4-L5-S1, osteoarthritis of the  posterior facet joints and a            narrowing of the spinal canal at L5-S1.  Also on file at this            time was  an earlier questionnaire completed  by Dr. Irizarry            in November 1989.  Although mostly illegible, it appears that            claimant's   diagnoses   at    this   time   were    cervical            osteoarthritis and cervical fibromyositis.                                            ____________________            3.  Claimant  failed to include a  copy of the  report of the            March 1990 C.T. scan in the record.                                         -10-                      Second, both nonexamining physicians had the report            of  Dr. Olivari,  the Secretary's  consultant.   Although, as            claimant points out, Dr. Olivari's examination occurred seven            months prior to the July 1990 C.T. scan, it nonetheless could            serve as a  basis for the RFC assessments.  First, it appears            from  the  State Insurance  Fund  (SIF)  progress notes  that            claimant's present back condition is related to an injury she            sustained  in 1980.  Second, claimant alleged that she had to                          ____            stop work in 1988 due to her back condition.  As there  is no            indication that claimant's symptoms worsened between 1988 and            July 1990  when the  C.T. scan was  performed, Dr.  Olivari's            observations  in 1989  are  pertinent.   This examination  of            claimant revealed  full range of motion  of claimant's spine.            There was mild difficulty in kneeling and some left trapezius            spasm.   However, there were no motor or sensory deficits and            no  inflammation of the major  joints; all deep reflexes were            normal.   Dr.  Olivari  diagnosed degenerative  joint disease            (which the  C.T. scan confirmed) and painful left foot hallux            valgus.                      This is  more than sufficient evidence  on which to            base an RFC assessment.4   Turning to these assessments, both                                            ____________________            4.  Claimant argues that the  physician who completed the RFC            assessment dated  May 21,  1990, did  not  give a  reasonable            explanation as to how  he reached his conclusions.   A review            of  the  RFC form  belies  this contention.    Concerning her            exertional  limitations,  the  physician  indicates  that  he            relied on the following evidence:  (1) complaints of cervical            and lumbar pain;  (2) morning stiffness;  (3) the March  C.T.                                         -11-            physicians determined that claimant could frequently lift and            carry weights up to twenty-five pounds and occasionally could            lift and carry objects weighing up to fifty pounds.  Claimant            could sit, stand and walk up to six hours per  activity.  She            could occasionally stoop, kneel,  crouch, balance and  crawl.            Her ability to push and pull was  unlimited up to the weights            for lifting and carrying.                      In  this context,  we note  that Dr.  Irizarry also            neglected to  complete the  range of  motion  charts and  the            periods of exacerbation tables.  This information is directly            related to residual functional  capacity and it is claimant's            burden at step  four of the sequential  evaluation process to            produce  such evidence.  See  Goodermote, 690 F.2d  at 7; see                                     ___  __________                  ___            also  20 C.F.R.    404.1513.   Although  there is  a conflict            ____            between the  RFC assessments  and claimant's testimony  as to            her limits,  such  conflicts  are for  the  Secretary.    See                                                                      ___            Rodriguez,  647 F.2d at 222.   We therefore  cannot fault the            _________            determination that  claimant could perform the  full range of            light and sedentary work.                      3.   "[C]omplaints  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)            __________________________                                            ____________________            scan which  revealed degenerative disc  disease at  L4-L5-S1;            (4) vertebral muscle spasm; and (5) vertigo.                                         -12-            (per  curiam).    In  reviewing such  complaints,  the  ALJ's            credibility  determination  is  entitled  to  deference where            there are specific  findings to support it.   See Frustaglia,                                                          ___ __________            829  F.2d  at 195.    Here, the  RFC  assessments of  the two            nonexamining   physicians  who   reviewed  the   record  both            indicated that claimant's conditions did not prevent her from            engaging  in sedentary  or light  work.   This  conclusion is            supported by  Dr. Olivari's  report indicating full  range of            motion of claimant's head, shoulders, wrists, hips and spine.                      Although the results of  the C.T. scans reflect the            kind  of conditions  that can  be  expected to  produce pain,            claimant's  own  description  of  her  daily  activities,  in            addition to the  medical findings referred  to above, do  not            support  the  conclusion  that  her pain  was  as  severe  as            alleged.  Claimant stated that she cleans her home regularly,            attends to her  personal needs and drives  a car.   She takes            medication that alleviates her  symptoms; one of her treating            physicians noted  mild improvement  and a 1988  progress note            from the  S.I.F. indicates  that claimant had  no complaints.            Based  on the foregoing, we agree with the ALJ's decision not            to credit claimant's allegations of totally disabling pain.                      Affirmed.                      ________                                         -13-
