
USCA1 Opinion

	




          July 7, 1993                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 92-2186                               LUZ GONZALEZ 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                               Torruella, Cyr and Stahl,                                   Circuit Judges.                                   ______________                                 ____________________            Raymond Rivera Esteves and Juan A.  Hernandez Rivera on brief  for            ______________________     _________________________        appellant.            Daniel  F.  Lopez  Romo,  United  States  Attorney,  Jose  Vazquez            _______________________                              _____________        Garcia,  Assistant  United States  Attorney,  and  Donna C.  McCarthy,        ______                                             __________________        Assistant Regional  Counsel, Department of Health  and Human Services,        on brief for appellee.                                 ____________________                                 ____________________                      Per  Curiam.    Claimant,  Luz  Gonzalez Maldonado,                      ___________            applied for social  security insurance benefits  on March  8,            1989, alleging  that problems  with  her "back,  nerves,  and            hands" had  disabled her  from  working since  September  20,            1980.  Claimant was  thirty-four years of age on  the alleged            onset date.  Her disability insurance coverage ended on March            31,  1985,  some  four  years  prior  to  this   application.            Initially,  the  agency determined  that,  as  of that  date,            claimant's mental condition prevented her return to her prior            work as  an  electronics  welder  because  it  required  good            concentration, but that, otherwise, she retained physical and            mental   abilities    to   perform   other   work.       Upon            reconsideration, the no-disability finding was affirmed.                      After  a  hearing,   an  Administrative  Law  Judge            ("ALJ") concluded that, as  of the time she was  last insured            for disability  purposes, claimant  could  still perform  her            past  job as a solderer  of television tubes.   Upon judicial            review, a magistrate  judge surveyed the  evidence and, in  a            comprehensive  report,1  recommended   affirming  the   ALJ's            decision.  The district court agreed, and claimant  took this            appeal.   We conclude that  the ALJ's finding that claimant's            mental  condition  was  not  severe and  did  not  impose any            limitation  of function on or  before March 31,  1985, is not            supported by substantial evidence, and vacate and remand  for            further proceedings.                                            ____________________            1.  We  have reviewed all the  evidence and, in  light of the            magistrate-judge's recapitulation, do not recount it here.                                          I.                                          _                      Our  focus  is  on  step four  of  the  Secretary's            sequential evaluation process.  20  C.F.R.   404.1520(e).  At            this stage, the  initial burden  is on the  claimant to  show            that she  can no  longer perform  her particular  former work            because of  her impairments.   Santiago v. Secretary  of HHS,                                           ________    _________________            944 F.2d  1, 5 (1st Cir.  1991).  Then, the  ALJ must compare            the  physical  and  mental  demands of  that  past  work with            current functional capability or, as here, functional ability            in the  critical  period.    Id.    In  making  a  step  four                                         ___            appraisal,  the  ALJ is  entitled  to  credit claimant's  own            description  of   her  former   job  duties  and   functional            limitations, id., but, as Santiago cautions:                         ___          ________                      [A]n  ALJ may  not simply  rely upon  the                      failure  of  the claimant  to demonstrate                                                    ___________                      that the  physical and mental  demands of                      her past relevant work  can no longer  be                      met,  but once alerted  by the  record to                                _______________________________                      the  presence  of  such  an  issue,  must                      __________________________________                      develop the record further.            Id. at 5-6 (quotation marks and citations omitted).  There is            ___            substantial evidence that claimant  met her initial burden to            provide  information  about  the activities  her  usual  work            required and  her functional inability to  perform that work.            There is also uncontradicted evidence, which the ALJ did  not            address or explain, that the claimant's mental functioning in            the  critical period  was, overall,  moderately limited  as a            result  of  her mental  condition.    Because this  evidence,                                         -3-            together with claimant's statements, squarely  put into issue            whether  claimant's  mental  condition  prevented   her  from            performing  a particular job as  she had performed  it in the            past, the ALJ was not, as the following discussion indicates,            free to ignore it.                                         II.                                         __                      We begin by noting that claimant does not challenge            the ALJ's determination as to her physical impairment (severe            cervical and lumbar myositis) or physical residual functional            capacity ("RFC") (light exertion) in the critical period.  In            deciding that  claimant could then still  perform light work,            the ALJ gave  some credence to claimant's  pain complaints, a            conclusion that is reasonably supported in the record.                                          A.                      With  respect to  claimant's  allegations that  the            mental condition  she  developed after  she  stopped  working            prevented her return to that work, the ALJ stated:                      The claimant has been followed during the                      crucial    period   for    an   emotional                      component.  However, the medical evidence                      so  far  considered  does  not  show  the                      presence   of    any   severe   emotional                      impairment.  The  claimant's capacity  to                      perform basic work related activities was                      not  affected  at  all  by   her  alleged                      emotional   component.     There   is  no                      evidence    of     severe    intellectual                      dysfunction,  personality  deterioration,                      perceptual      distortions,      reality                      detachment,  deterioration   of  personal                      habits,   significant   constriction   of                      interest,  marked  restriction  in  daily                      activities,   inadequate    judgment   or                                         -4-                      insight,  or inability  to deal  with the                      physical  or  social  environment.    The                      claimant's  emotional  impairment  during                      the   crucial   period   was   a   slight                      abnormality with such a minimal effect on                      her  that it  would  not  be expected  to                      interfere  with  her   ability  to   work                      irrespective  of  age, education  or work                      experience.            The ALJ decided  that the  evidence showed a  diagnosis of  a            generalized  anxiety disorder,  but  that (1)  there was  "no            evidence  in file  to  support allegations  of a  significant            emotional illness," and (2) claimant's mental  "condition did            not impose  any limitation in claimant's  capacity to perform            basic work-related  activities on or before  March 31, 1985."            In   an  accompanying   psychiatric  review   technique  form            ("PRTF"), the ALJ rated  claimant's mental impairment as non-            severe.                      At  the  request  of the  disability  determination            program,   two    non-examining   psychological   consultants            completed PRTFs  and mental  RFC assessments for  the insured            period.  Both consultants, Drs. McDougall and Gonzalez, rated            claimant's  mental  impairment as  severe  on the  PRTF.   20            C.F.R.     404.1520(c)(1).    Each   consultant  specifically            indicated  on the  accompanying  mental RFC  form that  their            evaluation was for the "date last insured," i.e., March 1985.                                                        ____            The Secretary argues, however, that Dr. McDougall's 1989 PRTF            and  RFC  were  "current"  assessments  and  do  not  reflect            impairment or functioning in the insured period.                                         -5-                      This is clearly incorrect as to Dr. McDougall's RFC            assessment  which  was  expressly  limited  to  the  critical            period.    The  Secretary's  own  regulations  for evaluating            mental  impairment claims  mandate  the completion  of a  RFC            assessment if a severe mental  impairment is indicated on the            PRTF.   20 C.F.R.   404.1520a(c)(3).   Although the timeframe            of   Dr.  McDougall's  PRTF  was  (apparently  inadvertently)            omitted,  the  completion  of  a  mental  RFC  assessment  is            predicated  upon   a  PRTF  finding  that   a  severe  mental            impairment exists.   Dr.  McDougall, like Dr.  Gonzalez, made            that  predicate   finding  on   the  PRTF  by   checking  the            disposition:  "RFC necessary  (i.e., a  severe  impairment is                                           ____            present  .  . .)".    Thus, Dr.  McDougall's  concomitant RFC            (clearly  completed for  the insured  period) must  cover the            same timeframe as Dr. McDougall's initial PRTF.  In addition,            both consultants  were  specifically requested  to provide  a            severity assessment for the period ending March 31, 1985.                      We  reach  this   conclusion,  despite  two  terse,            seemingly  inconsistent remarks  by Dr.  McDougall:   (1) "No            evidence  to  support severe  condition  by  QC [quarters  of            coverage]  3/85," and  (2) "No  evidence of  a severe  mental            condition  for the  years 83-85."   These  anomalous comments            aside,  the  special  procedures  inherent  in      404.1520a            together  with   the  information  and   subsidiary  findings            recorded within  the PRTF  itself dictate that  Dr. McDougall                                         -6-            determined  that a  severe mental  impairment existed  in the            critical period before going on to complete a RFC assessment.            Put another way,  under   404.1520a, Dr.  McDougall could not            have completed such an assessment for the period ending March            1985 solely upon a finding of mental severity in 1989.  Thus,            since  there  are  no  contrary  medical  reports  as to  the            severity of  claimant's mental impairment, the  ALJ's finding            that  there  was  no  evidence to  support  allegations  of a            significant emotional  illness in the relevant  period is not            supported by substantial evidence.                                          B.                      We  turn  to  the  evidence  of  claimant's  mental            functioning  in  the  critical  period.   Dr.  McDougall  saw            claimant as  predominantly  anxious with  depressive  traits,            whereas Dr.  Gonzalez found a mood  disorder characterized by            depression.   Nonetheless,  in evaluating  the twenty  mental            activities related  to the ability to  sustain essential work            activities  on a  regular basis,  both consultants  found the            claimant's functioning  moderately limited  in eleven of  the            twenty abilities.   Both  agreed that eight  areas of  mental            functioning  were  moderately compromised,  specifically, the            abilities   to:  maintain  attention  and  concentration  for            extended periods; perform activities within a  schedule; work            in  coordination  with or  proximity  to  others; complete  a            normal workday and workweek and perform at a consistent pace;                                         -7-            interact  appropriately  with  the  general  public;  respond            appropriately to  changes in  the work setting;  be aware  of            normal hazards; and travel in unfamiliar places or use public            transportation.   As this  evidence is uncontroverted,  we do            not find record support for the ALJ's finding that claimant's            mental  condition imposed  no  limitation on  her ability  to            perform basic work activities in the relevant period.                                          C.                      Based  upon  vocational  information and  testimony            provided by the claimant, the ALJ decided:                      [S]he  has  worked  as  a   solderer  and                      machine  operator  in  a  factory.    The                      claimant's  past  relevant  work  can  be                      considered as low semiskilled  in nature.                      He[r] work as [a] soldering power machine                      and  machine   operator  entailed  medium                      exertion.    However,  the  activity  she                      performed  . . . soldering TV set (tubes)                      is  considered of  slight nature  and was                      performed alternating positions.   We are                      convinced  that  the  claimant was  still                      capable of performing  her past  relevant                      work .  . .  soldering TV [parts]  as she                      still had a residual  functional capacity                      for light work.            The  claimant  described her  job  using a  power  machine to            solder electronic parts:                      I united  parts by  means of  soldering a                      tin  wire which  served as  a fixer.   We                      used a  pedal machine which .  . . served                      to  heat the  part being  worked  to `red                      hot.'   The tin  wire was then  placed to                      serve as the soldering medium.  Then, the                      part  would be cooled off in  . . . trays                      full of  cold water.  This  procedure was                      performed daily.                                         -8-            According to  claimant, the job welding  television tubes was            similar:                      The  parts were  smaller and  the machine                      used was more modern.   The soldering was                      done with the very same machine.            From these  descriptions (the opinion of  a vocational expert            was not  obtained), it  seems fairly obvious  that claimant's            former job soldering television  parts required an ability to            concentrate and remain focused on the machinery  used and the            tasks at hand.  Here, where the uncontroverted reports of the            only  two  medical consultants  to  render an  opinion  as to            mental functioning  in the  insured  period found  claimant's            ability for sustained  attention and concentration moderately            limited, the ALJ's conclusion that claimant could perform the            physical  and  mental  demands  of  her  past  work  was  not            supported  by  substantial   evidence.2    See  Higgarty   v.                                                       ___  ________            Sullivan, 947 F.2d 990, 996-97 (1st Cir. 1991).            ________                                         III.                                         ___                      Because  the  ALJ  did  not  address  or  otherwise            explain whether claimant's  mental functioning  significantly            affected her ability to perform particular past work, or that            occupation as it is  generally performed, see Social Security                                                      ___            Ruling  82-61; Santiago,  944  F.2d at  5  n.1, the  case  is                           ________                                            ____________________            2.  Claimant's  initial and reconsideration  denials, each of            which concluded  that claimant  could not perform  her former            work,  are also  entitled  to some  evidentiary  weight.   20            C.F.R.   404.1512(b)(5); see also Kirby v. Sullivan, 923 F.2d                                     ___ ____ _____    ________            1323, 1327 (8th Cir. 1991).                                         -9-            remanded  for  further proceedings  in  accordance  with this            opinion.     We  may  not,  despite  the  invitation  of  the            Secretary, conclude  that claimant was unable  to perform her            past relevant  work during the period in  question, and apply            the  medical-vocational  guidelines,  20  C.F.R.   Part  404,            Subpart  P, App.  2,  to find  the  claimant disabled.    See                                                                      ___            Securities & Exchange  Comm. v. Chenery  Corp., 318 U.S.  80,            ____________________________    ______________            93-95 (1943).  We  have considered claimant's other arguments            and find them  without merit  for the reasons  stated in  the            report of the magistrate-judge.                      The judgment  of the district court  is vacated and                                                              _______            the  case  is  remanded  with directions  to  remand  to  the                           ________            Secretary for further proceedings.                                         -10-
