
USCA1 Opinion

	




               February 15, 1994                              UNITED STATES COURT OF APPEALS                                   FOR THE FIRST CIRCUIT                                    ___________________               No. 93-1861                                  ANA L. OCASIO VAZQUEZ,                                   Plaintiff, Appellant,                                            v.                          SECRETARY OF HEALTH AND HUMAN SERVICES,                                   Defendant, Appellee.                                    __________________                                       ERRATA SHEET                    The opinion of this Court issued on February 9, 1993,               is ammended as follows:                    On cover sheet "February 9, 1993" should be corrected                                   __________________                    to read "February 9, 1993".                             _________________               February 9, 1994    [NOT FOR PUBLICATION]                              UNITED STATES COURT OF APPEALS                                   FOR THE FIRST CIRCUIT                                    ___________________               No. 93-1861                                  ANA L. OCASIO VAZQUEZ,                                   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. Juan M. Perez-Gimenez, U.S. District Judge]                                                  ___________________                                    ___________________                                          Before                                   Breyer, Chief Judge,                              Selya and Cyr, Circuit Judges.                                              ______________                                    ___________________                    Juan A. Hernandez Rivera and Raymond Rivera Esteves  on                    ________________________     _______________________               brief for appellant.                    Guillermo Gil, United States Attorney, Maria Hortensia                    _____________                          _______________               Rios, Assistant United States Attorney, and Robert J. Triba,               ____                                        _______________               Assistant Regional Counsel, Department of Health and Human               Services, on brief for appellee.                                    __________________                                    __________________                 Per  Curiam.  Ana  L. Ocasio Vazquez  (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 stated            below, we affirm.                                      BACKGROUND                 Claimant was born on September 25, 1946, and applied for            benefits  when she  was forty  three years  old.   She has  a            seventh grade education and does not  speak English.  Between            1970 and 1988, she was employed as a sewing machine operator.            In 1978, she suffered trauma to her left knee and underwent a            left medial  meniscectomy.  She returned to  work but injured            the  same knee  in 1982.   Claimant  continued to  work until            March 15, 1988,  when pain in her left leg worsened.  She was            hospitalized for several days and, thereafter, did not return            to work.                 On  February 2, 1990, claimant filed her application for            benefits alleging that she  was disabled by phlebitis  in her            left  leg,  sinusitis, headaches,  back  pains, and  nerves.1            She claimed that she could not work because:                 My  leg becomes  swollen and my  two legs  go numb.                 The  backache and the  headaches are frequent.   At                 night, I don't sleep much.   Before, I used to turn                 the  house upside  down  [to  give  it  a  thorough                 cleaning] but I can't do it anymore.                                            ____________________            1.  Phlebitis  is  inflammation  of a  vein.    See Dorland's                                                            ___ _________            Illustrated  Medical   Dictionary  1279   (27th  ed.   1988).            _________________________________            Sinusitis is inflammation of a sinus.  Id. at 1531.                                                   ___                                         -2-            The   Social   Security  Administration   denied   claimant's            application initially and on reconsideration.                 Claimant obtained a hearing before an Administrative Law            Judge (ALJ)  on March 19,  1991.  She  was represented by  an            attorney.  In addition to the claimant, a medical expert (ME)            and a vocational expert (VE) testified.                 At the hearing, claimant reiterated her claims about her            leg and back conditions, as well as headaches.  She testified            that her headaches are  relieved by medication, but  that the            relief is  only temporary.   She also complained of  pain and            numbness in her upper left shoulder, dizzy spells, and "teary            and itchy"  eyes.  With respect to  her physical limitations,            claimant testified that  she could not sit for  more than one            half hour at  a time, that she  could not walk a  distance of            more than  four or five  houses before pain  in her back  and            legs caused  her to return  home, and that sometimes  her leg            pain was so strong that she had to lie down.2                    The ME testified that claimant had only a very mild loss            of  movement in  her  knee  and  suffered  from  "superficial            phlebitis,  which   though   painful   when   occurring,   is                                            ____________________            2.  Although claimant testified  that she did not  think that            she could work, she  also testified that she had not tried to            find a job because:                      I  don't feel capable.  I don't know what                      kind of work to look for because nowadays                      one  has  to  have  a  degree  to  get  a                      comfortable job and I don't have it.                                         -3-            inconsequential."3   He  concluded  that  "in  terms  of  her            functioning, there isn't a great degree of limitation."  With            respect to claimant's  back pain, the  ME testified that  her            condition  "at no  time is  characterized as  abnormal."   He            found  no  evidence  of  objective  neurological  pain.    In            summation,  the  ME  testified  that  "[he  didn't]  see  the            severity in any of the conditions that [claimant] mentioned,"            even as a whole, and  that she should try to find a  job that            did not involve repetitive foot movements.                   The VE  identified claimant's  former work  as a  sewing            machine operator as light and  semi-skilled.  The ALJ posed a            hypothetical to the  VE which assumed  that claimant can  sit            for five  hours in an eight hour day;  can stand for three to            four   hours  in  the  same  period;   can  lift  ten  pounds            frequently, and twenty-five pounds occasionally; can pull and            push with her hands, but  not make repetitive leg  movements;            and can bend and squat  occasionally.4  The VE concluded that            claimant  could not  do her  past  work as  a sewing  machine            operator,  because it  required her  to  sit all  day and  to                                            ____________________            3.  The  ME  testified  that  "superficial  phlebitis  is  an            inflammation  of the superficial  veins in  the legs  and the            varicose veins,  as we commonly  know them are the  ones seen            through the skins, they sometimes swell get reddish and could            be very painful, but besides being temporarily uncomfortable,            it is not a condition that's considered serious."              4.  The hypothetical also assumed that  claimant was somewhat            limited in her ability to work at unprotected heights, around            operating machinery, or in an  environment where she would be            exposed to extreme changes in temperature.                                         -4-            alternate  her legs frequently.  However, he identified three            other jobs within the clothing industry--garment bagger, spot            cleaner, and garment inspector--that  claimant could perform.            In these  jobs, the VE  testified, claimant could  change her            position at  will.  The  VE further  testified that  claimant            could perform these jobs if she had mild pain.                 The ALJ  found that  the combined  effect of  claimant's            status post  left meniscectomy, status post  left superficial            phlebitis,  and  sinusitis are  severe.   He also  found that            claimant is  unable to perform  her past work.   However, the            ALJ  concluded  that  claimant  has  the  residual functional            capacity  to  perform within  sedentary  to light  exertional            demands.5    The  AlJ   further  concluded  that   claimant's            allegations of  left leg  and knee pains  do not  disable her            from performing sedentary  to light work.   Finally, the  ALJ            ruled that, based on the  testimony of the vocational  expert            and application of the Grid, claimant is not disabled at step            five of the sequential analysis because  there are other jobs            that she can perform.                                              ____________________            5.  The ALJ went on make  specific findings that claimant has            the capacity:                      to perform  the physical  exertion requirements  of                      work except  for sitting over  five hours, standing                      and walking over  three to four hours,  lifting and                      carrying  over 10  pounds frequently and  25 pounds                      occasionally,  performing  repetitive  actions with                      her lower extremities  and exposure to  unprotected                      heights, moving  machinery  or  abrupt  changes  in                      temperature.                                          -5-                 The  Appeals Council denied review.  An appeal was taken            to  the  district court,  where a  magistrate-judge concluded            that  the Secretary's decision  was supported  by substantial            evidence.  The district court adopted the magistrate's report            and recommendation.  This appeal followed.                                   MEDICAL HISTORY                 The  medical  record  is well-summarized  in  the  ALJ's            report, and we  need only provide a brief overview  here.  In            late February and early  March 1988, claimant saw  doctors at            the State  Insurance Fund for  pain and swelling in  her left            knee.  On March 21, 1988, claimant was hospitalized for these            complaints.  A left leg venogram was negative for thrombosis,            but  an x-ray indicated joint space narrowing compatible with            osteoarthritis.  Claimant was prescribed an anti-inflammatory            medication  and discharged on March 25, 1988.  At the time of            discharge,  she was not experiencing leg discomfort and there            were no restrictions on her activities.                 After her release from the hospital, claimant  underwent            further tests  and her  left leg condition  was diagnosed  as            superficial  thrombophlebitis.  She  continued to be  seen by            doctors at the State Insurance Fund for complaints of pain in            her  left leg.   A  questionnaire completed  by her  personal            physician,  Dr.  Justimo  Betancourt,  on   March  23,  1990,            indicates that she  had difficulty walking  on her left  leg,            but had no inflammation.   Dr. Betancourt also reported  that                                         -6-            claimant  had a history  of maxillary sinusitis  and that she            had occasional dizzy spells.                   An internist evaluation  done by Dr. Isabel  Cestero, on            March 30,  1990, noted that  claimant complained of  pain and            numbness in her left leg, as well as swelling if she remained            standing.  Laboratory  results for the left knee were normal,            but  a back x-ray  indicated minimal  narrowing of  the lumbo            sacral  spine at  L5-S1.   Tests revealed some  limitation in            mobility in the left knee (0  -  100  out of a possible range            of  0   -  120 ).     The  diagnosis  was  status  post  left            meniscectomy and status post left superficial phlebitis.                 On  September 21, 1990, Dr. Betancourt reported findings            similar to those  he reported on March 23,  1990, although he            also noted  left leg skin  changes with edema.   On September            28,  1990, an  x-ray  of  claimant's  cervical  spine  showed            straightening  secondary to muscle spasms, as well as minimal            levoscoliosis.                                       DISCUSSION                 On  appeal, claimant raises two issues.  First, claimant            argues that  the ALJ failed  to give proper  consideration to            her  subjective  complaints  of   disabling  pain.    Second,            claimant  contends  that  the  ALJ's  conclusions  about  her            physical exertional capacity are not supported by substantial            evidence  because they were reached without any assessment of            residual functional capacity by a physician.                                         -7-                 With  respect to claimant's argument that the ALJ failed            to properly  evaluate her claim  of subjective pain,  we note            that  although  it   was  considered  and  rejected   by  the            magistrate, it was not encompassed in claimant's objection to            the magistrate's report.  It is well-settled in  this circuit            that  a party  may not  obtain appellate  review of  an issue            determined by a magistrate when  the party has failed to file            a timely objection  to the magistrate's determination  of the            issue as required by 28 U.S.C.    636(b).  See Thomas v. Arn,                                                       ___ ______    ___            474 U.S. 140, 147-48 (1985); Keating v. Secretary of Health &                                         _______    _____________________            Human  Services,  848 F.2d  271,  273  (1st Cir.  1988)  (per            _______________            curiam); Park  Motor Mart, Inc.  v. Ford Motor Co.,  616 F.2d                     ______________________     ______________            603, 605 (1st Cir. 1980).   Accordingly, the issue is waived.                 We  add that even if  we were to  consider the issue, we            would  disagree.  Claimant was questioned regarding her daily            activities,   functional   restrictions,    medication,   and            frequency  and  duration  of  pain  in  conformity  with  the            guidelines set  out in Avery  v. Secretary of Health  & Human                                   _____     ____________________________            Services,  797 F.2d  19 (1st Cir.  1986).6   In light  of the            ________            lack of medical  evidence to suggest  an objective basis  for                                            ____________________            6.  Although  more  thorough   questioning  at  the   hearing            regarding  claimant's   daily  activities  would   have  been            preferable,  the   record  included  a   questionnaire  which            elicited this information from her.  Claimant stated that she            spent most of the time lying  down, but also stated that  she            cooked occasionally and that she visited close relatives.                                         -8-            disabling  pain, the ALJ, who observed claimant's demeanor at            the hearing, was entitled to make a credibility determination            regarding claimant's  pain, Da Rosa v. Secretary  of Health &                                        _______    ______________________            Human Services, 803 F.2d 24, 26 (1st Cir. 1986) (per curiam),            ______________            and  to conclude  that  her  pain did  not  disable her  from            performing within sedentary to light exertional demands.  See                                                                      ___            Perez v. Secretary of Health  & Human Services, 958 F.2d 445,            _____    _____________________________________            448 (1st Cir. 1991) (per curiam).                 The  ALJ's  finding  that  claimant   has  the  residual            functional capacity to do sedentary to light work is slightly            more  problematic, though we  ultimately conclude that  it is            supported by substantial  evidence.  It is true  that we have            held that an  ALJ is not qualified to  interpret "raw medical            data" in functional terms.  See  Perez, 958 F.2d at 446.   We                                        ___  _____            have   also  stated,  however,  that  the  Secretary  is  not            precluded   from  rendering   common-sense  judgments   about            functional capacity based  on medical findings."   Gordils v.                                                               _______            Secretary of Health & Human  Services, 921 F.2d 327, 329 (1st            _____________________________________            Cir. 1990) (per curiam).      Here,  there  is   no  residual            functional capacity analysis by an  expert in the record.  We            find, however,  that the ALJ could make  a determination that            claimant was not disabled for  the following reasons.  First,            the impairments in the record appear to be  "relatively mild"            in the  sense that the  reports show few symptoms  that would            affect  ability to  do work.   See  Santiago v.  Secretary of                                           ___  ________     ____________                                         -9-            Health  & Human  Services, 944  F.2d 1  (1st Cir.  1991) (per            _________________________            curiam).    Second,  the  ALJ's "common-sense  judgment"  was            bolstered by the  testimony of a  medical expert that  "there            isn't  a great degree of limitation" on claimant's functional            capacity, that he "[did not] see  the severity" in any of the            conditions she  mentioned, and  that claimant  should try  to            find a job that did  not require her to make  repetitive foot            movements.   Finally,  aside from  claimant's allegations  of            disabling pain,  which we have  held the ALJ was  entitled to            reject, the only other claimed limitation was an inability to            sit or walk for an extended period of time.  The hypothetical            posed to the VE by the ALJ  assumed the truth of this claimed            limitation, and the VE identified  jobs that would permit her            to alternate positions at will.                 The judgment of the district court is affirmed.                                         -10-
