
USCA1 Opinion

	




        October 22, 1993        [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 92-2445                                  SAUL BAEZ-HERNANDEZ,                                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                                 Breyer, Chief Judge,                                         ___________                           Selya 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 Robert  M.  Peckrill,        ______                                           ____________________        Assistant Regional  Counsel, Department of Health  and Human Services,        on brief for appellee.                                 ____________________                                 ____________________                      Per Curiam.   Claimant Saul Baez Hernandez  appeals                      __________            from the  district court  judgment affirming the  decision of            the Secretary of  Health and Human Services  that claimant is            not entitled to Social Security disability benefits.                                I.  PROCEEDINGS BELOW                                _   _________________                      Claimant filed  an application for  Social Security            disability benefits on March  10, 1986.  He alleged  an onset            date of  January 25, 1985 when  he hurt his back  at work; he            listed  as  his  impairments  back  and  nervous  conditions.            Claimant  returned  to  work  on  November  16,  1988.    His            application was  denied by an administrative  law judge (ALJ)            in  July 1987  and  the Appeals  Council rejected  claimant's            request  for review.    While the  case  was pending  in  the            federal  district court,  the Secretary  of Health  and Human            Services requested  a remand.   Pursuant to this  remand, the            Appeals Council ordered  that a second  hearing be held  with            the testimony of a  vocational expert (VE).  At  the hearing,            held on November  16, 1988,  it appears that  no such  expert            testified.  A different ALJ determined  that claimant was not            disabled.   The Appeals  Council, on March  20, 1989, ordered            yet   another   hearing;   it  determined   that   claimant's            limitations significantly affected his ability to perform the            full range of light and sedentary work.  It ordered that a VE                                         -2-            testify  as  to the  existence  of jobs  that  claimant could            perform.                      On June 22, 1989,  after holding the third hearing,            at which a  VE testified,  the ALJ who  first had  considered            claimant's  application  determined  that  claimant  was  not            disabled.    He  found  that claimant  suffered  from  severe            lumbosacral strain.  As  for claimant's complaints of totally            disabling pain, the ALJ concluded that while credible when he            first injured his back,  there was no convincing evidence  of            continuing  severe   pain.    Thus,  the   ALJ  credited  the            allegations  of   pain  to  the  extent   that  claimant  was            prohibited from engaging  in heavy work.   He therefore could            not perform  his past work as a truck driver and delivery man            which involved the carrying of heavy appliances.                      However,  according to  the ALJ,  claimant retained            the capacity for the full range of light work limited only by            his need to alternate positions; claimant further was limited            because  he could  bend only  occasionally and could  not use            repetitive foot movements.   The ALJ found that  claimant did            not have  any nonexertional impairments.   Given his acquired            work  skills such  as  following  instructions and  counting,            claimant  was  able to  perform semi-skilled  work activities            such  as a stock  person in a  warehouse -- the  job to which            claimant had returned in November 1988.                                         -3-                      The  Appeals Council,  upon claimant's  request for            review,  affirmed the decision  of the ALJ  that claimant was            not entitled to disability benefits.   The Council did modify            the  ALJ's decision in one respect by finding the presence of            a nonexertional impairment.  However, this impairment did not            significantly  limit claimant's  ability  to do  work-related            activity.   On appeal  to the  district court, a  magistrate-            judge  recommended that  the matter  be remanded  for further            administrative proceedings.   Nonetheless, the district court            judge affirmed the Secretary's decision.  This appeal ensued.                       II.  DISCUSSION OF THE MEDICAL EVIDENCE                       __   __________________________________                      A.  Back Impairment                          _______________                      The evidence  concerning the  nature and  extent of            claimant's  back impairment  is conflicting.   In  total, six            consultative  evaluations  were  conducted between  1985  and            1988.  In  addition, claimant received treatment at the State            Insurance Fund  (SIF) from  January 1985 through  April 1988.            See Exhibits 17 and 36.  According to SIF records, a C-T Scan            ___            performed in August  1985 revealed  a narrowing  of the  disc            space  at L5-S1 with  a disc  herniation to  the right  and a            small  lateral  disc herniation  to the  left  at L4-L5.   In            August 1985,  a physiatrist at the SIF  examined claimant and            found that claimant could not  squat, had pain upon palpation            and upon flexion and  lateral movement of the trunk.   During            1985, claimant  continued with  these symptoms.   However, an                                         -4-            SIF physician in September of 1985 noted that claimant's pain            appeared only  upon exercise or prolonged  periods of sitting            or standing.  At this  examination, he found no radiculopathy            and that claimant's gait was normal.                      In March  1986, a  follow-up report indicated  that            claimant evinced  little interest  in engaging  in vocational            rehabilitation.    In  June   1986,  a  vocational  evaluator            reported that  despite  claimant's complaints  of  testicular            pain, headaches and pain  in his fingers, neck, low  back and            legs,  claimant  was  able  to  lift  up  to  twenty  pounds.            Although he  had  trouble  bending  forward  and  experienced            difficulties kneeling  and squatting, he could  sit and stand            for  sufficient lengths  of  time so  that  with a  job  that            allowed him to change position,  he could perform light work.            Thus,  claimant  was noted  as having  "great" rehabilitative            potential.                      Turning to the consultative medical evaluations, we            find  it necessary  for  the disposition  of  this appeal  to            review only those upon  which the VE based his opinions as to            appellant's physical abilities.  In August 1988, an internist            found  no swelling,  no muscle  atrophy and  normal reflexes.            See Exhibit  41.  There was diminished  pinprick sensation in            ___            claimant's left leg.  The  diagnosis was fibromyositis of the            lumbosacral spine  with spasms and discogenic  disease at L5-            S1.   The residual  functional capacity (RFC)  form indicated                                         -5-            that  claimant could lift a maximum of 50 pounds on occasion,            could stand or walk for four to six hours at a time and could            sit  for up  to  four hours  so long  as  he could  alternate            positions.   Claimant could frequently climb  and balance and            could occasionally stoop, kneel, crawl and crouch.                      A  neurologist, also  examining claimant  in August            1988,  found claimant  with  a normal  spine, full  strength,            normal tone and no evidence of atrophy or radiculopathy.  See                                                                      ___            Exhibit  42.    Claimant  had  limited  trunk  movements  and            although he showed  signs of  sensory deficit,  they did  not            follow  any anatomical  distribution.   An  X-ray revealed  a            narrowing  of the  L5-S1 disc  space and  lumbar spasm.   The            diagnosis  was chronic back pain.  In the RFC evaluation, the            neurologist determined that claimant  could lift a maximum of            50 pounds.   He could stand and  walk without any limits, but            could  sit for an uninterrupted  time for only  three to four            hours in a  work day.   Claimant had  no limits in  kneeling,            crouching, crawling,  climbing or balancing.   He was limited            in his ability to push or pull.                      In  contrast  to the  above  is  the  report of  an            evaluation performed  by a  neurologist on January  28, 1987.            See Exhibit 20.   This examiner found lumbar dextroscoliosis,            ___            marked lumbosacral paravertebral muscle spasm  and tenderness            to palpation.  Claimant had limited range of motion and could            bend forward only 30 degrees.  The diagnoses were as follows:                                         -6-            (1) herniated nucleus pulposus (HNP) at  L4-L5 and L5-S1; (2)            bilateral intractable S1 radiculopathies; (3) severe, chronic            lumbosacral  myositis and  myofascial  pain; and  (4)  lumbar            facet  axial   injury  and  pain  syndrome.     The  report's            conclusions  were that claimant's  musculoskeletal and spinal            conditions, along with nerve root involvement, contributed to            "severe  functional spinal limitation in  all of the range of            lumbar  movements."    As  a result,  claimant's  ability  to            maintain a  fixed position for  a substantial period  of time            was   limited;  further,   claimant's   constant   pain   was            exacerbated  by physical  exertion.   Thus, he  was precluded            from engaging  in "any type of  gainful activity whatsoever."            According to  this doctor,  claimant  was in  "dire need"  of            treatment.                      At  the last  hearing,  the ALJ  asked  the VE  his            opinion of what  type of work claimant could perform.  The VE            responded  that if one  used only Exhibit  20, claimant would            not be able to engage in any substantial gainful activity due            to  his functional limits and severe pain.  However, based on            the RFC forms completed by the other two examiners, claimant,            although  precluded from  heavy work  such as  his last  job,            could perform moderate work.  The VE reached this  conclusion            even  taking  into  account  claimant's  pain  and  decreased            abilities in sitting, standing or walking for long periods of            time.                                         -7-                      Claimant  argues that  the ALJ  did not  credit his            complaints of pain.  We  do not agree.  The VE  in describing            claimant   as  being   able  to   engage  in   moderate  work            specifically referred  to pain  as a component  of claimant's            profile.  The  ALJ went  further than the  VE, deciding  that            claimant  could  perform  only  light  work  where  he  could            alternate  positions.1  This finding was based in part on the            fact  that claimant's pain  as well  as his  other conditions            required this kind of flexibility.  Although the reports were            conflicting  as  to  whether  claimant's  pain  was   totally            disabling, such conflicts are for the ALJ, not the courts, to            resolve.   See  Rodriguez v.  Secretary of  Health and  Human                       ___  _________     _______________________________            Services, 647 F.2d 218, 222  (1st Cir. 1981).  Thus,  we find            ________            that  there was  substantial  evidence to  support the  ALJ's            conclusion that  claimant could perform the  demands of light            work.                      2.  Mental Impairment                          _________________                      Whether   claimant's    emotional   impairment   is            disabling  is  a  closer  question.   He  began  experiencing            emotional  problems after he  injured his back.   He received            treatment for  these problems  at the Carolina  Mental Health            Center from  March 1986 through February 1988.   See Exhibits                                                             ___                                            ____________________            1.  For some  reason, claimant argues  that the ALJ  erred by            relying on  the  grid and  that  the testimony  of a  VE  was            required.  It appears that claimant bases this  contention on            the first decision rendered  by the ALJ in July  1987, rather                _____            than the most recent decision of June 1989.                                         -8-            18 and 37.   At his initial evaluation, claimant  stated that            he  had trouble sleeping, was irritable, lost his temper with            his   children,  experienced   headaches   and  some   visual            hallucinations at night.  The diagnosis, at this time, was an            adjustment disorder with depression;  the prognosis was  good            with  out-patient  counseling   recommended.    Clinic  notes            indicate   that  during   1986,   claimant   evinced   little            cooperation with treatment; he stated that he  was there only            for the  purpose of obtaining  medication to help  him sleep.            His  case  was terminated  in January  1987, no  real changes            having occurred.  However, in December 1987, claimant was re-            admitted to the out-patient program with the same complaints.            At   this  time,  claimant  was  cooperative,  goal-directed,            relevant  and  his thought  processes  were  intact.   Again,            little  gain appears to have been made with treatment and the            record reflects that his last visit was in February 1988.                      Claimant underwent four psychiatric  evaluations --            two in 1986  and two in 1987.  All  the examiners agreed that            claimant was  coherent, logical, relevant and  oriented.  See                                                                      ___            Exhibits   15,  17,  38  and  40.    Despite  his  subjective            complaints of hallucinations, all  four examiners also agreed            that his thought  processes were intact  with no evidence  of            psychotic perceptions.    Although two  examiners noted  some            impairment with recent and  immediate memory, see Exhibits 17                                                          ___            and 40,  this was not  perceived as  a major problem  and all                                         -9-            four  agreed  that claimant's  judgment  was,  at a  minimum,            adequate.  Similarly, all four examiners agreed that claimant            was  anxious  and  distracted,  with  three  observing   that            claimant  appeared depressed.   See Exhibits  15, 38  and 40.                                            ___            The  most   common  diagnosis   was  depression  related   to            claimant's accident.                      The  evaluators  differed  as   to  the  effect  of            claimant's  mental condition  or his  ability to  function at            work.   A psychologist who  tested claimant for  the SIF, see                                                                      ___            Exhibit 17, determined that  claimant had a borderline  IQ of            76.  His vocational test scores revealed a strong interest in            manual  activities.    Despite   the  presence  of  "mild  to            moderate"  anxiety  which affected  claimant's concentration,            the psychologist  believed that this condition  was treatable            on  an  out-patient   counseling  basis.    Claimant's   work            prognosis was "very much acceptable" and "his emotional state            and  his  intellectual  capacities"  were  "appropriate"  for            vocational rehabilitation.                      However, the  one examiner  who completed a  mental            RFC assessment, see Exhibit 40, rated claimant's abilities to                            ___            function in the following areas as "poor or none" (defined on            the  RFC form  as "[n]o  useful ability  to function"):   (1)            following work rules; (2) relating to co-workers; (3) dealing            with the public; (4) interacting with supervisors; (5) coping            with   work  stresses;  (6)  maintaining  concentration;  (7)                                         -10-            handling detailed or  complex job instructions; (8)  behaving            in  an  emotionally  stable  manner;  and  (9)  demonstrating            reliability.    His  abilities  to  use  judgment,   function            independently  and  relate predictably  in  social situations            were  "fair"  --  defined  as  "seriously  limited,  but  not            precluded."   Claimant had good ("limited  but satisfactory")            abilities  in the  areas  of  understanding, remembering  and            carryingout                      simpleinstructions                                       andinmaintaining                                                      personalappearance.                      Two non-examining doctors completed RFC assessments            in  1986.  See Exhibit 14.   They agreed that claimant had no                       ___                                             __            significant  limits  in   the  following  activities:     (1)            remembering locations and work procedures; (2) understanding,            remembering   and  carrying   out  very   short  and   simple            instructions;  (3) making simple  work-related decisions; (4)            asking  simple  questions;  (5)  requesting  assistance;  (6)            acting in  a socially appropriate manner;  and (7) responding            appropriately to changes in the work place.  Both also viewed            claimant  as  being moderately  limited  in  his capacity  to            maintain  a normal  work  week without  interruptions due  to            psychological symptoms, to accept  criticism and to get along            with co-workers.  These same  evaluators, on the "B" criteria            of  the  Psychiatric  Review  Technique   (PRT)  Form,  rated            claimant as  slightly limited in daily  living activities and            moderately  limited in  social  functioning; claimant  seldom                                         -11-            experienced  problems  with   concentration  and  never   had            episodes of deterioration at work or in work-like settings.                      In   1988,   two   non-examining  physicians   also            completed PRT forms.  They opined that although claimant  was            anxious  and  depressed,  his  emotional  condition  was  not            severe.  See Exhibit  35.  As for the "B"  criteria, claimant                     ___            had   slight  limitations   in   daily   living  and   social            functioning, seldom experienced  problems with  concentration            and never had problems with deterioration at work or in work-            like settings.                      The ALJ also questioned the VE concerning the above            evidence.   Again, the VE  pointed out that  the evidence was            conflicting  and  the  conclusions   as  to  claimant's  work            abilities  were   dependent  on  what  medical   reports  one            utilized.   Based on the  psychiatrist's report  and the  RFC            evaluation, claimant  would  not  be able  to  work  at  all.            However, the  other  reports, according  to the  VE, did  not            support such a finding of total disability.                      Although we do not agree with the ALJ that claimant            did  not have any  emotional impairment and  even hesitate to                          ___            find,  as  did  the  Appeals  Council,  that  while  such  an            impairment  did  exist,  it  had  no  significant  effect  on            claimant, we  believe that  there is substantial  evidence to            support the  conclusion that claimant was  not precluded from            work.   We first note, however, that the findings of moderate                                         -12-            limitations in accommodating the demands of a work setting --            i.e., regular  attendance and  the completion of  a work-week            ____            without interruption  -- can erode the  occupational base, at            least marginally.  See Ortiz v. Secretary of Health and Human                               ___ _____    _____________________________            Services, 890  F.2d 520, 527  (1st Cir. 1989).   Nonetheless,            ________            given  the presence  of the  RFC assessments  indicating that            claimant had  the ability  to follow simple  instructions and            that  his  attention and  concentration  were  only minimally            affected, along  with  the RFC  assessments  that  claimant's            emotional impairment was not  severe, we cannot say  that the            VE's conclusion that claimant could work as a warehouse stock            person was without record support.  Although the record could            support  a  different  conclusion, we  again  emphasize  that            conflicts in the record  are for the Secretary.   See Irlanda                                                              ___ _______            Ortiz v.  Secretary of Health  and Human  Services, 955  F.2d            _____     ________________________________________            765, 770 (1st Cir. 1991) (per curiam).                                   III.  CONCLUSION                                   ___   __________                      For  the  foregoing reasons,  the  judgment of  the            district court is affirmed.                              ________                                         -13-
