
USCA1 Opinion

	




        December 30, 1992       [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 92-1810                                  CARLOS OYOLA-ROSA,                                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. Gilberto Gierbolini, U.S. District Judge]                                              ___________________                                 ____________________                                        Before                                 Breyer, Chief Judge,                                         ___________                         Torruella and Selya, 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  Paul  Germanotta,        ______                                               ________________        Assistant Regional  Counsel, Department of Health  and Human Services,        on brief for appellee.                                 ____________________                                 ____________________                      Per  Curiam.    In  1989,  Carlos  Oyola  filed  an                      ___________            application for Social Security disability benefits, alleging            disability due to epilepsy, a  nervous condition and back and            neck  pain.   After a hearing,  the Administrative  Law Judge            (ALJ) found that Oyola was not  disabled at step five of  the            sequential  evaluation  process  set   out  in  20  C.F.R.               404.1520(f).  The  ALJ determined that Oyola's epilepsy was a            severe impairment  which precluded him from  returning to his            previous employment,  but that Oyola did not have a disabling            emotional  or   mental  condition.     He  credited   Oyola's            allegations  of pain to the extent that his pain would reduce            his residual  functional capacity from heavy  to medium work.            (Thus, he treated Oyola's  pain as an exertional impairment.)            Although the ALJ found that Oyola could not engage in work in            which  he would  have  to climb  or  balance,1 drive,  or  be            exposed  to  unprotected  heights  and  moving machinery,  he            concluded  that  those  nonexertional  impairments   did  not            significantly  compromise Oyola's capacity for the full range            of medium work.  Using Rule  203.25 of the Medical-Vocational            Guidelines (the Grid) in  Appendix 2 of the regulations  as a            framework for his decision, he  determined that Oyola was not                                            ____________________            1.  The ALJ did not resolve certain slight differences in the            staff  physicians'   assessments  of  Oyola's   climbing  and            balancing abilities.   For purposes  of our analysis  in this            opinion, we adopt the  more restrictive assessment offered by            Dr.  Hernandez, which would be more  favorable to Oyola, that            Oyola should never  engage in work requiring any  climbing or            balancing.                                         -2-            disabled  before his  coverage expired.   Oyola  appealed the            ALJ's  denial  of  benefits  to  the  district  court,  which            affirmed the ALJ's  decision, and then sought  review in this            court.  We affirm.                        I.  Severity of Alleged Disabilities                          ________________________________                      Oyola  does not  challenge the  ALJ's determination            that his epilepsy  did not meet or equal  the criteria in the            Listing  of Impairments in Appendix 1 of the regulations.  He            claims, however,  that the ALJ failed  to consider adequately            his  allegations  of  disabling  pain, and  argues  that  his            medical  record shows  that he "constantly  and persistently"            complained  of  "severe  disabling  pain"  to  his  examining            physicians.   In  fact, the medical  record shows  that Oyola            only  occasionally complained  of  pain or  of other  medical            problems  that might  have  caused him  pain.   In  1978,  he            reported that he had cervical muscle spasms and foot lesions,            and  he  was  advised  to  rest for  a  week.    In  1983, he            complained  of pain in his  feet, in his  muscles and joints,            and specifically in  his neck  and back or  shoulder, but  no            medication or course  of treatment was prescribed.   In 1984,            he  reported pain  in his  left anterior  thorax, and,  being            diagnosed  provisionally  as   having  angina  pectoris   and            muscular  spasm, was  prescribed medicine.   He  was reported            stable  when  he  left the  hospital.    Pain  in his  thorax            recurred  once again in mid-1985.   Although the 1985 medical                                         -3-            report is practically unreadable, it appears to indicate that            medication was prescribed for Oyola's pain.  Between mid-1985            and  December  31,  1988,  the  expiration  date  of  Oyola's            coverage, the  record contains no further report  by Oyola of            any kind of pain.  In early 1988, Oyola reported that he felt            "allright for now."                      The ALJ did not specifically refer to this evidence            of  pain in his  decision, but his  failure to do  so was not            error under  the circumstances.   First, the  medical records            evidencing Oyola's  reports of  pain are not  very probative.            They indicate that Oyola complained of pain only sporadically            and not at all after the middle of 1985.  The reports of pain            for 1984 and 1985 relate  to chest pains which Oyola  has not            asserted is or  was disabling,  and which he  does not  claim            arose  out  of  his  primary  medical  impairment,  epilepsy.            Second, the ALJ made clear at the outset of his decision that            his  task  was  to  adjudicate  only  whether   Oyola  had  a            disability between February 26,  1988 and December 31, 1988.2            (Two  prior applications  of Oyola  relating to  time periods            between  1983 and early  1988 were denied  and not appealed.)            The evidence relating  to pain suffered in  prior periods was            useful background for  determining whether the pain  suffered            in the following period of  time was disabling, Frustaglia v.                                                            __________                                            ____________________            2.  The ALJ  gives 1989 as  the year ending  the adjudicatory            period, but  it is clear  that he meant  to say 1988  because            that is the year Oyola's coverage expired.                                         -4-            Secretary of Health  and Human  Services, 829  F.2d 192,  193            ________________________________________            (1st Cir. 1987), but was not itself dispositive.                      Furthermore, the ALJ considered  thoroughly Oyola's            testimony  at a  hearing in 1990  as to  the severity  of his            pain.   At  the  hearing, Oyola  testified  that severe  pain            caused  by injuries  suffered  during a  seizure and  by bone            spurs and arthritis had caused him to stop working.  The  ALJ            noted,  correctly,  that  the  record   showed  that  Oyola's            osteoarthritis  and  musculoskeletal  complaints arose  after            expiration  of  his  coverage.    He also  noted  that  Oyola            appeared   to  be   healthy  and   strong  at   the  hearing.            Nevertheless, he  evaluated Oyola's subjective  complaints of            back pain and epilepsy-related  pain under the factors listed            in  Avery v. Secretary of Health and Human Services, 797 F.2d                _____    ______________________________________            19  (1st Cir. 1986).  Specifically stating that he was giving            Oyola   the  benefit   of  the   doubt,  he   credited  those            allegations,  but  only  to  the extent  that  he  found that            Oyola's alleged pain  reduced his exertional  capability from            heavy to medium work.  He did not find Oyola totally disabled            by  pain because the medical record showed that Oyola did not            seek or follow consistent medical treatment for his epilepsy,            nor did the record indicate that the medications he  received            were ineffective to control his epilepsy, that they should be            changed, or  that  there  were  adverse side  effects.    His            conclusion  shows  that  the  ALJ  reviewed  Oyola's  medical                                         -5-            records thoroughly,  even if he did  not specifically discuss            the records  evidencing  Oyola's complaints  in  1978,  1983,            1984, and 1985.  On the basis of all of the above factors, we            conclude that the ALJ properly reviewed the evidence relating            to Oyola's  alleged pain, and  that his findings  relating to            pain were supported by substantial evidence.                        Oyola  alleges  further  that the  ALJ  cited  only            evidence favorable to the Secretary,  disregarded the medical            evidence of  Oyola's  disability, and  based  the  disability            determination on his  own medical  opinion.   He provides  no            detail as to what evidence the ALJ allegedly disregarded, and            does  not  describe  in  what respect  the  ALJ  ignored  the            opinions of examining or  consulting physicians, or based his            disability determination on his own medical opinion.  We have            reviewed  the ALJ's decision and the record and find no error            of  the kind Oyola has alleged.  The ALJ considered carefully            the evidence  in  the record  which was  favorable to  Oyola,            reviewing even  medical conditions  suggested  by the  record            which  Oyola  himself  did  not  claim were  disabling.    He            determined  that  Oyola's  epilepsy and  pain  constituted  a            "severe  impairment"   which  imposed  both   exertional  and            nonexertional  limitations  on Oyola.   His  determination is            supported by  Oyola's testimony of  pain and by  the residual            functional   capacity  assessments   of  Drs.   Marxuach  and            Hernandez.  There  is no other relevant medical assessment of                                         -6-            residual  functional  capacity  in  the  record  which  would            support further  restrictions on Oyola's ability  to work, or            which  would  support a  conclusion  that  Oyola was  totally            disabled.  The functional  capacity assessment by Dr. Rivera,            upon which Oyola relies  and which the ALJ excluded  from his            consideration, relates  to Oyola's  condition in  1989, after            his  coverage had expired, and the ALJ was fully justified in            discounting  that assessment.3   In  any event,  the ultimate            conclusion in Dr. Rivera's assessment agrees broadly with the            assessments  of Drs.  Marxuach and  Hernandez.   Although Dr.            Rivera  states that, as of 1989, Oyola was an "[u]ncontrolled            patient who  comes frequently  due to convulsions,  receiving            occasional traumas," and Dr. Hernandez had concluded that, as            of December 1988, his seizures "had no frequency," Dr. Rivera            did not find  Oyola to  be totally disabled  or prohibit  him            from all work.  She recommended only that Oyola "never[] [be]            alone or engage[] in work where he might be exposed to danger            due to convulsions."                                              ____________________            3.  The English translation of Dr. Rivera's assessment, which            had been  written in Spanish,  gives 1985 as the  date of her            report, and for that reason Oyola cites it as evidence of his            disability prior to expiration of his coverage.  The original            document  appears to give 1989  as the date  it was prepared,            although the final numeral was  hastily written and cannot be            said  definitively  to be  a "9".   Nevertheless,  the record            shows  that Dr.  Rivera  did not  begin  to treat  Oyola  for            epilepsy until 1989, and so the date on her assessment of his            condition could not have been 1985 as Oyola suggests.                                         -7-                      The record also supports the  ALJ's conclusion that            Oyola did not have a disabling mental condition.  In February            1985,  he was referred to the Bayamon Mental Health Center in            connection with his application for social security benefits.            The referral stated that Oyola  was "going through an intense            depressive  episode that began five months  ago," and that he            was   not   sleeping   well  and   had   been   sleepwalking.            Nevertheless, Oyola was not admitted because he was found not            to have a "mental disorder."  The report of his visit records            as  a "diagnostic  impression"  that a  neurological disorder            could be ruled out.  Although the report of a visit in August            1985 states that he had previously been diagnosed tentatively            as  having  a "personality  disorder"  (the  record does  not            include any  report stating this  diagnosis), at the  date of            the August visit he was found to be "in contact with reality"            and "oriented."   He was not  admitted for treatment  because            "no major psych. pathology"  was found.  In October  1986, he            visited  the  Mental  Health  Center  again,  complaining  of            sleeplessness and hallucinations.   Although he was  admitted            to receive treatment at  the Center as an outpatient  and the            examiner's "diagnostic impression" was  that Oyola might have            an "adjustment disorder" and a  "histrionic personality," the            record of  his visit stated  that he was  "logical, coherent,            [and] oriented."  At what appears to be his next appointment,            in January 1987,  he was reported as not mentioning "anything                                         -8-            that calls our attention."  Records for the same day from the            Department  of  Mental  Health   state  that  he  missed  his            appointment there.   Some days  later he visited  the Bayamon            Mental Health Center without an appointment, complaining that            he  had  had hallucinations,  heard  voices,  and had  memory            problems.   He stated that his medication helped him "but not            enough."   The record states  that he was "logical, coherent,            oriented,  approachable, communicative", and  does not appear            to make any  change in  medication.  Although  the record  of            that visit shows that an appointment for April 1987 was made,            the record contains no report of that visit or any subsequent            visit  by Oyola to the Center,  nor is there any other record            of  any  other treatment  of  Oyola for  mental  or emotional            problems.  Accordingly, it appears that Oyola did not receive            treatment  at  the  Mental  Health  Center  or  at any  other            facility  after January  1987.   Thus, for  approximately the            last  two years of the coverage period (and the entire period            to  be adjudicated  here), he  received no treatment  for his            alleged nervous  condition.   Therefore, the record  provides            substantial evidence for the  ALJ's conclusion that Oyola did            not suffer from a disabling mental condition.                        II.  Reliance on the Grid                           ____________________                      After determining that Oyola could  perform medium,            unskilled  work  in  which he  would  not  have  to climb  or            balance, drive or be exposed to unprotected heights or moving                                         -9-            machinery, the ALJ concluded that Oyola could not perform his            previous  heavy  work  which  exposed  him  to  a  "hazardous            environment."4   Accordingly, the  ALJ noted that  the burden            of proof shifted  to the  Secretary to show  that there  were            other jobs  existing in  significant numbers in  the national            economy  which he  could  perform, given  his exertional  and            nonexertional   impairments,   age,   education    and   work            experience.   He found that Rule 203.25 of the Grid indicated            that Oyola  could  make a  successful  vocational  adjustment            because he  was a younger individual  with marginal education            who  could  readjust to  medium  unskilled work  activities.5                                            ____________________            4.  The ALJ  does not explain what  hazards Oyola encountered            in  his previous  jobs, but  the record  shows that  his most            recent job involved  work with a  machine called a  "stacker"            and that an earlier job may have entailed some driving of the            trucks which it was his job to load.            5.  The  ALJ's  finding that  Oyola  met  those criteria  was            supported  by  substantial   evidence.    Based  on   Oyola's            testimony as to his age at the hearing, Oyola would have been            40 years old or  younger when his coverage expired,  and thus            was a  "younger  individual."   See 20  C.F.R.    404.1563(b)                                            ___            ("[i]f you are  under age  50, we generally  do not  consider            that  your age will seriously affect your ability to adapt to            a  new work  situation.").   Since Oyola  had finished  fifth            grade,  his  education was  "limited or  less."   See  id.                                                                 ________            404.1564(b)(2), (3)  (a limited education is  one between the            seventh and  eleventh grades;  a marginal education  would be            formal  schooling to the sixth grade level).  In his previous            jobs, Oyola loaded and unloaded pipes and helped dig holes in            which to lay them; he cleaned gasoline  tanks, washed trucks,            painted  gasoline pipes,  and stacked  drums; and  he lifted,            moved and stacked blocks, using his hands, wheelbarrows and a            stacking machine, and also  performed maintenance work.  This            work would appear to be unskilled work, as  found by the ALJ.            Cf.  id.   404.1568(a) (unskilled work  requires little or no            ________            judgment to do simple  duties that can be learned  in a short            time on the  job, e.g., handling, feeding and offbearing, and                                         -10-            Without the aid  of vocational testimony,  the ALJ used  Rule            203.25 as a  "framework" for his decision and  concluded that            Oyola was  not disabled  because his  "capacity for  the full            range of medium work was not significantly compromised by his            nonexertional  conditions prior  to  the  expiration  of  his            coverage."  As we  noted in Ortiz v. Secretary of  Health and                                        _____    ________________________            Human  Services, 890 F.2d 520,  524 n.4 (1st  Cir. 1989) (per            _______________            curiam), because the ALJ failed to take vocational testimony,            he is deemed to have  relied exclusively on the Grid to  show            that  jobs that  Oyola could  perform existed  in significant            numbers in the national economy.                      Oyola  contends  that  the  ALJ  erred  in  relying            exclusively on the  Grid.  He  argues that his  nonexertional            limitations  significantly compromised his  ability to engage            in the full range of medium work, so that the ALJ should have            consulted a vocational  expert before finding that he was not            disabled.  Although Oyola's argument has merit and this issue            is a close one, we find that, under the circumstances of this            case, it  is not necessary to  remand to the ALJ  to take the            testimony of a vocational expert.                                                ____________________            machine tending).   Although the ALJ  found that Oyola  could            not speak  English and  the inability  to  speak English  may            point to  disability for some individuals  at some exertional            levels,  an ability to speak  English is not  relevant to the            disability determination  in Table 3  of the  Grid, in  which            Rule 203.25  is located.   See 20 C.F.R.  Pt. 404, Supbt.  P,                                       ___            App. 2,   203.00 & Table 3.                                         -11-                      In Ortiz, supra,  we stated  that an  ALJ need  not                         _____  _____            consult   vocational   experts   if   he    determines   that            nonexertional  limitations,  even  significant ones,  do  not            significantly compromise  the full  range of work  a claimant            may be expected to perform  at the relevant exertional level.            See id.  at 524 ("If  a non-strength impairment,  even though            ___ ___            considered significant,  has the  effect only of  reducing [a            claimant's]  occupational base  marginally, the  Grid remains            highly relevant and can  be relied on exclusively to  yield a            finding as to disability.") (footnote omitted).   At the same            time,  we stated  that "the  more  that occupational  base is            reduced by  a nonexertional  impairment, the less  applicable            are the factual predicates underlying the Grid rules, and the            greater is the need for vocational evidence."  Id. at 524-25.                                                           ___                      In determining whether  a nonexertional  limitation            significantly  compromises the  occupational  base,  we  have            sometimes  analyzed the  severity  of the  medical  condition            causing  the nonexertional  limitation.6    See,  e.g., Perez                                                        ___   ____  _____            Torres v. Secretary  of Health and  Human Services, 890  F.2d            ______    ________________________________________            1251, 1254-55 (1st Cir. 1989) (per curiam).  If  we use  this            same   analysis  here,   we  would   conclude  that   Oyola's                                            ____________________            6.  The  ALJ appears  to have  taken this  approach.   On the            basis of  his discussion of  the severity of  Oyola's alleged            impairments,  he  concluded,  without  further  support, that            Oyola's "capacity for the  full range of medium work  was not            significantly  compromised  by his  non-exertional conditions            prior  to the expiration of  his coverage."   See Finding No.                                                          ___            12.                                         -12-            nonexertional  impairments did not significantly diminish his            ability  to  perform the  full range  of  work at  the medium            exertional  level.    Before  his  coverage  expired,   Oyola            apparently received  emergency treatment  for  symptoms of  a            possible  seizure disorder  only  twice --  in October  1983,            where  the  provisional  diagnosis  ruled  out  an  epileptic            seizure,   and  in   September  1987,   where  epilepsy   was            provisionally diagnosed.  Although Oyola had reported that he            had suffered  epileptic seizures since childhood  and that he            had  been "suspended" from work  due to the  seizures, he had            also  reported  that  he  had  never  been  treated  for  the            seizures.  In October 1985  Oyola's seizures were reported to            be  under control,  although he  had lost  his anticonvulsant            medication and had  not been  taking it.   Lay statements  by            Oyola's sister and sister-in-law in 1989 indicated that Oyola            suffered  seizures once a month,  but that the seizures could            be controlled for periods of up to  four months, and that the            most  recent  seizures observed  were  in  April, August  and            September of 1989.   The medical  records and lay  statements            show that Oyola's  epileptic condition did not meet  or equal            the criteria  in the  Listings, and  Oyola has  conceded that            fact.   See 20 C.F.R., Pt.  404, Subpt. P, App.  1,    11.02,                    ___            11.03  (to be  presumptively disabled  under the  Listings, a            claimant must suffer major seizures more frequently than once            a month, and minor seizures more frequently than once weekly,                                         -13-            despite  following  prescribed treatment  for at  least three            months).     Based  on the  record  of treatment  alone,  and            emphasizing that Oyola received  no treatment for epilepsy at            all in 1988, the period to be adjudicated here, we would have            to  conclude that  Oyola's epilepsy  did not  manifest itself            frequently enough to significantly  compromise his ability to            engage   in  the  full  range   of  medium  work  during  the            adjudicatory period.                      Given the  nature of the  nonexertional limitations            in  this case, however, we are reluctant to rely on that kind            of analysis.   In Perez  Torres and other  cases, see,  e.g.,                              _____________                   ___   ____            Heggarty v.  Sullivan, 947 F.2d  990, 996-97 (1st  Cir. 1991)            ________     ________            (per curiam) (evaluating the claimant's poor manual dexterity            in light  of the importance of  fine motor skills to  jobs at            the sedentary  exertional level);  Ortiz, supra, 890  F.2d at                                               _____  _____            525  (evaluating the claimant's  bending restriction in light            of  the bending  requirements for  light work),  the specific            nonexertional   limitations   in   question  diminished   the            claimant's ability  to perform  certain kinds of  physical or            mental tasks.   As a  result, analyzing the  severity of  the            physical or mental condition giving rise to the nonexertional            limitation   truly   captured  the   degree   to   which  the            nonexertional  limitation affected the  claimant's ability to            perform the  full range of  work at the  requisite exertional            level.     In  contrast,  Oyola's  nonexertional  limitations                                         -14-            consist of environmental restrictions which preclude him from            performing  whole categories of jobs -- he cannot perform any            job  that requires him to drive, to be near moving machinery,            or to be exposed to unprotected heights (which, for  purposes            of our discussion here, we find subsumes Oyola's climbing and            balancing limitations).7                      Under  these circumstances,  we  believe  that  the            better   way  to  determine   whether  Oyola's  nonexertional            limitations significantly reduce  his occupational base would            be  to attempt  to  quantify in  some  way the  reduction  in            Oyola's   occupational  base  caused   by  his  environmental            limitations.   See, e.g., Gagnon  v. Secretary of  Health and                           ___  ____  ______     ________________________            Human Services, 666 F.2d 662, 666 (1st Cir. 1981)  (remanding            ______________            because  the   ALJ  failed   to  consider   whether  Gagnon's            nonexertional   limitations,  which   included  environmental            restrictions, limited  the number of jobs  he could perform).                                            ____________________            7.  Oyola's   climbing   and   balancing    limitations   are            essentially equivalent to  the environmental restriction that            he not be exposed to unprotected heights.  The conclusions of            Drs. Marxuach and  Hernandez regarding those limitations  are            supported by the record only to the extent that they are held            to derive from  Oyola's epileptic condition.  That  is, there            is  no evidence in the  record that, physically, Oyola cannot            climb or balance.  Oyola's epileptic condition would create a            problem  for him in climbing and balancing terms only when he            actually suffers a seizure while climbing to or balancing  at            heights.    Consequently,  we  treat   those  limitations  as            subsumed  in the  requirement that  Oyola not  be exposed  to            unprotected   heights.    If   only  climbing  and  balancing            restrictions  based  on   Oyola's  physical  capacities  were            present  here, the  Perez Torres  type  of analysis  would be                                _____ ______            adequate.                                         -15-            This approach  basically reflects  the approach taken  in the            Social  Security  Rulings  discussed  below,  which  consider            specific  nonexertional limitations  and,  at least  for some            restrictions,  state  whether few  or  many jobs  at  a given            exertional level are  affected by those limitations.    Other            circuits also appear to take a more quantitative  approach in            determining  the effect  of environmental  restrictions on  a            claimant's occupational base.   See, e.g., Allen v. Secretary                                            ___  ____  _____    _________            of Health and Human  Services, 726 F.2d 1470, 1472  (9th Cir.            _____________________________            1984) (remanding because there was no  evidence in the record            that  there were  a  "significant number  of sedentary  jobs"            which the claimant could perform  despite his ability to work            only in environments free of respiratory irritants); Asher v.                                                                 _____            Bowen,  837  F.2d  825,  827-28 (8th  Cir.  1988)  (remanding            _____            because  the  ALJ  could  not  assume  that  the majority  of            unskilled  sedentary  jobs  took  place  in a  pollution-free            environment in  light of regulations  and caselaw  suggesting            that 85% of  such jobs  are in machine  trades and  benchwork            categories   often   involving   exposure    to   respiratory            irritants);  Ellison v. Sullivan, 921 F.2d 816, 820 (8th Cir.                         _______    ________            1990) (the  reduction in  the claimant's  functional capacity            for sedentary work  because of his environmental  restriction            was  significant because  it  rendered the  claimant able  to            perform  only  half  the  jobs  in  the  occupational  base);            Zalewski v. Heckler, 760  F.2d 160, 165 (7th Cir.  1985) (the            ________    _______                                         -16-            claimant's  antisocial  personality  did   not  significantly            affect his capacity to  do sedentary work because regulations            indicated  that 85% of such  jobs were in  machine trades and            benchwork  categories that would not require much interaction            with others).                      In  the absence  of other  helpful measures  of the            number  of jobs Oyola is  precluded from performing given his            restrictions,  we  turn to  the  assessments  offered in  the            Social Security Rulings.  Ruling 83-14 is the most applicable            because  it  discusses  cases like  this  one  in which  both            exertional and nonexertional  limitations exist.   The Ruling            states that  "[r]elatively few  jobs in the  national economy            require  ascending  or descending  ladders  and scaffolding."            See SSR  83-14, reprinted in [Rulings  1983-91] West's Social            ___             ____________            Security  Reprinting  Service,   at  43.8     Although   that            statement applies to the larger job base existing for work at            all exertional levels, the Ruling  also makes clear that  the            ___            effect of  that restriction on  the occupational base  at the            medium exertional level is insignificant:                      In jobs at the  medium level of exertion,                      there  is more  likelihood than  in light                      work that such factors  as the ability to                      ascend    or    descend    ladders    and                      scaffolding, kneel, and  crawl will be  a                                            ____________________            8.  The "ascending  or  descending ladders  and  scaffolding"            restriction  reflects  the  climbing  restriction  placed  on            Oyola.  The residual functional capacity forms filled  out by            Drs.  Marxuach   and  Hernandez  show   climbing  to  involve            "ramp/stairs" and "ladder/rope/scaffolds."                                         -17-                      part of the  work requirement.   However,                      limitations of these activities would not                      significantly  affect   the  occupational                      base.             Thus, the  Ruling suggests that a  climbing restriction would            not affect a  significant number  of jobs, and  so we  assume            that  Oyola   would  not  be  precluded   from  performing  a            significant  number  of  jobs  by  the  unprotected   heights            restriction.    Since it  is  unclear,  however, how  Oyola's            additional restrictions against driving and being near moving            machinery would affect his  occupational base, ultimately the            Ruling  does  not  substantiate  the  ALJ's  conclusion  that            Oyola's  restrictions  did   not  significantly  reduce   his            occupational base.9                                            ____________________            9.  Ruling 85-15,  discussed next, also  discusses a climbing            and  balancing restriction,  stating that:   "Limitations  on            climbing  and  balancing  can  have varying  effects  on  the            occupational base, depending on  the degree of limitation and            the type of job. . . . These activities are  required more in            some jobs  than in others, and  they may be  critical in some            occupations.  Where a person has some  limitation in climbing                                             ________________            and balancing and  it is  the only limitation,  it would  not                                          _______________            ordinarily have  a significant impact  on the broad  world of            work."    (Emphasis added.)   Like Ruling  83-14, this Ruling            suggests   that  Oyola's  restriction  against  climbing  and            balancing  --  equated  here  with  the  unprotected  heights            restriction  --  would  not  significantly  diminish  Oyola's            occupational  base, but it is  not dispositive.  First, Oyola            does  not just have "some limitation" in his ability to climb            and  balance,   but  is  completely  prohibited   from  those            activities.   Second, Ruling 85-15 applies  only to claimants            with no  exertional impairments.  Thus, its starting point is                 __  __________ ___________            the  larger  universe  of  jobs existing  at  all  exertional            levels.   A  prohibition against  climbing and  balancing may            well implicate a smaller percentage of that occupational base            than it  would the  smaller initial base  of jobs  comprising            work at the medium level of exertion.                                         -18-                      The Secretary points to Social  Security Ruling 85-            15 as substantial evidence for the ALJ's finding that Oyola's            nonexertional limitations  do not significantly  diminish his            occupational base.  That Ruling states that "[a] person  with            a  seizure disorder  who  is restricted  only  from being  on            unprotected elevations and near dangerous moving machinery is            an example  of someone  whose environmental  restriction does            not  have a  significant effect  on work  that exists  at all            exertional  levels."   See SSR  85-15, reprinted  in [Rulings                                   ___             _________  __            1983-91] West's  Social Security Reporting  Service, at  351.            As  Oyola  points out,  this  statement  does  not take  into            account  his additional  restriction against  driving.10   In            this connection,  however, Ruling 83-10, which  discusses the            Grid, is relevant.   That Ruling defines medium work  in part            as follows:                         A  full range  of  medium  work  requires                      standing or  walking, off  and on,  for a                      total of  approximately 6 hours  in an 8-                      hour  workday  in   order  to  meet   the                      requirements   of  frequent   lifting  or                      carrying  objects  weighing   up  to   25                      pounds.   As in  light work, sitting  may                      occur intermittently during the remaining                      time. . . . However, there are relatively                      few occupations in  the national  economy                      which  require  exertion   in  terms   of                                            ____________________            10.  And,  as noted  in  the preceding  footnote, the  Ruling            applies to the larger base of jobs existing at all exertional            levels,  rather than the smaller base of jobs existing at the            medium exertional level, so that the  effect of a restriction            on  unprotected  elevations  and moving  machinery  might  be            insignificant   for  jobs   existing   at  all   levels,  yet            significant for jobs only at the medium exertional level.                                         -19-                      weights that must be  lifted at times . .                      .  but  are   performed  primarily  in  a                      sitting position, e.g., taxi  driver, bus                      driver,     and     tank-truck     driver                      (semiskilled jobs).  In most medium jobs,                      being  on  one's  feet for  most  of  the                      workday is critical.              SSR  83-10,  reprinted  in  [Ruling  1983-91]  West's  Social                         _________  __            Security  Reporting  Service,  at  30.    Thus,  this  Ruling            indicates that  there  are  fairly few  jobs  at  the  medium            exertional level which require the worker to  drive, and that            most  medium jobs  entail standing  for most of  the workday.            Moreover, the examples the Ruling gives  of driving jobs that            exist at the medium exertional level are all semiskilled jobs                                                         ___________            which would not  be included in Oyola's  occupational base in            any event since  the Grid  Rule in question  applies only  to            unskilled  work.11    Once   again,  however,  although  this            Ruling suggests that the  driving restriction by itself would            reduce Oyola's occupational base  only marginally, if at all,            it gives no indication what effect that  restriction has when            combined  with  Oyola's  other   environmental  restrictions.            Therefore, we conclude that  the Rulings indicate or strongly            suggest   only   that  Oyola's   environmental  restrictions,            individually, would not significantly reduce his occupational            base.  However, they do not support the ALJ's conclusion that                                            ____________________            11.  See SSR 83-10,  supra, at  27 ("The RFC  addressed in  a                 ___             _____            [Grid] rule establishes the  presence of an occupational base            that  is limited  to  and  includes  a  full  range  (all  or            substantially all)  of the unskilled  occupations existing at                                       _________            the exertional level in question.") (Emphasis added.)                                         -20-            Oyola's combined limitations  would not significantly  reduce            his occupational base.                      Our conclusion  means that  the ALJ could  not rely            exclusively on the Grid to support his decision that  Oyola's            nonexertional impairments  did  not significantly  erode  his            occupational base.  It  does not mean, however, that  the ALJ            was  required  to  consult  a  vocational  expert  to  obtain            evidence  on that  point.   The Rulings  make clear  that, in            "relatively simple" cases, an  ALJ may consult the vocational            publications listed at 20  C.F.R.    404.1566 and  416.966 to            determine  the  extent  to  which   additional  nonexertional            limitations not  considered in the Rulings  affect a person's            occupational base.  See  SSR 83-14, supra, at 45;  SSR 85-15,                                ___             _____            supra, at 346;  SSR 83-12, supra, at 37; see  also SSR 85-15,            _____                      _____         ___  ____            supra,  at  352 (where  the  environmental  restriction falls            _____            between "very  little" and "excessive," an  ALJ would usually            need  to  consult  occupational  reference  materials  or the                                                                   __            services  of a  vocational specialist) (emphasis  added); cf.                                                                      ___            Gray  v. Heckler, 760 F.2d  369, 371-72 (1st  Cir. 1985) (per            ____     _______            curiam)  (although   the  court   notes  that  it   would  be            "preferable" to elicit vocational  testimony to show that the            claimant could return to the "type" of work he had previously            performed,   the  court  approved   the  ALJ's   reliance  on            vocational publications to establish that fact).                                         -21-                      We think  that this  case is a  "relatively simple"            case  for two  reasons.  First,  although we do  not know the            combined  effect  which   Oyola's  particular   nonexertional            limitations  have  on  his  occupational  base,  the  Rulings            indicate or strongly suggest  that, individually, they  would            not   significantly  reduce   that  base.     Moreover,   the            unprotected  heights and  driving limitations  would probably            have very little effect  at all on the  number of jobs  Oyola                      ______            could perform at the medium exertional level.  See SSR 83-14,                                                           ___            supra, at 43 ("relatively few jobs . . . require ascending or            _____          __________ ___ ____            descending  ladders and  scaffolding") (emphasis  added); SSR            83-10,  supra,  at 30  ("relatively  few  occupations .  .  .                    _____            __________  ___  ___________            require  exertion [at  the  medium  level]  .  .  .  but  are            performed primarily in a sitting position, e.g., taxi driver,                                                       ____            etc.") (emphasis  added).  Accordingly, it  seems more likely            than  not  that,  when  combined with  the  moving  machinery            restriction,  those  nonexertional   impairments  would   not            significantly  erode  Oyola's  occupational base,  suggesting            that  this case should be classified as a "simple" case under            the Rulings.                      Second,   apart  from   the  question   of  Oyola's            nonexertional impairments, Rule 203.25 of the Grid would have            directed a conclusion of not  disabled because Oyola could be            ________            expected  to make  a  vocational adjustment  to medium  work.            That is  to say, Oyola's vocational  attributes fit precisely                                         -22-            the vocational criteria of the Rule -- that the persons as to            whom it would direct  a finding of not disabled  are "younger            individuals" whose  education is "limited or  less" and whose            previous work experience was "unskilled".  Consequently, this            case is certainly a "simpler" one than a case in which a Grid            Rule  should  not  be   applied  both  because  nonexertional                                             ____            limitations  exist  and  because  the  claimant's  vocational                                ___            profile  is different  than that  assumed by  the Rule.   Cf.                                                                      ___            Ortiz, supra, at 890 F.2d at 524 ("Whether by so invoking the            _____  _____            Grid as a 'framework,'  the Secretary can satisfy  his burden            under  step  five without  resorting  to vocational  evidence            depends on how closely the claimant's characteristics and the                       ___ _______            Grid  criteria   overlap.")  (emphasis   added).     In  this            connection,  we note  that  Oyola's  characteristics did  not            place him near the  disabled/not disabled dividing line under            the Grid rules.  See id. at 528; Rule 203.25.                             ___ ___                      Accordingly,  we   think  that  this   case  is   a            relatively  simple case, and that the vocational publications            listed  in the  regulations  may  substitute  for  vocational            expert  testimony to  establish that  specific jobs  exist in            significant numbers in the national economy which Oyola could            perform given his  restrictions.  The vocational  publication            relevant  to  this case  is  the  Dictionary of  Occupational                                              ___________________________            Titles published by the Department of Labor, which  is listed            ______            at 20 C.F.R.    404.1566(d)(1), 416.966(d)(1).                                         -23-                      The   record   contains  "Supplemental   Rationale"            reports  by two  disability examiners  -- Belen  Sampayo, who            denied Oyola's application initially, and Salvador Toro,  who            denied  Oyola's application  upon reconsideration.   Although            concluding   apparently  that   Oyola  could   perform  heavy            work,12  an  assumption that  does  not  affect our  analysis            here, Sampayo and  Toro each listed  three jobs described  in            the  Dictionary  of   Occupational  Titles  which  could   be                 _____________________________________            performed by  Oyola and which  they stated were  available in            the national economy, for a total of six such jobs:                           229.587-018    Ticketer (textile)                           369.687-018    Folder (laundry)                           795.687-014    Sample       mounter       (any            industry)13                           920.687-126    Marker (any industry)                           920.687-166    Shoe Packer (boot and shoe)                           920.687-178    Stenciler (any industry)                                            ____________________            12.  Sampayo and Toro both  used Grid Rule 204.00 as  a frame            of reference  for  their  decision.   That  Rule  applies  to            persons  who  can perform  heavy  work  despite their  severe            medically  determinable  impairments.    We  see  no  problem            arising out  of Sampayo's and Toro's and  the ALJ's different            evaluations  of   Oyola's  exertional  capacity.     The  ALJ            determined  that   Oyola's   alleged  pain   constituted   an            exertional impairment that reduced his functional capacity to            the medium exertional  level.   In doing so,  he relied  upon            Oyola's  testimony at  the  hearing, evidence  which was  not            before  Sampayo or Toro, who  made their decisions before the            hearing  on the  basis  of the  medical  records alone.    As            already  noted,   those  records   would  have   supported  a            conclusion that  Oyola did  not suffer pain  between February                                        ___            and  December 1988 to a  degree that would  have affected his            exertional abilities.            13.  The title given in the Dictionary of Occupational Titles                                        _________________________________            under this number  is "gluer," but "sample mounter"  is given            as an alternate title.                                           -24-                      The descriptions of those jobs in the Dictionary of                                                            _____________            Occupational Titles  are  consistent with  work  which  Oyola            ___________________            could   perform  given   his  exertional   and  nonexertional            restrictions.  See U.S. Department of Labor, I Dictionary  of                           ___                             ______________            Occupational Titles  (rev. ed.  1991), at  205, 266,  267; II            ___________________            Dictionary, at 842, 937, 938; App. B, C.  The jobs are all at            __________            the  "light"  exertional  level,   and  thus  within  Oyola's            exertional  capacity.  See 20 C.F.R., Pt. 404, Subpt. P, App.                                   ___            2, Rule 203.00(a) ("The functional capacity to perform medium            work includes  the functional capacity  to perform sedentary,            light,   and  medium   work.").    The   general  educational            development required  to perform the  jobs is low,  and would            appear to  be appropriate  in  light of  Oyola's fifth  grade            education.14   All  of the  jobs require  minimal retraining,                                            ____________________            14.  The  second lowest  reasoning level  is assigned  to the            ticketer, folder, marker,  and shoe packer jobs.   That level            would require  Oyola to "[a]pply commonsense understanding to            carry  out   detailed   but  uninvolved   written   or   oral            instructions" and  to "[d]eal  with problems involving  a few            concrete variables in or  from standardized situations."  The            lowest  reasoning level  applies  to the  sample mounter  and            stenciler  jobs,  and  requires  application  of "commonsense            understanding  to  carry   out  simple   one-  or   -two-step            instructions"  and  the  ability to  deal  with "standardized            situations with  occasional or  no variables  . .  . ."   The            lowest language  level is  assigned to  all but the  ticketer            job,  and would  require Oyola  to "[p]rint  simple sentences            containing subject, verb, and  object, and series of numbers,            names,  and  addresses", and  to  "[s]peak simple  sentences,            using normal word order,  and present and past tenses."   The            second  lowest  language  level   applies  to  the   ticketer            position,  and  would  require  Oyola  to  be  able  to  read            "adventure stories and comic books, . . .  [and] instructions            for  assembling  model  cars  and  airplanes",  to   "[w]rite            compound and complex sentences,"  and to "[s]peak clearly and                                         -25-            i.e., instruction beyond  a short demonstration, but  lasting            ____            no more than one month.   None of the jobs  requires climbing            and balancing or exposure to any hazards.15                      Only  one aspect  of  the job  descriptions in  the            Dictionary   of   Occupational   Titles    requires   further            _______________________________________            discussion.   The description for the  folder, sample mounter            and marker positions appear to require work with machines:  a            folder  "[m]ay" use  a "button-sewing-"  or "button-attaching            machine"; a  sample mounter  may apply adhesives  by "holding            material  against [a]  rotating  saturated brush,  or feeding                                            ____________________            distinctly  with .  . . correct  pronunciation,  .  . . using            present, perfect,  and  future  tenses."   All  of  the  jobs            require only the most rudimentary  mathematical skills, e.g.,            the  ability to add and  subtract only two  digit numbers, to            perform some multiplication and division, to use money and to            measure  with units  like the  cup, pint, quart,  inch, foot,            yard, ounce and pound.             15.  The Guide  for Occupational Exploration  ("GOE") numbers            given the jobs  in the Dictionary of Occupational  Titles are                                   __________________________________            cross-indexed  in   a  companion   volume  prepared  by   the            Department  of  Labor  entitled Selected  Characteristics  of                                            _____________________________            Occupations Defined in the  Dictionary of Occupational Titles            _____________________________________________________________            (1981), the  use of which we  approved in Gray, supra.   That                                                      ____  _____            volume classifies  the physical  demands of  jobs (sedentary,            light,  medium, etc.), and breaks jobs down into the types of            physical  activities  they entail.   All  of the  jobs listed            above are coded as "4", meaning that they  require "reaching,            handling,    fingering,    and/or    feeling."       Selected                                                                 ________            Characteristics, at 75, 210,  212-14; App. A, at 465-66.   (A            _______________            sample  mounter   is  also  required  to   have  good  visual            abilities.)  Id. at 210; App. A, at 466.  None of the jobs is                         ___            characterized  as  requiring  climbing  or  balancing.    The            Selected Characteristics volume also  describes environmental            ________________________            restrictions associated with  certain jobs.  Of  all the jobs            listed above,  only the folder position  has an environmental            restriction.  Coded  as "4", it  involves work in  a wet  and            humid environment, an environment  in which Oyola could work.            Id. at 212, 467, 479.            ___                                         -26-            part between saturated rollers";  and a marker "[m]ay"  use a            "tag  dispensing  machine"  to  attached  gummed   labels  to            merchandise.  However,  these "machines" do not  appear to be            the  kinds  of dangerous  moving  machines  which Oyola  must            avoid.  The sixth number in  each of the title numbers  given            in the  above list is  "7".  According  to Appendix B  of the            Dictionary  of Occupational  Titles, that  number means  that            ___________________________________            those jobs  require workers to use  "body members, handtools,            and/or  special devices  to work,  move, or carry  objects or            materials,"  whereas jobs  involving "machines  or equipment"            carry other numbers in  the sixth place.  See  II Dictionary,                                                      ___     __________            App. B, at 1005-07.   Consequently, the machines used  in the            folder, sample  mounter and marker jobs appear  to be hand-or            foot-operated  (e.g., like  a household  sewing machine  or a                            ____            grocery store price tag dispenser).  Thus, a worker suffering            a  seizure would not only  not be endangered  by the machine,            but most likely the machine itself would  stop operating once            the worker suffers a  seizure because his hand or  foot would            be  removed from the controls.  Cf. also Lizotte v. Secretary                                            ________________    _________            of Health and  Human Services,  654 F.2d 127,  130 (1st  Cir.            _____________________________            1981) (the  ALJ determined that  the claimant could  not work            around hazardous machinery, but would be able to perform  the            job of "marker machine operator in a shoe factory").                      Lest there be any  doubt, however, that the folder,            sample mounter  or marker positions would  be appropriate for                                         -27-            Oyola, we do  not rely  on those positions  in rendering  our            decision.   The remaining three jobs -- ticketer, shoe packer            and  stenciler --  do not  involve any  machinery, and  would            provide  ample   evidence  that   specific   jobs  exist   in            significant numbers in the national economy which Oyola could            perform.    See,  e.g.,  Lizotte,  supra,  654  F.2d  at  130                        __________   _______   _____            (affirming an ALJ  decision that the claimant could engage in            substantial gainful activity where  the decision was based on            vocational  expert testimony that  the claimant could perform            three  named  jobs); see  also  Arce Crespo  v.  Secretary of                                 ___  ____  ___________      ____________            Health and Human  Services, 831 F.2d 1, 3, 5  (1st Cir. 1987)            __________________________            (per  curiam)  (affirming  an ALJ  decision  denying benefits            where the  decision was based on  vocational expert testimony            as  to  four  jobs  which the  claimant  could  perform;  the            vocational expert  relied in part  on the description  of the            jobs found in the Dictionary of Occupational Titles).                               _________________________________                      Although the ALJ did  not specifically refer to the            jobs  listed  by disability  examiners  Sampayo  and Toro  to            support  his decision, at the outset of his opinion he stated            that  he   had  "carefully   considered  all   the  documents            identified in the  record as exhibits, . . .  ."  Exhibit C-8            includes the "Supplemental  Rationale" reports listing  those            jobs.  In Geoffrey v. Secretary of Health and Human Services,                      ________    ______________________________________            663  F.2d 315 (1st Cir. 1981), we considered an argument that            the ALJ should  have listed  specific jobs to  show that  the                                         -28-            claimant could perform substantial  gainful work.  In dictum,            we noted  that  the record  contained  the names  of  several            occupations  which the  claimant  could perform.   Under  the            circumstances, we saw  no need  for the ALJ  to repeat  those            occupations  in his  decision,  but we  also  said that  they            represented "a fair  example of  the type of  light work  the            records show  Geoffrey can  engage in"  and that the  listing            "demonstrate[d]  . . . that the record is not entirely devoid            of evidence in this respect."   Id. at 319 & n. 8.   Thus, we                                            ___            suggested that evidence of specific jobs  in the record could            be given  some weight  upon appeal  even if  the ALJ  had not            relied  upon,  or  even   mentioned,  that  evidence  in  his            decision.   Here,  at least, the  ALJ made clear  that he had            reviewed the disability examiners' reports, and may also have            been  influenced  by  them  in  finding  that  Oyola was  not            disabled from  engaging in substantial gainful  work, even if            he did not refer to them specifically.                      Obviously, it would be preferable to require an ALJ            to  describe  specifically  all evidence  which  supports his            decision that  a claimant  is not disabled  from engaging  in            substantial  gainful  employment.   Nevertheless,  under  the            circumstances  present here,16  it makes  no sense  to remand                                            ____________________            16.  Given the evidence in this  case we would have sustained            a decision by the ALJ rendered consistent with the regulation            at 20 C.F.R., Pt. 404, Subpt.  P, App. 2,   200.00(e)(2).  In            that  regulation the  Secretary  provides for  the  following            analytical  procedure for  determining whether  an individual                                         -29-            solely  to  call a  vocational expert  to  testify as  to the            existence  of jobs that Oyola may perform when at least three            appropriate jobs are already named in the record.  Therefore,            we find that the Secretary has met his burden of proving that            Oyola's  exertional  and  nonexertional  impairments  did not                                            ____________________            with  both   exertional  and  nonexertional   impairments  is            disabled:    (1)  The  decisionmaker is  to  see  whether the            individual is disabled  based on strength limitations  alone.            Here, Oyola  was not disabled because he retained the ability            to do medium work.  (2) The  decisionmaker is to consider the            relevant  Grid Rule as a "framework."  Rule 203.25 being used            as a  framework, Oyola's residual  functional capacity,  age,            education and work  experience all indicated that he  was not            disabled.  (3) Finally, the decisionmaker is to consider "all            of  the relevant  facts  in the  case"  as described  in  the            regulations, including the adjudicative weight  accorded such            factors.    Here,  the  evidence  showed  that  only  Oyola's            epilepsy  and  pain  could   be  characterized  as  medically            determinable severe  impairments, but that  his epilepsy  did            not meet the criteria of the Listings, indicating that he was            not  per se  disabled  from engaging  in substantial  gainful            employment.   See 20 C.F.R.   404.1525(a).  The evidence also                          ___            showed  that  he  had   not  sought  or  followed  consistent            treatment  for his conditions,  important failures  under the            regulations  and case law.  See id.   404.1530; Irlanda Ortiz                                        _______             _____________            v.  Secretary of Health and Human Services, 955 F.2d 765, 770                ______________________________________            (1st  Cir. 1991)  (per curiam)  (lack of  sustained treatment            bolsters  decision  that  the  claimant  was  not  disabled);            Tsarelka v. Secretary of Health and  Human Services, 842 F.2d            ________    _______________________________________            529, 534  (1st Cir. 1988)  (per curiam) (the  claimant should            have secured treatment to show that her ability to work could            not  be  restored).   In  addition, the  Rulings  indicate or            strongly  suggest  that, individually,  Oyola's nonexertional            limitations would not significantly  affect the full range of            medium  work  he  could   perform.    Those  Rulings  further            indicated  that,  here,  the  Secretary  could  rely  on  the            Dictionary of  Occupational  Titles for  vocational  evidence            ___________________________________            that  specific  jobs which  Oyola  could  perform existed  in            significant numbers  in the national economy,  and the record            contained specific  job  titles, whose  descriptions  matched            Oyola's exertional and nonexertional limitations.                                         -30-            disable him from engaging in  substantial gainful employment.                      The decision of the district court is affirmed.                                                             ________                                         -31-
