
USCA1 Opinion

	




          September 21, 1992    [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ___________________          No. 92-1250                                   RAUL RODRIGUEZ,                                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. Jose Antonio Fuste, U.S. District Judge]                                              ___________________                                 ___________________                                        Before                                 Breyer, Chief Judge,                                         ___________                           Campbell, Senior Circuit Judge,                                     ____________________                               and Cyr, Circuit Judge.                                        _____________                                 ___________________               Salvador Medina De La Cruz on brief for appellant.               __________________________               Daniel F.  Lopez Romo, United States  Attorney, Jose Vazquez               _____________________                           ____________          Garcia, Assistant  United States Attorney, and  Thomas D. Ramsey,          ______                                          ________________          Assistant Regional Counsel,  Region I, Department  of Health  and          Human Services.                                  __________________                                  __________________                 Per  Curiam.   Plaintiff appeals  from a  district court                 ___________            decision  affirming  a final  decision  of  the Secretary  of            Health  and Human  Services that  appellant was  not disabled            under the  Social Security Act, 42 U.S.C.     416(i), 423(d),            for  purposes  of  obtaining  disability  insurance benefits.            Appellant  applied for  disability insurance  benefits for  a            back condition dating from  1981 which allegedly rendered him            unable  to work.   The administrative law  judge (ALJ) denied            benefits, concluding  that, while appellant's  impairment was            severe enough to  prevent him  from continuing to  work as  a            truck  driver, he  had  the residual  functional capacity  to            engage in light work.  Because the record as a whole supports            this  finding, we  affirm.    Appellant  raises a  number  of            objections  to  the  ALJ's  decision, which  we  consider  in            turn.1                   Appellant  first  claims  that  the  ALJ's  decision  is            inconsistent  with  testimony  by  a  vocational  expert that            appellant could  not engage in any  substantial gainful work.            Appellant  argues that  the medical  evidence shows  that his            back pain is at least frequent and that the vocational expert            testified  that frequent  pain would  prevent appellant  from            performing  any  substantial  gainful  work.   Actually,  the                                            ____________________            1.  The  ALJ also determined  that appellant's mild dysthymic            mood  disorder did  not render  appellant disabled.   Because            appellant  does  not contest  that  finding,  we confine  our            discussion to issues relating to appellant's back condition.                                         -2-            vocational expert testified that appellant would be unable to            perform any work  in the  national economy if  the pain  were            both  frequent and  severe.   The  ALJ  basically found  that                           ___  ______            appellant's  pain  was  not  severe when  he  concluded  that            appellant's  back   condition,  though  painful,  was  not  a            "disabling painful condition" and that appellant's allegation            of pain  was credible  only to the  extent that  he could  no            longer  perform  heavy  or   medium  work.    Therefore,  the            condition of the hypothetical  posed to the vocational expert            that  the  pain  be  severe  was  not  met,  and  appellant's            objection is not  well taken.   See Lizotte  v. Secretary  of                                            ___________     _____________            Health  and Human Services, 654 F.2d 127, 131 (1st Cir. 1981)            __________________________            (affirming the  ALJ's determination  that the  claimant could            perform certain  tasks where, although the  vocational expert            had determined that the claimant could not perform such tasks            if certain restrictions in his capabilities were assumed, the            ALJ had found that the assumed restrictions  did not actually            exist).                 Next,  appellant states  that  specific  clinical  tests            showed that he had  very limited residual functional capacity            to stand, walk or sit.  The clinical tests to which appellant            refers measured the difficulty or  pain appellant encountered            when flexing  certain  joints.   Appellant's medical  records            indicate  that at  times appellant  scored positive  on those            tests  (at other times, the tests were negative).  Nowhere do                                         -3-            appellant's treating doctors indicate that  a positive result            would mean that appellant's residual functional  capacity was            limited,  nor  do  they   appear  to  have  recommended  that            appellant  limit  his  activities   in  any  way.    Although            appellant  points   out   that  the   Secretary's   examining            physician,  Dr.   Garayalde,  observed  that   appellant  had            difficulty  dressing and undressing himself, that observation            is not controlling  since it described appellant's  condition            as of the year after appellant's eligibility for benefits had            expired.    The only  evidence  in lay  terms  of appellant's            functional capacity for the relevant period was provided by a            residual functional  capacity assessment  form filled out  by            Dr. Hernandez, a medical consultant to the Secretary.   Based            on his  review of  medical records,2 Dr.  Hernandez concluded                                            ____________________            2.  Dr.  Hernandez's assessment,  made in January  1988, does            not state specifically  that he  reviewed appellant's  entire            medical record.  The assessment form indicated, however, that            his assessment reflected appellant's condition as of December            1986,  which would  have required  his review  of appellant's            medical records  as of that time.   Dr. Hernandez's statement            of the  medical findings  on which  he  based his  assessment            mirrors  primarily  language found  in  Dr. Garayalde's  1987            report, but also reflects  language only found in appellant's            other  medical records.  (He uses the term "PVM spasm", which            does not appear in Dr. Garayalde's report; one of appellant's            earlier medical records uses the term "paravertebral spasm.")            Moreover,  the Secretary's  brief on  appeal states  that Dr.            Hernandez reviewed appellant's "medical record" in making his            assessment, and the  Secretary's initial denial  of benefits,            which relied on Dr. Hernandez's  residual functional capacity            assessment,  indicated that both  appellant's medical records            for  1982-87 and  Dr. Garayalde's  report were  considered in            reaching that determination.  We conclude that there is ample            evidence  here   to  believe  that   Dr.  Hernandez  reviewed            appellant's  entire medical  record  in  making his  residual                                         -4-            that  appellant's strength  was somewhat  limited:   he could            lift or  carry up to 20  pounds and could  frequently lift or            carry 10 pounds; he could stand,  walk or sit about six hours            in  an  eight-hour  day; and  he  could  push  or pull  light            weights.   Dr. Hernandez also found  that, although appellant            could  stoop  only  occasionally, he  could  climb,  balance,            kneel, crouch, crawl, reach, handle, and engage in other fine            motor  activities  with frequency.   Here,  where appellant's            treating physicians provided  no residual functional capacity            assessment, the ALJ was  entitled to rely on  Dr. Hernandez's            uncontradicted  assessment in determining  that appellant had            the  residual  functional  capacity to  perform  light work.3            Rodriguez Pagan  v. Secretary  of Health and  Human Services,            _______________     ________________________________________            819 F.2d 1, 2-3 (1st Cir.  1987), cert. denied, 484 U.S. 1012                                              ____________            (1988); cf.  Berrios Lopez v.  Secretary of Health  and Human                    __________________     ______________________________            Services, 951  F.2d 427,  430-32 (1st Cir.  1991) (discussing            ________                                            ____________________            functional capacity  assessment.   We note, however,  that we            would  not assign  much evidentiary  weight to  an assessment            that did not take  into account a claimant's entire  relevant            medical  record, especially  where, as here,  the Secretary's            own  medical  assessments  were  based   on  examinations  or            evaluations   conducted  fairly   long  after   the  relevant            disability period.                3.  Dr. Hernandez's residual  functional capacity  assessment            also  has  evidentiary  value  because  he  appears  to  have            reviewed appellant's medical  status carefully before  making            his assessment.  Correspondence  in the record indicates that            Dr. Hernandez asked Dr. Garayalde to provide an evaluation of            appellant's muscle weakness, information which was not in Dr.            Garayalde's initial report and which Dr. Hernandez stated was            necessary   before  he  could   assess  appellant's  residual            functional capacity.                                          -5-            the  circumstances  under  which an  ALJ  may  credit a  non-            examining,   non-testifying  medical   consultant's  residual            functional  capacity assessment  over a  treating physician's            assessment);  Arroyo  v.   Secretary  of  Health   and  Human                          ______       __________________________________            Services,  932  F.2d  82,  87-88 (1st  Cir.  1991)  (the  ALJ            ________            supportably  relied  on   the  residual  functional  capacity            assessment  of  non-examining  consultants   though  treating            physicians  had  expressed contrary  opinions).    Indeed, we            would  not   have  permitted  the  ALJ  to  make  a  residual            functional capacity  determination on  the basis of  raw test            data under  the circumstances  present here.   See Rosado  v.                                                           ___ ______            Secretary of Health and Human  Services, 807 F.2d 292, 293-94            _______________________________________            (1st Cir. 1986) (the  ALJ could not draw his  own conclusions            about a claimant's functional  capacity from raw medical data            not  analyzed by  a  physician in  functional  terms where  a            contrary  medical report by  an examining physician described            the claimant's functional capacity in relevant, nonconclusory            detail); Berrios  v. Secretary of Health  and Human Services,                     _______     _______________________________________            796  F.2d 574, 576 (1st Cir. 1986) (the Appeals Council could            not base its denial of benefits on its interpretation of raw,            technical  data  contained  in  one medical  report  where  a            contrary   report  interpreted  medical  data  in  functional            terms).                 For  the same  reason,  appellant's objections  that  he            could not perform light work requiring standing for six hours                                         -6-            a  day and that the ALJ needed  a medical advisor to help him            interpret appellant's medical record  are without merit.  Dr.            Hernandez acted essentially as medical advisor, analyzing the            raw medical data to determine appellant's residual functional            capacity.  No other physician analyzed appellant's functional            capacity.   Thus, Dr.  Hernandez's assessment  that appellant            could  perform light  work  was uncontradicted  by any  other                                        _________________________________            professional testimony.  Furthermore, the ALJ determined that            ______________________            appellant's testimony  that he could not engage in even light            work  was not  fully credible.   Appellant's  medical records            showed that appellant sometimes  went for many months without            seeking  medical  treatment  for   his  condition  and   that            conservative intervention (medication  and physical  therapy)            improved his condition when  it became painful.  In  light of            this  evidence,  the  ALJ's  decision  not  to  fully  credit            appellant's testimony as to the intensity of his pain and its            effect  on  his  physical  capacity  was  reasonable  and  is            entitled to our deference.  See Irlanda Ortiz v. Secretary of                                        _________________    ____________            Health  and Human Services, 955 F.2d 765, 769 (1st Cir. 1991)            __________________________            (although appellant had an  objective medical impairment that            could  reasonably  be  expected  to  produce  pain,  the  ALJ            supportably decided that  the claimant's complaints were  not            credible   to  the  extent   alleged  since  medical  records            indicated,  among  other  things,  that  at  times claimant's            condition improved  and that in some  years claimant received                                         -7-            no treatment at all for his back condition).  Appellant  also            claims that the ALJ  should not have "mentioned" or  "used in            argument" the  fact that  appellant was reluctant  to undergo            surgery or  further physical  therapy.  Appellant  points out            that  Social Security  Ruling 82-59  permits  a determination            that a  claimant has  not followed prescribed  treatment that            could remove  the alleged disability only  after the claimant            is notified that refusing treatment could result  in the loss            of disability benefits and is given an opportunity to undergo            treatment.4   Appellant argues that he was not so informed or            given an  opportunity for  treatment.  Although  the ALJ  did            mention the  appellant's reluctance to undergo  surgery or to            continue physical therapy when describing appellant's medical            history,  he did  not  "find" that  appellant  had failed  to            follow prescribed treatment, nor did he base his finding that            appellant  was  not  disabled  on  that  fact.    Rather,  he            determined  that  appellant  was  not  disabled  because  his            residual functional capacity permitted him to engage in light            work.   Thus, one of the conditions for applying the Ruling--                                            ____________________            4.  The policy statement prefacing the Ruling  indicates that            the determination that a claimant has not followed prescribed            treatment  essentially constitutes  a determination  that the            claimant is  not disabled for purposes  of receiving benefits            under the Social Security  Act.  See SSR 82-59,  reprinted in                                             ___             ____________            [Rulings  1975-82]   Soc.  Sec.  Rep.  Serv.,   at  793  ("An            individual  who  would  otherwise  be found  to  be  under  a            disability, but who fails without justifiable cause to follow            treatment prescribed by a treating source which . . .  can be            expected to restore the  individual's ability to work, cannot            be found to be under a disability.").                                         -8-            that  the claimant's  impairment  precludes  any  substantial            gainful  activity--did  not exist  here.    For that  reason,            Ruling 82-59 does not apply, and appellant's objection is not            on target.5                 Appellant further  complains  that the  ALJ  "discarded"            without explanation  the testimony he was  required to obtain            under Avery v.  Secretary of Health  and Human Services,  797                  _____     _______________________________________            F.2d 19 (1st Cir. 1986).  We conclude that the ALJ adequately            considered the Avery factors.   First, he thoroughly assessed                           _____            appellant's  medical history  and  subjective  complaints  of            pain, and in so doing described "the nature, location, onset,            duration, frequency, radiation  and intensity" of appellant's            pain.   The medical record persuaded him that appellant had a            severe impairment with attendant pain.  But he found that the            impairment was not as severe or continuous as  the disability            described in Appendix 1 of 20 C.F.R. Part 404, Subpart P, and            that appellant's  pain  was not  as  intense as  he  alleged.            Second, the  ALJ determined that heavy and medium lifting and                                            ____________________            5.  We note, however, that we see no reason why an ALJ should            not consider  a claimant's refusal to  undergo treatment when            determining issues other than that of the actual existence of            the  alleged   disability,  e.g.,  when   making  credibility            determinations.   A  claimant's refusal  to continue  therapy            that is  shown to  have  alleviated pain  would certainly  be            relevant in judging the  severity of the pain alleged  by the            claimant.  Cf. Irlanda Ortiz v. Secretary of Health and Human                       _________________    _____________________________            Services, 955 F.2d  765, 769 (1st  Cir. 1991) (the  Secretary            ________            could  infer from  appellant's  failure to  seek any  medical            treatment  at  all that  appellant's  pain  had  not been  as            intense as alleged).                                           -9-            carrying  were  activities that  would be  "precipitating and            aggravating  factors" under  Avery.   He noted,  for example,                                         _____            that the lifting of cement bags in April 1987 had exacerbated            appellant's back  condition.    Accordingly,  he  found  that            appellant should  engage only in light  lifting and carrying.            Third,  although   the  ALJ  did  not   describe  appellant's            medication for his back  pain by name or dosage,  he elicited            testimony   about   appellant's   medication   and   reviewed            appellant's  medical records,  concluding that  appellant had            been treated "conservatively" with muscle relaxants and anti-            inflammatories with "good results . . . and no side effects."            Fourth, the ALJ noted that appellant had also undergone other            treatment, i.e.,  physical therapy, with "good results  . . .            and  no  side  effects."    Fifth,  he  analyzed  appellant's            functional  capacity,  crediting  appellant's allegations  of            pain and  physical limitation  only to  the extent that  they            showed that appellant could not perform heavy or medium work.            Crediting Dr. Hernandez's  report over appellant's subjective            complaints,  he determined  that appellant  would be  able to            engage in light work.   Last, the ALJ considered  evidence of            appellant's daily activities, which  had been offered to show            appellant's  limited  physical capacity.    He  rejected that            evidence because  it described appellant's condition  as of a            time when appellant's eligibility for disability benefits had                                         -10-            already  expired.  Thus, the ALJ considered each of the Avery                                                                    _____            factors, and we see no error in his decision on that score.                 Finally, appellant complains that the ALJ emphasized the            absence of  motor or  neurological deficits in  his decision,            and  claims that  there  is no  requirement  that a  claimant            establish  a neurological  motor deficit  in order  to verify            alleged back pain.   Appellant's contention is without merit.            As  part of the  five-step procedure  used in  determining an            applicant's  qualification for  disability benefits,  the ALJ            was  required to  determine  whether or  not the  appellant's            condition  equalled  the  severity  criteria  listed  in  the            relevant regulations.   He  concluded that appellant  did not            have   the  "consistent  clinical  neurological  deficits  as            required by Section 1.05(c) of the Listing.  He was not found            with neurological sensory, reflex and motor abnormalities . .            . ."  Because this language reflects the language used in the            regulations, it was entirely appropriate.  See 20 C.F.R. Part                                                       ___            404,  Subpart  P,  Appendix 1,     1.00B  ("There  must be  a            detailed  description  of   the  orthopedic  and   neurologic            examination  findings.     The  findings  should   include  a            description of . . .  motor and sensory abnormalities, muscle            spasm, and deep tendon reflexes.");   1.05C ("1. Pain, muscle            spasm, and significant limitation of motion in the spine; and            2.  Appropriate radicular  distribution of  significant motor            loss with muscle weakness and sensory and reflex loss.").                                         -11-                 Accordingly,  we  affirm the  judgment  of  the district                                   ______            court.                                         -12-
