
USCA1 Opinion

	




          November 10, 1993     [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ___________________          No. 93-1151                                 LUIS SANCHEZ-QUILES,                                Plaintiff, Appellant,                                          v.                       SECRETARY OF HEALTH AND HUMAN SERVICES,                                 Defendant, Appellee.                                  __________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                    [Hon. Jaime Pieras, Jr., U.S. District Judge]                                             ___________________                                 ___________________                                        Before                                 Breyer, Chief Judge,                                         ___________                          Selya and Boudin, Circuit Judges.                                            ______________                                 ___________________               LCDA.  Cristina Munoz Gandara on brief for appellant.               _____________________________               Daniel F. Lopez-Romo, United  States Attorney, Jose  Vazquez               ____________________                           _____________          Garcia,  Assistant United States  Attorney, and Jessie  M. Klyce,          ______                                          ________________          Assistant  Regional Counsel, Region  I, Department of  Health and          Human Services, on brief for appellee.                                  __________________                                  __________________               Per Curiam.   Claimant  Luis Sanchez-Quiles  appeals from  a               __________          district  court  judgment  which  affirms  the  decision  of  the          Secretary  of Health  and Human  Services denying  his  claim for          social security  disability benefits  during  the insured  period          between July  2, 1971  and December 31,  1974.   Claimant alleges          that he suffered from severe back,  heart, and mental impairments          during that time period.      We  have  thoroughly  reviewed  the          record and the  parties' briefs on appeal and  are persuaded that          the  Secretary's decision is  supported by  substantial evidence.          Claimant's contention that  the combination  of his back,  heart,          and  mental  impairments  was,  in  essence,  equivalent  to  the          listings for vertebrogenic, heart,  and somatoform disorders,  is          meritless.  Findings  of  medical equivalence  must  be  based on          "medical  findings that  are  at  least  equal  in  severity  and          duration  to  the   listed  findings."    20   C.F.R.   404.1526.          Claimant's  alleged  impairments  are  not  supported by  medical          findings   from  the   insured   period  that   approximate   the          aforementioned listings in severity or duration.               Claimant's  contention  that  the ALJ  erred  by  failing to          evaluate  his  pain   as  a  nonexertional  impairment   also  is          unavailing.  To be sure, "[p]ain may be a nonexertional factor to          be considered in  combination with  exertional limitations,  even          though it may also serve as a separate and independent ground for          disability." Da Rosa v.  Secretary of Health and  Human Services,                       _______     _______________________________________          803  F.2d 24,  26 (1st  Cir. 1986)(per curiam).   "Where  pain is          considered as  a separate  ground for disability  ... it  must be          severe  enough to  prevent  the  claimant  from engaging  in  any                                                                        ___          substantial  gainful  employment.  Where pain  is  considered  in                                          2          combination with exertional limitations, however, it need only be          found significant enough to prevent the claimant from engaging in          the full range  of jobs contemplated  by the exertional  category          for which the claimant otherwise qualifies."  Gagnon v. Secretary                                                        ______    _________          of Health and  Human Services, 666 F.2d  662, 666 n. 8  (1st Cir.          _____________________________          1981).               The  ALJ  found  that  claimant's  complaints of  pain  were          credible only to  the extent that they  precluded the performance          of more  than sedentary  work  because (1)  the medical  evidence          concerning his  back impairment, particularly  Dr. Arturo Feria's          report, disclosed a full  range of motion,  little in the way  of          positive clinical findings, and an inability to "work hard, carry          light weights, and climb scaffolds  and stairs," (2) the  medical          evidence disclosed no  objective basis for claimant's  chest pain          complaints, since his  myocardial infarction did not  occur until          June 1975, and a "careful study" of progress notes indicated that          claimant's  pain  was  "occasional,"  (3)  claimant's  activities          during the insured period, which  included multiple trips between          the United States and Puerto  Rico, and claimant's testimony that          he experienced at  least some relief with  medications, indicated          that claimant's pain allegations were not fully credible.               It  is  true  that  the  ALJ  did   not  explicitly  address          claimant's pain as a nonexertional  limitation.  Nevertheless, we          think  his  decision   implies  that  claimant's  pain   did  not          significantly  reduce his access  to jobs at  the sedentary level          and thus did  not preclude reliance on the grid.1   So construed,                                        ____________________               1  Where "a nonexertional limitation ...[is] found to impose          no significant  restriction on  the range of  work a  claimant is          exertionally  able to  perform,  reliance  on  the  Grid  remains                                          3          the ALJ's  decision is  supportable.   The record  indicates that          claimant sought  treatment for back  pain on  only two  occasions          (August and  November)  in  1971 and  two  occasions  (March  and          September) in  1972.  There  appears to  be a significant  gap in          treatment between  September 1972  and August  1983.2   The  1974          records indicate  that claimant sought treatment  more frequently          but  not so  much  as to  suggest the  presence  of a  continuous          impairment.  In short, the  AlJ's conclusion that claimant's pain          was  "occasional"  appears  to  be   correct.3    The  claimant's          description of  his daily  activities (which  noted that  he took          care of the  house, wife and children and  could drive), the fact          that he could travel, and  his admission that he experienced some          relief with medication all tend  to support the ALJ's  conclusion          that the  sedentary work base  was essentially intact  during the          insured period.                                         Thus, claimant's contention that the ALJ erred by failing to          consider his pain as a nonexertional limitation ultimately fails.                                        ____________________          appropriate."   Ortiz v. Secretary  of Health and Human Services,                          _____    _______________________________________          890 F.2d 520, 524 (1st Cir. 1989)(per curiam).                2We  note that some of the records  that the ALJ relied upon          are not  in the record  before us,  thus this gap  may not be  as          significant as the  record presently suggests.   But claimant has          not  pointed  out any  records which  suggest that  his condition          became more dire during  this period.  Nor has  he challenged the          ALJ's description of  the missing records.  Accordingly,  we have          assumed that the ALJ's description is correct.                  3The  ALJ might be  faulted for discounting  the evidence of          claimant's  chest  pain   on  the  ground  that   his  myocardial          infarction did not  happen until 1975.  The  record suggests that          claimant may  have received  treatment for  a heart  condition as          early as January-February  1975.  (Tr. 291-92, 323-24).   Even if          he did not, common sense suggests that claimant's  ischemic heart          disease  did not  appear overnight,  and  that at  least some  of          claimant's complaints of chest pain during the insured period may          have resulted from  his heart condition.  But the record does not          show that this pain was disabling during that time.                                            4          The  ALJ's  decision implies  that  claimant's  pain was  not  so          persistent or  severe as  to significantly  reduce the  sedentary          occupational  base.    Even  if  the ALJ's  decision  is  not  so          construed, there  is no error  in failing  to consider pain  as a          nonexertional impairment where an  ALJ reasonably discredits  the          claimant's testimony  concerning the limitations imposed  by back          pain  and other  restrictions.   See  Frustaglia v.  Secretary of                                           ___  __________     ____________          Health and Human Services, 829  F.2d 192, 195 (1st Cir. 1987)(per          _________________________          curiam).  Thus,  we may conclude that  there was no error  in the          ALJ's assessment of the disabling effects of claimant's pain.               Claimant also  faults the ALJ  for failing  to consider  his          mental impairment as a possible  explanation for his pain, and in          applying   the  grid   despite  the   presence  of   significant,          nonexertional  pain  and  mental impairments.    We  have already          addressed the claimant's  pain.  The sole evidence  in the record          concerning an alleged mental impairment during the insured period          states simply "[rule  out] psychosomatic  disorder."  (Tr.  222).          This  is  plainly insufficient  to  establish the  presence  of a          mental  impairment   that  was   significant  enough  to   impede          claimant's access to the sedentary occupational base.   While the          record includes more frequent references  to anxiety and neurosis          after claimant's myocardial infarction was  diagnosed in 1975, it          was the claimant's burden to prove that he became disabled before          his  insured status  expired.   Cruz v.  Secretary of  Health and                                          ____     ________________________          Human Services,  818 F.2d  97, 98 (1st  Cir.), cert.  denied, 497          ______________                                 _____  ______          U.S.  1042 (1987).    This he  failed to  do.   Accordingly,  the          judgment of the district court is affirmed.                                                  ________                                          5
