
USCA1 Opinion

	




          March 17, 1993        [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ___________________          No. 92-2088                                         BIENVENIDO GONZALEZ-GARCIA,                                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                                Selya, Cyr and Boudin,                                   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 U.S.  Attorney, and Paul Germanotta,  Assistant          ______                                _______________          Regional  Counsel, Dept. of Health & Human Services, on brief for          appellee.                                  __________________                                  __________________                 Per Curiam.  Claimant Bienvenido Gonzalez Garcia applied                 __________            for  Social Security disability benefits on May 24, 1989.  He            alleged an onset  date of April 15, 1988 and  claimed that he            had  a back condition and a mental impairment.  After holding            a  hearing,  an administrative  law  judge  (ALJ) found  that            claimant  was  not  entitled  to disability  benefits.    The            Appeals Council  denied claimant's  request for review.   The            district  court  affirmed the  Secretary's decision  and this            appeal ensued.                                          I.                                          __                 Claimant was injured  at work  when he tried  to lift  a            steel  beam.  He sought treatment at the State Insurance Fund            (SIF) for back pain.   According to claimant, he was  given a            course  of physical therapy which left him feeling worse.  At            some point, he tried to resume work but could not  because of            the pain.  All of his  past jobs involved heavy lifting  with            frequent bending  and stooping.   Since his  injury, claimant            states that he cannot  sit, stand or  walk for any length  of            time  and he is constantly changing position.  He cannot bend            or stoop.   He cannot  lift objects weighing  more than  five            pounds.                 As for his daily  activities, claimant testified that he            could not take care of his personal needs; his wife helps him            to bathe  and dress.  He  does not leave the  house except to            visit his father.  Sometimes he watches television or listens                                         -2-            to the radio.  He cannot help with household  chores and does            not drive.  During the day, he sits or stands on the balcony;            he never walks.                 Claimant described  his pain  as constant; it  starts in            his  lower back and spreads to his buttocks, thighs, legs and            feet.  He also complained of "palpitations" in his bones.  He            does  not sleep well due to the  pain and cramps in his legs.            In addition to his  back pain, he suffers from  headaches and            nosebleeds.   He takes medication which relieves the pain for            about two hours.                 Claimant also takes medication for a dysthymic disorder.            He  stated that  he hears  voices calling  his name  and sees            shadows.   He is  irritable and  noises bother him.   He  has            problems relating to people and prefers  to be alone.  He has            received sporadic  therapy for  this impairment at  the local            mental health center.                                         II.                                         ___                 The  ALJ  determined   that  claimant  has   a  possible            herniated disc at L5-S1, back pain  and an affective disorder            which alone or in combination did not meet  the listings.  He            credited claimant's  allegations of  pain to the  extent that            claimant  was  precluded  from  engaging in  strenuous  work-            related activities.  Nonetheless, the ALJ found that claimant            retained the  residual functional capacity  (RFC) to  perform            the exertional requirements of work except to the extent that                                         -3-            claimant could not lift over ten pounds.  Also,  he could not            sit, stand  or walk  for over  one hour at  a time;  however,            claimant could perform each of these activities for up to six            hours  per eight-hour workday.  He could stoop and kneel only            occasionally.  Aside from these limits, claimant retained the            capacity to perform the full range of sedentary work.                   The  ALJ determined that Rule  201.25 of Table  1 of the            Medical-Vocational Guidelines, 20 C.F.R. Part  404, Subpt. P,            App.  2 (1992) (the "Grid"),  would direct a  finding of "not            disabled"  for  a  person  such  as  claimant  --  a  younger            individual  with  a  limited  education (7th  grade)  and  no            transferable work skills. Because claimant's capacity for the            full  range of  sedentary  work had  not been  "significantly            compromised" by  his nonexertional limits, the  ALJ used Rule            201.25  as a  framework  to conclude  that  claimant was  not            disabled.   In  so finding,  the ALJ  stated  that claimant's            mental   impairment  did   not   impose  "more   than  slight            limitations   in  those  areas  considered  relevant  to  the            capacity to perform work-related activities."                                         III.                                         ____                 On  appeal, claimant  essentially argues  that his  back            condition prevents him from  engaging in even sedentary work.            He also  avers that the ALJ erred in applying the Grid on the            ground  that his  nonexertional impairments  -- pain  and his            emotional condition  -- significantly  limit  his ability  to                                         -4-            perform the full range  of sedentary work.  We  address these            issues separately.                 A.  Back Condition                     ______________                 The record contains conflicting evidence  concerning the            effect   of  claimant's   back   problem   on  his   physical            capabilities.   X-ray  results  showed a  20  to  25  percent            narrowing of the disc space at L5-S1, suggestive of a bulging            or  herniated disc.   Also,  a C-T  scan revealed  a possible            bulging  or herniated disc at L4-L5 with a slight swelling of            the left nerve root.                 Over the course of his  treatment at the State Insurance            Fund, claimant's condition varied.  For example, on September            30 and October 13, 1988, claimant exhibited persistent lumbar            muscle  spasm  and  limited  range  of  motion.   However,  a            November   2,  1988  special   medical  report   stated  that            claimant's back was well  and there was no muscle spasm.   In            addition,  claimant's range  of motion  was normal  and there            were  no neurological  deficits.   The report  concluded that            claimant could perform  light work and should be  referred to            vocational  rehabilitation.    Although   claimant  exhibited            marked limitation in the movement of his trunk on November 7,            1988,  there  still  was  no  significant  muscle  spasm  and            claimant could  walk without  difficulty.  When  claimant was            discharged  from  the SIF  in  April 1989,  he  had residuals                                         -5-            consisting of slight spasm of the para-vertebral muscles with            slight limitation of movement of the trunk in all directions.            Claimant refused a referral to vocational rehabilitation.                 A  neurological  evaluation   performed  in  July   1989            revealed no evidence of  paravertebral muscle spasms or motor            atrophy;  there was  normal  strength in  all muscles  and no            motor reflex  or sensory  disturbances.  Claimant's  gait and            posture  were normal.   He  refused to  bend his  spine.   In            January  1990, claimant  was again  examined by  a consulting            neurologist.   At this time,  claimant could not  walk on his            heels  or toes, exhibited some  weakness of the  left toe and            had  spasm in his paravertebral muscles.  His range of motion            was limited.1                 A nonexamining physician completed an RFC form in August            1989.   This form reveals  that claimant can  frequently lift            and  carry up  to ten  pounds and  occasionally can  lift and            carry twenty  pounds.   He  can only  occasionally stoop  and            crawl.   His  disc pathology  limits his  ability to  use his            lower extremities to  push and  pull.  However,  he can  sit,            stand and walk for up to six hours per work day.                  The medical  findings outlined  above amply  support the            conclusion  that claimant  retained the  ability to  meet the                                            ____________________            1.  Neither  of these physicians  filled out  RFC assessments            despite the  requirement in  the regulations that  a complete            consultative examination  should include such  findings.  See                                                                      ___            20 C.F.R.   404.1519n(c)(6).                                         -6-            exertional  demands  of sedentary  work.    Muscle spasm  and            limits  in range  of  motion were  not consistently  present.            Further, claimant rarely exhibited any neurological or  motor            deficits.     Finally,  the  RFC  assessment  indicates  that            claimant's disc  problems would not prevent  him from working            at  the  sedentary  level.     Because  "a  reasonable  mind,            reviewing the evidence in the record as a whole, could accept            it as adequate to support his conclusion," we must uphold the            Secretary's factual  determinations.  Rodriguez  v. Secretary                                                  _________     _________            of Health and  Human Services,  647 F.2d 218,  222 (1st  Cir.            _____________________________            1981).                 B.  Nonexertional Impairments                     _________________________                 Next,  claimant alleges  that the  ALJ did  not properly            credit his  complaints of totally  disabling pain.   We agree            that there exists an  objective medical impairment -- bulging            or  herniated discs at L4-L5 and L5-S1 -- that can reasonably            be expected to cause pain.  See  Avery v. Secretary of Health                                        ___  _____    ___________________            and   Human  Services,   797   F.2d  19   (1st  Cir.   1986).            _____________________            Nonetheless, as  described above,  the dearth of  evidence of            motor, sensory or strength  deficits conflicts with the level            of pain  claimant alleges.  Further,  claimant testified that            medication  relieved the pain for  up to two  hours.  Because            the ALJ diligently considered  the factors outlined in Avery,                                                                   _____            we find that his decision concerning the level  of claimant's                                         -7-            pain is supported by substantial record  evidence and did not            preclude reliance on the Grid.2                 Claimant's mental impairment presents a closer question.            Absent  significant  nonexertional   limitations,  the   Grid            provides a  "streamlined" method  by which the  Secretary can            sustain  his burden of proof  at step five  of the sequential            evaluation  process.  Ortiz v.  Secretary of Health and Human                                  _____     _____________________________            Services,  890 F.2d 520,  524 (1st  Cir. 1989)  (per curiam);            ________            Sherwin v. Secretary of  Health and Human Services, 685  F.2d            _______    _______________________________________            1,  2 (1st  Cir. 1982),  cert. denied,  461 U.S.  958 (1983).                                     ____________            However, where  a claimant has a  nonexertional impairment in            addition to an exertional limit,  the Grid may not accurately            reflect  the  availability  of  jobs such  a  claimant  could            perform.   Ortiz,  890 F.2d  at 524;  Gagnon v.  Secretary of                       _____                      ______     ____________            Health  and Human Services, 666  F.2d 662, 665  n.6 (1st Cir.            __________________________            1981).                 The decision  to  rely on  the  Grid in  this  situation            depends   upon   whether    claimant's   mental    impairment            "significantly  affects  [his]  ability to  perform  the full            range  of  jobs"  at  the sedentary  level.    See    Lugo v.                                                           ___    ____                                            ____________________            2.  We also note that  claimant's limitations in stooping and            crawling -- nonexertional impairments -- do not significantly            limit his access to  the full range of  sedentary work.   See                                                                      ___            Social  Security   Ruling  85-15  (to  meet  requirements  of            sedentary  work,  an  individual  would need  to  stoop  only            occasionally  and would  rarely  be required  to crawl);  cf.                                                                      ___            Frustaglia  v. Secretary  of Health  and Human  Services, 829            __________     _________________________________________            F.2d 192, 195 (1st Cir. 1987) (per curiam).                                         -8-            Secretary  of Health and Human Services, 794 F.2d 14, 17 (1st            _______________________________________            Cir. 1986)  (per curiam);  Ortiz, 890  F.2d at 524.   If  the                                       _____            occupational   base   is   significantly  limited   by   this            impairment, the Secretary  erred in using  the Grid to  carry            his  burden at step five.   See  Ortiz, 890  F.2d at 524.  In                                        ___  _____            such  a case, the testimony of  a vocational expert generally            would have been required.  Id.                                       __                 Here, the  ALJ  essentially determined  that  claimant's            emotional condition  was not severe and thus, did not impinge            on  claimant's  ability  to  engage  in  the  full  range  of            sedentary,  unskilled work.   There are two  distinct sets of            mental capabilities which are required for the performance of            unskilled work.  Id. at 526; Social Security Ruling (SSR) 85-                             ___            15.  These are  (1) the intellectual ability to  perform such            work and (2) the ability to cope with the demands of the work            environment per se.  Id.                        ______   __                 As  for the first category  -- the ability  to carry out            simple instructions,  respond to  supervision  and cope  with            coworkers -- we believe that there  is sufficient evidence to            support  the  ALJ's  conclusion  that   claimant's  dysthymic            disorder  did not  significantly impair  his functioning.   A            consultative examination performed  by a psychiatrist in  May            1990  indicates  that  claimant  was  coherent, relevant,  in            contact with  reality and  completely oriented.   His thought            processes  were  organized  and  there  was  no  evidence  of                                         -9-            delusions  or  hallucinations.     His  memory  was   intact.            Although  his  attention,  concentration  and  retention were            "slightly diminished," claimant's judgment and reasoning were            not impaired.   The  psychiatrist diagnosed a  mild dysthymic            disorder; claimant's prognosis was fair.                    This   psychiatrist   also   completed  a   mental   RFC            assessment.    He  indicated  that  claimant's  abilities  to            maintain attention and to  understand, remember and carry out            both complex  and detailed job  instructions were good.   His            capacity to deal with simple instructions  was unlimited.  He            also was rated as having good abilities in the areas of using            judgment, interacting with supervisors, relating to coworkers            and functioning independently.                 The second  category includes  the ability to  remain in            the workplace the entire day and to attend work regularly and            punctually.   In  this  area, claimant  was  rated  as  being            capable of demonstrating responsibility, relating predictably            in social  situations and  behaving in an  emotionally stable            manner.   However, his ability to deal with "work stress" was            only  fair.  Fair  is defined on  the RFC  form as "seriously            limited but not precluded."                 Given the evidence anent claimant's  limited capacity to            deal with "work stress," his  mental impairment might well be                                         -10-            deemed of some  severity.3   But, we believe  that the  ALJ's            reliance  on  the  Grid  in  this  particular  situation  was            nevertheless appropriate  (although by no  means inevitable).            See Ortiz, 890 F.2d at 524 (explaining that claimant's mental            ___ _____            impairment,  even if  severe,  is  not  considered  disabling            unless it has eroded the occupational base for the full range            of  sedentary, unskilled work).   Aside from the finding that            claimant was  seriously limited  in his capacity  to confront            the  stress of  work in  general, the  examining psychiatrist                                 ___________            concluded  that claimant's  abilities  in the  more  specific            areas  of dealing  with the  work environment  -- maintaining            concentration,  being reliable,  behaving  in an  emotionally            stable manner  and accepting supervision -- were  good.  Also            significant is  the fact  that claimant's situation  does not            place him  anywhere near  the dividing line  between disabled            and not disabled under  Table 1 of the Grid.  See id. at 527-                                                          ___ ___            28.                 For the foregoing reasons,  the judgment of the district            court is affirmed.                      ________                                            ____________________            3.  An impairment is not severe only when it has no more than            "a minimal effect on the person's .  . . mental ability . . .            to perform basic work activities."  SSR 85-28.                                         -11-
