
USCA1 Opinion

	




                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 95-1028                              JOSE R. FIGUEROA ALVAREZ,                                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. Salvador E. Casellas, U.S. District Judge]                                               ___________________                                 ____________________                                        Before                                Torruella, Chief Judge,                                           ___________                          Selya and Boudin, Circuit Judges.                                            ______________                                 ____________________            Raymond Rivera Esteves and Juan A.  Hernandez Rivera on brief  for            ______________________     _________________________        appellant.            Guillermo  Gil,  United  States  Attorney,  Maria Hortensia  Rios,            ______________                              _____________________        Assistant  United  States  Attorney,  and  Donna  McCarthy,  Assistant                                                   _______________        Regional  Counsel, Department of Health & Human Services, on brief for        appellee.                                  ____________________                                    August 2, 1995                                 ____________________                      Per Curiam.   In 1990, Jose  Figueroa Alvarez filed                      __________            an  application  for  Social  Security  disability  benefits,            alleging disability due to lower back pain.  After a hearing,            the administrative law  judge (ALJ) denied  Figueroa's claim,            concluding  that he could perform his past relevant work as a            security  guard,  and  the  Appeals  Council  denied  review.            Figueroa then appealed to  the district court, which affirmed            the decision.  He  now seeks review in  this court.   Because            Figueroa's  specific objections on  appeal are meritless, and            because  our  review of  the  record  shows that  substantial            evidence supports the finding that Figueroa was not disabled,            we affirm.                        In  his  decision,  the  ALJ  determined  that  the            medical evidence of record showed  that Figueroa has a severe            musculoskeletal condition, but  not one meeting or  equalling            the conditions listed in 20 C.F.R. Pt. 404, Subpt. P, App. 1.            Specifically, a CT scan showed lumbar spine spondylolysis and            spondylolisthesis  at the  L4-L5 level and  posterior bulging            with  small central  disc herniation  and compression  of the            dural sac at that level.  The ALJ  found that Figueroa's back            condition was  compatible with  episodic pain,  but concluded            that the evidence did  not establish a medically determinable            basis for  the degree of  pain alleged.   He also  found that            Figueroa's back condition had not limited his neurological or            orthopedic  functioning since  Figueroa had  always exhibited                                         -2-            good range of  motion and no  muscle weakness.   Nonetheless,            the  ALJ determined that Figueroa could no longer perform his            prior  medium exertional  level  job as  warehouseman  and/or            fingerlift operator.   Because  he found that  Figueroa could            still perform light work, however,  the ALJ concluded that he            could perform his past  relevant work as a security  guard, a            job Figueroa had held from 1983-86 and again in 1990.                                     DISCUSSION                                     __________                      On appeal,  Figueroa claims that the  ALJ failed to            consider  his   allegations  of  disabling   pain,  erred  in            concluding  that  he  could return  to  his  past  work as  a            security guard,  and denied  him disability benefits  without            considering evidence in his favor.                        A.  Allegations of Disabling Pain                          _____________________________                      In  support of  his  claim that  the ALJ  failed to            consider  his allegations of  disabling pain, Figueroa states            first  that  he  constantly  and  persistently  complained to            examining physicians  of severe disabling pain.   He suggests            that  the ALJ  ignored that  evidence.   The record  does not            substantiate his claim.                      First,  there are  significant  gaps in  Figueroa's            medical records between December  1988, when he first injured            his back, and October 1991, when the hearing took  place.  We            have  found  no  medical  records  indicating  that  Figueroa            complained of  pain to  examining physicians for  the periods                                         -3-            from May 1989 to  December 1989, February 1990 to  June 1990,            or March 1991 to October 1991.1                        Second, as the transcript shows, at the hearing the            ALJ elicited Figueroa's testimony  on relevant aspects of the            pain  he alleged,  as required  under Avery  v. Secretary  of                                                  _____     _____________            Health  and Human Services, 797 F.2d 19, 29 (1st Cir. 1986).2            __________________________            In his decision, the  ALJ took account of that  testimony and            stated  that  Figueroa's  "salient  complaint" was  pain  and            decreased sensation in his right leg.  In view of the medical            evidence, however,  the ALJ  did not fully  credit Figueroa's            allegations of pain.  He noted the gaps in Figueroa's medical            treatment history, including the fact  that he had not sought                                            ____________________            1.  The record contains an  August 1989 report of the  Puerto            Rico Industrial  Commission in which  the Commission reported            that  Figueroa alleged pain in his lower right back and right            hip.   Apparently, because of Figueroa's  allegation of pain,            the Commission overturned the State Insurance Fund's May 1989            discharge of Figueroa  as "cured and without disability."  In            February or March 1991,  the State Insurance Fund determined,            under  the  applicable  worker's compensation  law,  that  in            December  1988 Figueroa  had  sustained a  partial  permanent            disability of 15 %  of his "general physiological functions."            Although disability determinations  by other agencies  may be            considered  by  the Secretary,  they  are not  binding.   See                                                                      ___            Mandrell v. Weinberger, 511 F.2d 1102, 1103 (10th  Cir. 1975)            ________    __________            (Veterans'   Administration   disability   determination   is            entitled  to  consideration,  but   is  not  binding  on  the            Secretary).            2.  Under  Avery, the  ALJ was required  to inquire  into the                       _____            nature, location, onset,  duration, frequency, radiation, and            intensity  of   the  pain  in  question;   the  factors  that            precipitated  or  aggravated  the  pain;  the  type,  dosage,            effectiveness, and  adverse side effects of  pain medication;            treatment  for  the  pain  other  than  medication;  and  the            claimant's functional restrictions and daily activities.                                           -4-            any treatment after February 1991.   He concluded that, while            Figueroa's  back condition  could cause  pain on  an episodic            basis,  the pain had proven treatable and had not limited his            functioning significantly, except to the extent that he could            not perform medium or heavy work.                        Besides  the  gaps  in Figueroa's  medical  record,            other  evidence  supports  the ALJ's  conclusion.    Although            Figueroa testified that his pain was constant  and strong, he            also said  that medication  "alleviate[d]" the pain  and that            massaging  his leg  alleviated  painful cramping  during  the            night.   He testified that his medication gave him heartburn,            and  for  that  reason  it  had  been  changed;  his  current            medication allegedly had side effects, too, but Figueroa gave            no specifics and acknowledged that  he took it anyway because            it "at  least relieve[s] the pain a  little."3  The ALJ noted            that Figueroa appeared in no distress at the hearing and that            he walked adequately with no assistive device.  Figueroa also            testified that he  could walk for 30 meters,  that one of his            daily activities was  walking around  his yard,  and that  he            walked around the house when  leg pain woke him up at  night.            A  consulting  neurologist  reported  in  January  1991  that            Figueroa had back pain syndrome, but that he could do tip toe                                            ____________________            3.  In  his decision,  the ALJ  stated that  Figueroa's pills            caused  numbness,  but  we   found  nothing  in  the  hearing            transcript to support  that statement, and so assume  that it            was inadvertent error.                                         -5-            gait, walk  on his heels  and squat  on his  knees; that  his            forward lumbar flexion was 80 degrees forward and his lateral            lumbar  flexion  was  20   degrees;4  that  his  Lasegue  was            negative5 and  his straight leg raising was  90 degrees; that            he  had no motor weakness  and no muscle  atrophy although he            had minimal  paravertebral muscle  spasm; and that  there was            decreased sensation  in his right leg  without any anatomical            distribution.   In  February and  June 1991,  Social Security            physicians reviewed  Figueroa's medical records  and assessed            his  residual functional  capacity  (RFC).6   Each  indicated            that, despite his back  condition, Figueroa could perform the            exertional requirements of light work:  he could occasionally            lift  or  carry 20  pounds and  frequently  lift or  carry 10                                            ____________________            4.  Accompanying range of motion charts show that full lumbar            flexion forward  is 90 degrees  and that full  lateral lumbar            flexion is 20 degrees.             5.  This apparently  means that Figueroa suffered  no pain or            limitation of  movement  when raising  his  legs while  in  a            supine position.   See Blakiston's  Gould Medical  Dictionary                               ___ ______________________________________            743 (4th  ed. 1979) (Lasegue's  sign becomes positive  when a            supine  patient raises  his entire  lower extremity  with his            knees  in  full extension  and suffers  pain or  muscle spasm            resulting in limitation of movement at a particular  angle of            elevation).            6.  Among  other things,  the  medical opinion  request  form            underlying the February RFC assessment noted Figueroa's claim            of  pain, his  minimal paravertebral muscle  spasm, decreased            sensory  sensation  in  his  right   leg  without  anatomical            distribution,  and  his  original  back injury  and  CT  scan            results.   The  medical opinion  request form  underlying the            June  RFC  assessment noted,  among  other  things, his  back            condition, decreased sensation in  his right leg, and minimal            paravertebral muscle spasm.                                         -6-            pounds;  he could stand, walk and sit with normal breaks each            for  a total of  about 6 hours  in an 8-hour  workday; and he            could push or  pull without limit.  See 20  C.F.R.   404.1567                                                ___            (the  physical exertional requirements of light work comprise            the ability  to lift no more  than 20 pounds at  a time while            frequently lifting  or carrying objects  up to 10  pounds, to            walk  or stand a  good deal, or  to perform some  pushing and            pulling of arm  or leg  controls if the  job mostly  required            sitting); SSR 83-10 ("[T]he full range of light work involves            standing or walking, off and on, for a total of approximately            6  hours   of  an   8-hour  workday.     Sitting  may   occur            intermittently during  the remaining  time.").  Figueroa  has            not  submitted any  physician's evaluation  or other  medical            report which contradicts the  neurologist's assessment of his            condition  as of  January 1991,  nor any  residual functional            capacity evaluation which contradicts the two RFC assessments            indicating that he could perform light work.                        B.  Past Relevant Work                          __________________                      Figueroa objects  to the  ALJ's conclusion that  he            could perform his past relevant work of security guard, which            is  classified as light exertional  work.  See  U.S. Dep't of                                                       ___            Labor, Dictionary of Occupational  Titles (DOT) 269 (4th rev.                   __________________________________  ___            ed. 1991).   In support thereof, Figueroa  cites the postural            limitations  described in  the  Secretary's RFC  assessments.            Both  assessments indicated  that, given his  back condition,                                         -7-            Figueroa could only occasionally climb  stairs, stoop, crouch            and  crawl.7   Figueroa  argues that  the  ALJ, as  a layman,            could not evaluate how  his postural limitations would affect            his  ability  to  perform  the  work  of  a  security  guard,            suggesting that the  ALJ needed the guidance  of a vocational            expert.                        We disagree.   Figueroa bore the  burden of showing            that he  could no longer perform his former job.  In order to            meet  that  burden,  he   needed  to  provide  "some  minimal            information about  the activities that [his]  past usual work            required[.]"    Santiago v.  Secretary  of  Health and  Human                            ________     ________________________________            Services, 944 F.2d  1, 5  (1st Cir. 1991);  accord Dudley  v.            ________                                    ______ ______            Secretary  of Health  and Human Services,  816 F.2d  792, 794            ________________________________________            (1st Cir. 1987)  (per curiam).  But  Figueroa never testified            that his prior work as security guard required  any climbing,            stooping,  crouching and  crawling, let  alone doing  so more            than  occasionally, nor does  anything we  have found  in the            record  suggest  that  this is  true.    Thus,  there was  no            evidence  before  the ALJ  to  show that  Figueroa  could not            perform  his  past job  as a  security  guard because  of his            postural limitations.  Nor  are climbing, stooping, crouching            and crawling listed as  physical requirements of the security            guard job in  the relevant vocational publication.   See U.S.                                                                 ___                                            ____________________            7.  The RFC  assessment forms  define "occasionally"  to mean            "occurring  from very  little up  to  one-third of  an 8-hour            workday (cumulative, not continuous)."                                         -8-            Dep't  of  Labor,  Selected  Characteristics  of  Occupations                               __________________________________________            Defined in  the  Revised Dictionary  of  Occupational  Titles            _____________________________________________________________            (SCO)  Pt. A,  at 45;  App. C,  at C-3  (1993) (the  physical             ___            demand   components  of  climbing,  stooping,  crouching  and            crawling are "not  present" in the security  guard job);8 see                                                                      ___            also  SSR 83-14  (stating  that relatively  few  jobs in  the            ____            national economy require climbing and that workers performing            light exertional jobs would not have to crouch and would have            to stoop  only occasionally to perform  substantially all the            exertional requirements of most  light jobs).  Since Figueroa            never met his burden of showing that his postural limitations            prevented him  from returning  to his  past work  as security            guard, and  the SCO  indicates that his  postural limitations                            ___            would not prevent him from  performing the security guard job            as  usually performed in the national economy, the ALJ had no            obligation  to consult a vocational  expert.  See Musgrave v.                                                          ___ ________            Sullivan, 966 F.2d 1371, 1376 (10th Cir. 1992) (an ALJ has no            ________            obligation  to  seek  vocational  expert  testimony  where  a            claimant has  not established a disability  that prevents him            from performing his  past relevant work); see also  SSR 82-61                                                      ___ ____            (stating  that   vocational  experts  may  be   necessary  in            determining  how  a  job   is  usually  performed  where  the                                            ____________________            8.  The Secretary of  Health and Human  Services may rely  on            the  general   job  categories  in   the  DOT   and  SCO   as                                                      ___        ___            presumptively  applicable to  a claimant's  prior work.   See                                                                      ___            Villa v. Heckler, 797 F.2d 794, 798 (9th Cir. 1986).            _____    _______                                         -9-            vocational resource materials are insufficient); compare Gray                                                             _______ ____            v.  Heckler, 760  F.2d 369, 373  (1st Cir. 1985)  (an ALJ may                _______            rely  on vocational  publications  in determining  whether  a            claimant could return to past work where the claimant had the            opportunity to, but did not, testify about the demands of her            prior job).                        Figueroa  next  suggests   that  the  ALJ   ignored            significant evidence  in determining that he  could return to            his work as a security  guard.  Figueroa points first to  his            testimony that he  could not continue  working as a  security            guard.  At  the hearing,  Figueroa testified that  he had  to            leave  his  security  guard   position  in  June  1990  after            reinjuring his  back.  He also testified that he had tried to            return to  work recently,  but that  he had  to quit  after a            month because he was  required to stand all the  time, making            his leg and  heel numb.9   Furthermore, Figueroa stated  that                                            ____________________            9.  The record does not show conclusively that this job was a            security guard position.  Figueroa described his unsuccessful            attempt  to work  again  in response  to  the ALJ's  question            whether he  had worked  as a  security guard  elsewhere after            June  1990,  suggesting that  the  job was  a  security guard            position.  But, when the ALJ then concluded that Figueroa had            worked   as  a  security  guard  for  five  months  in  1990,            Figueroa's   attorney  presented  a  letter  certifying  only            Figueroa's previous  employment as  a security guard  for the            four-month  period from February to  June 1990.   The rest of            the  attorney's response  is listed as  "inaudible."   In his            decision,  the  ALJ  reports  that Figueroa  alleged  at  the            hearing  that he  worked as  a security  guard for  only four            months,  but that in his written submissions to the agency he            stated that he  had also  worked from 1983-86  as a  security            guard.  This  suggests that the ALJ's understanding  was that            Figueroa's   unsuccessful  one-month  employment  was  not  a                                         -10-            he  could stand only for about  25-30 minutes, then he had to            move his legs or stand  on his toes.  Figueroa  also suggests            that the ALJ ignored medical records from April 1989 and June            1990 which  indicated that  he had difficulty  in standing.10                      The fact  that Figueroa  had to leave  his security            guard job in June 1990 or that he complained of difficulty in            standing  in April 1989 and June 1990 is not very significant            since the  record indicates that his  back condition improved            afterwards  and that  it had  not significantly  affected his            legs.    In  September  1990, a  neurosurgeon  reported  that            Figueroa's back pain did not radiate to his legs  and that he            had  very infrequent  cramps; he found  that Figueroa  had no                                            ____________________            security  guard  position.    Figueroa's  brief  contains   a            confusing  passage  on  this  point, but  seems  intended  to            confirm the ALJ's understanding.                   Even if the job  in question were a security  guard job,            however, Figueroa's  testimony at  most showed that  he could            not  return  to a  specific  security  guard job  because  it            required him to stand continuously.  He did not show that the            typical security guard job  entails standing for greater than            six hours a day.  Thus,  even if his allegation that he could            not  stand for  a prolonged  period were  fully credited,  he            still  failed  to  show  that  his  inability  to  stand  for            prolonged periods  would prevent his  returning to work  as a            security  guard.  See Pelletier v. Secretary of HEW, 525 F.2d                              ___ _________    ________________            158, 160 (1st Cir. 1975) (a claimant  did not meet her burden            of  proof by  showing  that a  particular  past job  entailed            exposure  to smoke and fumes;  she was required  to show that            such  exposure would  be  a condition  of  her type  of  work            generally).              10.  The records  stated that he complained  of difficulty in            sitting for prolonged periods of time, too, but Figueroa does            not   allege  the  ALJ  erred  by  failing  to  consider  his            difficulty in sitting.                                         -11-            diminished  sensation or edema in his legs and that he walked            with a  normal  gait;  his  sensory  and  motor  systems  and            reflexes were within  normal limits; his heel  to toe walking            was excellent;  there was  no objective radiculopathy.11   By            December 1990,  a State Insurance Fund  physician advised him            that he could return to work.  In January 1991, Figueroa told            the consulting  neurologist that  he had  difficulty sitting,                                                                 _______            but he  did  not complain  about difficulty  in standing  for            prolonged  periods.    Although  the  neurologist found  that            Figueroa had decreased  sensation in his  right leg, he  also            found that  Figueroa  had no  motor  weakness and  no  muscle            atrophy.    The uncontradicted  February  and  June 1991  RFC            assessments both indicated that  Figueroa could stand or walk            for  six hours  out  of an  eight-hour  workday.12   Figueroa            never  sought any treatment for numbness in his legs in 1991.            At the  hearing, Figueroa appeared to  attribute the numbness            in his legs to  the pain he suffered, but, as  noted earlier,            he  also  said  that   his  medications  and  hand  massaging            alleviated the pain.   In addition, he suggested  that moving            his  legs or standing  on his toes  helped relieve discomfort            caused by  prolonged standing.  Under  the circumstances, the                                            ____________________            11.  Radiculopathy  is  defined  as  "disease  of  the  nerve            roots."  See  Dorland's Illustrated  Medical Dictionary  1405                     ___  _________________________________________            (27th ed. 1988).            12.  Neither  physician marked the box on  the RFC form which            indicated that  Figueroa  should alternate  periodically  his            sitting and standing in order to relieve pain or discomfort.                                         -12-            ALJ's apparent failure fully to  credit Figueroa's allegation            that he could  not stand  for prolonged periods  of time  was            supported by substantial evidence in the record.13                      C.  Failure to Consider Whole Record                          ________________________________                      Figueroa claims  that the ALJ relied exclusively on            evidence   favorable  to   the   Secretary  and   disregarded            "overwhelming evidence"  in the record which  established his            disability.    As   our  discussion  above  shows,   however,            substantial  evidence  in  the  record  supported  the  ALJ's            decision.  Two uncontradicted RFC assessments indicated  that            Figueroa could  perform light work that  entailed standing or            walking for six hours out of an eight-hour workday.  Some six            months  after Figueroa had reinjured his back in June 1990, a            State Insurance Fund physician found  that he could return to            work.    There  was  no  evidence  that  Figueroa sought  any            treatment for pain or numbness after February 1991, and there            was evidence  that  he was  able  to relieve  the  discomfort            occasioned by his back condition.                      Affirmed.                       _________                                            ____________________            13.  Figueroa also states that  "another telling fact" is the            fact  that he  wears an  orthopedic girdle,  but he  does not            develop that argument and  so we do not consider  it further.            See  United States  v. Zannino,  895 F.2d  1, 17  (1st Cir.),            ___  _____________     _______            cert. denied, 494 U.S. 1082 (1990).             ____________                                         -13-
