
USCA1 Opinion

	




          May 21, 1996                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 95-2168                                FELIX GONZALEZ-ALEMAN,                                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., Senior U.S. District Judge]                                          __________________________                                 ____________________                                        Before                                 Selya, Cyr and Lynch,                                   Circuit Judges.                                   ______________                                 ____________________            Fabio A. Roman Garcia on brief for appellant.            _____________________            Guillermo Gil, United  States Attorney,  Rosa E.  Rodriguez-Velez,            _____________                            ________________________        Acting Chief  Civil Division,  Robert M. Peckrill,  Assistant Regional                                       __________________        Counsel, Social Security Administration, on brief for appellee.                                 ____________________                                 ____________________                 Per  Curiam.   Felix Gonzalez-Aleman  (claimant) appeals                 ___________            from a district  court judgment affirming  a decision of  the            Secretary  of  Health  and  Human Services  finding  him  not            disabled as of April 28, 1992.  For the following reasons, we            vacate and remand.                 On September 7,  1990, claimant was involved  in a motor            vehicle accident and sustained  fractures of the pelvis, left            hip,  left femur,  and  left ankle.    On October  25,  1990,            claimant  applied  for disability  benefits alleging  that he            could  not stand or  walk due  to these  fractures.   He also            alleged that sitting  caused pain  in the  pelvic region  and            hips.  The  Social Security Administration  denied claimant's            application initially and on reconsideration.                   After a hearing, an Administrative Law Judge (ALJ) found            that claimant  was under a disability  beginning September 7,            1990 and continuing through April 27, 1992.  However, the ALJ            found   that  after  April   27,  1992,  claimant's  residual            functional  capacity  increased  to  a  capacity  to  perform            sedentary work.   Since  claimant's past  work  as a  machine            operator  required more  than  sedentary  exertion,  the  ALJ            determined that he could not perform this work.  The ALJ then            proceeded to step  five of the sequential  analysis.  Relying            on  the Grid,  the ALJ  found that  claimant is  not disabled            because there is  a broad range of  unskilled, sedentary jobs            existing in the national economy which he can perform.                                           -3-                 The Appeals Council denied review.  Claimant appealed to            the  district court which  affirmed the Secretary's decision.            This appeal followed.                  Claimant  argues that the ALJ erred at step three of the            sequential analysis  in not finding  that he met  or equalled            Listed Impairment   1.03 (arthritis of a major weight-bearing            joint), 20 C.F.R. Part 404, Subpt. P, App. 1.1  We  disagree.                                                         1            The  record  does  contain  some  evidence  of  arthritis  in            claimant's left  ankle, as well as  significant limitation of            movement  in  this  joint.    However,  although  the  record            contains X-rays,  there is no indication  of gross anatomical            deformity   of  a  hip  or  knee  as  required  by     1.03A.            Similarly, it  does not appear that the  surgery performed on            claimant's left leg satisfies    1.03B.  In any  event, given                                            ____________________               1The following condition is listed at   1.03:               1                           Arthritis of a major weight-bearing joint (due                      to any cause):                           With  history of  persistent  joint  pain  and                      stiffness with signs of marked limitation of motion                      or abnormal motion of the affected joint on current                      physical examination.  With:                      A.   Gross  anatomical  deformity  of  hip  or knee                      (e.g.  subluxation,  contracture,  bony or  fibrous                      ankylosis, instability) supported by X-ray evidence                      of  either  significant  joint  space  narrowing or                      significant bony destruction and  markedly limiting                      ability to walk and stand; or                      B.   Reconstructive surgery or surgical arthrodesis                      of a major weight-bearing  joint and return to full                      weight-bearing  status did  not  occur, or  is  not                      expected to occur, within 12 months of onset.                                         -4-            evidence in  the record  that claimant's fractures  are well-            healed, that  he can walk or stand for up to three hours, and            that he can carry up to thirty pounds, we think the ALJ could            find that  claimant's condition neither met  nor equalled the            listing.  We add that although claimant was continuing to see            his orthopedic  surgeon, he  proffered no medical  opinion to            support his claim that  he was still markedly limited  in his            ability to  walk and  his leg  had not  yet returned to  full            weight-bearing status.  See  Torres v. Secretary of Health  &                                    ___  ______    ______________________            Human Servs., 870  F.2d 742, 745  (1st Cir. 1989)  (observing            ____________            that  it is  the claimant's  burden to  show that  he has  an            impairment that meets or equals a listing).                 Similarly, we  reject claimant's  argument that  the ALJ            could not  properly find  that his  condition improved.   The            orthopedic  evaluations  by  examining  consultants  for  the            Secretary  reflect steady  progress.   On  January 18,  1991,            claimant  could not carry any  body weight, and  he could not            stand or walk without the use of crutches.  On June 25, 1991,            the femur  fracture was  still healing and  claimant required            the  assistance of a  walker.  By  April 27,  1992, the femur            fracture was well-healed.  Dr. Marrero, who examined claimant            on  that  date,  completed  a  residual  functional  capacity            assessment  (RFC) which amply  supports the  ALJ's conclusion            that claimant has the exertional capacity for sedentary work.                                         -5-                 We  are,  however,  persuaded  that there  is  merit  to            claimant's argument that the ALJ's determination at step five            cannot be  upheld under the  "substantial evidence" standard.            At this  stage in the sequential analysis,  the burden shifts            to the Secretary  to prove that there  are sufficient numbers            of jobs  in the national  economy that claimant  can perform.            See Heggarty  v. Sullivan, 947 F.2d 990, 995 (1st Cir. 1991).            ___ ________     ________            Where   claimant's   impairments   involve    only   strength            limitations, the ALJ may rely on the Grid to meet its burden.            Id.     However,   where   a  claimant   has   non-exertional            ___            impairments,  the  Grid   may  not  accurately   reflect  the            availability of suitable jobs.  Id.                                             ___                 Dr. Marrero's  RFC indicates that claimant  has a number            of  non-exertional  limitations.     Most  notably,  the  RFC            indicates that claimant can never climb and is limited in his            ability  to  be  around  moving  machinery.    The  narrative            comments do  not  further illuminate,  at least  for the  lay            reader,  the   nature   or   extent   of   these   particular            restrictions.  The ALJ does not mention these restrictions at            all  in her decision.  Under the circumstances, this court is            left without any basis for determining whether the claimant's            non-exertional limitations are sufficiently minimal to permit            the  ALJ to rely on  the Grid or  whether vocational evidence            was required.  We  note that even sedentary work  may require            the ability to  ascend or  descend stairs on  a daily  basis.                                         -6-            See SSR  85-15 (observing  that usual everyday  activities at            ___            work  include ascending or descending ramps or a few stairs).            Moreover,   the  Secretary's   own  regulations   state  that            approximately 85 percent of  unskilled, sedentary jobs are in            the machine trades and benchwork occupational categories.  20            C.F.R. Part 404, Subpt. P, App. 2,   201.00.                   Accordingly, a  remand is required for  further findings            which  may in  turn require  the consideration  of vocational            evidence.   In  light  of our  disposition  we leave  to  the            secretary to consider  in the first  instance, to the  extent            relevant, claimant's argument that  additional non-exertional            limitations found  by Dr.  Marrero precluded reliance  on the            Grid.   With  respect to  claimant's allegation  of disabling            pain, however,  we note  that the  ALJ found  that claimant's            "subjective symptomatology  does not significantly  affect or            compromise  his ability to do  sedentary work."  Claimant has            made no meaningful argument that this finding was in error.                                Vacated and remanded.                 ____________________                                         -7-
