
USCA1 Opinion

	




          June 3, 1993          [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ___________________          No. 92-2111                                          FELIX M. PEREZ-VELAZQUEZ,                                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. Raymond L. Acosta, U.S. District Judge]                                             ___________________                                 ___________________                                        Before                                Selya, Cyr and Boudin,                                   Circuit Judges.                                   ______________                                 ___________________               Edgardo  Jimenez Calderin  and Juan  A. Hernandez  Rivera on               _________________________      __________________________          brief for appellant.               Daniel F.  Lopez Romo, United States  Attorney, Jose Vazquez               _____________________                           ____________          Garcia,  Assistant United  States Attorney,  and Joseph  E. Dunn,          ______                                           _______________          Assistant Regional Attorney, Office of the General Counsel, Dept.          of Health & Human Services, on brief for appellee.                                  __________________                                  __________________                 Per  Curiam.    We  conclude  that   the  ALJ  erred  in                 ___________            determining   that  claimant  had   the  residual  functional            capacity (RFC) to  perform the full range  of sedentary work.                                           ____            We explain briefly.                 Claimant  fractured his right ulna in 1986.  As a result            of  this fracture, the ALJ found,  claimant's arm movement is            restricted; he cannot pronate  (rotate downwards) or supinate            (rotate  upwards)  the   right  lower  forearm,  lifting   is            restricted to  ten pounds,  and claimant cannot  perform past            janitorial  work.    Despite  the  pronation  and  supination            restrictions, however,  the  ALJ  applied  Grid  rule  201.23            (younger  individual,  illiterate,  previous  unskilled  work            experience, RFC for sedentary work), which directed a finding            of not disabled, to  conclude that jobs exist in  the economy            commensurate with claimant's RFC.                 As we  have explained,  the Secretary can  not discharge            her burden at step five of the  sequential evaluation process            by  relying  on  the  Grid when  a  nonexertional  impairment            significantly affects a claimant's vocational functioning:                      [T]he   Grid   is   "predicated   on   an                      individual's  having an  impairment which                      manifests   itself   by  limitations   in                      meeting  the   strength  requirements  of                                     ________                      jobs...."  20  C.F.R. Part. 404,  Subpart                      P, App.  2,   200.00(e)  (1988) (emphasis                      added).    Accordingly, where  a claimant                      has one or more non-strength limitations,                      "the Guidelines do not accurately reflect                      what  jobs   would   or  would   not   be                      available." Gagnon v. Secretary of Health                                  ______    ___________________                      and Human Services, 666 F.3d 662, 665 n.6                      __________________                                         -2-                      (1st  Cir.  1981).    In  cases  where  a                      nonexertional  impairment  "significantly                      affects claimant's ability to perform the                      full  range  of  jobs"  he  is  otherwise                      exertionally capable of performing, Lugo,                                                          ____                      794 F.2d at 17, "the Secretary must carry                      his burden of proving the availability of                      jobs  in the  national  economy by  other                      means,"  Gagnon,  666  F.2d  at  666 n.6,                               ______                      typically through the use of a vocational                      expert.   On  the  other  hand, should  a                      nonexertional  limitation   be  found  to                      impose no significant restriction  on the                      range of work  a claimant is exertionally                      able to  perform,  reliance on  the  Grid                      remains appropriate.            Ortiz v.  Secretary of  Health and  Human Services,  890 F.2d            _____     ________________________________________            520,  524 (1st Cir. 1989).   Ortiz qualifies this restriction                                         _____            on  the Grid's use in  cases where a significant non-strength            impairment  exists but there  is a basis  for concluding that            its  effect   is  only   to  reduce  the   occupational  base            "marginally," id., but there  is no evidence or  inference of                          __            that kind in this case.                  There  was  evidence of  the  following.   Claimant  was            examined  in May 1989 by Dr.  Rodriguez at the request of the            disability determination program.   Dr. Rodriguez noted  that            claimant's  right forearm  was  held in  a position  "with no            pronation, nor supination possible suggestive of a bony union            between the radius  and ulna,"  but he did  not explain  what            effect this had on  claimant's functioning.  Two nonexamining            doctors,  however, did touch on the matter.  Both checked off            the "limited" boxes  on RFC forms on reaching,  handling, and                                         -3-            fingering.      One  wrote   that  these   restrictions  were            "moderate."  The other said they were "moderate to severe."                 The  Secretary's own  regulations  and rulings  indicate            that reaching, handling,  and fingering limitations  well may            significantly  narrow the  occupational base.    Reaching and            handling, the Secretary has said, "are activities required in            almost  all jobs.    Significant limitations  of reaching  or            handling . . .  may eliminate a large number of occupations a            person could otherwise do."  SSR 85-15.  Fingering "is needed            to  perform  most  unskilled  sedentary  jobs."    Id.    And                                                               __            "bilateral  manual dexterity is necessary for the performance            of substantially all unskilled  sedentary occupations."   SSR            83-14; 20 CFR Pt. 404, Subpart P, App. 2,   201.00(h).                 Here, where the only doctors  to address the matter have            said  that  claimant's   reaching,  handling,  and  fingering            limitations are "moderate" or "moderate to severe" in degree,            the  ALJ may  not permissibly  ignore their  opinions, assert            without explanation that claimant can perform a full range of                                                            ____            sedentary   work,  and   apply  the   Grid   without  further            explanation.   Consequently, a  remand is needed  for further            proceedings.  See Heggarty v.  Sullivan, 947 F.2d 990, 996-97                          ___ ________     ________            (1st   Cir.  1991)  (where  uncontradicted  medical  evidence            indicated claimant's manual dexterity was limited,  the ALJ's            conclusion that claimant retained the capacity to perform the                                         -4-            full range of sedentary work was not supported by substantial            evidence and a remand for vocational evidence was required).                 There  is  evidence in  the record  of  the report  of a            vocational  specialist who  did not testify,  indicating that            there were  at least  a few "light  work" jobs that  could be            performed   by  one   of  claimant's   age  and   educational            qualifications.      Whether   the    vocational   specialist            appreciated  claimant's  exertional  limitations  as  well is            unclear.    Whether  the   light  work  jobs  specified  were            available  in the  national economy,  in accordance  with the            statutory test,  was not  stated.  42  U.S.C.    423(d)(2)(A)            (jobs  claimant  is  capable  of performing  must  exist  "in            significant  numbers either  in the  region where  [claimant]            lives or in several regions of  the country").  In any event,            the  ALJ did not refer to vocational evidence at all, relying            instead solely upon  the Grid, and we cannot rehabilitate the            decision based on this evidence.   Cf. Securities &  Exchange                                               __  ______________________            Comm. v. Chenery Corp., 318 U.S. 80, 93-95 (1943).            _____    _____________                 Accordingly,   a  remand   is   required   for   further            proceedings,  which may  well  require  the consideration  of            expert vocational  evidence.   We decline  claimant's request            for a determination that claimant is entitled to benefits  as            a  matter  of  law.   We  have  considered  claimant's  other            arguments,  including   his  challenge  to   the  ALJ's  pain                                         -5-            findings, but find them without merit  for the reasons stated            in the magistrate-judge's July 16, 1992 report.                 The judgment  of the district  court is vacated  and the                                                         _______            case is  remanded with directions to remand  to the Secretary                     ________            for further proceedings.                                           -6-
