
USCA1 Opinion

	




        January 23, 1995        [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 94-1793                                LUIS A. RIOS VAZQUEZ,                                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, II, Senior U.S. District Judge]                                         __________________________                                 ____________________                                        Before                                 Selya, Circuit Judge,                                        _____________                         Campbell, Senior Circuit Judge, and                                   ____________________                                Boudin, Circuit Judge.                                        _____________                                 ____________________            Juan R.  Requena Davila and Juan  A. Hernandez Rivera on brief for            _______________________     _________________________        appellant.            Guillermo  Gil,  United  States  Attorney,  Maria Hortensia  Rios,            ______________                              _____________________        Assistant  United States  Attorney, and  Eileen M.  Cedrone, Assistant                                                 __________________        Regional Counsel,  Region I, Department of Health  and Human Services,        on brief for appellee.                                 ____________________                                 ____________________                 Per Curiam.    Luis A.  Rios-Vazquez (claimant)  appeals                 __________            from a district court judgment affirming the decision of  the            Secretary  of   Health  and   Human   Services  denying   his            application for disability benefits.  For the reasons  stated            below, we affirm.                                          I.                 Claimant  was born  on  May 23,  1945,  and applied  for            benefits when he was forty-four years old.  He has an  eighth            grade  education.   In 1977,  while working  in Chicago  as a            crane operator, he lifted a  steel object and became "stiff."            After  two more similar episodes, he was diagnosed in 1979 as            having a  herniated disc and  underwent surgery on  April 18,            1979.   He was allowed  to return  to work  on September  24,            1979,  although he continued to  experience some leg and back            pain.   In 1981, claimant  returned to Puerto  Rico and began            working as a truck driver.  His back pain worsened  from time            to time, especially when  he drove for long periods  of time.            He also suffered  pain and  numbness in the  legs.   Claimant            ceased  working on February 26,  1989, and he  has not worked            since then.  He is insured at least through March 11, 1991.                  On February 28, 1990, claimant filed an application  for            disability  benefits alleging  disability since  February 26,            1989 due  to back pain  and "frequent  loss of balance."   He            claimed that  his doctors  had  prohibited him  from  lifting            anything heavy.  Asked  to describe his daily activities,  he            stated  that  he kept  the area  surrounding his  home clean.            Other activities included driving his car, reading the bible,            visiting relatives, and going to church.  The Social Security            Administration denied  claimant's application initially.   On            June  25,  1990, claimant  requested  reconsideration stating            that  his  pain had  worsened and  that  his nerves  had been            affected.       Claimant's   application   was    denied   on            reconsideration.                 Claimant obtained a hearing before an Administrative Law            Judge (ALJ) on February 11,  1991.  He was represented by  an            attorney.  At the hearing, claimant  testified that he ceased            working as a truck driver because  of his back or waist pain.            He described the pain as pretty severe, sometimes causing him            to  loose control  of  his  leg.    Although  he  takes  pain            medication, it  does not provide  full relief.   He testified            that he can take of his personal needs, and that  he attempts            to help his wife with the wash.  In addition,  he visits with            company,  reads  a  little, and  goes  to  church.   He  also            testified that  he began  seeking mental health  treatment in            July 1990 because he "felt nervous."                   The  ALJ found  that  although  claimant has  discogenic            disease  at  L4-L5,  he  does   not  have  an  impairment  or            combination of  impairments equivalent  to one of  the listed            impairments.    He also  found  that  claimant is  unable  to            perform his past relevant work, which required heavy lifting,            but that  claimant has  the residual functional  capacity for                                         -3-            the full range  of light  work.  With  respect to  claimant's            alleged mental condition, the ALJ found that claimant has not            presented a severe mental impairment which can be expected to            last at least  twelve months.   Finally, the  ALJ ruled  that            based on claimant's capacity  for light work, as well  as his            age,  education,  and work  experience,  the  Grid directs  a            conclusion of not disabled.   The   Appeals   Council  denied            review.   An appeal was taken to  the district court, where a            magistrate-judge (magistrate) concluded that  the Secretary's            decision was supported by substantial evidence.  The district            court adopted  the  magistrate's report  and  recommendation.            This appeal followed.                                           II.                 The medical  record is well-summarized in  the ALJ's and            the magistrate's  reports, and we  need only provide  a brief            overview  here.   On  April  18, 1979,  claimant  underwent a            partial  hemilaminectomy of L4  on the left  with excision of            L4-5  disc.     Approximately  five  months   later,  he  was            sufficiently  improved to  return  to work,  although he  was            limited temporarily  to lifting thirty pounds.   He continued            to feel back  pain and was fitted with a  flexion jacket.  He            was also advised to continue light work and exercise.                   There is a gap in the medical record between August 1980            and  August  1988.    On  August  26,  1988,  claimant  began                                         -4-            treatment with Dr. Victor  Burgos for lower back pain.1   Dr.            Burgos  diagnosed  claimant  as  suffering   from  discogenic            disease, osteoarthritis,  and muscle spasms.   He  prescribed            various   medications   for  claimant,   including  meclomen,            voltaren, and norflex.                   Between January  1989 and June 1990,  claimant underwent            physical therapy with Dr.  Oscar Arroyo-Nieves.  He diagnosed            claimant as suffering from lumbar  radiculopathy, status post            laminectomy,  degenerative joint  disease, and  chronic lower            back pain.                   On  May 6, 1990,  claimant was examined  by a consulting            neurologist, Dr. Nilda  De Jesus Pla.   The motor examination            revealed that claimant walks dragging his right leg, but  has            good strength in  the upper  and lower extremities.   Dr.  De            Jesus Pla did not observe atrophy or abnormal movements.  Her            examination  of claimant's  vertebral column  revealed marked            spasms in the paravertebral region, as well as mild spasms in            the posterior region  of the right thigh.   A range of motion            examination  disclosed that  claimant's  forward  bending  is            limited  to forty-five  degrees.   An  x-ray report  showed a                                            ____________________            1.  A C.T. scan of claimant's spine, reported  by Dr. Burgos,            showed degenerative  changes at  the lumbo sacral  spine with            decreased intervertebral  disc space at L4-L5  and bulging of            the annulus  fibrosus at L4-L5.   It also  revealed segmental            calcifications   at   the   outer   annulus   at  the   right            posterolateral  aspect  L5-S1,  as   well  as  sclerosis  and            hypertrophic  changes at the articular facets at L5-S1 at the            right side causing narrowing of the neural foramina.                                         -5-            lumbar spondylolysis and myositis with disc disease at L5-L4.            Dr.   De  Jesus  Pla   concluded  that  claimant's  condition            precludes  him from  returning to  his past  work as  a truck            driver.                 Dr.  Tomas Hernandez, a  neurologist, evaluated claimant            on  June 11,  1990  and diagnosed  him  as suffering  from  a            pinched nerve root in  the right side.  Dr.  Hernandez opined            that  this condition, as well as the C.T. lumbar findings and            claimant's  symptomatology,  disabled  claimant  totally  and            permanently from working.                    Two residual physical  functional capacity  assessments,            prepared by non-examining medical consultants, are consistent            with  the ALJ's  finding that claimant  has the  capacity for            light work.  The latter assessment, dated August 26, 1990 and            prepared by a consulting neurologist, concludes that "[t]here            is  no motor, sensory, or reflex deficit to account for [the]            statement of inability to work."                   Mental  health  records   reveal  that  claimant  sought            treatment on June 6, 1990, complaining of bad humor, an upset            stomach,  difficulty sleeping,  and  a tight  feeling in  his            chest.   Claimant  was  diagnosed with  anxiety disorder  and            prescribed xanax.  He was otherwise found to be  cooperative,            coherent, relevant, and somewhat oriented.  On July 31, 1990,            claimant  reported feeling  better.   On September  20, 1990,            claimant stated that he felt frightened.  He was continued on                                         -6-            xanax.    On December  20,  1990,  claimant reported  feeling            better with medication.                                         III.                 Claimant contends  that the ALJ erred in  relying on the            Grid to reach a  conclusion of not disabled.   In particular,            he argues that his restricted ability to bend from the waist,            as  well as  the pain  he suffers,  constitute non-exertional            impairments.    Under  the  circumstances, he  contends,  the            testimony of a vocational expert was required to evaluate his            claim.                 Where  a claimant's impairments  involve only exertional            limitations,  the  Grid  provides a  "streamlined"  method by            which the  Secretary can  make a determination  whether there            are jobs in the economy which the claimant can perform.  See,                                                                     ___            e.g.,  Heggarty v.  Sullivan,  947 F.2d  990,  995 (1st  Cir.            ____   ________     ________            1991);  Ortiz v. Secretary of Health & Human Servs., 890 F.2d                    _____    __________________________________            520,  524 (1st  Cir. 1989)  (per curiam).   However,  where a            claimant  has  non-exertional   impairments  in  addition  to            exertional limitations, the Grid may not be fully applicable.            See 20  C.F.R.  Part 404,  Subpart P,  App. 2,  200(e).   The            ___            appropriateness of  relying of the  Grid in such  a situation            "depends  on  whether  claimant's   nonexertional  impairment            `significantly affects [a] claimant's ability to  perform the            full  range  of jobs'  at  the  appropriate strength  level."            Heggarty v.  Sullivan,  947  F.2d at  996  (quoting  Lugo  v.            ________     ________                                ____                                         -7-            Secretary of Health & Human Servs., 794 F.2d 14, 17 (1st Cir.            __________________________________            1986) (per curiam)).                    With respect  to claimant's restricted  ability to  bend            from  the  waist,  we  note  that  both  residual  functional            capacity  assessments reported  that claimant  is  capable of            occasional bending.  This is all that "light"  work requires.            Ortiz, 890  F.2d at 525; see  also SSR 85-15 at  97 (CE 1985)            _____                    _________            ("If  a person can stoop occasionally (from very little up to            one-third  of  the  time)  in  order  to  lift  objects,  the            sedentary and light occupational base is virtually intact.").            Under  the circumstances, claimant's  bending restriction did            not preclude  reliance on the  Grid.  See Ortiz,  890 F.2d at                                                  ___ _____            525.                 With respect to claimant's pain, we observe that the ALJ            concluded that  claimant's back  pain "does not  constitute a            disabling factor upon  his ability to  perform tasks that  do            not  exceed light  exertional  demands."   The ALJ  evaluated            claimant's allegations of pain in accord with our decision in            Avery v. Secretary of Health & Human Servs., 797 F.2d 19 (1st            _____    __________________________________            Cir.  1986).   Claimant was  questioned concerning  his daily            activities,  functional  restrictions, medication,  frequency            and  duration  of  pain,  and precipitating  and  aggravating            factors.   See  id.  at 28-29.    The ALJ  also reviewed  the                       ___  ___            objective medical evidence.  He found that apart  from marked            lumbar muscle spasms and some flexion difficulties, "claimant                                         -8-            did  not  present  gross  neurological  deficits  or  limited            movements  as  to  impose  significant  restriction   at  all            exertional  levels."   The  ALJ further  noted that  claimant            performed full  body movements  at  the hearing  and was  not            distracted due  to pain.   We are persuaded  that substantial            evidence supports  the ALJ's conclusion that  claimant's pain            does  not  impair his  ability to  perform  light work.   See                                                                      ___            Frustaglia  v. Secretary of  Health & Human  Servs., 829 F.2d            __________     ____________________________________            192, 195 (1st Cir. 1987).  Under the circumstances, there was            no error in relying on the Grid.                 Claimant also contends that the ALJ gave undue weight to            the opinions of the Secretary's consulting physicians and too            little  weight to  the opinions  of his  treating physicians.            This  is  an  apparent   reference  to  recently  promulgated            regulations  which  describe  how  the Secretary  will  weigh            medical opinions, and provide that, in general, the Secretary            will give more weight to opinions from treating sources.  See                                                                      ___            20  C.F.R.     404.1502  (1991)  (defining treating  source),            404.1527(d)  (1991)  (explaining  how  the  Secretary  weighs            medical opinions).2   Assuming, without deciding,  that these            regulations are  applicable here, we  find no fault  with the            ALJ's decision on this score.                                            ____________________            2.  These regulations  were promulgated after the  ALJ issued            his decision,  but  while the  case  was pending  before  the            Appeals Council.                                         -9-                 For the most part,  the reports of claimant's physicians            are  fully   consistent   with  those   of  the   Secretary's            physicians.   The one exception is  Dr. Hernandez' conclusory            statement that claimant  is totally and  permanently disabled            from working.  However, the Secretary was not bound to accept            this statement.   First, it is by  no means obvious that  Dr.            Hernandez should  be considered a treating  source.  Claimant            did  not  consult  Dr.  Hernandez  until  after  the  initial            determination of no disability and apparently saw him on only            two occasions.   See 20  C.F.R.    404.1502 (1991)  (defining                             ___            treating  source as a physician with whom claimant has had an            "ongoing" relationship  based on  the need for  treatment and            not  solely  on  the  need  to  obtain  a  favorable report).            Second, and more importantly, the determination of disability            is  reserved to the Secretary.   See 20  C.F.R.   404.1527(e)                                             ___            (1991).  There is ample evidence in the record as  a whole to            support  the  ALJ's  conclusion  that  claimant  retains  the            functional capacity for light work.                 Claimant's  remaining argument  is  that  the  Secretary            erred  in finding  that  he does  not  have a  severe  mental            impairment  that can  be  expected to  last  at least  twelve            months.    This  issue  was  not  encompassed  in  claimant's            objection to  the magistrate's  report and, thus,  is waived.            See  Thomas v. Arn, 474  U.S. 140, 147-48  (1985); Keating v.            ___  ______    ___                                 _______            Secretary  of Health & Human  Servs., 848 F.2d  271, 275 (1st            ____________________________________                                         -10-            Cir.  1988) (per curiam).  We  add that the record portrays a            relatively  mild mental impairment,  which has responded well            to medication.  Moreover, claimant has never clarified how it            allegedly limits his ability to work.  In such circumstances,            the Secretary  could properly conclude that claimant's mental            impairment  is  "non-severe."    See  20  C.F.R.     404.1521                                             ___            (defining  "non-severe"  impairment  as  one  that  does  not            significantly  limit a  claimant's ability  to do  basic work            activities);    Rodriguez  v.  Secretary of  Health  &  Human                            _________      ______________________________            Servs., 893 F.2d 401, 403-04 (1st Cir. 1989).            ______                 The judgment of the district court is affirmed.                                                       ________                                         -11-
