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USCA1 Opinion
September 21, 1992 [NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 92-1250
RAUL RODRIGUEZ,
Plaintiff, Appellant,
v.
SECRETARY OF HEALTH AND HUMAN SERVICES,
Defendant, Appellee.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Jose Antonio Fuste, U.S. District Judge]
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Before
Breyer, Chief Judge,
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Campbell, Senior Circuit Judge,
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and Cyr, Circuit Judge.
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Salvador Medina De La Cruz on brief for appellant.
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Daniel F. Lopez Romo, United States Attorney, Jose Vazquez
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Garcia, Assistant United States Attorney, and Thomas D. Ramsey,
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Assistant Regional Counsel, Region I, Department of Health and
Human Services.
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Per Curiam. Plaintiff appeals from a district court
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decision affirming a final decision of the Secretary of
Health and Human Services that appellant was not disabled
under the Social Security Act, 42 U.S.C. 416(i), 423(d),
for purposes of obtaining disability insurance benefits.
Appellant applied for disability insurance benefits for a
back condition dating from 1981 which allegedly rendered him
unable to work. The administrative law judge (ALJ) denied
benefits, concluding that, while appellant's impairment was
severe enough to prevent him from continuing to work as a
truck driver, he had the residual functional capacity to
engage in light work. Because the record as a whole supports
this finding, we affirm. Appellant raises a number of
objections to the ALJ's decision, which we consider in
turn.1
Appellant first claims that the ALJ's decision is
inconsistent with testimony by a vocational expert that
appellant could not engage in any substantial gainful work.
Appellant argues that the medical evidence shows that his
back pain is at least frequent and that the vocational expert
testified that frequent pain would prevent appellant from
performing any substantial gainful work. Actually, the
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1. The ALJ also determined that appellant's mild dysthymic
mood disorder did not render appellant disabled. Because
appellant does not contest that finding, we confine our
discussion to issues relating to appellant's back condition.
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vocational expert testified that appellant would be unable to
perform any work in the national economy if the pain were
both frequent and severe. The ALJ basically found that
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appellant's pain was not severe when he concluded that
appellant's back condition, though painful, was not a
"disabling painful condition" and that appellant's allegation
of pain was credible only to the extent that he could no
longer perform heavy or medium work. Therefore, the
condition of the hypothetical posed to the vocational expert
that the pain be severe was not met, and appellant's
objection is not well taken. See Lizotte v. Secretary of
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Health and Human Services, 654 F.2d 127, 131 (1st Cir. 1981)
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(affirming the ALJ's determination that the claimant could
perform certain tasks where, although the vocational expert
had determined that the claimant could not perform such tasks
if certain restrictions in his capabilities were assumed, the
ALJ had found that the assumed restrictions did not actually
exist).
Next, appellant states that specific clinical tests
showed that he had very limited residual functional capacity
to stand, walk or sit. The clinical tests to which appellant
refers measured the difficulty or pain appellant encountered
when flexing certain joints. Appellant's medical records
indicate that at times appellant scored positive on those
tests (at other times, the tests were negative). Nowhere do
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appellant's treating doctors indicate that a positive result
would mean that appellant's residual functional capacity was
limited, nor do they appear to have recommended that
appellant limit his activities in any way. Although
appellant points out that the Secretary's examining
physician, Dr. Garayalde, observed that appellant had
difficulty dressing and undressing himself, that observation
is not controlling since it described appellant's condition
as of the year after appellant's eligibility for benefits had
expired. The only evidence in lay terms of appellant's
functional capacity for the relevant period was provided by a
residual functional capacity assessment form filled out by
Dr. Hernandez, a medical consultant to the Secretary. Based
on his review of medical records,2 Dr. Hernandez concluded
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2. Dr. Hernandez's assessment, made in January 1988, does
not state specifically that he reviewed appellant's entire
medical record. The assessment form indicated, however, that
his assessment reflected appellant's condition as of December
1986, which would have required his review of appellant's
medical records as of that time. Dr. Hernandez's statement
of the medical findings on which he based his assessment
mirrors primarily language found in Dr. Garayalde's 1987
report, but also reflects language only found in appellant's
other medical records. (He uses the term "PVM spasm", which
does not appear in Dr. Garayalde's report; one of appellant's
earlier medical records uses the term "paravertebral spasm.")
Moreover, the Secretary's brief on appeal states that Dr.
Hernandez reviewed appellant's "medical record" in making his
assessment, and the Secretary's initial denial of benefits,
which relied on Dr. Hernandez's residual functional capacity
assessment, indicated that both appellant's medical records
for 1982-87 and Dr. Garayalde's report were considered in
reaching that determination. We conclude that there is ample
evidence here to believe that Dr. Hernandez reviewed
appellant's entire medical record in making his residual
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that appellant's strength was somewhat limited: he could
lift or carry up to 20 pounds and could frequently lift or
carry 10 pounds; he could stand, walk or sit about six hours
in an eight-hour day; and he could push or pull light
weights. Dr. Hernandez also found that, although appellant
could stoop only occasionally, he could climb, balance,
kneel, crouch, crawl, reach, handle, and engage in other fine
motor activities with frequency. Here, where appellant's
treating physicians provided no residual functional capacity
assessment, the ALJ was entitled to rely on Dr. Hernandez's
uncontradicted assessment in determining that appellant had
the residual functional capacity to perform light work.3
Rodriguez Pagan v. Secretary of Health and Human Services,
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819 F.2d 1, 2-3 (1st Cir. 1987), cert. denied, 484 U.S. 1012
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(1988); cf. Berrios Lopez v. Secretary of Health and Human
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Services, 951 F.2d 427, 430-32 (1st Cir. 1991) (discussing
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functional capacity assessment. We note, however, that we
would not assign much evidentiary weight to an assessment
that did not take into account a claimant's entire relevant
medical record, especially where, as here, the Secretary's
own medical assessments were based on examinations or
evaluations conducted fairly long after the relevant
disability period.
3. Dr. Hernandez's residual functional capacity assessment
also has evidentiary value because he appears to have
reviewed appellant's medical status carefully before making
his assessment. Correspondence in the record indicates that
Dr. Hernandez asked Dr. Garayalde to provide an evaluation of
appellant's muscle weakness, information which was not in Dr.
Garayalde's initial report and which Dr. Hernandez stated was
necessary before he could assess appellant's residual
functional capacity.
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the circumstances under which an ALJ may credit a non-
examining, non-testifying medical consultant's residual
functional capacity assessment over a treating physician's
assessment); Arroyo v. Secretary of Health and Human
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Services, 932 F.2d 82, 87-88 (1st Cir. 1991) (the ALJ
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supportably relied on the residual functional capacity
assessment of non-examining consultants though treating
physicians had expressed contrary opinions). Indeed, we
would not have permitted the ALJ to make a residual
functional capacity determination on the basis of raw test
data under the circumstances present here. See Rosado v.
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Secretary of Health and Human Services, 807 F.2d 292, 293-94
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(1st Cir. 1986) (the ALJ could not draw his own conclusions
about a claimant's functional capacity from raw medical data
not analyzed by a physician in functional terms where a
contrary medical report by an examining physician described
the claimant's functional capacity in relevant, nonconclusory
detail); Berrios v. Secretary of Health and Human Services,
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796 F.2d 574, 576 (1st Cir. 1986) (the Appeals Council could
not base its denial of benefits on its interpretation of raw,
technical data contained in one medical report where a
contrary report interpreted medical data in functional
terms).
For the same reason, appellant's objections that he
could not perform light work requiring standing for six hours
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a day and that the ALJ needed a medical advisor to help him
interpret appellant's medical record are without merit. Dr.
Hernandez acted essentially as medical advisor, analyzing the
raw medical data to determine appellant's residual functional
capacity. No other physician analyzed appellant's functional
capacity. Thus, Dr. Hernandez's assessment that appellant
could perform light work was uncontradicted by any other
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professional testimony. Furthermore, the ALJ determined that
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appellant's testimony that he could not engage in even light
work was not fully credible. Appellant's medical records
showed that appellant sometimes went for many months without
seeking medical treatment for his condition and that
conservative intervention (medication and physical therapy)
improved his condition when it became painful. In light of
this evidence, the ALJ's decision not to fully credit
appellant's testimony as to the intensity of his pain and its
effect on his physical capacity was reasonable and is
entitled to our deference. See Irlanda Ortiz v. Secretary of
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Health and Human Services, 955 F.2d 765, 769 (1st Cir. 1991)
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(although appellant had an objective medical impairment that
could reasonably be expected to produce pain, the ALJ
supportably decided that the claimant's complaints were not
credible to the extent alleged since medical records
indicated, among other things, that at times claimant's
condition improved and that in some years claimant received
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no treatment at all for his back condition). Appellant also
claims that the ALJ should not have "mentioned" or "used in
argument" the fact that appellant was reluctant to undergo
surgery or further physical therapy. Appellant points out
that Social Security Ruling 82-59 permits a determination
that a claimant has not followed prescribed treatment that
could remove the alleged disability only after the claimant
is notified that refusing treatment could result in the loss
of disability benefits and is given an opportunity to undergo
treatment.4 Appellant argues that he was not so informed or
given an opportunity for treatment. Although the ALJ did
mention the appellant's reluctance to undergo surgery or to
continue physical therapy when describing appellant's medical
history, he did not "find" that appellant had failed to
follow prescribed treatment, nor did he base his finding that
appellant was not disabled on that fact. Rather, he
determined that appellant was not disabled because his
residual functional capacity permitted him to engage in light
work. Thus, one of the conditions for applying the Ruling--
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4. The policy statement prefacing the Ruling indicates that
the determination that a claimant has not followed prescribed
treatment essentially constitutes a determination that the
claimant is not disabled for purposes of receiving benefits
under the Social Security Act. See SSR 82-59, reprinted in
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[Rulings 1975-82] Soc. Sec. Rep. Serv., at 793 ("An
individual who would otherwise be found to be under a
disability, but who fails without justifiable cause to follow
treatment prescribed by a treating source which . . . can be
expected to restore the individual's ability to work, cannot
be found to be under a disability.").
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that the claimant's impairment precludes any substantial
gainful activity--did not exist here. For that reason,
Ruling 82-59 does not apply, and appellant's objection is not
on target.5
Appellant further complains that the ALJ "discarded"
without explanation the testimony he was required to obtain
under Avery v. Secretary of Health and Human Services, 797
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F.2d 19 (1st Cir. 1986). We conclude that the ALJ adequately
considered the Avery factors. First, he thoroughly assessed
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appellant's medical history and subjective complaints of
pain, and in so doing described "the nature, location, onset,
duration, frequency, radiation and intensity" of appellant's
pain. The medical record persuaded him that appellant had a
severe impairment with attendant pain. But he found that the
impairment was not as severe or continuous as the disability
described in Appendix 1 of 20 C.F.R. Part 404, Subpart P, and
that appellant's pain was not as intense as he alleged.
Second, the ALJ determined that heavy and medium lifting and
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5. We note, however, that we see no reason why an ALJ should
not consider a claimant's refusal to undergo treatment when
determining issues other than that of the actual existence of
the alleged disability, e.g., when making credibility
determinations. A claimant's refusal to continue therapy
that is shown to have alleviated pain would certainly be
relevant in judging the severity of the pain alleged by the
claimant. Cf. Irlanda Ortiz v. Secretary of Health and Human
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Services, 955 F.2d 765, 769 (1st Cir. 1991) (the Secretary
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could infer from appellant's failure to seek any medical
treatment at all that appellant's pain had not been as
intense as alleged).
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carrying were activities that would be "precipitating and
aggravating factors" under Avery. He noted, for example,
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that the lifting of cement bags in April 1987 had exacerbated
appellant's back condition. Accordingly, he found that
appellant should engage only in light lifting and carrying.
Third, although the ALJ did not describe appellant's
medication for his back pain by name or dosage, he elicited
testimony about appellant's medication and reviewed
appellant's medical records, concluding that appellant had
been treated "conservatively" with muscle relaxants and anti-
inflammatories with "good results . . . and no side effects."
Fourth, the ALJ noted that appellant had also undergone other
treatment, i.e., physical therapy, with "good results . . .
and no side effects." Fifth, he analyzed appellant's
functional capacity, crediting appellant's allegations of
pain and physical limitation only to the extent that they
showed that appellant could not perform heavy or medium work.
Crediting Dr. Hernandez's report over appellant's subjective
complaints, he determined that appellant would be able to
engage in light work. Last, the ALJ considered evidence of
appellant's daily activities, which had been offered to show
appellant's limited physical capacity. He rejected that
evidence because it described appellant's condition as of a
time when appellant's eligibility for disability benefits had
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already expired. Thus, the ALJ considered each of the Avery
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factors, and we see no error in his decision on that score.
Finally, appellant complains that the ALJ emphasized the
absence of motor or neurological deficits in his decision,
and claims that there is no requirement that a claimant
establish a neurological motor deficit in order to verify
alleged back pain. Appellant's contention is without merit.
As part of the five-step procedure used in determining an
applicant's qualification for disability benefits, the ALJ
was required to determine whether or not the appellant's
condition equalled the severity criteria listed in the
relevant regulations. He concluded that appellant did not
have the "consistent clinical neurological deficits as
required by Section 1.05(c) of the Listing. He was not found
with neurological sensory, reflex and motor abnormalities . .
. ." Because this language reflects the language used in the
regulations, it was entirely appropriate. See 20 C.F.R. Part
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404, Subpart P, Appendix 1, 1.00B ("There must be a
detailed description of the orthopedic and neurologic
examination findings. The findings should include a
description of . . . motor and sensory abnormalities, muscle
spasm, and deep tendon reflexes."); 1.05C ("1. Pain, muscle
spasm, and significant limitation of motion in the spine; and
2. Appropriate radicular distribution of significant motor
loss with muscle weakness and sensory and reflex loss.").
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Accordingly, we affirm the judgment of the district
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court.
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Document Info
Docket Number： 92-1250
Filed Date： 10/19/1992
Precedential Status： Precedential
Modified Date： 3/3/2016