Ramirez Morales v. SHHS ( 1993 )

USCA1 Opinion

          May 25, 1993
                                [NOT FOR PUBLICATION]


                            UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT
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        No. 92-1897 

                                CESAR RAMIREZ-MORALES,

                                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. Raymond L. Acosta, U.S. District Judge]
                                             ___________________

                                 ____________________

                                        Before

                                 Breyer, Chief Judge,
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                          Torruella and Cyr, Circuit Judges.
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            Raymond Rivera Esteves and Juan A.  Hernandez Rivera on brief  for
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        appellant.
            Daniel  F.  Lopez  Romo,  United  States  Attorney,  Jose  Vazquez
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        Garcia,  Assistant  United States  Attorney,  and  Donna C.  McCarthy,
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        Assistant Regional  Counsel, Department of Health  and Human Services,
        on brief for appellee.


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                      Per Curiam.  We have carefully reviewed the  record
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            and   conclude   that  substantial   evidence   supports  the

            Secretary's determination that claimant was not disabled when

            his insured  status expired,  and that  he retained,  at that

            time, the  physical and mental abilities to  perform a narrow

            range of  light, unskilled jobs  such as those  enumerated by

            the Administrative Law Judge ("ALJ").  We have considered all

            of  claimant's arguments  and,  finding  them without  merit,

            affirm the judgment of the district court  essentially on the

            basis of  the magistrate-judge's  report  as adopted  by  the

            district court.

                      We add these  comments.  Claimant  argues that  the

            hypothetical posed  to the  vocational  expert was  defective

            because it  did not include a  non-exertional impairment that

            the ALJ ultimately  found the claimant to  possess, namely an

            inability to  perform frequent stooping and  bending.  First,
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            light  jobs  require,  at  most, only  occasional  stooping.1

            Frustaglia v. Secretary of  HHS, 829 F.2d 192, 195  (1st Cir.
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            1987).  If a person can do some stooping and  bending, which,

            by implication,  the ALJ found here,  the "light occupational

            base is  virtually intact."    Id. (quoting  Social  Security
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            Ruling 85-15).   The narrowed  list of light-work  jobs which

            the ALJ found  claimant could  perform are a  sub-set of  the

            light  occupational  base  which  does not  involve  frequent

            stooping.  Cf. Social Security 85-15 (most medium,  heavy and
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            1.   Stooping  is  considered  the  least  strenuous  of  the
            bending  postures, and  involves  bending the  body from  the
            waist downward and forward.  Social Security Ruling 85-15.  















            very  heavy jobs  require the  ability to  stoop frequently).

            Thus, the  frequent stooping restriction has  little, if any,

            relevance to the light occupational base.

                      Second, since claimant  does not contest  the light

            work   determination,   per   se,  the   no-frequent-stooping

            restriction  does  not,  as  is  argued,  further  limit  the

            narrowed  range  of  specific  light  jobs  the  ALJ  decided

            claimant could do.2  Dr.  Ortiz, a neurologist who  performed

            an examination  for the Secretary, found  that claimant could

            occasionally  stoop.    Dr.  Grovas,  an  orthopaedic surgeon

            consulted  by claimant,  also determined  that he  could bend

            occasionally.  Thus, the  ALJ's hypothetical, as delimited to

            the range of  light work, adequately  took into account  that

            virtually all light work jobs require no more than occasional

            stooping,  an  activity  which, the  uncontradicted  evidence

            shows, remained  within  claimant's residual  capacity.   See
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            Keating  v. Secretary  of HHS,  848 F.2d  271, 274  (1st Cir.
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            1988).    Moreover,  the  claimant  had,  but  did  not  take

            advantage of,  the opportunity  to pose his  own hypothetical

            and correct any perceived  inadequacies.  Torres v. Secretary
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            of HHS, 870 F.2d 742, 746 (1st Cir. 1989).
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            2.   And, the capacity for  light unskilled work  represents,
            overall,  a  substantial  vocational  scope  for   a  younger
            individual (age 18-49) such  as claimant who was 36  when his
            insured  status expired.   Medical-Vocational  Guidelines, 20
            C.F.R. Part 404, Subpt. P, App. 2,   202.00 (g).

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                      Finally,  the  ALJ did  not, as  claimant contends,

            mechanically  apply  the  rules  of   the  Medical-Vocational

            Guidelines,  20  C.F.R.  Part  404, Subpt.  P,  App.  2  (the

            "Grid"),  to  determine the availability  of other work  that

            the claimant could  still do.  Ortiz v. Secretary of HHS, 890
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            F.2d  520,  524  (1st  Cir.  1989).    After considering  the

            individualized evidence  offered by a vocational  expert, the

            ALJ merely referred to a  particular rule3 as a  "framework",

            i.e.,   additional  support   for   the  ultimate   decision.

            Claimant's  assertion that  the  ALJ "disposed  of" the  case

            using a Grid  rule is simply incorrect.  Nor  does the record

            indicate  that  the ALJ  failed  to  consider the  cumulative

            effect of  claimant's physical  and mental impairments.   The

            ALJ's   decision  clearly  manifests   that  both  claimant's

            physical and mental residual capacity were taken into account

            in determining  a narrowed light work  occupational base, and

            substantial evidence supports those predicate findings.

                      Affirmed.
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            3.   The  ALJ  referred  to   Rule  202.21  which  directs  a
            conclusion of  "not disabled" for individuals  like claimant:
            younger, with  a high school  education and  non-transferable
            prior work skills.

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