Maldonado v. SHHS ( 1993 )

July 7, 1993
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 92-2186
LUZ GONZALEZ MALDONADO,
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., U.S. District Judge]
Before
Torruella, Cyr and Stahl,
Circuit Judges.
Raymond Rivera Esteves and Juan A. Hernandez Rivera on brief for
appellant.
Daniel F. Lopez Romo, United States Attorney, Jose Vazquez
Garcia, Assistant United States Attorney, and Donna C. McCarthy,
Assistant Regional Counsel, Department of Health and Human Services,
on brief for appellee.
Per Curiam. Claimant, Luz Gonzalez Maldonado,
applied for social security insurance benefits on March 8,
1989, alleging that problems with her "back, nerves, and
hands" had disabled her from working since September 20,
1980. Claimant was thirty-four years of age on the alleged
onset date. Her disability insurance coverage ended on March
31, 1985, some four years prior to this application.
Initially, the agency determined that, as of that date,
claimant's mental condition prevented her return to her prior
work as an electronics welder because it required good
concentration, but that, otherwise, she retained physical and
mental abilities to perform other work. Upon
reconsideration, the no-disability finding was affirmed.
After a hearing, an Administrative Law Judge
("ALJ") concluded that, as of the time she was last insured
for disability purposes, claimant could still perform her
past job as a solderer of television tubes. Upon judicial
review, a magistrate judge surveyed the evidence and, in a
comprehensive report,1 recommended affirming the ALJ's
decision. The district court agreed, and claimant took this
appeal. We conclude that the ALJ's finding that claimant's
mental condition was not severe and did not impose any
limitation of function on or before March 31, 1985, is not
supported by substantial evidence, and vacate and remand for
further proceedings.
1. We have reviewed all the evidence and, in light of the
magistrate-judge's recapitulation, do not recount it here.
I.
Our focus is on step four of the Secretary's
sequential evaluation process. 20 C.F.R. 404.1520(e). At
this stage, the initial burden is on the claimant to show
that she can no longer perform her particular former work
because of her impairments. Santiago v. Secretary of HHS,
944 F.2d 1, 5 (1st Cir. 1991). Then, the ALJ must compare
the physical and mental demands of that past work with
current functional capability or, as here, functional ability
in the critical period. Id. In making a step four
appraisal, the ALJ is entitled to credit claimant's own
description of her former job duties and functional
limitations, id., but, as Santiago cautions:
[A]n ALJ may not simply rely upon the
failure of the claimant to demonstrate
that the physical and mental demands of
her past relevant work can no longer be
met, but once alerted by the record to
the presence of such an issue, must
develop the record further.
Id. at 5-6 (quotation marks and citations omitted). There is
substantial evidence that claimant met her initial burden to
provide information about the activities her usual work
required and her functional inability to perform that work.
There is also uncontradicted evidence, which the ALJ did not
address or explain, that the claimant's mental functioning in
the critical period was, overall, moderately limited as a
result of her mental condition. Because this evidence,
-3-
together with claimant's statements, squarely put into issue
whether claimant's mental condition prevented her from
performing a particular job as she had performed it in the
past, the ALJ was not, as the following discussion indicates,
free to ignore it.
II.
We begin by noting that claimant does not challenge
the ALJ's determination as to her physical impairment (severe
cervical and lumbar myositis) or physical residual functional
capacity ("RFC") (light exertion) in the critical period. In
deciding that claimant could then still perform light work,
the ALJ gave some credence to claimant's pain complaints, a
conclusion that is reasonably supported in the record.
A.
With respect to claimant's allegations that the
mental condition she developed after she stopped working
prevented her return to that work, the ALJ stated:
The claimant has been followed during the
crucial period for an emotional
component. However, the medical evidence
so far considered does not show the
presence of any severe emotional
impairment. The claimant's capacity to
perform basic work related activities was
not affected at all by her alleged
emotional component. There is no
evidence of severe intellectual
dysfunction, personality deterioration,
perceptual distortions, reality
detachment, deterioration of personal
habits, significant constriction of
interest, marked restriction in daily
activities, inadequate judgment or
-4-
insight, or inability to deal with the
physical or social environment. The
claimant's emotional impairment during
the crucial period was a slight
abnormality with such a minimal effect on
her that it would not be expected to
interfere with her ability to work
irrespective of age, education or work
experience.
The ALJ decided that the evidence showed a diagnosis of a
generalized anxiety disorder, but that (1) there was "no
evidence in file to support allegations of a significant
emotional illness," and (2) claimant's mental "condition did
not impose any limitation in claimant's capacity to perform
basic work-related activities on or before March 31, 1985."
In an accompanying psychiatric review technique form
("PRTF"), the ALJ rated claimant's mental impairment as non-
severe.
At the request of the disability determination
program, two non-examining psychological consultants
completed PRTFs and mental RFC assessments for the insured
period. Both consultants, Drs. McDougall and Gonzalez, rated
claimant's mental impairment as severe on the PRTF. 20
C.F.R. 404.1520(c)(1). Each consultant specifically
indicated on the accompanying mental RFC form that their
evaluation was for the "date last insured," i.e., March 1985.
The Secretary argues, however, that Dr. McDougall's 1989 PRTF
and RFC were "current" assessments and do not reflect
impairment or functioning in the insured period.
-5-
This is clearly incorrect as to Dr. McDougall's RFC
assessment which was expressly limited to the critical
period. The Secretary's own regulations for evaluating
mental impairment claims mandate the completion of a RFC
assessment if a severe mental impairment is indicated on the
PRTF. 20 C.F.R. 404.1520a(c)(3). Although the timeframe
of Dr. McDougall's PRTF was (apparently inadvertently)
omitted, the completion of a mental RFC assessment is
predicated upon a PRTF finding that a severe mental
impairment exists. Dr. McDougall, like Dr. Gonzalez, made
that predicate finding on the PRTF by checking the
disposition: "RFC necessary (i.e., a severe impairment is
present . . .)". Thus, Dr. McDougall's concomitant RFC
(clearly completed for the insured period) must cover the
same timeframe as Dr. McDougall's initial PRTF. In addition,
both consultants were specifically requested to provide a
severity assessment for the period ending March 31, 1985.
We reach this conclusion, despite two terse,
seemingly inconsistent remarks by Dr. McDougall: (1) "No
evidence to support severe condition by QC [quarters of
coverage] 3/85," and (2) "No evidence of a severe mental
condition for the years 83-85." These anomalous comments
aside, the special procedures inherent in 404.1520a
together with the information and subsidiary findings
recorded within the PRTF itself dictate that Dr. McDougall
-6-
determined that a severe mental impairment existed in the
critical period before going on to complete a RFC assessment.
Put another way, under 404.1520a, Dr. McDougall could not
have completed such an assessment for the period ending March
1985 solely upon a finding of mental severity in 1989. Thus,
since there are no contrary medical reports as to the
severity of claimant's mental impairment, the ALJ's finding
that there was no evidence to support allegations of a
significant emotional illness in the relevant period is not
supported by substantial evidence.
B.
We turn to the evidence of claimant's mental
functioning in the critical period. Dr. McDougall saw
claimant as predominantly anxious with depressive traits,
whereas Dr. Gonzalez found a mood disorder characterized by
depression. Nonetheless, in evaluating the twenty mental
activities related to the ability to sustain essential work
activities on a regular basis, both consultants found the
claimant's functioning moderately limited in eleven of the
twenty abilities. Both agreed that eight areas of mental
functioning were moderately compromised, specifically, the
abilities to: maintain attention and concentration for
extended periods; perform activities within a schedule; work
in coordination with or proximity to others; complete a
normal workday and workweek and perform at a consistent pace;
-7-
interact appropriately with the general public; respond
appropriately to changes in the work setting; be aware of
normal hazards; and travel in unfamiliar places or use public
transportation. As this evidence is uncontroverted, we do
not find record support for the ALJ's finding that claimant's
mental condition imposed no limitation on her ability to
perform basic work activities in the relevant period.
C.
Based upon vocational information and testimony
provided by the claimant, the ALJ decided:
[S]he has worked as a solderer and
machine operator in a factory. The
claimant's past relevant work can be
considered as low semiskilled in nature.
He[r] work as [a] soldering power machine
and machine operator entailed medium
exertion. However, the activity she
performed . . . soldering TV set (tubes)
is considered of slight nature and was
performed alternating positions. We are
convinced that the claimant was still
capable of performing her past relevant
work . . . soldering TV [parts] as she
still had a residual functional capacity
for light work.
The claimant described her job using a power machine to
solder electronic parts:
I united parts by means of soldering a
tin wire which served as a fixer. We
used a pedal machine which . . . served
to heat the part being worked to ``red
hot.' The tin wire was then placed to
serve as the soldering medium. Then, the
part would be cooled off in . . . trays
full of cold water. This procedure was
performed daily.
-8-
According to claimant, the job welding television tubes was
similar:
The parts were smaller and the machine
used was more modern. The soldering was
done with the very same machine.
From these descriptions (the opinion of a vocational expert
was not obtained), it seems fairly obvious that claimant's
former job soldering television parts required an ability to
concentrate and remain focused on the machinery used and the
tasks at hand. Here, where the uncontroverted reports of the
only two medical consultants to render an opinion as to
mental functioning in the insured period found claimant's
ability for sustained attention and concentration moderately
limited, the ALJ's conclusion that claimant could perform the
physical and mental demands of her past work was not
supported by substantial evidence.2 See Higgarty v.
Sullivan, 947 F.2d 990, 996-97 (1st Cir. 1991).
III.
Because the ALJ did not address or otherwise
explain whether claimant's mental functioning significantly
affected her ability to perform particular past work, or that
occupation as it is generally performed, see Social Security
Ruling 82-61; Santiago, 944 F.2d at 5 n.1, the case is
2. Claimant's initial and reconsideration denials, each of
which concluded that claimant could not perform her former
work, are also entitled to some evidentiary weight. 20
C.F.R. 404.1512(b)(5); see also Kirby v. Sullivan, 923 F.2d
1323, 1327 (8th Cir. 1991).
-9-
remanded for further proceedings in accordance with this
opinion. We may not, despite the invitation of the
Secretary, conclude that claimant was unable to perform her
past relevant work during the period in question, and apply
the medical-vocational guidelines, 20 C.F.R. Part 404,
Subpart P, App. 2, to find the claimant disabled. See
Securities & Exchange Comm. v. Chenery Corp., 318 U.S. 80,
93-95 (1943). We have considered claimant's other arguments
and find them without merit for the reasons stated in the
report of the magistrate-judge.
The judgment of the district court is vacated and
the case is remanded with directions to remand to the
Secretary for further proceedings.
-10-