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USCA1 Opinion
February 15, 1994
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 93-1861
ANA L. OCASIO VAZQUEZ,
Plaintiff, Appellant,
v.
SECRETARY OF HEALTH AND HUMAN SERVICES,
Defendant, Appellee.
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ERRATA SHEET
The opinion of this Court issued on February 9, 1993,
is ammended as follows:
On cover sheet "February 9, 1993" should be corrected
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to read "February 9, 1993".
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February 9, 1994 [NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
___________________
No. 93-1861
ANA L. OCASIO VAZQUEZ,
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. Juan M. Perez-Gimenez, U.S. District Judge]
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___________________
Before
Breyer, Chief Judge,
Selya and Cyr, Circuit Judges.
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Juan A. Hernandez Rivera and Raymond Rivera Esteves on
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brief for appellant.
Guillermo Gil, United States Attorney, Maria Hortensia
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Rios, Assistant United States Attorney, and Robert J. Triba,
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Assistant Regional Counsel, Department of Health and Human
Services, on brief for appellee.
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Per Curiam. Ana L. Ocasio Vazquez (claimant) appeals
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from a district court judgment affirming the decision of the
Secretary of Health and Human Services denying her
application for disability benefits. For the reasons stated
below, we affirm.
BACKGROUND
Claimant was born on September 25, 1946, and applied for
benefits when she was forty three years old. She has a
seventh grade education and does not speak English. Between
1970 and 1988, she was employed as a sewing machine operator.
In 1978, she suffered trauma to her left knee and underwent a
left medial meniscectomy. She returned to work but injured
the same knee in 1982. Claimant continued to work until
March 15, 1988, when pain in her left leg worsened. She was
hospitalized for several days and, thereafter, did not return
to work.
On February 2, 1990, claimant filed her application for
benefits alleging that she was disabled by phlebitis in her
left leg, sinusitis, headaches, back pains, and nerves.1
She claimed that she could not work because:
My leg becomes swollen and my two legs go numb.
The backache and the headaches are frequent. At
night, I don't sleep much. Before, I used to turn
the house upside down [to give it a thorough
cleaning] but I can't do it anymore.
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1. Phlebitis is inflammation of a vein. See Dorland's
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Illustrated Medical Dictionary 1279 (27th ed. 1988).
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Sinusitis is inflammation of a sinus. Id. at 1531.
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The Social Security Administration denied claimant's
application initially and on reconsideration.
Claimant obtained a hearing before an Administrative Law
Judge (ALJ) on March 19, 1991. She was represented by an
attorney. In addition to the claimant, a medical expert (ME)
and a vocational expert (VE) testified.
At the hearing, claimant reiterated her claims about her
leg and back conditions, as well as headaches. She testified
that her headaches are relieved by medication, but that the
relief is only temporary. She also complained of pain and
numbness in her upper left shoulder, dizzy spells, and "teary
and itchy" eyes. With respect to her physical limitations,
claimant testified that she could not sit for more than one
half hour at a time, that she could not walk a distance of
more than four or five houses before pain in her back and
legs caused her to return home, and that sometimes her leg
pain was so strong that she had to lie down.2
The ME testified that claimant had only a very mild loss
of movement in her knee and suffered from "superficial
phlebitis, which though painful when occurring, is
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2. Although claimant testified that she did not think that
she could work, she also testified that she had not tried to
find a job because:
I don't feel capable. I don't know what
kind of work to look for because nowadays
one has to have a degree to get a
comfortable job and I don't have it.
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inconsequential."3 He concluded that "in terms of her
functioning, there isn't a great degree of limitation." With
respect to claimant's back pain, the ME testified that her
condition "at no time is characterized as abnormal." He
found no evidence of objective neurological pain. In
summation, the ME testified that "[he didn't] see the
severity in any of the conditions that [claimant] mentioned,"
even as a whole, and that she should try to find a job that
did not involve repetitive foot movements.
The VE identified claimant's former work as a sewing
machine operator as light and semi-skilled. The ALJ posed a
hypothetical to the VE which assumed that claimant can sit
for five hours in an eight hour day; can stand for three to
four hours in the same period; can lift ten pounds
frequently, and twenty-five pounds occasionally; can pull and
push with her hands, but not make repetitive leg movements;
and can bend and squat occasionally.4 The VE concluded that
claimant could not do her past work as a sewing machine
operator, because it required her to sit all day and to
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3. The ME testified that "superficial phlebitis is an
inflammation of the superficial veins in the legs and the
varicose veins, as we commonly know them are the ones seen
through the skins, they sometimes swell get reddish and could
be very painful, but besides being temporarily uncomfortable,
it is not a condition that's considered serious."
4. The hypothetical also assumed that claimant was somewhat
limited in her ability to work at unprotected heights, around
operating machinery, or in an environment where she would be
exposed to extreme changes in temperature.
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alternate her legs frequently. However, he identified three
other jobs within the clothing industry--garment bagger, spot
cleaner, and garment inspector--that claimant could perform.
In these jobs, the VE testified, claimant could change her
position at will. The VE further testified that claimant
could perform these jobs if she had mild pain.
The ALJ found that the combined effect of claimant's
status post left meniscectomy, status post left superficial
phlebitis, and sinusitis are severe. He also found that
claimant is unable to perform her past work. However, the
ALJ concluded that claimant has the residual functional
capacity to perform within sedentary to light exertional
demands.5 The AlJ further concluded that claimant's
allegations of left leg and knee pains do not disable her
from performing sedentary to light work. Finally, the ALJ
ruled that, based on the testimony of the vocational expert
and application of the Grid, claimant is not disabled at step
five of the sequential analysis because there are other jobs
that she can perform.
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5. The ALJ went on make specific findings that claimant has
the capacity:
to perform the physical exertion requirements of
work except for sitting over five hours, standing
and walking over three to four hours, lifting and
carrying over 10 pounds frequently and 25 pounds
occasionally, performing repetitive actions with
her lower extremities and exposure to unprotected
heights, moving machinery or abrupt changes in
temperature.
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The Appeals Council denied review. An appeal was taken
to the district court, where a magistrate-judge concluded
that the Secretary's decision was supported by substantial
evidence. The district court adopted the magistrate's report
and recommendation. This appeal followed.
MEDICAL HISTORY
The medical record is well-summarized in the ALJ's
report, and we need only provide a brief overview here. In
late February and early March 1988, claimant saw doctors at
the State Insurance Fund for pain and swelling in her left
knee. On March 21, 1988, claimant was hospitalized for these
complaints. A left leg venogram was negative for thrombosis,
but an x-ray indicated joint space narrowing compatible with
osteoarthritis. Claimant was prescribed an anti-inflammatory
medication and discharged on March 25, 1988. At the time of
discharge, she was not experiencing leg discomfort and there
were no restrictions on her activities.
After her release from the hospital, claimant underwent
further tests and her left leg condition was diagnosed as
superficial thrombophlebitis. She continued to be seen by
doctors at the State Insurance Fund for complaints of pain in
her left leg. A questionnaire completed by her personal
physician, Dr. Justimo Betancourt, on March 23, 1990,
indicates that she had difficulty walking on her left leg,
but had no inflammation. Dr. Betancourt also reported that
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claimant had a history of maxillary sinusitis and that she
had occasional dizzy spells.
An internist evaluation done by Dr. Isabel Cestero, on
March 30, 1990, noted that claimant complained of pain and
numbness in her left leg, as well as swelling if she remained
standing. Laboratory results for the left knee were normal,
but a back x-ray indicated minimal narrowing of the lumbo
sacral spine at L5-S1. Tests revealed some limitation in
mobility in the left knee (0 - 100 out of a possible range
of 0 - 120 ). The diagnosis was status post left
meniscectomy and status post left superficial phlebitis.
On September 21, 1990, Dr. Betancourt reported findings
similar to those he reported on March 23, 1990, although he
also noted left leg skin changes with edema. On September
28, 1990, an x-ray of claimant's cervical spine showed
straightening secondary to muscle spasms, as well as minimal
levoscoliosis.
DISCUSSION
On appeal, claimant raises two issues. First, claimant
argues that the ALJ failed to give proper consideration to
her subjective complaints of disabling pain. Second,
claimant contends that the ALJ's conclusions about her
physical exertional capacity are not supported by substantial
evidence because they were reached without any assessment of
residual functional capacity by a physician.
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With respect to claimant's argument that the ALJ failed
to properly evaluate her claim of subjective pain, we note
that although it was considered and rejected by the
magistrate, it was not encompassed in claimant's objection to
the magistrate's report. It is well-settled in this circuit
that a party may not obtain appellate review of an issue
determined by a magistrate when the party has failed to file
a timely objection to the magistrate's determination of the
issue as required by 28 U.S.C. 636(b). See Thomas v. Arn,
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474 U.S. 140, 147-48 (1985); Keating v. Secretary of Health &
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Human Services, 848 F.2d 271, 273 (1st Cir. 1988) (per
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curiam); Park Motor Mart, Inc. v. Ford Motor Co., 616 F.2d
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603, 605 (1st Cir. 1980). Accordingly, the issue is waived.
We add that even if we were to consider the issue, we
would disagree. Claimant was questioned regarding her daily
activities, functional restrictions, medication, and
frequency and duration of pain in conformity with the
guidelines set out in Avery v. Secretary of Health & Human
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Services, 797 F.2d 19 (1st Cir. 1986).6 In light of the
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lack of medical evidence to suggest an objective basis for
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6. Although more thorough questioning at the hearing
regarding claimant's daily activities would have been
preferable, the record included a questionnaire which
elicited this information from her. Claimant stated that she
spent most of the time lying down, but also stated that she
cooked occasionally and that she visited close relatives.
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disabling pain, the ALJ, who observed claimant's demeanor at
the hearing, was entitled to make a credibility determination
regarding claimant's pain, Da Rosa v. Secretary of Health &
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Human Services, 803 F.2d 24, 26 (1st Cir. 1986) (per curiam),
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and to conclude that her pain did not disable her from
performing within sedentary to light exertional demands. See
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Perez v. Secretary of Health & Human Services, 958 F.2d 445,
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448 (1st Cir. 1991) (per curiam).
The ALJ's finding that claimant has the residual
functional capacity to do sedentary to light work is slightly
more problematic, though we ultimately conclude that it is
supported by substantial evidence. It is true that we have
held that an ALJ is not qualified to interpret "raw medical
data" in functional terms. See Perez, 958 F.2d at 446. We
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have also stated, however, that the Secretary is not
precluded from rendering common-sense judgments about
functional capacity based on medical findings." Gordils v.
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Secretary of Health & Human Services, 921 F.2d 327, 329 (1st
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Cir. 1990) (per curiam). Here, there is no residual
functional capacity analysis by an expert in the record. We
find, however, that the ALJ could make a determination that
claimant was not disabled for the following reasons. First,
the impairments in the record appear to be "relatively mild"
in the sense that the reports show few symptoms that would
affect ability to do work. See Santiago v. Secretary of
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Health & Human Services, 944 F.2d 1 (1st Cir. 1991) (per
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curiam). Second, the ALJ's "common-sense judgment" was
bolstered by the testimony of a medical expert that "there
isn't a great degree of limitation" on claimant's functional
capacity, that he "[did not] see the severity" in any of the
conditions she mentioned, and that claimant should try to
find a job that did not require her to make repetitive foot
movements. Finally, aside from claimant's allegations of
disabling pain, which we have held the ALJ was entitled to
reject, the only other claimed limitation was an inability to
sit or walk for an extended period of time. The hypothetical
posed to the VE by the ALJ assumed the truth of this claimed
limitation, and the VE identified jobs that would permit her
to alternate positions at will.
The judgment of the district court is affirmed.
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Document Info
Docket Number： 93-1861
Filed Date： 2/15/1994
Precedential Status： Precedential
Modified Date： 9/21/2015