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USCA1 Opinion
June 1, 1994 [NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 93-2349
CRUZ L. GARCIA,
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
Selya, Cyr and Boudin,
Circuit Judges.
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Helen E. M. Briganti on brief for appellant.
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Guillermo Gil, United States Attorney, Maria Hortensia Rios,
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Assistant United States Attorney, and Thomas D. Ramsey, Assistant
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Regional Counsel, Department of Health & Human Services, on brief
for appellee.
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Per Curiam. The claimant, Cruz L. Garcia, appeals from
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a district court judgment affirming a decision of the
Secretary of Health and Human Services denying her
application for disability insurance benefits. For the
reasons stated below, we affirm.
I.
Claimant was born on June 16, 1933. She completed high
school and has one year of college education. Between 1976
and 1982, she worked for the Commonwealth of Puerto Rico as a
revenue officer. Prior to that, she worked for eighteen
years as a disbursement clerk. She stopped working on
December 31, 1982, at age forty-nine, "because her nervous
condition became so terrible." She has not worked since
then. On her last insured date, December 31, 1987, she was
age fifty-four.
On January 15, 1991, claimant filed an application for
benefits alleging that she is disabled by a nervous
condition, herniated disk, pinched nerves, asthma, and
fibrositis in her hands. She alleged an onset date of
December 31, 1982.1 She claimed that her doctors had told
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1. Claimant had applied for benefits once before, alleging
the same onset date, and her application had been denied on
May 14, 1984. The Administrative Law Judge believed that the
Social Security Disability Benefits Reform Act of 1984
required him to consider evidence of claimant's mental
condition from the alleged onset date. The district court
held, however, that our decision in Mazzola v. Secretary of
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Health & Human Servs., 795 F.2d 222 (1st Cir. 1986) (per
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curiam) precluded any such redetermination, and that the ALJ
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her not to perform household tasks because of her herniated
disc, as well as her pinched nerve condition. She also
claimed that she does not go outside the home unescorted due
to her mental condition, that her husband does the housework,
and that she goes to church once or twice a week. The Social
Security Administration denied claimant's application
initially and on reconsideration.
Claimant obtained a hearing before an Administrative Law
Judge (ALJ) on December 2, 1991. She was represented by an
attorney. In addition to the claimant, a vocational expert
(VE) testified.
At the hearing, claimant testified that she ceased
working at the end of 1982 because her nervous condition
rendered her unable to follow instructions or remember
procedures. This nervous condition, she testified, has
worsened since 1984. According to the claimant, she gets
lost when she is outside the home unescorted, and she suffers
from feelings of sadness, migraine headaches, crying spells,
and suicidal impulses. She also testified that she has back
pain which forces her to depend upon her husband for most
chores and is only relieved when she lies down. Although she
takes pain medication, it does not provide full relief. She
testified that she cannot sit for more than one half hour at
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should only have considered the period after May 14, 1984 for
all of claimant's disabilities. Plaintiff has not challenged
this ruling on appeal.
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a time without needing to change her position. Claimant also
complained of asthma and mentioned operations that she has
had on her arms for pinched nerves.
The VE identified claimant's former jobs as skilled,
light work (revenue officer) and semi-skilled, sedentary work
(disbursement clerk). The ALJ posed a hypothetical to the VE
which assumed that claimant, at the time she was last
insured, had various moderate mental limitations and was
capable of light work, with the restriction that she needed
to be able to alternate positions at will.2 These mental
limitations included moderate limitations in her capacity to
understand, remember, and carry-out detailed instruction, as
well as in her capacity to maintain concentration for
extended periods of time. The VE testified that claimant's
moderate mental limitations limited her to unskilled work.
He then identified three jobs that claimant could have
performed--final examiner in the electronics industry,
stamper in electronics, and electric cord cutter--which
existed in significant numbers in the national and local
economy through December 31, 1987. These jobs, the VE
testified, permit alternation of positions at will. The VE
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2. The hypothetical also assumed that claimant was age
forty-nine at onset of her alleged disabilities and age
fifty-four on her last insured date; that she had one year of
college education; that she had past, skilled and semi-
skilled, work experience; and that she needed to work in an
adequately ventilated environment, free of extremes in
temperature, dust, and gas fumes.
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also testified that if claimant's subjective allegations were
completely credible, she could not have performed these or
any other job on a sustained basis.
The ALJ found that although claimant has a combination
of mental and back conditions, as well as bilateral
compression of ulnar nerve and carpal tunnel syndrome,
claimant did not have an impairment or combination of
impairments equivalent to one of the listed impairments prior
to the expiration of her insured status. He also found that
claimant was unable to perform her past work. However, the
ALJ concluded that claimant, prior to the expiration of her
insured status, had the residual functional capacity for
light, unskilled work, with the additional limitation that
she needed to be able to alternate positions occasionally.
Finally, the ALJ ruled that, based on the testimony of the VE
and application of the Grid, claimant was not disabled at
step five of the sequential analysis because there were jobs
in the economy that she could have performed through December
31, 1987.
The Appeals Council denied review. An appeal was taken
to the district court. The district court accurately
summarized the medical records. It found that the decision
of the Secretary is supported by substantial evidence and
affirmed the denial of benefits. This appeal followed.
II.
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Claimant contends that the ALJ erred at step three of
the sequential evaluation in finding that her impairments did
not meet or equal a listed impairment in 20 C.F.R. Pt. 404,
Subpt. P, App. 1. In particular, she argues that (1) a
determination of medical equivalency must be made by a
physician, (2) the record contains no determination of
medical equivalency by a physician who takes into account
claimant's combined impairments, and (3) the ALJ's
determination that her condition did not equal a listed
impairment, made without the testimony of a medical expert at
the administrative hearing, was error. Claimant also argues
that the ALJ erred in failing to consider "the disease
process of the [her] emotional and musculoskeletal
impairments" and "the functional consequences and physical
limitations which would be expected to occur as the disorder
advance [sic]." We disagree.
We note, as a preliminary matter, that it is the
claimant's burden to show that she has an impairment or
impairments that meet or equal a listed impairment in
Appendix 1. Torres v. Secretary of Health & Human Servs.,
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870 F.2d 742, 745 (1st Cir. 1989) (per curiam). Garcia does
not state, in her brief, which listing she purportedly
equals, much less present a substantive argument indicating
how, allegedly, she equals a listed impairment. We add that
the record contains determinations by a consulting
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psychologist and psychiatrist that her mental condition did
not meet or equal a listed impairment through December 31,
1987. See 20 C.F.R. 404.1526(b) (stating that the
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Secretary will consider the medical opinion given by one or
more designated consultants in determining medical
equivalence). Under the circumstances, no testimony by a
medical expert on this issue was necessary. Furthermore,
because the record demonstrated that during the insured
period, claimant's physical impairments were relatively mild
and responded to treatment, the ALJ was not required to
obtain a medical opinion which addressed whether claimant's
combined impairments equalled a listing.
We also reject claimant's contention that the ALJ erred
in failing to consider the likely progression of her
impairments. A claimant is not entitled to disability
benefits unless she can demonstrate that her disability
existed prior to the expiration of her insured status. Cruz
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Rivera v. Secretary of Health & Human Servs., 818 F.2d 96, 97
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(1st Cir. 1986) (per curiam), cert. denied, 479 U.S. 1042
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(1987). It is not sufficient for a claimant to establish
that her impairment had its roots before the date that her
insured status expired. Rather, the claimant must show that
her impairment(s) reached a disabling level of severity by
that date. See, e.g., Deblois v. Secretary of Health & Human
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Servs., 686 F.2d 76, 79 (1st Cir. 1982). The ALJ properly
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focused on whether claimant's impairments met or equalled a
listing through December 31, 1987, the date she was last
insured.
Claimant also argues that the ALJ erred at step five of
the sequential analysis. In particular, she contends that
(1) the ALJ did not properly evaluate her claim of subjective
pain; (2) the ALJ erred in not obtaining residual functional
capacity assessments from her treating physicians, in
addition to those obtained from the consultants; and (3) the
ALJ could not properly conclude that she had the residual
functional capacity to do light work in the absence of any
assessment in the record of her capacity for stooping or
crouching.
Contrary to claimant's allegations, the ALJ's evaluation
of her complaints of pain comports with our decision in Avery
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v. Secretary of Health & Human Servs., 797 F.2d 19 (1st Cir.
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1986). Claimant was questioned regarding her daily
activities, functional restrictions, medication, frequency
and duration of pain, and precipitating and aggravating
factors. See id. at 29. Although claimant testified that
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she has back pain which forces her to depend upon her husband
for most chores and is only relieved when she lies down, she
did not focus her testimony on the relevant insured period.
Medical records from that period indicate that her occasional
back and neck pain responded to treatment. A psychiatric
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evaluation indicates that in July 1987, just five months
prior to the expiration of her insured status, claimant's
daily activities included rising early, eating breakfast,
cooking, washing, caring for her personal hygiene, and going
out. We believe that the ALJ supportably credited claimant's
allegations of disabling pain during the insured period only
to the extent that they precluded medium or heavy exertion.
We also reject claimant's contention that the ALJ erred
in not obtaining residual functional capacity assessments
from her treating physicians, in addition to those obtained
from the consultants. In Browne v. Richardson, 468 F.2d
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1003, 1006 (1st Cir. 1972), we held that, on the facts of
that case, a written report submitted by a non-examining,
non-testifying physician could not alone constitute
substantial evidence to support the Secretary's conclusion.
Our later cases, however, demonstrate that this principle is
by no means an absolute rule. Berrios Lopez v. Secretary of
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Health & Human Servs., 951 F.2d 427, 431 (1st Cir. 1991) (per
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curiam). Advisory reports such as those submitted by the
consulting psychologist and psychiatrist here are entitled to
evidentiary weight, which "will vary with the circumstances,
including the nature of the illness and the information
provided the expert." See id. (quoting Rodriguez v.
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Secretary of Health & Human Servs., 647 F.2d 218, 223 (1st
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Cir. 1981)). In the instant case, there is every indication
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that the consultants had available to them most, although not
all, of the medical evidence for their review. Moreover,
their conclusions that claimant suffers from moderate mental
limitations, but could function in a simple, repetitive
environment, were mutually reinforcing. In this context, we
think the advisory reports were sufficient to support the
Secretary's conclusion that claimant had the mental capacity
to perform unskilled work. Cf. Tremblay v. Secretary of
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Health & Human Servs., 676 F.2d 11, 13 (1st Cir. 1982)
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(affirming the Secretary's adoption of the findings of a non-
testifying, non-examining physician and permitting those
findings by themselves to constitute substantial evidence in
the face of a treating physician's conclusory statement of
disability).
Claimant's remaining claimed error--that the record
contains no assessment of her capacity for stooping and
crouching--was not raised in the district court and so is not
preserved for our review. See Gonzalez-Ayala v. Secretary of
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Health & Human Servs., 807 F.2d 255, 256 (1st Cir. 1986) (per
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curiam). Having reviewed the record, we are persuaded that
the Secretary's decision denying claimant benefits is
supported by substantial evidence. Accordingly, we affirm
that decision.
Affirmed.
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Document Info
Docket Number： 93-2349
Filed Date： 6/2/1994
Precedential Status： Precedential
Modified Date： 9/21/2015