Negron v. SHHS ( 1994 )

USCA1 Opinion

                                [NOT FOR PUBLICATION]




                                 ____________________


        No. 94-1177

                                 RUBEN RIVERA NEGRON,

                                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. Carmen Consuelo Cerezo, U.S. District Judge]
                                                ___________________


                                 ____________________

                                        Before

                                Torruella, Chief Judge,
                                           ___________
                            Selya and Cyr, Circuit Judges.
                                           ______________

                                 ____________________

            Raymond Rivera Esteves and Juan A.  Hernandez Rivera on brief  for
            ______________________     _________________________
        appellant.
            Guillermo  Gil,  United  States  Attorney,  Maria  Hortensia  Rios
            ______________                              ______________________
        Gandara,  Assistant  United States  Attorney,  and  Nancy B.  Salafia,
        _______                                             _________________
        Assistant Regional  Counsel, Department of Health  and Human Services,
        on brief for appellee.


                                 ____________________

                                   August 31, 1994
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                      Per Curiam.    Claimant, Ruben Rivera-Negron, 
                      __________

          challenges the denial of disability benefits. 

                      Mr.  Rivera-Negron  worked  in  various  laborer  and

          carpentry jobs  for many years in Puerto  Rico and New York City.

          He alleged an onset of disability  in November, 1990, due to  the

          after effects of  an undisplaced fracture of  the big toe on  his

          left  foot.  He maintained that because  of pain he was unable to

          wear heavy  shoes  required on  construction sites  where he  had

          previously worked.  

                      The Administrative  Law Judge (ALJ)  found that  "the

          claimant did not have an impairment or combination of impairments

          which  . . . significantly  limited his ability  to perform basic

          work-related  activities."   The ALJ,  therefore, terminated  the

          review process at Step 2, or the severity stage, of the five-step

          sequential inquiry.  See  Bowen v. Yuckert, 482 U.S.  137 (1987).
                               ___  ________________

          The  decision of  the  ALJ  became  the  final  decision  of  the

          Secretary when  the Appeals  Council denied review.  The claimant

          appealed to  the district court,  which affirmed the  decision of

          the Secretary.  We also affirm.  

                      The  claimant  challenges  the ALJ's  finding  of  no

          severe impairment. In  essence, the claimant argues  that the ALJ

          erred  in  his  application  of  the  threshold  test  of medical

          severity which was enunciated in  McDonald v. Secretary of Health
                                            _______________________________

          and Human  Services, 795 F.2d 1118 (1st Cir. 1986).  In McDonald,
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          this  court held that the Step 2  severity test is justified as a



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          de  minimis  screening  policy  and  that the  Secretary  is  not

          precluded from implementing a  threshold test of medical severity

          to screen out  claims that  would clearly be  disallowed even  if

          vocational factors  were considered. Id. at 1121-1126.   See also
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          Bowen v. Yuckert, 482 U.S. 137 (1987).
          ________________

                      The  State Insurance  Fund  concluded   claimant  had

          suffered   a  "[l]oss  of  50%   of  the  GPF  [general  physical

          functioning]  due to a  loss of the  large toe in  the left foot-

          secondary articulation."  However, an examination  several months

          later  in July 1991 found no remaining abnormality in the toe, no

          redness or swelling,  and full range of motion.   Notwithstanding

          claimant's  complaints  of  cramps,  pain  and  an  inability  to

          tolerate  heavy  shoes or  work  boots, the  doctor  concluded no

          treatment  was merited.     The ALJ  found claimant  unpersuasive

          regarding his inability to  wear heavy shoes, and gave  weight to

          the  medical evidence indicating no loss of motion or other signs

          of abnormality  in the toe.   In  view of the  July 1991  medical

          reports  and  claimant's  sparse  treatment  history,  the  ALJ's

          findings are justified and adequately supported by the record.

                      For  the  foregoing  reasons,  we   find  substantial

          evidence  to  support  the  Secretary's  determination  that  the

          claimant  does   not  have  any  impairment   or  combination  of

          impairments which  significantly  limits his  ability to  perform

          basic  work-related  activities.   We  conclude  that review  was

          appropriately terminated at the  Step 2 severity level.   We have



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          considered  all of claimant's arguments and have found them to be

          without merit.

                      Affirmed.  See 1st Cir. R. 27.1.
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