Penaloza Clemente v. SHHS ( 1993 )

February 12, 1993
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 92-1946
JESUS M. PENALOZA-CLEMENTE,
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. Raymond L. Acosta, U.S. District Judge]
Before
Breyer, Chief Judge,
Selya and Cyr, 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. Jesus Penaloza Clemente ("Penaloza")
applied for Social Security disability benefits, alleging
disability due to back and leg injury and nerves. In a
Disability Report, he further stated that he suffered from
high blood pressure. After a hearing, the ALJ denied his
claim, but the Appeals Council vacated the decision and
remanded for further testimony on pain. After a supplemental
hearing, the ALJ again denied Penaloza's application. The
ALJ found that Penaloza had severe hypertension, which was
controlled with medication, and that he had undergone
arthroscopic removal of torn cartilage in both knees before
March 31, 1988, the date when his disability coverage
expired, but that those conditions did not meet or equal any
listing in 20 C.F.R. Part 404, Subpart P, Appendix 1.
Although the ALJ determined that Penaloza had "mild to
moderate occasional pain" in both knees, he concluded that
the pain was relieved by medication and that the pain did not
reduce Penaloza's residual functional capacity. Penaloza
could not return to his former work as security guard since
he could not stand or walk for more than two hours during an
eight-hour work day and could not use his legs for constant
repetitive movement. However, the ALJ concluded that
Penaloza could sit and use his arms without limitation.
Finding that Penaloza had no nonexertional limitations, that
he could perform sedentary work, and that his vocational
attributes fit the criteria of Rule 201.25 in Appendix 2 of
the regulations, the ALJ determined that Rule 201.25 directed
a conclusion that Penaloza was not disabled. Penaloza
appealed the ALJ's denial of benefits to the district court,
which affirmed the ALJ's decision. He then sought review in
this court. We affirm.
I. Allegations of Pain
Penaloza does not challenge the ALJ's determination
that his knee condition and hypertension did not meet or
equal any listing in the regulations. He claims, however,
that the ALJ failed to consider his allegations of pain,
asserting that he complained "constantly and persistently to
the examining physicians of severe disabling pain." In his
decision, the ALJ noted that Penaloza did have knee pain
during the coverage period as a result of a fall that
occurred on April 24, 1987. The ALJ found that Penaloza's
pain responded to treatment, however, and that as of April 6,
1988, one week after Penaloza's coverage expired, Penaloza
was experiencing no pain when his knees were palpated. The
ALJ further characterized the pain that Penaloza had suffered
to be of "moderate character" which was relieved by physical
therapy and "mild analgesics of a non-narcotic character
which did not cause any side effect[s]." Apparently on the
basis of Penaloza's testimony at the hearings, the ALJ also
found that Penaloza "may experience discomfort and mild to
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moderate pain on an occasional basis and it [is] relieved by
the use of non-narcotic analgesics." Penaloza's medical
records fully support the ALJ's findings as to the nature of
Penaloza's pain for the period before his coverage expired.
The records document that Penaloza complained of pain to
examining physicians and to his physical therapist a number
of times after his fall. His complaints occurred even after
the torn menisci (fibrocartilage) in both knees were removed
arthroscopically. In all instances but one, however, the
reports state merely that he reported "pain" or "discomfort"
or that one or the other of his knees "hurt." Only once, in
October 1987, within weeks of his surgery, did he report
"intense pain," and that was to his physical therapist about
his right knee. The pain appears to have resulted from the
specific exercise he was performing during therapy that day.
A subsequent report in November 1987 stated that he had full
range of movement in both knees "without pain." The records
contain no further report of pain in his right knee, although
in December 1987 he reported to his physical therapist that
the pain in his left knee had increased and in January 1988
he reported to the therapist that his left knee "continues to
hurt." For the two-month period between the end of January
and expiration of his coverage on March 31, 1988, however,
there are no further reports of pain. On April 6, 1988, his
physician reported that he had "no pain on palpation."
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Most of Penaloza's testimony during the hearings in
October 1989 and June 1990 described the pain he was
experiencing at that time. Since he had reinjured his knees
in a fall on March 30, 1989, before the hearings and a year
after his coverage had expired, that testimony is of little
relevance in determining his degree of pain during the
coverage period. (The ALJ did consider that testimony,
however, and determined, as the above summary of his findings
indicates, that at the time of the hearings Penaloza was
experiencing occasional mild to moderate pain which was
relieved by analgesics.)
Some of Penaloza's testimony did describe his pain
during the coverage period after his first fall in April
1987. Penaloza explained "that a toothache would be more or
less the same" as the pain he then experienced. When asked
to describe the intensity of the pain, he stated that it was
"a continuous pain, very strong." He further testified that
he told his doctor that he "could no longer stand the pain,"
and that his doctor then recommended the menisectomy, or
arthroscopic removal of menisci, which was performed in
October 1987. As noted above, although Penaloza continued to
report pain after the surgery, he last reported pain in
January 1988, and, by April 1988, he experienced no pain in
either knee. At the hearings, Penaloza also testified that
he needed a cane to walk, and that he had received a cane
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from the State Insurance Fund. The medical records show
that, several weeks after he fell, he received a prescription
for a wheelchair from the Fund, but not that a cane was ever
prescribed or determined to be medically necessary (the
medical reports note, however, that he came to appointments
using a cane).
At the hearings, Penaloza identified Motrin as one
of the medications he was then taking and stated that it
relieved his pain "all the time." At the first hearing, the
ALJ also named two other medications -- Indocin and Medrol --
as being on a list that Penaloza had submitted to him.
Motrin is a non-narcotic anti-inflammatory analgesic used to
reduce swelling and pain. See Houts, Baselt & Cravey,
Courtroom Toxicology (1992) (under "Ibuprofen"). Indocin is
an anti-inflammatory analgesic, see The Sloane-Dorland
Annotated Medical-Legal Dictionary 373 (1987), and Medrol is
an anti-inflammatory, see Dorland's Illustrated Medical
Dictionary 993, 1028 (27th ed. 1988). Although Penaloza
testified that the pain "does not disappear completely," he
confirmed that the medication made it possible for him to
move around. At the first hearing he suggested that an
unidentified medicine which he took at night to "relax" may
have caused him some sleeplessness, but that otherwise he
suffered no side effects from his medications. At the second
hearing, he testified that some medications -- he may have
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been referring to Medrol and Indocin which were the only
medications named besides Motrin -- caused nausea, but no
drowsiness. At the hearings, Penaloza did not identify the
medications he took during his coverage period, but in an
undated document entitled "Claimant's Statement When Request
for Hearing is Filed", filled out presumably in 1989 when
Penaloza requested a hearing, Penaloza identified the
following medications as the prescription drugs he was taking
at that time: Feldene, Tolectin, Naprosyn, Flexeril,
Clinoril, and Minipress.1 With the exception of Minipress
and Flexeril, all of those drugs are anti-inflammatory
analgesics.2 See id. (under "Piroxicam", "Tolmetin",
"Naproxen", and "Sulindac"). Unfortunately, the
prescriptions given in the medical records for the period of
coverage are often illegible, but the following are
identifiable: Motrin, Feldene, Naprosyn, Indocin,
Butazolidin, Darvocet, and Clinoril. Darvocet is a "mildly
effective narcotic analgesic" used to relieve "mild to
moderate pain." See Courtroom Toxicology, supra (under
"Propoxyphene). Butazolidin is an anti-inflammatory
1. Penaloza also identified "Asolid", but it appears not to
be referenced in the Physicians Desk Reference or in
Penaloza's medical records.
2. Minipress is a hypertension drug, see Courtroom
Toxicology, supra (under the entry "Prazosin"), and Flexeril
is a skeletal muscle relaxant used for relief of muscle
spasms associated with acute, painful muscoskeletal
conditions, see id. (under "Cyclobenzaprine").
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analgesic. See Dorland's Illustrated Medical Dictionary,
supra, at 248, 1278.
Thus, the medical record and Penaloza's testimony
provide substantial evidence for the ALJ's conclusion that
Penaloza's pain during the coverage period had been
"moderate" and that it had been relieved by physical therapy
and analgesics by the time his coverage expired. In support
of his conclusion that Penaloza's pain had been relieved by
analgesics of a "non-narcotic character," the ALJ
specifically identified records from the coverage period
which prescribed Butazolidin, Feldene, Motrin and Naprosyn.
(He also referred to the Claimant's Statement which listed
the medications taken in 1989 and an exhibit listing
medications taken in 1990, including Indocin.) As stated
above, Motrin is a non-narcotic analgesic, which provided
Penaloza the greatest pain relief, at least as of the time
the hearings were held. The other analgesic drugs the ALJ
referred to all appear to have been non-narcotic as well.
Although the ALJ did not mention Darvocet, which is a
narcotic analgesic, that medication appears to have been
prescribed only once when Penaloza began physical therapy.
The ALJ also stated that the analgesics Penaloza
took had no side effects. His conclusion is supported by the
medical records, which contain no report of any side effects.
Although Penaloza testified to some side effects during the
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hearings, his testimony was not very probative. It concerned
medications administered during 1989 and 1990 and did not
identify which medications had caused the side effects. In
addition, although some of those medications had been
prescribed during the coverage period, the testimony on
adverse side effects can fairly be said to have implicated
only Indocin, which was named during the second hearing and
was also prescribed once during the period of coverage.
The ALJ's decision made no reference to the back
injury which Penaloza claimed disabled him during the
coverage period. However, after discussing evidence of
Penaloza's knee injuries, pain and high blood pressure, the
ALJ commented that the remaining evidence related only to the
time after Penaloza's coverage had expired. Because the
medical records for the coverage period contain no reports of
back pain or evaluation of any back condition, we infer that
the ALJ considered and rejected Penaloza's claim of
disability due to back injury or pain. In the recitation of
facts in his appellate brief, Penaloza describes a medical
record from June 1988, which refers to "disabling painful
residuals, specially of the back." But the ALJ did not err
in not considering that record. Not only does the record
describe a condition existing three months after Penaloza's
coverage expired, but, more importantly, it appears to refer
to a different patient altogether. The patient with the
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painful back had also had his legs amputated, and thus could
not have been Penaloza. A record from July 1988 further
indicates that the records of a patient with a back condition
had inadvertently been placed in Penaloza's file, and the
June 1988 report is likely to have been that record. The
medical records which do describe Penaloza's back condition
all pertain to evaluations made months after expiration of
the coverage period.
At his first hearing, Penaloza stated that he had
complained to his physical therapist of back pain. Although
his testimony suggests that his complaints had occurred
during therapy in 1987 during the coverage period, he also
stated that the therapy took place at the "Medical Center".
But he was not treated at the Medical Center until 1989,
after expiration of the coverage period. Furthermore, the
physical therapist's notes from 1987 reflect Penaloza's
complaints of knee pain, but do not mention that he ever
complained of back pain. Therefore, the record amply
supports the conclusion that Penaloza did not suffer from a
disabling back injury or pain during the coverage period.
II. Appropriateness of Sedentary Work
Penaloza argues that the ALJ's determination that
he could perform sedentary work was wrong because it had not
been shown that he could perform sedentary work "without
serious aggravation to his present physical impairment."
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Penaloza does not state whether he means his hypertension or
his knee condition by the term "physical impairment."
However, as long as the finding that Penaloza could perform
sedentary work is consistent with the evidence about
Penaloza's residual functional capacity ("RFC"), presumably
sedentary work would not aggravate either condition.
The record contains substantial support for the
ALJ's conclusion that Penaloza could safely perform sedentary
work as of March 31, 1988. Three uncontradicted RFC
assessments by non-examining Social Security physicians are
in the record, one evaluating Penaloza's hypertension, the
other two his knee condition. Penaloza submitted no RFC
assessment, although the ALJ gave him opportunity to do so.
The report assessing Penaloza's RFC in view of his
hypertension stated: "Diagnosis hypertension. Hospitalized
in Jan '88 because of hypertensive crisis. Rt hemiplegia
described but no detailed neurologic exam. No CT of the
brain. More recent evaluation = no neurologic deficit. EKG
= left axis deviation. Non specific ST-T changes. Chest x
Ray = cardiomegaly. Heavy work activity should be precluded.
RFC: medium work."3 The assessment also evaluated
3. The RFC mistakenly states that Penaloza's hypertensive
crisis occurred in January 1988, which would have been during
the coverage period. The consulting physician's confusion
undoubtedly arose because some of the handwritten records
relating to Penaloza's hospitalization erroneously give
January 5, 1988 as his hospitalization date. Other records,
including some stamped by a dating device, which are
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Penaloza's exertional capabilities by checking appropriate
spaces on the RFC form. It indicated that, despite strength
limitations imposed by his hypertension, Penaloza could lift
and carry 50 pounds and frequently lift and carry 25 pounds,
and that he could stand, walk and sit about six hours per
eight-hour day and push or pull up to 50 pounds using either
foot or hand controls. According to the assessment,
Penaloza's hypertension did not affect his ability to climb,
balance, stoop, kneel, crouch, crawl or engage in fine motor
activities.
On March 1, 1989, Dr. Irizarry Rivera described
Penaloza's knee condition as follows: "Bilateral torn
menisci. [B]oth knees repaired arthroscopically by 10/87.
[T]reated [with] physic[al] therapy, had recurrent knee
effusions which subsided by 4/88 & painless knees." He
assessed Penaloza's strength limitations by checking the
appropriate spaces, concluding that Penaloza retained the
capacity to lift and carry up to 50 pounds, to frequently
lift and carry up to 25 pounds, to sit, stand and walk about
interspersed with the erroneous handwritten records, make
clear that the hypertensive crisis occurred on January 5,
1989, after the coverage period had expired. (The
handwritten error appears to reflect the fact that a new year
had just begun and the person writing down the date had not
yet become accustomed to writing "1989".) The "more recent
evaluation[s]", including the results of the EKG and chest X-
ray, which were referred to in the RFC, actually predated
Penaloza's hypertensive crisis and were within the coverage
period.
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six hours per eight-hour day, and to push and pull using foot
controls up to "50/25 [pounds]." (By implication, Penaloza's
ability to push and pull hand controls was unlimited.) Dr.
Irizarry further indicated that Penaloza could balance and
stoop frequently, although he could climb, kneel, crouch and
crawl only occasionally, and that his fine motor skills
(reaching, handling, fingering, feeling) were unimpaired. On
June 14, 1989, Dr. Acevedo Defillo described Penaloza's knee
condition in almost the same words as Dr. Irizarry. His
assessment of Penaloza's physical capacity was essentially
the same as Dr. Irizarry's except that he found that Penaloza
could push and pull both hand and foot controls "[t]o 50 lbs
max." Dr. Acevedo also found that Penaloza could balance and
stoop frequently, and climb, kneel, crouch and crawl only
occasionally. He found Penaloza's fine motor skills to be
unimpaired. Thus, there was basic agreement between the two
assessments as to what Penaloza's RFC was in light of his
knee condition.
The ALJ found Penaloza's residual functional
capacity to be more restricted. He determined that Penaloza
could perform only sedentary work. The difference in the
physicians' evaluations and the ALJ's appears to be based on
Penaloza's testimony describing the factors which
precipitated pain in his legs, evidence not considered by the
consulting physicians who reviewed only the medical records.
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In his decision, the ALJ stated that "constant or frequent
lower extremity movement would precipitate the pain, as also
would . . . standing or walking for prolonged periods of
time." Essentially, then, the ALJ's conclusion that Penaloza
could perform sedentary work implies his determination that
sedentary work would not aggravate Penaloza's knee condition.
The ALJ could not himself have assessed the effect of
sedentary work on Penaloza's hypertension since Penaloza did
not testify as to any work-inhibiting symptoms arising from
his hypertension. Presumably, however, since Penaloza had
been evaluated by a physician as having the RFC to perform
medium work despite his hypertension, it can be assumed that
the performance of sedentary work would not exacerbate
Penaloza's hypertension. Cf. 20 C.F.R. 404.1567(c) ("If
someone can do medium work, we determine that he or she can
also do sedentary and light work.").
In any event, the physicians' assessments provide
support for the ALJ's determination that Penaloza could
perform sedentary work. The regulations define sedentary
work as work involving sitting, with occasional standing and
walking, and lifting no more than 10 pounds at a time, with
occasional lifting or carrying of articles like docket files,
ledgers, and small tools. 20 C.F.R. 404.1567(a). Social
Security Ruling 83-10 defines "occasionally" to mean
"occurring from very little up to one-third of the time," so
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that periods of standing or walking at the sedentary
exertional level should comprise no more than about two hours
per eight-hour work day and sitting would comprise the
remaining six hours. The Ruling also states that most
unskilled sedentary jobs "require good use of the hands and
fingers for repetitive hand-finger actions." SSR 83-10,
reprinted in [Rulings 1983-91] West's Social Security
Reporting Service, at 29. The performance of sedentary work
is well within the strength limitations indicated in all
three RFC assessments, accordingly, and involves primarily
hand and finger skills which Penaloza is capable of
performing without limitation.
Certain non-strength limitations were also
described in the knee RFC assessments. Penaloza was stated
to be able to climb, kneel, crouch and crawl only
occasionally. But even those limitations appear to be
consistent with the performance of sedentary work, in which
the ability to sit predominates, with only occasional walking
and standing. Furthermore, the Rulings indicate that the
ability to climb, kneel, crouch and crawl would most likely
be infrequent, but certainly no more than occasional
activities in sedentary work. Ruling 83-14 states that
"[r]elatively few jobs in the national economy require
ascending or descending ladders and scaffolding" and that "to
perform substantially all of the exertional requirements of
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most sedentary . . . jobs, a person would not need to crouch
. . . ." See id. at 44. Similarly, Ruling 85-15 indicates
that crawling is an "extremely rare factor" in sedentary
work, that some limitation in climbing would not ordinarily
have a "significant effect on the broad world of work," and
that a limitation on kneeling "would be of little
significance in the broad world of work." See id. at 93, 97.
Accordingly, we conclude that there is substantial evidence
in the record to show that, as of the date Penaloza was last
insured, the performance of sedentary work would not
aggravate his hypertension or knee condition.
III. Exclusive Reliance on the Grid
The ALJ stated in his findings that Penaloza had no
nonexertional limitations, and he therefore relied
exclusively on Rule 201.25 of the Grid (20 C.F.R. Part 404,
Subpart P, Appendix 2) to determine that Penaloza was not
disabled. According to Penaloza, the ALJ erred since he had
nonexertional limitations, consisting "mainly of pain" and
his use of a cane which would make it impossible to carry
work materials while walking. As a result, Penaloza avers,
the ALJ could not rely exclusively on the Grid.
We find no error in the ALJ's reliance on the Grid
insofar as pain and Penaloza's use of a cane are concerned.
Under the regulations, the determination whether pain is
exertional or nonexertional depends upon the precise aspect
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of physical functioning that is affected by the pain. See 20
C.F.R. 404. 1569a(a)-(c). Pain is an exertional impairment
when it affects strength requirements, such as sitting,
standing and walking. See id. (a). It is nonexertional when
it affects requirements such as mental, manipulative or
postural work function. See id. (c)(1). Penaloza's
testimony at the hearings attempted to establish that his
knee and back condition and related pain precluded him from
sitting, standing or walking. Consistent with Penaloza's own
approach, the ALJ determined that Penaloza's knee condition
affected his ability to stand and walk (but not to sit), and
the ALJ found that Penaloza could not return to his former
work as a security guard which required considerable standing
and walking, but that he could perform sedentary work. Thus,
the record fully justified the ALJ's treatment of Penaloza's
pain as an exertional limitation. Nor was Penaloza's alleged
use of a cane a nonexertional limitation since it affected
his ability to carry work materials, and carrying is an
exertional function. See id. (a).
Although Penaloza does not point to other
nonexertional limitations, the RFC assessments by Drs.
Irizarry and Acevedo indicated that Penaloza's ability to
climb, kneel, crouch and crawl was limited by his knee
condition. Climbing, kneeling, crouching and crawling are
nonexertional postural functions, see id. (c)(1)(vi), which,
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normally, would preclude exclusive reliance on the Grid.
Nevertheless, the ALJ's reliance on the Grid is supportable
here. As Rulings 83-14 and 85-15 make clear, those functions
are rarely required in sedentary work. Moreover, Penaloza is
not completely prohibited from climbing, kneeling, crouching
and crawling, but may in fact engage in those activities
occasionally. Consequently, Penaloza's nonexertional
limitations would not significantly erode his occupational
base, and the ALJ was entitled to rely exclusively on the
Grid. See Ortiz v. Secretary of Health and Human Services,
890 F.2d 520 (1st Cir. 1989) (the Grid may be relied on
exclusively to yield a finding as to disability if a
nonexertional impairment, even a significant one, has the
effect only of reducing the occupational base marginally).
Although the ALJ did not expressly determine, as he
should have, that those nonexertional limitations did not
significantly erode Penaloza's occupational base, that
determination may be inferred from his analysis of the
severity of Penaloza's knee condition. The ALJ determined
that, at the time Penaloza's coverage expired, both of
Penaloza's knees showed good muscular strength with no
swelling, heat or pain, that when he had pain it responded to
medication and therapy, that therapy had increased his range
of motion, and that his condition would not keep him from
pursuing recreational activities or light household
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maintenance. However, the ALJ also concluded that Penaloza
could not use his lower extremities for "constant repetitive
movements," which clearly would encompass climbing, kneeling,
crouching and crawling. In Frustaglia v. Secretary of Health
and Human Services, 829 F.2d 192 (1st Cir. 1987), we
concluded in a similar situation that an ALJ could rely
exclusively on the Grid. In Frustaglia, the nonexertional
limitation at issue was bending, the ALJ had found that the
claimant could perform the full range of light and sedentary
work although he could not engage in repeated bending, and
Rulings indicated that bending was only an occasional
requirement in light and sedentary work. We stated that "by
definition [repeated bending] is a more strenuous mode than
occasional activity" and that "[i]t is fairly obvious that
such a restriction would have very little effect on the
ability to perform the full range of work at either the light
or sedentary level." Id. at 195. Similarly, here the ALJ
found that Penaloza could not engage in repetitive leg
movements, which would include climbing, crouching, crawling
and kneeling, and the Rulings make it "fairly obvious" that a
limitation permitting the occasional performance of those
activities would have little effect on Penaloza's ability to
perform substantially all requirements of sedentary work.
Accordingly, although it would have been preferable for the
ALJ to have expressly found that Penaloza's postural
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limitations did not significantly erode his occupational
base, and to have supported his finding by reference to the
record or Rulings, under the circumstances his failure to do
so does not require remand.
IV. Remaining Claims
Penaloza also appears to claim that the ALJ failed
to take into account the combined effects of his mental and
physical conditions. Penaloza's first visit to a mental
health clinic was at his attorney's suggestion some six
months after the coverage period had expired. Thus, there
was substantial evidence to support the ALJ's determination
that Penaloza was not disabled by any nervous or mental
condition, and so there was no need to consider how such a
condition, when combined with Penaloza's physical
impairments, affected his capacity for substantial gainful
employment. Moreover, the text of the ALJ's decision
indicates that he considered the combined effects of
Penaloza's physical conditions and pain. He drew the
conclusions he did about Penaloza's physical capabilities
after "considering the claimant's musculoskeletal and
hypertensive condition plus the above described discomfort
and mild to moderate pain."
Penaloza also alleges that the ALJ cited only
evidence favorable to the Secretary, disregarded the medical
evidence of his disability, and based the disability
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determination on his own medical opinion. He provides no
detail as to what evidence the ALJ allegedly disregarded, and
does not describe in what respect the ALJ ignored the
opinions of examining or consulting physicians, or otherwise
based his disability determination on his own medical
opinion. We have reviewed the ALJ's decision and the record
and find no error of the kind Penaloza has alleged. The
ALJ's determination that Penaloza could perform sedentary
work ascribes a functional capacity to Penaloza which is well
within the limitations described in the uncontradicted RFC
assessments of record.
The decision of the district court is affirmed.
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