Gonzalez-Garcia v. SHHS ( 1993 )

March 17, 1993 [NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 92-2088
BIENVENIDO GONZALEZ-GARCIA,
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. Gilberto Gierbolini, U.S. District Judge]
Before
Selya, Cyr and Boudin,
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 U.S. Attorney, and Paul Germanotta, Assistant
Regional Counsel, Dept. of Health & Human Services, on brief for
appellee.
Per Curiam. Claimant Bienvenido Gonzalez Garcia applied
for Social Security disability benefits on May 24, 1989. He
alleged an onset date of April 15, 1988 and claimed that he
had a back condition and a mental impairment. After holding
a hearing, an administrative law judge (ALJ) found that
claimant was not entitled to disability benefits. The
Appeals Council denied claimant's request for review. The
district court affirmed the Secretary's decision and this
appeal ensued.
I.
Claimant was injured at work when he tried to lift a
steel beam. He sought treatment at the State Insurance Fund
(SIF) for back pain. According to claimant, he was given a
course of physical therapy which left him feeling worse. At
some point, he tried to resume work but could not because of
the pain. All of his past jobs involved heavy lifting with
frequent bending and stooping. Since his injury, claimant
states that he cannot sit, stand or walk for any length of
time and he is constantly changing position. He cannot bend
or stoop. He cannot lift objects weighing more than five
pounds.
As for his daily activities, claimant testified that he
could not take care of his personal needs; his wife helps him
to bathe and dress. He does not leave the house except to
visit his father. Sometimes he watches television or listens
-2-
to the radio. He cannot help with household chores and does
not drive. During the day, he sits or stands on the balcony;
he never walks.
Claimant described his pain as constant; it starts in
his lower back and spreads to his buttocks, thighs, legs and
feet. He also complained of "palpitations" in his bones. He
does not sleep well due to the pain and cramps in his legs.
In addition to his back pain, he suffers from headaches and
nosebleeds. He takes medication which relieves the pain for
about two hours.
Claimant also takes medication for a dysthymic disorder.
He stated that he hears voices calling his name and sees
shadows. He is irritable and noises bother him. He has
problems relating to people and prefers to be alone. He has
received sporadic therapy for this impairment at the local
mental health center.
II.
The ALJ determined that claimant has a possible
herniated disc at L5-S1, back pain and an affective disorder
which alone or in combination did not meet the listings. He
credited claimant's allegations of pain to the extent that
claimant was precluded from engaging in strenuous work-
related activities. Nonetheless, the ALJ found that claimant
retained the residual functional capacity (RFC) to perform
the exertional requirements of work except to the extent that
-3-
claimant could not lift over ten pounds. Also, he could not
sit, stand or walk for over one hour at a time; however,
claimant could perform each of these activities for up to six
hours per eight-hour workday. He could stoop and kneel only
occasionally. Aside from these limits, claimant retained the
capacity to perform the full range of sedentary work.
The ALJ determined that Rule 201.25 of Table 1 of the
Medical-Vocational Guidelines, 20 C.F.R. Part 404, Subpt. P,
App. 2 (1992) (the "Grid"), would direct a finding of "not
disabled" for a person such as claimant -- a younger
individual with a limited education (7th grade) and no
transferable work skills. Because claimant's capacity for the
full range of sedentary work had not been "significantly
compromised" by his nonexertional limits, the ALJ used Rule
201.25 as a framework to conclude that claimant was not
disabled. In so finding, the ALJ stated that claimant's
mental impairment did not impose "more than slight
limitations in those areas considered relevant to the
capacity to perform work-related activities."
III.
On appeal, claimant essentially argues that his back
condition prevents him from engaging in even sedentary work.
He also avers that the ALJ erred in applying the Grid on the
ground that his nonexertional impairments -- pain and his
emotional condition -- significantly limit his ability to
-4-
perform the full range of sedentary work. We address these
issues separately.
A. Back Condition
The record contains conflicting evidence concerning the
effect of claimant's back problem on his physical
capabilities. X-ray results showed a 20 to 25 percent
narrowing of the disc space at L5-S1, suggestive of a bulging
or herniated disc. Also, a C-T scan revealed a possible
bulging or herniated disc at L4-L5 with a slight swelling of
the left nerve root.
Over the course of his treatment at the State Insurance
Fund, claimant's condition varied. For example, on September
30 and October 13, 1988, claimant exhibited persistent lumbar
muscle spasm and limited range of motion. However, a
November 2, 1988 special medical report stated that
claimant's back was well and there was no muscle spasm. In
addition, claimant's range of motion was normal and there
were no neurological deficits. The report concluded that
claimant could perform light work and should be referred to
vocational rehabilitation. Although claimant exhibited
marked limitation in the movement of his trunk on November 7,
1988, there still was no significant muscle spasm and
claimant could walk without difficulty. When claimant was
discharged from the SIF in April 1989, he had residuals
-5-
consisting of slight spasm of the para-vertebral muscles with
slight limitation of movement of the trunk in all directions.
Claimant refused a referral to vocational rehabilitation.
A neurological evaluation performed in July 1989
revealed no evidence of paravertebral muscle spasms or motor
atrophy; there was normal strength in all muscles and no
motor reflex or sensory disturbances. Claimant's gait and
posture were normal. He refused to bend his spine. In
January 1990, claimant was again examined by a consulting
neurologist. At this time, claimant could not walk on his
heels or toes, exhibited some weakness of the left toe and
had spasm in his paravertebral muscles. His range of motion
was limited.1
A nonexamining physician completed an RFC form in August
1989. This form reveals that claimant can frequently lift
and carry up to ten pounds and occasionally can lift and
carry twenty pounds. He can only occasionally stoop and
crawl. His disc pathology limits his ability to use his
lower extremities to push and pull. However, he can sit,
stand and walk for up to six hours per work day.
The medical findings outlined above amply support the
conclusion that claimant retained the ability to meet the
1. Neither of these physicians filled out RFC assessments
despite the requirement in the regulations that a complete
consultative examination should include such findings. See
20 C.F.R. 404.1519n(c)(6).
-6-
exertional demands of sedentary work. Muscle spasm and
limits in range of motion were not consistently present.
Further, claimant rarely exhibited any neurological or motor
deficits. Finally, the RFC assessment indicates that
claimant's disc problems would not prevent him from working
at the sedentary level. Because "a reasonable mind,
reviewing the evidence in the record as a whole, could accept
it as adequate to support his conclusion," we must uphold the
Secretary's factual determinations. Rodriguez v. Secretary
of Health and Human Services, 647 F.2d 218, 222 (1st Cir.
1981).
B. Nonexertional Impairments
Next, claimant alleges that the ALJ did not properly
credit his complaints of totally disabling pain. We agree
that there exists an objective medical impairment -- bulging
or herniated discs at L4-L5 and L5-S1 -- that can reasonably
be expected to cause pain. See Avery v. Secretary of Health
and Human Services, 797 F.2d 19 (1st Cir. 1986).
Nonetheless, as described above, the dearth of evidence of
motor, sensory or strength deficits conflicts with the level
of pain claimant alleges. Further, claimant testified that
medication relieved the pain for up to two hours. Because
the ALJ diligently considered the factors outlined in Avery,
we find that his decision concerning the level of claimant's
-7-
pain is supported by substantial record evidence and did not
preclude reliance on the Grid.2
Claimant's mental impairment presents a closer question.
Absent significant nonexertional limitations, the Grid
provides a "streamlined" method by which the Secretary can
sustain his burden of proof at step five of the sequential
evaluation process. Ortiz v. Secretary of Health and Human
Services, 890 F.2d 520, 524 (1st Cir. 1989) (per curiam);
Sherwin v. Secretary of Health and Human Services, 685 F.2d
1, 2 (1st Cir. 1982), cert. denied, 461 U.S. 958 (1983).
However, where a claimant has a nonexertional impairment in
addition to an exertional limit, the Grid may not accurately
reflect the availability of jobs such a claimant could
perform. Ortiz, 890 F.2d at 524; Gagnon v. Secretary of
Health and Human Services, 666 F.2d 662, 665 n.6 (1st Cir.
1981).
The decision to rely on the Grid in this situation
depends upon whether claimant's mental impairment
"significantly affects [his] ability to perform the full
range of jobs" at the sedentary level. See Lugo v.
2. We also note that claimant's limitations in stooping and
crawling -- nonexertional impairments -- do not significantly
limit his access to the full range of sedentary work. See
Social Security Ruling 85-15 (to meet requirements of
sedentary work, an individual would need to stoop only
occasionally and would rarely be required to crawl); cf.
Frustaglia v. Secretary of Health and Human Services, 829
F.2d 192, 195 (1st Cir. 1987) (per curiam).
-8-
Secretary of Health and Human Services, 794 F.2d 14, 17 (1st
Cir. 1986) (per curiam); Ortiz, 890 F.2d at 524. If the
occupational base is significantly limited by this
impairment, the Secretary erred in using the Grid to carry
his burden at step five. See Ortiz, 890 F.2d at 524. In
such a case, the testimony of a vocational expert generally
would have been required. Id.Here, the ALJ essentially determined that claimant's
emotional condition was not severe and thus, did not impinge
on claimant's ability to engage in the full range of
sedentary, unskilled work. There are two distinct sets of
mental capabilities which are required for the performance of
unskilled work. Id. at 526; Social Security Ruling (SSR) 85-
15. These are (1) the intellectual ability to perform such
work and (2) the ability to cope with the demands of the work
environment per se. Id.As for the first category -- the ability to carry out
simple instructions, respond to supervision and cope with
coworkers -- we believe that there is sufficient evidence to
support the ALJ's conclusion that claimant's dysthymic
disorder did not significantly impair his functioning. A
consultative examination performed by a psychiatrist in May
1990 indicates that claimant was coherent, relevant, in
contact with reality and completely oriented. His thought
processes were organized and there was no evidence of
-9-
delusions or hallucinations. His memory was intact.
Although his attention, concentration and retention were
"slightly diminished," claimant's judgment and reasoning were
not impaired. The psychiatrist diagnosed a mild dysthymic
disorder; claimant's prognosis was fair.
This psychiatrist also completed a mental RFC
assessment. He indicated that claimant's abilities to
maintain attention and to understand, remember and carry out
both complex and detailed job instructions were good. His
capacity to deal with simple instructions was unlimited. He
also was rated as having good abilities in the areas of using
judgment, interacting with supervisors, relating to coworkers
and functioning independently.
The second category includes the ability to remain in
the workplace the entire day and to attend work regularly and
punctually. In this area, claimant was rated as being
capable of demonstrating responsibility, relating predictably
in social situations and behaving in an emotionally stable
manner. However, his ability to deal with "work stress" was
only fair. Fair is defined on the RFC form as "seriously
limited but not precluded."
Given the evidence anent claimant's limited capacity to
deal with "work stress," his mental impairment might well be
-10-
deemed of some severity.3 But, we believe that the ALJ's
reliance on the Grid in this particular situation was
nevertheless appropriate (although by no means inevitable).
See Ortiz, 890 F.2d at 524 (explaining that claimant's mental
impairment, even if severe, is not considered disabling
unless it has eroded the occupational base for the full range
of sedentary, unskilled work). Aside from the finding that
claimant was seriously limited in his capacity to confront
the stress of work in general, the examining psychiatrist
concluded that claimant's abilities in the more specific
areas of dealing with the work environment -- maintaining
concentration, being reliable, behaving in an emotionally
stable manner and accepting supervision -- were good. Also
significant is the fact that claimant's situation does not
place him anywhere near the dividing line between disabled
and not disabled under Table 1 of the Grid. See id. at 527-
28.
For the foregoing reasons, the judgment of the district
court is affirmed.
3. An impairment is not severe only when it has no more than
"a minimal effect on the person's . . . mental ability . . .
to perform basic work activities." SSR 85-28.
-11-