Figueroa-Perea v. Commissioner of Social Security , 78 F. App'x 134 ( 2003 )

Not For Publication in West's Federal Reporter
Citation Limited Pursuant to 1st Cir. Loc. R. 32.3
United States Court of Appeals
For the First Circuit
No. 03-1469
GILBERTO FIGUEROA-PEREA,
Plaintiff, Appellant,
v.
COMMISSIONER OF SOCIAL SECURITY,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Daniel R. Domínguez, U.S. District Judge]
Before
Torruella, Selya and Lipez,
Circuit Judges.
Salvador Medina De La Cruz on brief for appellant.
H.S. Garcia, United States Attorney, Camille Velez-Rive,
Assistant U.S. Attorney, and Robert J. Triba, Regional Chief
Counsel, on brief for appellee.
October 16, 2003
Per Curiam. Claimant Gilberto Figueroa-Perea appeals
from the district court's judgment affirming the denial of Social
Security disability benefits. The Commissioner of Social Security,
in denying such benefits, first determined that although claimant
could not return to his past (heavy) work as a laborer, he
(claimant) nonetheless retained the capacity for the full range of
light work. Then, using the Medical Vocational Guidelines (the
"Grid"), 20 C.F.R. Part 404, Subpart P, App. 2, as a framework, the
Commissioner concluded that claimant was not disabled. The only
issue on appeal is whether, given claimant's nonexertional
impairments -- pain and an adjustment disorder -- reliance on the
Grid was appropriate.
1. As for his pain, claimant fails to make any developed
argument concerning the decision of the administrative law judge
(ALJ) that the pain did not amount to a significant nonexertional
impairment. As we have warned, "issues averted to in a perfunctory
manner, unaccompanied by some effort at developed argumentation,
[will be] deemed waived for purposes of appeal." F.D.I.C. v.
LeBlanc, 85 F.3d 815, 820 (1st Cir. 1996) (internal quotation marks
and citations omitted). In any event, the ALJ's decision is
supported by substantial evidence.
That is, although claimant has a condition that
reasonably could be expected to produce some pain -- a herniated or
protruding disc at L5-S1 -- the record does not contain any
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evidence that claimant has any neurological deficits or loss of
strength as the result of this condition. Further, claimant's
motor and sensory systems have remained intact, and, while one
treating physician noted (unspecified) muscle atrophy, the
examining neurologist found that claimant's muscles had not
atrophied at all. Finally, the primary limitation in claimant's
range of motion is that claimant has trouble with forward bending
due, in part, to his pain. And, as for this limitation, the ALJ
did credit claimant's complaints of pain because the ALJ
specifically found that claimant was precluded from activities
which involved constant bending.
2. The issues concerning claimant's mental impairment
are governed by our decision in Ortiz v. Secretary of Health and
Human Services, 890 F.2d 520 (1st Cir. 1989) (per curiam), in which
we approved the use of the Grid in circumstances similar to the
case at hand. In Ortiz, we held that the use of the Grid is
appropriate so long as the claimant's mental impairment does not
"interfere more than marginally with the performance of the full
range of unskilled work." Id. at 526. This determination involves
two distinct inquiries: "(1) whether a claimant can perform close
to the full range of unskilled work, and (2) whether he can conform
to the demands of a work setting, regardless of the skill level
involved." Id.-3-
The first inquiry concerns a claimant's abilities to (1)
cope with simple instructions, (2) deal with supervision,
coworkers, and usual work situations, and (3) respond to changes in
the work setting. Id. (citing Social Security Ruling 85-15).
Here, the mental residual functional capacity (RFC) assessment
rated claimant as having no significant limitations in his capacity
(1) to deal with simple instructions, (2) to sustain an ordinary
routine without special supervision, (3) to remember work-like
procedures, and (4) to get along with coworkers. And, although Dr.
Cotto, the consultative psychiatrist, rated claimant as being
severely limited in his ability to adapt to changes, the RFC
assessment noted only moderate limits in this area. Such conflicts
are for the Commissioner to resolve, not the courts. See Rodriguez
v. Secretary of Health and Human Services, 647 F.2d 218, 222 (1st
Cir. 1981).
This leaves claimant's capacity to respond to criticism
from supervisors. The clinical psychologist who completed the RFC
assessment form checked the box on the form entitled "Not Ratable
on Available Evidence." However, claimant consistently has been
described as cooperative, and no evaluator has reported that
claimant showed any difficulty with anger, hostility, or in
accepting directions from the evaluators -- difficulties which
might indicate problems with responding to supervision. Thus, we
think that there is substantial evidence in the record to support
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a finding that claimant's mental impairment has not resulted in a
substantial loss of his capacity to perform the basic work-related
activities listed in Social Security Ruling 85-15. See Ortiz, 890
F.2d at 526 (only a "substantial loss of ability to meet any of
these basic work-related activities would severely limit the
potential occupational base").
In relation to the second inquiry, which involves "a
claimant's ability to accommodate the demands of a work setting per
se," the Commissioner has stated that "the mentally impaired may
cease to function effectively when facing such demands as getting
to work regularly . . . and remaining in the workplace for a full
day . . . ." Id. at 527 (internal quotation marks and citation
omitted). Here, the mental RFC assessment indicates that claimant
is moderately limited in (1) performing within a schedule, (2)
keeping up regular attendance, and (3) completing a normal work
week without interruptions and without an unreasonable number of
rest periods; further, both the RFC assessment and Dr. Cotto's
evaluation noted that claimant had moderate limitations in his
ability to maintain concentration for extended periods. Because
the claimant in Ortiz also was moderately limited in all of the
these areas, see id. at 527, the record supports the finding that
claimant retained the capacity to accommodate to the demands of any
work setting, regardless of the skill level of the work involved.
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Based on the foregoing, and according the proper
deference to the Commissioner's decision, we conclude that reliance
on the Grid was permitted in this case. That is, although both
claimant's pain and adjustment disorder imposed some limitations,
there is substantial evidence in the record to support the
Commissioner's decision that these limitations were not significant
enough to require the testimony of a vocational expert. The
judgment of the district court is affirmed.
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