Perez Velazquez v. SHHS ( 1993 )

June 3, 1993 [NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 92-2111
FELIX M. PEREZ-VELAZQUEZ,
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
Selya, Cyr and Boudin,
Circuit Judges.
Edgardo Jimenez Calderin and Juan A. Hernandez Rivera on
brief for appellant.
Daniel F. Lopez Romo, United States Attorney, Jose Vazquez
Garcia, Assistant United States Attorney, and Joseph E. Dunn,
Assistant Regional Attorney, Office of the General Counsel, Dept.
of Health & Human Services, on brief for appellee.
Per Curiam. We conclude that the ALJ erred in
determining that claimant had the residual functional
capacity (RFC) to perform the full range of sedentary work.
We explain briefly.
Claimant fractured his right ulna in 1986. As a result
of this fracture, the ALJ found, claimant's arm movement is
restricted; he cannot pronate (rotate downwards) or supinate
(rotate upwards) the right lower forearm, lifting is
restricted to ten pounds, and claimant cannot perform past
janitorial work. Despite the pronation and supination
restrictions, however, the ALJ applied Grid rule 201.23
(younger individual, illiterate, previous unskilled work
experience, RFC for sedentary work), which directed a finding
of not disabled, to conclude that jobs exist in the economy
commensurate with claimant's RFC.
As we have explained, the Secretary can not discharge
her burden at step five of the sequential evaluation process
by relying on the Grid when a nonexertional impairment
significantly affects a claimant's vocational functioning:
[T]he Grid is "predicated on an
individual's having an impairment which
manifests itself by limitations in
meeting the strength requirements of
jobs...." 20 C.F.R. Part. 404, Subpart
P, App. 2, 200.00(e) (1988) (emphasis
added). Accordingly, where a claimant
has one or more non-strength limitations,
"the Guidelines do not accurately reflect
what jobs would or would not be
available." Gagnon v. Secretary of Health
and Human Services, 666 F.3d 662, 665 n.6
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(1st Cir. 1981). In cases where a
nonexertional impairment "significantly
affects claimant's ability to perform the
full range of jobs" he is otherwise
exertionally capable of performing, Lugo,
794 F.2d at 17, "the Secretary must carry
his burden of proving the availability of
jobs in the national economy by other
means," Gagnon, 666 F.2d at 666 n.6,
typically through the use of a vocational
expert. On the other hand, should a
nonexertional limitation be found to
impose no significant restriction on the
range of work a claimant is exertionally
able to perform, reliance on the Grid
remains appropriate.
Ortiz v. Secretary of Health and Human Services, 890 F.2d
520, 524 (1st Cir. 1989). Ortiz qualifies this restriction
on the Grid's use in cases where a significant non-strength
impairment exists but there is a basis for concluding that
its effect is only to reduce the occupational base
"marginally," id., but there is no evidence or inference of
that kind in this case.
There was evidence of the following. Claimant was
examined in May 1989 by Dr. Rodriguez at the request of the
disability determination program. Dr. Rodriguez noted that
claimant's right forearm was held in a position "with no
pronation, nor supination possible suggestive of a bony union
between the radius and ulna," but he did not explain what
effect this had on claimant's functioning. Two nonexamining
doctors, however, did touch on the matter. Both checked off
the "limited" boxes on RFC forms on reaching, handling, and
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fingering. One wrote that these restrictions were
"moderate." The other said they were "moderate to severe."
The Secretary's own regulations and rulings indicate
that reaching, handling, and fingering limitations well may
significantly narrow the occupational base. Reaching and
handling, the Secretary has said, "are activities required in
almost all jobs. Significant limitations of reaching or
handling . . . may eliminate a large number of occupations a
person could otherwise do." SSR 85-15. Fingering "is needed
to perform most unskilled sedentary jobs." Id. And
"bilateral manual dexterity is necessary for the performance
of substantially all unskilled sedentary occupations." SSR
83-14; 20 CFR Pt. 404, Subpart P, App. 2, 201.00(h).
Here, where the only doctors to address the matter have
said that claimant's reaching, handling, and fingering
limitations are "moderate" or "moderate to severe" in degree,
the ALJ may not permissibly ignore their opinions, assert
without explanation that claimant can perform a full range of
sedentary work, and apply the Grid without further
explanation. Consequently, a remand is needed for further
proceedings. See Heggarty v. Sullivan, 947 F.2d 990, 996-97
(1st Cir. 1991) (where uncontradicted medical evidence
indicated claimant's manual dexterity was limited, the ALJ's
conclusion that claimant retained the capacity to perform the
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full range of sedentary work was not supported by substantial
evidence and a remand for vocational evidence was required).
There is evidence in the record of the report of a
vocational specialist who did not testify, indicating that
there were at least a few "light work" jobs that could be
performed by one of claimant's age and educational
qualifications. Whether the vocational specialist
appreciated claimant's exertional limitations as well is
unclear. Whether the light work jobs specified were
available in the national economy, in accordance with the
statutory test, was not stated. 42 U.S.C. 423(d)(2)(A)
(jobs claimant is capable of performing must exist "in
significant numbers either in the region where [claimant]
lives or in several regions of the country"). In any event,
the ALJ did not refer to vocational evidence at all, relying
instead solely upon the Grid, and we cannot rehabilitate the
decision based on this evidence. Cf. Securities & Exchange
Comm. v. Chenery Corp., 318 U.S. 80, 93-95 (1943).
Accordingly, a remand is required for further
proceedings, which may well require the consideration of
expert vocational evidence. We decline claimant's request
for a determination that claimant is entitled to benefits as
a matter of law. We have considered claimant's other
arguments, including his challenge to the ALJ's pain
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findings, but find them without merit for the reasons stated
in the magistrate-judge's July 16, 1992 report.
The judgment of the district court is vacated and the
case is remanded with directions to remand to the Secretary
for further proceedings.
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