DocketNumber： 94-1868
Filed Date： 2/7/1995
Status： Precedential
Modified Date： 9/21/2015
aFebruary 7, 1995
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 94-1868
ZINNIA SCHROEDER RODRIGUEZ,
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, ___________
Boudin and Stahl, Circuit Judges. ______________
____________________
Juan R. Requena Davila and Juan A. Hernandez Rivera on brief for ______________________ _________________________
appellant.
Guillermo Gil, United States Attorney, Maria Hortensia Rios, ______________ ______________________
Assistant United States Attorney, and Gerald Luke, Attorney, _____________
Department of Health and Human Services, on brief for appellee.
____________________
____________________
Per Curiam. Claimant Zinnia Schroeder-Rodriguez appeals __________
a district court order that affirmed a decision of the
Secretary of Health and Human Services that denied Schroeder-
Rodriguez's claim for social security disability benefits.
We affirm.
I.
Claimant is presently 30 years old. She graduated from
high school, completed additional secretarial training, and
was employed as an office worker at various companies between
1982 and 1991. On December 29, 1991, claimant filed an
initial application for social security benefits. She
alleged that she became disabled on September 11, 1991 as a
result of injuries to her neck, back, hands, and legs that
she sustained in a motor vehicle accident. Claimant
maintained that she had eight pinched nerves and could no
longer type or run computers as a result of this accident.
She also asserted that her left leg was particularly affected
and that she could not move as she used to.1
After claimant's initial application was denied, she
filed a request for reconsideration which alleged that she
was disabled due to an emotional condition in addition to her
physical ailments. The request was denied. Claimant then
appeared with counsel at a hearing before an administrative
____________________
1. Claimant reported that she could not drive or do
housechores, although she occasionally washed dishes. (Tr.
65).
law judge (ALJ). She testified that she could not work
because she had no strength in her hands and that she also
suffered nightmares as a result of the accident. She also
maintained that she experienced constant body pain and could
not stand, sit, or walk for more than 10-15 minutes at a
time. Claimant further testified that she required
assistance to bathe, comb her hair, and care for her 5-year
old daughter.2
The ALJ denied claimant's disability claim at step five
of the sequential evaluation process. He found that claimant
had a combination of impairments, including cervical, dorsal,
and lumbar painful syndromes and multiple nerve entrapment
neuropathies, but that she did not have a medically
determinable mental impairment or any significant mental
limitations. He also found that her allegations of pain and
other symptoms were not fully supported by the objective
medical evidence and that her subjective complaints thus
____________________
2. Shortly before the hearing, claimant submitted a list of
medications that had been prescribed for her. These included
Valrelease (an anti-anxiety and anti-muscle spasm drug),
Anaprox, Indocin, Flexeril, and Feldene (medications for
muscle relaxation, inflammation, and arthritis). When the
ALJ asked claimant whether her medications relieved her pain,
claimant indicated that she preferred to remain lying down
and not taking her medications because they caused adverse
side effects. (Tr. 29). However, the ALJ correctly observed
that the medical evidence indicated that claimant had never
complained of any adverse side effects to her treating
physicians. We further note that claimant's list of
medications indicated that she was not taking them because
she was pregnant. (Tr. 195).
-3-
deserved "very little credibility." (Tr. 16-17). The ALJ
found that claimant had the residual functional capacity
(RFC) to perform the physical exertional and nonexertional
requirements of sedentary to light work, but that she could
not do frequent or continuous hand-finger activities such as
typing. While the ALJ concluded that claimant could not
perform her past work because it required frequent typing, he
also found that her RFC was not significantly compromised by
her nonexertional limitations. (Tr. 19). Given the
claimant's physical RFC for sedentary to light work, younger
age, education (beyond high school), and work experience
(skilled), the ALJ concluded that Grid Rules 201.28 and
201.29 directed a "not disabled" finding. (Tr. 17, 19).3
The district court summarily affirmed the ALJ's decision
under 42 U.S.C. 405(g). This appeal followed.
II.
Before we address the claimant's arguments, we review
the relevant medical evidence. Shortly after the accident,
claimant secured medical treatment at the Puerto Rico
Compensation Administration Due to Automobile Accidents
(ACAA). The record discloses that claimant sustained
whiplash-like injuries after her car was hit by a Mack truck
while she was en route to work on September 11, 1991. (Tr.
____________________
3. These rules apply to workers with transferable and non-
transferable skills whose RFCs are limited to the sedentary
range of work.
-4-
26, 175). X-rays taken a week after the accident revealed
cervical muscle spasm. (Tr. 153). She was treated with
Robaxin, a skeletal muscle relaxant. On September 18, 1991,
claimant was examined by Dr. Wildo Vargas, a physiatrist
affiliated with the ACAA.4 She complained of constant
headaches and pain in her neck, back, and left hip. Physical
exam disclosed severe tenderness of the paracervical,
trapezius, thoracic, and lumbosacral paraspinal muscles and
the muscles of both arms. Her range of motion was limited.
Dr. Vargas prescribed physical therapy consisting of hot
packs, TENS (transcutaneous electric nerve stimulation),
ultrasound, therapeutic massage, and bed rest. (Tr. 151).
Over the next two months claimant responded very little
to conservative treatment. She continued to complain to Dr.
Vargas of pain in her neck, back, arms, and left hip.
Physical examination continued to disclose tenderness and
spasm in her upper body and extremities, as well as positive
Tinel's sign at both elbows.5 Approximately five weeks
after the accident, claimant complained that her neck and
____________________
4. Unless otherwise noted, the information which follows is
contained in Dr. Vargas's 12/3/91 report and the reports of
the tests that he ordered. (Tr. 150-56, 158-60).
5. Tinel's sign is "a tingling sensation in the distal end
of a limb when percussion is made over the site of a divided
nerve. It indicates a partial lesion or the beginning
regeneration of the nerve." Dorland's Illustrated Medical ______________________________
Dictionary, (28th ed. 1994), p. 1527. It frequently __________
accompanies carpal tunnel syndrome. See The Mosby Medical ___ __________________
Encyclopedia, (1985 ed.) p. 730. ____________
-5-
back pain had worsened, particularly with activity. Dr.
Vargas discontinued physical therapy and ordered
electromyogram (EMG) and nerve conduction velocity studies.
Studies performed on November 4, 1991 revealed that claimant
suffered from carpal tunnel syndrome and ulnar nerve
entrapment at Guyon's canal in both upper extremities. There
was also right ulnar nerve entrapment at the elbow, bilateral
S-1 root irritation, and right tarsal tunnel syndrome.6 Dr.
Vargas observed that the entrapped nerves in claimant's upper
extremities accounted for the neck pain that she had been
experiencing and that her bilateral S-1 root irritation was
the apparent cause of her back pain. (Tr. 155).7 He
referred claimant to a hand surgeon for consideration of
surgical decompression of the entrapped nerves in her upper
extremities. (Tr. 154). While Dr. Vargas did not assess
claimant's RFC, he indicated that all of her conditions
resulted in a 13% impairment of the whole person. (Tr.
156).8
____________________
6. However, the EMG showed no evidence of lower motor neuron
disease. (Tr. 160).
7. A CT scan of claimant's lumbar spine was normal, with no
evidence of disc herniation. (Tr. 158).
8. Although Dr. Vargas referred claimant to a hand surgeon,
there are no records from a hand surgeon before us. However,
claimant's initial disability report indicated that she had
seen Dr. Julio Simons for possible surgery to relieve her
carpal tunnel syndrome. (Tr. 51). According to the
claimant, Dr. Simons recommended that claimant initially
receive cortisone shots because she still had 75% use of her
-6-
On 3/12/92, claimant was examined by Dr. Enid Berrios,
another physiatrist affiliated with the ACAA. (Tr. 141). Dr.
Berrios found claimant's muscle strength was 3 out of 5 on
the left upper extremity and that she exhibited decreased
sensation over the C-6 and C-7 nerve distribution. Tinel's
sign was positive on the left, unreported on the right. Her
neck had a functional range of motion. Mild dextroscoliosis
was apparent in the dorsal and levolumbar regions.
On 3/27/92, claimant was examined on behalf of the
Social Security Administration (SSA) by Dr. Oscar Benitez, a
neurologist. He found that claimant's mental status was
alert, well oriented and cooperative, and that she was able
to give a good history by herself. Physical examination
disclosed no atrophy, weakness, or deficit to pinprick
sensation in the upper and lower extremities. While Tinel's
sign was positive in both wrists and elbows, no cervical or
lumbar spasm was detected.9 Dr. Benitez completed a
detailed range of motion chart which showed that claimant
suffered from no limitations except a 10 degree loss of
flexion-extension in the lumbar spine. (Tr. 187-89).
____________________
hands. If claimant worsened despite the shots, surgery was
recommended. (Tr. 51-2, 79). But claimant indicated that
she did not wish to undergo cortisone shots, stating, "I have
enough traumas in life to have shots with possible side
effects." (Tr. 79).
9. X-rays taken for Dr. Benitez on 3/27/92 showed that the
cervical spine had normal vertebral alignment and minimal
dextroscoliosis of the lumbosacral spine. (Tr. 186).
-7-
Relying on Dr. Vargas's EMG and nerve conduction studies, Dr.
Benitez concluded that claimant suffered from cervical dorsal
and lumbar painful syndrome and multiple nerve entrapment
neuropathies. While he found no objective evidence of
neurological deficit, his prognosis was reserved. (Tr.
185).10
On May 5, 1992, claimant underwent further EMG and nerve
conduction studies at the request of Dr. Berrios. While Dr.
Berrios's reports are largely illegible, those studies
revealed that claimant suffered from early right median nerve
entrapment and right C8T1 root irritability. (Tr. 129). Dr.
Berrios recommended that claimant continue physical therapy
and prescribed 12 visits. (Tr. 134-36). Also on 5/5/92,
claimant underwent a psychiatric examination through the
ACAA. In a 2-page form report that was very brief and
cryptic, Dr. Manual Colon indicated that claimant had a
moderate anxiety neurosis with depression that was related to
her accident. He also checked off boxes which suggested that
this condition partially limited claimant's ability to
perform her usual work, but that she was able to perform the
____________________
10. On April 23, 1992, Dr. A.M. Marxuach, a nonexamining
internist, completed a form assessment of claimant's physical
RFC. Dr. Marxuach concluded that claimant could occasionally
lift or carry 50 pounds and frequently lift or carry 25
pounds (findings consistent with medium work under 20 C.F.R.
404.1567(c)), that she could stand, walk, or sit up to six
hours in an 8-hour day, and that she had no limitations in
her abilities to push, pull, reach, handle, finger, or feel.
(Tr. 112).
-8-
same type of work. (Tr. 138). Dr. Colon indicated that
claimant merited psychiatric treatment and prescribed
Tofranil and Buspar, anti-depression and anxiety medications.
He also recommended that claimant return for reevaluation on
6/3/92. (Tr. 140). However, there are no records of any
such follow-up or further psychiatric treatment.
On 5/29/92, Dr. Vargas discharged claimant from the
ACAA. He indicated that claimant's neck continued to be very
tender with severe spasm and that her arms were also tender.
He concluded that no more physical therapy would be of help
and noted that claimant had been offered surgery but refused
it. (Tr. 143, 128). On 7/23/92, claimant returned to Dr.
Berrios, who prescribed medications and additional physical
therapy. (Tr. 120-23). A 7/24/92 x-ray revealed reversal of
the cervical lordosis indicative of cervical spasm. (Tr.
119). On 8/26/92, Dr. Vargas issued a final medical report.
He relied on the most recent EMG and nerve conduction studies
of Dr. Berrios in concluding that claimant suffered from
cervical fibromyositis, cervical radiculopathy, ulnar nerve
entrapment at the elbows, carpal tunnel syndrome and lumbar
radiculopathy. Dr. Vargas indicated that claimant had over
40 physical therapy treatments which were of some help when
she received them but that her pain returned after the
treatments. (Tr. 193). He recommended that she continue
-9-
physical therapy because her neck pain persisted. (Tr. 117-
18).11
III.
On appeal, claimant argues that the ALJ failed to base
his decision on substantial evidence on the record as a
whole. She particularly faults the ALJ for finding that she
has no medically determinable mental impairment. Claimant
contends that this finding is not supported by substantial
evidence because it: (a) was based on the report of Dr.
Benitez, a consulting neurologist who was not qualified to
render an opinion on psychiatric matters, and (b) disregarded
the psychiatric report of Dr. Manual Colon - which indicated
that claimant suffered from an anxiety neurosis. Claimant
says that the ALJ further violated the Secretary's
regulations by failing to complete a Psychiatric Review
Technique Form (PRTF). Finally, claimant argues that the ALJ
failed to give appropriate weight to her complaints of
disabling pain.
The ALJ did not mention Dr. Colon's report when he
concluded that claimant did not have a medically determinable
mental impairment. But, contrary to the claimant's argument
on appeal, the ALJ did not base this conclusion on the report
____________________
11. Dr. Vargas had previously indicated that claimant could
return to work on 6/1/92. (Tr. 144, 146). While he modified
his diagnosis in response to Dr. Berrios's EMG and nerve
conduction studies, he did not comment further on claimant's
capacity for work.
-10-
of Dr. Benitez alone.12 Rather, the ALJ based this
conclusion on the results of Dr. Benitez's mental status
exam, his own observations of claimant at the hearing, and,
perhaps most importantly, the absence of evidence indicating
that claimant suffered from any significant mental ___
limitations. (Tr. 16). This last finding is significant,
for even Dr. Colon's report does not contradict it.
Dr. Colon's report consisted of an ACAA form which
contained little more that his conclusory diagnosis that
claimant suffered from an anxiety neurosis. He did not
identify any objective findings that supported his
conclusion, nor did he relate how claimant's anxiety impaired
her ability to work. Indeed, even Dr. Colon did not conclude
that claimant's anxiety left her unable to work. His report
suggests that claimant's anxiety resulted, at most, in a
partial limitation but that she ultimately was able to
perform the same type of work. (Tr. 138).
____________________
12. We note that neurologists generally perform mental
status evaluations as part of the standard neurological
examination. See, e.g., The Merck Manual, (Robert Berkow, ___ ____ ________________
M.D., ed., 16th ed. 1992), p. 1382, McQuade, Analyzing _________
Medical Records, 4-3, p. 90 (1987). We therefore reject _______________
claimant's contention that the ALJ could not rely on Dr.
Benitez's mental status findings because Dr. Benitez was not
a psychiatrist. While we agree that Dr. Benitez's report
alone was not substantial evidence that claimant lacked a
mental impairment, see Boyce v. Sullivan, 754 F. Supp. 126, ___ _____ ________
128 (N.D. Ill. 1990)(neurologist's cursory mental exam was
not substantial evidence of mental condition), we think the
ALJ could rely on Dr. Benitez's report in evaluating this
issue.
-11-
In the face of this cryptic report which contained
little more than check marks, the ALJ was not required to
credit Dr. Colon's diagnosis. "The ALJ need not accept an
opinion of a physician - even a treating physician - if it is
conclusory and brief and unsupported by clinical findings."
Matney v. Sullivan, 981 F.2d 1016, 1019 (9th Cir. 1992). See ______ ________ ___
also Bernal v. Bowen, 851 F.2d 297, 301 (10th Cir. 1988). ____ ______ _____
Cf. Thompson v. Sullivan, 928 F.2d 255, 258 (8th Cir. ___ ________ ________
1991)(treating physician's conclusory statements on insurance
form were not entitled to more weight than opinions of other
doctors).13 Claimant was responsible for providing
specific medical evidence of her alleged mental impairment
and its effect on her functional capacity for work. See 20 ___
C.F.R. 404.1508; Gray v. Heckler, 760 F.2d 369, 375 (1st ____ _______
Cir. 1985). She failed to meet this burden. The fact that
claimant may have suffered nightmares following the accident
does not establish that she was not able to work. Moreover,
even if we assume that Dr. Colon's diagnosis was correct and
that the ALJ erred in finding that claimant had no mental
impairment, is well established that the mere existence of an
____________________
13. We note that it is not clear that Dr. Colon actually
treated claimant for there are no records of any treatment
following her evaluation on 5/5/92. Claimant's testimony on
this score was ambiguous: on one hand she indicated that she
had not seen a psychiatrist in seven or eight months. (Tr.
27). She subsequently indicated that she received
appointments every month and a half. (Tr. 28). But there
are no records which support her latter assertion.
-12-
anxiety disorder does not constitute a disability. See, e.g., ___ ____
Sitar v. Schweiker, 671 F.2d 19, 20 (1st Cir. 1982); Alvarado _____ _________ ________
v. Weinberger, 511 F.2d 1046, 1049 (1st Cir. 1975). The __________
remaining notations in Dr. Colon's report establish that this
condition was not severe. Thus, even if the ALJ erred in
discounting Dr. Colon's diagnosis, the record proves that
this error was harmless.14
We are troubled, however, by another aspect of the ALJ's
decision. The ALJ concluded that the claimant was not
disabled because her RFC enabled her to perform sedentary to
light work. Yet he also found that claimant could not
perform frequent or continuous hand-finger activities such as
typing. "'Most sedentary jobs require good use of the hands
____________________
14. We also are not persuaded that a remand is required
because the ALJ failed to complete a PRTF. The record
discloses that the ALJ did append a PRTF to his decision. ___
(Tr. 20). However, the ALJ's form is an abbreviated version
of the standard PRTF. The ALJ's PRTF simply states that the
claimant does not have a medically determinable mental
impairment. It does not review all the categories of
potential mental impairments listed under 20 C.F.R. Part 404,
Subpart P, App. 1, 12.00 (Mental Disorders), which are set
forth in the standard PRTF. While we think the use of the
standard form is preferable, we do not read the regulations
to preclude the use of an abbreviated PRTF when an ALJ
determines that there is no medically determinable
impairment. 20 C.F.R. 404.1520a(b)(2) provides that the SSA
must indicate whether certain medical findings relevant to
the ability to work are present or absent only "[i]f we
[i.e., the SSA] determine that a mental impairment exists."
If there is insufficient evidence that a mental impairment
exists, there will be presumably be no medical findings which
would allow the SSA to complete the standard PRTF. In any
event, on this record, we think that any error that the ALJ
may have made in failing to complete the standard PRTF was
harmless.
-13-
and fingers.'" Heggarty v. Sullivan, 947 F.2d 990, 996 (1st ________ ________
Cir. 1991)(quoting SSR 83-14). See also SSR 83-10 (CE ___ ____
1983)(same). If claimant cannot perform continuous hand-
finger activities, she is not able to perform the full range
of sedentary work. Thus, the ALJ's conclusion that
claimant's nonexertional limitations did not significantly
reduce claimant's RFC is not supportable. His conclusion
that claimant is not disabled under Grid Rules 201.28 and
201.29, both of which posit an ability for the full range of
sedentary work, is similarly flawed.
Ordinarily we would be required to remand so that the
ALJ could take vocational evidence to meet the Secretary's
burden of proof at step five. However, the ALJ also
concluded that claimant was capable of light work, a finding
that was supported by the RFC assessment of Dr. Marxuach and
Dr. Benitez's findings following his physical examination of
the claimant.15 Light work generally does not require use
of the hands and fingers for fine activities to the extent
required in much sedentary work. See SSR 83-10 at 179 (CE ___
1983). While the ALJ did not expressly refer to the
corresponding grid rules for light work in his decision
(i.e., Rules 202.21 and 202.22), we think his not disabled
____________________
15. Contrary to the claimant's arguments on appeal, the
record does not contain uncontroverted evidence of disability
from claimant's treating physicians. In fact, none of
claimant's physicians ever opined that she was totally
disabled.
-14-
finding is supportable on the basis that claimant could
perform light work.
Finally, we discern no error in the ALJ's treatment of
claimant's allegations of pain. The ALJ properly questioned
claimant on the nature and frequency of her pain, the effects
of her medication, daily activities, and functional
restrictions in accordance with Avery v. Secretary of Health _____ ___________________
and Human Services, 797 F.2d 19 (1st Cir. 1986) and SSR 88- ___________________
13. While there was clearly objective medical evidence that
supported claimant's complaints of pain, the ALJ noted
certain inconsistencies in the record, such as the fact that
claimant's testimony that her medications caused adverse side
effects was not corroborated by any of the medical
records.16 Such inconsistencies supported the ALJ's
conclusion that claimant's complaints of disabling pain were
not fully credible. Frustaglia v. Secretary of Health and __________ ________________________
Human Services, 829 F.2d 192, 195 (1st Cir. 1987). We note ______________
further that claimant has not done all that she might have to
remedy her condition. Claimant testified that she preferred
not to take her pain medications. The record also discloses
that she has been offered cortisone therapy and surgery to
relieve her carpal tunnel syndrome but that she has declined
both alternatives. "Implicit in a finding of disability is a
____________________
16. While the ALJ did not explicitly refer to the record
which indicated that claimant was not taking her medications
because she was pregnant, this is another inconsistency.
-15-
determination that existing treatment alternatives would not
restore a claimant's ability to work." Tsarelka v. Secretary ________ _________
of Health and Human Services, 842 F.2d 529, 534 (1st Cir. _____________________________
1988). Claimant made no showing that the various medications
and other treatments that had been offered to relieve her
carpal tunnel syndrome would not restore her ability to work.
Nor did she offer a "good reason" for failing to take
advantage of the various remedies that have been offered to
her. Tsarelka, id., ("If a claimant does not follow ________ ___
prescribed treatment 'without a good reason,' he or she will
not be found to be disabled.")(quoting 20 C.F.R. 404.1530).
In view of the foregoing, we find that substantial evidence
supports the ALJ's decision.
Judgment affirmed. ________ _________
-16-
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