Gimenez v. SHHS

February 3, 1993
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 92-1829
ANA GIMENEZ,
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. Jaime Pieras, Jr., U.S. District Judge]
Before
Breyer, Chief Judge,
Torruella and Cyr, Circuit Judges.
Salvador Medina De La Cruz on brief for appellant.
Daniel F. Lopez Romo, United States Attorney, Jose Vazquez
Garcia, Assistant United States Attorney, and Jan B. Brown, Assistant
Regional Counsel, Department of Health and Human Services, on brief
for appellee.
Per Curiam. Claimant, Ana M. Gimenez, appeals from
a district court judgment affirming the decision of the
Secretary of Health and Human Services that she is not
entitled to Social Security disability benefits. We affirm.
I.
Claimant applied for disability benefits on
November 7, 1989. She claimed an onset date of December 31,
1988; her insured status expired on December 31, 1992. At
the time she filed her application, she was fifty years old.
Claimant's alleged impairments included herniated discs, left
hand injury, migraine headaches, osteoporosis, pinched nerves
and cardiac arrythmia. Her claim was denied initially and
upon reconsideration. An administrative law judge (ALJ) held
a hearing and determined that claimant could perform her past
work. The Appeals Council denied claimant's request for
review. Thus, the ALJ's decision became the final decision
of the Secretary.
From her testimony at the hearing and the
disability report completed by claimant, the following
evidence emerges. Claimant worked for the same company for
nineteen years until it closed in December 1988. While she
was there she held several positions. She began working as
an accounting clerk. In this position, she took care of the
accounts receivable books and did filing. Her next position
as a productions clerk involved keeping handwritten
production reports and assisting with taking inventory. She
then became an inventory control clerk and worked solely on
keeping track of inventory. These positions generally
required her to be seated fifty percent of the time.
Claimant's last position was as a receptionist. At this job,
she sat all of the time. She stated that she used both of
her hands for tasks such as operating a calculator and
working the switchboard.
Claimant sustained a back injury in 1980 and
asserted that due to back and hip pain, she could not remain
in one position too long; she often had missed work due to
this pain. After her job ended in December 1988, she tried
working as a drug store clerk. This job lasted one week
because claimant could not stand. Claimant also alleged pain
in her left big toe, left leg and right knee. She stated
that due to left foot spurs the foot would swell so much that
she could not stand. Claimant receives injections for the
pain in her knees. She also takes other medication for the
pain but is limited in the amount she can use due to her
cardiac problems. This medication gives her "some relief"
from the pain.
As for her headaches, claimant testified that, at
the time of the hearing, she had been suffering from
migraines on a daily basis for the past six years. During a
migraine attack, she is unable to concentrate, read or think
and cannot tolerate light. The medication she takes,
however, alleviates the symptoms.
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Claimant stated that she also suffered from pain in
her left shoulder, arm, hand and fingers. She averred that
the nerves in her fingers are pinched and that, as a result,
she cannot perform any tasks with her left hand (claimant is
left-handed). Specifically, her left hand becomes swollen,
cramped and numb; she cannot uncurl her fingers to open her
hand all the way. She testified that her right hand was
beginning to develop similar symptoms.
Claimant shares a duplex with relatives. She is
able to take care of her personal needs. Her mother and
sister help with the cooking. She sweeps and mops about once
or twice a month, washes dishes, irons and takes out the
trash. Her mother does all the laundry because of claimant's
problems with her hands. Claimant goes to church when she
can, drives an automobile and does her household shopping
with help from relatives. However, she cannot do heavy
household cleaning chores and yard work. She reads, watches
television and receives visitors two to three times a month.
She spends a lot of time in a prone position due to her
headaches.
The ALJ determined that claimant suffered from a
combination of impairments including degenerative joint
disease, essential hypertension, left trapezius myositis,
mild right and left carpal tunnel syndrome and a painful left
foot hallux valgus (angulation of great toe). He noted that
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one physician had reported that claimant suffered from an
anxiety disorder but that claimant never had received
treatment for it. Thus, he determined, this mental condition
did not reduce, in any significant way, her capacity for the
performance of basic work activities. He credited claimant's
subjective complaints of disabling pain only to the extent
that her residual functional capacity was limited to the full
range of light exertion. He then concluded that claimant
could perform her past work.
II.
A claimant for Social Security disability benefits
bears the initial burden of establishing that he or she
cannot perform past relevant work. Goodermote v. Secretary
of Health and Human Services, 690 F.2d 5, 7 (1st Cir. 1982).
This burden includes proving that a claimant is prevented
from returning to his or her type of work generally, not
solely to the particular job. See Dudley v. Secretary of
Health and Human Services, 816 F.2d 792, 795 (1st Cir. 1987)
(per curiam); Gray v. Heckler, 760 F.2d 369, 372 (1st Cir.
1985) (per curiam). Our standard of review under the Social
Security Act is whether the Secretary's determination is
supported by "substantial evidence." 42 U.S.C. 405(g).
Although the record may support more than one conclusion, we
will uphold the Secretary if "a reasonable mind, reviewing
the evidence in the record as a whole, could accept it as
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adequate to support his conclusion." Rodriguez v. Secretary
of Health and Human Services, 647 F.2d 218, 222 (1st Cir.
1981). The resolution of conflicts in the evidence is for
the Secretary, not the courts. Id.On appeal claimant presents essentially three
arguments: (1) the severity of her carpal tunnel syndrome
prevented her from performing the full range of both light
and sedentary work; (2) due to her back and foot conditions,
she could not sit or stand for sufficient periods of time to
engage in any work; and (3) the ALJ did not properly credit
her allegations of pain. Before turning to the merits of
these claims, we note that this is an especially sparse
record. Claimant's evidence consists of three very brief
progress notes from the State Insurance Fund, four cursory
responses to Social Security disability determination
questionnaires prepared by claimant's treating physicians and
two radiology reports. In addition, the Secretary submitted
the record to two non-examining doctors who completed
residual functional capacity (RFC) forms and had claimant
examined by a consultative rheumatologist. We will discuss
this evidence in light of claimant's issues on appeal.
1. Claimant argues, that, based upon her
testimony, the carpal tunnel syndrome is so severe that it
amounts to a serious nonexertional impairment. She refers to
Social Security Ruling (SSR) 83-14, entitled Capability to do
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Other Work -- the Medical-Vocational Rules as a Framework for
Evaluating a Combination of Exertional and Nonexertional
Impairments. Although not directly on point, this ruling
states that sedentary work requires good use of the fingers
and hands. Given this, claimant concludes, the ALJ was
required to secure the testimony of a vocational expert to
assess the extent to which her carpal tunnel syndrome eroded
the occupational base for light and sedentary work.1 Id.We do not believe that the ALJ erred in not
securing such testimony. In claimant's medical evidence,
there is only one reference to any impairment involving her
hands. In an arthritis medical questionnaire, Dr. Victor M.
Gonzalez states that claimant has swelling of the joints of
her left hand and that the fourth finger of her left hand is
a "trigger finger." He provided no further explanation
despite the specific request for "a detailed description of
1. Claimant also relies on SSR 85-15, which concerns the use
of the Medical-Vocational Guidelines for solely nonexertional
limitations, for the argument that for unskilled, sedentary
work, claimant must be able to use her hands for fine
manipulations such as picking, pinching, grasping, holding
and turning. We only note that the ALJ described claimant's
past work as semi-skilled in nature, a finding she does not
dispute. In any event, the two RFC forms stated that
claimant had no limits in performing fine manipulations.
Similarly, Sec. 201.00(h) of Pt. 404, Subpt. P, App. 2
(the Medical-Vocational Guidelines) which states that an
injury resulting in the inability to perform jobs requiring
bilateral manual dexterity would support a finding of
disabled is inapposite. Subsection (h) is an example
concerning an individual under 45 years of age who is
restricted to unskilled sedentary work.
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the affected major joints in terms of . . . loss of strength
of hand function (grasp, grip, pinch)." Nor did Dr. Gonzalez
complete the range of motion chart or the periods of
exacerbation table as requested. Finally, Dr. Gonzalez did
not list carpal tunnel syndrome under the heading
"diagnosis".
Indeed, the only physician to so diagnose
claimant's problems with her hands was Dr. Luis Olivari, the
doctor to whom the Secretary referred claimant for a
consultative examination. He noted that claimant had a weak
left hand grip and related the weakness to carpal tunnel
syndrome. However, he noted that her hand condition "might
improve with adequate treatment."
The Social Security regulations require claimant to
submit medical reports which include "[a] statement about
what you can still do despite your impairment(s). . . . " 20
C.F.R. 404.1513(b)(6). This statement must refer to a
claimant's ability to handle objects. Id. 404.1513(c)(1).
Further, the medical evidence should be complete enough to
enable the Secretary to determine a claimant's "residual
functional capacity to do work-related . . . activities."
Id. 404.1513(d)(3). None of the medical evidence submitted
by claimant contains this information.
In the absence of any such evidence, the ALJ was
entitled to rely on the RFC forms which both indicated that
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claimant had no limitation in using her fingers for fine
manipulation. The only limit noted in both forms was in
using the hands for gross manipulations. Further, the
examining physician found normal wrist motion and, besides
the left hand weakness, did not mention any other
manipulative difficulties that would indicate that claimant
did not retain the "good use of the hands and fingers"
required for most sedentary work. See SSR 83-14. Although
we have pointed out in the past, and now point out again,
that the Secretary should have the examining consultant
complete an RFC evaluation, see Rivera-Torres v. Secretary of
Health and Human Services, 837 F.2d 4, 6 (1st Cir. 1988) (per
curiam), we find that there was sufficient evidence in the
record to support the ALJ's conclusion.2
2. Claimant argues that two C.T. scans -- one in
July 1990 and one in October 1990 -- establish her inability
to work due to her back and foot conditions. The July 1990
C.T. scan showed a narrowing of the disc spaces at L4-L5 and
L5-S1; the disc at L5-S1 was bulging. In addition, the scan
showed mild osteoarthritis changes of the L5-S1 and right L4-
L5 facet joints. The October 1990 C.T. scan report stated
that claimant suffered from severe degenerative joint disease
2. We also note in this context that there is no evidence
that claimant ever sought treatment for the problems with her
hands, another basis for upholding the ALJ's decision. See
Tsarelka v. Secretary of Health and Human Services, 842 F.2d
529, 534 (1st Cir. 1988) (per curiam).
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in her left great toe with spur formation and sclerotic
changes. Claimant points out that the nonexamining
physicians who completed the RFC assessments and the
consultant who examined claimant in December 1989 did not
have the benefit of these "objective" medical data. As a
result, she argues, a medical advisor was required to
interpret them because the ALJ, a lay person, may not
translate such data into functional terms. See Berrios v.
Secretary of Health and Human Services, 796 F.2d 574, 576
(1st Cir. 1986) (per curiam).
We reject this argument. First, one of the
nonexamining physicians completed his RFC assessment on May
21, 1990. At this time, the medical questionnaire, completed
by Dr. Irizarry on May 8, 1990, was in the file. In
answering this questionnaire, Dr. Irizarry refers to a C.T.
scan of March 9, 19903 which showed essentially the same
condition as the July scan -- degenerative disc disease at
L4-L5-S1, osteoarthritis of the posterior facet joints and a
narrowing of the spinal canal at L5-S1. Also on file at this
time was an earlier questionnaire completed by Dr. Irizarry
in November 1989. Although mostly illegible, it appears that
claimant's diagnoses at this time were cervical
osteoarthritis and cervical fibromyositis.
3. Claimant failed to include a copy of the report of the
March 1990 C.T. scan in the record.
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Second, both nonexamining physicians had the report
of Dr. Olivari, the Secretary's consultant. Although, as
claimant points out, Dr. Olivari's examination occurred seven
months prior to the July 1990 C.T. scan, it nonetheless could
serve as a basis for the RFC assessments. First, it appears
from the State Insurance Fund (SIF) progress notes that
claimant's present back condition is related to an injury she
sustained in 1980. Second, claimant alleged that she had to
stop work in 1988 due to her back condition. As there is no
indication that claimant's symptoms worsened between 1988 and
July 1990 when the C.T. scan was performed, Dr. Olivari's
observations in 1989 are pertinent. This examination of
claimant revealed full range of motion of claimant's spine.
There was mild difficulty in kneeling and some left trapezius
spasm. However, there were no motor or sensory deficits and
no inflammation of the major joints; all deep reflexes were
normal. Dr. Olivari diagnosed degenerative joint disease
(which the C.T. scan confirmed) and painful left foot hallux
valgus.
This is more than sufficient evidence on which to
base an RFC assessment.4 Turning to these assessments, both
4. Claimant argues that the physician who completed the RFC
assessment dated May 21, 1990, did not give a reasonable
explanation as to how he reached his conclusions. A review
of the RFC form belies this contention. Concerning her
exertional limitations, the physician indicates that he
relied on the following evidence: (1) complaints of cervical
and lumbar pain; (2) morning stiffness; (3) the March C.T.
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physicians determined that claimant could frequently lift and
carry weights up to twenty-five pounds and occasionally could
lift and carry objects weighing up to fifty pounds. Claimant
could sit, stand and walk up to six hours per activity. She
could occasionally stoop, kneel, crouch, balance and crawl.
Her ability to push and pull was unlimited up to the weights
for lifting and carrying.
In this context, we note that Dr. Irizarry also
neglected to complete the range of motion charts and the
periods of exacerbation tables. This information is directly
related to residual functional capacity and it is claimant's
burden at step four of the sequential evaluation process to
produce such evidence. See Goodermote, 690 F.2d at 7; see
also 20 C.F.R. 404.1513. Although there is a conflict
between the RFC assessments and claimant's testimony as to
her limits, such conflicts are for the Secretary. See
Rodriguez, 647 F.2d at 222. We therefore cannot fault the
determination that claimant could perform the full range of
light and sedentary work.
3. "[C]omplaints of pain need not be precisely
corroborated by objective findings, but they must be
consistent with medical findings." Dupuis v. Secretary of
Health and Human Services, 869 F.2d 622, 623 (1st Cir. 1989)
scan which revealed degenerative disc disease at L4-L5-S1;
(4) vertebral muscle spasm; and (5) vertigo.
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(per curiam). In reviewing such complaints, the ALJ's
credibility determination is entitled to deference where
there are specific findings to support it. See Frustaglia,
829 F.2d at 195. Here, the RFC assessments of the two
nonexamining physicians who reviewed the record both
indicated that claimant's conditions did not prevent her from
engaging in sedentary or light work. This conclusion is
supported by Dr. Olivari's report indicating full range of
motion of claimant's head, shoulders, wrists, hips and spine.
Although the results of the C.T. scans reflect the
kind of conditions that can be expected to produce pain,
claimant's own description of her daily activities, in
addition to the medical findings referred to above, do not
support the conclusion that her pain was as severe as
alleged. Claimant stated that she cleans her home regularly,
attends to her personal needs and drives a car. She takes
medication that alleviates her symptoms; one of her treating
physicians noted mild improvement and a 1988 progress note
from the S.I.F. indicates that claimant had no complaints.
Based on the foregoing, we agree with the ALJ's decision not
to credit claimant's allegations of totally disabling pain.
Affirmed.
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