Candelaria v. Jo Anne Barnhart

Not For Publication in West's Federal Reporter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. 05-2814
MIRIAM CANDELARIA,
Plaintiff, Appellant,
v.
JO ANNE B. BARNHART,
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
Selya, Circuit Judge,
Campbell, Senior Circuit Judge,
and Lipez, Circuit Judge.
Felix M. Zeno Gloro on brief for appellant.
H.S. Garcia, United States Attorney, Jose M. Pizarros-Zayas,
Assistant U.S. Attorney, and Robert M. Peckrill, Special Assistant
U.S. Attorney, on brief for appellee.
September 13, 2006
Per Curiam. Claimant Miriam Candelaria appeals from the
district court judgment affirming the denial of Social Security
disability benefits. In the underlying administrative proceedings,
the administrative law judge (ALJ) determined that claimant
suffered from the following severe impairments: (1) depression;
(2) anxiety; and (3) a back condition. The ALJ also specifically
determined that claimant's back condition precluded her from
engaging in frequent bending or frequent overhead reaching --
nonexertional limitations. At the end of the sequential evaluation
process, the ALJ concluded that, although claimant could not return
to her past work, she (claimant) nonetheless retained the residual
functional capacity (RFC) to perform substantially the full range
of light work and that this range had not been reduced by any
nonexertional limitations. Using the Medical Vocational
Guidelines, 20 C.F.R. Part 404, Subpart P, App. 2 (grid), as a
framework, the ALJ concluded that claimant was not disabled.
Although we reject most of claimant's arguments on appeal, we agree
with her that reliance on the grid in this case was in error.
Where a claimant cannot return to her past work, as here,
the Commissioner bears the burden of proving the existence of other
jobs in the national economy that the claimant can perform. See
Ortiz v. Sec'y of HHS, 890 F.2d 520, 524 (1st Cir. 1989) (per
curiam). The grid allows the Commissioner to satisfy this burden
without having to resort to the testimony of a vocational expert
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(VE). Id. However, the use of the grid is permissible only if a
claimant's nonexertional limitations do not impose significant
restrictions on the range of work that the claimant is exertionally
able to perform. Id. In situations where a nonexertional
impairment does "significantly affect" a claimant's capacity to
perform the full range of jobs she is otherwise exertionally
capable of performing, "the [Commissioner] must carry [her] burden
of proving the availability of jobs in the national economy by
other means, typically through the use of a vocational expert."
Id. (internal quotation marks and citations omitted).
Here, there is no question that claimant's inability to
bend frequently does not significantly affect the full range of
light work that she otherwise can perform. The Commissioner, in
describing what nonexertional abilities are necessary to perform
the full range of light work, has stated that a person "would need
to [bend] only occasionally." Social Security Ruling 83-14, 1983
WL 31254, at *2 (emphasis added). Because the ALJ's findings did
not preclude claimant from such occasional bending -- which
findings are supported by the non-examining RFC assessment --
claimant's limitation in this regard did not prevent reliance on
the grid.
As for the ability to reach, the Commissioner has stated
that this ability -- which is defined as "extending the hands and
arms in any direction" -- is required "in almost all jobs" and that
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"[s]ignificant limitations of reaching . . . may eliminate a large
number of occupations a person could otherwise do." Social
Security Ruling 85-15, 1985 WL 56857, at *7. As a result, the
Commissioner has explained that "[v]arying degrees of limitations
[in reaching] would have different effects, and the assistance of
a [VE] may be needed to determine the effects of the limitations."
Id.Here, the ALJ found only a limited restriction on
reaching -- i.e., he found that claimant was precluded from
frequent overhead reaching. Apparently, since the ALJ determined
that claimant's capacity for the full range of light work had not
been reduced by any nonexertional limitations, he implicitly had
decided (or had assumed) that such a limited restriction on
reaching did not significantly affect this range. Unlike with the
issue of bending, however, the Commissioner does not cite to
anything in the regulations or rulings that would support the ALJ's
implicit decision.
A similar case is Mondragon v. Apfel, 3 Fed. Appx. 912(10th Cir. 2001). In Mondragon, the ALJ had determined that
although the claimant could not return to her former work, she
nonetheless could perform light work which (1) permitted an
occasional change of position and (2) did not require "regular
overhead reaching or lifting." Id. at 915 (internal quotation
marks and citation omitted). Based on "his own impression" that
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most light jobs "allow for occasional change of position and do not
require regular overhead reaching," the ALJ relied on the grid to
find that the claimant was not disabled. See id. The Tenth
Circuit ordered a remand for the purpose of obtaining the testimony
of a VE, noting that the ALJ's "impression" that the claimant could
perform most light jobs was not supported either by such testimony
or by any other source. Id. at 917.
We think that the same reasoning applies here. The ALJ's
assumption (or implicit decision) that the full range of light work
would not be significantly reduced by a limited restriction on
overhead reaching may very well be correct. However, the only
support for this assumption is, as in Mondragon, the ALJ's own
impression. In such a situation, we think that an expert's opinion
is required for an assessment of the significance of claimant's
reaching restriction.
The judgment of the district court is vacated and the
case is remanded to that court with instructions to remand, in
turn, to the Commissioner for further proceedings consistent with
this opinion. We express no view as to the eventual outcome of the
claim. No costs are awarded.
So ordered.
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