May 27, 1993 [NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT
No. 92-2438
ANIBAL BAEZ VELEZ,
Plaintiff, Appellant,
v.
SECRETARY OF HEALTH & HUMAN SERVICES,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Juan M. Perez-Gimenez, U.S. District Judge]
Before
Torruella, Cyr and Boudin, Circuit Judges.
Cristina Munoz Gandara on brief for appellant.
Daniel F. Lopez Romo, United States Attorney, Jose Vazquez
Garcia, Assistant United States Attorney, and Nancy B. Salafia,
Assistant Regional Counsel, Department of Health and Human Services on brief for appellee.
Per Curiam. Claimant, Anibal Baez Velez, appeals
from a district court decision affirming the denial of his
application for Social Security disability benefits.
Claimant alleges that a fractured wrist and dislocated hip
and the resulting pain therefrom have left him disabled. The
Administrative Law Judge (ALJ) concluded that although
claimant's impairments were severe, they did not meet or
equal a listed impairment. Claimant was prevented from
performing his past work as a construction worker and fast
food restaurant crew member, the ALJ concluded, but was not
precluded from performing a significant number of other jobs
in the national economy which require sedentary to light
work. In so concluding, the ALJ found that claimant's
allegations of severe and disabling pain were not credible.
We affirm.
Background
Claimant was born in 1967. He completed high school and
one year of college and has worked in the construction
business and in fast food restaurants. On November 22, 1989,
claimant fell from a second story, sustaining the injuries
complained of in his application for disability payments. He
has not worked since then. Claimant was admitted to the
hospital following his fall and was diagnosed with a fracture
of his right wrist, a dislocation of his left hip and
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fractures of several ribs. He stayed in the hospital for
fifteen days.
Claimant filed an application for Social Security
disability benefits on September 5, 1990, alleging inability
to work due to the following severe impairments:
[M]y left hip always gives away (fails me) and I feel too much pain. And my right wrist doesn't function as it did before and frequently hurts. . . . I don't have the same strength that I had before in my right hand; I can't lift heavy objects because I feel pain; when I remain seated for an extended period of time and try to get up, my left hip becomes stiff and fixed in place and it hurts a lot; if I stand for extended periods I begin to suffer from back pain and hip pain.
The Social Security Administration denied claimant's
application initially and on reconsideration.
Claimant obtained a hearing before an ALJ on July 18,
1991. Claimant was represented by counsel. A Vocational
Expert also testified at the hearing. The ALJ, in a decision
dated August 27, 1991, concluded that claimant "has status,
post-fracture of right radius dislocation of left hip with
minor residuals" but that these impairments are not listed or
medically equal to those listed at 20 C.F.R. Pt. 404, Subp.
P, Appendix 1, ("Appendix 1"). With respect to claimant's
allegations of pain in his arm, back and hip, the ALJ found
them to be "credible so as to preclude arduous exertion,
repeated bending, continuous standing and walking." The ALJ
rejected appellant's contention, however, that his pain was
"of such severity and frequency as to preclude substantial
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gainful activity." The ALJ found that claimant was precluded
from performing his past relevant work, but that he "has the
residual functional capacity to perform a wide range of light
to sedentary work." The ALJ therefore concluded that
claimant was not disabled within the meaning of the Social
Security Act at any time prior to the date of that decision
and, accordingly, was not entitled to disability payments.1
Claimant's request for review by the Appeals Council was
denied, and on January 17, 1992, claimant filed a complaint
with the district court seeking review of the ALJ's decision,
pursuant to 42 U.S.C. 405 (g). The district court affirmed
the ALJ's denial of disability payments in a decision dated
October 15, 1992. The district court found that the ALJ
"properly discussed in his decision the reasons why he did
not find plaintiff's subjective symptoms of pain credible" in
accordance with the requirements of Avery v. Secretary of
Health and Human Services, 797 F.2d 19, 22 (1st Cir. 1986),
and "took into account evidence such as plaintiff's daily
activities and observations of examining doctors in reaching
his conclusion, as well as the testimony of a vocational
expert." (Citations omitted.)
Medical Evidence
1. The ALJ found that claimant met the disability insured status requirements of the Social Security Act on the date of his accident and continued to meet them through at least June 30, 1990. The exact date on which claimant's insured status expired was uncertain because of unposted 1989 earnings.
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Since his accident, claimant has been seen by doctors at
the State Insurance Fund (S.I.F.) and by a private orthopedic
surgeon, Dr. Alfredo Pinero Pereira. While in the hospital,
claimant's hip was treated with "Buck's traction" and on
December 5, 1989, Dr. Pinero performed an "external fixation
and closed reduction" on claimant's right wrist.
On December 19, 1989, Dr. Pinero examined claimant and
reported that there was decreased external rotation in his
left hip, but that he had full flexion and no "neurovascular
deficit." His right wrist was tender and his flexion was
decreased, but he could fully extend his fingers and had no
sensory deficit. Dr. Pinero prescribed physical therapy and
ordered a CT scan and follow-up visit.
In February, 1990, claimant complained to an SIF doctor
of pain in his pelvis. A CT scan of claimant's pelvis
performed on February 20, 1990 showed small linear
calcification in the joint space and small calcifications in
the acetabulum and in the femoral neck. The radiologist's
report indicated that the calcification in the joint space
might represent an interarticular osseous fragment. The
other calcifictions were compatible with myositis
ossificans.2 Dr. Pinero saw claimant again in April, 1990
2. Myositis ossificans is the inflammation of a muscle characterized by bony deposits or ossification of muscles. R. Sloane, The Sloane-Dorland Annotated Medical-Legal Dictionary
(1987).
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and reported that he had full range of motion in his hip,
except that he still had decreased external rotation. Dr.
Pinero warned claimant that he might develop arthritis in his
hip if osteochondral fragments were not removed from the
joint.
Claimant saw an SIF doctor on April 25, 1990 and
complained of pain in his hip. Notes from that visit indicate
that he limped a little and had limited anterior and
posterior flexion. Physical therapy was recommended. On May
2, 1990, claimant saw an SIF doctor again. The record shows
that claimant had markedly limited range of motion in his
wrist, reduced grip strength and mild engrossment. He was
able to make a tight fist. Claimant complained of constant
wrist pain, but did not experience numbness. He indicated
that he used his wrist for activities of daily living, but
could not lift heavy objects. Physical therapy was
recommended to increase claimant's range of motion and
strength and to decrease his pain. The record from a May 14,
1990 visit with Dr. Pinero indicates that claimant had 80%
supination and full pronation of his wrist. The doctor
ordered a wrist x-ray and a follow-up appointment in four
weeks.
A May 18, 1990 report from the SIF indicates that
claimant had reported no benefit from physical therapy, but
that his grip strength had increased. Claimant's range of
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motion had increased slightly, although it remained markedly
limited. A May 21, 1990 report from Dr. Carlos Fuxench, an
SIF physiatrist, indicated that claimant was able to make a
fist and that the range of motion in his finger joints was
complete. Dr. Pinero examined claimant on June 25, 1990.
He indicated that claimant had full range of motion in his
hip, but that external rotation was painful. He diagnosed
post-traumatic degenerative joint disease of the left hip.3
In September, 1990, claimant visited an SIF doctor again
and reportedly complained of pain in his wrist and hip. The
doctor noted that claimant was leaning on a cane to walk,
which exacerbated the pain in his wrist. A November 5, 1990
report from the SIF indicated that claimant complained of
pain in his wrist, but that there was no edema and that
flexion and extension were accomplished with difficulty. Dr.
Torres from the SIF examined claimant on November 14, 1990,
and noted that the pain in claimant's hip was intermittent
and worsened when he leaned forward. Although the area was
tender, Dr. Torres reported that claimant had full range of
motion and muscle strength in his left hip. He also reported
3. Degenerative joint disease is characterized by degeneration of the articular cartilage, hypertrophy of bone at the margins, and changes in the synovial membrane. "It is accompanied by pain and stiffness, particularly after prolonged activity." The Sloane-Dorland Annotated Medical-
Legal Dictionary.
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that claimant was walking adequately unassisted. He diagnosed
trochanteric bursitis.4 Continued pain medication and
stretching exercises were prescribed.
In December, 1990, the SIF doctors prescribed 20 mg/day
of Feldene (a medication given to inhibit inflammation and
pain). Claimant complained of pain in his wrist and hip. In
January, 1991, Dr. Pinero saw claimant and reported that he
complained of intermittent episodes of pain. He noted that
the hip dislocation would probably lead to arthritis,
requiring further surgery, but that claimant wanted to
postpone surgery until the pain became intolerable. Dr.
Pinero recommended x-rays. The x-ray report indicated "no
evidence of recent fracture, soft tissue calcifications or
other complication" in claimant's wrist. The x-ray showed a
"deformity in the distal radius and the ulnar styloid,
presumably result of an old healed fracture." The hip x-ray
indicated "a bony projection arising from the greater
trochanter of the femur which may be related to tendinitis or
to previous traumatic episodes." There was no evidence of a
present or past hip fracture and the "sacroiliac and
coxofemoral joint spaces" were preserved.
4. Bursitis is the inflammation of a bursa, "a sac or saclike cavity filled with viscid fluid and situated at places in the tissues at which friction would otherwise result." The Sloane-Dorland Annotated Medical-Legal
Dictionary.
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Claimant's final reported visit with Dr. Pinero was on
February 5, 1991. The doctor reported that claimant
complained of hip pain, but that he had full flexion,
internal rotation and abduction in his hip, and 40% external
rotation. The report noted that the x-rays showed post-
traumatic degenerative joint disease which might explain pain
symptoms. Dr. Pinero also noted that avascular necrosis is
another complication that can occur with degenerative joint
disease and explain pain.5 Finally, Dr. Pinero recommended
that if conservative treatment fails, claimant "could be a
candidate for hip fusion."
On March 20, 1991, claimant saw an SIF doctor.
Although claimant complained of pain in his hip and wrist,
the report noted no edema and no deficit in flexion-extension
and that fingers close. No difficult gait was observed.
Finally, a June 20, 1991 report from an SIF doctor stated
that claimant is not willing to undergo a hip fusion,
although he still complained of pain in his hip and forearm.
Discussion
On appeal, claimant argues that the decision to deny him
disability benefits is not supported by substantial evidence.
Claimant specifically contends that the finding that
5. Avascular necrosis describes "the sum of morphological changes indicative of cell death" caused by deficient blood supply to the affected area. The Sloane-Dorland Annotated
Medical-Legal Dictionary.
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claimant's medical condition does not meet or equal listing
1.03 (arthritis of a major weight-bearing joint) in Appendix
1 of the regulations was erroneous and that the district
court, in affirming the denial, failed to give proper credit
to claimant's subjective complaints of pain.
The Social Security Act establishes the following
standard of review in this case: "[t]he findings of the
Secretary as to any fact, if supported by substantial
evidence, shall be conclusive, . . . " 42 U.S.C. 405(g).
Therefore, the Secretary's decision to deny claimant
disability payments in this case must be affirmed "if a
reasonable mind, reviewing the evidence in the record as a
whole, could accept it as adequate to support his
conclusion." Rodriguez v. Secretary of Health & Human
Services, 647 F.2d 218, 222 (1st Cir. 1981). "It is the
responsibility of the Secretary to determine issues of
credibility and to draw inferences from the record evidence."
Ortiz v. Secretary of Health and Human Services, 955 F.2d
765, 769 (1st Cir. 1991) (Per Curiam).
Following the sequential steps set forth at 20 C.F.R.
404.1520, the ALJ first found that claimant had not worked
since January 22, 1989. Second, he determined that claimant
had a severe impairment, termed "musculoskeletal
involvement." Third, the ALJ concluded that claimant's
impairments did not meet or equal the criteria in the Listing
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of Impairments in Appendix 1 of the regulations. Fourth, he
found that claimant's impairment prevented him from
performing his past relevant work as a construction worker
and a crew member at a fast food restaurant. Finally, the
ALJ concluded that although claimant was limited to
performing sedentary to light work, his impairments did not
prevent him from doing any other work. Therefore, the ALJ
found the claimant not disabled.
Claimant takes issue on appeal with the ALJ's findings
at steps three and five. He argues that his combined
impairments "meet in severity the musculoskeletal listing
criteria." Specifically, claimant argues that his hip injury
meets the musculoskeletal impairment listed at section 1.03
of Appendix 1: "arthritis of a major weight-bearing joint
(due to any cause)." While conceding that his wrist injury
does not alone meet or equal a listed impairment, claimant
argues that when the hip and wrist injury are evaluated in
combination they meet or equal the severity of the impairment
listed at section 1.03.
Section 1.03 provides as follows:
1.03 Arthritis of a major weight-bearing joint
(due to any cause):
With history of persistent joint pain and stiffness with signs of marked limitation of motion or abnormal motion of the affected joint on current physical examination. With: A. Gross anatomical deformity of hip or knee (e.g., subluxation, contracture, bony or fibrous ankylosis, instability) supported by X-ray evidence of either significant joint space narrowing or
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significant bony destruction and markedly limiting ability to walk and stand; or B. Reconstructive surgery or surgical arthrodesis of a major weight-bearing joint and return to full weight-bearing status did not occur, or is not expected to occur, within 12 months of onset.
20 C.F.R. Pt. 404, Subp. P, Appendix 1, 1.03.
Claimant has the burden of demonstrating the existence
of an impairment or combination of impairments that meet or
equal the criteria in the Listing of Impairments at Appendix
1. See Dudley v. Secretary of Health and Human Services, 816
F.2d 792, 793 (1st Cir. 1987). There is substantial evidence
to support the ALJ's determination that claimant did not meet
this burden. Section 1.03 of the listings requires a "gross
anatomical deformity . . . markedly limiting ability to walk
and stand." The ALJ specifically found that "since about
September 1990 the record fails to show ongoing use of [a]
cane [to assist ambulation]." In addition, the ALJ noted
that "[d]uring the hearing on July 8, 1991 the claimant was
observed to walk without the use of a cane" and that he
"stood for 10 minutes early in the hearing."
The medical evidence, summarized above, supports the
ALJ's finding that the injury did not meet or equal the
listing criteria. Claimant was observed to limp a little at
his April, 1990 visit to the SIF and at his September, 1990
visit claimant used a cane. Dr. Pinero's June, 1990
examination of claimant, however, indicated that he had full
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range of motion in his hip, although external rotation was
painful. In November, 1990, Dr. Torres reported that
claimant had full range of motion and muscle strength in his
hip and that claimant was "walking adequately unassisted."
In February, 1991, Dr. Pinero reported that claimant had full
flexion, internal rotation and abduction. Finally, on March
20, 1991, an SIF report notes that "no difficult gait was
observed." Claimant's wrist injury cannot, even in
combination with his hip injury, satisfy the requirements of
1.03. Therefore, the district judge did not err in
affirming the ALJ's determination that claimant's impairment
did not meet or equal a listed impairment.6
Claimant argues that the ALJ erred in not obtaining the
assistance of a medical expert in order to assess the
severity of claimant's physical limitations and whether they
equal a listed impairment. It does not require medical
expertise, however, to determine whether claimant is markedly
limited in his ability to walk or stand, a requirement of
1.03 of the listings. Therefore, the ALJ did not err in
making this commonsense judgment without the assistance of a
6. Claimant also suggests that his impairments meet or equal the impairments listed at sections 1.04 and 1.12 of the Appendix. Section 1.04, however, requires arthritis of one major joint in each of the upper extremities. Section 1.12
requires fracture of an upper extremity where functional use is not restored within twelve months. The medical evidence supports the ALJ's conclusion that these requirements were not met.
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medical expert. (Cf. Gordils v. Secretary of Health and
Human Services, 921 F.2d 327, 329 (1st Cir. 1990) ("the
Secretary is not precluded from rendering commonsense
judgments about functional capacity based on medical
findings, as long as the Secretary does not overstep the
bounds of a lay person's competence and render a medical
judgment.").
Claimant also alleges on appeal that the ALJ did not
adequately consider his allegations of disabling pain. The
ALJ found that claimant's allegations of pain were "credible
so as to preclude arduous exertion, repeated bending,
continuous standing and walking. Otherwise they are not of
such severity and frequency as to preclude substantial
gainful activity." The ALJ considered claimant's testimony
in light of the other record evidence. Claimant testified
that he sometimes experiences shooting pains extending from
his back to his hip. He stated that he was taking pain
medication ("Dolabid") two or three times a day and that it
sometimes helped. Claimant also testified that the pain in
his back and hip was constant and that it hurt his arm to
lift twenty pounds or to continually carry lighter weights.
He stated that it hurt his wrist to grasp something.
The record contains objective medical evidence of
impairments that could reasonably be expected to cause
claimant pain. Dr. Pinero diagnosed claimant with post-
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traumatic degenerative joint disease in his left hip. This
condition is "accompanied by pain and stiffness, particularly
after prolonged activity." R. Sloane, The Sloane Dorland
Annotated Medical-Legal Dictionary (1987). Dr. Pinero also
noted that avascular necrosis can occur with degenerative
joint disease and cause pain. Dr. Torres diagnosed bursitis,
which has been characterized as a medical condition
"reasonably capable of causing disabling pain." Sewell v.
Bowen, 792 F.2d 1065, 1068 (11th Cir. 1986). Nonetheless, as
the ALJ noted in his decision, "[t]he record fails to
establish significant or persistent weakness or functional
limitation." The ALJ concluded that claimant's allegations
of severe and disabling pain were "unsupported by the
objective findings which fail to disclose severe osseous or
neurological involvement or residuals."
Where allegations of disabling pain are unsupported by
objective medical evidence, the ALJ is required to obtain
detailed descriptions of claimant's daily activities,
functional restrictions, medication and other treatment for
pain, frequency and duration of pain, and precipitating and
aggravating factors. See Avery v. Secretary of Health and
Human Services, 797 F.2d at 23; SSR 88-13. The ALJ
thoroughly questioned claimant in accordance with the above
requirements. Claimant testified at his hearing before the
ALJ that he used his right hand for eating, dressing, writing
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and shaving. He further testified that he sometimes lifted
his two-year-old child. In his application for disability
payments, claimant described his daily activities as
including house cleaning, taking out the garbage, shopping,
doing the dishes, visiting friends, attending church and the
movies. At his hearing, however, claimant testified that
typically he spent all day watching television.
The ALJ specifically found that claimant's allegations
of severe and disabling pain were not credible. This
credibility determination, especially when supported by
specific findings, is entitled to deference. Fustaglia v.
Secretary of Health and Human Services, 829 F.2d 192, 195
(1st Cir. 1987). In addition to the lack of supportive
objective medical evidence, the ALJ also found that the
allegations were unsupported by claimant's "conservative
treatment, his demeanor, his daily activities, and other
evidence of record." The ALJ found claimant's allegations
of pain credible only to the extent that they "preclude
arduous exertion, repeated bending, continuous standing and
walking." He therefore made the following determination
regarding claimant's residual functional capacity:
The claimant has the residual functional capacity to perform the physical exertional requirements of work except for arduous physical exertion, repetitive, bending, lifting or carrying in excess of 20 lbs or continuous standing or sitting.
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This conclusion is substantially supported by the
medical evidence summarized above. In May, 1990, claimant
told a treating physician at the SIF that he used his wrist
for activities of daily living, although he could not lift
heavy objects. A May, 1990 report from the SIF indicated
that claimant's grip strength and range of motion had
increased. An x-ray report from 1991 indicated "no evidence
of recent fracture, soft tissue calcifictions or other
complication" in claimant's wrist. After an examination of
claimant on November 14, 1990, Dr. Torres reported that the
pain in his hip was intermittent. A March, 1991 report from
SIF indicated no edema and no deficit in flexion-extension of
claimant's wrist. A February, 1991 report by treating
physician Dr. Pinero indicated that claimant had full
flexion, internal rotation and abduction in his hip, and 40%
external rotation.
The RFC form completed by a nonexamining physician on
March 21, 1991, also supports the ALJ's findings. The RFC
reveals that claimant occasionally can lift and carry fifty
pounds and frequently can lift and carry twenty-five pounds.
He can only occasionally climb, balance, kneel and crawl.
However, he can sit, stand and walk for up to six hours per
work day. He is limited in the weight that he can push
and/or pull to ten pounds because of his wrist injury. The
RFC also noted that claimant's gross manipulation abilities
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were limited somewhat by his wrist injury, but that his
reaching and fine manipulation abilities were not limited.
The vocational expert testified that there were jobs
existing in significant numbers in the national economy which
claimant can perform, given his residual functional capacity,
age, education and work experience. These included the
following light to sedentary semi-skilled jobs: cashier,
counter clerk, shipping clerk and general office clerk.
Having reviewed the entire record, we conclude that the
ALJ's findings are supported by substantial evidence,
including medical evidence from claimant's treating
physicians, claimant's testimony at the hearing before the
ALJ, the RFC prepared by a non-examining physician and the
testimony of the vocational expert. Where the facts permit
diverse inferences, we will affirm the Secretary so long as
the inferences drawn are supported by the evidence.
Rodriguez Pagan v. Secretary of Health and Human Services,
819 F.2d 1,3 (1st Cir. 1987). Therefore, the district court
did not err in affirming the ALJ's decision denying
disability payments.
For the foregoing reasons, the judgment of the district
court is affirmed.
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