Figueroa Alvarez v. SHHS

Opinion

USCA1 Opinion

                                [NOT FOR PUBLICATION]

                            UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT


____________________


No. 95-1028



                              JOSE R. FIGUEROA ALVAREZ,



                                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. Salvador E. Casellas, U.S. District Judge]
                                               ___________________



                                 ____________________



                                        Before



                                Torruella, Chief Judge,
                                           ___________

                          Selya and Boudin, Circuit Judges.
                                            ______________



                                 ____________________



            Raymond Rivera Esteves and Juan A.  Hernandez Rivera on brief  for
            ______________________     _________________________

        appellant.

            Guillermo  Gil,  United  States  Attorney,  Maria Hortensia  Rios,
            ______________                              _____________________

        Assistant  United  States  Attorney,  and  Donna  McCarthy,  Assistant
                                                   _______________

        Regional  Counsel, Department of Health & Human Services, on brief for

        appellee. 


____________________

                                    August 2, 1995

                                 ____________________



Per Curiam.   In 1990, Jose  Figueroa Alvarez filed
                      __________



            an  application  for  Social  Security  disability  benefits,



            alleging disability due to lower back pain.  After a hearing,



            the administrative law  judge (ALJ) denied  Figueroa's claim,



            concluding  that he could perform his past relevant work as a



            security  guard,  and  the  Appeals  Council  denied  review.



            Figueroa then appealed to  the district court, which affirmed



            the decision.  He  now seeks review in  this court.   Because



            Figueroa's  specific objections on  appeal are meritless, and



            because  our  review of  the  record  shows that  substantial



            evidence supports the finding that Figueroa was not disabled,



            we affirm.  



                      In  his  decision,  the  ALJ  determined  that  the



            medical evidence of record showed  that Figueroa has a severe



            musculoskeletal condition, but  not one meeting or  equalling



            the conditions listed in 20 C.F.R. Pt. 404, Subpt. P, App. 1.



            Specifically, a CT scan showed lumbar spine spondylolysis and



            spondylolisthesis  at the  L4-L5 level and  posterior bulging



            with  small central  disc herniation  and compression  of the



            dural sac at that level.  The ALJ  found that Figueroa's back



            condition was  compatible with  episodic pain,  but concluded



            that the evidence did  not establish a medically determinable



            basis for  the degree of  pain alleged.   He also  found that



            Figueroa's back condition had not limited his neurological or



            orthopedic  functioning since  Figueroa had  always exhibited


-2-



good range of  motion and no  muscle weakness.   Nonetheless,



            the  ALJ determined that Figueroa could no longer perform his



            prior  medium exertional  level  job as  warehouseman  and/or



            fingerlift operator.   Because  he found that  Figueroa could



            still perform light work, however,  the ALJ concluded that he



            could perform his past  relevant work as a security  guard, a



            job Figueroa had held from 1983-86 and again in 1990.



                                     DISCUSSION
                                     __________



                      On appeal,  Figueroa claims that the  ALJ failed to



            consider  his   allegations  of  disabling   pain,  erred  in



            concluding  that  he  could return  to  his  past  work as  a



            security guard,  and denied  him disability benefits  without



            considering evidence in his favor.  



                      A.  Allegations of Disabling Pain
                          _____________________________



                      In  support of  his  claim that  the ALJ  failed to



            consider  his allegations of  disabling pain, Figueroa states



            first  that  he  constantly  and  persistently  complained to



            examining physicians  of severe disabling pain.   He suggests



            that  the ALJ  ignored that  evidence.   The record  does not



            substantiate his claim.



                      First,  there are  significant  gaps in  Figueroa's



            medical records between December  1988, when he first injured



            his back, and October 1991, when the hearing took  place.  We



            have  found  no  medical  records  indicating  that  Figueroa



            complained of  pain to  examining physicians for  the periods


-3-



from May 1989 to  December 1989, February 1990 to  June 1990,



            or March 1991 to October 1991.1  



                      Second, as the transcript shows, at the hearing the



            ALJ elicited Figueroa's testimony  on relevant aspects of the



            pain  he alleged,  as required  under Avery  v. Secretary  of
                                                  _____     _____________



            Health  and Human Services, 797 F.2d 19, 29 (1st Cir. 1986).2
            __________________________



            In his decision, the  ALJ took account of that  testimony and



            stated  that  Figueroa's  "salient  complaint" was  pain  and



            decreased sensation in his right leg.  In view of the medical



            evidence, however,  the ALJ  did not fully  credit Figueroa's



            allegations of pain.  He noted the gaps in Figueroa's medical



            treatment history, including the fact  that he had not sought


____________________



            1.  The record contains an  August 1989 report of the  Puerto

            Rico Industrial  Commission in which  the Commission reported

            that  Figueroa alleged pain in his lower right back and right

            hip.   Apparently, because of Figueroa's  allegation of pain,

            the Commission overturned the State Insurance Fund's May 1989

            discharge of Figueroa  as "cured and without disability."  In

            February or March 1991,  the State Insurance Fund determined,

            under  the  applicable  worker's compensation  law,  that  in

            December  1988 Figueroa  had  sustained a  partial  permanent

            disability of 15 %  of his "general physiological functions."

            Although disability determinations  by other agencies  may be

            considered  by  the Secretary,  they  are not  binding.   See
                                                                      ___

            Mandrell v. Weinberger, 511 F.2d 1102, 1103 (10th  Cir. 1975)
            ________    __________

            (Veterans'   Administration   disability   determination   is

            entitled  to  consideration,  but   is  not  binding  on  the

            Secretary).



            2.  Under  Avery, the  ALJ was required  to inquire  into the
                       _____

            nature, location, onset,  duration, frequency, radiation, and

            intensity  of   the  pain  in  question;   the  factors  that

            precipitated  or  aggravated  the  pain;  the  type,  dosage,

            effectiveness, and  adverse side effects of  pain medication;

            treatment  for  the  pain  other  than  medication;  and  the

            claimant's functional restrictions and daily activities.  



                                         -4-



any treatment after February 1991.   He concluded that, while



            Figueroa's  back condition  could cause  pain on  an episodic



            basis,  the pain had proven treatable and had not limited his



            functioning significantly, except to the extent that he could



            not perform medium or heavy work.  



                      Besides  the  gaps  in Figueroa's  medical  record,



            other  evidence  supports  the ALJ's  conclusion.    Although



            Figueroa testified that his pain was constant  and strong, he



            also said  that medication  "alleviate[d]" the pain  and that



            massaging  his leg  alleviated  painful cramping  during  the



            night.   He testified that his medication gave him heartburn,



            and  for  that  reason  it  had  been  changed;  his  current



            medication allegedly had side effects, too, but Figueroa gave



            no specifics and acknowledged that  he took it anyway because



            it "at  least relieve[s] the pain a  little."3  The ALJ noted



            that Figueroa appeared in no distress at the hearing and that



            he walked adequately with no assistive device.  Figueroa also



            testified that he  could walk for 30 meters,  that one of his



            daily activities was  walking around  his yard,  and that  he



            walked around the house when  leg pain woke him up at  night.



            A  consulting  neurologist  reported  in  January  1991  that



            Figueroa had back pain syndrome, but that he could do tip toe


____________________



            3.  In  his decision,  the ALJ  stated that  Figueroa's pills

            caused  numbness,  but  we   found  nothing  in  the  hearing

            transcript to support  that statement, and so assume  that it

            was inadvertent error.



                                         -5-



gait, walk  on his heels  and squat  on his  knees; that  his



            forward lumbar flexion was 80 degrees forward and his lateral



            lumbar  flexion  was  20   degrees;4  that  his  Lasegue  was



            negative5 and  his straight leg raising was  90 degrees; that



            he  had no motor weakness  and no muscle  atrophy although he



            had minimal  paravertebral muscle  spasm; and that  there was



            decreased sensation  in his right leg  without any anatomical



            distribution.   In  February and  June 1991,  Social Security



            physicians reviewed  Figueroa's medical records  and assessed



            his  residual functional  capacity  (RFC).6   Each  indicated



            that, despite his back  condition, Figueroa could perform the



            exertional requirements of light work:  he could occasionally



            lift  or  carry 20  pounds and  frequently  lift or  carry 10


____________________



            4.  Accompanying range of motion charts show that full lumbar

            flexion forward  is 90 degrees  and that full  lateral lumbar

            flexion is 20 degrees. 



            5.  This apparently  means that Figueroa suffered  no pain or

            limitation of  movement  when raising  his  legs while  in  a

            supine position.   See Blakiston's  Gould Medical  Dictionary
                               ___ ______________________________________

            743 (4th  ed. 1979) (Lasegue's  sign becomes positive  when a

            supine  patient raises  his entire  lower extremity  with his

            knees  in  full extension  and suffers  pain or  muscle spasm

            resulting in limitation of movement at a particular  angle of

            elevation).



            6.  Among  other things,  the  medical opinion  request  form

            underlying the February RFC assessment noted Figueroa's claim

            of  pain, his  minimal paravertebral muscle  spasm, decreased

            sensory  sensation  in  his  right   leg  without  anatomical

            distribution,  and  his  original  back injury  and  CT  scan

            results.   The  medical opinion  request form  underlying the

            June  RFC  assessment noted,  among  other  things, his  back

            condition, decreased sensation in  his right leg, and minimal

            paravertebral muscle spasm.



                                         -6-



pounds;  he could stand, walk and sit with normal breaks each



            for  a total of  about 6 hours  in an 8-hour  workday; and he



            could push or  pull without limit.  See 20  C.F.R.   404.1567
                                                ___



            (the  physical exertional requirements of light work comprise



            the ability  to lift no more  than 20 pounds at  a time while



            frequently lifting  or carrying objects  up to 10  pounds, to



            walk  or stand a  good deal, or  to perform some  pushing and



            pulling of arm  or leg  controls if the  job mostly  required



            sitting); SSR 83-10 ("[T]he full range of light work involves



            standing or walking, off and on, for a total of approximately



            6  hours   of  an   8-hour  workday.     Sitting  may   occur



            intermittently during  the remaining  time.").  Figueroa  has



            not  submitted any  physician's evaluation  or other  medical



            report which contradicts the  neurologist's assessment of his



            condition  as of  January 1991,  nor any  residual functional



            capacity evaluation which contradicts the two RFC assessments



            indicating that he could perform light work.  



                      B.  Past Relevant Work
                          __________________



                      Figueroa objects  to the  ALJ's conclusion that  he



            could perform his past relevant work of security guard, which



            is  classified as light exertional  work.  See  U.S. Dep't of
                                                       ___



            Labor, Dictionary of Occupational  Titles (DOT) 269 (4th rev.
                   __________________________________  ___



            ed. 1991).   In support thereof, Figueroa  cites the postural



            limitations  described in  the  Secretary's RFC  assessments.



            Both  assessments indicated  that, given his  back condition,


-7-



Figueroa could only occasionally climb  stairs, stoop, crouch



            and  crawl.7   Figueroa  argues that  the  ALJ, as  a layman,



            could not evaluate how  his postural limitations would affect



            his  ability  to  perform  the  work  of  a  security  guard,



            suggesting that the  ALJ needed the guidance  of a vocational



            expert.  



                      We disagree.   Figueroa bore the  burden of showing



            that he  could no longer perform his former job.  In order to



            meet  that  burden,  he   needed  to  provide  "some  minimal



            information about  the activities that [his]  past usual work



            required[.]"    Santiago v.  Secretary  of  Health and  Human
                            ________     ________________________________



            Services, 944 F.2d  1, 5  (1st Cir. 1991);  accord Dudley  v.
            ________                                    ______ ______



            Secretary  of Health  and Human Services,  816 F.2d  792, 794
            ________________________________________



            (1st Cir. 1987)  (per curiam).  But  Figueroa never testified



            that his prior work as security guard required  any climbing,



            stooping,  crouching and  crawling, let  alone doing  so more



            than  occasionally, nor does  anything we  have found  in the



            record  suggest  that  this is  true.    Thus,  there was  no



            evidence  before  the ALJ  to  show that  Figueroa  could not



            perform  his  past job  as a  security  guard because  of his



            postural limitations.  Nor  are climbing, stooping, crouching



            and crawling listed as  physical requirements of the security



            guard job in  the relevant vocational publication.   See U.S.
                                                                 ___



                                
            ____________________



            7.  The RFC  assessment forms  define "occasionally"  to mean

            "occurring  from very  little up  to  one-third of  an 8-hour

            workday (cumulative, not continuous)."



                                         -8-



Dep't  of  Labor,  Selected  Characteristics  of  Occupations
                               __________________________________________



            Defined in  the  Revised Dictionary  of  Occupational  Titles
            _____________________________________________________________



            (SCO)  Pt. A,  at 45;  App. C,  at C-3  (1993) (the  physical
             ___



            demand   components  of  climbing,  stooping,  crouching  and



            crawling are "not  present" in the security  guard job);8 see
                                                                      ___



            also  SSR 83-14  (stating  that relatively  few  jobs in  the
            ____



            national economy require climbing and that workers performing



            light exertional jobs would not have to crouch and would have



            to stoop  only occasionally to perform  substantially all the



            exertional requirements of most  light jobs).  Since Figueroa



            never met his burden of showing that his postural limitations



            prevented him  from returning  to his  past work  as security



            guard, and  the SCO  indicates that his  postural limitations
                            ___



            would not prevent him from  performing the security guard job



            as  usually performed in the national economy, the ALJ had no



            obligation  to consult a vocational  expert.  See Musgrave v.
                                                          ___ ________



            Sullivan, 966 F.2d 1371, 1376 (10th Cir. 1992) (an ALJ has no
            ________



            obligation  to  seek  vocational  expert  testimony  where  a



            claimant has  not established a disability  that prevents him



            from performing his  past relevant work); see also  SSR 82-61
                                                      ___ ____



            (stating  that   vocational  experts  may  be   necessary  in



            determining  how  a  job   is  usually  performed  where  the


____________________



            8.  The Secretary of  Health and Human  Services may rely  on

            the  general   job  categories  in   the  DOT   and  SCO   as
                                                      ___        ___

            presumptively  applicable to  a claimant's  prior work.   See
                                                                      ___

            Villa v. Heckler, 797 F.2d 794, 798 (9th Cir. 1986).
            _____    _______



                                         -9-



vocational resource materials are insufficient); compare Gray
                                                             _______ ____



            v.  Heckler, 760  F.2d 369, 373  (1st Cir. 1985)  (an ALJ may
                _______



            rely  on vocational  publications  in determining  whether  a



            claimant could return to past work where the claimant had the



            opportunity to, but did not, testify about the demands of her



            prior job).  



                      Figueroa  next  suggests   that  the  ALJ   ignored



            significant evidence  in determining that he  could return to



            his work as a security  guard.  Figueroa points first to  his



            testimony that he  could not continue  working as a  security



            guard.  At  the hearing,  Figueroa testified that  he had  to



            leave  his  security  guard   position  in  June  1990  after



            reinjuring his  back.  He also testified that he had tried to



            return to  work recently,  but that  he had  to quit  after a



            month because he was  required to stand all the  time, making



            his leg and  heel numb.9   Furthermore, Figueroa stated  that



                                
            ____________________



            9.  The record does not show conclusively that this job was a

            security guard position.  Figueroa described his unsuccessful

            attempt  to work  again  in response  to  the ALJ's  question

            whether he  had worked  as a  security guard  elsewhere after

            June  1990,  suggesting that  the  job was  a  security guard

            position.  But, when the ALJ then concluded that Figueroa had

            worked   as  a  security  guard  for  five  months  in  1990,

            Figueroa's   attorney  presented  a  letter  certifying  only

            Figueroa's previous  employment as  a security guard  for the

            four-month  period from February to  June 1990.   The rest of

            the  attorney's response  is listed as  "inaudible."   In his

            decision,  the  ALJ  reports  that Figueroa  alleged  at  the

            hearing  that he  worked as  a security  guard for  only four

            months,  but that in his written submissions to the agency he

            stated that he  had also  worked from 1983-86  as a  security

            guard.  This  suggests that the ALJ's understanding  was that

            Figueroa's   unsuccessful  one-month  employment  was  not  a



                                         -10-



he  could stand only for about  25-30 minutes, then he had to



            move his legs or stand  on his toes.  Figueroa  also suggests



            that the ALJ ignored medical records from April 1989 and June



            1990 which  indicated that  he had difficulty  in standing.10


The fact  that Figueroa  had to leave  his security



            guard job in June 1990 or that he complained of difficulty in



            standing  in April 1989 and June 1990 is not very significant



            since the  record indicates that his  back condition improved



            afterwards  and that  it had  not significantly  affected his



            legs.    In  September  1990, a  neurosurgeon  reported  that



            Figueroa's back pain did not radiate to his legs  and that he



            had  very infrequent  cramps; he found  that Figueroa  had no



                                
            ____________________



            security  guard  position.    Figueroa's  brief  contains   a

            confusing  passage  on  this  point, but  seems  intended  to

            confirm the ALJ's understanding.  

                 Even if the job  in question were a security  guard job,

            however, Figueroa's  testimony at  most showed that  he could

            not  return  to a  specific  security  guard job  because  it

            required him to stand continuously.  He did not show that the

            typical security guard job  entails standing for greater than

            six hours a day.  Thus,  even if his allegation that he could

            not  stand for  a prolonged  period were  fully credited,  he

            still  failed  to  show  that  his  inability  to  stand  for

            prolonged periods  would prevent his  returning to work  as a

            security  guard.  See Pelletier v. Secretary of HEW, 525 F.2d
                              ___ _________    ________________

            158, 160 (1st Cir. 1975) (a claimant  did not meet her burden

            of  proof by  showing  that a  particular  past job  entailed

            exposure  to smoke and fumes;  she was required  to show that

            such  exposure would  be  a condition  of  her type  of  work

            generally).  



            10.  The records  stated that he complained  of difficulty in

            sitting for prolonged periods of time, too, but Figueroa does

            not   allege  the  ALJ  erred  by  failing  to  consider  his

            difficulty in sitting.



                                         -11-



diminished  sensation or edema in his legs and that he walked



            with a  normal  gait;  his  sensory  and  motor  systems  and



            reflexes were within  normal limits; his heel  to toe walking



            was excellent;  there was  no objective radiculopathy.11   By



            December 1990,  a State Insurance Fund  physician advised him



            that he could return to work.  In January 1991, Figueroa told



            the consulting  neurologist that  he had  difficulty sitting,
                                                                 _______



            but he  did  not complain  about difficulty  in standing  for



            prolonged  periods.    Although  the  neurologist found  that



            Figueroa had decreased  sensation in his  right leg, he  also



            found that  Figueroa  had no  motor  weakness and  no  muscle



            atrophy.    The uncontradicted  February  and  June 1991  RFC



            assessments both indicated that  Figueroa could stand or walk



            for  six hours  out  of an  eight-hour  workday.12   Figueroa



            never  sought any treatment for numbness in his legs in 1991.



            At the  hearing, Figueroa appeared to  attribute the numbness



            in his legs to  the pain he suffered, but, as  noted earlier,



            he  also  said  that   his  medications  and  hand  massaging



            alleviated the pain.   In addition, he suggested  that moving



            his  legs or standing  on his toes  helped relieve discomfort



            caused by  prolonged standing.  Under  the circumstances, the



                                
            ____________________



            11.  Radiculopathy  is  defined  as  "disease  of  the  nerve

            roots."  See  Dorland's Illustrated  Medical Dictionary  1405
                     ___  _________________________________________

            (27th ed. 1988).



            12.  Neither  physician marked the box on  the RFC form which

            indicated that  Figueroa  should alternate  periodically  his

            sitting and standing in order to relieve pain or discomfort.



                                         -12-



ALJ's apparent failure fully to  credit Figueroa's allegation



            that he could  not stand  for prolonged periods  of time  was



            supported by substantial evidence in the record.13



                      C.  Failure to Consider Whole Record
                          ________________________________



                      Figueroa claims  that the ALJ relied exclusively on



            evidence   favorable  to   the   Secretary  and   disregarded



            "overwhelming evidence"  in the record which  established his



            disability.    As   our  discussion  above  shows,   however,



            substantial  evidence  in  the  record  supported  the  ALJ's



            decision.  Two uncontradicted RFC assessments indicated  that



            Figueroa could  perform light work that  entailed standing or



            walking for six hours out of an eight-hour workday.  Some six



            months  after Figueroa had reinjured his back in June 1990, a



            State Insurance Fund physician found  that he could return to



            work.    There  was  no  evidence  that  Figueroa sought  any



            treatment for pain or numbness after February 1991, and there



            was evidence  that  he was  able  to relieve  the  discomfort



            occasioned by his back condition.



                      Affirmed. 
                      _________


____________________



            13.  Figueroa also states that  "another telling fact" is the

            fact  that he  wears an  orthopedic girdle,  but he  does not

            develop that argument and  so we do not consider  it further.

            See  United States  v. Zannino,  895 F.2d  1, 17  (1st Cir.),
            ___  _____________     _______

            cert. denied, 494 U.S. 1082 (1990). 
            ____________



                                         -13-