Garcia v. SHHS

Opinion

USCA1 Opinion

June 1, 1994          [NOT FOR PUBLICATION]

UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT
                                 ___________________

No. 93-2349

CRUZ L. GARCIA,

                                Plaintiff, Appellant,

                                          v.

                       SECRETARY OF HEALTH AND HUMAN SERVICES,

                                 Defendant, Appellee.

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                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                           FOR THE DISTRICT OF PUERTO RICO

[Hon. Jose Antonio Fuste, U.S. District Judge]
                                              ___________________

                                 ___________________

                                        Before

                                Selya, Cyr and Boudin,
                                   Circuit Judges.
                                   ______________

                                 ___________________

               Helen E. M. Briganti on brief for appellant.
               ____________________
               Guillermo Gil, United States Attorney, Maria Hortensia Rios,
               _____________                          ____________________
          Assistant United States Attorney, and Thomas D. Ramsey, Assistant
                                                ________________
          Regional Counsel, Department of Health & Human Services, on brief
          for appellee.

__________________

                                  __________________

Per Curiam.  The claimant, Cruz  L. Garcia, appeals from
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            a  district  court  judgment  affirming  a  decision  of  the

            Secretary   of  Health   and   Human  Services   denying  her

            application for  disability  insurance  benefits.    For  the

            reasons stated below, we affirm.

                                          I.

                 Claimant  was born on June 16, 1933.  She completed high

            school and has one  year of college education.   Between 1976

            and 1982, she worked for the Commonwealth of Puerto Rico as a

            revenue  officer.   Prior  to that,  she worked  for eighteen

            years  as  a disbursement  clerk.    She  stopped working  on

            December 31,  1982, at  age forty-nine, "because  her nervous

            condition became  so terrible."    She has  not worked  since

            then.  On  her last insured date, December 31,  1987, she was

            age fifty-four.

                 On January  15, 1991, claimant filed  an application for

            benefits  alleging   that  she  is  disabled   by  a  nervous

            condition,  herniated  disk,   pinched  nerves,  asthma,  and

            fibrositis  in her  hands.   She  alleged  an onset  date  of

            December  31, 1982.1  She  claimed that her  doctors had told

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            1.  Claimant had  applied for benefits  once before, alleging
            the same onset date,  and her application had been  denied on
            May 14, 1984.  The Administrative Law Judge believed that the
            Social  Security  Disability  Benefits  Reform  Act  of  1984
            required  him  to  consider  evidence  of  claimant's  mental
            condition from the  alleged onset date.   The district  court
            held,  however, that our decision in  Mazzola v. Secretary of
                                                  _______    ____________
            Health  & Human  Servs., 795  F.2d 222  (1st Cir.  1986) (per
            _______________________
            curiam) precluded any such  redetermination, and that the ALJ

                                         -2-

her not to perform  household tasks because of  her herniated

            disc,  as  well as  her pinched  nerve  condition.   She also

            claimed  that she does not go outside the home unescorted due

            to her mental condition, that her husband does the housework,

            and that she goes to church once or twice a week.  The Social

            Security   Administration   denied   claimant's   application

            initially and on reconsideration.

                 Claimant obtained a hearing before an Administrative Law

            Judge (ALJ) on December 2,  1991.  She was represented by  an

            attorney.  In addition  to the claimant, a  vocational expert

            (VE) testified.

                 At  the hearing,  claimant  testified  that  she  ceased

            working at  the end  of  1982 because  her nervous  condition

            rendered  her  unable  to  follow  instructions  or  remember

            procedures.    This  nervous  condition, she  testified,  has

            worsened since  1984.   According to  the claimant, she  gets

            lost when she is outside the home unescorted, and she suffers

            from  feelings of sadness, migraine headaches, crying spells,

            and  suicidal impulses.  She also testified that she has back

            pain which forces  her to  depend upon her  husband for  most

            chores and is only relieved when she lies down.  Although she

            takes  pain medication, it does not provide full relief.  She

            testified that she cannot sit for more than one  half hour at

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            should only have considered the period after May 14, 1984 for
            all of claimant's disabilities.  Plaintiff has not challenged
            this ruling on appeal.

                                         -3-

a time without needing to change her position.  Claimant also

            complained of  asthma and  mentioned operations that  she has

            had on her arms for pinched nerves.

                 The VE  identified claimant's  former  jobs as  skilled,

            light work (revenue officer) and semi-skilled, sedentary work

            (disbursement clerk).  The ALJ posed a hypothetical to the VE

            which  assumed  that claimant,  at  the  time  she  was  last

            insured,  had  various moderate  mental  limitations  and was

            capable of light work,  with the restriction that she  needed

            to be able  to alternate  positions at will.2   These  mental

            limitations  included moderate limitations in her capacity to

            understand, remember, and  carry-out detailed instruction, as

            well  as  in  her  capacity  to  maintain  concentration  for

            extended periods of  time.  The VE  testified that claimant's

            moderate mental limitations  limited her  to unskilled  work.

            He  then  identified  three  jobs that  claimant  could  have

            performed--final  examiner  in   the  electronics   industry,

            stamper  in  electronics,  and  electric  cord  cutter--which

            existed  in significant  numbers  in the  national and  local

            economy  through  December 31,  1987.    These  jobs, the  VE

            testified, permit alternation  of positions at will.   The VE

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            2.  The hypothetical  also  assumed  that  claimant  was  age
            forty-nine  at  onset of  her  alleged  disabilities and  age
            fifty-four on her last insured date; that she had one year of
            college  education;  that she  had  past,  skilled and  semi-
            skilled, work experience; and  that she needed to work  in an
            adequately  ventilated  environment,  free  of   extremes  in
            temperature, dust, and gas fumes.

                                         -4-

also testified that if claimant's subjective allegations were

            completely credible,  she could  not have performed  these or

            any other job on a sustained basis.

                 The ALJ  found that although claimant  has a combination

            of  mental   and  back  conditions,  as   well  as  bilateral

            compression  of  ulnar  nerve  and  carpal  tunnel  syndrome,

            claimant  did  not  have  an  impairment  or  combination  of

            impairments equivalent to one of the listed impairments prior

            to the expiration of her insured status.   He also found that

            claimant was unable to  perform her past work.   However, the

            ALJ concluded that  claimant, prior to the expiration  of her

            insured  status,  had  the residual  functional  capacity for

            light, unskilled  work, with  the additional  limitation that

            she needed  to be  able to alternate  positions occasionally.

            Finally, the ALJ ruled that, based on the testimony of the VE

            and application  of the  Grid, claimant  was not disabled  at

            step five of the sequential analysis because  there were jobs

            in the economy that she could have performed through December

            31, 1987. 

                 The  Appeals Council denied review.  An appeal was taken

            to  the  district  court.    The  district  court  accurately

            summarized the  medical records.  It found  that the decision

            of  the Secretary  is supported  by substantial  evidence and

            affirmed the denial of benefits.  This appeal followed.

                                         II.

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Claimant contends that  the ALJ erred  at step three  of

            the sequential evaluation in finding that her impairments did

            not meet or  equal a listed impairment in 20  C.F.R. Pt. 404,

            Subpt. P,  App. 1.    In particular,  she argues  that (1)  a

            determination  of  medical  equivalency  must be  made  by  a

            physician,  (2)  the  record  contains  no  determination  of

            medical  equivalency by  a physician  who takes  into account

            claimant's   combined   impairments,   and   (3)   the  ALJ's

            determination  that  her condition  did  not  equal a  listed

            impairment, made without the testimony of a medical expert at

            the administrative hearing, was  error.  Claimant also argues

            that  the  ALJ erred  in  failing  to consider  "the  disease

            process   of  the   [her]   emotional   and   musculoskeletal

            impairments"  and "the  functional consequences  and physical

            limitations which would be expected to occur as  the disorder

            advance [sic]."   We disagree.

                 We  note,  as  a  preliminary  matter,  that it  is  the

            claimant's  burden to  show  that she  has  an impairment  or

            impairments  that  meet  or  equal  a  listed  impairment  in

            Appendix  1.  Torres v.  Secretary of Health  & Human Servs.,
                          ______     ___________________________________

            870  F.2d 742, 745 (1st Cir. 1989) (per curiam).  Garcia does

            not  state,  in  her  brief, which  listing  she  purportedly

            equals,  much less present  a substantive argument indicating

            how,  allegedly, she equals a listed impairment.  We add that

            the   record  contains   determinations   by   a   consulting

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psychologist and psychiatrist  that her mental condition  did

            not  meet or equal  a listed impairment  through December 31,

            1987.    See  20  C.F.R.     404.1526(b)  (stating  that  the
                     ___

            Secretary will  consider the medical opinion given  by one or

            more   designated   consultants   in    determining   medical

            equivalence).   Under  the circumstances,  no testimony  by a

            medical  expert on  this issue  was necessary.   Furthermore,

            because  the  record  demonstrated  that during  the  insured

            period, claimant's physical  impairments were relatively mild

            and  responded  to treatment,  the  ALJ was  not  required to

            obtain a medical  opinion which addressed  whether claimant's

            combined impairments equalled a listing. 

                 We also reject claimant's  contention that the ALJ erred

            in  failing  to  consider   the  likely  progression  of  her

            impairments.    A  claimant  is not  entitled  to  disability

            benefits  unless  she  can  demonstrate  that her  disability

            existed  prior to the expiration of her insured status.  Cruz
                                                                     ____

            Rivera v. Secretary of Health & Human Servs., 818 F.2d 96, 97
            ______    __________________________________

            (1st Cir. 1986)  (per curiam),  cert. denied,  479 U.S.  1042
                                            ____________

            (1987).  It  is not  sufficient for a  claimant to  establish

            that  her impairment had its  roots before the  date that her

            insured status expired.  Rather, the claimant must show  that

            her impairment(s)  reached a  disabling level of  severity by

            that date.  See, e.g., Deblois v. Secretary of Health & Human
                        ___  ____  _______    ___________________________

            Servs., 686  F.2d 76, 79 (1st  Cir. 1982).  The  ALJ properly
            ______

-7-

focused on  whether claimant's impairments met  or equalled a

            listing  through December  31, 1987,  the  date she  was last

            insured.

                 Claimant  also argues that the ALJ erred at step five of

            the sequential  analysis.   In particular, she  contends that

            (1) the ALJ did not properly evaluate her claim of subjective

            pain; (2) the  ALJ erred in not obtaining residual functional

            capacity   assessments  from  her   treating  physicians,  in

            addition to  those obtained from the consultants; and (3) the

            ALJ could not  properly conclude  that she  had the  residual

            functional  capacity to do light  work in the  absence of any

            assessment  in the  record of  her capacity  for stooping  or

            crouching.  

                 Contrary to claimant's allegations, the ALJ's evaluation

            of her complaints of pain comports with our decision in Avery
                                                                    _____

            v. Secretary of  Health & Human Servs., 797 F.2d 19 (1st Cir.
               ___________________________________

            1986).     Claimant  was  questioned   regarding  her   daily

            activities,  functional  restrictions, medication,  frequency

            and  duration of  pain,  and  precipitating  and  aggravating

            factors.   See id. at  29.  Although  claimant testified that
                       ___ ___

            she has back pain which forces her to depend upon her husband

            for most chores and is only  relieved when she lies down, she

            did not focus  her testimony on the  relevant insured period.

            Medical records from that period indicate that her occasional

            back and  neck pain  responded to  treatment.  A  psychiatric

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evaluation  indicates that  in  July 1987,  just five  months

            prior  to the  expiration of  her insured  status, claimant's

            daily  activities included  rising  early, eating  breakfast,

            cooking, washing, caring for  her personal hygiene, and going

            out.  We believe that the ALJ supportably credited claimant's

            allegations of disabling pain  during the insured period only

            to the extent that they precluded medium or heavy exertion.

                 We also reject claimant's  contention that the ALJ erred

            in  not obtaining  residual  functional capacity  assessments

            from her  treating physicians, in addition  to those obtained

            from  the consultants.   In  Browne  v. Richardson,  468 F.2d
                                         ______     __________

            1003, 1006  (1st Cir. 1972),  we held that,  on the  facts of

            that  case, a  written report  submitted by  a non-examining,

            non-testifying   physician   could   not   alone   constitute

            substantial evidence  to support the  Secretary's conclusion.

            Our later cases, however,  demonstrate that this principle is

            by no means an absolute rule.   Berrios Lopez v. Secretary of
                                            _____________    ____________

            Health & Human Servs., 951 F.2d 427, 431 (1st Cir. 1991) (per
            _____________________

            curiam).  Advisory  reports such  as those  submitted by  the

            consulting psychologist and psychiatrist here are entitled to

            evidentiary weight, which "will  vary with the circumstances,

            including  the  nature of  the  illness  and the  information

            provided  the  expert."     See  id.  (quoting  Rodriguez  v.
                                        ___  ___            _________

            Secretary  of Health & Human  Servs., 647 F.2d  218, 223 (1st
            ____________________________________

            Cir.  1981)).  In the instant case, there is every indication

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that the consultants had available to them most, although not

            all, of  the medical  evidence for their  review.   Moreover,

            their conclusions that claimant suffers from moderate  mental

            limitations, but  could  function  in  a  simple,  repetitive

            environment, were mutually reinforcing.   In this context, we

            think  the advisory  reports were  sufficient to  support the

            Secretary's conclusion that claimant  had the mental capacity

            to perform  unskilled  work.   Cf. Tremblay  v. Secretary  of
                                           ___ ________     _____________

            Health  & Human  Servs.,  676 F.2d  11,  13 (1st  Cir.  1982)
            _______________________

            (affirming the Secretary's adoption of the findings of a non-

            testifying,  non-examining  physician  and  permitting  those

            findings by  themselves to constitute substantial evidence in

            the face  of a  treating physician's conclusory  statement of

            disability).  

                 Claimant's  remaining  claimed  error--that  the  record

            contains  no  assessment of  her  capacity  for stooping  and

            crouching--was not raised in the district court and so is not

            preserved for our review.  See Gonzalez-Ayala v. Secretary of
                                       ___ ______________    ____________

            Health & Human Servs., 807 F.2d 255, 256 (1st Cir. 1986) (per
            _____________________

            curiam).  Having  reviewed the record, we are  persuaded that

            the  Secretary's   decision  denying  claimant   benefits  is

            supported by substantial  evidence.   Accordingly, we  affirm

            that decision.

                 Affirmed.
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