Gentle v. Shalala, SHHS

Opinion

USCA1 Opinion

March 28, 1994        [NOT FOR PUBLICATION]

                            UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT
                                 ___________________

No. 93-2160

KENNETH GENTLE,

                                Plaintiff, Appellant,

                                          v.

               DONNA E. SHALALA, SECRETARY OF HEALTH & HUMAN SERVICES,

                                 Defendant, Appellee.

__________________

                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                          FOR THE DISTRICT OF MASSACHUSETTS

                   [Hon. Nathaniel M. Gorton, U.S. District Judge]
                                              ___________________

                                 ___________________

                                        Before

                                 Breyer, Chief Judge,
                                         ___________
                            Cyr and Stahl, Circuit Judges.
                                           ______________

                                 ___________________

               Sandra L. Smales, on brief for appellant.
               ________________
               Donald  K.  Stern,  United  States  Attorney,   Charlene  A.
               _________________                               ____________
          Stawicki, Assistant United States  Attorney, and Jessie M. Klyce,
          ________                                         _______________
          Assistant Regional  Counsel, Region  I, Department of  Health and
          Human Services, on brief for appellee.

__________________

                                  __________________

Per Curiam.   Appellant/claimant Kenneth Gentle  appeals
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            the affirmance by  the district  court of the  denial by  the

            Secretary of Health and Human  Service of his application for

            disability  insurance  benefits  and   supplemental  security

            income.  Gentle, who has a long history of drug and substance

            abuse, sustained a work  related injury to his lower  back in

            1989.   After the  Social Security Administration  denied his

            request   for  benefits, a  hearing was  conducted before  an

            Administrative Law Judge [ALJ]  in 1991.  The ALJ  determined

            that medical  evidence established that  claimant had "severe

            chronic  low back pain, a  history of substance  abuse, and a

            borderline personality disorder."    Applying the  sequential

            analysis  set  forth  in  20  C.F.R.      404.1520,  see also
                                                                 ___ ____

            Goodermote  v. Secretary  of Health  and Human  Services, 690
            __________     _________________________________________

            F.2d  5,  6-7  (1st Cir.  1982),  the  ALJ  found that  these

            conditions  constituted  a  severe  impairment  but were  not

            deemed to be presumptively disabling since they  did not meet

            or equal any impairment found in the Listings of Impairments,

            20 C.F.R.  Part 404,  Subpart P,  Appendix 1.   The ALJ  also

            determined that, in light  of these impairments, Gentle could

            not  perform his past work.   However, the  ALJ did find that

            Gentle  retained  the "residual  functional capacity  for the

            full range of sedentary work  . . . reduced [only] by  a need

            to  alternate between  sitting  or standing."   A  vocational

            expert  [VE] identified various skilled and semi-skilled jobs

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which  could be performed sitting or standing at will.  Based

            on Gentle's  exertional capacity for sedentary  work, as well

            as his  age, education  and work experience,  "in conjunction

            with   claimant's   non-exertional   impairments,"  the   ALJ

            concluded that  Gentle was  "not disabled" and  could perform

            the semi-skilled  and unskilled  jobs the VE  had identified.

            We  review  this decision  only  to determine  whether  it is

            supported by substantial evidence in  the record as a  whole.

            42  U.S.C.   405(g); Irlanda  Ortiz v. Secretary  of Health &
                                 ______________    ______________________

            Human Services, 955 F.2d 765, 769 (1st Cir. 1991).
            ______________

                 Gentle  argues first that the ALJ erred in relying on an

            incorrect definition of sedentary  work in her  determination

            that  he was  not disabled.   According to  Gentle, sedentary

            work  requires the ability to  sit for long  period of times,

            whereas  the ALJ found that Gentle  was required to alternate

            between sitting and standing.  Gentle relies in particular on

            Social Security  Ruling [SSR]  83-12, which states,  in part,

            that  an individual  who must  alternate between  sitting and

            standing  is "not  functionally capable  of doing  . .  . the

            prolonged sitting contemplated in the definition of sedentary

            work."   See  also Rosado  v. Secretary  of Health  and Human
                     ___  ____ ______     _______________________________

            Services, 807  F.2d 292, 293 (1st Cir.  1986) (quoting Shiner
            ________                                               ______

            v.  Heckler, 608 F. Supp.  481, 484 (D.  Mass. 1985) (quoting
                _______

            Benko  v. Schweiker, 551 F.  Supp. 698, 704  (D. N.H. 1982)))
            _____     _________

            ("'a  determination  that  a  claimant  is  able  to  perform

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sedentary work "must  be predicated upon  a finding that  the

            claimant   can  sit   most  of   the  day,   with  occasional

            interruptions of short duration"'").    He further notes that

            the  ALJ found  him  capable of  performing semi-skilled  and

            unskilled jobs.   Yet,  according to SSR  83-12, "[u]nskilled

            jobs  are particularly  structured  so that  a person  cannot

            ordinarily sit or stand at will." 

                 Gentle's argument is misdirected.  The ALJ  did not find

            that Gentle could do a full range of sedentary work.  Rather,

            she  found that Gentle was  not disabled because  he could do

            the jobs the  VE had  identified.  Moreover,  in making  this

            finding, the ALJ followed the directives of SSR 83-12.   In a

            situation like  Gentle's where a claimant  needs to alternate

            positions, SSR  83-12 requires the ALJ  to determine, through

            the evidence  of  a  VE,  whether sufficient  jobs  within  a

            claimant's limited  range  of sedentary  work are  available.

            See  SSR 83-12 ("In cases of unusual limitation of ability to
            ___

            sit  or  stand, a  [VE] should  be  consulted to  clarify the

            implications for  the occupational  base.").  Similarly,  the

            reference in  SSR 83-12  to unskilled jobs'  not "ordinarily"

            allowing for such alteration seems  to invite VE testimony as

            to  specific jobs the claimant could perform.  In the instant

            case, the  ALJ specifically asked  the VE to  list "unskilled

            jobs where you could sit or stand at will."  In response, the

            VE listed several types of jobs  that could be performed by a

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person with claimant's need  to alternate between sitting and

            standing.   The procedure outlined in SSR 83-12 was followed.

            We find  no error  in the  ALJ's determination  that Gentle's

            exertional  impairments did  not prevent him  from performing

            sedentary jobs allowing for alteration of position.1

                 Gentle's  second contention  is  that the  ALJ erred  in

            implicitly  finding  that his  nonexertional impairments--his

            personality  disorder and  drug abuse--did  not significantly

            limit  the range  of sedentary  work which he  could perform.

            While the  issue is  close, we  find  no error  in the  ALJ's

            determination.

                  Unskilled work of the sort  Gentle was found capable of

            performing requires,  inter alia,  the "ability to  cope with
                                  _____ ____

            the demands  of any  work environment."   Irlanda  Ortiz, 955
                                                      ______________

            F.2d at 770; see also SSR 85-15 (listing  mental requirements
                         ___ ____

            for unskilled  work).   Medical evidence was  presented which

            indicates that  Gentle's potential occupational  base was  at

            least  marginally eroded by impairments affecting his ability

            in   this  area.    First,  a  report  by  Dr.  Daniels,  the

            Secretary's  consultative, non-examining  psychiatrist, found

            that  Gentle was  moderately limited  in his  ability (1)  to

            interact appropriately with the general public; (2) to accept

            instructions  and  respond  appropriately  to  criticism from

____________________

            1.  Our  decision in  Rosado  is distinguishable  in that  in
                                  ______
            Rosado there was no  evidence from a vocational expert  as to
            ______
            the range of the work the claimant could perform.

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supervisors; and (3)  to get  along with  coworkers or  peers

            without  distracting them or  exhibiting behavior  extremes. 

            Dr. Daniels also found that Gentle had a "moderate" degree of

            difficulty in maintaining  social functioning and  a "history

            of personality  problems with  difficulty relating to  others

            esp[ecially]   authority   figures  and   esp[ecially]  under

            stressful  circumstances."    Similarly  Dr.  Shea,  Gentle's

            treating  clinical psychologist,  found that  he had  "a long

            history  of difficulty  in  interpersonal relationships  that

            have been characterized by  defensiveness, argumentativeness,

            demandingness  and  combativeness especially  while substance

            abusing."  Both Dr. Daniels and Dr. Shea noted that substance

            abuse had been an ongoing problem for Gentle.

                 This  evidence of  moderate limitations  in coping  with

            others  arguably  would  have  supported  a  conclusion  that

            Gentle's mental impairments were significant and affected his

            capacity for  the  jobs which  he  was otherwise  capable  of

            performing.   Nevertheless, other evidence supports the ALJ's

            determination  that these  impairments did  not significantly

            reduce  Gentle's residual  capacity for  unskilled work.   In

            such circumstances, the Secretary's  decision must be upheld.

            Irlanda Ortiz, 955 F.2d at 770.
            _____________

                 Dr. Daniels  found  that although  Gentle  had  moderate

            difficulty in  maintaining social functioning,  he had  never

            had any episodes of deterioration or decompensation in a work

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or work-like setting.  More importantly,  Dr. Shea, with whom

            Gentle had been undergoing therapy for over five years, found

            that Gentle's difficulties in interpersonal relationships and

            his   problems  with   substance  abuse  had   improved  with

            treatment.  Even  though some  of the problems  had begun  to

            reemerge after Gentle's injury  in 1989, Dr. Shea anticipated

            that  "with  adequate program  and  vocational rehabilitation

            including  job  placement .  . .  [Gentle]  would be  able to
            _________________________

            function both in vocational  and social roles more adequately

            than  at present."  (Emphasis added).  In Dr. Shea's opinion,

            should Gentle not regain "some vocational stability including

            full  time  employment," he  had  a  high risk  of  suffering

            further deterioration in  his interpersonal difficulties  and

            of  returning  to a  pattern of  substance  abuse.   In other

            words, Gentle's own treating  psychologist not only found him

            capable  of returning  to employment  but even  found  that a

            failure  to return  to work  would likely  be psychologically

            harmful to him.  In light of this evidence, the Secretary did

            not  err in  determining that  Gentle's  nonexertional mental

            impairments did not  preclude him from being able  to perform

            the  jobs  the  VE had  identified.    See  id. (even  though
                                                   ___  __

            evidence showed claimant was moderately limited in ability to

            cope with work environment, no error in finding claimant able

            to perform full range of sedentary work since  other evidence

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supported conclusion that claimant's capacity  for full range

            of such work was not significantly reduced).  

                 Affirmed.
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