Gonzalez-Aleman v. SHHS

First Circuit

Gonzalez-Aleman v. SHHS

CourtCourt of Appeals for the First Circuit

DecidedMay 21, 1996

Docket95-2168

StatusPublished

This text of Gonzalez-Aleman v. SHHS (Gonzalez-Aleman v. SHHS) is published on Counsel Stack Legal Research, covering Court of Appeals for the First Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Gonzalez-Aleman v. SHHS, (1st Cir. 1996).

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Opinion

USCA1 Opinion

May 21, 1996
[NOT FOR PUBLICATION]

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

____________________

No. 95-2168

FELIX GONZALEZ-ALEMAN,

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. Jaime Pieras, Jr., Senior U.S. District Judge] __________________________

____________________

Before

Selya, Cyr and Lynch,
Circuit Judges. ______________

____________________

Fabio A. Roman Garcia on brief for appellant. _____________________
Guillermo Gil, United States Attorney, Rosa E. Rodriguez-Velez, _____________ ________________________
Acting Chief Civil Division, Robert M. Peckrill, Assistant Regional __________________
Counsel, Social Security Administration, on brief for appellee.

____________________

____________________

Per Curiam. Felix Gonzalez-Aleman (claimant) appeals ___________

from a district court judgment affirming a decision of the

Secretary of Health and Human Services finding him not

disabled as of April 28, 1992. For the following reasons, we

vacate and remand.

On September 7, 1990, claimant was involved in a motor

vehicle accident and sustained fractures of the pelvis, left

hip, left femur, and left ankle. On October 25, 1990,

claimant applied for disability benefits alleging that he

could not stand or walk due to these fractures. He also

alleged that sitting caused pain in the pelvic region and

hips. The Social Security Administration denied claimant's

application initially and on reconsideration.

After a hearing, an Administrative Law Judge (ALJ) found

that claimant was under a disability beginning September 7,

1990 and continuing through April 27, 1992. However, the ALJ

found that after April 27, 1992, claimant's residual

functional capacity increased to a capacity to perform

sedentary work. Since claimant's past work as a machine

operator required more than sedentary exertion, the ALJ

determined that he could not perform this work. The ALJ then

proceeded to step five of the sequential analysis. Relying

on the Grid, the ALJ found that claimant is not disabled

because there is a broad range of unskilled, sedentary jobs

existing in the national economy which he can perform.

-3-

The Appeals Council denied review. Claimant appealed to

the district court which affirmed the Secretary's decision.

This appeal followed.

Claimant argues that the ALJ erred at step three of the

sequential analysis in not finding that he met or equalled

Listed Impairment 1.03 (arthritis of a major weight-bearing

joint), 20 C.F.R. Part 404, Subpt. P, App. 1.1 We disagree. 1

The record does contain some evidence of arthritis in

claimant's left ankle, as well as significant limitation of

movement in this joint. However, although the record

contains X-rays, there is no indication of gross anatomical

deformity of a hip or knee as required by 1.03A.

Similarly, it does not appear that the surgery performed on

claimant's left leg satisfies 1.03B. In any event, given

____________________

1The following condition is listed at 1.03: 1

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
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.

-4-

evidence in the record that claimant's fractures are well-

healed, that he can walk or stand for up to three hours, and

that he can carry up to thirty pounds, we think the ALJ could

find that claimant's condition neither met nor equalled the

listing. We add that although claimant was continuing to see

his orthopedic surgeon, he proffered no medical opinion to

support his claim that he was still markedly limited in his

ability to walk and his leg had not yet returned to full

weight-bearing status. See Torres v. Secretary of Health & ___ ______ ______________________

Human Servs., 870 F.2d 742, 745 (1st Cir. 1989) (observing ____________

that it is the claimant's burden to show that he has an

impairment that meets or equals a listing).

Similarly, we reject claimant's argument that the ALJ

could not properly find that his condition improved. The

orthopedic evaluations by examining consultants for the

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USCA1 Opinion




May 21, 1996

                                [NOT FOR PUBLICATION]



                            UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT



                                 ____________________


No. 95-2168



                                FELIX GONZALEZ-ALEMAN,



                                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. Jaime Pieras, Jr., Senior U.S. District Judge]
                                          __________________________



                                 ____________________



                                        Before



                                 Selya, Cyr and Lynch,

                                   Circuit Judges.
                                   ______________



                                 ____________________



            Fabio A. Roman Garcia on brief for appellant.
            _____________________

            Guillermo Gil, United  States Attorney,  Rosa E.  Rodriguez-Velez,
            _____________                            ________________________

        Acting Chief  Civil Division,  Robert M. Peckrill,  Assistant Regional
                                       __________________

        Counsel, Social Security Administration, on brief for appellee.


____________________


____________________


Per  Curiam.   Felix Gonzalez-Aleman  (claimant) appeals
                 ___________



from a district  court judgment affirming  a decision of  the



            Secretary  of  Health  and  Human Services  finding  him  not



            disabled as of April 28, 1992.  For the following reasons, we



            vacate and remand.



                 On September 7,  1990, claimant was involved  in a motor



            vehicle accident and sustained  fractures of the pelvis, left



            hip,  left femur,  and  left ankle.    On October  25,  1990,



            claimant  applied  for disability  benefits alleging  that he



            could  not stand or  walk due  to these  fractures.   He also



            alleged that sitting  caused pain  in the  pelvic region  and



            hips.  The  Social Security Administration  denied claimant's



            application initially and on reconsideration.  



                 After a hearing, an Administrative Law Judge (ALJ) found



            that claimant  was under a disability  beginning September 7,



            1990 and continuing through April 27, 1992.  However, the ALJ



            found   that  after  April   27,  1992,  claimant's  residual



            functional  capacity  increased  to  a  capacity  to  perform



            sedentary work.   Since  claimant's past  work  as a  machine



            operator  required more  than  sedentary  exertion,  the  ALJ



            determined that he could not perform this work.  The ALJ then



            proceeded to step  five of the sequential  analysis.  Relying



            on  the Grid,  the ALJ  found that  claimant is  not disabled



            because there is  a broad range of  unskilled, sedentary jobs



            existing in the national economy which he can perform.  


-3-



The Appeals Council denied review.  Claimant appealed to



            the  district court which  affirmed the Secretary's decision.



            This appeal followed. 



                 Claimant  argues that the ALJ erred at step three of the



            sequential analysis  in not finding  that he met  or equalled



            Listed Impairment   1.03 (arthritis of a major weight-bearing



            joint), 20 C.F.R. Part 404, Subpt. P, App. 1.1  We  disagree.
                                                         1



            The  record  does  contain  some  evidence  of  arthritis  in



            claimant's left  ankle, as well as  significant limitation of



            movement  in  this  joint.    However,  although  the  record



            contains X-rays,  there is no indication  of gross anatomical



            deformity   of  a  hip  or  knee  as  required  by     1.03A.



            Similarly, it  does not appear that the  surgery performed on



            claimant's left leg satisfies    1.03B.  In any  event, given



                                
            ____________________



               1The following condition is listed at   1.03:
               1



                           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

                      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.



                                         -4-



evidence in  the record  that claimant's fractures  are well-



            healed, that  he can walk or stand for up to three hours, and



            that he can carry up to thirty pounds, we think the ALJ could



            find that  claimant's condition neither met  nor equalled the



            listing.  We add that although claimant was continuing to see



            his orthopedic  surgeon, he  proffered no medical  opinion to



            support his claim that  he was still markedly limited  in his



            ability to  walk and  his leg  had not  yet returned to  full



            weight-bearing status.  See  Torres v. Secretary of Health  &
                                    ___  ______    ______________________



            Human Servs., 870  F.2d 742, 745  (1st Cir. 1989)  (observing
            ____________



            that  it is  the claimant's  burden to  show that  he has  an



            impairment that meets or equals a listing).



                 Similarly, we  reject claimant's  argument that  the ALJ



            could not  properly find  that his  condition improved.   The



            orthopedic  evaluations  by  examining  consultants  for  the



            Secretary  reflect steady  progress.   On  January 18,  1991,



            claimant  could not carry any  body weight, and  he could not



            stand or walk without the use of crutches.  On June 25, 1991,



            the femur  fracture was  still healing and  claimant required



            the  assistance of a  walker.  By  April 27,  1992, the femur



            fracture was well-healed.  Dr. Marrero, who examined claimant



            on  that  date,  completed  a  residual  functional  capacity



            assessment  (RFC) which amply  supports the  ALJ's conclusion



            that claimant has the exertional capacity for sedentary work.


-5-



We  are,  however,  persuaded  that there  is  merit  to



            claimant's argument that the ALJ's determination at step five



            cannot be  upheld under the  "substantial evidence" standard.



            At this  stage in the sequential analysis,  the burden shifts



            to the Secretary  to prove that there  are sufficient numbers



            of jobs  in the national  economy that claimant  can perform.



            See Heggarty  v. Sullivan, 947 F.2d 990, 995 (1st Cir. 1991).
            ___ ________     ________



            Where   claimant's   impairments   involve    only   strength



            limitations, the ALJ may rely on the Grid to meet its burden.



            Id.     However,   where   a  claimant   has   non-exertional
            ___



            impairments,  the  Grid   may  not  accurately   reflect  the



            availability of suitable jobs.  Id. 
                                            ___



                 Dr. Marrero's  RFC indicates that claimant  has a number



            of  non-exertional  limitations.     Most  notably,  the  RFC



            indicates that claimant can never climb and is limited in his



            ability  to  be  around  moving  machinery.    The  narrative



            comments do  not  further illuminate,  at least  for the  lay



            reader,  the   nature   or   extent   of   these   particular



            restrictions.  The ALJ does not mention these restrictions at



            all  in her decision.  Under the circumstances, this court is



            left without any basis for determining whether the claimant's



            non-exertional limitations are sufficiently minimal to permit



            the  ALJ to rely on  the Grid or  whether vocational evidence



            was required.  We  note that even sedentary work  may require



            the ability to  ascend or  descend stairs on  a daily  basis.


-6-



See SSR  85-15 (observing  that usual everyday  activities at
            ___



            work  include ascending or descending ramps or a few stairs).



            Moreover,   the  Secretary's   own  regulations   state  that



            approximately 85 percent of  unskilled, sedentary jobs are in



            the machine trades and benchwork occupational categories.  20



            C.F.R. Part 404, Subpt. P, App. 2,   201.00.  



                 Accordingly, a  remand is required for  further findings



            which  may in  turn require  the consideration  of vocational



            evidence.   In  light  of our  disposition  we leave  to  the



            secretary to consider  in the first  instance, to the  extent



            relevant, claimant's argument that  additional non-exertional



            limitations found  by Dr.  Marrero precluded reliance  on the



            Grid.   With  respect to  claimant's allegation  of disabling



            pain, however,  we note  that the  ALJ found  that claimant's



            "subjective symptomatology  does not significantly  affect or



            compromise  his ability to do  sedentary work."  Claimant has



            made no meaningful argument that this finding was in error.  


Vacated and remanded.
                 ____________________


-7-

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