Guilbe Santiago v. SHHS

Opinion

USCA1 Opinion

                                [NOT FOR PUBLICATION]
                            UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT

                                 ____________________

No. 94-1891 

                                MARIA GUILBE SANTIAGO,

                                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. Carmen Consuelo Cerezo, U.S. District Judge]
                                                ___________________

                                 ____________________

                                        Before

                                Torruella, Chief Judge,
                                           ___________
                          Boudin and Stahl, Circuit Judges.
                                            ______________

                                 ____________________

            Juan A. Hernandez  Rivera and Juan R.  Requena Davila on brief for
            _________________________     _______________________
        appellant.
            Guillermo Gil,  United  States  Attorney,  Maria  Hortensia  Rios,
            _____________                              ______________________
        Assistant  United  States  Attorney, and  Robert  J.  Triba, Assistant
                                                  _________________
        Regional Counsel,  Department of Health  and Human Services,  on brief
        for appellee.

____________________

                                   January 25, 1995
                                 ____________________



Per Curiam.   Plaintiff-appellant  Maria Guilbe-Santiago
                 __________

            appeals from a district court judgment affirming the decision

            of  the Secretary  of Health and  Human Services  denying her

            application  for  disability  insurance  benefits.    For the

            following reasons, we affirm.  

                                      BACKGROUND

                 Appellant was  born on July 1, 1950 and is a high school

            graduate.1    Between  September   1982  and  February  1991,

            appellant worked as a school cook.  Prior to that, she worked

            for  several years  as a  flame adjuster  at a  factory which

            produced disposable lighters.  On February 7, 1990, appellant

            injured  her  neck and  left  shoulder when  lifting  a heavy

            cooking pot  at  work.    On  June 10,  1991,  she  filed  an

            application for  benefits alleging disability  since February

            19, 1991  due  to  frequent  pain  in  her  left  arm.    She

            complained  that the pain,  which is "very  severe," prevents

            her from lifting  her arm.  She also  complained of headaches

            and  a nervous condition.  The Social Security Administration

            denied    appellant's    application   initially    and    on

            reconsideration.

                 Appellant obtained  a hearing  before an  Administrative

            Law Judge (ALJ) on November 4, 1992.   She testified that she

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            1.  We base this  birth date on appellant's testimony  at the
            administrative  hearing, but note that on her application for
            disability  benefits, appellant  gave her  date  of birth  as
            November 6, 1950.  

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has  pain in her  neck, swollen cervical  muscles, and strong

            headaches.   She also testified that she experiences numbness

            and  cramps  in  her  hands,  and  that  they  shake.    Pain

            medication prescribed by the State Insurance Fund (Fund), she

            stated, alleviated her pain but made her sleepy.  A series of

            injections given  by a  private physician,  one to two  weeks

            before the hearing,  reduced inflammation and provided  a few

            hours of relief.   With respect to her physical  limitations,

            appellant testified  that she  cannot lift  her arm,  "cannot

            move  [her] neck  too much,"  and cannot  pull, push  or lift

            things with her  hands.  However, appellant can  sit and walk

            without limitation.  Appellant also testified that she sought

            mental  health treatment  because she  felt  pressure in  her

            chest, could not sleep at night, and became  very upset.  She

            stated that medication has alleviated her nervous symptoms.

                 A  vocational expert (VE) also testified.  He identified

            appellant's  past cooking job  as semi-skilled,  medium work,

            and her  factory job as  unskilled, sedentary work.   The ALJ

            posed a hypothetical  to the VE which assumed  that appellant

            has  a  limited range  of  motion  in  her neck  or  cervical

            region.2   The hypothetical also assumed  occasional postural

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            2.  Specifically,  the  hypothetical  assumed   that  in  the
            cervical  region, lateral  flexion is limited  to thirty-five
            [out  of a possible forty degrees], flexion and extension are
            limited  to twenty-five [out  of a possible  thirty degrees],
            and rotation to both the right  and left is limited to  forty
            [out of a possible forty-five degrees].  

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limitations, an  inability to  lift more  than twenty  pounds

            [occasionally] and ten pounds frequently, and an inability to

            do skilled  work.  The  VE concluded that appellant  could do

            her past  work as  a flame adjuster,  although he  noted that

            this type of  work is no longer available in Puerto Rico.  He

            also  identified several  other light,  unskilled  jobs which

            appellant could perform in the local economy.

                 The ALJ  rejected appellant's  allegations of  disabling

            pain,  and found  that  she  has  occasional  mild,  cervical

            discomfort   that  does  not   preclude  normal  sitting  and

            ambulation.   He  also  found  that she  has  a mild  anxiety

            disorder.  The ALJ concluded that appellant has the  residual

            functional capacity  to perform  light, unskilled  work.   He

            further concluded  that she is  not disabled because  she can

            perform  her former  job as  a flame  adjuster.   The Appeals

            Council denied review.   An appeal was taken  to the district

            court,  which  concluded  that  the  Secretary's decision  is

            supported by substantial evidence.  This appeal followed.

                                 THE MEDICAL EVIDENCE

                 According to the  record, appellant was referred  to the

            Fund on  February 9,  1990.  She  was diagnosed  as suffering

            from cervical and  left shoulder sprain and  was treated with

            physical  therapy.  By July 12,  1990, appellant had improved

            quite a bit, and physical therapy was discontinued.  I      n

            February 1991, appellant was seen at the Fund for pain in her

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left shoulder,  upper  extremity,  and  hand.    An  EMG  was

            positive for C6 radiculopathy and borderline bilateral carpal

            tunnel  syndrome.3   A CT Scan  revealed slight  narrowing of

            the left neural  foramina at C6-C7 secondary  to mild annular

            bulge  and bony  proliferative  changes.    During  the  next

            several   months,  muscle  spasms  were  noted,  as  well  as

            inflammation in the left  supraclavicular area and restricted

            motion in the  left shoulder and neck.   The diagnoses, which

            varied somewhat, included cervical  myofascial pain syndrome,

            cervicodorsal  myositis secondary  to  C6 radiculopathy,  and

            cervical  and left shoulder  sprain.4  Appellant  was treated

            with physical therapy,  oral pain medications,  trigger point

            injections, and nerve blocks.   Although appellant  continued

            to complain  of pain,  the record reveals  that on  April 17,

            1991, she was considered to have good potential for recovery.

            An x-ray of the left shoulder performed on April 26, 1991 was

            normal.  On June 19, 1991, a physiatrist noted that there was

                                
            ____________________

            3.  Radiculopathy is disease  of the nerve roots.   Dorland's
                                                                _________
            Illustrated  Medical Dictionary  (Dorland's)  1626 (28th  ed.
            _______________________________   _________
            1994).   Carpal  tunnel syndrome  is  a complex  of  symptoms
            resulting from compression  of the median nerve in the carpal
            tunnel, with pain and burning or tingling paresthesias in the
            fingers and hand,  sometimes extending to the elbow.   Id. at
                                                                   ___
            1626.

            4.  Myofascial Pain Syndrome (or fibromyalgia) is pain in the
            fibrous tissues, muscles, tendons, ligaments, and other white
            connective  tissues.  The Merck Manual  1369 (16th ed. 1992).
                                  ________________
            Myositis is inflammation of a voluntary muscle.  Dorland's at
                                                             _________
            1095.  A sprain is a joint injury in which some of the fibers
            of a supporting  ligament are ruptured but  the continuity of
            the ligament remains intact.  Id. at 1566.
                                          ___

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continued improvement  and that  appellant reported  a twenty

            percent decrease in  pain.  In June and  July 1991, appellant

            was  also  evaluated  for  an  emotional  condition  and  was

            diagnosed  as suffering  from  generalized anxiety  disorder.

            She was discharged from the Fund on August 29, 1991 with five

            percent disability.

                 Appellant  began treatment  at the  Ponce Mental  Health

            Center  in October 1991.  Her symptoms included irritability,

            fearfulness, difficulty  sleeping, headaches,  sensitivity to

            noise,  depression, suicidal ideation,  and a tendency  to be

            isolated.     Appellant  was  diagnosed   as  suffering  from

            adjustment disorder and treated with medication.  By November

            6, 1991,  she reported feeling  better.  Thereafter,  she was

            seen  on roughly a  monthly basis.   Although at  some of her

            appointments,  she  reported  feeling   "so-so,"  the  record

            reveals that appellant was coherent and oriented.  Her memory

            and  intelligence were preserved and her judgment was intact.

            On May 8,  1992, the last  recorded interview, appellant  was

            calm,  stable, and with  adequate affect.   She reported that

            she felt better and was sleeping well.

                 Dr. Winston  Ortiz, a  consulting neurologist,  examined

            appellant  on  two  occasions.    On  August  19,  1991,  his

            examination  of  appellant's  motor  system,  reflexes,   and

            sensory system was negative.  Appellant had a normal gait and

            was  able to bend,  stoop, kneel  and squat.   There  were no

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muscle spasms.   Although  appellant had  some limitation  of

            motion in the  cervical region, she had full  range of motion

            in all  other areas.   A cervical  x-ray revealed  minimal to

            moderate anterior spurring from the C3 level to the C6 level,

            but no  other bone or  joint pathology.  Dr.  Ortiz diagnosed

            cervical   strain  with   no  neurological   deficits.     An

            examination by  Dr. Ortiz on June 15, 1992 did not reveal any

            deterioration in appellant's physical condition.  

                 On September 5,  1991, Dr. Carmen Bird,  a non-examining

            medical  consultant, reviewed the  medical evidence of record

            and completed a residual functional capacity assessment.  She

            found occasional postural  limitations, but no  manipulative,

            visual,  communicative,  or  environmental limitations.    In

            addition,  she found that appellant has an unlimited capacity

            to push  or pull,  as well  as  the capacity  to lift  twenty

            pounds  occasionally and ten  pounds frequently, to  stand or

            sit  about six  hours out of  an eight  hour day, and  to sit

            about six hours out of an eight hour day.

                 On June 2, 1992, appellant was  seen by Dr. Maria de Los

            A. Siberon, a private physician.   She diagnosed appellant as

            suffering   from   cervical   strain   and  prescribed   pain

            medication.   Appellant was  also seen  by Dr.  Ismael Jusino

            McDougall on one occasion in 1992 in connection with shoulder

            and neck pain.  However, the brief entry regarding this visit

            is largely illegible.

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DISCUSSION

                 Appellant  argues that the ALJ did not properly evaluate

            her  allegations of  disabling  pain.    In  particular,  she

            contends  that he  disregarded  her subjective  complaints of

            pain,  and improperly  considered only the  objective medical

            evidence.   We disagree.   The record includes ample evidence

            bearing on  her subjective complaints,  including information

            about  her  work  history, daily  activities,  intensity  and

            duration  of  pain,  medications  and  other  treatment,  and

            functional restrictions.   The ALJ's decision makes  it plain

            that, in  conformance with the  regulations and case  law, he

            considered  this information.    See  20  C.F.R.     404.1529
                                             ___

            (1991); Avery v. Secretary of Health & Human Servs., 797 F.2d
                    _____    __________________________________

            19, 28-29 (1st Cir. 1986).   The ALJ found, inter alia,  that
                                                        _____ ____

            appellant worked for approximately one year after her injury;

            that her pain is localized; that she engages in sedentary and

            light daily  activities; that she has only mild limitation of

            motion in  the neck  and full  range of motion  in the  back,

            extremities, and joints; and that she has normal gait without

            any neurological  deficits.   He did  not reject  appellant's

            pain allegations entirely but determined that she was capable

            of light work.   We are persuaded that  this determination is

            supported by substantial evidence.

                 Appellant  also contends that  the hypothetical posed to

            the VE  was flawed and  did not accurately reflect  her pain,

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mental impairment, and restrictions in the use of her arm and

            hands.      We  reject   appellant's   contention   that  the

            hypothetical  was inadequate.   The hypothetical  conveyed in

            precise terms each of appellant's limitations as found by the

            ALJ.  See Arocho v. Secretary of Health & Human Services, 670
                  ___ ______    ____________________________________

            F.2d 374, 375 (1st Cir.  1982).  Moreover, the ALJ's findings

            regarding  these  limitations  are supported  by  substantial

            evidence.     Id.     We   have  already  upheld   the  ALJ's
                          ___

            determination regarding appellant's  pain.   The evidence  of

            appellant's  mental   impairment  reveals  a   mild,  anxiety

            disorder  that  has  responded  well  to  medication.    Such

            evidence amply supports  the ALJ's conclusion  that appellant

            can perform unskilled work.   Finally, there is no functional

            assessment   in  the   record   which  supports   appellant's

            allegation of restricted hand and arm use, and the assessment

            by the Secretary's  consulting physician is to  the contrary.

            Under  the circumstances, the  ALJ could conclude  that there

            was no limitation  in appellant's  ability to  push, pull  or

            lift.  

                 Appellant's  remaining   claims   are   that   the   ALJ

            disregarded  evidence  from   treating  sources,  relied   on

            isolated statements  that ran contrary  to the weight  of the

            evidence,  failed  to  consider the  combined  effect  of her

            impairments,  and substituted his own opinion for the medical

            evidence which tended to show a disability.  We have reviewed

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the medical  record and the  ALJ's decision and find  no such

            errors.  The ALJ  was not required to  recite every piece  of

            evidence which favored appellant.  See Stein v. Sullivan, 966
                                               ___ _____    ________

            F.2d  317, 319  (7th Cir.  1992)  (noting that  the level  of

            articulation  required is not precise).  His decision reveals

            that  he  considered the  record  as  a  whole, and  that  he

            considered  the combined  impact of  appellant's impairments.

            See 20  C.F.R.    404.1520, 404.1523.  Appellant's claim that
            ___

            the  ALJ  "substituted"  his  own  opinion  for  the  medical

            evidence is without basis.

                 Affirmed.
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