Hernandez v. SHHS

Opinion

USCA1 Opinion

        October 22, 1993        [NOT FOR PUBLICATION]

                            UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT
                                 ____________________

No. 92-2445 

                                 SAUL BAEZ-HERNANDEZ,

                                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. Hector M. Laffitte, U.S. District Judge]
                                              ___________________

                                 ____________________

                                        Before

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

                                 ____________________

            Raymond Rivera Esteves and Juan A.  Hernandez Rivera on brief  for
            ______________________     _________________________
        appellant.
            Daniel  F.  Lopez  Romo,  United  States  Attorney,  Jose  Vazquez
            _______________________                              _____________
        Garcia, Assistant  United States  Attorney,  and Robert  M.  Peckrill,
        ______                                           ____________________
        Assistant Regional  Counsel, Department of Health  and Human Services,
        on brief for appellee.

____________________

____________________

Per Curiam.   Claimant Saul Baez Hernandez  appeals
                      __________

            from the  district court  judgment affirming the  decision of

            the Secretary of  Health and Human Services  that claimant is

            not entitled to Social Security disability benefits.

                                I.  PROCEEDINGS BELOW
                                _   _________________

                      Claimant filed  an application for  Social Security

            disability benefits on March  10, 1986.  He alleged  an onset

            date of  January 25, 1985 when  he hurt his back  at work; he

            listed  as  his  impairments  back  and  nervous  conditions.

            Claimant  returned  to  work  on  November  16,  1988.    His

            application was  denied by an administrative  law judge (ALJ)

            in  July 1987  and  the Appeals  Council rejected  claimant's

            request  for review.    While the  case  was pending  in  the

            federal  district court,  the Secretary  of Health  and Human

            Services requested  a remand.   Pursuant to this  remand, the

            Appeals Council ordered  that a second  hearing be held  with

            the testimony of a  vocational expert (VE).  At  the hearing,

            held on November  16, 1988,  it appears that  no such  expert

            testified.  A different ALJ determined  that claimant was not

            disabled.   The Appeals  Council, on March  20, 1989, ordered

            yet   another   hearing;   it  determined   that   claimant's

            limitations significantly affected his ability to perform the

            full range of light and sedentary work.  It ordered that a VE

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testify  as  to the  existence  of jobs  that  claimant could

            perform.

                      On June 22, 1989,  after holding the third hearing,

            at which a  VE testified,  the ALJ who  first had  considered

            claimant's  application  determined  that  claimant  was  not

            disabled.    He  found  that claimant  suffered  from  severe

            lumbosacral strain.  As  for claimant's complaints of totally

            disabling pain, the ALJ concluded that while credible when he

            first injured his back,  there was no convincing evidence  of

            continuing  severe   pain.    Thus,  the   ALJ  credited  the

            allegations  of   pain  to  the  extent   that  claimant  was

            prohibited from engaging  in heavy work.   He therefore could

            not perform  his past work as a truck driver and delivery man

            which involved the carrying of heavy appliances.

                      However,  according to  the ALJ,  claimant retained

            the capacity for the full range of light work limited only by

            his need to alternate positions; claimant further was limited

            because  he could  bend only  occasionally and could  not use

            repetitive foot movements.   The ALJ found that  claimant did

            not have  any nonexertional impairments.   Given his acquired

            work  skills such  as  following  instructions and  counting,

            claimant  was  able to  perform semi-skilled  work activities

            such  as a stock  person in a  warehouse -- the  job to which

            claimant had returned in November 1988.

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The  Appeals Council,  upon claimant's  request for

            review,  affirmed the decision  of the ALJ  that claimant was

            not entitled to disability benefits.   The Council did modify

            the  ALJ's decision in one respect by finding the presence of

            a nonexertional impairment.  However, this impairment did not

            significantly  limit claimant's  ability  to do  work-related

            activity.   On appeal  to the  district court, a  magistrate-

            judge  recommended that  the matter  be remanded  for further

            administrative proceedings.   Nonetheless, the district court

            judge affirmed the Secretary's decision.  This appeal ensued.

                       II.  DISCUSSION OF THE MEDICAL EVIDENCE
                       __   __________________________________

                      A.  Back Impairment
                          _______________

                      The evidence  concerning the  nature and  extent of

            claimant's  back impairment  is conflicting.   In  total, six

            consultative  evaluations  were  conducted between  1985  and

            1988.  In  addition, claimant received treatment at the State

            Insurance Fund  (SIF) from  January 1985 through  April 1988.

            See Exhibits 17 and 36.  According to SIF records, a C-T Scan
            ___

            performed in August  1985 revealed  a narrowing  of the  disc

            space  at L5-S1 with  a disc  herniation to  the right  and a

            small  lateral  disc herniation  to the  left  at L4-L5.   In

            August 1985,  a physiatrist at the SIF  examined claimant and

            found that claimant could not  squat, had pain upon palpation

            and upon flexion and  lateral movement of the trunk.   During

            1985, claimant  continued with  these symptoms.   However, an

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SIF physician in September of 1985 noted that claimant's pain

            appeared only  upon exercise or prolonged  periods of sitting

            or standing.  At this  examination, he found no radiculopathy

            and that claimant's gait was normal.

                      In March  1986, a  follow-up report indicated  that

            claimant evinced  little interest  in engaging  in vocational

            rehabilitation.    In  June   1986,  a  vocational  evaluator

            reported that  despite  claimant's complaints  of  testicular

            pain, headaches and pain  in his fingers, neck, low  back and

            legs,  claimant  was  able  to  lift  up  to  twenty  pounds.

            Although he  had  trouble  bending  forward  and  experienced

            difficulties kneeling  and squatting, he could  sit and stand

            for  sufficient lengths  of  time so  that  with a  job  that

            allowed him to change position,  he could perform light work.

            Thus,  claimant  was noted  as having  "great" rehabilitative

            potential.

                      Turning to the consultative medical evaluations, we

            find  it necessary  for  the disposition  of  this appeal  to

            review only those upon  which the VE based his opinions as to

            appellant's physical abilities.  In August 1988, an internist

            found  no swelling,  no muscle  atrophy and  normal reflexes.

            See Exhibit  41.  There was diminished  pinprick sensation in
            ___

            claimant's left leg.  The  diagnosis was fibromyositis of the

            lumbosacral spine  with spasms and discogenic  disease at L5-

            S1.   The residual  functional capacity (RFC)  form indicated

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that  claimant could lift a maximum of 50 pounds on occasion,

            could stand or walk for four to six hours at a time and could

            sit  for up  to  four hours  so long  as  he could  alternate

            positions.   Claimant could frequently climb  and balance and

            could occasionally stoop, kneel, crawl and crouch.

                      A  neurologist, also  examining claimant  in August

            1988,  found claimant  with  a normal  spine, full  strength,

            normal tone and no evidence of atrophy or radiculopathy.  See
                                                                      ___

            Exhibit  42.    Claimant  had  limited  trunk  movements  and

            although he showed  signs of  sensory deficit,  they did  not

            follow  any anatomical  distribution.   An  X-ray revealed  a

            narrowing  of the  L5-S1 disc  space and  lumbar spasm.   The

            diagnosis  was chronic back pain.  In the RFC evaluation, the

            neurologist determined that claimant  could lift a maximum of

            50 pounds.   He could stand and  walk without any limits, but

            could  sit for an uninterrupted  time for only  three to four

            hours in a  work day.   Claimant had  no limits in  kneeling,

            crouching, crawling,  climbing or balancing.   He was limited

            in his ability to push or pull.

                      In  contrast  to the  above  is  the  report of  an

            evaluation performed  by a  neurologist on January  28, 1987.

            See Exhibit 20.   This examiner found lumbar dextroscoliosis,
            ___

            marked lumbosacral paravertebral muscle spasm  and tenderness

            to palpation.  Claimant had limited range of motion and could

            bend forward only 30 degrees.  The diagnoses were as follows:

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(1) herniated nucleus pulposus (HNP) at  L4-L5 and L5-S1; (2)

            bilateral intractable S1 radiculopathies; (3) severe, chronic

            lumbosacral  myositis and  myofascial  pain; and  (4)  lumbar

            facet  axial   injury  and  pain  syndrome.     The  report's

            conclusions  were that claimant's  musculoskeletal and spinal

            conditions, along with nerve root involvement, contributed to

            "severe  functional spinal limitation in  all of the range of

            lumbar  movements."    As  a result,  claimant's  ability  to

            maintain a  fixed position for  a substantial period  of time

            was   limited;  further,   claimant's   constant   pain   was

            exacerbated  by physical  exertion.   Thus, he  was precluded

            from engaging  in "any type of  gainful activity whatsoever."

            According to  this doctor,  claimant  was in  "dire need"  of

            treatment.

                      At  the last  hearing,  the ALJ  asked  the VE  his

            opinion of what  type of work claimant could perform.  The VE

            responded  that if one  used only Exhibit  20, claimant would

            not be able to engage in any substantial gainful activity due

            to  his functional limits and severe pain.  However, based on

            the RFC forms completed by the other two examiners, claimant,

            although  precluded from  heavy work  such as  his last  job,

            could perform moderate work.  The VE reached this  conclusion

            even  taking  into  account  claimant's  pain  and  decreased

            abilities in sitting, standing or walking for long periods of

            time.

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Claimant  argues that  the ALJ  did not  credit his

            complaints of pain.  We  do not agree.  The VE  in describing

            claimant   as  being   able  to   engage  in   moderate  work

            specifically referred  to pain  as a component  of claimant's

            profile.  The  ALJ went  further than the  VE, deciding  that

            claimant  could  perform  only  light  work  where  he  could

            alternate  positions.1  This finding was based in part on the

            fact  that claimant's pain  as well  as his  other conditions

            required this kind of flexibility.  Although the reports were

            conflicting  as  to  whether  claimant's  pain  was   totally

            disabling, such conflicts are for the ALJ, not the courts, to

            resolve.   See  Rodriguez v.  Secretary of  Health and  Human
                       ___  _________     _______________________________

            Services, 647 F.2d 218, 222  (1st Cir. 1981).  Thus,  we find
            ________

            that  there was  substantial  evidence to  support the  ALJ's

            conclusion that  claimant could perform the  demands of light

            work.

                      2.  Mental Impairment
                          _________________

                      Whether   claimant's    emotional   impairment   is

            disabling  is  a  closer  question.   He  began  experiencing

            emotional  problems after he  injured his back.   He received

            treatment for  these problems  at the Carolina  Mental Health

            Center from  March 1986 through February 1988.   See Exhibits
                                                             ___

____________________

            1.  For some  reason, claimant argues  that the ALJ  erred by
            relying on  the  grid and  that  the testimony  of a  VE  was
            required.  It appears that claimant bases this  contention on
            the first decision rendered  by the ALJ in July  1987, rather
                _____
            than the most recent decision of June 1989.

                                         -8-

18 and 37.   At his initial evaluation, claimant  stated that

            he  had trouble sleeping, was irritable, lost his temper with

            his   children,  experienced   headaches   and  some   visual

            hallucinations at night.  The diagnosis, at this time, was an

            adjustment disorder with depression;  the prognosis was  good

            with  out-patient  counseling   recommended.    Clinic  notes

            indicate   that  during   1986,   claimant   evinced   little

            cooperation with treatment; he stated that he  was there only

            for the  purpose of obtaining  medication to help  him sleep.

            His  case  was terminated  in January  1987, no  real changes

            having occurred.  However, in December 1987, claimant was re-

            admitted to the out-patient program with the same complaints.

            At   this  time,  claimant  was  cooperative,  goal-directed,

            relevant  and  his thought  processes  were  intact.   Again,

            little  gain appears to have been made with treatment and the

            record reflects that his last visit was in February 1988.

                      Claimant underwent four psychiatric  evaluations --

            two in 1986  and two in 1987.  All  the examiners agreed that

            claimant was  coherent, logical, relevant and  oriented.  See
                                                                      ___

            Exhibits   15,  17,  38  and  40.    Despite  his  subjective

            complaints of hallucinations, all  four examiners also agreed

            that his thought  processes were intact  with no evidence  of

            psychotic perceptions.    Although two  examiners noted  some

            impairment with recent and  immediate memory, see Exhibits 17
                                                          ___

            and 40,  this was not  perceived as  a major problem  and all

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four  agreed  that claimant's  judgment  was,  at a  minimum,

            adequate.  Similarly, all four examiners agreed that claimant

            was  anxious  and  distracted,  with  three  observing   that

            claimant  appeared depressed.   See Exhibits  15, 38  and 40.
                                            ___

            The  most   common  diagnosis   was  depression  related   to

            claimant's accident.

                      The  evaluators  differed  as   to  the  effect  of

            claimant's  mental condition  or his  ability to  function at

            work.   A psychologist who  tested claimant for  the SIF, see
                                                                      ___

            Exhibit 17, determined that  claimant had a borderline  IQ of

            76.  His vocational test scores revealed a strong interest in

            manual  activities.    Despite   the  presence  of  "mild  to

            moderate"  anxiety  which affected  claimant's concentration,

            the psychologist  believed that this condition  was treatable

            on  an  out-patient   counseling  basis.    Claimant's   work

            prognosis was "very much acceptable" and "his emotional state

            and  his  intellectual  capacities"  were  "appropriate"  for

            vocational rehabilitation.

                      However, the  one examiner  who completed a  mental

            RFC assessment, see Exhibit 40, rated claimant's abilities to
                            ___

            function in the following areas as "poor or none" (defined on

            the  RFC form  as "[n]o  useful ability  to function"):   (1)

            following work rules; (2) relating to co-workers; (3) dealing

            with the public; (4) interacting with supervisors; (5) coping

            with   work  stresses;  (6)  maintaining  concentration;  (7)

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handling detailed or  complex job instructions; (8)  behaving

            in  an  emotionally  stable  manner;  and  (9)  demonstrating

            reliability.    His  abilities  to  use  judgment,   function

            independently  and  relate predictably  in  social situations

            were  "fair"  --  defined  as  "seriously  limited,  but  not

            precluded."   Claimant had good ("limited  but satisfactory")

            abilities  in the  areas  of  understanding, remembering  and

            carryingout
                      simpleinstructions
                                       andinmaintaining
                                                      personalappearance.

                      Two non-examining doctors completed RFC assessments

            in  1986.  See Exhibit 14.   They agreed that claimant had no
                       ___                                             __

            significant  limits  in   the  following  activities:     (1)

            remembering locations and work procedures; (2) understanding,

            remembering   and  carrying   out  very   short  and   simple

            instructions;  (3) making simple  work-related decisions; (4)

            asking  simple  questions;  (5)  requesting  assistance;  (6)

            acting in  a socially appropriate manner;  and (7) responding

            appropriately to changes in the work place.  Both also viewed

            claimant  as  being moderately  limited  in  his capacity  to

            maintain  a normal  work  week without  interruptions due  to

            psychological symptoms, to accept  criticism and to get along

            with co-workers.  These same  evaluators, on the "B" criteria

            of  the  Psychiatric  Review  Technique   (PRT)  Form,  rated

            claimant as  slightly limited in daily  living activities and

            moderately  limited in  social  functioning; claimant  seldom

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experienced  problems  with   concentration  and  never   had

            episodes of deterioration at work or in work-like settings.

                      In   1988,   two   non-examining  physicians   also

            completed PRT forms.  They opined that although claimant  was

            anxious  and  depressed,  his  emotional  condition  was  not

            severe.  See Exhibit  35.  As for the "B"  criteria, claimant
                     ___

            had   slight  limitations   in   daily   living  and   social

            functioning, seldom experienced  problems with  concentration

            and never had problems with deterioration at work or in work-

            like settings.

                      The ALJ also questioned the VE concerning the above

            evidence.   Again, the VE  pointed out that  the evidence was

            conflicting  and  the  conclusions   as  to  claimant's  work

            abilities  were   dependent  on  what  medical   reports  one

            utilized.   Based on the  psychiatrist's report  and the  RFC

            evaluation, claimant  would  not  be able  to  work  at  all.

            However, the  other  reports, according  to the  VE, did  not

            support such a finding of total disability.

                      Although we do not agree with the ALJ that claimant

            did  not have any  emotional impairment and  even hesitate to
                          ___

            find,  as  did  the  Appeals  Council,  that  while  such  an

            impairment  did  exist,  it  had  no  significant  effect  on

            claimant, we  believe that  there is substantial  evidence to

            support the  conclusion that claimant was  not precluded from

            work.   We first note, however, that the findings of moderate

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limitations in accommodating the demands of a work setting --

            i.e., regular  attendance and  the completion of  a work-week
            ____

            without interruption  -- can erode the  occupational base, at

            least marginally.  See Ortiz v. Secretary of Health and Human
                               ___ _____    _____________________________

            Services, 890  F.2d 520, 527  (1st Cir. 1989).   Nonetheless,
            ________

            given  the presence  of the  RFC assessments  indicating that

            claimant had  the ability  to follow simple  instructions and

            that  his  attention and  concentration  were  only minimally

            affected, along  with  the RFC  assessments  that  claimant's

            emotional impairment was not  severe, we cannot say  that the

            VE's conclusion that claimant could work as a warehouse stock

            person was without record support.  Although the record could

            support  a  different  conclusion, we  again  emphasize  that

            conflicts in the record  are for the Secretary.   See Irlanda
                                                              ___ _______

            Ortiz v.  Secretary of Health  and Human  Services, 955  F.2d
            _____     ________________________________________

            765, 770 (1st Cir. 1991) (per curiam).

                                   III.  CONCLUSION
                                   ___   __________

                      For  the  foregoing reasons,  the  judgment of  the

            district court is affirmed.
                              ________

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