Irlanda Ortiz v. Secretary

Opinion

USCA1 Opinion

February 5, 1992         ____________________

No. 91-1471 

                               VICTOR J. IRLANDA ORTIZ,

                                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. Juan M. Perez-Gimenez, U.S. District Judge]
                                               ___________________

                                 ____________________

                                        Before

                             Campbell, Torruella and Cyr,
                                   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 Amy S. Knopf, Assistant
        ______                                         ____________
        Regional Counsel,  Department of Health  and Human Services,  on brief
        for appellee.

____________________

____________________

Per  Curiam.   Claimant, Victor  J. Irlanda  Ortiz,
                      ___________

            appeals from the  judgment of the Federal  District Court for

            the  District of  Puerto Rico affirming  the decision  of the

            Secretary of Health and Human  Services that claimant was not

            entitled to disability benefits.  We affirm.

                                      BACKGROUND
                                      __________

                      Claimant filed  an application for  Social Security

            disability benefits on August 18,  1983.  He alleged an onset

            date of 1978 and claimed  disability due to problems with his

            back, nerves, arms,  legs, headaches, stomach and  high blood

            pressure.   Claimant's insured  status expired  on March  31,

            1984.     The  application  was  denied  initially  and  upon

            reconsideration.  On July 31,  1984, after holding a hearing,

            an administrative  law judge  (ALJ) determined  that claimant

            was not  disabled.    The case  was  remanded,  however,  for

            reconsideration  under  the  new  mental  health  regulations

            contained in the Disability Benefits Reform Act of 1984.

                      The  same  ALJ  conducted  another  hearing  and on

            December  18,  1987, concluded  that  claimant suffered  from

            severe musculoskeletal and mental impairments which prevented

            him  from  returning  to  his  past  work  as  a construction

            laborer.   The ALJ did  not credit claimant's  allegations of

            pain   and  found  that   his  emotional  problems   did  not

            significantly reduce his ability to perform the full range of

            sedentary work.  Using the Medical-Vocational Guidelines (the

-2-

Grid), Table No. 1, Rule 201.23, Pt. 404, Subpt. P., App.  2,

            as a framework, he found that claimant was not disabled.

                      The  Appeals Council ordered a remand.  It directed

            the ALJ to reconsider claimant's  complaints of pain in light

            of Avery v. Secretary of  Health and Human Services, 797 F.2d
               _____    _______________________________________

            19 (1st Cir.  1986).  Specifically, the Appeal Council stated

            that  where the objective  medical evidence does  not support

            the degree  of pain  alleged by claimant,  the ALJ  also must

            consider the daily  activities described by claimant  and his

            prior work record.

                      On remand,  the  ALJ  again  discounted  claimant's

            allegations   of  disabling  pain,  noting  that  the  record

            contained reports in which claimant was described as being in

            no physical distress.  The  ALJ also relied on the fact  that

            for long  periods of time  claimant was not in  any treatment

            for his back problems.   The ALJ inferred that had claimant's

            pain been  as severe as  alleged, claimant would  have sought

            treatment.  As for  his mental impairment, the  ALJ concluded

            that  a slight  difficulty in maintaining  social functioning

            did not reduce  claimant's ability to perform  the full range

            of  sedentary  work.   Using  the  same  Grid rule,  the  ALJ

            concluded that claimant was not disabled.

                      On  January 19, 1989, the Appeals Council once more

            remanded the  case to  the ALJ.   It apparently  accepted the

            ALJ's  conclusions  as  to  claimant's  complaints  of  pain.

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However,  it decided  that  vocational  expert testimony  was

            required  to  determine  the  number  of  jobs  available  to

            claimant  given  both   his  exertional  and   non-exertional

            impairments.  As a result, the ALJ held a hearing on June 14,

            1989 at which  a vocational expert (VE) testified.   Based on

            the Grid as  a framework and the answers  to the hypothetical

            posed  to the VE,  discussed infra,  the ALJ  still concluded
                                         _____

            that claimant was not  disabled.  The Appeals Council  denied

            claimant's request for review on  January 9, 1990.  Thus, the

            ALJ's decision became the final decision of the Secretary.

                      Claimant appealed  the Secretary's decision  to the

            district court.  The case  was referred to a magistrate judge

            who   determined,   without   much  explanation,   that   the

            Secretary's  decision   was  not  supported   by  substantial

            evidence.   He therefore  recommended vacating  the decision.

            However,   the   district   court   did    not   adopt   this

            recommendation.  Rather, it affirmed the Secretary's decision

            on the ground that the record contained conflicting evidence.

                                   MEDICAL EVIDENCE
                                   ________________

                      The record  reveals that claimant  sought treatment

            only from the  State Insurance Fund  (SIF) during the  period

            for  which he  was insured.   He  initially had  pursued such

            treatment in connection with an accident he sustained at work

            in July 1978.   The  progress notes from  the SIF reveal  the

            following sporadic course of treatment:

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(1)  1978.
                           ____

                      In  1978, claimant  was evaluated  only  once.   On

            October  19, an examination revealed that there was stiffness

            in  the lumbosacral paravertebral muscles.  The diagnosis was

            post-traumatic  chronic  low  back  syndrome  and   herniated

            nucleus  pulposus  (HNP).    The  note  also  indicates  that

            claimant had been under  treatment with improvement; however,

            there are no medical records that reflect such treatment.  At

            this  time,  claimant  was  placed on  anti-inflammatory  and

            muscle relaxant medication.

                      (2)  1979.
                           ____

                      In  1979,  claimant also  was  examined only  once.

            This   neurological examination disclosed pain upon palpation

            at L4-L5  and positive  straight leg  raising.   Nonetheless,

            claimant's reflexes were  adequate.  An EMG  was recommended.

            This test was performed in November and was normal.

                      (3)  1980.
                           ____

                      After  a lapse of almost one year, claimant visited

            the SIF four times.  On September 2, his straight leg raising

            was limited to 45 degrees bilaterally but there was no muscle

            weakness.   The diagnosis was suspected  lumbar radiculopathy

            at  L5 with  a herniated  disc at  L4-L5 and  depression with

            anxiety.   In October,  a physiatrist  examined claimant  and

            found  marked muscle spasms; again, there was motor weakness.

            The  diagnosis  was  chronic  painful  lumbosacral  syndrome.

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However,  on   November  11,   the  physiatrist   noted  that

            claimant's  condition  had  improved  and   on  November  24,

            claimant's  range of motion  was preserved, his  straight leg

            raising was negative bilaterally and  there was no sensory or

            motor deficits.

                      (4)  1981.
                           ____

                      Claimant did not receive any treatment for his back

            in 1981.   A  psychiatric evaluation,  performed  on July  9,

            indicated  that  claimant was  insecure, afraid  and anxious.

            However,  he was oriented,  his memory was  conserved and his

            judgment was adequate.   Claimant was referred  to the mental

            health center.   There  are no records  of any  mental health

            treatment subsequent to this evaluation.

                      (5)  1982.
                           ____

                      The next note from the SIF, dated January 22, 1982,

            indicates  that claimant's range  of motion of  his trunk was

            moderately limited but  he could walk on his  heels and toes.

            Straight  leg raising  was positive.   At  this time,  he was

            discharged with 15%  disability.  A psychiatrist  noted, also

            in  January, that  claimant should  not  undergo a  myelogram

            until his  anxiety neurosis  had improved.   Claimant's  next

            visit to the SIF was not until  November 29 when he underwent

            a  psychiatric  evaluation to  determine  whether  his mental

            impairment  was  related to  his  work  accident.    At  this

            examination,  claimant   was  logical,   coherent,  relevant,

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oriented,  and realistic.    His  affect  was  adequate,  his

            intellectual capacity  average, and his  judgment acceptable.

            The evaluating psychiatrist  diagnosed a generalized  anxiety

            disorder   which,  he  concluded,  was  not  related  to  the

            accident.

                      (6)  1983.
                           ____

                      In 1983, claimant's  condition improved even though

            a CT scan, performed on September 19, showed a herniated disc

            at  L5-S1.     Two  further  neurological  evaluations   were

            conducted.     On  November   29,  a  physiatric  examination

            disclosed  no  significant  limits  on  claimant's  range  of

            motion,  no pain upon palpation, no significant muscle spasm,

            and no  deficits in his  reflexes.  Physical therapy  was not

            recommended.  A note dated December 7 indicates that claimant

            reported that he had experienced improvement of his condition

            with the use of medications.

                      (7)  1984.
                           ____

                      Claimant  received no  treatment  for his  back  in

            1984.   In January, the SIF re-evaluated claimant's emotional

            condition.    The  reviewing  psychiatrist  determined   that

            claimant's anxiety neurosis was related to his back problems.

            He also  recommended psychotherapy  as a  means of  improving

            claimant's mental status to the point where surgery  could be

            performed.   An initial evaluation  was conducted on March 6.

            Claimant was described  as being in good  physical condition.

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His  thought content was relevant and coherent; his attention

            span was good,  his present memory was conserved,  and he was

            oriented.   His affect  was appropriate,  but the  evaluating

            psychiatrist described him  as being uncooperative concerning

            the testing of conceptual clarity, mathematic operations, and

            his remote memory.  The  diagnosis was anxiety neurosis.  The

            final  psychiatric  report,   after  five  therapy  sessions,

            indicated only that claimant  presented as coherent, logical,

            and well oriented;  his affect was described  as appropriate.

            The report  indicated that  claimant was  being treated  with

            medications.

                      Apart from the  SIF records, there are  three other

            medical  reports relevant to the period of claimant's insured

            status.  The first is a psychiatric consultation performed on

            January 3, 1983.   Claimant's wife reported that claimant was

            able to  take care of his own personal  needs, but did not do

            any household chores.   Claimant's activities were  listed as

            walking  and smoking;  he was  described  as quarrelsome  and

            irritable.   The consulting psychiatrist stated that claimant

            had poor  muscle tone, but  otherwise appeared to  be healthy

            and in  no obvious  stress.  His  gait appeared normal.   The

            mental status exam revealed  that claimant was uncooperative,

            answering  few  of  the  doctor's  questions.    Nonetheless,

            claimant's  speech  was  clear,  there  were   no  perceptual

            disturbances and his ideas were  goal oriented.  His  thought

-8-

processes  were logical,  coherent,  organized and  relevant.

            The  psychiatrist   could  not   test  claimant's   cognitive

            abilities because  he refused  to respond  to the  questions.

            She concluded that claimant's mental problems were "part of a

            life  long pattern of personality traits that are maladaptive

            and   inflexible,   producing   impairment   in  social   and

            occupational adjustment."   Although claimant's prognosis was

            viewed as "guarded,"  the doctor also noted  that personality

            deterioration was  "slight."   She did  not indicate  whether

            psychiatric treatment was indicated.

                      The   second  evaluation,   conducted  just   after

            claimant's insured  status had  expired, was  performed by  a

            neurologist  at  the  behest of  claimant's  attorney.   This

            physician  noted that  there  were  no  motor  weaknesses  or

            atrophy and  no sensory  deficits in  claimant's extremities.

            His  reflexes  were  normal  and  straight  leg  raising  was

            negative bilaterally, although claimant experienced some pain

            in  his left leg at 80  to 90 degrees.   He could walk on his

            heels and  toes but only with  some limping.  There  was only

            mild  tenderness  to  palpation  in the  lumbar  area.    The

            diagnosis  was chronic  low back pain  syndrome.   The doctor

            concluded that claimant could not perform his prior work.

                      This examiner also completed a residual  functional

            capacity (RFC) assessment.   Claimant was described  as being

            able to occasionally lift files or ledgers;  his abilities to

-9-

stand, walk and sit were limited to less than six hours  each

            in  an  eight-hour  workday.   He  could  occasionally climb,

            balance, stoop, kneel,  crouch and crawl.   His capacity  for

            reaching and handling was unlimited.  However, claimant could

            not use heavy effort to push or pull.

                      Finally,  a non-examining  consultant reviewed  the

            record and completed a mental RFC assessment.  This physician

            diagnosed  an affective  disorder  characterized by  anxiety,

            tension  and sadness which resulted in slight restrictions in

            daily  living  activities  and  moderate  limits   in  social

            functioning.     She   determined   that  claimant   was  not

            significantly  limited in his abilities to remember work-like

            procedures  and to understand,  remember and carry  out short

            and  simple   instructions.     Claimant  also   had  minimal

            limitations in sustaining an ordinary routine without special

            supervision,  asking  questions  and  requesting  assistance,

            maintaining  socially  appropriate   behavior  and  traveling

            alone.  There  was no evidence  of limitations in  claimant's

            abilities to  respond to changes  in his work setting  and to

            make simple work-related decisions.

                      Claimant  had  moderate  limits,  however,  in  his

            abilities in  maintaining concentration for  extended periods

            of  time, performing  within  the  confines  of  a  schedule,

            maintaining regular work attendance, being punctual and being

            able to complete a normal work week without interruptions due

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to  psychologically based  symptoms.   He  also had  moderate

            limits  in interacting with the general public, accepting and

            responding to  criticism  and getting  along  with  coworkers

            without distracting them.

                      Based  on this evidence,  the ALJ presented  the VE

            with  the following  hypothetical:    an  individual  who  is

            limited  to sedentary work  where he can  alternate positions

            and  who   is  attentive,  cooperative,   passive,  coherent,

            relevant,  oriented, able  to concentrate  on  and carry  out

            simple  instructions  and  able to  relate  to  coworkers and

            supervisors, but unable to deal with the general public.  The

            VE  testified  that such  an  individual could  be  a packer,

            sorter, classifier, assembler  of small parts, or  labeler in

            the  electronics   field.    The   ALJ  then  added   to  the

            hypothetical  claimant's  subjective complaints  of  constant

            back  pain  which  prevents  him from  concentrating,  marked

            anxiety  and fear,  poor  memory  and  marked  difficulty  in

            relating to others.  To this hypothetical the VE replied that

            claimant  would have problems  in complying with  the minimum

            requirements of the above jobs.

                                      DISCUSSION
                                      __________

                      The Social  Security Act provides that  the factual

            findings of the Secretary shall be conclusive if supported by

            "substantial evidence."  42 U.S.C.   405(g).  "We must uphold

            the  Secretary's  findings  .  .  .  if  a  reasonable  mind,

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reviewing the evidence in the record as a whole, could accept

            it  as adequate  to support  his conclusion."   Rodriguez  v.
                                                            _________

            Secretary  of Health  and Human Services,  647 F.2d  218, 222
            ________________________________________

            (1st Cir. 1981).   It is the responsibility  of the Secretary

            to determine  issues of  credibility and  to draw  inferences

            from the  record evidence.   Id.   Indeed, the  resolution of
                                         ___

            conflicts in  the  evidence is  for  the Secretary,  not  the

            courts.  Id.
                     ___

                      We  find  substantial  evidence  in the  record  to

            support  the finding  that claimant's  exertional impairments

            did  not   preclude  him  from   performing  sedentary  work.

            Claimant maintains that his back pain resulted in more severe

            strength limitations.  It is  true that there is an objective

            medical impairment  -- a ruptured  disc at L5-S1 --  that can

            reasonably be expected  to produce pain.  Avery,  797 F.2d at
                                                      _____

            21.   Yet, we  believe the ALJ  did not err  in deciding that

            claimant's  complaints  were  not  credible  to   the  extent

            alleged.   More  than a few  of the evaluations  from the SIF

            found  claimant  with  no motor  or  strength  weaknesses and

            little spasm.  Indeed, the last SIF note of record concerning

            claimant's back,  made after the  CT scan that resulted  in a
                                   _____

            diagnosis of  a ruptured  disc, indicates  that claimant  had

            improved, experienced no pain on palpation and demonstrated a

            good range of motion.

-12-

Further,   the   record   reveals   that   claimant

            apparently did not receive any treatment for his back in 1981

            and 1984; he was seen only once in 1979 and once in 1980.  We

            view these  gaps in  the medical record  as "evidence."   The

            Secretary  concluded  that  this  evidence  conflicted   with

            claimant's allegations  of unrelenting  pain.  The  Secretary

            then drew the inference that claimant would have secured more

            treatment had  his pain been  as intense  as alleged.   As we

            stated, the resolution of  conflicts in the evidence  and the

            drawing  of  conclusions  from  such  evidence  are  for  the

            Secretary.  See  Rodriguez, 647 F.2d at 222.   We accordingly
                        ___  _________

            accept the Secretary's determinations  relating to claimant's

            exertional impairments.

                      Claimant's non-exertional impairment  -- his mental

            condition -- presents a closer case.  The ALJ determined that

            claimant's  anxiety  disorder  reduced  the   full  range  of

            sedentary  work only  to the  extent that claimant  could not

            deal with the general  public or perform complex  or detailed

            tasks.  This conclusion was reflected in the hypothetical the

            ALJ  posed to  the  VE.   She  responded  by listing  several

            unskilled jobs such an individual could perform.

                      Social  Security Ruling  (SSR)  85-15 contains  two

            sets of mental capabilities required for unskilled work.  The

            first  group includes the  abilities to  understand, remember

            and carry  out simple instructions,  to respond appropriately

-13-

to the normal work environment and to deal with changes in  a

            routine  work  situation.   The  SIF  psychiatric evaluations

            describe  claimant as being  coherent, relevant and oriented;

            his judgment and  attention span were described  as adequate.

            The   consultative  psychiatric   examiner  reached   similar

            conclusions.   As  for the  RFC  form completed  by the  non-

            examining  physician,  it  specified    that  claimant  could

            perform  simple  work  tasks,  follow  an  ordinary  routine,

            request  assistance  and  handle  changes in  the  work-place

            setting.

                      The second inquiry concerns a claimant's ability to

            cope with  the demands  of any work  environment.   SSR 85-15

            states that these demands include the need to be punctual and

            to  attend work  on a  regular basis,  the ability  to accept

            supervision and the capacity to  remain in the work place for

            an  entire  day.    Although  the  SIF  evaluations  and  the

            psychiatric  consultation did not  address these  issues, the

            physician  who completed  the  RFC assessment  indicated that

            claimant   was   moderately  limited   in   these  areas   of

            functioning.      Such   limitations   possibly   erode   the

            occupational  base available to claimant and could affect the

            performance of even the jobs listed by the VE.  See  Ortiz v.
                                                            ___  _____

            Secretary of  Health and Human  Services, 890  F.2d 520,  527
            ________________________________________

            (1st  Cir. 1989).   The  question is  how much  the  range of
                                                  ___ ____

            sedentary, unskilled work is decreased.  See id.
                                                     ___ ___

-14-

Although  the  record   arguably  could  support  a

            different  conclusion,   we  believe  there   is  substantial

            evidence to support the Secretary's decision  that claimant's

            capacity  for   the  full   range  of   such  work   was  not

            significantly  reduced.  Thus,  we must uphold  his decision.

            See   Rodriguez  Pagan  v.  Secretary  of  Health  and  Human
            ___   ________________      _________________________________

            Services, 819  F.2d 1, 3  (1st Cir. 1987), cert.  denied, 484
            ________                                   _____  ______

            U.S. 1012  (1988).   Apart from the  conclusions of  the non-

            examining  physician,  there  is  no  other  indication  that

            claimant's  ability to accommodate  routine work  demands was

            inadequate -- either slightly, moderately or markedly.

                      Moreover,  aside  from  the  five therapy  sessions

            claimant attended through the SIF,  there is no record of any

            other mental health therapy during  his insured status.  As a

            result,  there is  no  way  of  telling  whether  psychiatric

            treatment could have improved these "marked" limitations.  We

            do not think that a  claimant with a diagnosed impairment may

            assert entitlement  to disability benefits  without at  least

            securing a determination  concerning what, if  any, treatment

            options are available to him  or her.  Indeed, "[i]mplicit in

            a  finding of  disability is  a  determination that  existing

            treatment alternatives would not restore a claimant's ability

            to  work."    Tsarelka  v.  Secretary  of  Health  and  Human
                          ________      _________________________________

            Services, 842 F.2d 529, 534 (1st Cir. 1988) (per curiam).  As
            ________

            we  described in  Tsarelka,  the Social  Security regulations
                              ________

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specifically  provide that to qualify for benefits a claimant

            must follow  prescribed treatment.   Id. (citing 20  C.F.R.  
                                                 ___

            404.1530(a),  (b)).   The lack of  any evidence  of sustained

            treatment in  this case only  bolsters our decision  that the

            record adequately  supports the Secretary's  final conclusion

            that claimant was not disabled.

                      Affirmed.
                      ________

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