Lopez-Merrero v. SHHS
Opinion
USCA1 Opinion
May 31, 1994
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 93-2092
LAURA E. LOPEZ-MERRERO,
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
Selya, Cyr and Stahl,
Circuit Judges.
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____________________
Raymond Rivera Esteves and Juan A. Hernandez Rivera on brief for
______________________ _________________________
appellant.
Guillermo Gil, United States Attorney, Maria Hortensia Rios,
______________ ______________________
Assistant United States Attorney, and Paul Germanotta, Assistant
________________
Regional Counsel, Department of Health and Human Services, on brief
for appellee.
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____________________
Per Curiam. Claimant Laura E. Lopez-Marrero
____________
appeals from the judgment of the district court which
affirmed the decision of the Secretary of Health and Human
Services that claimant was not entitled to Social Security
disability benefits.
I. BACKGROUND
_ __________
Claimant filed an application for Social Security
disability benefits on June 6, 1989. She alleged an onset
date of October 15, 1988. As disabilities she listed her
nerves and her back. She related her impairments to two
falls at work. An administrative law judge (ALJ) held a
hearing. Claimant testified concerning her most recent work.
First, she worked in a pharmaceutical factory where she
manually checked and counted the gloves made there. She
would alternate between sitting and standing and only had to
carry "little" things. Next, she was employed as an office
worker; she took notes and answered the phone.
Claimant stated that she lives with her husband.
After the accidents, she suffered pain in her left leg, left
hip, left ankle and right hand. She uses a cane because of
the pain in her legs. She visits a doctor when in pain and
takes Motrin. She can sit and stand for twenty minutes at a
time but has problems walking. She can lift light objects.
She would like to work but cannot because of the problems she
has with her memory due to her nerves and because of the pain
in her lower back, coccidial area and left hip. She
described her pain as strong although sometimes the medicine
helps. As for her nerves, she feels desperate and restless.
The ALJ first determined that claimant's
impairments did not meet the listings. Nonetheless, he found
that there existed some limitations in her work-related
activities due to both her exertional and non-exertional
conditions. As for claimant's mental impairment, the ALJ
concluded that claimant was only precluded from performing
complex tasks due to some deterioration in her ability to
sustain concentration. Nonetheless, she retained the
capacity to perform simple tasks that were routine and
repetitive in nature. He rejected the level of deterioration
described by claimant, finding that, under Avery v. Secretary
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of Health and Human Services, 797 F.2d 19 (1st Cir. 1986),
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she was only somewhat limited in social functioning and daily
activities.
In relation to her neurological condition, the ALJ
found that she suffered from lumbar strain and had a history
of trauma to her left hip, left ankle and right hand. Under
Avery, the ALJ credited claimant's complaints of pain only to
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the extent that she was precluded from doing heavy lifting
and carrying and from standing or walking for prolonged
periods of time. Thus, he concluded, she could perform her
past work.
-3-
On appeal, claimant argues that the ALJ's
determinations regarding her pain were not substantially
supported by the record. Further, claimant asserts, the ALJ
erred by translating, without the aid of a vocational expert,
the medical evidence of claimant's physical impairments into
functional limitations on her ability to perform her past
work. As for her mental condition, claimant asserts that the
ALJ's decision was not supported by substantial evidence when
viewed in the context of the record as a whole.
Specifically, claimant points to the findings concerning
restrictions in her ability to cope with the stresses of work
in general.
A. Physical Impairment
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The x-ray reports, which found partial
sacralization of the L-5 disc and narrowing of the L-5-S-1
disc space, do provide evidence of "a clinically determinable
medical impairment that can reasonably be expected to produce
the pain alleged." See Avery, 797 F.2d at 21. However,
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there also was evidence to support the ALJ's decision not to
credit claimant's claims of totally disabling pain.
For example, in November 1989, claimant underwent a
neurological evaluation. See Exhibit 15. Although
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