Melendez Salgado v. SHHS

Opinion

USCA1 Opinion

        April 1, 1992           [NOT FOR PUBLICATION]

____________________

No. 91-2230 

                             CARMEN M. MELENDEZ SALGADO,

                                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

                               Torruella, Circuit Judge,
                                          _____________
                           Campbell, Senior Circuit Judge,
                                     ____________________
                              and Selya, Circuit Judge.
                                         _____________

                                 ____________________

            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  Nancy  B.  Salafia,
        ______                                             __________________
        Assistant Regional  Counsel, Department of Health  and Human Services,
        on brief for appellee.

____________________

____________________

Per  Curiam.   The  appellant, Carmen  Melendez Salgado,
                 ___________

            appeals  from a decision of the Secretary of Health and Human

            Services  denying  her  application  for  federal  disability

            benefits.   The Secretary's decision was based on a ruling by

            an administrative law judge (ALJ)  that Mrs. Melendez had the

            residual  functional capacity to return to her past work as a

            legal secretary.  The district court affirmed the Secretary's

            decision, and this appeal followed.   For the reasons  stated

            in this opinion, we affirm the district court judgment.

                 The Medical Evidence
                 ____________________

                 Mrs. Melendez  claims that  she has been  disabled since

            late 1982 by upper back pain that radiates to and affects her

            neck  and left  shoulder,  and  by  diabetes.1   The  medical

            evidence of record shows that  Mrs. Melendez has been treated

            for  diabetes by drug therapy and  diet modification for some

            twenty  years, and  that, although  at least  one  doctor has

            described  the condition  as  "uncontrollable," she  did  not

            suffer  during the  period  of  her  insured  status  from  a

            significant  impairment   of  vision  or  from   any  of  the

            impairments  of  the nervous  or  vascular  systems that  are

            sometimes associated with diabetes.

____________________

            1.  The record  also shows that Mrs.  Melendez has complained
            of or  been diagnosed  as suffering from  menstrual problems,
            chest  pains,  hypertension,  headaches  and   dizzy  spells,
            insomnia and an anxiety disorder judged not to be "severe" by
            the Secretary's  medical consultants.  Mrs.  Melendez has not
            attempted  to link any of these ailments or their symptoms to
            her alleged inability to perform her past work.

                                         -2-

Mrs. Melendez has complained of back and neck pain since

            at least 1982.  X-rays, however, have never revealed a spinal

            defect except for "minimal levoscoliosis," and the  condition

            has  been  diagnosed as  myositis  (muscle inflammation)  and

            muscle spasm, but never as one involving nerve damage.  Range

            of  motion tests  have consistently  showed no  limitation of

            movement  in  her neck  and  shoulder, but  have  on occasion

            detected some limitations of movement in the trunk.

                 At  the  hearing  before  the ALJ,  Mrs.  Melendez  also

            complained of pain  and numbness in  her hands, and  asserted

            that  she had  received "injections"  for  the problem.   The

            medical records do not report  this treatment, and though the

            evidence does reflect her complaints of numbness, it does not

            suggest  whether the  discomfort in  Mrs. Melendez'  hands is

            related to either her back and neck problems or her diabetes.

                 The ALJ's Decision
                 __________________

                 The ALJ denied Mrs. Melendez benefits at the fourth step

            of the  "sequential  analysis"  created  by  the  Secretary's

            regulations.  20 C.F.R.   404.1520.  That is, the ALJ decided

            (1) that Mrs. Melendez was not working, (2) that she suffered

            from a "severe" impairment, (3)  that the impairment did not,

            however,  "meet  or  equal"  in  its  severity  one  of   the

            impairments  listed  in  Appendix  1   of  Part  404  of  the

            regulations,  and (4)  that, notwithstanding  her impairment,

            she had the residual functional capacity to perform her "past

-3-

relevant  work"  as   a  legal  secretary.     20  C.F.R.    

            404.1520(e).

                 The ALJ  made three findings concerning  his decision at

            step four, as he was required to do by Social Security Ruling

            (SSR)  82-62.    First,  he  concluded  that  "there  are  no

            objective findings in file  to establish that [Mrs. Melendez]

            is  not able to function  in sedentary and light activities."

            Second,  he found that Mrs. Melendez' past relevant work as a

            legal secretary  involved mostly sedentary,  but occasionally

            light,  work activities.  See 20 C.F.R.   404.1545(a) and (b)
                                      ___

            (defining sedentary  and light  work,  respectively).   These

            activities  included  typing  and taking  dictation,  running

            errands, answering  the telephone, "and so  forth."  Finally,

            the  ALJ  found  that   Mrs.  Melendez'  residual  functional

            capacity was sufficient to allow her to return to such work.

                 The Issue on Appeal
                 ___________________

                 Mrs.   Melendez  contends   on   appeal  that   the  ALJ

            incorrectly  decided  that she  had  the residual  functional

            capacity to meet the  demands of her former  job.  We  review

            such  a challenge in  light of (1)  the disability claimant's

            burden  of proof  at step  four, Goodermote  v. Secretary  of
                                             __________     _____________

            Health and Human Services, 690 F.2d 5, 7 (1st Cir. 1982), and
            _________________________

            (2) the  standard of "substantial evidence"  that governs the

            Secretary's   disability   determinations.     Richardson  v.
                                                           __________

            Perales, 402, U.S. 389, 410 (1971).   This means that we will
            _______

-4-

review  here only  to determine  whether a  "reasonable mind"

            could have concluded on the evidence before the ALJ that Mrs.

            Melendez  had failed to prove  an inability to  return to her

            past relevant work.

                 Our application  of this standard compels  us to affirm.

            First, the ALJ's characterization of Mrs. Melendez' past work

            as  being  mostly  sedentary,  and  requiring  no  more  than

            transient interludes of  "light" activity, accords with  Mrs.

            Melendez' own description of  her job requirements.  Although

            Mrs.  Melendez described her job as a legal secretary in only

            general  (and  occasionally  inconsistent)2  terms,  we glean

            from her  testimony and the  evidence she submitted  that the

            job required her to sit most of the time and to stand or walk

            only occasionally,  and that it  involved "a lot"  of writing

            and  some  typing,  but  little  bending  and  no  more  than

            occasional lifting and carrying of relatively light objects.

                 The ALJ's  finding that  Mrs. Melendez had  the residual

            functional capacity  to do sedentary  and some light  work is

            slightly more problematic, though we ultimately conclude that

____________________

            2.  For example, in the first Disability Report Mrs. Melendez
            submitted to the  Secretary, she alleged that  her former job
            required "constant" bending and  "frequent" reaching.  In the
            second Disability Report she  submitted, she claimed that the
            job  required only  "occasional" bending  and reaching.   The
            third  Disability  Report  said  that the  need  for  bending
            "depend[ed] on the work duty," and left unanswered a question
            about reaching.  There were similar inconsistencies among the
            three  Disability  Reports  with  respect to  the  amount  of
            walking, standing, lifting and carrying required by the job.

                                         -5-

it was supported by substantial evidence.  It is true that we

            usually  disqualify  the ALJ,  as  a  lay factfinder  without

            medical expertise,  from translating "raw  medical data" into

            an assessment of  a claimant's residual  functional capacity.

            Rather,  we usually require the ALJ to enlist the services of

            a  doctor  to make  the translation  in the  form of  an "RFC

            questionnaire."   See,  e.g., Rivera-Torres  v. Secretary  of
                              __________  _____________     _____________

            Health and Human Services, 837 F.2d 4, 7 (1st Cir. 1988) (per
            _________________________

            curiam).

                 The  ALJ here did not  take that step.   However, we can

            excuse his  failure to  do so  for two  reasons.   First, the

            impairments reflected  in the record, though numerous, appear

            to  have been "relatively mild" in the sense that the reports

            show few symptoms that would affect  ability to do work.  See
                                                                      ___

            Santiago v. Secretary of Health and Human Services,  944 F.2d
            ________    ______________________________________

            1,  4-5 (1st  Cir.  1991) (per  curiam).   Second,  and  more

            important, we do not read  Mrs. Melendez' appellate brief  to

            challenge the ALJ's categorization of her residual functional

            capacity.   Rather, we  understand Mrs. Melendez  to complain

            that  the ALJ, though perhaps correct about her ability to do

            sedentary  and  some light  work  as  a general  proposition,
                                                    _______

            nevertheless failed to  take into  account specific  physical
                                                       ________

            limitations that rendered  her unable to meet  the demands of

            her past work.

-6-

Mrs. Melendez'  argument in  this regard focuses  on (1)

            her  description of her past secretarial job as requiring her

            to do  some typing and  "a lot"  of handwriting, and  (2) her

            allegations    of   "severe   problems"   with   her   "upper

            extremities," and pain and  numbness in her hands.   The ALJ,

            she  argues,  should  not  have  "summarily  dismissed"  such

            evidence.

                 We see Mrs. Melendez' point,  and think that the  better

            practice  for the  ALJ  might  have  been  to  enlist  expert

            assistance to resolve  the issue.   But the  record does  not

            permit  us  to  conclude  that  the  ALJ  lacked  substantial

            evidence   for  the   finding,  implicit   in   his  ultimate

            determination of no disability, that Mrs. Melendez had failed

            to  prove that her problems with her arms and hands prevented

            her  from meeting the typing and  writing requirements of her

            past  work.   The  medical evidence  contained only  sporadic

            reports  that Mrs.  Melendez  complained of  numbness in  her

            hands.  As to  the allegations of "severe" problems  with her

            upper  extremities, the  record  shows  that  numerous  tests

            failed  to detect  any  significant restriction  in range  of

            motion  or arm strength.   The record also  contains a three-

            page,   single-spaced  holographic  letter  written  by  Mrs.

            Melendez  in November 1986.  The handwriting in the letter is

            clear  and legible, and is evidence  that Mrs. Melendez could

-7-

do at least some handwriting during the period of her alleged

            disability.

                 Thus, although the record  might not have led us  to the

            same  conclusion  as  it  did  the  ALJ,  the  evidence   was

            sufficient to allow  a "reasonable mind" to  accept the ALJ's

            conclusion, and  we therefore have  no reason to  disturb the

            Secretary's decision.

                 The judgment is affirmed.
                                 ________

-8-