Morales v. Secretary
Opinion
USCA1 Opinion
September 29, 1992 [NOT FOR PUBLICATION]
___________________
No. 92-1246
CARMEN MORALES,
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. Jose Antonio Fuste, U.S. District Judge]
___________________
___________________
Before
Breyer, Chief Judge,
___________
Campbell, Senior Circuit Judge,
____________________
and Cyr, Circuit Judge.
_____________
___________________
Francisco J. Hernandez-Rentas on brief for appellant.
_____________________________
Daniel F. Lopez Romo, United States Attorney, Jose Vazquez
_____________________ ____________
Garcia, Assistant United States Attorney, and Joseph E. Dunn,
______ _______________
Assistant Regional Counsel, Office of the General Counsel,
Department of Health & Human Services, on brief for appellee.
__________________
__________________
Per Curiam. Claimant, Carmen Morales, appeals from
__________
a district court decision affirming the denial of her
application for Social Security disability benefits for the
period between September, 1981 and December, 1986. Claimant
alleges mental and physical impairments. The Administrative
Law Judge (ALJ) concluded that, taken together, claimant's
impairments are severe and prevent her from performing her
past work as a cook, but would not preclude her from
performing a significant number of other jobs in the national
economy. We affirm.
BACKGROUND
__________
Claimant was born in 1944 and has a ninth grade
education. She worked as a cook in a school cafeteria until
September, 1981, when her disability allegedly commenced.
She has been unemployed since then. Claimant was granted
disability benefits by the Commonwealth of Puerto Rico
Retirement Systems Administration. Claimant filed an
application for Social Security disability benefits on August
2, 1985, alleging a "nervous condition." Subsequently, she
also alleged poor circulation and pain in her legs and feet.
Claimant's insured status expired on December 31, 1986.
Following denial of her application, claimant obtained a
hearing before the ALJ on October 5, 1987. Following
testimony by the claimant, Dr. Rafael Nogueras, a
psychiatrist, testified as a medical advisor at the request
-2-
of the ALJ. The ALJ concluded that "the combined effect of
claimant's musculoskeletal and mental components amount to a
severe impairment," but that, at the time her insured status
expired, claimant's impairment did not prevent her from
performing her past work as a cook. Therefore, the ALJ
concluded that claimant was not entitled to disability
benefits.
Claimant appealed the ALJ's decision to the district
court, which in an opinion dated July 19, 1989 remanded the
case on the ground that the ALJ gave inadequate consideration
to claimant's complaints of pain in her heels. The district
court faulted the ALJ for failing to properly apply the
guidelines set forth in Avery v. Secretary of Health and
___________________________________
Human Services, 797 F.2d 19 (1st Cir. 1986) for evaluation of
______________
residual functional capacity ("RFC") for subjective
complaints of pain.
On remand, the ALJ conducted a supplemental hearing on
February 8, 1990, at which both claimant and a vocational
expert ("VE") testified. In an opinion dated February 26,
1990, the ALJ modified his original findings and concluded
that claimant's RFC "is limited to a light work level of
exertion, of unskilled, simple nature where she can alternate
positions at will" and, therefore, claimant is unable to
perform her past work as a cook. Based upon the VE's
testimony on the local availability of a significant number
-3-
of jobs which claimant could perform, the ALJ again concluded
that claimant was not entitled to benefits. The Appeals
Council affirmed the ALJ's decision.
Claimant again appealed to the district court on the
ground that there was not substantial evidence to support the
Secretary's decision. The district court concluded that,
with respect to claimant's complaints of pain, the ALJ had
fulfilled the requirements of Avery. The district court
_____
admonished the ALJ, however, for complying with the letter
but not the spirit of the Avery decision and stated that it
_____
would prefer more specific findings supporting the ALJ's
reasoning. Concluding that the Secretary had substantial
evidence to support his finding that claimant was not
disabled, the district court affirmed the denial of benefits.
MEDICAL EVIDENCE
________________
A. Mental Impairment
_________________
The record contains medical reports prepared in
November, 1982 and December, 1983 by treating physicians in
connection with claimant's application for disability
benefits from the Puerto Rico Retirement System. The record
also includes reports from doctors at the Arecibo Mental
Health Center where claimant was treated, on and off, as an
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USCA1 Opinion
September 29, 1992 [NOT FOR PUBLICATION]
___________________
No. 92-1246
CARMEN MORALES,
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. Jose Antonio Fuste, U.S. District Judge]
___________________
___________________
Before
Breyer, Chief Judge,
___________
Campbell, Senior Circuit Judge,
____________________
and Cyr, Circuit Judge.
_____________
___________________
Francisco J. Hernandez-Rentas on brief for appellant.
_____________________________
Daniel F. Lopez Romo, United States Attorney, Jose Vazquez
_____________________ ____________
Garcia, Assistant United States Attorney, and Joseph E. Dunn,
______ _______________
Assistant Regional Counsel, Office of the General Counsel,
Department of Health & Human Services, on brief for appellee.
__________________
__________________
Per Curiam. Claimant, Carmen Morales, appeals from
__________
a district court decision affirming the denial of her
application for Social Security disability benefits for the
period between September, 1981 and December, 1986. Claimant
alleges mental and physical impairments. The Administrative
Law Judge (ALJ) concluded that, taken together, claimant's
impairments are severe and prevent her from performing her
past work as a cook, but would not preclude her from
performing a significant number of other jobs in the national
economy. We affirm.
BACKGROUND
__________
Claimant was born in 1944 and has a ninth grade
education. She worked as a cook in a school cafeteria until
September, 1981, when her disability allegedly commenced.
She has been unemployed since then. Claimant was granted
disability benefits by the Commonwealth of Puerto Rico
Retirement Systems Administration. Claimant filed an
application for Social Security disability benefits on August
2, 1985, alleging a "nervous condition." Subsequently, she
also alleged poor circulation and pain in her legs and feet.
Claimant's insured status expired on December 31, 1986.
Following denial of her application, claimant obtained a
hearing before the ALJ on October 5, 1987. Following
testimony by the claimant, Dr. Rafael Nogueras, a
psychiatrist, testified as a medical advisor at the request
-2-
of the ALJ. The ALJ concluded that "the combined effect of
claimant's musculoskeletal and mental components amount to a
severe impairment," but that, at the time her insured status
expired, claimant's impairment did not prevent her from
performing her past work as a cook. Therefore, the ALJ
concluded that claimant was not entitled to disability
benefits.
Claimant appealed the ALJ's decision to the district
court, which in an opinion dated July 19, 1989 remanded the
case on the ground that the ALJ gave inadequate consideration
to claimant's complaints of pain in her heels. The district
court faulted the ALJ for failing to properly apply the
guidelines set forth in Avery v. Secretary of Health and
___________________________________
Human Services, 797 F.2d 19 (1st Cir. 1986) for evaluation of
______________
residual functional capacity ("RFC") for subjective
complaints of pain.
On remand, the ALJ conducted a supplemental hearing on
February 8, 1990, at which both claimant and a vocational
expert ("VE") testified. In an opinion dated February 26,
1990, the ALJ modified his original findings and concluded
that claimant's RFC "is limited to a light work level of
exertion, of unskilled, simple nature where she can alternate
positions at will" and, therefore, claimant is unable to
perform her past work as a cook. Based upon the VE's
testimony on the local availability of a significant number
-3-
of jobs which claimant could perform, the ALJ again concluded
that claimant was not entitled to benefits. The Appeals
Council affirmed the ALJ's decision.
Claimant again appealed to the district court on the
ground that there was not substantial evidence to support the
Secretary's decision. The district court concluded that,
with respect to claimant's complaints of pain, the ALJ had
fulfilled the requirements of Avery. The district court
_____
admonished the ALJ, however, for complying with the letter
but not the spirit of the Avery decision and stated that it
_____
would prefer more specific findings supporting the ALJ's
reasoning. Concluding that the Secretary had substantial
evidence to support his finding that claimant was not
disabled, the district court affirmed the denial of benefits.
MEDICAL EVIDENCE
________________
A. Mental Impairment
_________________
The record contains medical reports prepared in
November, 1982 and December, 1983 by treating physicians in
connection with claimant's application for disability
benefits from the Puerto Rico Retirement System. The record
also includes reports from doctors at the Arecibo Mental
Health Center where claimant was treated, on and off, as an
out-patient from January, 1983 through February, 1986. In
addition, the record contains reports from claimant's
-4-
treating psychiatrist, Dr. Llado, and from three consulting
psychiatrists who examined claimant, Dr. Mojica, Dr. Guillen
and Dr. Toro. Finally, the record contains the testimony of
the medical advisor, Dr. Nogueras, a non-examining consulting
psychiatrist who reviewed the claimant's medical records.
In a November, 1982 report, based on monthly
examinations since September, 1981, the examining physician
reported that claimant complained of "insomnia, agitation and
crying spells, apparently without reason." The diagnosis was
"anxiety neurosis with depression." There is no indication
that medication was prescribed for this condition.
The first report from the Arecibo Mental Health Center,
dated January, 1983, describes claimant's symptoms as
follows: "frequent headaches, asphixiation, shortness of
breath, pain in the side of the heart. Says that when she
tries to speak in places where there are groups of people,
she feels her mouth trembles. Cries frequently . . .
Forgetful. Starts screaming because she develops
nightmares." The diagnosis is "anxiety disorder with
depressive traits." The report recommends medical evaluation
and individual therapy.
Subsequent reports from the Mental Health Center visits
for February, April, May and August indicate that the
claimant reported that "the medication" (unspecified) helps
her. In September, 1983, claimant said that the treatment
-5-
had been helping her. In November, 1983, claimant was
discharged from the Center because she indicated that she
wished to continue treatment with a private psychiatrist.
In August, 1984, claimant returned to the Center to
continue treatment. In September, 1984, she "appeared
anxious and depressed. Cried during the interview." In
March, 1985, the report indicates that claimant said she felt
"fair" and that the medication that helped her most was
"Tranxene 7.5 mg HS." In June, 1985, she said that the
medication still helped her, but that after she stopped
taking hormones prescribed following her recent hysterectomy,
she developed "flushes" and became nervous. In September,
1985, claimant reported that "sometimes she starts screaming
without any reason" and that she now takes her medication
twice a day. The report from the claimant's November visit
indicates that "on some days she feels better, others she
feels worse," that she still takes her medication twice a day
and that it helps her. The report from her December, 1985
visit indicates that she "appears depressed." Claimant
indicated that she "feels controlled only with the use of the
medication" and that she "doesn't tolerate being in groups of
people, tends to isolate herself." Finally, in her last
visit (February 1986) to the center during the relevant
period, claimant stated that she felt "fair" but that her
application for Social Security benefits caused her to feel
-6-
nervous. She also complained of "tachicardia" and that her
heart "trembles." Claimant indicated that the medication
helps her.
On August 27, 1985, claimant was examined by Dr. J. A.
Mojica Sandoz, a psychiatrist, for the purpose of evaluating
her eligibility for Social Security disability payments. At
the interview, claimant admitted upon questioning to
experiencing "insomnia, headaches, dizzy spells and moments
of easy irritability." She reported that she was taking
Tranxene 7.5 at bedtime but that "they don't do anything to
me." The report also indicated that claimant was taking
analgesics. Claimant reported that she lives with her
employed husband and teenage son and that she does the
household chores (except for the shopping).
Dr. Mojica reported that he "could not detect anything
remarkable regarding her attitude or behavior. She answered
every question asked." He added that "she was slightly
anxious and tense" and that "the affectivity prevailing
during the examination was of a depressive nature," but that
she was "accessible, cooperative and frank. . . The progress
of her thought was of a normal tempo. She was spontaneous
and expressed herself in a logical, lucid, coherent and
relevant form." She did not exhibit any difficulty with
establishing interpersonal relations. Her "capacity for
remote, intermediate and recent memory was adequate." She
-7-
was normally oriented in time, place and person. Her
capacity for judgment was "adequate," and she was "mentally
competent to handle her funds in an adequate and rational
manner." Dr. Mojica's diagnosis was of a mild dysthymic
disorder. The secondary diagnosis was of a histrionic
personality disorder.
The first report of Dr. Victor J. Llado, claimant's
treating psychiatrist, is dated September 3, 1985. Claimant
had been receiving psychiatric treatment from Dr. Llado since
October, 1983. Dr. Llado describes claimant's symptoms as
follows: "a combined picture of depressive states and anxiety
attacks, including mild-to-moderate insomnia, overall feeling
of nervousness, sadness, tiredness, and aloofness." Claimant
reported to Dr. Llado that she stays home most of the day,
doesn't handle any money and has handed over all
responsibilities to family members. She denied "doing any
chores or engaging in any tasks or meaningful activities at
home." (In contrast to Dr. Llado's picture of inactivity
however, was claimant's own description of functions in her
August 1985 application where she said she took care of
household chores, did the cooking, went shopping with her
husband, and did some gardening.)
Dr. Llado's report contains the following description of
claimant's mental status: "The claimant was alert, well
oriented as to time, place, and person"; "The claimant's
-8-
social judgment and reality testing seemed intact"; "The
claimant's thought processes were intact"; "The content was
appropriate, relevant, simple, scanty, but commensurate with
the claimant's socio-demographic characteristics." There was
no evidence of perceptual disturbances or memory deficits.
Dr. Llado reported that claimant wept from time to time
during the meeting and evidenced a "mild-to-moderate level of
psychomotor retardation" and "easy distractibility with poor
concentration throughout the meeting."
Dr. Llado diagnosed claimant as having a chronic, severe
generalized anxiety disorder. The doctor concluded that
"claimant's emotional condition is rather severe" and that
the prognosis is poor. In his opinion, claimant's emotional
condition, including a "poor sense of self," seriously limits
the claimant and makes her very vulnerable to the ordinary
stresses of employment. He felt she could not "meet the
occupational and performance levels demands of a regular
competitive job market."
Dr. Llado's second psychiatric report is dated March 25,
1986. ( He saw claimant four times during the intervening six
months between his first and second reports.) The symptoms
remained the same: "tiredness, insomnia, mild crying spells,
feeling sad and lonely, and overall emotional dependency."
Dr. Llado reported that he had been treating claimant with
Xanax 1 mg. h.s.p.o. and psychotherapy. Claimant's daily
-9-
activities remained limited: "The claimant tends to avoid
responsibilities assuming a passive-dependent posture at
home." The report added that "most tasks and chores are
performed by others" and that "decision making within the
family is done with little or no participation by claimant."
The report described claimant's mental state in similar
terms as Dr. Llado's previous report, but added that "the
claimant seemed very anxious, easily startled, complaining of
inability to relax, dry mouth, and restlessness." The
diagnosis remained the same as the previous report. In his
discussion of the diagnosis, however, Dr. Llado stated that,
in addition to a poor sense of self, claimant suffered from
"concretist thinking, simplistic behavior, labile affect, and
easy irritability." He concluded that "the excessive anxiety
and extreme degree of social isolation have created a poor
tolerance for stress and inability to relate well to others."
On February 2, 1986, claimant was evaluated by Dr. Juan
A. Guillen, an examining physician. She complained that she
constantly felt like crying, that she did not want to see
people or to be there and that she wants to work. Her
husband reported that she screams at night, that everything
irritates her and that she has to be supervised in taking her
medications. She was being treated with Tranxene 7.5 mg.
H.S. She did, however, visit with neighbors and within the
family.
-10-
Dr. Guillen described claimant as possessing psychomotor
retardation, but adequate motor coordination. He reported
that she was cooperative and established a rapport with him
during the evaluation, although it was not spontaneous. She
did not respond to the doctor's initial greeting, avoided
visual contact, answered only some of his questions and cried
during the interview when talking about her complaints. The
report then described claimant as sad, with slow speech, but
as possessing "adequate association of ideas, the sequence
was logical, coherent and relevant." Dr. Guillen reported
that claimant's affect was "appropriate to the content of her
thoughts. She was alert, with adequate attention, in contact
with reality. She was oriented in person and place,
partially in time. Her memory for past events, recent and
immediate were adequate."
The record also contains a psychiatric report by Dr.
Toro dated February 7, 1987, more than a month after
claimant's insured status expired. Claimant reported that
she was seeing Dr. Llado each month and taking the following
medications: Tranxene 3.75 mg. 1 A.M., Tranxene 15 mg. 1 hs.
The report stated that claimant's "response to treatment has
been good." The claimant described a life of relative
isolation, leaving her home only for her medical
appointments, and inactivity, helping some with household
-11-
chores. Claimant reported a decreased ability to do simple
tasks and a decreased tolerance to stress.
Dr. Toro described claimant's behavior during the
examination: "She cried frequently during the interview. . .
Her eyes had a sad expression. She did not make good eye
contact. Her look was directed towards the wall and the
floor. Her speech was spontaneous and she spoke in a whining
tone of voice." The report concluded that claimant was
"coherent, logical and relevant and associated well in her
ideas. . . Her behavior was cooperative." It also found that
claimant "seemed to be preoccupied," looked sad, acted
depressed and anxious. "She was oriented in person, in place
and not oriented in time as she did not even know the year."
Dr. Toro described claimant's remote memory as deficient,
though not her short term or recent memory. He found her
attention span to be adequate, but her concentration
deficient. The diagnosis was dysthymic disorder with
anxiety.
On February 18, 1987, Dr. Luis Sanchez Raffuci, a
psychiatrist, completed a Psychiatric Review form and a
Mental Residual Functional Capacity Assessment form based
upon his examination of claimant's medical records. He
concluded that claimant suffered from an "affective disorder"
characterized by "depressed mood, poor motivation, somatic
preoccupations and diminished concentration." Dr. Sanchez
-12-
determined that the severity of claimant's impairment did not
meet or equal the ones listed in 20 C.F.R. Part 404, Subpart
P, Appendix 1 and did not prevent her from performing
substantial gainful activity.
Dr. Sanchez' assessment of claimant's mental functional
capacity was that claimant's ability to remember detailed
instructions was moderately limited by her depressed mood and
diminished concentration, but that the other functions in the
"understanding and memory" category were preserved. He
reported that she was markedly limited in her "ability to
carry out detailed instructions," and moderately limited in
her ability to "maintain regular attendance and complete a
normal work week without interruptions." In terms of "social
interaction," Dr. Sanchez determined that most functions were
preserved, but that her depressed mood and poor motivation
moderately limited her "ability to interact appropriately
with the general public and the ability to respond
appropriately to criticisms from supervisors." In the
"adaptation" category, all claimant's functions were
preserved.
At the first hearing before the ALJ, Dr. Nogueras
summarized the claimant's medical records and gave his
opinion of claimant's condition. He noted that although Dr.
Llado's September, 1985 report diagnosed claimant as having a
"severe and chronic" condition, Dr. Llado's description of
-13-
claimant's mental state was of a condition that was only
"slight to moderate" in intensity. Dr. Nogueras referenced
the list of claimant's adequate functioning factors included
in Dr. Llado's report. In response to questioning by the
ALJ, Dr. Nogueras concluded that claimant suffered from a
dysthymic disorder of moderate intensity. He added that the
condition has worsened over the relevant period, increasing
from slight to moderate intensity. On cross examination, Dr.
Nogueras confirmed that claimant's mental condition did not
meet or equal the mental impairments included in the
Secretary's Listing. He stated that claimant's crying spells
during the interviews implied an emotional variability which
"if this was her usual behavior in a work environment" might
present an obstacle in terms of her job performance.
The record also includes a letter from Dr. Elias Jimenez
Olivo, dated February 17, 1990 and submitted at the time of
the supplemental hearing. Dr. Jimenez' treatment of claimant
began on November 14, 1987, almost one year after claimant's
insured status had expired. He concluded that claimant's
symptoms "are compatible with a diagnosis of Chronic
Dysthymic Disorder" and that she was taking the following
medication: Limbitrol 10-25 H.S. and Elavil 10 mgs. bid. Dr.
Jimenez' opinion was that claimant was "not fit to engage in
any type of sustained and substantial gainful activity."
B. Physical Impairment
___________________
-14-
Claimant's 1985 application for disability benefits did
not base disability on any physical problems. A nervous
condition alone was described as the disabling condition. In
claimant's Reconsideration Disability Report dated February,
1986, however, she reports that since 1981, she has had a
"leg problem with bad circulation, and 'espuelones' in both
feet" and that she "can't stay too long standing or walking."
In March, 1980, claimant consulted doctors at the State
Insurance Fund (SIF) regarding pain in her right lower leg
and foot and numbness in her middle toe, which she had been
experiencing intermittently over the past four to five years.
Laboratory tests and x-rays of the right leg and foot were
normal. Claimant apparently returned to the SIF doctors in
July, complaining of pain in her right leg, including her
knee. She was referred to Dr. Rolando Colon Nebot, an
orthopedist. All tests indicated that the leg was normal and
found no evidence of osteoarthritis and no edema or effusion
of claimant's right knee and range of motion within normal
limits.
In the reports prepared in connection with claimant's
application for state disability benefits, claimant was
diagnosed first with arthritis in her right knee and
circulation problems, by Dr. Valazquez, who treated claimant
between October, 1978 and March, 1980. A second report was
prepared by a doctor (name illegible) who treated claimant
-15-
from September, 1981 through November, 1982 for "pain in both
heels." The diagnosis was of bilateral calcaneus spurs.
That report stated that the "condition does not improve with
the use of prosthetic shoes nor with the injection of
steroids or analgesics, only improvement is with rest." The
physician noted that the claimant "can't remain standing over
1/2 hour continuously due to the pain in the heels."
Finally, Dr. Coker reported that he treated claimant from
August, 1982 through November, 1982. The diagnosis was also
of calcaneal spurs in both heels. Dr. Coker reported
prescribing analgesics and recommending weight loss. There
was "no improvement" in response to the treatment.
Dr. Sandoz's psychiatric report indicated that claimant
complained of "pains in both lower extremities." Claimant
added that "those pains started very slowly and gradually
they increase in intensity. I feel pains in my legs and then
I began to feel dizzy spells especially when I am in crowded
places." Dr. Sandoz reported that claimant's "gait was
normal" when he met with her on August 27, 1985.
Dr. Llado's first report indicated that "claimant
allegedly developed an emotional condition as a result of a
work-related accident in 1981 when she developed edema of
legs due to standing too long as a dining room worker." He
noted that claimant had complained of "persistent, severe leg
pains, secondary to phlebitis treated by Dr. Labad."
-16-
The record includes a report by Dr. Miguel A. Marrero
Bonilla, an orthopedic surgeon, who examined claimant on July
31, 1986 at the request of the Disability Determination
Services. The report indicated that claimant feels pain in
her heels when she stands up or walks long distances. Based
upon his physical examination of claimant, Dr. Bonilla
reported that claimant, who "has marked obesity," walks
normally but "sits and squats with difficulty on account of
the obesity." He further reported that she had good range of
motion in her hips, knees and ankles. The report concluded
as follows: "The patient has calcaneal spurs in both heels.
X-rays showed in the right os calcis. There is good R.O.M.
of the right knee. No swelling."
At the supplemental hearing on remand, the ALJ
questioned claimant about the pain in her legs. She
testified that it began in the right leg but later spread to
both legs, and emanates from her feet to her hips. Claimant
stated that she was taking Motrin 800 and Flexeril, as
prescribed by Dr. Soberal, her treating physician. The ALJ
also questioned claimant about her daily activities. She
stated that she cooks, with her daughter's help, and washes
clothes.
Miguel A. Pellicier, a VE, also testified at the
supplemental hearing. He stated that claimant's former job
as a cook was "medium" in terms of physical demand, involving
-17-
constant standing and walking. It was a skilled job, but at
a low level. The ALJ asked the VE to assume that claimant
only has the residual mental capacity for simple non-skilled
work, but that she is capable of paying attention and
concentrating. The ALJ further assumed that claimant's pain
in her legs prohibits her from being on her feet all day and,
therefore, that she is limited to light work which permits
her to alternate positions at her discretion.
Given those assumptions, the VE concluded that claimant
could perform the following jobs: garment folder, garment
bagger, garment turner, classifier of cut pieces. Mr.
Pellicier testified that these jobs exist in the national and
local economy. He further stated that other jobs exist which
claimant could perform, even if she was required to do
sedentary work. In response to the ALJ's questioning, Mr.
Pellicier stated that, in general, pain which is severe and
frequent affects one's capacity to concentrate and pay
attention to tasks performed.
DISCUSSION
__________
On appeal, claimant argues that the Secretary's decision
is not supported by substantial evidence. Claimant further
contends that her due process rights were violated because
the ALJ failed to follow the proper procedures with respect
to the following: 1) the evaluation of her disability under
the steps set forth in 20 C.F.R. 404.1520 (1991), 2) the
-18-
evaluation of complaints of pain required by Avery v.
_________
Secretary of Health and Human Services, 797 F.2d 19 (1st Cir.
______________________________________
1986), and 3) the procedure for evaluating mental impairments
set forth in 20 C.F.R. 404.1520(a).
The Social Security Act establishes the following
standard of review in this case: "[t]he findings of the
Secretary as to any fact, if supported by substantial
evidence, shall be conclusive, . . ." 42 U.S.C. 405(g).
Therefore, the Secretary's decision to deny claimant
disability payments in this case must be affirmed "if a
reasonable mind, reviewing the evidence in the record as a
whole, could accept it as adequate to support his
conclusion." Rodriguez v. Secretary of Health & Human
_______________________________________________
Services, 647 F.2d 218, 222 (1981).
________
The ALJ correctly followed the sequential steps set
forth at 20 C.F.R. 404.1520. He first found that the
claimant had not worked since September, 1981. Second, he
determined that the combined effect of claimant's mental and
physical impairments amounted to a severe impairment. The
ALJ next concluded that claimant did not have an impairment
or combination of impairments that meets or equals the
impairments listed in Appendix 1, Subpart P of the Social
Security Regulations. Fourth, he found that claimant's
impairments prevented her from performing her past relevant
work as a cook. Claimant does not dispute any of the
-19-
above findings. She takes issue, however, with the ALJ's
finding at step five of the sequence, that her impairments do
not prevent her from performing any other work in the
national economy. Specifically, the ALJ found that claimant
had the RFC, physically, to perform light work which allows
her to alternate positions at will. He further found that
claimant had the REC, mentally, to perform work of an
"unskilled, simple nature."
Considering claimant's age at the time that her
insurance expired (42 years), her limited education and her
lack of acquired work skills which are transferable to
skilled or semi-skilled employment, the ALJ found that "there
are a significant number of jobs in the national economy
which [claimant] could perform." The ALJ was assisted in
this determination by Rule 202.18, Table No. 2, Appendix 2,
Subpart P of the Social Security Regulations and by the
testimony of a VE. The ALJ concluded that the claimant was
not disabled within the meaning of the Social Security Act at
any time through December 31, 1986, the date on which
claimant's insured status expired.
The ALJ's findings are supported by substantial
evidence. First, the ALJ's determination that claimant had
the RFC, mentally, to perform unskilled work of a simple
nature is supported by the record. Social Security Rule No.
-20-
85-15 describes the mental demands of unskilled work as
follows:
the abilities (on a sustained basis) to understand,
carry out, and remember simple instructions; to respond
appropriately to supervision, coworkers, and usual work
situations; and to deal with changes in a routine work
setting.
Although there is conflicting evidence on the effect of
claimant's mental impairment on her functional capabilities,
the resolution of such conflicts is for the ALJ. See, e.g.,
_________
Rodriguez v. Secretary of Health & Human Services, 647 F.2d
___________________________________________________
at 222. The records of claimant's treatment at the Arecibo
Mental Health Center from 1983 through 1986 indicate that her
medication, Tranxene 7.5 mg., helps alleviate claimant's
symptoms of anxiety and depression. Dr. Mojica found the
claimant to be accessible, cooperative and frank. She was
"spontaneous and expressed herself in a logical, lucid
coherent and relevant form." Her capacity for memory and
judgment were adequate and she was competent to handle her
funds rationally.
Dr. Llado described his patient as alert, well-oriented,
with social judgment, reality testing and thought processes
"in tact". Dr. Guillen's examination of claimant yielded a
report of adequate motor coordination, association of ideas,
attention and memory. He described claimant as alert, "in
contact with reality", and oriented in person and place. Dr.
Toro found that claimant's "response to treatment has been
-21-
good." He described her as "coherent, logical and relevant
and associated well in her ideas. Her behavior was
cooperative." He determined that her short-term and recent
memory and her attention span were adequate. Dr. Sanchez
concluded that the severity of claimant's mental impairment
"doesn't meet or equal the listings and doesn't preclude
[substantial gainful activity]."
To be sure, as recounted earlier, there was
conflicting evidence. In particular, both of claimant's
treating psychiatrists expressed doubt regarding claimant's
ability to meet the demands of ordinary, gainful employment.
Dr. Llado was concerned that claimant's emotional condition
made her very vulnerable to the ordinary stresses of
employment. Dr. Jimenez, based upon his treatment of
claimant between November, 1987 and February, 1990, concluded
that she "is not fit to engage in any type of sustained and
substantial gainful activity."
The record taken as a whole, however, provides
substantial evidence to support the ALJ's conclusion that
claimant is capable of performing work of an unskilled,
simple nature. It was within the ALJ's discretion to
determine that, despite the moderate limitations upon certain
of claimant's functional abilities, the mental demands of
simple work are within her capabilities. Given the support
for this conclusion in the record, the ALJ was entitled to
-22-
reject the contrary opinions of Dr. Llado and Dr. Jimenez.
Dr. Nogueras testified that Dr. Llado's diagnosis of a
"severe and chronic condition" was contrary to his
description of a condition that was only slight to moderate
in intensity. Dr. Jimenez' opinion that claimant was not fit
to work was unaccompanied by medical analysis and was based
on treatment which began after claimant's insured status had
expired.
At the October, 1987 hearing before the ALJ, Dr.
Nogueras stated that if the reports of frequent crying
contained in the record represent claimant's "normal behavior
in a work environment," this could present an obstacle to
claimant's ability to perform a job. The ALJ did not
include this characteristic, however, in describing claimant
to the VE at the February, 1990 hearing. Although there was
conflicting evidence, the ALJ's apparent conclusion that
frequent crying would not be claimant's ordinary behavior in
a work environment is supported by the record.
In her 1985 Disability Application, claimant describes
a fairly active routine, including household chores, cooking,
shopping with her husband and some gardening. This suggests
that claimant was not incapacitated by her crying spells.
The report of her behavior at the original interview with the
Social Security Administration in 1985 does not indicate that
claimant cried. In all of her visits to the Arecibo Mental
-23-
Health Center from January, 1983 through February, 1986,
claimant is reported to have cried only during her September,
1984 visit. Finally, at her August, 1985 appointment with
Dr. Mojica, claimant is not reported to have cried.
Second, the ALJ's conclusion that claimant is capable of
a light work level of exertion provided that she can
alternate positions at will is also supported by substantial
evidence. The medical records are consistent in their
diagnosis of calcaneal spurs in claimant's heels. Taking
account of this diagnosis and claimant's complaints that she
feels pain in her heels when she stands up or walks long
distances and that she is unable to stand for more than one-
half hour at a time, the ALJ indicated that claimant cannot
perform the full range of light work and must be permitted to
alternate positions at will. The VE testified that jobs
existed in the national and local economy for a person with
claimant's limitations. The VE further testified that even
if claimant was limited to sedentary work, there were jobs
that she could perform in the national and local economy.
Avery v. Secretary of Health and Human Services, 797
___________________________________________________
F.2d 19 (1st Cir. 1986) interprets the Social Security
Administration's current policy as requiring that "when there
is a claim of pain not supported by objective findings, the
adjudicator is to 'obtain detailed descriptions of daily
activities by directing specific inquiries about the pain and
-24-
its effects to the claimant, his/her physicians from whom
medical evidence is being requested, and other third parties
who would be likely to have such knowledge.'" Avery. 797 F.2d
_____
at 23. This directive has been satisfied in this case.
At the February, 1990 hearing, claimant was questioned
about her former employment and she described in detail the
tasks that she performed. She also described her symptoms of
pain. The ALJ questioned claimant about her daily
activities, when she began to be treated for her pain, the
location and severity of the pain, and how the location and
severity of the pain had changed over time. The medical
records include reports containing descriptions by claimant
of her pain and the ways in which it limits her activities.
The ALJ considered these reports, but also noted that
the objective medical evidence was inconsistent with a
finding of disabling pain. The examination by Dr. Marrero,
an orthopedist, "has not shown the presence of any swelling,
inflammation or marked range of motion limitation of right
knee" the ALJ reported in his February, 1990 opinion. He
further noted that "[t]he claimant was treated with
analgesics which does not show the presence of any disabling
pain." Finally, he noted that claimant was "not observed in
any pain" and that she reported involvement in daily chores,
including cooking and shopping. These findings are
substantially supported by the record as a whole.
-25-
The ALJ found the claimant's complaints credible only
"to the extent that [claimant] is limited to a light work
level of exertion." This credibility determination is
entitled to deference. Frustaglia v. Secretary of Health and
_____________________________________
Human Services, 829 F.2d 192, 195 (1st Cir. 1987). The ALJ,
______________
taking account of the diagnosis of calcaneal spurs,
determined that claimant was further limited because "it is
not advisable that she stays walking or standing for
prolonged periods." The ALJ's efforts to obtain information
about claimant's subjective complaints of pain and his
consideration of those complaints were sufficient to satisfy
the Avery standard. See Berrios Lopez v. Secretary of HHS,
_____ ___ __________________________________
951 F.2d 427, 429 (1st Cir. 1991) (ALJ adequately considered
___
claimant's subjective complaints of pain where he relied upon
diagnosis of mild effusion with no edema and good range of
motion in all joints and observation that claimant did not
appear to be in pain at the hearing, but gave "some credence
to her complaints . . . and [found] that the range of light
work she is able to perform is somewhat narrowed.")
CONCLUSION
__________
The ALJ's decision is supported by substantial evidence.
The medical records of the examining psychiatrists, and the
testimony of the medical advisor, support the ALJ's
determination that claimant's mental impairment does not
preclude her from performing work of an unskilled, simple
-26-
nature. The medical evidence also supports the ALJ's finding
that claimant is limited to light work in which she can
alternate positions at will. The ALJ adequately considered
claimant's subjective complaints of pain in determining her
RFC. Finally, the VE's testimony that a significant number
of jobs exist in the national economy which meet the
claimant's requirements provides substantial support for the
ALJ's decision that claimant was not "disabled" under the
Social Security Act. There is no merit to the appellant's
claims that the ALJ failed to follow the proper procedures in
evaluating her disability and her complaints of pain.
Affirmed.
________
-27-
Morales v. Secretary, (1st Cir. 1992).
Morales v. Secretary (Morales v. Secretary) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.
Related
Maria S. Rodriguez v. Secretary of Health and Human Services
647 F.2d 218 (First Circuit, 1981)
14 soc.sec.rep.ser. 301, unempl.ins.rep. Cch 16,883 Ernest S. Avery v. Secretary of Health and Human Services
797 F.2d 19 (First Circuit, 1986)
Joseph T. FRUSTAGLIA, Plaintiff, Appellant, v. SECRETARY OF HEALTH AND HUMAN SERVICES, Defendant, Appellee
829 F.2d 192 (First Circuit, 1987)
Paulina Berrios Lopez v. Secretary of Health and Human Services
951 F.2d 427 (First Circuit, 1991)
§ 404.1520 — Evaluation of disability in general.
20 C.F.R. § 404.1520