Ocasio Vazquez v. SHHS

Opinion

USCA1 Opinion

               February 15, 1994

                              UNITED STATES COURT OF APPEALS
                                   FOR THE FIRST CIRCUIT
                                    ___________________

No. 93-1861
                                  ANA L. OCASIO VAZQUEZ,

                                   Plaintiff, Appellant,

v.

                          SECRETARY OF HEALTH AND HUMAN SERVICES,

                                   Defendant, Appellee.

                                    __________________

                                       ERRATA SHEET

The opinion of this Court issued on February 9, 1993,
               is ammended as follows:

                    On cover sheet "February 9, 1993" should be corrected
                                   __________________
                    to read "February 9, 1993".
                             _________________

February 9, 1994    [NOT FOR PUBLICATION]

                              UNITED STATES COURT OF APPEALS
                                   FOR THE FIRST CIRCUIT

                                    ___________________

No. 93-1861
                                  ANA L. OCASIO VAZQUEZ,

                                   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

                                   Breyer, Chief Judge,
                              Selya and Cyr, Circuit Judges. 
                                             ______________

                                    ___________________

Juan A. Hernandez Rivera and Raymond Rivera Esteves  on
                    ________________________     _______________________
               brief for appellant.
                    Guillermo Gil, United States Attorney, Maria Hortensia
                    _____________                          _______________
               Rios, Assistant United States Attorney, and Robert J. Triba,
               ____                                        _______________
               Assistant Regional Counsel, Department of Health and Human
               Services, on brief for appellee.

__________________

                                    __________________

Per  Curiam.  Ana  L. Ocasio Vazquez  (claimant) appeals
                 ___________

            from a district court judgment  affirming the decision of the

            Secretary  of   Health   and  Human   Services  denying   her

            application  for disability benefits.  For the reasons stated

            below, we affirm.

                                      BACKGROUND

                 Claimant was born on September 25, 1946, and applied for

            benefits  when she  was forty  three years  old.   She has  a

            seventh grade education and does not  speak English.  Between

            1970 and 1988, she was employed as a sewing machine operator.

            In 1978, she suffered trauma to her left knee and underwent a

            left medial  meniscectomy.  She returned to  work but injured

            the  same knee  in 1982.   Claimant  continued to  work until

            March 15, 1988,  when pain in her left leg worsened.  She was

            hospitalized for several days and, thereafter, did not return

            to work.

                 On  February 2, 1990, claimant filed her application for

            benefits alleging that she  was disabled by phlebitis  in her

            left  leg,  sinusitis, headaches,  back  pains, and  nerves.1

            She claimed that she could not work because:

                 My  leg becomes  swollen and my  two legs  go numb.
                 The  backache and the  headaches are frequent.   At
                 night, I don't sleep much.   Before, I used to turn
                 the  house upside  down  [to  give  it  a  thorough
                 cleaning] but I can't do it anymore.

____________________

            1.  Phlebitis  is  inflammation  of a  vein.    See Dorland's
                                                            ___ _________
            Illustrated  Medical   Dictionary  1279   (27th  ed.   1988).
            _________________________________
            Sinusitis is inflammation of a sinus.  Id. at 1531.
                                                   ___

                                         -2-

The   Social   Security  Administration   denied   claimant's

            application initially and on reconsideration.

                 Claimant obtained a hearing before an Administrative Law

            Judge (ALJ)  on March 19,  1991.  She  was represented by  an

            attorney.  In addition to the claimant, a medical expert (ME)

            and a vocational expert (VE) testified.

                 At the hearing, claimant reiterated her claims about her

            leg and back conditions, as well as headaches.  She testified

            that her headaches are  relieved by medication, but  that the

            relief is  only temporary.   She also complained of  pain and

            numbness in her upper left shoulder, dizzy spells, and "teary

            and itchy"  eyes.  With respect to  her physical limitations,

            claimant testified that  she could not sit for  more than one

            half hour at  a time, that she  could not walk a  distance of

            more than  four or five  houses before pain  in her back  and

            legs caused  her to return  home, and that sometimes  her leg

            pain was so strong that she had to lie down.2   

                 The ME testified that claimant had only a very mild loss

            of  movement in  her  knee  and  suffered  from  "superficial

            phlebitis,  which   though   painful   when   occurring,   is

____________________

            2.  Although claimant testified  that she did not  think that
            she could work, she  also testified that she had not tried to
            find a job because:

                      I  don't feel capable.  I don't know what
                      kind of work to look for because nowadays
                      one  has  to  have  a  degree  to  get  a
                      comfortable job and I don't have it.

                                         -3-

inconsequential."3   He  concluded  that  "in  terms  of  her

            functioning, there isn't a great degree of limitation."  With

            respect to claimant's  back pain, the  ME testified that  her

            condition  "at no  time is  characterized as  abnormal."   He

            found  no  evidence  of  objective  neurological  pain.    In

            summation,  the  ME  testified  that  "[he  didn't]  see  the

            severity in any of the conditions that [claimant] mentioned,"

            even as a whole, and  that she should try to find a  job that

            did not involve repetitive foot movements.  

                 The VE  identified claimant's  former work  as a  sewing

            machine operator as light and  semi-skilled.  The ALJ posed a

            hypothetical to the  VE which assumed  that claimant can  sit

            for five  hours in an eight hour day;  can stand for three to

            four   hours  in  the  same  period;   can  lift  ten  pounds

            frequently, and twenty-five pounds occasionally; can pull and

            push with her hands, but  not make repetitive leg  movements;

            and can bend and squat  occasionally.4  The VE concluded that

            claimant  could not  do her  past  work as  a sewing  machine

            operator,  because it  required her  to  sit all  day and  to

____________________

            3.  The  ME  testified  that  "superficial  phlebitis  is  an
            inflammation  of the superficial  veins in  the legs  and the
            varicose veins,  as we commonly  know them are the  ones seen
            through the skins, they sometimes swell get reddish and could
            be very painful, but besides being temporarily uncomfortable,
            it is not a condition that's considered serious."  

            4.  The hypothetical also assumed that  claimant was somewhat
            limited in her ability to work at unprotected heights, around
            operating machinery, or in an  environment where she would be
            exposed to extreme changes in temperature.

                                         -4-

alternate  her legs frequently.  However, he identified three

            other jobs within the clothing industry--garment bagger, spot

            cleaner, and garment inspector--that  claimant could perform.

            In these  jobs, the VE  testified, claimant could  change her

            position at  will.  The  VE further  testified that  claimant

            could perform these jobs if she had mild pain.

                 The ALJ  found that  the combined  effect of  claimant's

            status post  left meniscectomy, status post  left superficial

            phlebitis,  and  sinusitis are  severe.   He also  found that

            claimant is  unable to perform  her past work.   However, the

            ALJ  concluded  that  claimant  has  the  residual functional

            capacity  to  perform within  sedentary  to light  exertional

            demands.5    The  AlJ   further  concluded  that   claimant's

            allegations of  left leg  and knee pains  do not  disable her

            from performing sedentary  to light work.   Finally, the  ALJ

            ruled that, based on the  testimony of the vocational  expert

            and application of the Grid, claimant is not disabled at step

            five of the sequential analysis because  there are other jobs

            that she can perform.  

____________________

            5.  The ALJ went on make  specific findings that claimant has
            the capacity:

                      to perform  the physical  exertion requirements  of
                      work except  for sitting over  five hours, standing
                      and walking over  three to four hours,  lifting and
                      carrying  over 10  pounds frequently and  25 pounds
                      occasionally,  performing  repetitive  actions with
                      her lower extremities  and exposure to  unprotected
                      heights, moving  machinery  or  abrupt  changes  in
                      temperature. 

                                         -5-

The  Appeals Council denied review.  An appeal was taken

            to  the  district court,  where a  magistrate-judge concluded

            that  the Secretary's decision  was supported  by substantial

            evidence.  The district court adopted the magistrate's report

            and recommendation.  This appeal followed.

                                   MEDICAL HISTORY

                 The  medical  record  is well-summarized  in  the  ALJ's

            report, and we  need only provide a brief overview  here.  In

            late February and early  March 1988, claimant saw  doctors at

            the State  Insurance Fund for  pain and swelling in  her left

            knee.  On March 21, 1988, claimant was hospitalized for these

            complaints.  A left leg venogram was negative for thrombosis,

            but  an x-ray indicated joint space narrowing compatible with

            osteoarthritis.  Claimant was prescribed an anti-inflammatory

            medication  and discharged on March 25, 1988.  At the time of

            discharge,  she was not experiencing leg discomfort and there

            were no restrictions on her activities.

                 After her release from the hospital, claimant  underwent

            further tests  and her  left leg condition  was diagnosed  as

            superficial  thrombophlebitis.  She  continued to be  seen by

            doctors at the State Insurance Fund for complaints of pain in

            her  left leg.   A  questionnaire completed  by her  personal

            physician,  Dr.  Justimo  Betancourt,  on   March  23,  1990,

            indicates that she  had difficulty walking  on her left  leg,

            but had no inflammation.   Dr. Betancourt also reported  that

-6-

claimant  had a history  of maxillary sinusitis  and that she

            had occasional dizzy spells.  

                 An internist evaluation  done by Dr. Isabel  Cestero, on

            March 30,  1990, noted that  claimant complained of  pain and

            numbness in her left leg, as well as swelling if she remained

            standing.  Laboratory  results for the left knee were normal,

            but  a back x-ray  indicated minimal  narrowing of  the lumbo

            sacral  spine at  L5-S1.   Tests revealed some  limitation in

            mobility in the left knee (0  -  100  out of a possible range

            of  0   -  120 ).     The  diagnosis  was  status  post  left

            meniscectomy and status post left superficial phlebitis.

                 On  September 21, 1990, Dr. Betancourt reported findings

            similar to those  he reported on March 23,  1990, although he

            also noted  left leg skin  changes with edema.   On September

            28,  1990, an  x-ray  of  claimant's  cervical  spine  showed

            straightening  secondary to muscle spasms, as well as minimal

            levoscoliosis. 

                                      DISCUSSION

                 On  appeal, claimant raises two issues.  First, claimant

            argues that  the ALJ failed  to give proper  consideration to

            her  subjective  complaints  of   disabling  pain.    Second,

            claimant  contends  that  the  ALJ's  conclusions  about  her

            physical exertional capacity are not supported by substantial

            evidence  because they were reached without any assessment of

            residual functional capacity by a physician.

-7-

With  respect to claimant's argument that the ALJ failed

            to properly  evaluate her claim  of subjective pain,  we note

            that  although  it   was  considered  and  rejected   by  the

            magistrate, it was not encompassed in claimant's objection to

            the magistrate's report.  It is well-settled in  this circuit

            that  a party  may not  obtain appellate  review of  an issue

            determined by a magistrate when  the party has failed to file

            a timely objection  to the magistrate's determination  of the

            issue as required by 28 U.S.C.    636(b).  See Thomas v. Arn,
                                                       ___ ______    ___

            474 U.S. 140, 147-48 (1985); Keating v. Secretary of Health &
                                         _______    _____________________

            Human  Services,  848 F.2d  271,  273  (1st Cir.  1988)  (per
            _______________

            curiam); Park  Motor Mart, Inc.  v. Ford Motor Co.,  616 F.2d
                     ______________________     ______________

            603, 605 (1st Cir. 1980).   Accordingly, the issue is waived.

We  add that even if  we were to  consider the issue, we

            would  disagree.  Claimant was questioned regarding her daily

            activities,   functional   restrictions,    medication,   and

            frequency  and  duration  of  pain  in  conformity  with  the

            guidelines set  out in Avery  v. Secretary of Health  & Human
                                   _____     ____________________________

            Services,  797 F.2d  19 (1st Cir.  1986).6   In light  of the
            ________

            lack of medical  evidence to suggest  an objective basis  for

____________________

            6.  Although  more  thorough   questioning  at  the   hearing
            regarding  claimant's   daily  activities  would   have  been
            preferable,  the   record  included  a   questionnaire  which
            elicited this information from her.  Claimant stated that she
            spent most of the time lying  down, but also stated that  she
            cooked occasionally and that she visited close relatives.

                                         -8-

disabling  pain, the ALJ, who observed claimant's demeanor at

            the hearing, was entitled to make a credibility determination

            regarding claimant's  pain, Da Rosa v. Secretary  of Health &
                                        _______    ______________________

            Human Services, 803 F.2d 24, 26 (1st Cir. 1986) (per curiam),
            ______________

            and  to conclude  that  her  pain did  not  disable her  from

            performing within sedentary to light exertional demands.  See
                                                                      ___

            Perez v. Secretary of Health  & Human Services, 958 F.2d 445,
            _____    _____________________________________

            448 (1st Cir. 1991) (per curiam).

                 The  ALJ's  finding  that  claimant   has  the  residual

            functional capacity to do sedentary to light work is slightly

            more  problematic, though we  ultimately conclude that  it is

            supported by substantial  evidence.  It is true  that we have

            held that an  ALJ is not qualified to  interpret "raw medical

            data" in functional terms.  See  Perez, 958 F.2d at 446.   We
                                        ___  _____

            have   also  stated,  however,  that  the  Secretary  is  not

            precluded   from  rendering   common-sense  judgments   about

            functional capacity based  on medical findings."   Gordils v.
                                                               _______

            Secretary of Health & Human  Services, 921 F.2d 327, 329 (1st
            _____________________________________

            Cir. 1990) (per curiam).      Here,  there  is   no  residual

            functional capacity analysis by an  expert in the record.  We

            find, however,  that the ALJ could make  a determination that

            claimant was not disabled for  the following reasons.  First,

            the impairments in the record appear to be  "relatively mild"

            in the  sense that the  reports show few symptoms  that would

            affect  ability to  do work.   See  Santiago v.  Secretary of
                                           ___  ________     ____________

-9-

Health  & Human  Services, 944  F.2d 1  (1st Cir.  1991) (per
            _________________________

            curiam).    Second,  the  ALJ's "common-sense  judgment"  was

            bolstered by the  testimony of a  medical expert that  "there

            isn't  a great degree of limitation" on claimant's functional

            capacity, that he "[did not] see  the severity" in any of the

            conditions she  mentioned, and  that claimant  should try  to

            find a job that did  not require her to make  repetitive foot

            movements.   Finally,  aside from  claimant's allegations  of

            disabling pain,  which we have  held the ALJ was  entitled to

            reject, the only other claimed limitation was an inability to

            sit or walk for an extended period of time.  The hypothetical

            posed to the VE by the ALJ  assumed the truth of this claimed

            limitation, and the VE identified  jobs that would permit her

            to alternate positions at will.

                 The judgment of the district court is affirmed.

-10-