Rios Vazquez v. SHHS

• Court: Court of Appeals for the First Circuit
• Decided: January 23, 1995
• Docket: 94-1793
• Status: Published

Opinion

USCA1 Opinion

January 23, 1995        [NOT FOR PUBLICATION]
                            UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT

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No. 94-1793

LUIS A. RIOS 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. Jaime Pieras, II, Senior U.S. District Judge]
                                         __________________________

                                 ____________________

                                        Before

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

                                 ____________________

            Juan R.  Requena Davila and Juan  A. Hernandez Rivera on brief for
            _______________________     _________________________
        appellant.
            Guillermo  Gil,  United  States  Attorney,  Maria Hortensia  Rios,
            ______________                              _____________________
        Assistant  United States  Attorney, and  Eileen M.  Cedrone, Assistant
                                                 __________________



Regional Counsel,  Region I, Department of Health  and Human Services,
        on brief for appellee.

____________________

                                 ____________________
                 Per Curiam.    Luis A.  Rios-Vazquez (claimant)  appeals
                 __________

            from a district court judgment affirming the decision of  the

            Secretary  of   Health  and   Human   Services  denying   his

            application for disability benefits.  For the reasons  stated

            below, we affirm.

                                          I.

                 Claimant  was born  on  May 23,  1945,  and applied  for

            benefits when he was forty-four years old.  He has an  eighth

            grade  education.   In 1977,  while working  in Chicago  as a

            crane operator, he lifted a  steel object and became "stiff."

            After  two more similar episodes, he was diagnosed in 1979 as

            having a  herniated disc and  underwent surgery on  April 18,

            1979.   He was allowed  to return  to work  on September  24,

            1979,  although he continued to  experience some leg and back

            pain.   In 1981, claimant  returned to Puerto  Rico and began

            working as a truck driver.  His back pain worsened  from time

            to time, especially when  he drove for long periods  of time.

            He also suffered  pain and  numbness in the  legs.   Claimant

            ceased  working on February 26,  1989, and he  has not worked

            since then.  He is insured at least through March 11, 1991. 

                 On February 28, 1990, claimant filed an application  for

            disability  benefits alleging  disability since  February 26,

            1989 due  to back pain  and "frequent  loss of balance."   He

            claimed that  his doctors  had  prohibited him  from  lifting

            anything heavy.  Asked  to describe his daily activities,  he

            stated  that  he kept  the area  surrounding his  home clean.



Other activities included driving his car, reading the bible,

            visiting relatives, and going to church.  The Social Security

            Administration denied  claimant's application initially.   On

            June  25,  1990, claimant  requested  reconsideration stating

            that  his  pain had  worsened and  that  his nerves  had been

            affected.       Claimant's   application   was    denied   on

            reconsideration.

                 Claimant obtained a hearing before an Administrative Law

            Judge (ALJ) on February 11,  1991.  He was represented by  an

            attorney.  At the hearing, claimant  testified that he ceased

            working as a truck driver because  of his back or waist pain.

            He described the pain as pretty severe, sometimes causing him

            to  loose control  of  his  leg.    Although  he  takes  pain

            medication, it  does not provide  full relief.   He testified

            that he can take of his personal needs, and that  he attempts

            to help his wife with the wash.  In addition,  he visits with

            company,  reads  a  little, and  goes  to  church.   He  also

            testified that  he began  seeking mental health  treatment in

            July 1990 because he "felt nervous."  

                 The  ALJ found  that  although  claimant has  discogenic

            disease  at  L4-L5,  he  does   not  have  an  impairment  or

            combination of  impairments equivalent  to one of  the listed

            impairments.    He also  found  that  claimant is  unable  to

            perform his past relevant work, which required heavy lifting,

            but that  claimant has  the residual functional  capacity for

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the full range  of light  work.  With  respect to  claimant's

            alleged mental condition, the ALJ found that claimant has not

            presented a severe mental impairment which can be expected to

            last at least  twelve months.   Finally, the  ALJ ruled  that

            based on claimant's capacity  for light work, as well  as his

            age,  education,  and work  experience,  the  Grid directs  a

            conclusion of not disabled.   The   Appeals   Council  denied

            review.   An appeal was taken to  the district court, where a

            magistrate-judge (magistrate) concluded that  the Secretary's

            decision was supported by substantial evidence.  The district

            court adopted  the  magistrate's report  and  recommendation.

            This appeal followed.  

                                         II.

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

            the magistrate's  reports, and we  need only provide  a brief

            overview  here.   On  April  18, 1979,  claimant  underwent a

            partial  hemilaminectomy of L4  on the left  with excision of

            L4-5  disc.     Approximately  five  months   later,  he  was

            sufficiently  improved to  return  to work,  although he  was

            limited temporarily  to lifting thirty pounds.   He continued

            to feel back  pain and was fitted with a  flexion jacket.  He

            was also advised to continue light work and exercise.  

                 There is a gap in the medical record between August 1980

            and  August  1988.    On  August  26,  1988,  claimant  began

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treatment with Dr. Victor  Burgos for lower back pain.1   Dr.

            Burgos  diagnosed  claimant  as  suffering   from  discogenic

            disease, osteoarthritis,  and muscle spasms.   He  prescribed

            various   medications   for  claimant,   including  meclomen,

            voltaren, and norflex.  

                 Between January  1989 and June 1990,  claimant underwent

            physical therapy with Dr.  Oscar Arroyo-Nieves.  He diagnosed

            claimant as suffering from lumbar  radiculopathy, status post

            laminectomy,  degenerative joint  disease, and  chronic lower

            back pain.  

                 On  May 6, 1990,  claimant was examined  by a consulting

            neurologist, Dr. Nilda  De Jesus Pla.   The motor examination

            revealed that claimant walks dragging his right leg, but  has

            good strength in  the upper  and lower extremities.   Dr.  De

            Jesus Pla did not observe atrophy or abnormal movements.  Her

            examination  of claimant's  vertebral column  revealed marked

            spasms in the paravertebral region, as well as mild spasms in

            the posterior region  of the right thigh.   A range of motion

            examination  disclosed that  claimant's  forward  bending  is

            limited  to forty-five  degrees.   An  x-ray report  showed a

____________________

            1.  A C.T. scan of claimant's spine, reported  by Dr. Burgos,
            showed degenerative  changes at  the lumbo sacral  spine with
            decreased intervertebral  disc space at L4-L5  and bulging of
            the annulus  fibrosus at L4-L5.   It also  revealed segmental
            calcifications   at   the   outer   annulus   at  the   right
            posterolateral  aspect  L5-S1,  as   well  as  sclerosis  and
            hypertrophic  changes at the articular facets at L5-S1 at the
            right side causing narrowing of the neural foramina.

                                         -5-



lumbar spondylolysis and myositis with disc disease at L5-L4.

            Dr.   De  Jesus  Pla   concluded  that  claimant's  condition

            precludes  him from  returning to  his past  work as  a truck

            driver.

                 Dr.  Tomas Hernandez, a  neurologist, evaluated claimant

            on  June 11,  1990  and diagnosed  him  as suffering  from  a

            pinched nerve root in  the right side.  Dr.  Hernandez opined

            that  this condition, as well as the C.T. lumbar findings and

            claimant's  symptomatology,  disabled  claimant  totally  and

            permanently from working.   

                 Two residual physical  functional capacity  assessments,

            prepared by non-examining medical consultants, are consistent

            with  the ALJ's  finding that claimant  has the  capacity for

            light work.  The latter assessment, dated August 26, 1990 and

            prepared by a consulting neurologist, concludes that "[t]here

            is  no motor, sensory, or reflex deficit to account for [the]

            statement of inability to work."  

                 Mental  health  records   reveal  that  claimant  sought

            treatment on June 6, 1990, complaining of bad humor, an upset

            stomach,  difficulty sleeping,  and  a tight  feeling in  his

            chest.   Claimant  was  diagnosed with  anxiety disorder  and

            prescribed xanax.  He was otherwise found to be  cooperative,

            coherent, relevant, and somewhat oriented.  On July 31, 1990,

            claimant  reported feeling  better.   On September  20, 1990,

            claimant stated that he felt frightened.  He was continued on

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xanax.    On December  20,  1990,  claimant reported  feeling

            better with medication.

                                         III.

                 Claimant contends  that the ALJ erred in  relying on the

            Grid to reach a  conclusion of not disabled.   In particular,

            he argues that his restricted ability to bend from the waist,

            as  well as  the pain  he suffers,  constitute non-exertional

            impairments.    Under  the  circumstances, he  contends,  the

            testimony of a vocational expert was required to evaluate his

            claim.

                 Where  a claimant's impairments  involve only exertional

            limitations,  the  Grid  provides a  "streamlined"  method by

            which the  Secretary can  make a determination  whether there

            are jobs in the economy which the claimant can perform.  See,
                                                                     ___

            e.g.,  Heggarty v.  Sullivan,  947 F.2d  990,  995 (1st  Cir.
            ____   ________     ________

            1991);  Ortiz v. Secretary of Health & Human Servs., 890 F.2d
                    _____    __________________________________

            520,  524 (1st  Cir. 1989)  (per curiam).   However,  where a

            claimant  has  non-exertional   impairments  in  addition  to

            exertional limitations, the Grid may not be fully applicable.

            See 20  C.F.R.  Part 404,  Subpart P,  App. 2,  200(e).   The
            ___

            appropriateness of  relying of the  Grid in such  a situation

            "depends  on  whether  claimant's   nonexertional  impairment

            `significantly affects [a] claimant's ability to  perform the

            full  range  of jobs'  at  the  appropriate strength  level."

            Heggarty v.  Sullivan,  947  F.2d at  996  (quoting  Lugo  v.
            ________     ________                                ____

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Secretary of Health & Human Servs., 794 F.2d 14, 17 (1st Cir.
            __________________________________

            1986) (per curiam)).   

                 With respect  to claimant's restricted  ability to  bend

            from  the  waist,  we  note  that  both  residual  functional

            capacity  assessments reported  that claimant  is  capable of

            occasional bending.  This is all that "light"  work requires.

            Ortiz, 890  F.2d at 525; see  also SSR 85-15 at  97 (CE 1985)
            _____                    _________

            ("If  a person can stoop occasionally (from very little up to

            one-third  of  the  time)  in  order  to  lift  objects,  the

            sedentary and light occupational base is virtually intact.").

            Under  the circumstances, claimant's  bending restriction did

            not preclude  reliance on the  Grid.  See Ortiz,  890 F.2d at
                                                  ___ _____

            525.

                 With respect to claimant's pain, we observe that the ALJ

            concluded that  claimant's back  pain "does not  constitute a

            disabling factor upon  his ability to  perform tasks that  do

            not  exceed light  exertional  demands."   The ALJ  evaluated

            claimant's allegations of pain in accord with our decision in

            Avery v. Secretary of Health & Human Servs., 797 F.2d 19 (1st
            _____    __________________________________

            Cir.  1986).   Claimant was  questioned concerning  his daily

            activities,  functional  restrictions, medication,  frequency

            and  duration  of  pain,  and precipitating  and  aggravating

            factors.   See  id.  at 28-29.    The ALJ  also reviewed  the
                       ___  ___

            objective medical evidence.  He found that apart  from marked

            lumbar muscle spasms and some flexion difficulties, "claimant

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did  not  present  gross  neurological  deficits  or  limited

            movements  as  to  impose  significant  restriction   at  all

            exertional  levels."   The  ALJ further  noted that  claimant

            performed full  body movements  at  the hearing  and was  not

            distracted due  to pain.   We are persuaded  that substantial

            evidence supports  the ALJ's conclusion that  claimant's pain

            does  not  impair his  ability to  perform  light work.   See
                                                                      ___

            Frustaglia  v. Secretary of  Health & Human  Servs., 829 F.2d
            __________     ____________________________________

            192, 195 (1st Cir. 1987).  Under the circumstances, there was

            no error in relying on the Grid.

                 Claimant also contends that the ALJ gave undue weight to

            the opinions of the Secretary's consulting physicians and too

            little  weight to  the opinions  of his  treating physicians.

            This  is  an  apparent   reference  to  recently  promulgated

            regulations  which  describe  how  the Secretary  will  weigh

            medical opinions, and provide that, in general, the Secretary

            will give more weight to opinions from treating sources.  See
                                                                      ___

            20  C.F.R.     404.1502  (1991)  (defining treating  source),

            404.1527(d)  (1991)  (explaining  how  the  Secretary  weighs

            medical opinions).2   Assuming, without deciding,  that these

            regulations are  applicable here, we  find no fault  with the

            ALJ's decision on this score.

____________________

            2.  These regulations  were promulgated after the  ALJ issued
            his decision,  but  while the  case  was pending  before  the
            Appeals Council.

                                         -9-



For the most part,  the reports of claimant's physicians

            are  fully   consistent   with  those   of  the   Secretary's

            physicians.   The one exception is  Dr. Hernandez' conclusory

            statement that claimant  is totally and  permanently disabled

            from working.  However, the Secretary was not bound to accept

            this statement.   First, it is by  no means obvious that  Dr.

            Hernandez should  be considered a treating  source.  Claimant

            did  not  consult  Dr.  Hernandez  until  after  the  initial

            determination of no disability and apparently saw him on only

            two occasions.   See 20  C.F.R.    404.1502 (1991)  (defining
                             ___

            treating  source as a physician with whom claimant has had an

            "ongoing" relationship  based on  the need for  treatment and

            not  solely  on  the  need  to  obtain  a  favorable report).

            Second, and more importantly, the determination of disability

            is  reserved to the Secretary.   See 20  C.F.R.   404.1527(e)
                                             ___

            (1991).  There is ample evidence in the record as  a whole to

            support  the  ALJ's  conclusion  that  claimant  retains  the

            functional capacity for light work.

                 Claimant's  remaining argument  is  that  the  Secretary

            erred  in finding  that  he does  not  have a  severe  mental

            impairment  that can  be  expected to  last  at least  twelve

            months.    This  issue  was  not  encompassed  in  claimant's

            objection to  the magistrate's  report and, thus,  is waived.

            See  Thomas v. Arn, 474  U.S. 140, 147-48  (1985); Keating v.
            ___  ______    ___                                 _______

            Secretary  of Health & Human  Servs., 848 F.2d  271, 275 (1st
            ____________________________________

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Cir.  1988) (per curiam).  We  add that the record portrays a

            relatively  mild mental impairment,  which has responded well

            to medication.  Moreover, claimant has never clarified how it

            allegedly limits his ability to work.  In such circumstances,

            the Secretary  could properly conclude that claimant's mental

            impairment  is  "non-severe."    See  20  C.F.R.     404.1521
                                             ___

            (defining  "non-severe"  impairment  as  one  that  does  not

            significantly  limit a  claimant's ability  to do  basic work

            activities);    Rodriguez  v.  Secretary of  Health  &  Human
                            _________      ______________________________

            Servs., 893 F.2d 401, 403-04 (1st Cir. 1989).
            ______

                 The judgment of the district court is affirmed.
                                                       ________

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