Rivera Ojeda v. SHHS

Opinion

USCA1 Opinion

July 6, 1994          [NOT FOR PUBLICATION]

UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT
                                 ___________________

No. 93-2194

PEDRO RIVERA OJEDA,

                                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. Raymond L. Acosta, U.S. District Judge]
                                             ___________________

                                 ___________________

                                        Before

                                Boudin, Circuit Judge,
                                        _____________
                          Bownes, Senior Circuit Judge, and
                                  ____________________
                                Stahl, Circuit Judge.
                                       _____________

                                 ___________________

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

__________________

                                  __________________

Per Curiam.   Claimant Pedro Rivera  Ojeda filed an
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            application for  Social Security disability benefits  on June

            20,  1990, alleging a back condition, severe back pain, and a

            nervous condition.   After a  hearing, the ALJ  conceded that

            claimant had  a severe  back  impairment that  precluded  his

            return to  his former job as  a janitor required  to do heavy

            work.   The  ALJ  found,  however,  that  despite  claimant's

            exertional   impairments   claimant  retained   the  residual

            functional capacity to perform light  work.  The ALJ  further

            found  that claimant's  non-exertional impairments  (his pain

            and mental  condition)  did not  significantly  restrict  his

            capacity  to perform the  full range of  jobs requiring light

            work.   Accordingly, the ALJ  found claimant not  disabled at

            step 4  of the  sequential  evaluation process,  20 C.F.R.   

            404.1520(e),  on  the  ground  that  claimant's  impairments,

            although they  precluded performing  his former  janitor job,

            did  not preclude his return to his  former type of work as a
                                                        ____

            janitor.    This  type  of  work,  the ALJ  ruled,  generally

            requires no more than light work.

                 After  the Appeals Council denied claimant's request for

            review of  the  ALJ's  decision,  claimant  appealed  to  the

            district court, which affirmed.  Claimant appeals, contending

            that  the  Secretary's  determination  is  not  supported  by

            substantial evidence.  We affirm.

                 The  objective  medical  evidence concerning  claimant's

            physical condition can be summarized as follows.  Dr. Ruiz, a

            general practitioner, examined  claimant on January  5, 1990,

            and diagnosed cervical and dorso-lumbar spondlyoarthritis and

            muscle  spasm and left carpal tunnel syndrome.  Dr. Vargas, a

physiatrist, treated claimant between February and April 1990

            and reported moderate to severe muscle spasm, but good muscle

            tone  and no atrophy, and  left carpal tunnel  syndrome.  Dr.

            Gonzalez Cotto, a neurologist,  examined claimant on July 23,

            1990, and diagnosed chronic discogenic disease.

                 The record contains substantial  evidence to support the

            ALJ's  functional conclusion  that  claimant,  despite  these

            impairments, retains the exertional capacity to perform light

            work.   Dr. Sanchez, a non-examining  physician, reviewed the

            medical  evidence  in  the  record and  prepared  a  residual

            functional  capacity  assessment form  on  February 5,  1991,

            accompanied  by brief  medical findings.   On  the form,  Dr.

            Sanchez checked  boxes indicating  that claimant can  lift or

            carry 20  pounds, 10 pounds  frequently, can stand,  walk, or

            sit six hours, and can climb, balance, stoop,  kneel, crouch,

            and  crawl  occasionally.   Dr.  Sanchez  further found  that

            claimant could not perform  repetitive movements in his upper

            extremities,  and  was  limited  in his  capacity  for  gross

            manipulation by the hands.

                 Another non-examining physician, Dr.  Marxuach, reviewed

            the medical  evidence in the  record and prepared  a residual

            functional  capacity  assessment  form  on August  13,  1990,

            accompanied by  brief medical  findings.  Dr.  Marxuach, like

            Dr. Sanchez, checked boxes  indicating that claimant can lift

            or carry 20 pounds, 10 pounds frequently, can stand, walk, or

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sit six hours, and can climb,  balance, stoop, kneel, crouch,

            and  crawl  occasionally.    Dr. Marxuach  noted  no  further

            limitations.

                 The   governing  regulations   state  that   light  work

            "involves  lifting  no more  than 20  pounds  at a  time with

            frequent lifting  or carrying of  objects weighing  up to  10

            pounds [and] requires  a good deal  of walking or  standing."

            20  C.F.R.   404.1567(b).   These regulations  do not require

            that  a person be able to perform repetitive movements of the

            upper extremities or gross  manipulation of the hands,  or be

            able  to climb, balance, stoop, kneel, crouch, and crawl more

            than  occasionally, in  order to  be able  to perform  a full

            range  of jobs requiring light work.  Thus, both Dr. Sanchez'

            and Dr.  Marxuach's findings support the  ALJ's determination

            that claimant can perform light work.

                 We have held that the amount of weight that can properly

            be given  the  conclusions of  non-testifying,  non-examining

            physicians "will vary with the circumstances."  Berrios Lopez
                                                            _____________

            v.  Secretary of Health and Human Services, 951 F.2d 427, 431
                ______________________________________

            (1st Cir. 1991) (quoting Rodriguez v. Secretary of Health and
                                     _________    _______________________

            Human Services, 647  F.2d 218, 223 (1st  Cir. 1981)); Gordils
            ______________                                        _______

            v.  Secretary of Health and Human Services, 921 F.2d 327, 328
                ______________________________________

            (1st  Cir.  1990 (same).    In  some cases,  written  reports

            submitted by non-testifying, non-examining  physicians cannot

            alone   constitute  substantial   evidence,  see   Browne  v.
                                                         ____________

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Richardson, 468 F.2d  1003 (1972),  although this  is not  an
            __________

            absolute  rule.   Berrios  Lopez,  supra,  951  F.2d at  431;
                              ______________   _____

            Gordils,  supra, 921 F.2d at  328.  This  issue has generally
            _______   _____

            arisen in cases where such reports were the primary  evidence

            of a claimant's residual  functional capacity, since "the ALJ

            is  not qualified  to assess  claimant's residual  functional

            capacity  based on the bare  medical record."  Berrios Lopez,
                                                           _____________

            supra, 951 F.2d at 430.
            _____

                 In  this   case,  however,  these   residual  functional

            capacity assessments by non-examining physicians are not  the

            only evidence expressed in functional terms that supports the

            Secretary's conclusion  that claimant retains the capacity to

            perform light work.  Dr. Vargas cleared claimant to return to

            work  on  April  5,  1990, which  suggests  that  Dr.  Vargas

            believed  that claimant  could  return to  his heavy  janitor

            position.   At the  hearing, furthermore,  claimant testified

            that a doctor  had recommended that he  walk at least a  half

            mile, and that  "the doctors  have told me  that the  maximum

            that I'd [sic] might be able to try to lift  would be fifteen

            to twenty pounds."  This testimony relates a partial residual

            functional capacity assessment  made by examining physicians.

            Since light work,  again, "involves lifting  no more than  20

            pounds  at a  time," 20  C.F.R.    404.1567(b), this  partial

            residual functional capacity assessment bolsters the findings

            of the  non-examining physicians  that  claimant can  perform

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light  work.  Based on this  evidence we find that the record

            does  contain substantial functional  evidence to support the

            Secretary's conclusion to that effect.

                 A  finding  that  a  claimant can  perform  light  work,

            however,  does  not  necessarily  mean that  a  claimant  can

            perform  any particular type of  work -- such  as the janitor
                     ___

            work  in this case -- that requires an exertional capacity to

            do no  more than light work.  Janitor work in general may, or

            may  not, require other  specific capabilities  that claimant

            may, or may not, possess.  Claimant argues that the ALJ, as a

            layman, was not qualified  to reach the vocational conclusion

            that   janitor  work   in  general   does  not   require  any

            capabilities that claimant's impairments  deny him.  To reach

            that  vocational conclusion, claimant  insists, the testimony

            of  a  vocational  expert,  at  step  5  of   the  sequential

            evaluation  process,  20  C.F.R.     404.1520(f),   would  be

            necessary.  

                 We need not  resolve this question.  Even  if we were to

            find that the record  lacked substantial vocational  evidence

            for  the conclusion at step 4 that claimant could perform his

            former type of work  as a janitor, we would  still affirm the

            Secretary  at step  5, without  need for  the testimony  of a

            vocational   expert,   by  applying   the  Medical-Vocational

            Guidelines,  20 C.F.R. Part 404, Subpart  P, Appendix 2 ("the

            grid").

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The grid  is based  on a claimant's  exertional capacity

            and  can  only  be  applied  where claimant's  non-exertional

            limitations do not significantly impair claimant's ability to

            perform at a given exertional level.  Sherwin v. Secretary of
                                                  _______    ____________

            Health and Human  Services, 685  F.2d 1, 3  (1st Cir.  1982),
            __________________________

            cert.  denied, 461  U.S.  958 (1983).    We find  substantial
            _____________

            evidence in  the record  to support the  Secretary's findings

            that claimant's non-exertional impairments -- back pain and a

            mental condition  -- do not significantly  impair his ability

            to perform a full range of light work.

                 In  addressing claimant's  complaints of back  pain, the

            ALJ  expressly followed  the  analysis required  by Avery  v.
                                                                _____

            Secretary of Health and Human Services, 797 F.2d 19 (1st Cir.
            ______________________________________

            1986), for  evaluating subjective complaints of  pain.  Based

            on   the   medical  evidence   already  mentioned,   the  ALJ

            permissibly  found  that claimant  did  not  suffer from  any

            objective medical condition that would ordinarily be expected

            to  cause disabling  pain.   As  we  have noted,  Dr.  Vargas

            cleared claimant to return  to work in April  1990.  The  ALJ

            also  stated that his doubts about the severity of claimant's

            pain were "further corroborated  by the claimant's appearance

            and  demeanor at  the  hearing.    The  claimant  was  in  no

            significant physical  or emotional distress, and  he was able

            to move about freely.  He provided information accurately and

            related  adequately."    The  ALJ  concluded  that  "claimant

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possibly  has  mild occasional  discomfort associated  to his

            condition,  but he does not  have disabling .  . . distress."

            The record contains ample evidence to support this finding.

                 As  for claimant's  mental condition, progress  notes of

            his treatment by the Mental  Health Program of the Department

            of Health stated that he had a somatoform disorder.  Although

            he  complained  of  uneasiness  and an  inability  to  sleep,

            claimant was nevertheless found to  be oriented in the  three

            spheres,   cooperative,   coherent,   and    relevant,   with

            appropriate  affect.    Claimant  was  also  reported  to  be

            "feeling   better   with   medication."      A  non-examining

            psychologist reviewed the record and,  in an October 9, 1990,

            report,  found  that  claimant was  suffering  from  anxiety-

            related  disorders with  no severe  impairment and  with only

            slight functional limitations.  In view of this  evidence, we

            cannot find  a lack  of substantial  evidence to support  the

            Secretary's finding that claimant's mental condition did  not

            significantly affect his ability to perform the full range of

            jobs that require light work.

                 Given   the   amply-supported  findings   that  claimant

            possessed the  exertional capacity to perform  light work and

            that his pain and his mental condition did not  significantly

            affect his  ability to do  so, Rule  202.16 of  the grid  can

            properly  be  applied in  this case.    That Rule  dictates a

            finding of "not disabled."

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The judgment of the district court is affirmed.  
                                                       ________

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