Rossi v. Shalala

• Court: Court of Appeals for the First Circuit
• Decided: September 25, 1995
• Docket: 95-1045
• Status: Published

Opinion

USCA1 Opinion

September 25, 1995

                                [NOT FOR PUBLICATION]



                            UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT


____________________


No. 95-1045 



                                     FELIX ROSSI,



                                Plaintiff, Appellant,



                                          v.



              DONNA E. SHALALA, SECRETARY OF HEALTH AND HUMAN SERVICES,



                                 Defendant, Appellee.


____________________



                     APPEAL FROM THE UNITED STATES DISTRICT COURT



                          FOR THE DISTRICT OF MASSACHUSETTS



                   [Hon. Edward F. Harrington, U.S. District Judge]
                                               ___________________



                                 ____________________



                                        Before



                                Torruella, Chief Judge,
                                           ___________

                          Selya and Boudin, Circuit Judges.
                                            ______________



                                 ____________________



            Barbara E. Oro on brief for appellant.
            ______________

            Donald K.  Stern, United  States Attorney,  Charlene A.  Stawicki,
            ________________                            _____________________

        Special  Assistant  United  States  Attorney,  and  Jessie  M.  Klyce,
                                                            _________________

        Assistant Regional  Counsel, Department of Health  and Human Services,

        on brief for appellee.


____________________


____________________



Per  Curiam.    Claimant  Felix Rossi  appeals  the
                      ___________



            Secretary's decision that he is not disabled under either the



            Social  Security Disability  Insurance  program ("SSDI"),  42



            U.S.C.    401  et seq., or  the Supplemental Security  Income
                           __ ___



            program  ("SSI"), 42  U.S.C.   1381  et seq.1   The  district
                                                 __ ___



            court  granted judgment in favor of the Secretary.  We affirm



            the district court's decision.  



            Background
            __________



                 Claimant,  formerly   a  laborer  in   the  construction



            industry,  filed for disability benefits  on January 3, 1992,



            with  a protected  filing  date of  December  30, 1991.    He



            alleged disability  as of June  14, 1990, the date  of a slip



            and fall accident which  caused him to suffer a  back injury.



            Claimant met  the insured status requirements  through March,



            1992.   The Administrative Law  Judge ("ALJ") held  a hearing



            and  heard testimony  from claimant  and a  vocational expert



            ("VE").  Claimant was represented by an attorney.  



                 After the hearing, the  ALJ found that claimant was  not



            working;  that  he suffered  a  severe  impairment; that  his



            symptoms did not meet or equal any listed impairment; that he



            could not return to  his past relevant work; and  that he was



            not  disabled  since he  could perform  other  work.   See 20
                                                                   ___



            C.F.R.     404.1520.   The  Appeals  Council refused  review.



                                
            ____________________



            1.  For  simplicity, we  refer only  to the  SSDI regulations

            since they are  identical in all relevant particulars  to the

            SSI regulations.   



                                         -3-



Claimant appealed  to the district court,  which affirmed the



            Secretary.  This appeal followed.



            Discussion
            __________



                 We  address each  of  claimant's arguments  in turn  and



            incorporate  facts  and  medical  evidence as  needed.    Our



            standard  of review is limited.   The Secretary's findings of



            fact  are conclusive  if  they are  supported by  substantial



            evidence.  "`We must uphold the Secretary's findings ... if a



            reasonable mind,  reviewing the evidence  in the record  as a



            whole,   could  accept   it  as   adequate  to   support  his



            conclusion.'"  Irlanda Ortiz v. Secretary of Health and Human
                           _____________    _____________________________



            Services,  955  F.2d  765,   769  (1st  Cir.  1991),  quoting
            ________



            Rodriguez v. Secretary of Health and Human Services, 647 F.2d
            _________    ______________________________________



            218, 222 (1st Cir. 1981).  



                 1.    Claimant  argues  first  that  the  ALJ  erred  in



            concluding  that he did not  suffer from a listed impairment.



            See   20   C.F.R.  Part   404,   Subpart   P.,  Appendix   I.
            ___



            Specifically,  claimant alleges  that his condition  meets or



            equals in severity Listing 1.05(C).2 


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            2.  Disorders of the spine:

              ...

              C.  Other vertebrogenic  disorders (e.g., herniated nucleus

            pulposus,  spinal stenosis) with the following persisting for

            at least  3 months despite prescribed therapy and expected to

            last 12 months.  With both 1 and 2:

              1.    Pain, muscle  spasm,  and  significant limitation  of

            motion in the spine; and

              2.  Appropriate radicular distribution of significant motor

            loss with muscle weakness and sensory and reflex loss. 



                                         -4-



We agree with the Secretary that the medical evidence of



            record does not indicate that claimant's  condition satisfies



            the  requirements  set out  in the  Listing.   We  review the



            evidence  of reflex loss.  In his  exam of July 30, 1990, Dr.



            Dorsey found the  left knee and both  ankle jerks diminished,



            but the right  knee jerk active.   In  his September 4,  1990



            exam,  Dr. Baradaran  found  normal knee  jerks and  slightly



            diminished ankle  jerks; he  specifically found "no  motor or



            sensory deficit in the right or left lower extremity."  Other



            record evidence reflects diminished patella and absent  ankle



            jerks in December, 1991, and diminished left patella reflexes



            in April  and May, 1992.   In July, 1992, Dr.  Beal found "no



            radicular-type sensory  deficits," and "no focal  deficits in



            the  reflexes,   strength  or  sensation."     This  evidence



            indicates absent  ankle reflex  only in December,  1991, with



            periodic  and occasional  reflex  loss or  diminution in  the



            ankle  and left  knee.   Only  in  December, 1991,  does  the



            evidence indicate  that there was any diminution in the right



            knee reflex.3  In  light of the criteria  set out in  Listing



                                
            ____________________



            3.  We  are puzzled by a  reference in Dr.  Grady's report to

            "electrodiagnostic   studies"  done  September  4,  in  which

            "tibial  H  reflexes were  absent in  both  legs."   The only

            electromyographic  report of  record  is  dated September  4,

            1985.  R. 164.  It discusses an "absen[t] ... H reflex on the
            ____

            right side,  [and a] clinically absent ankle jerk."  Claimant

            visited  Dr.   Baradaran  on   September  4,  1990,   and  he
                                                          ____

            recommended  an  EMG; however,  there are  no results  in the

            record.  Assuming  arguendo that  there was an  EMG study  of
                               ________

            September 4,  1990, indicating  that "tibial H  reflexes were

            absent in both  legs," this would  not change our  conclusion



                                         -5-



1.05(C), we  conclude that there was  substantial evidence in



            support  of the  Secretary's decision  that claimant  did not



            satisfy the Listing requirements.  



                 2.  Claimant argues  next that the ALJ erred  in failing



            to   consider  his   impairments  in   combination.     Nurse



            Demerjian's Progress  Notes, from the South  Boston Community



            Health Center,  reflect that  on December 13,  1991, claimant



            was  deemed  to  have high  blood  pressure.    A later  note



            (December 27, 1991) indicates that claimant's  blood pressure



            was  elevated, and  suggests  that he  lose weight,  decrease



            caffeine   and  stressors,   and  stop  smoking.     Claimant



            apparently  began  taking some  type  of  medication for  his



            pressure in May, 1992, and his blood pressure was  controlled



            by medication by June 26, 1992.  Claimant argues as well that



            he  suffers   from  chronic  obstructive   pulmonary  disease



            ("COPD")  and  that  this,  too,  impairs  him  vocationally.



            However, there  is no evidence of  any vocational limitations



            as a result of the COPD.  Claimant has the burden of proof on



            this issue, see generally 20 C.F.R. 
                        ___ _________



              404.1512, and has failed to carry it.



                 3.    Claimant's  third argument  challenges  the  ALJ's



            conclusion that he is capable of performing the full range of


____________________



            that  there   is  substantial   evidence  in  favor   of  the

            Secretary's conclusion that the Listing 1.05(C) criteria were

            not satisfied.



                                         -6-



light work.4   We note  first that  although the  ALJ did  so



            conclude  in  his findings,  he  did  not  treat claimant  as



            capable of performing the full range of light work.  Instead,



            he accepted for the most part the limitations set out  in the



            RFC  prepared by  Nurse  Demerjian and  he  accepted as  well



            claimant's  professed  need  to  change  position  regularly.



            These qualifications  were part  of the hypotheticals  put to



            the VE, and discussed in detail infra.  
                                            _____



                 Nonetheless,  claimant  insists  that  in  reaching  his



            "light  work" conclusion,  the ALJ  mistakenly relied  on two



            medical  reports  which  gave  no opinion  as  to  claimant's



            ability to perform work-related  activities, and that the ALJ



            misapplied  the limitations  set out in  the report  of Nurse



            Demerjian.



                 Nurse Demerjian submitted an RFC, dated June 1, 1993, in



            which she indicated  that claimant could sit for three hours;



            stand for  two hours; and walk  for four hours as  long as he



            could change position every two hours.  She indicated that he



            could frequently lift up to 5  pounds, occasionally lift 5-10


____________________



            4.  20 C.F.R.   404.1567(b) provides:

                Light work involves lifting  no more than 20 pounds  at a

            time with frequent lifting or carrying of objects weighing up

            to 10  pounds.   Even though  the weight lifted  may be  very

            little, a job  is in  this category when  it requires a  good

            deal of walking or standing, or when it involves sitting most

            of the  time  with some  pushing and  pulling of  arm or  leg

            controls.  To be  considered capable of performing a  full or

            wide range  of light work,  you must have  the ability to  do

            substantially all of these activities.  



                                         -7-



pounds, and never lift any greater weight.  While she thought



            that claimant could bend  occasionally, she indicated that he



            could  never  squat, crawl,  climb  or  reach above  shoulder



            level, and  that he could use only  his right foot to operate



            foot controls.   Nurse  Demerjian revised her  assessment one



            week later,  indicating that  because of shortness  of breath



            and leg problems,  claimant could walk for only 20-30 minutes



            at a time, up to a total of one hour per day.



                 The  record  contains  other  RFCs.   The  first,  dated



            February 27, 1992, indicates that claimant could occasionally



            lift  20 pounds; frequently lift 10 pounds; stand and/or walk



            about 6 hours;  sit up  to 6 hours;  and occasionally  climb;



            balance; stoop;  kneel; crouch and crawl.   The second, dated



            July 23,  1992, reflects the same  exertional limitations but



            differs in its assessment of claimant's postural limitations,



            limiting his stooping capacity to "occasionally," but finding



            that he  could frequently  climb; balance; kneel;  crouch and



            crawl. 



                 In   determining   a   claimant's  residual   functional



            capacity, the  ALJ  is not  limited  to reliance  on  reports



            submitted by claimant's caregivers.   The ALJ may also, under



            certain  circumstances,  rely on  reports  submitted  by non-



            testifying, non-examining physicians.  See  generally Berrios
                                                   ___  _________ _______



            Lopez  v. Secretary of Health  and Human Services,  951 F. 2d
            _____     _______________________________________



            427,  429-32 (1st Cir. 1991).  This is especially true where,


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as here,  these reports  include medical findings  to support



            the  conclusions; the reports were prepared after most of the



            relevant medical data was generated;  and the reports tend to



            reinforce one another.  Berrios Lopez, 951 F.2d at 431.  
                                    _____________



                 Thus,  we conclude that the ALJ could have relied on the



            RFCs of the non-treating physicians, and we find further that



            these would have supported  a light work exertional capacity.



            We note again that in any event the ALJ did not hold claimant



            to this standard, but assessed his work capabilities in light



            of his particular non-exertional impairments.  



                 4.  Claimant's fourth argument is that the hypotheticals



            given  to the VE did  not accurately reflect  the evidence in



            the record and so were improper under the standard set out in



            Arocho v.  Secretary of Health  and Human Services,  670 F.2d
            ______     _______________________________________



            374  (1st Cir.  1982).    We  observed in  Arocho that  for a
                                                       ______



            vocational expert's answer to  a hypothetical to be relevant,



            "the  inputs  into  that  hypothetical  must  correspond   to



            conclusions  that  are  supported  by the  outputs  from  the



            medical  authorities."    Id. at  375.    "To guarantee  that
                                      ___



            correspondence,  the  Administrative  Law  Judge   must  both



            clarify the outputs (deciding what testimony will be credited



            and  resolving  ambiguities),  and  accurately  transmit  the



            clarified output to  the expert in the  form of assumptions."



            Id.
            __


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Claimant described his daily activities  at the hearing.



            He  indicated that he can walk twenty minutes before he needs



            to stop  to catch  his breath,  and that if  he sits  for "an



            average of three hours, that's a lot."  He does  not make his



            bed,  but he  does dust,  and he  prepares frozen  dinners or



            hamburgers  for meals.  He  shops for groceries  once a month



            and he has them delivered.  



                 The ALJ questioned  the vocational  expert about  "light



            jobs  with an  option  to change  position."   After  the  VE



            identified various jobs, such as security guard/gate  keeper,



            self service gas station attendant and cashier, the ALJ added



            claimant's  restrictions  regarding   sitting,  walking   and



            standing,  and the need to  alternate position.   He added as



            well  the   exertional   requirements  described   by   Nurse



            Demerjian, which were lower than  the exertional requirements



            described in the  other RFPs in the record.  The VE indicated



            that  the jobs he had identified did not involve any lifting,



            and did not  require the operation of any  machinery.   These



            jobs  assumed  a  sixth grade  level  of  education, and  the



            ability to read  a newspaper.   If claimant  could not  reach



            above the shoulder, that would eliminate the self service gas



            station attendant.     



                 We perceive no problem with the data given by the ALJ to



            the VE.   The record  evidence supports the  ALJ's conclusion



            that the claimant can perform light  work.  The fact that the


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strength limitations the ALJ gave to  the VE approximated the



            sedentary strength requirements does not change this.  First,



            as indicated above,  the ALJ could reasonably  have relied on



            the other  RFCs of record which found  claimant somewhat more



            able  than did  the RFC  completed by  Nurse Demerjian.   See
                                                                      ___



            generally Berrios Lopez, 951 F.2d at 429-32.  Next, we see no
            _________ _____________



            reason why  a VE  cannot testify  that particular light  jobs



            involve little or no lifting.  Cf. Moncada v. Chater, 60 F.3d
                                           __  _______    ______



            521, 524 (9th Cir. 1995)(fact that "some jobs listed by VE as



            sedentary  are  also listed  as "light"  work  in the  DOT is



            irrelevant; VE `can testify whether particular applicants for



            disability benefits would be able to perform subcategories of



            jobs within the DOT'")(citation omitted).



                 The ALJ apparently did not credit claimant's allegations



            of  disabling  pain  as  imposing any  additional  exertional



            limitations  (see infra) and so  was not obligated to present
                          ___ _____



            these to the VE.  The ALJ otherwise tailored his hypothetical



            to  reflect claimant's  particular  needs.5   We perceive  no



            error.    5.   Claimant's  final  challenge is  to the  ALJ's



            failure to credit his  complaints of unremitting and constant


____________________



            5.  Insofar as claimant may  be arguing that the ALJ  in fact

            applied the grid to  reach his conclusion against disability,

            we do not agree.  The ALJ cited to the grid in his  findings,

            but  observed that  the  conclusion of  "not disabled"  which

            would have been directed by the  relevant grid rule coincided

            with vocational expert testimony.  As indicated above, we are

            satisfied   that  the  ALJ   adequately  conveyed  claimant's

            limitations to the VE.    



                                         -11-



pain as  imposing a non-exertional impairment  in addition to



            the exertional  and  positional impairments  set out  above.6



            It  appears to us that the ALJ properly followed the approach



            endorsed in Avery v. Secretary of Health and Human Services, 
                        _____    ______________________________________



            797 F. 2d 19 (1st Cir. 1986).  



                 We have construed Avery to mean that "complaints of pain
                                   _____



            need not be precisely corroborated by objective findings, but



            they  must be consistent  with medical findings."   Dupuis v.
                                                                ______



            Secretary  of Health  and Human  Services, 869 F.2d  622, 623
            _________________________________________



            (1st Cir. 1989).  Assuming without  more that claimant's back



            impairment  could reasonably cause pain, the ALJ investigated



            claimant's activities  and medications,  and observed him  at



            the  hearing.   The ALJ concluded,  after considering  all of



            this, that  claimant's allegations did not  impose additional



            restrictions other than limiting him to light work.  Id.   We
                                                                 __



            have said  repeatedly that we pay  "`particular attention' to



            an ALJ's evaluation of  complaints of pain in light  of their



            `subjective nature.'"  Ortiz v. Secretary of Health and Human
                                   _____    _____________________________



            Services,  890  F.2d  520,  523 (1st  Cir.  1989)  (citations
            ________



                                
            ____________________



            6.  The ALJ's credibility finding,  to the effect that "[t]he

            claimant  is accepted as a credible witness to the extent set

            forth  above (Social  Security Ruling  88-13)" means  what it

            says.   Above,  the  ALJ had,  in  accordance with  Avery  v.
                                                                _____

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

            1986), reviewed claimant's activities, his description of his

            pain  and his  medication,  and had  concluded that  claimant

            could perform light work.  We reject the suggestion that this

            specific  finding in  favor of  claimant's credibility  means

            that the  ALJ found  credible claimant's assertions  that his

            pain further limited him from performing work.      



                                         -12-



omitted).  We find  no error.  There is  substantial evidence



            in the record  to support the Secretary's decision  which is,



            accordingly, affirmed.
                         ________


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