Sosa v. SHHS

Opinion

USCA1 Opinion

March 13, 1995        [NOT FOR PUBLICATION]
                            UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT

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No. 94-1618

                                    MILAGROS SOSA,

                                Plaintiff, Appellant,

                                          v.

                       SECRETARY OF HEALTH AND HUMAN SERVICES,

                                 Defendant, Appellee.

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                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                           FOR THE DISTRICT OF PUERTO RICO

[Hon. Hector M. Laffitte, U.S. District Judge]
                                              ___________________

                                 ____________________

                                        Before

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

                                 ____________________

            Aurelio Saliva Mattei on brief for appellant.
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            Guillermo  Gil,  United  States  Attorney,  Maria Hortensia  Rios,
            ______________                              _____________________
        Assistant  United States  Attorney,  and Nancy  B. Salafia,  Assistant
                                                 _________________
        Regional Counsel, Department  of Health and  Human Services, on  brief
        for appellee.

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                                 ____________________



Per  Curiam.   Milagros  Sosa  (claimant)  appeals from  a
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               district  court  judgment  affirming  the  decision  of  the

               Secretary  of   Health  and  Human  Services   to  deny  her

               application  for  disability  benefits.    For  the  reasons

               outlined below  (and enumerated  at  greater length  in  the

               magistrate-judge's report), we  find substantial evidence in

               support of the Secretary's decision and therefore affirm. 

                 Claimant is a married, 38-year-old  mother of two who  was

               employed as  a bank  teller and  loan  clerk until  December

               1987.   She alleges that  she has  been disabled since  that

               date due to  the following series of ailments:  (1) vascular

               insufficiency and thrombophlebitis of the legs;  (2) painful

               fibromyositis and arthritis  of the back;  (3) vertigo;  and

               (4)  nervous   depression.     Following   a  hearing,   the

               administrative  law judge  (ALJ) found  that  claimant's leg

               condition,  while  restricting  her  ability  to  stand  for

               extended  periods and thus  precluding a return  to her past

               job, did not prevent her from performing sedentary work.  In

               turn, the ALJ determined that claimant's  remaining ailments

               imposed only minimal functional restrictions, such that  her

               ability to perform  the full range of sedentary work was not

               significantly  compromised.    Applying Rule  201.29  of the

               Grid,  see 20 C.F.R.  Part 404, Subpart  P, App. 2,  the ALJ
                      ___

               reached a finding of not disabled.  Claimant now argues that

               such findings were unsupported by  substantial evidence and,



more  specifically, that  it was  error not  to hear  from a

               vocational expert.  We disagree.

                 Abundant record evidence supports  the conclusion that the

               exertional  restrictions imposed by claimant's leg condition

               did not  preclude performance of sedentary  work.1  Claimant

               has had two episodes of thrombophlebitis2: in February  1987

               (three  weeks after the birth of  her first child) and again

               in  September 1988 (in  the midst of  her second pregnancy).

               Both  episodes were  successfully treated  over a  period of

               days.    Otherwise, she  has  suffered  from chronic  venous

               insufficiency with  recurrent  edema3 and  pain  (consistent

               with  a post-phlebitic  syndrome)--for which  medication and

               the  use  of  elastic  socks  have  been  prescribed.    The

               physician who treated claimant between January and July 1988

               (Dr. Munoz) specifically  reported that she  was capable  of

               sedentary  activity,   identifying   her   only   functional

               limitation  as an inability  to stand  or walk  for extended

               periods.  Much of the other evidence was to the same effect.

               For example, a  neurologist (Dr. Scarano  Garcia) in  August

               1988 described claimant's  ability to walk on heels  or toes

                                
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            1.  Sedentary work  involves lifting no more  than ten pounds
            at a time and "occasional" walking and standing.  20 C.F.R.  
            404.1567(a).

            2.  Thrombophlebitis is the inflammation of a vein associated
            with blood clot formation.

            3.  Venous insufficiency involves  the inadequate drainage of
            venous blood.   Edema is the accumulation of  excessive fluid
            in cells or tissues.

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as  being  within normal  limits.   In December  1988, three

               months after  claimant's second bout of  thrombophlebitis, a

               non-examining  physician (Dr.  Arzola) completed  a residual

               functional capacity assessment noting only minor limitations

               in this  regard.  And  in October  1989, a vascular  surgeon

               (Dr. Ramirez Ferrer) found some swelling in claimant's  legs

               but  no other  complications.  Notwithstanding  the contrary

               indications  in the  record,4 such  evidence  provides ample

               support for the ALJ's conclusion.

                 In turn, we  think the ALJ was  warranted in finding  that

               the functional restrictions imposed by  claimant's remaining

               ailments  were minimal.  As to  her complaints of back pain,

               the  ALJ  found  that  claimant  suffered  from  impairments

               capable of producing  pain, but then  proceeded to  discount

               the  severity of those complaints.   The record reveals that

               claimant experienced a  back sprain in  1982, for which  she

               received  physical therapy  and was  awarded a  five percent

               state disability.   More recently, claimant  was treated for

               pain in the right shoulder in February 1988.  Raising of the

               arm was found to cause suppression of the subclavian artery,

               but  neurological testing was otherwise normal; the treating

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            4.  Most  notable  among  these  was the  evaluation  of  one
            treating physician (Dr. Quinones  Soto), who in December 1987
            recommended  bed rest  for  six months  and,  in April  1988,
            reported  that claimant  was  totally disabled.   He  stopped
            treating claimant  in December  1987, however, giving  way to
            Dr.  Munoz.  As mentioned, the latter described a more benign
            condition.  

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physical  therapist (Dr.  Oms)  reported  an  impression  of

               fibromyositis.   Similarly,  in August  1988, a  neurologist

               (Dr. Rodriguez Del  Valle) diagnosed a  painful syndrome  in

               the cervical and dorsal region, of unknown origin, when  the

               right  arm  was  raised.    Nonetheless,   muscle  strength,

               reflexes  and sensibility  were  all within  normal  limits.

               That  same month,  another neurologist (Dr.  Scarano Garcia)

               reported normal range  of motion in  the cervical,  thoracic

               and  lumbar regions,  along with  normal muscle tone  in all

               extremities.   On  the basis  of such  evidence, and  on the

               basis of  his questioning  of  claimant in  accordance  with

               Avery v. Secretary of HHS, 797 F.2d 19 (1st Cir. 1986),  the
               _____    ________________

               ALJ  justifiably  concluded  that  most  of  her  pain   was

               effectively  controlled through therapy and medication.  And

               any residual  limitation on claimant's ability  to raise her

               right arm  over her head  would have  little bearing on  her

               capacity to perform sedentary work.

                 Claimant first complained of vertigo in July 1988,  during

               the  middle  of her  second  pregnancy.   Following  a brief

               hospitalization  therefor (as well  as for pregnancy-related

               vomiting),  she  was  treated  over  the  next  month  by  a

               neurologist  (Dr.  Scarano  Garcia).   Results  of extensive

               neurological  testing, including  a brain  scan and  an EEG,

               were  normal except  for a  mild head  tremor; no  cause was

               found  for her vertigo.  More  important, there is no record

               of any further treatment for this condition  after August 9,

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1988.  Indeed, there is no evidence that claimant thereafter

               made any  further  complaints  in  this  regard  to  medical

               personnel--apart from  allegations voiced to  a psychiatrist

               in January 1990.   The ALJ thus  was warranted in  regarding

               claimant's vertigo as a short-lived affliction. 

                 Finally,   substantial   evidence   supports   the   ALJ's

               conclusion that claimant's  mental condition was  of minimal

               severity.  Claimant alleges that she has suffered  therefrom

               since the age  of thirteen.  Yet she received no psychiatric

               treatment from at least 1980 onwards, and made no mention of

               such  a condition  to  any of  her treating  physicians.   A

               psychiatrist (Dr.  Toro)  who examined  claimant in  January

               1989,  shortly  before  she  delivered  her  second   child,

               diagnosed only a  "mild" generalized anxiety  disorder.   In

               particular,  he reported  that claimant  cared for  her son,

               performed some  housework with the help  of others, attended

               to  her  own personal  needs  without  supervision, and  was

               capable  of  normal  interpersonal  relationships.   It  was

               within the  ALJ's prerogative to credit  Dr. Toro's findings

               over those reached  one year later by a  second psychiatrist

               (Dr.  Bocanegra).  And even the  latter, we note, recorded a

               diagnosis of only "moderate" dysthymia.  

                 We therefore find substantial  evidentiary support for the

               ALJ's  conclusions.    We  likewise  conclude  that  it  was

               unnecessary to hear vocational evidence.  As explained,  the

               ALJ  was warranted in  finding that claimant's nonexertional

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impairments  had  only a  minimal impact  on her  ability to

               perform  the  full range  of  sedentary  work.   Under  such

               circumstances, reliance on the Grid to yield a finding as to

               disability  was  appropriate.     See,  e.g.,  Heggarty   v.
                                                 ___   ____   ________

               Sullivan, 947 F.2d 990, 995-96 (1st Cir. 1991) (per curiam);
               ________

               Ortiz v. Secretary  of HHS, 890 F.2d  520, 524-25 (1st  Cir.
               _____    _________________

               1989) (per curiam).

                 Affirmed.
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