Torres v. SHHS

Opinion

USCA1 Opinion

          September 23, 1992    [NOT FOR PUBLICATION]

                            UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT

___________________

No. 92-1460

CARMEN TORRES,

                                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, Jr., U.S. District Judge]
                                             ___________________

                                 ___________________

                                        Before

                              Torruella, Cyr and Stahl,
                                   Circuit Judges.
                                   ______________

___________________

               Salvador Medina De La Cruz on brief for appellant.
               __________________________
               Daniel F.  Lopez Romo, United States  Attorney, Jose Vazquez
               _____________________                           ____________
          Garcia, Assistant  United States Attorney, and  Nancy B. Salafia,
          ______                                          ________________
          Assistant  Regional Counsel, Dept. of Health & Human Services, on
          brief for appellee.

__________________

                                  __________________

Per Curiam.   Claimant contends she  is disabled due  to
                 __________

            fibromyositis,  muscle spasm,  and thoracic  outlet syndrome.

            The secretary disagreed, concluding that while claimant could

            not  return  to her  former  secretarial work,  she  could do

            certain sedentary  jobs identified by a  vocational expert in

            response to a hypothetical  question and consequently was not

            entitled to disability benefits.   Claimant contends that the

            decision denying benefits was  faulty in three main respects.

            First, the  ALJ  impermissibly interpreted  raw medical  data

            without any  expert medical assistance  to assess  claimant's

            residual  functional capacity (RFC).  Second, the RFC the ALJ

            arrived  at  is not  supported  by  substantial evidence  and

            failed   adequately   to   consider   claimant's   subjective

            complaints.  Third, the ALJ  concluded claimant could not use

            her  hands repeatedly  for fine  manipulation, but  failed to

            include this limitation  in the hypothetical posed to the VE.

            Consequently, the VE's testimony can not serve as substantial

            evidence  to  support   the  denial  of   benefits,  claimant

            maintains.    We  review  the  evidence   and  then  turn  to

            claimant's arguments.

                                          I.

                 Claimant worked as a  secretary until October 1987 when,

            she  claims, the pain in  her neck, arms,  and back prevented

            her from continuing.

-2-

The  first   medical  report  is  from   Dr.  Kindy,  an

            orthopedic surgeon, who examined claimant in January 1988 and

            reported  his  results  to  claimant's  employer's  insurance

            carrier.   Claimant complained  of numbness in  both trapezii

            and pain  in the arms,  neck, back  and legs.   The pain  had

            persisted,  worsening, for over a  year.  Range  of motion of

            the  cervical and  lumbar  back was  complete with  "moderate

            discomfort,"  and  range of  motion  of  the extremities  was

            complete with  "minimal  stiffness."   Dr. Kindy  recommended

            evaluation  by a  neurologist  and said  claimant could  then

            return to work.  

                 Claimant saw  a neurologist,  Dr. Ramirez Vincenty,  the

            next  month.  In addition  to the complaints  reported to Dr.

            Kindy, Dr. Ramirez noted  complaints of paresthesia (abnormal

            sensation)  of  the  limbs  and arm  weariness  resulting  in

            frequently dropping  things.   Dr.  Ramirez  reported  normal

            gait,  no  difficulty  sitting  or standing,  and  no  motor,

            sensory, or cerebellar abnormalities.  He noted hardening and

            tenderness  of cervical  and  shoulder  girdle  muscles,  and

            tenderness  to  pressure  at   thoracic  spine,  but  without

            limitation  of  motion.    His impression  was  "chance[]  of

            fibromyositis   contemplated,"  and  he  projected  a  "good"

            prognosis.

                 Beginning in April 1988, claimant began physical therapy

            with  Dr. Garcia  and physiatrist  Dr. Martinez  Deliz.   The

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first report  (4/12/88) noted  x-ray evidence of  neck muscle

            spasm  and straighted cervical spine, but found full range of

            motion, though  with tenderness.  The  diagnosis was cervical

            thoracic  myositis.   The  next  notation (4/26/88)  reported

            claimant's  complaints  of  foot  pain and  swelling  due  to

            bilateral posterior  spurs.  In May,  claimant was "improving

            slowly" with therapy.  "Moderate tenderness" continued in the

            neck.   On May 24, 1988, Dr. Garcia executed a return to work

            certificate  stating claimant  could resume  work on  May 30,

            1988.   In August 1988,  Dr. Martinez conducted  an EMG study

            and reported bilateral thoracic outlet syndrome.  

                 Dr. Garcia  referred claimant  to Dr. Acosta,  who began

            treating  claimant  in  late  May  1988.    Dr.  Acosta noted

            cervical and lumbar joint pain, morning stiffness in neck and

            shoulders,  limitation of  flexion-extension in  lumbar zone,

            hypoesthesia    (abnormally    decreased    sensitivity    to

            stimulation)   of  both  hands   with  paresthesia  (abnormal

            sensation  such  as  tingling), respiratory  difficulty  upon

            minimal exertion, and  edema of  both ankles.   He  diagnosed

            "rheumatism-rheumatic  fibromyalgia"  and  prescribed  muscle

            relaxants (flexeril) and other medications.  On May 26, 1988,

            about the time Dr. Garcia said claimant could return to work,

            Dr. Acosta filled  out a similar return  to work certificate,

            but projected the return date to  be July 15, 1988 in view of

            severe back muscle spasm and fibromyalgia.

-4-

In  May 1988,  claimant filled  out a  disability report

            form.  Questioned  about her ability to do  household chores,

            claimant said she did work at  home as she had three children

            to care for  and no one  to help her,  but the effort  caused

            great pain.  The only household  task she said she could  not

            do was ironing.  She drove in emergencies at the time.

                 Dr. Acosta saw claimant monthly.  His progress notes are

            largely  illegible, but  notations of  hand numbness  in June

            1988 and spasm in August and September 1988 are discernible.

                 Dr. Carreras examined claimant in August 1988.  Gait was

            normal.  Motor, sensory,  and cerebellar systems were intact.

            A test for  thoracic outlet syndrome was  positive.  Moderate

            tenderness  to  palpation  of  the  right  neck  muscles  and

            trapezius muscle  was noted.   Dr. Carreras's  impression was

            "postural  cervical  myositis   [muscle  inflammation]   with

            secondary  bilateral  thoracic  outlet  syndrome"  and  "mild

            chronic lumbar strain."

                 In September 1988,  Dr. Acosta (the  treating physician)

            filled out an "Attending Physician's Statement of Disability"

            supplied by claimant's employer's insurance  carrier covering

            the four month period  May 1988 through September 1988.   His

            diagnosis   was   bilateral    thoracic   outlet    syndrome,

            fibromyalgia, and back muscle spasm.   He stated claimant had

            "very  much" improved  during that  period, and  he projected

-5-

that claimant could return  to part-time light work  (but not

            her secretarial job) by the end of November 1988.

                 After examining the reports  of Dr. Acosta, Dr. Martinez

            Deliz, and  Dr. Carreras,  a  non-examining doctor  concluded

            that  none   of   claimant's  conditions   severely   limited

            claimant's  ability to  perform  basic work  duties and  that

            consequently claimant was not disabled.

                 In November, claimant completed another disability form.

            She said that her  neck was stiff, arm movement  was limited,

            and  she could  not keep  her arms in  a raised  position and

            hence  could not  hang  her clothes.    Also, she  could  not

            perform activities requiring  her to lower her  head, such as

            reading or  washing dishes, because her  muscles would become

            very stiff.   She said  her doctor  had advised her  to avoid

            stress and strenuous exercise.

                 Dr.  Acosta continued treating  claimant.   The progress

            notes  are again  largely  illegible, but  mild shortness  of

            breath was noted in October and muscle spasm in November.  In

            December 1988 spasm was "minimal."

                 After  reviewing   the   earlier  reports   plus   these

            additional  progress notes  from  Dr. Acosta,  a second  non-

            examining doctor  concluded that claimant had  no severe loss

            of movement, sensation, or reflexes and was not disabled.

-6-

Dr. Justiniano conducted an  arterial study of the upper

            extremities in  November 1988.  His  impression was bilateral

            mild obstructive disease of ulnar and radial arteries.

                 The last medical  report is from  Dr. Bonilla Torres,  a

            neurologist,  who examined  claimant in  May 1989.   Claimant

            complained  of tension in the nape of the neck, tiredness and

            numbness of both  arms, hand tremor,  loss of hand  strength,

            loss of  finger dexterity,  chest pain, and  occasional dizzy

            spells.   Dr. Bonilla noted  diminution of grasp  both hands,

            pain at pressure  over both  trapezii, pain  in muscles  upon

            counter movements of the  neck, and pain and numbness  of the

            arms upon  hyperabduction of  the arms.   His  impression was

            bilateral thoracic outlet  syndrome and myofascial  syndrome,

            both trapezii.

                 The  ALJ  accepted the  doctors'  diagnoses  of thoracic

            outlet  syndrome  and  myofascial  syndrome.    He  concluded

            claimant  "should avoid the  repeated use  of hands  for fine

            movements" and  raising arms  above shoulder level,  but that

            she retained  the residual functional capacity  (RFC) for the

            segment of  unskilled sedentary work which  would not require

            those  arm and  hand movements  and would  allow claimant  to

            alternate  positions.    Based  on  the  vocational  expert's

            testimony, the ALJ concluded  claimant could perform the jobs

            of table worker, label picker, and tester.           

                                         II.

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A.

                 No doctor (either examining or  non-examining) completed

            an RFC form checking off how much weight claimant could lift,

            how many hours  she could sit  or stand, or her  capacity for

            other physical  functions such as reaching, grasping, bending

            and stooping.  Consequently, citing Berrios v. Secretary, 796
                                                _______    _________

            F.2d 574 (1st  Cir. 1986) (Appeals  Council, composed of  lay

            persons,  is  not  competent  to  interpret  and  apply  raw,

            technical  medical  data),  claimant  argues  that   the  ALJ

            impermissibly interpreted  raw medical data to  arrive at the

            conclusion  that  claimant   could  do  sedentary   work  not

            requiring  repeated  fine   manipulation  or  reaching  above

            shoulder level.  

                 The  ALJ did  not  impermissibly  interpret raw  medical

            data.  While it is true that no doctor completed an RFC form,

            various doctors  did  indicate functional  capacity in  other

            forms.    For example,  in May  1988,  Dr. Garcia  executed a

            return to work certificate  and did not place any  limitation

            on  the  type  of work.    The  same month,  Dr.  Acosta, the

            treating physician,  projected claimant could return  to work

            in  July 1988,  a  date less  than  a year  after  claimant's

            alleged onset date of  disability.  See 20 C.F.R.    404.1505
                                                ___

            (to be  eligible for benefits, the  disabling impairment must

            last, or be expected to  last, for a continuous period  of at

            least 12  months).   Claimant, too,  described a fairly  wide

-8-

range of  activity she performed  as of May 1988.   She drove

            (in emergencies), cared for three children, and did household

            chores except ironing.  From this evidence it was permissible

            to  conclude, as the ALJ did, that claimant could handle some

            range of sedentary work.

                 Even if claimant's conditions flared up or worsened some

            time  after  May  1988,  nevertheless  there  is  substantial

            evidence  that  claimant could  perform  sedentary  work once

            again  by November 1988.   In his September  1988 report, Dr.

            Acosta stated claimant had  very much improved.   Although as

            of  that date  limitations  in head  flexion, arm  movements,

            bending, and  prolonged sitting prevented her from performing

            her secretarial  job full time, Dr.  Acosta believed claimant

            could begin part  time work at a different, light  job in two

            months.   He stated that claimant should work "at first" part

            time, a phrasing which suggests he did not think claimant was

            permanently limited to part time work.  Consequently, this is

            not a case where an ALJ  had to interpret raw medical data to

            determine   claimant's  RFC.    Rather,  claimant's  treating

            physician indicated in general terms what type of work (light

            duties) claimant could do despite her limitations.

                 Claimant argues that the Secretary  should have obtained

            a detailed assessment from a doctor specifically addressed to

            claimant's manual  abilities and the  effect fatigue produced

            by a  full time  job  would have.   In  the  context of  this

-9-

record,  we disagree.   Dr.  Acosta, the  treating physician,

            filled  out a form  labelled "Attending Physician's Statement

            of  Disability"  to  be  submitted  to  claimant's employer's

            disability insurer.   It was  clear that this  form would  be

            used  in  assessing claimant's  capacity  for  work, yet  Dr.

            Acosta, while  diagnosing bilateral thoracic  outlet syndrome

            and noting limitations  as of September 1988 in hand flexion,

            arm movements, bending, and prolonged sitting which prevented

            claimant from returning to  her secretarial position, did not

            focus particularly on manual   limitations.  We do  not think

            the  Secretary  was  required  to  recruit  a  more  detailed

            analysis than claimant's own treating physician had provided.

                                          B.

                 Claimant contends  the ALJ  did not  adequately consider

            and assess  her complaints of  pain and  numbness and  should

            have found a complete absence of bimanual dexterity rendering

            her  unable  to work.   We  disagree.   The  ALJ specifically

            followed Avery v. Secretary of Health and Human Services, 797
                     _____    ______________________________________

            F.2d 19  (1st Cir. 1986), in  assessing claimant's subjective

            complaints.    He  was  not  required  to  accept  claimant's

            assertions, particularly in view  of the treating physician's

            opinion that claimant could work and the treating physician's

            failure to  focus  on severe  manual  limitations  precluding

            claimant from returning to work.

                                         C.  

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The  ALJ did  credit claimant's  complaints in  part and

            stated  that claimant "should avoid the repeated use of hands

            for fine  movements."  He  concluded that claimant  could not

            return to her past  secretarial job, but could do  other jobs

            described by the  ALJ.  Claimant argues  that she may  not be

            able  to perform the jobs  the VE identified  because the ALJ

            did  not include the limitation  in repeated fine movement in

            his  question to the VE and hence  the jobs the VE enumerated

            may require fine manipulation abilities.  

                 The ALJ posed the following question to the VE:

                           Q     If  we   determined  that  the
                      claimant had or has the residual capacity
                      to do sedentary jobs that would allow her
                      to change  positions  and if  she  didn't
                      have  to  use  her hands  or  raise  them
                      higher  than  shoulders height,  and that
                      she weren't near  unprotected heights  or
                      dangerous operating machinery, I  ask you
                      if she  could do the  job she did  in the
                      past, and if she couldn't if there is any
                      jobs [sic] that she could perform.

            The  VE responded that  in the  shoe industry  claimant could

            either  classify shoe  parts or  verify that labels  had been

            properly cut and  glued.   In the  electronics industry,  she

            could  be a tester,  which would entail  testing currents and

            electrical  parts  with capacitators.    These  jobs, the  VE

            summed up,  were sedentary,  allowed for change  of position,

            did not  require reaching  overhead, and  did not  expose the

            worker to dangerous heights.  In other words, while the ALJ's

            question had  included the broad condition  that claimant not

-11-

have  to "use" her hands,  the VE's response  did not include

            such an absolute limitation,  but rather described jobs which

            apparently involved some use of the hands.

                 The ALJ's second question  to the ALJ added limitations.

            He asked the  VE whether claimant could handle any job if her

            subjective  complaints  of  pain   and  numbness  were  fully

            credited  and if claimant "had  a limitation from moderate to

            severe to utilize her  hands in a sustained manner,  for even

            sedentary tasks."  The  VE responded that there were  no jobs

            claimant could perform.

                 The fair  thrust  of  the  VE's  testimony  is  that  if

            claimant has  a moderate  to severe  limitation in  using her

            hands  in a sustained manner,  she can not  perform the three

            jobs he  listed, but if the  restriction in use of  her upper

            extremities is  limited to overhead  reaching, she can.   The

            problem here is  that claimant's functioning, as found by the

            ALJ,  fell  somewhere  in  between that  posited  in  the two

            hypotheticals -- claimant could  generally use her hands, but

            should not repeatedly  perform fine movements  -- but the  VE

            was not asked, and  did not directly say, what  jobs claimant

            could handle if she were so restricted.         

                 We have indicated  that the hypothetical  posed to a  VE

            must  accurately reflect the  claimant's limitation  in order

            for  the VE's  response  to constitute  substantial  evidence

            sustaining the  Secretary's burden  at step five  to identify

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alternate work the claimant can perform.  Arocho v. Secretary
                                                      ______    _________

            of Health and Human  Services, 670 F.2d 374 (1st  Cir. 1982).
            _____________________________

            See  also Cooper v. Sullivan,  880 F.2d 1152,  1158 n.13 (9th
            ___  ____ ______    ________

            Cir.  1989)  ("A   vocational  expert's  testimony   can  not

            constitute  substantial   evidence   to  support   an   ALJ's

            determination as to a  claimant's disability status unless it

            accurately reflects all of  the claimant's limitations ...").

            Hence, the hypothetical  was materially deficient in  failing

            to include the limitation on fine manipulation.  Particularly

            in view  of claimant's  repeated complaints of  hand numbness

            and weakness,  as well  as the diagnosis  of thoracic  outlet

            syndrome -- a condition characterized by pain in the arms and

            weakness  and wasting  of  the  small  muscles of  the  hand,

            Sloane-Dorland Annotated Medical Legal Dictionary  697 (1987)

            -- it was important for the VE to focus on  claimant's manual

            abilities  in  identifying  what  jobs  the   claimant  could

            perform.    Not  being  vocational experts,  we  do  not know

            whether the identified jobs require repeated fine movements. 

                 The Secretary  argues, and the district court concluded,

            that  claimant's failure  to object  to  the phrasing  of the

            hypothetical question or to  elicit more information from the

            VE on cross-examination forecloses claimant from now claiming

            error.   In support, the  district court relied  on Torres v.
                                                                ______

            Secretary of  Health and Human  Services, 870  F.2d 742  (1st
            ________________________________________

            Cir. 1989).  In Torres, claimant based disability on a visual
                            ______

-13-

complaint.   The  VE, who  had reviewed  the file,  was asked

            whether claimant could perform his past work (as a waiter) or

            any  other work in the national economy.  On appeal, claimant

            argued that the  question was inadequate  because it did  not

            specifically  describe claimant's limitations.   While noting

            that  claimant's  argument  might  be valid  in  general,  we

            concluded  that  it  was   unavailing  in  the  circumstances

            presented by that case where the record  was limited, medical

            evidence  was  addressed   substantially  to  one  impairment

            (vision),   all  doctors  had  reported  successful  cataract

            surgery and good prognosis, and it was not likely that the VE

            would  have  failed to  focus  on  the visual  impairment  in

            answering the  question.   In those circumstances,  we stated

            that  if  claimant  felt the  hypothetical  was  inadequately

            phrased, he should have posed his own.  

                 The   circumstances  in  the   present  case   are  very

            different.    Multiple  impairments  with   multiple  alleged

            manifestations  were claimed.   The  ALJ found  a significant

            limitation on  fine manipulative  ability, but did  not focus

            the ALJ's attention upon it.   We think it is unrealistic  to

            require the  claimant to  anticipate what complaints  the ALJ

            will credit and  what limitations  the ALJ will  find and  to

            require the claimant to  insure that the hyothetical reflects

            those limitations.

-14-

As  the  hypothetical  did  not  include  a  significant

            limitation, we conclude that  a remand is required so  that a

            VE,   properly  informed   of  claimant's   limitations,  can

            determine whether there are jobs she can perform.

                 The judgment  of the district  court is vacated  and the

            case  is remanded with directions to  remand to the Secretary

            for further proceedings consistent with the opinion.

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