May 31, 1994
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 93-2092
LAURA E. LOPEZ-MERRERO,
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. Carmen Consuelo Cerezo, U.S. District Judge]
Before
Selya, Cyr and Stahl,
Circuit Judges.
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 Paul Germanotta, Assistant
Regional Counsel, Department of Health and Human Services, on brief
for appellee.
Per Curiam. Claimant Laura E. Lopez-Marrero
appeals from the judgment of the district court which
affirmed the decision of the Secretary of Health and Human
Services that claimant was not entitled to Social Security
disability benefits.
I. BACKGROUND
Claimant filed an application for Social Security
disability benefits on June 6, 1989. She alleged an onset
date of October 15, 1988. As disabilities she listed her
nerves and her back. She related her impairments to two
falls at work. An administrative law judge (ALJ) held a
hearing. Claimant testified concerning her most recent work.
First, she worked in a pharmaceutical factory where she
manually checked and counted the gloves made there. She
would alternate between sitting and standing and only had to
carry "little" things. Next, she was employed as an office
worker; she took notes and answered the phone.
Claimant stated that she lives with her husband.
After the accidents, she suffered pain in her left leg, left
hip, left ankle and right hand. She uses a cane because of
the pain in her legs. She visits a doctor when in pain and
takes Motrin. She can sit and stand for twenty minutes at a
time but has problems walking. She can lift light objects.
She would like to work but cannot because of the problems she
has with her memory due to her nerves and because of the pain
in her lower back, coccidial area and left hip. She
described her pain as strong although sometimes the medicine
helps. As for her nerves, she feels desperate and restless.
The ALJ first determined that claimant's
impairments did not meet the listings. Nonetheless, he found
that there existed some limitations in her work-related
activities due to both her exertional and non-exertional
conditions. As for claimant's mental impairment, the ALJ
concluded that claimant was only precluded from performing
complex tasks due to some deterioration in her ability to
sustain concentration. Nonetheless, she retained the
capacity to perform simple tasks that were routine and
repetitive in nature. He rejected the level of deterioration
described by claimant, finding that, under Avery v. Secretary
of Health and Human Services, 797 F.2d 19 (1st Cir. 1986),
she was only somewhat limited in social functioning and daily
activities.
In relation to her neurological condition, the ALJ
found that she suffered from lumbar strain and had a history
of trauma to her left hip, left ankle and right hand. Under
Avery, the ALJ credited claimant's complaints of pain only to
the extent that she was precluded from doing heavy lifting
and carrying and from standing or walking for prolonged
periods of time. Thus, he concluded, she could perform her
past work.
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On appeal, claimant argues that the ALJ's
determinations regarding her pain were not substantially
supported by the record. Further, claimant asserts, the ALJ
erred by translating, without the aid of a vocational expert,
the medical evidence of claimant's physical impairments into
functional limitations on her ability to perform her past
work. As for her mental condition, claimant asserts that the
ALJ's decision was not supported by substantial evidence when
viewed in the context of the record as a whole.
Specifically, claimant points to the findings concerning
restrictions in her ability to cope with the stresses of work
in general.
A. Physical Impairment
The x-ray reports, which found partial
sacralization of the L-5 disc and narrowing of the L-5-S-1
disc space, do provide evidence of "a clinically determinable
medical impairment that can reasonably be expected to produce
the pain alleged." See Avery, 797 F.2d at 21. However,
there also was evidence to support the ALJ's decision not to
credit claimant's claims of totally disabling pain.
For example, in November 1989, claimant underwent a
neurological evaluation. See Exhibit 15. Although
claimant's complaints included constant pain, she had normal
tone, no atrophy and a strength rating of 4 out of 5. There
was no muscle spasm and no deformity. The diagnosis was
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lumbar strain. At another examination in October 1990, see
Exhibit 22, claimant complained of mild lower back pain which
was alleviated with Motrin. Despite the presence of some
muscle spasm and a limited range of motion of the lumbar
spine, there was no muscle weakness or atrophy and no sensory
deficit; claimant's gait was normal. The diagnosis was a
back condition by history, with no evidence of radiculapathy.
Contrary to claimant's argument, the ALJ did not
impermissibly translate medical data into functional
limitations. Rather, the record contained two residual
functional capacity (RFC) forms. In December 1989, a
physician opined that, based on the medical records, claimant
had no exertional, postural or other limitations. In a
November 1990 RFC assessment, it was noted that claimant
could occasionally lift and carry up to 50 pounds and could
frequently lift and carry 25 pounds. She could stand, sit
and walk for up to six hours each per day.
B. Mental Condition
Claimant's mental impairment presents a more
complicated picture but, again, there is evidence to support
the Secretary's position. A psychiatric examination
conducted in November 1989, see Exhibit 16, revealed that
claimant was logical, coherent, relevant and oriented. She
did not present any perceptual dysfunctions. Although she
appeared anxious and depressed, her attention span was
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conserved and her ability to concentrate was adequate. She
was described as capable of judging reality and the
consequences of her acts.
In July 1990, claimant also was described as
coherent, relevant, logical and cooperative; there were no
observable thought disorders. See Exhibit 18. Her affect
was appropriate and her mood normal. She reported delusions,
but the examiner described them as hysterical in nature. Her
memory was conserved. In addition, claimant took the MMPI.
The examiner described the results as "exaggerated." That
is, claimant "reported symptoms of such severe disturbance
that her profile fell outside the maximum limits that the
profile was designed to measure." As a result, "[s]he would
have been unlikely to be unable [sic] to take the test
properly if she were as severely disturbed as she was
claiming, and her behavior during the clinical part of the
examination was in sharp contrast with her claims of
disturbance." The diagnoses were mild dysthymia and a
personality disorder with dependent and hysterical features.
Three non-examining doctors completed mental RFC
assessments. In December 1989, claimant was rated as not
significantly limited in understanding, remembering and
carrying out short, simple instructions. Also not
significantly limited were her abilities to sustain an
ordinary routine without supervision, to make simple work-
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related decisions, to relate to co-workers, to maintain
socially appropriate behavior and to handle changes in the
work environment. As for maintaining concentration for
extended periods of time, performing within a regular
schedule, and being able to complete a normal work-week
without interruptions from psychologically-based symptoms,
claimant was moderately limited. She was not "markedly
limited" in any areas. The conclusion was that claimant was
capable of performing simple tasks on a sustained basis.
The RFC assessment completed in August 1990
essentially reached the same results. Even with moderate
limits on her abilities to complete a normal work-week, to
respond appropriately to changes in the work setting, and to
accept supervision, claimant retained the abilities to cope
with simple instructions, to perform within a schedule, to
make simple work-related decisions, to work in proximity to
others, to sustain an ordinary work routine, to maintain
regular attendance and to be punctual. The third physician,
in November 1990, echoed the findings concerning claimant's
capacity to deal with simple instructions, to work with
others, to make simple, work-related decisions and to respond
appropriately to criticism. She was moderately limited in
dealing with the stresses of work in general -- being able to
concentrate, maintaining a routine without supervision,
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completing a normal work-week and keeping up regular
attendance.
In Social Security Ruling (SSR) 85-15, the
Secretary set out the framework for addressing mental
impairments in the context of unskilled work. See Ortiz v.
Secretary of Health and Human Services, 890 F.2d 520, 526-27
(1st Cir. 1989) (per curiam) (discussing SSR 85-15). Two
sets of capabilities are necessary for this kind of work.
First, claimant must be able to understand, remember and
carry out simple instructions, to respond appropriately to
co-workers, supervision and normal work situations, and to
cope with routine changes in the work situation. There is
substantial evidence, based on the above reports, that
claimant meets these requirements.
The second set of capabilities concerns the demands
of any work environment, regardless of the skill level
involved. To be able to accommodate a work setting per se,
according to SSR 85-15, an individual must be capable of
being punctual, attending work on a consistent basis and
staying at work for the entire day. The RFC assessments
uniformly rated claimant as "moderately limited" in these
spheres of functioning. We have acknowledged that such
limitations may erode the occupational base "at least
marginally, and possibly more so." See Ortiz, 890 F.2d at
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527; see also Irlanda Ortiz v. Secretary of Health and Human
Services, 955 F.2d 765, 770 (1st Cir. 1991) (per curiam).
In this case, we believe that there is substantial
record evidence to support the Secretary's decision that
claimant's dysthymia did not significantly affect her ability
to successfully negotiate the work setting. In this regard,
we note that objective medical evidence -- the MMPI --
indicates that claimant may be exaggerating her symptomology.
III. CONCLUSION
We conclude that claimant has not met her burden of
establishing that her impairments precluded her from
performing her past work. See Gray v. Heckler, 760 F.2d 369,
371 (1st Cir. 1985) (per curiam). "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 [the Secretary's] decision." Rodriguez
v. Secretary of Health and Human Services, 647 F.2d 218, 222
(1st Cir. 1981). Although the record contains conflicting
evidence, the resolution of these conflicts is for the
Secretary, not the courts. See id. Given the medical
reports described above, there was substantial evidence in
the record as a whole to support the Secretary's conclusion.
The judgment of the district court is affirmed.
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