July 6, 1994 [NOT FOR PUBLICATION]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
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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