[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 94-1515
ANTONIO RIVERA GARAY,
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. Hector M. Laffitte, U.S. District Judge]
Before
Cyr, Boudin and Stahl, Circuit Judges.
Juan R. Requena Davila, 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 M. Peckrill, Assistant
Regional Counsel, Department of Health & Human Services, on brief for
appellee.
Per Curiam. Claimant Antonio Rivera Garay filed an
application for social security disability benefits on
January 9, 1990, alleging disability due to a back and leg
condition, associated pain, and an anxiety disorder. After a
hearing, the Administrative Law Judge (ALJ) conceded that
claimant had a severe impairment or impairments, but
concluded that claimant was not disabled at step 4 of the
sequential evaluation process, 20 C.F.R. 404.1520(e), on
the ground that claimant's impairments did not preclude his
return to his former job as a lottery ticket vendor. The ALJ
based this determination on the testimony of a vocational
expert at the hearing that an individual with claimant's
impairments, as described by the ALJ, could perform that job.
After the Appeals Council denied claimant's request
for review of the ALJ's decision, claimant appealed to the
district court, which affirmed. On appeal to this court,
claimant argues that the Secretary's decision is not
supported by substantial evidence. We agree, and we direct a
remand to the Secretary for the taking of additional
vocational evidence.
Background
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We review the Secretary's decision under a
"substantial evidence" standard; we will affirm that decision
if it is supported by "such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion."
Richardson v. Perales, 402 U.S. 389, 401 (1971). The ALJ's
determination that claimant could perform his past work was
based on the vocational expert's answers to hypothetical
questions posed by the ALJ. We must, therefore, examine the
soundness of those questions' premises. If the premises are
supported by substantial evidence in the record, then the
vocational expert's responses constitute substantial evidence
to support the ALJ's vocational determination that claimant's
impairment do not preclude his former work. If the premises
lack record support, then the vocational expert's responses
are not substantial evidence. "[I]n order for a vocational
expert's answer to a hypothetical question to be relevant,
the inputs into that hypothetical must correspond to
conclusions that are supported by the outputs from the
medical authorities." Arocho v. Secretary of Health and
Human Services, 670 F.2d 374, 375 (1st Cir. 1982).
The ALJ described claimant's exertional impairment
to the vocational expert as follows:
[C]onsidering the claimant's age, education
and working experience; considering that he
can alternate positions, can perform fine and
gross manipulation, he can push and pull up
to 25 pounds, frequently. That he can
occasionally lift more than 25 pounds. That
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he would be limited in the use of foot
controls, but that he could bend, squat, he
could pull and push the weight mentioned
before. If this is the situation, are there
jobs in a significant number that a person
like the one we have described before could
do?
The vocational expert responded that claimant could return to
his former job as a lottery ticket vendor.
The ALJ then added a hypothetical directed to
claimant's mental impairment, asking, "And if we added a
mental condition where the memory seems preserved, the
recent, remote and immediate memory is present, there is good
attention, concentration, mental capacity, good judgment,
good introversion. Would your opinion vary at all?" The
vocational expert responded that it would not.
Finally, the ALJ asked, "And if we gave credibility
to the claimant's complaints as indicated here today, that he
feels pain in the leg, that the left leg gets numb, that the
knee fails him, that he has to use a cane, that he has chest
pains, that he likes to be alone, that he hears voices. If
we gave credibility to these complaints, would your
appreciation change at all?" The vocational expert responded
that claimant could not perform his past job in that
condition.
Claimant's Exertional Impairment
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Substantial record evidence exists to support the
ALJ's description of claimant's exertional impairment. Two
non-examining physicians, Dr. Fragoso and Dr. Hernandez,
reviewed the record and assessed claimant's residual
functional capacity. Both found that claimant could lift and
carry up to 50 pounds, 25 pounds frequently; could sit, walk,
and stand up to six hours each day; could push and pull; had
no manipulative limitations; and could climb, balance, stoop,
kneel, crouch and crawl at least occasionally. These medical
findings, which constituted the only medical assessments of
claimant's residual exertional capacity in the record,
adequately supported the ALJ's hypothetical.
It is true that the weight to be given the residual
functional capacity assessments of non-examining physicians
"will vary with the circumstances, including the nature of
the illness and the information provided the expert."
Rodriguez v. Secretary of Health and Human Services, 647 F.2d
218, 223 (1st Cir. 1981). Claimant's benefits application,
however, was denied at step 4, and at step 4 it is ordinarily
claimant's burden, not the Secretary's, to produce evidence
to demonstrate that he cannot return to his former work.
Gray v. Heckler, 760 F.2d 369, 375 (1st Cir. 1985). Since
claimant was represented by counsel, there is no
justification here for a departure from that rule. See
Currier v. Secretary of Health, Education and Welfare, 612
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F.2d 594, 598 (1st Cir. 1980). The onus was on claimant,
therefore, to introduce additional residual functional
capacity assessments relevant to the step 4 determination.
Claimant having failed to do so, the Secretary was entitled
to rely on the assessments of these non-examining physicians.
Claimant's Allegations of Pain
We also find no error in the ALJ's treatment of
claimant's subjective complaints of pain. The exertional
aspects of claimant's pain, associated with claimant's back
and leg condition, are covered by our above remarks. It was
partly because of claimant's "pain or discomfort related to
back syndrome" that the ALJ concluded that claimant faced the
exertional limitations the ALJ outlined in her hypothetical
to the vocational expert.
As for the non-exertional aspects of claimant's
pain, we find that the ALJ conducted the kind of inquiry into
claimant's allegations of pain required by Avery v. Secretary
of Health and Human Services, 797 F.2d 19 (1st Cir. 1986),
and that the ALJ's decision to discredit allegations of
disabling pain was supported by substantial evidence. The
record supports, and claimant has not challenged, the ALJ's
findings that claimant "has been taking medication on his
own, has not been going for treatment consistently and he
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should complain to the treating sources so that corrective
action may be undertaken such as prescribe a substitute
medication, decreasing the frequency or the dosage of the
medication or orienting the claimant in terms of taking
medication consistently." The ALJ also permissibly relied on
her own observations at the hearing that claimant "had a
cane, but he did not appear to actually need it for support.
He admitted that such cane was not prescribed by any medical
source and that he bought it on his own. He was able to sit,
stand up and exercise body control with no significant
limitations." This evidence adequately supported the ALJ's
finding, as reflected in her hypotheticals to the vocational
expert, that claimant did not suffer from significant pain
beyond that which contributed to his exertional limitations.
Claimant's Mental Impairment
The deficiency in the Secretary's determination
concerns the ALJ's description of claimant's mental
impairment in the ALJ's hypothetical to the vocational
expert. The hypothetical merely stated that claimant had a
mental condition, without any description of any specific
mental impairment or any specific functional consequences.
The hypothetical then went on to list a number of areas in
which claimant's mental capabilities were found to be normal.
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As claimant argues in his brief on appeal, "the subject
hypothetical having to do with appellant's mental condition
poses no mental impairment at all."
The medical evidence does not permit claimant's
mental condition to be ignored in this manner. Even the
psychological evaluation most favorable to the Secretary,
that of Dr. Orlando Maldonado Rodriguez conducted on March 7,
1990, found a "mild anxiety disorder." It did not discuss
what, if any, functional limitations that disorder posed.
The two assessments by non-examining agency review physicians
of claimant's residual mental capacity, provided by Dr.
Reboredo and Dr. Jeanette Maldonado, found that claimant had
a severe anxiety-related disorder which imposed "moderate"
limitations in various functional areas, including the
following: maintaining attention and concentration for
extended periods, performing within a schedule, maintaining
regular attendance and punctuality, completing a normal work
day or week without interruption from psychologically based
symptoms, performing at a consistent pace without an
unreasonable number and length of rest periods, interacting
appropriately with the general public, getting along with co-
workers without distracting them or exhibiting behavioral
extremes, and responding appropriately to changes in a work
setting. Of particular relevance, given claimant's past
work as a lottery ticket salesman and the ALJ's denial of
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benefits on the ground that claimant could still perform that
job, Dr. Reboredor wrote that claimant "cannot relate to
public . . . on a steady basis," and Dr. Jeanette Maldonado
expressed a similar view.
The ALJ herself specifically concluded in her
decision that claimant has "some anxiety related disorder
although it is mild to moderate in nature," and that he could
not "perform . . . complex tasks with detailed instructions."
The ALJ failed to address, however, what affect the moderate
limitations on, for example, dealing with the public and
completing a normal workday would have on claimant's ability
to perform his past work as a salesman.
Although we recognize that the medical evidence
supported the ALJ's finding of a "mild to moderate" mental
disorder, the hypothetical presented to the ALJ -- which
effectively described no mental limitation at all -- was at
odds with the medical evidence and with the ALJ's own
finding. It may be that claimant's former job could be
performed by an individual with claimant's "mild to moderate"
mental impairment. This court is certainly not qualified to
make that determination nor is it clear why the ALJ was
entitled to do so in the absence of expert vocational
testimony. Such was not obtained here and, if there is some
basis on which the ALJ was justified in disregarding or
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discounting the medical evidence as to mental disorder, that
explanation is not set forth in the ALJ' decision.
Conclusion
For the reasons stated above, the judgment of the
district court is vacated. We remand this case to the
district court with instructions to remand to the Secretary
for further proceedings, which may include the taking of
additional vocational evidence, not inconsistent with this
opinion.
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