[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 95-1028
JOSE R. FIGUEROA ALVAREZ,
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. Salvador E. Casellas, U.S. District Judge]
Before
Torruella, Chief Judge,
Selya and Boudin, 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 Donna McCarthy, Assistant
Regional Counsel, Department of Health & Human Services, on brief for
appellee.
August 2, 1995
Per Curiam. In 1990, Jose Figueroa Alvarez filed
an application for Social Security disability benefits,
alleging disability due to lower back pain. After a hearing,
the administrative law judge (ALJ) denied Figueroa's claim,
concluding that he could perform his past relevant work as a
security guard, and the Appeals Council denied review.
Figueroa then appealed to the district court, which affirmed
the decision. He now seeks review in this court. Because
Figueroa's specific objections on appeal are meritless, and
because our review of the record shows that substantial
evidence supports the finding that Figueroa was not disabled,
we affirm.
In his decision, the ALJ determined that the
medical evidence of record showed that Figueroa has a severe
musculoskeletal condition, but not one meeting or equalling
the conditions listed in 20 C.F.R. Pt. 404, Subpt. P, App. 1.
Specifically, a CT scan showed lumbar spine spondylolysis and
spondylolisthesis at the L4-L5 level and posterior bulging
with small central disc herniation and compression of the
dural sac at that level. The ALJ found that Figueroa's back
condition was compatible with episodic pain, but concluded
that the evidence did not establish a medically determinable
basis for the degree of pain alleged. He also found that
Figueroa's back condition had not limited his neurological or
orthopedic functioning since Figueroa had always exhibited
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good range of motion and no muscle weakness. Nonetheless,
the ALJ determined that Figueroa could no longer perform his
prior medium exertional level job as warehouseman and/or
fingerlift operator. Because he found that Figueroa could
still perform light work, however, the ALJ concluded that he
could perform his past relevant work as a security guard, a
job Figueroa had held from 1983-86 and again in 1990.
DISCUSSION
On appeal, Figueroa claims that the ALJ failed to
consider his allegations of disabling pain, erred in
concluding that he could return to his past work as a
security guard, and denied him disability benefits without
considering evidence in his favor.
A. Allegations of Disabling Pain
In support of his claim that the ALJ failed to
consider his allegations of disabling pain, Figueroa states
first that he constantly and persistently complained to
examining physicians of severe disabling pain. He suggests
that the ALJ ignored that evidence. The record does not
substantiate his claim.
First, there are significant gaps in Figueroa's
medical records between December 1988, when he first injured
his back, and October 1991, when the hearing took place. We
have found no medical records indicating that Figueroa
complained of pain to examining physicians for the periods
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from May 1989 to December 1989, February 1990 to June 1990,
or March 1991 to October 1991.1
Second, as the transcript shows, at the hearing the
ALJ elicited Figueroa's testimony on relevant aspects of the
pain he alleged, as required under Avery v. Secretary of
Health and Human Services, 797 F.2d 19, 29 (1st Cir. 1986).2
In his decision, the ALJ took account of that testimony and
stated that Figueroa's "salient complaint" was pain and
decreased sensation in his right leg. In view of the medical
evidence, however, the ALJ did not fully credit Figueroa's
allegations of pain. He noted the gaps in Figueroa's medical
treatment history, including the fact that he had not sought
1. The record contains an August 1989 report of the Puerto
Rico Industrial Commission in which the Commission reported
that Figueroa alleged pain in his lower right back and right
hip. Apparently, because of Figueroa's allegation of pain,
the Commission overturned the State Insurance Fund's May 1989
discharge of Figueroa as "cured and without disability." In
February or March 1991, the State Insurance Fund determined,
under the applicable worker's compensation law, that in
December 1988 Figueroa had sustained a partial permanent
disability of 15 % of his "general physiological functions."
Although disability determinations by other agencies may be
considered by the Secretary, they are not binding. See
Mandrell v. Weinberger, 511 F.2d 1102, 1103 (10th Cir. 1975)
(Veterans' Administration disability determination is
entitled to consideration, but is not binding on the
Secretary).
2. Under Avery, the ALJ was required to inquire into the
nature, location, onset, duration, frequency, radiation, and
intensity of the pain in question; the factors that
precipitated or aggravated the pain; the type, dosage,
effectiveness, and adverse side effects of pain medication;
treatment for the pain other than medication; and the
claimant's functional restrictions and daily activities.
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any treatment after February 1991. He concluded that, while
Figueroa's back condition could cause pain on an episodic
basis, the pain had proven treatable and had not limited his
functioning significantly, except to the extent that he could
not perform medium or heavy work.
Besides the gaps in Figueroa's medical record,
other evidence supports the ALJ's conclusion. Although
Figueroa testified that his pain was constant and strong, he
also said that medication "alleviate[d]" the pain and that
massaging his leg alleviated painful cramping during the
night. He testified that his medication gave him heartburn,
and for that reason it had been changed; his current
medication allegedly had side effects, too, but Figueroa gave
no specifics and acknowledged that he took it anyway because
it "at least relieve[s] the pain a little."3 The ALJ noted
that Figueroa appeared in no distress at the hearing and that
he walked adequately with no assistive device. Figueroa also
testified that he could walk for 30 meters, that one of his
daily activities was walking around his yard, and that he
walked around the house when leg pain woke him up at night.
A consulting neurologist reported in January 1991 that
Figueroa had back pain syndrome, but that he could do tip toe
3. In his decision, the ALJ stated that Figueroa's pills
caused numbness, but we found nothing in the hearing
transcript to support that statement, and so assume that it
was inadvertent error.
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gait, walk on his heels and squat on his knees; that his
forward lumbar flexion was 80 degrees forward and his lateral
lumbar flexion was 20 degrees;4 that his Lasegue was
negative5 and his straight leg raising was 90 degrees; that
he had no motor weakness and no muscle atrophy although he
had minimal paravertebral muscle spasm; and that there was
decreased sensation in his right leg without any anatomical
distribution. In February and June 1991, Social Security
physicians reviewed Figueroa's medical records and assessed
his residual functional capacity (RFC).6 Each indicated
that, despite his back condition, Figueroa could perform the
exertional requirements of light work: he could occasionally
lift or carry 20 pounds and frequently lift or carry 10
4. Accompanying range of motion charts show that full lumbar
flexion forward is 90 degrees and that full lateral lumbar
flexion is 20 degrees.
5. This apparently means that Figueroa suffered no pain or
limitation of movement when raising his legs while in a
supine position. See Blakiston's Gould Medical Dictionary
743 (4th ed. 1979) (Lasegue's sign becomes positive when a
supine patient raises his entire lower extremity with his
knees in full extension and suffers pain or muscle spasm
resulting in limitation of movement at a particular angle of
elevation).
6. Among other things, the medical opinion request form
underlying the February RFC assessment noted Figueroa's claim
of pain, his minimal paravertebral muscle spasm, decreased
sensory sensation in his right leg without anatomical
distribution, and his original back injury and CT scan
results. The medical opinion request form underlying the
June RFC assessment noted, among other things, his back
condition, decreased sensation in his right leg, and minimal
paravertebral muscle spasm.
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pounds; he could stand, walk and sit with normal breaks each
for a total of about 6 hours in an 8-hour workday; and he
could push or pull without limit. See 20 C.F.R. 404.1567
(the physical exertional requirements of light work comprise
the ability to lift no more than 20 pounds at a time while
frequently lifting or carrying objects up to 10 pounds, to
walk or stand a good deal, or to perform some pushing and
pulling of arm or leg controls if the job mostly required
sitting); SSR 83-10 ("[T]he full range of light work involves
standing or walking, off and on, for a total of approximately
6 hours of an 8-hour workday. Sitting may occur
intermittently during the remaining time."). Figueroa has
not submitted any physician's evaluation or other medical
report which contradicts the neurologist's assessment of his
condition as of January 1991, nor any residual functional
capacity evaluation which contradicts the two RFC assessments
indicating that he could perform light work.
B. Past Relevant Work
Figueroa objects to the ALJ's conclusion that he
could perform his past relevant work of security guard, which
is classified as light exertional work. See U.S. Dep't of
Labor, Dictionary of Occupational Titles (DOT) 269 (4th rev.
ed. 1991). In support thereof, Figueroa cites the postural
limitations described in the Secretary's RFC assessments.
Both assessments indicated that, given his back condition,
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Figueroa could only occasionally climb stairs, stoop, crouch
and crawl.7 Figueroa argues that the ALJ, as a layman,
could not evaluate how his postural limitations would affect
his ability to perform the work of a security guard,
suggesting that the ALJ needed the guidance of a vocational
expert.
We disagree. Figueroa bore the burden of showing
that he could no longer perform his former job. In order to
meet that burden, he needed to provide "some minimal
information about the activities that [his] past usual work
required[.]" Santiago v. Secretary of Health and Human
Services, 944 F.2d 1, 5 (1st Cir. 1991); accord Dudley v.
Secretary of Health and Human Services, 816 F.2d 792, 794
(1st Cir. 1987) (per curiam). But Figueroa never testified
that his prior work as security guard required any climbing,
stooping, crouching and crawling, let alone doing so more
than occasionally, nor does anything we have found in the
record suggest that this is true. Thus, there was no
evidence before the ALJ to show that Figueroa could not
perform his past job as a security guard because of his
postural limitations. Nor are climbing, stooping, crouching
and crawling listed as physical requirements of the security
guard job in the relevant vocational publication. See U.S.
7. The RFC assessment forms define "occasionally" to mean
"occurring from very little up to one-third of an 8-hour
workday (cumulative, not continuous)."
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Dep't of Labor, Selected Characteristics of Occupations
Defined in the Revised Dictionary of Occupational Titles
(SCO) Pt. A, at 45; App. C, at C-3 (1993) (the physical
demand components of climbing, stooping, crouching and
crawling are "not present" in the security guard job);8 see
also SSR 83-14 (stating that relatively few jobs in the
national economy require climbing and that workers performing
light exertional jobs would not have to crouch and would have
to stoop only occasionally to perform substantially all the
exertional requirements of most light jobs). Since Figueroa
never met his burden of showing that his postural limitations
prevented him from returning to his past work as security
guard, and the SCO indicates that his postural limitations
would not prevent him from performing the security guard job
as usually performed in the national economy, the ALJ had no
obligation to consult a vocational expert. See Musgrave v.
Sullivan, 966 F.2d 1371, 1376 (10th Cir. 1992) (an ALJ has no
obligation to seek vocational expert testimony where a
claimant has not established a disability that prevents him
from performing his past relevant work); see also SSR 82-61
(stating that vocational experts may be necessary in
determining how a job is usually performed where the
8. The Secretary of Health and Human Services may rely on
the general job categories in the DOT and SCO as
presumptively applicable to a claimant's prior work. See
Villa v. Heckler, 797 F.2d 794, 798 (9th Cir. 1986).
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vocational resource materials are insufficient); compare Gray
v. Heckler, 760 F.2d 369, 373 (1st Cir. 1985) (an ALJ may
rely on vocational publications in determining whether a
claimant could return to past work where the claimant had the
opportunity to, but did not, testify about the demands of her
prior job).
Figueroa next suggests that the ALJ ignored
significant evidence in determining that he could return to
his work as a security guard. Figueroa points first to his
testimony that he could not continue working as a security
guard. At the hearing, Figueroa testified that he had to
leave his security guard position in June 1990 after
reinjuring his back. He also testified that he had tried to
return to work recently, but that he had to quit after a
month because he was required to stand all the time, making
his leg and heel numb.9 Furthermore, Figueroa stated that
9. The record does not show conclusively that this job was a
security guard position. Figueroa described his unsuccessful
attempt to work again in response to the ALJ's question
whether he had worked as a security guard elsewhere after
June 1990, suggesting that the job was a security guard
position. But, when the ALJ then concluded that Figueroa had
worked as a security guard for five months in 1990,
Figueroa's attorney presented a letter certifying only
Figueroa's previous employment as a security guard for the
four-month period from February to June 1990. The rest of
the attorney's response is listed as "inaudible." In his
decision, the ALJ reports that Figueroa alleged at the
hearing that he worked as a security guard for only four
months, but that in his written submissions to the agency he
stated that he had also worked from 1983-86 as a security
guard. This suggests that the ALJ's understanding was that
Figueroa's unsuccessful one-month employment was not a
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he could stand only for about 25-30 minutes, then he had to
move his legs or stand on his toes. Figueroa also suggests
that the ALJ ignored medical records from April 1989 and June
1990 which indicated that he had difficulty in standing.10
The fact that Figueroa had to leave his security
guard job in June 1990 or that he complained of difficulty in
standing in April 1989 and June 1990 is not very significant
since the record indicates that his back condition improved
afterwards and that it had not significantly affected his
legs. In September 1990, a neurosurgeon reported that
Figueroa's back pain did not radiate to his legs and that he
had very infrequent cramps; he found that Figueroa had no
security guard position. Figueroa's brief contains a
confusing passage on this point, but seems intended to
confirm the ALJ's understanding.
Even if the job in question were a security guard job,
however, Figueroa's testimony at most showed that he could
not return to a specific security guard job because it
required him to stand continuously. He did not show that the
typical security guard job entails standing for greater than
six hours a day. Thus, even if his allegation that he could
not stand for a prolonged period were fully credited, he
still failed to show that his inability to stand for
prolonged periods would prevent his returning to work as a
security guard. See Pelletier v. Secretary of HEW, 525 F.2d
158, 160 (1st Cir. 1975) (a claimant did not meet her burden
of proof by showing that a particular past job entailed
exposure to smoke and fumes; she was required to show that
such exposure would be a condition of her type of work
generally).
10. The records stated that he complained of difficulty in
sitting for prolonged periods of time, too, but Figueroa does
not allege the ALJ erred by failing to consider his
difficulty in sitting.
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diminished sensation or edema in his legs and that he walked
with a normal gait; his sensory and motor systems and
reflexes were within normal limits; his heel to toe walking
was excellent; there was no objective radiculopathy.11 By
December 1990, a State Insurance Fund physician advised him
that he could return to work. In January 1991, Figueroa told
the consulting neurologist that he had difficulty sitting,
but he did not complain about difficulty in standing for
prolonged periods. Although the neurologist found that
Figueroa had decreased sensation in his right leg, he also
found that Figueroa had no motor weakness and no muscle
atrophy. The uncontradicted February and June 1991 RFC
assessments both indicated that Figueroa could stand or walk
for six hours out of an eight-hour workday.12 Figueroa
never sought any treatment for numbness in his legs in 1991.
At the hearing, Figueroa appeared to attribute the numbness
in his legs to the pain he suffered, but, as noted earlier,
he also said that his medications and hand massaging
alleviated the pain. In addition, he suggested that moving
his legs or standing on his toes helped relieve discomfort
caused by prolonged standing. Under the circumstances, the
11. Radiculopathy is defined as "disease of the nerve
roots." See Dorland's Illustrated Medical Dictionary 1405
(27th ed. 1988).
12. Neither physician marked the box on the RFC form which
indicated that Figueroa should alternate periodically his
sitting and standing in order to relieve pain or discomfort.
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ALJ's apparent failure fully to credit Figueroa's allegation
that he could not stand for prolonged periods of time was
supported by substantial evidence in the record.13
C. Failure to Consider Whole Record
Figueroa claims that the ALJ relied exclusively on
evidence favorable to the Secretary and disregarded
"overwhelming evidence" in the record which established his
disability. As our discussion above shows, however,
substantial evidence in the record supported the ALJ's
decision. Two uncontradicted RFC assessments indicated that
Figueroa could perform light work that entailed standing or
walking for six hours out of an eight-hour workday. Some six
months after Figueroa had reinjured his back in June 1990, a
State Insurance Fund physician found that he could return to
work. There was no evidence that Figueroa sought any
treatment for pain or numbness after February 1991, and there
was evidence that he was able to relieve the discomfort
occasioned by his back condition.
Affirmed.
13. Figueroa also states that "another telling fact" is the
fact that he wears an orthopedic girdle, but he does not
develop that argument and so we do not consider it further.
See United States v. Zannino, 895 F.2d 1, 17 (1st Cir.),
cert. denied, 494 U.S. 1082 (1990).
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