Irlanda Ortiz v. Secretary

USCA1 Opinion












February 5, 1992 ____________________


No. 91-1471

VICTOR J. IRLANDA ORTIZ,

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. Juan M. Perez-Gimenez, U.S. District Judge]
___________________

____________________

Before

Campbell, Torruella and Cyr,
Circuit Judges.
______________

____________________

Raymond Rivera Esteves and Juan A. Hernandez Rivera on brief for
______________________ ________________________
appellant.
Daniel F. Lopez Romo, United States Attorney, Jose Vazquez
_______________________ _____________
Garcia, Assistant United States Attorney, and Amy S. Knopf, Assistant
______ ____________
Regional Counsel, Department of Health and Human Services, on brief
for appellee.


____________________


____________________




















Per Curiam. Claimant, Victor J. Irlanda Ortiz,
___________

appeals from the judgment of the Federal District Court for

the District of Puerto Rico affirming the decision of the

Secretary of Health and Human Services that claimant was not

entitled to disability benefits. We affirm.

BACKGROUND
__________

Claimant filed an application for Social Security

disability benefits on August 18, 1983. He alleged an onset

date of 1978 and claimed disability due to problems with his

back, nerves, arms, legs, headaches, stomach and high blood

pressure. Claimant's insured status expired on March 31,

1984. The application was denied initially and upon

reconsideration. On July 31, 1984, after holding a hearing,

an administrative law judge (ALJ) determined that claimant

was not disabled. The case was remanded, however, for

reconsideration under the new mental health regulations

contained in the Disability Benefits Reform Act of 1984.

The same ALJ conducted another hearing and on

December 18, 1987, concluded that claimant suffered from

severe musculoskeletal and mental impairments which prevented

him from returning to his past work as a construction

laborer. The ALJ did not credit claimant's allegations of

pain and found that his emotional problems did not

significantly reduce his ability to perform the full range of

sedentary work. Using the Medical-Vocational Guidelines (the



-2-















Grid), Table No. 1, Rule 201.23, Pt. 404, Subpt. P., App. 2,

as a framework, he found that claimant was not disabled.

The Appeals Council ordered a remand. It directed

the ALJ to reconsider claimant's complaints of pain in light

of Avery v. Secretary of Health and Human Services, 797 F.2d
_____ _______________________________________

19 (1st Cir. 1986). Specifically, the Appeal Council stated

that where the objective medical evidence does not support

the degree of pain alleged by claimant, the ALJ also must

consider the daily activities described by claimant and his

prior work record.

On remand, the ALJ again discounted claimant's

allegations of disabling pain, noting that the record

contained reports in which claimant was described as being in

no physical distress. The ALJ also relied on the fact that

for long periods of time claimant was not in any treatment

for his back problems. The ALJ inferred that had claimant's

pain been as severe as alleged, claimant would have sought

treatment. As for his mental impairment, the ALJ concluded

that a slight difficulty in maintaining social functioning

did not reduce claimant's ability to perform the full range

of sedentary work. Using the same Grid rule, the ALJ

concluded that claimant was not disabled.

On January 19, 1989, the Appeals Council once more

remanded the case to the ALJ. It apparently accepted the

ALJ's conclusions as to claimant's complaints of pain.



-3-















However, it decided that vocational expert testimony was

required to determine the number of jobs available to

claimant given both his exertional and non-exertional

impairments. As a result, the ALJ held a hearing on June 14,

1989 at which a vocational expert (VE) testified. Based on

the Grid as a framework and the answers to the hypothetical

posed to the VE, discussed infra, the ALJ still concluded
_____

that claimant was not disabled. The Appeals Council denied

claimant's request for review on January 9, 1990. Thus, the

ALJ's decision became the final decision of the Secretary.

Claimant appealed the Secretary's decision to the

district court. The case was referred to a magistrate judge

who determined, without much explanation, that the

Secretary's decision was not supported by substantial

evidence. He therefore recommended vacating the decision.

However, the district court did not adopt this

recommendation. Rather, it affirmed the Secretary's decision

on the ground that the record contained conflicting evidence.

MEDICAL EVIDENCE
________________

The record reveals that claimant sought treatment

only from the State Insurance Fund (SIF) during the period

for which he was insured. He initially had pursued such

treatment in connection with an accident he sustained at work

in July 1978. The progress notes from the SIF reveal the

following sporadic course of treatment:



-4-















(1) 1978.
____

In 1978, claimant was evaluated only once. On

October 19, an examination revealed that there was stiffness

in the lumbosacral paravertebral muscles. The diagnosis was

post-traumatic chronic low back syndrome and herniated

nucleus pulposus (HNP). The note also indicates that

claimant had been under treatment with improvement; however,

there are no medical records that reflect such treatment. At

this time, claimant was placed on anti-inflammatory and

muscle relaxant medication.

(2) 1979.
____

In 1979, claimant also was examined only once.

This neurological examination disclosed pain upon palpation

at L4-L5 and positive straight leg raising. Nonetheless,

claimant's reflexes were adequate. An EMG was recommended.

This test was performed in November and was normal.

(3) 1980.
____

After a lapse of almost one year, claimant visited

the SIF four times. On September 2, his straight leg raising

was limited to 45 degrees bilaterally but there was no muscle

weakness. The diagnosis was suspected lumbar radiculopathy

at L5 with a herniated disc at L4-L5 and depression with

anxiety. In October, a physiatrist examined claimant and

found marked muscle spasms; again, there was motor weakness.

The diagnosis was chronic painful lumbosacral syndrome.



-5-















However, on November 11, the physiatrist noted that

claimant's condition had improved and on November 24,

claimant's range of motion was preserved, his straight leg

raising was negative bilaterally and there was no sensory or

motor deficits.

(4) 1981.
____

Claimant did not receive any treatment for his back

in 1981. A psychiatric evaluation, performed on July 9,

indicated that claimant was insecure, afraid and anxious.

However, he was oriented, his memory was conserved and his

judgment was adequate. Claimant was referred to the mental

health center. There are no records of any mental health

treatment subsequent to this evaluation.

(5) 1982.
____

The next note from the SIF, dated January 22, 1982,

indicates that claimant's range of motion of his trunk was

moderately limited but he could walk on his heels and toes.

Straight leg raising was positive. At this time, he was

discharged with 15% disability. A psychiatrist noted, also

in January, that claimant should not undergo a myelogram

until his anxiety neurosis had improved. Claimant's next

visit to the SIF was not until November 29 when he underwent

a psychiatric evaluation to determine whether his mental

impairment was related to his work accident. At this

examination, claimant was logical, coherent, relevant,



-6-















oriented, and realistic. His affect was adequate, his

intellectual capacity average, and his judgment acceptable.

The evaluating psychiatrist diagnosed a generalized anxiety

disorder which, he concluded, was not related to the

accident.

(6) 1983.
____

In 1983, claimant's condition improved even though

a CT scan, performed on September 19, showed a herniated disc

at L5-S1. Two further neurological evaluations were

conducted. On November 29, a physiatric examination

disclosed no significant limits on claimant's range of

motion, no pain upon palpation, no significant muscle spasm,

and no deficits in his reflexes. Physical therapy was not

recommended. A note dated December 7 indicates that claimant

reported that he had experienced improvement of his condition

with the use of medications.

(7) 1984.
____

Claimant received no treatment for his back in

1984. In January, the SIF re-evaluated claimant's emotional

condition. The reviewing psychiatrist determined that

claimant's anxiety neurosis was related to his back problems.

He also recommended psychotherapy as a means of improving

claimant's mental status to the point where surgery could be

performed. An initial evaluation was conducted on March 6.

Claimant was described as being in good physical condition.



-7-















His thought content was relevant and coherent; his attention

span was good, his present memory was conserved, and he was

oriented. His affect was appropriate, but the evaluating

psychiatrist described him as being uncooperative concerning

the testing of conceptual clarity, mathematic operations, and

his remote memory. The diagnosis was anxiety neurosis. The

final psychiatric report, after five therapy sessions,

indicated only that claimant presented as coherent, logical,

and well oriented; his affect was described as appropriate.

The report indicated that claimant was being treated with

medications.

Apart from the SIF records, there are three other

medical reports relevant to the period of claimant's insured

status. The first is a psychiatric consultation performed on

January 3, 1983. Claimant's wife reported that claimant was

able to take care of his own personal needs, but did not do

any household chores. Claimant's activities were listed as

walking and smoking; he was described as quarrelsome and

irritable. The consulting psychiatrist stated that claimant

had poor muscle tone, but otherwise appeared to be healthy

and in no obvious stress. His gait appeared normal. The

mental status exam revealed that claimant was uncooperative,

answering few of the doctor's questions. Nonetheless,

claimant's speech was clear, there were no perceptual

disturbances and his ideas were goal oriented. His thought



-8-















processes were logical, coherent, organized and relevant.

The psychiatrist could not test claimant's cognitive

abilities because he refused to respond to the questions.

She concluded that claimant's mental problems were "part of a

life long pattern of personality traits that are maladaptive

and inflexible, producing impairment in social and

occupational adjustment." Although claimant's prognosis was

viewed as "guarded," the doctor also noted that personality

deterioration was "slight." She did not indicate whether

psychiatric treatment was indicated.

The second evaluation, conducted just after

claimant's insured status had expired, was performed by a

neurologist at the behest of claimant's attorney. This

physician noted that there were no motor weaknesses or

atrophy and no sensory deficits in claimant's extremities.

His reflexes were normal and straight leg raising was

negative bilaterally, although claimant experienced some pain

in his left leg at 80 to 90 degrees. He could walk on his

heels and toes but only with some limping. There was only

mild tenderness to palpation in the lumbar area. The

diagnosis was chronic low back pain syndrome. The doctor

concluded that claimant could not perform his prior work.

This examiner also completed a residual functional

capacity (RFC) assessment. Claimant was described as being

able to occasionally lift files or ledgers; his abilities to



-9-















stand, walk and sit were limited to less than six hours each

in an eight-hour workday. He could occasionally climb,

balance, stoop, kneel, crouch and crawl. His capacity for

reaching and handling was unlimited. However, claimant could

not use heavy effort to push or pull.

Finally, a non-examining consultant reviewed the

record and completed a mental RFC assessment. This physician

diagnosed an affective disorder characterized by anxiety,

tension and sadness which resulted in slight restrictions in

daily living activities and moderate limits in social

functioning. She determined that claimant was not

significantly limited in his abilities to remember work-like

procedures and to understand, remember and carry out short

and simple instructions. Claimant also had minimal

limitations in sustaining an ordinary routine without special

supervision, asking questions and requesting assistance,

maintaining socially appropriate behavior and traveling

alone. There was no evidence of limitations in claimant's

abilities to respond to changes in his work setting and to

make simple work-related decisions.

Claimant had moderate limits, however, in his

abilities in maintaining concentration for extended periods

of time, performing within the confines of a schedule,

maintaining regular work attendance, being punctual and being

able to complete a normal work week without interruptions due



-10-















to psychologically based symptoms. He also had moderate

limits in interacting with the general public, accepting and

responding to criticism and getting along with coworkers

without distracting them.

Based on this evidence, the ALJ presented the VE

with the following hypothetical: an individual who is

limited to sedentary work where he can alternate positions

and who is attentive, cooperative, passive, coherent,

relevant, oriented, able to concentrate on and carry out

simple instructions and able to relate to coworkers and

supervisors, but unable to deal with the general public. The

VE testified that such an individual could be a packer,

sorter, classifier, assembler of small parts, or labeler in

the electronics field. The ALJ then added to the

hypothetical claimant's subjective complaints of constant

back pain which prevents him from concentrating, marked

anxiety and fear, poor memory and marked difficulty in

relating to others. To this hypothetical the VE replied that

claimant would have problems in complying with the minimum

requirements of the above jobs.

DISCUSSION
__________

The Social Security Act provides that the factual

findings of the Secretary shall be conclusive if supported by

"substantial evidence." 42 U.S.C. 405(g). "We must uphold

the Secretary's findings . . . if a reasonable mind,



-11-















reviewing the evidence in the record as a whole, could accept

it as adequate to support his conclusion." Rodriguez v.
_________

Secretary of Health and Human Services, 647 F.2d 218, 222
________________________________________

(1st Cir. 1981). It is the responsibility of the Secretary

to determine issues of credibility and to draw inferences

from the record evidence. Id. Indeed, the resolution of
___

conflicts in the evidence is for the Secretary, not the

courts. Id.
___

We find substantial evidence in the record to

support the finding that claimant's exertional impairments

did not preclude him from performing sedentary work.

Claimant maintains that his back pain resulted in more severe

strength limitations. It is true that there is an objective

medical impairment -- a ruptured disc at L5-S1 -- that can

reasonably be expected to produce pain. Avery, 797 F.2d at
_____

21. Yet, we believe the ALJ did not err in deciding that

claimant's complaints were not credible to the extent

alleged. More than a few of the evaluations from the SIF

found claimant with no motor or strength weaknesses and

little spasm. Indeed, the last SIF note of record concerning

claimant's back, made after the CT scan that resulted in a
_____

diagnosis of a ruptured disc, indicates that claimant had

improved, experienced no pain on palpation and demonstrated a

good range of motion.





-12-















Further, the record reveals that claimant

apparently did not receive any treatment for his back in 1981

and 1984; he was seen only once in 1979 and once in 1980. We

view these gaps in the medical record as "evidence." The

Secretary concluded that this evidence conflicted with

claimant's allegations of unrelenting pain. The Secretary

then drew the inference that claimant would have secured more

treatment had his pain been as intense as alleged. As we

stated, the resolution of conflicts in the evidence and the

drawing of conclusions from such evidence are for the

Secretary. See Rodriguez, 647 F.2d at 222. We accordingly
___ _________

accept the Secretary's determinations relating to claimant's

exertional impairments.

Claimant's non-exertional impairment -- his mental

condition -- presents a closer case. The ALJ determined that

claimant's anxiety disorder reduced the full range of

sedentary work only to the extent that claimant could not

deal with the general public or perform complex or detailed

tasks. This conclusion was reflected in the hypothetical the

ALJ posed to the VE. She responded by listing several

unskilled jobs such an individual could perform.

Social Security Ruling (SSR) 85-15 contains two

sets of mental capabilities required for unskilled work. The

first group includes the abilities to understand, remember

and carry out simple instructions, to respond appropriately



-13-















to the normal work environment and to deal with changes in a

routine work situation. The SIF psychiatric evaluations

describe claimant as being coherent, relevant and oriented;

his judgment and attention span were described as adequate.

The consultative psychiatric examiner reached similar

conclusions. As for the RFC form completed by the non-

examining physician, it specified that claimant could

perform simple work tasks, follow an ordinary routine,

request assistance and handle changes in the work-place

setting.

The second inquiry concerns a claimant's ability to

cope with the demands of any work environment. SSR 85-15

states that these demands include the need to be punctual and

to attend work on a regular basis, the ability to accept

supervision and the capacity to remain in the work place for

an entire day. Although the SIF evaluations and the

psychiatric consultation did not address these issues, the

physician who completed the RFC assessment indicated that

claimant was moderately limited in these areas of

functioning. Such limitations possibly erode the

occupational base available to claimant and could affect the

performance of even the jobs listed by the VE. See Ortiz v.
___ _____

Secretary of Health and Human Services, 890 F.2d 520, 527
________________________________________

(1st Cir. 1989). The question is how much the range of
___ ____

sedentary, unskilled work is decreased. See id.
___ ___



-14-















Although the record arguably could support a

different conclusion, we believe there is substantial

evidence to support the Secretary's decision that claimant's

capacity for the full range of such work was not

significantly reduced. Thus, we must uphold his decision.

See Rodriguez Pagan v. Secretary of Health and Human
___ ________________ _________________________________

Services, 819 F.2d 1, 3 (1st Cir. 1987), cert. denied, 484
________ _____ ______

U.S. 1012 (1988). Apart from the conclusions of the non-

examining physician, there is no other indication that

claimant's ability to accommodate routine work demands was

inadequate -- either slightly, moderately or markedly.

Moreover, aside from the five therapy sessions

claimant attended through the SIF, there is no record of any

other mental health therapy during his insured status. As a

result, there is no way of telling whether psychiatric

treatment could have improved these "marked" limitations. We

do not think that a claimant with a diagnosed impairment may

assert entitlement to disability benefits without at least

securing a determination concerning what, if any, treatment

options are available to him or her. Indeed, "[i]mplicit in

a finding of disability is a determination that existing

treatment alternatives would not restore a claimant's ability

to work." Tsarelka v. Secretary of Health and Human
________ _________________________________

Services, 842 F.2d 529, 534 (1st Cir. 1988) (per curiam). As
________

we described in Tsarelka, the Social Security regulations
________



-15-















specifically provide that to qualify for benefits a claimant

must follow prescribed treatment. Id. (citing 20 C.F.R.
___

404.1530(a), (b)). The lack of any evidence of sustained

treatment in this case only bolsters our decision that the

record adequately supports the Secretary's final conclusion

that claimant was not disabled.

Affirmed.
________







































-16-