Maldonado v. SHHS

USCA1 Opinion









August 18, 1992


[NOT FOR PUBLICATION]






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No. 91-2300




LYDIA E. MALDONADO,

Plaintiff, Appellant,

v.

SECRETARY OF HEALTH AND HUMAN SERVICES,

Defendant, Appellee.


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APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO


[Hon. Jaime Pieras, Jr., U.S. District Judge]
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Before

Breyer, Chief Judge,
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Selya and Cyr, Circuit Judges.
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Nestor Juan Rodriguez on brief for appellant.
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Daniel F. Lopez Romo, United States Attorney, Jose Vazquez
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Garcia, Assistant United States Attorney, and Robert M. Peckrill,
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Assistant Regional Counsel, Department of Health and Human
Services, on brief for appellee.











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Per Curiam. Lydia Maldonado (claimant) appeals from a
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district court judgment affirming the decision of the Secretary

of Health and Human Services denying her application for

disability benefits. For the reasons discussed below, we vacate

the judgment of the district court and remand with instructions

to enter an order remanding this case to the Secretary for

further proceedings consistent with this opinion.

I.

Claimant applied for benefits on July 13, 1987, when she was

48 years old. She had been employed for thirty years as a sewing

machine operator for the Maidenform company. (Tr. 109). She has

a sixth grade education and cannot communicate in English.

Claimant's initial application alleged that she was disabled by

circulatory problems in both legs and rheumatoid arthritis. She

stopped working on October 31, 1986, the alleged date of onset of

her disability.1 Claimant's insured status expired on December

31, 1991.

Between October 1986 and December 1987, claimant was treated

as an outpatient for numerous complaints, including

peripherovascular insufficiency, gout, arthritis, and herpes

zoster. She also underwent minor surgery for the removal of

sebaceous cysts on her eyelids. Claimant complained of general

bone pain and pain in both legs throughout this period.



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1 In explaining how her condition kept her from working,
claimant stated, "[t]he place I worked was close[d]. I can't
find a job since I can't be standing or walking due to swollen
(sic) and pain in both legs. I have pain in all my joints."
(Tr. 105).









Occasional references to pain in her right foot are also noted.

(Tr. 159-61, 197). She was treated with numerous medications

including Naprosyn (for gout), Vasodilan and Persantine (for

circulation). She applied for disability benefits on July 13,

1987. At that time, the Social Security Administration's (SSA)

interviewer observed no limitations of movement, swelling or

deformities. (Tr. 112).

Dr. Roberto Jimenez, a vascular surgeon, evaluated claimant

for the SSA on August 10, 1987. Claimant related a history of

cramps, numbness and occasional uncontrollable drooling. He

observed fullness in her lower legs without pitting pretibial

edema. Her skin was normal. Dr. Jimenez found bilateral

varicose veins which were worse in claimant's right leg. He did

not assess how this condition might affect claimant's functional

capacity to work.

Claimant was treated for gout and right foot pain again in

September 1987.2 Her initial application was denied on

September 15, 1987. (Tr. 89-90). Claimant filed a request for

reconsideration and secured treatment from Dr. Alberto Abreu

Rivera, a neurosurgeon, between September and November 1987.3

She complained of leg cramps and polyarthralgias (simultaneous

inflammation of several joints). Dr. Abreu found mild swelling


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2An October 1987 x-ray of claimant's right foot disclosed no
abnormalities.

3Claimant's reconsideration disability report alleged high
cholesterol and gout as additional limiting impairments. (Tr.
113). The SSA interviewer observed swelling in claimant's face,
arms and hands, and that she exhibited difficulty grasping a pen
and moving about. (Tr. 117-18). In contrast to her initial
application disability report (which described claimant as "of
normal weight" (Tr. 112)), claimant's reconsideration disability
report described claimant as "relatively obese." (Tr. 117).

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in claimant's left knee, unquantified loss of motion in

claimant's lower back, and straight leg raising limited to 45

degrees bilaterally. He diagnosed osteoarthritis, chronic back

pain and anxiety-depressive syndrome and prescribed more

medications. Dr. Abreu specifically noted that claimant did not

need any assistive devices. (Tr. 185). Claimant appeared

improved in October 1987, but less than a month later, Dr. Abreu

concluded that her final prognosis was poor.

In December 1987 claimant underwent a venogram of her right

leg which revealed patency of her deep venous system. Although

no obstructions were noted, a medical consultant recommended that

claimant not remain standing for long periods. (Tr. 193, 200,

204). Claimant was seen at the Ponce District Hospital in early

1988. Edema of her right leg was noted. (Tr. 192). She

continued to be treated with medications including Motrin (for

inflammation) and Persantine.

On April 12, 1988, a hearing was held before an

administrative law judge (ALJ), who observed ample swelling in

claimant's right leg and left ankle and that claimant could not

press her index finger to the table. (Tr. 43, 48-49). Claimant

used a cane because she had fallen upon occasion, although none

had been prescribed. The ALJ found that claimant was not

disabled at step five of the sequential evaluation process. See
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Goodermote v. Secretary of Health and Human Services, 690 F. 2d
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5, 6-7 (1st Cir. 1982). The Appeals Council vacated this

decision on the grounds, inter alia, that the ALJ failed to
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evaluate properly the claimant's allegations of disabling pain,

and erred in applying the Grid to reach a finding of not disabled



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when the record indicated that the claimant was not capable of

performing the full range of light or sedentary work. (Tr. 216).

The Appeals Council remanded for the taking of additional

evidence, including vocational expert testimony.

On remand, the Secretary convened two additional hearings

before a different ALJ and secured two medical residual

functional capacity assessments. Claimant and a vocational

expert testified at the hearings. Dr. Robert Leon Perez, an

internal medicine and rheumatology specialist, examined claimant

on or about February 15, 1989. Her chief complaints at that time

were varicose veins and arthritis. Claimant exhibited a full

range of motion in her neck and spine and no gait abnormalities.

All joints were cool; there was no effusion, redness or loss of

motion noted in the upper or lower extremities. Edema was

present at the ankles. Skin hyperpigmentation was found at the

right ankle. A February 15, 1989 x-ray disclosed a plantar spur

on the right ankle. Claimant's sedimentation rate (an indicator

of swelling) was normal. Antinuclear antibody testing for

systemic disease (e.g. lupus) was also negative. (Tr. 223-26).

Dr. Leon found that claimant's impairments affected her

ability to lift and carry, but he did not state claimant's

limitations in numbers of pounds. Dr. Leon indicated claimant's

varicose veins limited her ability to stand, walk and sit without

interruption to a total of 3-4 hours at one time and a total of

6-7 hours over an 8 hour day. (Tr. 227-29).

Dr. Juan Diaz Troche, a vascular surgeon, completed

claimant's second RFC assessment after examining her on February

16, 1989. He found right hand weakness without evidence of



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muscular atrophy. Tinel's sign was negative for nerve root

irritation in the right wrist. Stasis dermatitis was present on

the right ankle. Dr. Diaz indicated that claimant's right hand

weakness affected her ability to lift or carry but he too did not

indicate how many pounds claimant was limited to. Claimant is

right handed. (Tr. 60). Dr. Diaz found that claimant's abilities

to reach, handle, push and pull were all impaired, and that she

could occasionally climb, but never balance, stoop, crouch, kneel

or crawl. In assessing whether claimant was subject to any

environmental restrictions, Dr. Diaz recommended that claimant

avoid moving machinery. (Tr. 232-34).

On remand, the ALJ questioned vocational expert (VE) Miguel

Pellicier about claimant's ability to work. After concluding

that claimant could not do her past work as a sewing machine

operator if she needed to change positions, this expert went on

to identify three other jobs that claimant could perform which

enabled her to alternate positions. The ALJ found that claimant

suffered from a severe peripherovascular condition, right leg

(mild) varicose veins, rheumatoid arthritis, right hand weakness

and occasional gout that precluded her from returning to her past

work. Based on the assessments of Dr. Diaz and Dr. Leon, the ALJ

concluded that claimant retained the residual functional capacity

to stand, walk, or sit up to 3-4 hours at a time, with the

ability to perform these activities a total of 6-7 hours in an

eight hour day, that claimant was unable to lift or carry more

than 10 pounds frequently and twenty pounds occasionally, and

that she was unable to grasp, reach, push pull or handle with her





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right hand.4 The ALJ concluded that claimant was not disabled

at step five because she could perform the jobs identified by the

vocational expert. The district court affirmed this finding.

This appeal followed.

II.

On appeal, claimant argues that the ALJ erred in using Grid

Rule 202.11 as a framework because this rule assumes that

claimant can communicate in English. Claimant says that she

should be considered unskilled since she has no transferable
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skills and that the ALJ should have found her disabled under Rule

202.09. This rule directs a finding of "disabled" for an

unskilled claimant, who is approaching advanced age with an RFC

for light work, but who cannot communicate in English.5

Claimant's argument overlooks the fact that hers is not a

case which calls for a straightforward application of the Grid.

The presence of significant nonexertional limitations will

preclude the Secretary from exclusively relying on the Grid to

resolve the issue of disability. See, e.g., DaRosa v. Secretary
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of Health and Human Services, 803 F.2d 24, 26 (1st Cir. 1986);
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Burgos Lopez v. Secretary of Health and Human Services, 747 F.2d
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37, 39 (1st Cir. 1984). The ALJ found that claimant had several

nonexertional limitations, including an inability to sit or stand

more than 3-4 hours at a time, an inability to reach, grasp, push

or pull with her right hand, and an environmental restriction


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4The ALJ also found that claimant could balance, stoop,
kneel, crouch or crawl only occasionally. (Tr. 19).

5Claimant further contends that her exertional RFC is closer
to sedentary than light work and that a "disabled" finding is
also required by the grid rule that applies to sedentary work.
(Grid Rule 201.09).

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against working around moving machinery. These limitations

rendered the Grid useful only as a framework of reference.

DaRosa, 803 F.2d at 26. The ALJ thus did not err by failing to
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rely on either Rule 202.09 or Rule 201.09 to find claimant

disabled. Claimant's inability to communicate in English does

not call for the application of Rule 202.09, for "it is the

ability to communicate in Spanish, not in English, that is

vocationally relevant in Puerto Rico." Arce Crespo v. Secretary
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of Health and Human Services, 831 F.2d 1, 6 (1st Cir. 1986).
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Claimant further argues that the vocational expert's

testimony does not provide substantial evidence supporting the

ALJ's conclusion that claimant retained the capacity to perform

other work because the ALJ posited claimant's age as 49 in his

hypothetical (which qualifies as a "younger" person" under 20

C.F.R. 404.1563(b)), while claimant was 50 at the time of the

second hearing and adjudication.6 This does not render the

vocational expert's testimony unreliable. To be sure, the

claimant's age may be a dispositive factor when a case may be

resolved under the Grid alone. But we have previously noted that

this is not such a case. The difference between age 49 and 50 is

not so great as to preclude the ALJ from relying on the expert's

testimony.

Nevertheless, the appellant cites numerous cases which do

highlight a serious defect in the hypothetical. After eliciting

the vocational expert's opinion that claimant could not do her


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6Under 20 C.F.R. 404.1563(c), someone between 50-54 is
"closely approaching advanced age," and entitled to have the
Secretary consider that his/her age, "severe impairment and
limited work experience, may seriously affect your ability to
adjust to a significant number of jobs in the national economy."

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past work as a sewing machine operator if she needed to change

positions, the ALJ asked:

Q. If she had any difficulty or limitation, or
otherwise, if she did not have difficulty to lift
up to 20 pounds, or difficulty when standing or
sitting, or if she could not balance, crouch or
kneel down, touch the floor or the ground, or
reaching, handling, pushing or pulling or moving
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machinery or trying to move machinery, would she
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have difficulty doing her former job? (emphasis
supplied).

A. That is, if she didn't have difficulty to --

Q. If she had difficulty in these areas.

A. She would have to deal with moving machinery.

Q. What can she do under this premise?

A. Under that premise she could mainly perform jobs
of a classification or revision within that kind
of manufacture, for example, ... she could
perform the task as "Garment Sorter"... [which
the VE went on to describe as light, unskilled,
and which allowed claimant to alternate
positions] ... Also, she may perform the task as
"Finished Garment Inspector"... [and] "Hand
Sorter" [which were also light, unskilled, and
which allowed one to alternate positions].

While the ALJ's hypothetical posited that claimant had difficulty

"reaching, handling, pushing or pulling or moving machinery or

trying to move machinery," the ALJ subsequently found that

claimant was not able to reach, grasp, handle, push or pull with

her right hand. (Tr. 19). But an inability to move machinery,

or "to deal with moving machinery," (as the vocational expert

testified) is not the same as an inability to "reach, grasp,

handle, push or pull" with the claimant's dominant hand. The

latter sounds like a far more serious limitation. The ALJ

credited the medical evidence which showed that claimant suffered

from right hand weakness, evidence that appears corroborated by

the first ALJ (who observed that claimant could not press her


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index finger to the table) and by the claims interviewer who

observed that claimant had difficulty grasping a pen when she

applied for reconsideration. That being so, the ALJ should have

asked the vocational expert:

Q. Assuming the aforementioned limitations, can the
claimant still be expected to perform these jobs if she
is not able to reach, grasp, handle, push or pull with
her major right hand?7

The ALJ's hypotheticals to a vocational expert should convey

the claimant's limitations precisely in order to yield relevant

responses. See Arocho v. Secretary of Health and Human Services,
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670 F.2d 374, 375 (1st Cir. 1982). "A vocational expert's

testimony can not constitute substantial evidence to support an

ALJ's determination as to a claimant's disability status unless

it accurately reflects all the claimant's limitations... ."

Cooper v. Bowen, 880 F.2d 1152, 1158 n.13 (9th Cir. 1989);
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Whitman v. Bowen, 785 F.2d 262, 263-64 (8th Cir. 1986). Because
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the ALJ failed to include the claimant's right hand impairment in

posing his hypothetical, we cannot say the vocational expert's

testimony constitutes substantial evidence that the claimant is

able to perform the three jobs he identified, particularly where

each of these jobs appears to require significant hand

movements.8 On remand, then, the Secretary must determine


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7And, if the ALJ determined that claimant's right hand
limitations were partial, not total, (which is not clear on this
record), he should have asked the expert whether claimant could
perform these jobs (or any others) assuming a partial disability
in her right hand.

8In this regard, the "Hand Sorter" position required an
ability to classify and tie clothes (presumably in bundles),
while the "Finished Garment Inspector" position required an
ability to spread, mark and measure garments, and an ability to
use scissors to trim excess threads. See Dictionary of
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Occupational Titles (1991), p. 838. The "Garment Sorter" position
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whether a substantial number of jobs remain available to claimant

in light of all her impairments, including her right hand

limitations.

Accordingly, the judgment of the district court is vacated

and the case is remanded to the district court with instructions

to enter an order remanding the case to the Secretary for further

proceedings consistent with this opinion.









































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required claimant to organize finished garments, possibly
ironing, folding, and packaging same. Id., p. 204.
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