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[NOT FOR PUBLICATION]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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