Torres v. SHHS

USCA1 Opinion




September 23, 1992 [NOT FOR PUBLICATION]

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT







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No. 92-1460




CARMEN TORRES,

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

Torruella, Cyr and Stahl,
Circuit Judges.
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Salvador Medina De La Cruz 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 Nancy B. Salafia,
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Assistant Regional Counsel, Dept. of Health & Human Services, on
brief for appellee.



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Per Curiam. Claimant contends she is disabled due to
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fibromyositis, muscle spasm, and thoracic outlet syndrome.

The secretary disagreed, concluding that while claimant could

not return to her former secretarial work, she could do

certain sedentary jobs identified by a vocational expert in

response to a hypothetical question and consequently was not

entitled to disability benefits. Claimant contends that the

decision denying benefits was faulty in three main respects.

First, the ALJ impermissibly interpreted raw medical data

without any expert medical assistance to assess claimant's

residual functional capacity (RFC). Second, the RFC the ALJ

arrived at is not supported by substantial evidence and

failed adequately to consider claimant's subjective

complaints. Third, the ALJ concluded claimant could not use

her hands repeatedly for fine manipulation, but failed to

include this limitation in the hypothetical posed to the VE.

Consequently, the VE's testimony can not serve as substantial

evidence to support the denial of benefits, claimant

maintains. We review the evidence and then turn to

claimant's arguments.

I.

Claimant worked as a secretary until October 1987 when,

she claims, the pain in her neck, arms, and back prevented

her from continuing.





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The first medical report is from Dr. Kindy, an

orthopedic surgeon, who examined claimant in January 1988 and

reported his results to claimant's employer's insurance

carrier. Claimant complained of numbness in both trapezii

and pain in the arms, neck, back and legs. The pain had

persisted, worsening, for over a year. Range of motion of

the cervical and lumbar back was complete with "moderate

discomfort," and range of motion of the extremities was

complete with "minimal stiffness." Dr. Kindy recommended

evaluation by a neurologist and said claimant could then

return to work.

Claimant saw a neurologist, Dr. Ramirez Vincenty, the

next month. In addition to the complaints reported to Dr.

Kindy, Dr. Ramirez noted complaints of paresthesia (abnormal

sensation) of the limbs and arm weariness resulting in

frequently dropping things. Dr. Ramirez reported normal

gait, no difficulty sitting or standing, and no motor,

sensory, or cerebellar abnormalities. He noted hardening and

tenderness of cervical and shoulder girdle muscles, and

tenderness to pressure at thoracic spine, but without

limitation of motion. His impression was "chance[] of

fibromyositis contemplated," and he projected a "good"

prognosis.

Beginning in April 1988, claimant began physical therapy

with Dr. Garcia and physiatrist Dr. Martinez Deliz. The



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first report (4/12/88) noted x-ray evidence of neck muscle

spasm and straighted cervical spine, but found full range of

motion, though with tenderness. The diagnosis was cervical

thoracic myositis. The next notation (4/26/88) reported

claimant's complaints of foot pain and swelling due to

bilateral posterior spurs. In May, claimant was "improving

slowly" with therapy. "Moderate tenderness" continued in the

neck. On May 24, 1988, Dr. Garcia executed a return to work

certificate stating claimant could resume work on May 30,

1988. In August 1988, Dr. Martinez conducted an EMG study

and reported bilateral thoracic outlet syndrome.

Dr. Garcia referred claimant to Dr. Acosta, who began

treating claimant in late May 1988. Dr. Acosta noted

cervical and lumbar joint pain, morning stiffness in neck and

shoulders, limitation of flexion-extension in lumbar zone,

hypoesthesia (abnormally decreased sensitivity to

stimulation) of both hands with paresthesia (abnormal

sensation such as tingling), respiratory difficulty upon

minimal exertion, and edema of both ankles. He diagnosed

"rheumatism-rheumatic fibromyalgia" and prescribed muscle

relaxants (flexeril) and other medications. On May 26, 1988,

about the time Dr. Garcia said claimant could return to work,

Dr. Acosta filled out a similar return to work certificate,

but projected the return date to be July 15, 1988 in view of

severe back muscle spasm and fibromyalgia.



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In May 1988, claimant filled out a disability report

form. Questioned about her ability to do household chores,

claimant said she did work at home as she had three children

to care for and no one to help her, but the effort caused

great pain. The only household task she said she could not

do was ironing. She drove in emergencies at the time.

Dr. Acosta saw claimant monthly. His progress notes are

largely illegible, but notations of hand numbness in June

1988 and spasm in August and September 1988 are discernible.

Dr. Carreras examined claimant in August 1988. Gait was

normal. Motor, sensory, and cerebellar systems were intact.

A test for thoracic outlet syndrome was positive. Moderate

tenderness to palpation of the right neck muscles and

trapezius muscle was noted. Dr. Carreras's impression was

"postural cervical myositis [muscle inflammation] with

secondary bilateral thoracic outlet syndrome" and "mild

chronic lumbar strain."

In September 1988, Dr. Acosta (the treating physician)

filled out an "Attending Physician's Statement of Disability"

supplied by claimant's employer's insurance carrier covering

the four month period May 1988 through September 1988. His

diagnosis was bilateral thoracic outlet syndrome,

fibromyalgia, and back muscle spasm. He stated claimant had

"very much" improved during that period, and he projected





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that claimant could return to part-time light work (but not

her secretarial job) by the end of November 1988.

After examining the reports of Dr. Acosta, Dr. Martinez

Deliz, and Dr. Carreras, a non-examining doctor concluded

that none of claimant's conditions severely limited

claimant's ability to perform basic work duties and that

consequently claimant was not disabled.

In November, claimant completed another disability form.

She said that her neck was stiff, arm movement was limited,

and she could not keep her arms in a raised position and

hence could not hang her clothes. Also, she could not

perform activities requiring her to lower her head, such as

reading or washing dishes, because her muscles would become

very stiff. She said her doctor had advised her to avoid

stress and strenuous exercise.

Dr. Acosta continued treating claimant. The progress

notes are again largely illegible, but mild shortness of

breath was noted in October and muscle spasm in November. In

December 1988 spasm was "minimal."

After reviewing the earlier reports plus these

additional progress notes from Dr. Acosta, a second non-

examining doctor concluded that claimant had no severe loss

of movement, sensation, or reflexes and was not disabled.







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Dr. Justiniano conducted an arterial study of the upper

extremities in November 1988. His impression was bilateral

mild obstructive disease of ulnar and radial arteries.

The last medical report is from Dr. Bonilla Torres, a

neurologist, who examined claimant in May 1989. Claimant

complained of tension in the nape of the neck, tiredness and

numbness of both arms, hand tremor, loss of hand strength,

loss of finger dexterity, chest pain, and occasional dizzy

spells. Dr. Bonilla noted diminution of grasp both hands,

pain at pressure over both trapezii, pain in muscles upon

counter movements of the neck, and pain and numbness of the

arms upon hyperabduction of the arms. His impression was

bilateral thoracic outlet syndrome and myofascial syndrome,

both trapezii.

The ALJ accepted the doctors' diagnoses of thoracic

outlet syndrome and myofascial syndrome. He concluded

claimant "should avoid the repeated use of hands for fine

movements" and raising arms above shoulder level, but that

she retained the residual functional capacity (RFC) for the

segment of unskilled sedentary work which would not require

those arm and hand movements and would allow claimant to

alternate positions. Based on the vocational expert's

testimony, the ALJ concluded claimant could perform the jobs

of table worker, label picker, and tester.

II.



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A.

No doctor (either examining or non-examining) completed

an RFC form checking off how much weight claimant could lift,

how many hours she could sit or stand, or her capacity for

other physical functions such as reaching, grasping, bending

and stooping. Consequently, citing Berrios v. Secretary, 796
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F.2d 574 (1st Cir. 1986) (Appeals Council, composed of lay

persons, is not competent to interpret and apply raw,

technical medical data), claimant argues that the ALJ

impermissibly interpreted raw medical data to arrive at the

conclusion that claimant could do sedentary work not

requiring repeated fine manipulation or reaching above

shoulder level.

The ALJ did not impermissibly interpret raw medical

data. While it is true that no doctor completed an RFC form,

various doctors did indicate functional capacity in other

forms. For example, in May 1988, Dr. Garcia executed a

return to work certificate and did not place any limitation

on the type of work. The same month, Dr. Acosta, the

treating physician, projected claimant could return to work

in July 1988, a date less than a year after claimant's

alleged onset date of disability. See 20 C.F.R. 404.1505
___

(to be eligible for benefits, the disabling impairment must

last, or be expected to last, for a continuous period of at

least 12 months). Claimant, too, described a fairly wide



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range of activity she performed as of May 1988. She drove

(in emergencies), cared for three children, and did household

chores except ironing. From this evidence it was permissible

to conclude, as the ALJ did, that claimant could handle some

range of sedentary work.

Even if claimant's conditions flared up or worsened some

time after May 1988, nevertheless there is substantial

evidence that claimant could perform sedentary work once

again by November 1988. In his September 1988 report, Dr.

Acosta stated claimant had very much improved. Although as

of that date limitations in head flexion, arm movements,

bending, and prolonged sitting prevented her from performing

her secretarial job full time, Dr. Acosta believed claimant

could begin part time work at a different, light job in two

months. He stated that claimant should work "at first" part

time, a phrasing which suggests he did not think claimant was

permanently limited to part time work. Consequently, this is

not a case where an ALJ had to interpret raw medical data to

determine claimant's RFC. Rather, claimant's treating

physician indicated in general terms what type of work (light

duties) claimant could do despite her limitations.

Claimant argues that the Secretary should have obtained

a detailed assessment from a doctor specifically addressed to

claimant's manual abilities and the effect fatigue produced

by a full time job would have. In the context of this



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record, we disagree. Dr. Acosta, the treating physician,

filled out a form labelled "Attending Physician's Statement

of Disability" to be submitted to claimant's employer's

disability insurer. It was clear that this form would be

used in assessing claimant's capacity for work, yet Dr.

Acosta, while diagnosing bilateral thoracic outlet syndrome

and noting limitations as of September 1988 in hand flexion,

arm movements, bending, and prolonged sitting which prevented

claimant from returning to her secretarial position, did not

focus particularly on manual limitations. We do not think

the Secretary was required to recruit a more detailed

analysis than claimant's own treating physician had provided.

B.

Claimant contends the ALJ did not adequately consider

and assess her complaints of pain and numbness and should

have found a complete absence of bimanual dexterity rendering

her unable to work. We disagree. The ALJ specifically

followed Avery v. Secretary of Health and Human Services, 797
_____ ______________________________________

F.2d 19 (1st Cir. 1986), in assessing claimant's subjective

complaints. He was not required to accept claimant's

assertions, particularly in view of the treating physician's

opinion that claimant could work and the treating physician's

failure to focus on severe manual limitations precluding

claimant from returning to work.

C.



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The ALJ did credit claimant's complaints in part and

stated that claimant "should avoid the repeated use of hands

for fine movements." He concluded that claimant could not

return to her past secretarial job, but could do other jobs

described by the ALJ. Claimant argues that she may not be

able to perform the jobs the VE identified because the ALJ

did not include the limitation in repeated fine movement in

his question to the VE and hence the jobs the VE enumerated

may require fine manipulation abilities.

The ALJ posed the following question to the VE:

Q If we determined that the
claimant had or has the residual capacity
to do sedentary jobs that would allow her
to change positions and if she didn't
have to use her hands or raise them
higher than shoulders height, and that
she weren't near unprotected heights or
dangerous operating machinery, I ask you
if she could do the job she did in the
past, and if she couldn't if there is any
jobs [sic] that she could perform.

The VE responded that in the shoe industry claimant could

either classify shoe parts or verify that labels had been

properly cut and glued. In the electronics industry, she

could be a tester, which would entail testing currents and

electrical parts with capacitators. These jobs, the VE

summed up, were sedentary, allowed for change of position,

did not require reaching overhead, and did not expose the

worker to dangerous heights. In other words, while the ALJ's

question had included the broad condition that claimant not



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have to "use" her hands, the VE's response did not include

such an absolute limitation, but rather described jobs which

apparently involved some use of the hands.

The ALJ's second question to the ALJ added limitations.

He asked the VE whether claimant could handle any job if her

subjective complaints of pain and numbness were fully

credited and if claimant "had a limitation from moderate to

severe to utilize her hands in a sustained manner, for even

sedentary tasks." The VE responded that there were no jobs

claimant could perform.

The fair thrust of the VE's testimony is that if

claimant has a moderate to severe limitation in using her

hands in a sustained manner, she can not perform the three

jobs he listed, but if the restriction in use of her upper

extremities is limited to overhead reaching, she can. The

problem here is that claimant's functioning, as found by the

ALJ, fell somewhere in between that posited in the two

hypotheticals -- claimant could generally use her hands, but

should not repeatedly perform fine movements -- but the VE

was not asked, and did not directly say, what jobs claimant

could handle if she were so restricted.

We have indicated that the hypothetical posed to a VE

must accurately reflect the claimant's limitation in order

for the VE's response to constitute substantial evidence

sustaining the Secretary's burden at step five to identify



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alternate work the claimant can perform. Arocho v. Secretary
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of Health and Human Services, 670 F.2d 374 (1st Cir. 1982).
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See also Cooper v. Sullivan, 880 F.2d 1152, 1158 n.13 (9th
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Cir. 1989) ("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 of the claimant's limitations ...").

Hence, the hypothetical was materially deficient in failing

to include the limitation on fine manipulation. Particularly

in view of claimant's repeated complaints of hand numbness

and weakness, as well as the diagnosis of thoracic outlet

syndrome -- a condition characterized by pain in the arms and

weakness and wasting of the small muscles of the hand,

Sloane-Dorland Annotated Medical Legal Dictionary 697 (1987)

-- it was important for the VE to focus on claimant's manual

abilities in identifying what jobs the claimant could

perform. Not being vocational experts, we do not know

whether the identified jobs require repeated fine movements.

The Secretary argues, and the district court concluded,

that claimant's failure to object to the phrasing of the

hypothetical question or to elicit more information from the

VE on cross-examination forecloses claimant from now claiming

error. In support, the district court relied on Torres v.
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Secretary of Health and Human Services, 870 F.2d 742 (1st
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Cir. 1989). In Torres, claimant based disability on a visual
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complaint. The VE, who had reviewed the file, was asked

whether claimant could perform his past work (as a waiter) or

any other work in the national economy. On appeal, claimant

argued that the question was inadequate because it did not

specifically describe claimant's limitations. While noting

that claimant's argument might be valid in general, we

concluded that it was unavailing in the circumstances

presented by that case where the record was limited, medical

evidence was addressed substantially to one impairment

(vision), all doctors had reported successful cataract

surgery and good prognosis, and it was not likely that the VE

would have failed to focus on the visual impairment in

answering the question. In those circumstances, we stated

that if claimant felt the hypothetical was inadequately

phrased, he should have posed his own.

The circumstances in the present case are very

different. Multiple impairments with multiple alleged

manifestations were claimed. The ALJ found a significant

limitation on fine manipulative ability, but did not focus

the ALJ's attention upon it. We think it is unrealistic to

require the claimant to anticipate what complaints the ALJ

will credit and what limitations the ALJ will find and to

require the claimant to insure that the hyothetical reflects

those limitations.





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As the hypothetical did not include a significant

limitation, we conclude that a remand is required so that a

VE, properly informed of claimant's limitations, can

determine whether there are jobs she can perform.

The judgment of the district court is vacated and the

case is remanded with directions to remand to the Secretary

for further proceedings consistent with the opinion.







































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