Hernandez v. SHHS

USCA1 Opinion




October 22, 1993 [NOT FOR PUBLICATION]

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 92-2445

SAUL BAEZ-HERNANDEZ,

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. Hector M. Laffitte, U.S. District Judge]
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____________________

Before

Breyer, Chief Judge,
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Selya and Stahl, Circuit Judges.
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Raymond Rivera Esteves and Juan A. Hernandez Rivera on brief for
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appellant.
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. Claimant Saul Baez Hernandez appeals
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from the district court judgment affirming the decision of

the Secretary of Health and Human Services that claimant is

not entitled to Social Security disability benefits.

I. PROCEEDINGS BELOW
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Claimant filed an application for Social Security

disability benefits on March 10, 1986. He alleged an onset

date of January 25, 1985 when he hurt his back at work; he

listed as his impairments back and nervous conditions.

Claimant returned to work on November 16, 1988. His

application was denied by an administrative law judge (ALJ)

in July 1987 and the Appeals Council rejected claimant's

request for review. While the case was pending in the

federal district court, the Secretary of Health and Human

Services requested a remand. Pursuant to this remand, the

Appeals Council ordered that a second hearing be held with

the testimony of a vocational expert (VE). At the hearing,

held on November 16, 1988, it appears that no such expert

testified. A different ALJ determined that claimant was not

disabled. The Appeals Council, on March 20, 1989, ordered

yet another hearing; it determined that claimant's

limitations significantly affected his ability to perform the

full range of light and sedentary work. It ordered that a VE







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testify as to the existence of jobs that claimant could

perform.

On June 22, 1989, after holding the third hearing,

at which a VE testified, the ALJ who first had considered

claimant's application determined that claimant was not

disabled. He found that claimant suffered from severe

lumbosacral strain. As for claimant's complaints of totally

disabling pain, the ALJ concluded that while credible when he

first injured his back, there was no convincing evidence of

continuing severe pain. Thus, the ALJ credited the

allegations of pain to the extent that claimant was

prohibited from engaging in heavy work. He therefore could

not perform his past work as a truck driver and delivery man

which involved the carrying of heavy appliances.

However, according to the ALJ, claimant retained

the capacity for the full range of light work limited only by

his need to alternate positions; claimant further was limited

because he could bend only occasionally and could not use

repetitive foot movements. The ALJ found that claimant did

not have any nonexertional impairments. Given his acquired

work skills such as following instructions and counting,

claimant was able to perform semi-skilled work activities

such as a stock person in a warehouse -- the job to which

claimant had returned in November 1988.





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The Appeals Council, upon claimant's request for

review, affirmed the decision of the ALJ that claimant was

not entitled to disability benefits. The Council did modify

the ALJ's decision in one respect by finding the presence of

a nonexertional impairment. However, this impairment did not

significantly limit claimant's ability to do work-related

activity. On appeal to the district court, a magistrate-

judge recommended that the matter be remanded for further

administrative proceedings. Nonetheless, the district court

judge affirmed the Secretary's decision. This appeal ensued.

II. DISCUSSION OF THE MEDICAL EVIDENCE
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A. Back Impairment
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The evidence concerning the nature and extent of

claimant's back impairment is conflicting. In total, six

consultative evaluations were conducted between 1985 and

1988. In addition, claimant received treatment at the State

Insurance Fund (SIF) from January 1985 through April 1988.

See Exhibits 17 and 36. According to SIF records, a C-T Scan
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performed in August 1985 revealed a narrowing of the disc

space at L5-S1 with a disc herniation to the right and a

small lateral disc herniation to the left at L4-L5. In

August 1985, a physiatrist at the SIF examined claimant and

found that claimant could not squat, had pain upon palpation

and upon flexion and lateral movement of the trunk. During

1985, claimant continued with these symptoms. However, an



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SIF physician in September of 1985 noted that claimant's pain

appeared only upon exercise or prolonged periods of sitting

or standing. At this examination, he found no radiculopathy

and that claimant's gait was normal.

In March 1986, a follow-up report indicated that

claimant evinced little interest in engaging in vocational

rehabilitation. In June 1986, a vocational evaluator

reported that despite claimant's complaints of testicular

pain, headaches and pain in his fingers, neck, low back and

legs, claimant was able to lift up to twenty pounds.

Although he had trouble bending forward and experienced

difficulties kneeling and squatting, he could sit and stand

for sufficient lengths of time so that with a job that

allowed him to change position, he could perform light work.

Thus, claimant was noted as having "great" rehabilitative

potential.

Turning to the consultative medical evaluations, we

find it necessary for the disposition of this appeal to

review only those upon which the VE based his opinions as to

appellant's physical abilities. In August 1988, an internist

found no swelling, no muscle atrophy and normal reflexes.

See Exhibit 41. There was diminished pinprick sensation in
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claimant's left leg. The diagnosis was fibromyositis of the

lumbosacral spine with spasms and discogenic disease at L5-

S1. The residual functional capacity (RFC) form indicated



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that claimant could lift a maximum of 50 pounds on occasion,

could stand or walk for four to six hours at a time and could

sit for up to four hours so long as he could alternate

positions. Claimant could frequently climb and balance and

could occasionally stoop, kneel, crawl and crouch.

A neurologist, also examining claimant in August

1988, found claimant with a normal spine, full strength,

normal tone and no evidence of atrophy or radiculopathy. See
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Exhibit 42. Claimant had limited trunk movements and

although he showed signs of sensory deficit, they did not

follow any anatomical distribution. An X-ray revealed a

narrowing of the L5-S1 disc space and lumbar spasm. The

diagnosis was chronic back pain. In the RFC evaluation, the

neurologist determined that claimant could lift a maximum of

50 pounds. He could stand and walk without any limits, but

could sit for an uninterrupted time for only three to four

hours in a work day. Claimant had no limits in kneeling,

crouching, crawling, climbing or balancing. He was limited

in his ability to push or pull.

In contrast to the above is the report of an

evaluation performed by a neurologist on January 28, 1987.

See Exhibit 20. This examiner found lumbar dextroscoliosis,
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marked lumbosacral paravertebral muscle spasm and tenderness

to palpation. Claimant had limited range of motion and could

bend forward only 30 degrees. The diagnoses were as follows:



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(1) herniated nucleus pulposus (HNP) at L4-L5 and L5-S1; (2)

bilateral intractable S1 radiculopathies; (3) severe, chronic

lumbosacral myositis and myofascial pain; and (4) lumbar

facet axial injury and pain syndrome. The report's

conclusions were that claimant's musculoskeletal and spinal

conditions, along with nerve root involvement, contributed to

"severe functional spinal limitation in all of the range of

lumbar movements." As a result, claimant's ability to

maintain a fixed position for a substantial period of time

was limited; further, claimant's constant pain was

exacerbated by physical exertion. Thus, he was precluded

from engaging in "any type of gainful activity whatsoever."

According to this doctor, claimant was in "dire need" of

treatment.

At the last hearing, the ALJ asked the VE his

opinion of what type of work claimant could perform. The VE

responded that if one used only Exhibit 20, claimant would

not be able to engage in any substantial gainful activity due

to his functional limits and severe pain. However, based on

the RFC forms completed by the other two examiners, claimant,

although precluded from heavy work such as his last job,

could perform moderate work. The VE reached this conclusion

even taking into account claimant's pain and decreased

abilities in sitting, standing or walking for long periods of

time.



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Claimant argues that the ALJ did not credit his

complaints of pain. We do not agree. The VE in describing

claimant as being able to engage in moderate work

specifically referred to pain as a component of claimant's

profile. The ALJ went further than the VE, deciding that

claimant could perform only light work where he could

alternate positions.1 This finding was based in part on the

fact that claimant's pain as well as his other conditions

required this kind of flexibility. Although the reports were

conflicting as to whether claimant's pain was totally

disabling, such conflicts are for the ALJ, not the courts, to

resolve. See Rodriguez v. Secretary of Health and Human
___ _________ _______________________________

Services, 647 F.2d 218, 222 (1st Cir. 1981). Thus, we find
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that there was substantial evidence to support the ALJ's

conclusion that claimant could perform the demands of light

work.

2. Mental Impairment
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Whether claimant's emotional impairment is

disabling is a closer question. He began experiencing

emotional problems after he injured his back. He received

treatment for these problems at the Carolina Mental Health

Center from March 1986 through February 1988. See Exhibits
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1. For some reason, claimant argues that the ALJ erred by
relying on the grid and that the testimony of a VE was
required. It appears that claimant bases this contention on
the first decision rendered by the ALJ in July 1987, rather
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than the most recent decision of June 1989.

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18 and 37. At his initial evaluation, claimant stated that

he had trouble sleeping, was irritable, lost his temper with

his children, experienced headaches and some visual

hallucinations at night. The diagnosis, at this time, was an

adjustment disorder with depression; the prognosis was good

with out-patient counseling recommended. Clinic notes

indicate that during 1986, claimant evinced little

cooperation with treatment; he stated that he was there only

for the purpose of obtaining medication to help him sleep.

His case was terminated in January 1987, no real changes

having occurred. However, in December 1987, claimant was re-

admitted to the out-patient program with the same complaints.

At this time, claimant was cooperative, goal-directed,

relevant and his thought processes were intact. Again,

little gain appears to have been made with treatment and the

record reflects that his last visit was in February 1988.

Claimant underwent four psychiatric evaluations --

two in 1986 and two in 1987. All the examiners agreed that

claimant was coherent, logical, relevant and oriented. See
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Exhibits 15, 17, 38 and 40. Despite his subjective

complaints of hallucinations, all four examiners also agreed

that his thought processes were intact with no evidence of

psychotic perceptions. Although two examiners noted some

impairment with recent and immediate memory, see Exhibits 17
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and 40, this was not perceived as a major problem and all



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four agreed that claimant's judgment was, at a minimum,

adequate. Similarly, all four examiners agreed that claimant

was anxious and distracted, with three observing that

claimant appeared depressed. See Exhibits 15, 38 and 40.
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The most common diagnosis was depression related to

claimant's accident.

The evaluators differed as to the effect of

claimant's mental condition or his ability to function at

work. A psychologist who tested claimant for the SIF, see
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Exhibit 17, determined that claimant had a borderline IQ of

76. His vocational test scores revealed a strong interest in

manual activities. Despite the presence of "mild to

moderate" anxiety which affected claimant's concentration,

the psychologist believed that this condition was treatable

on an out-patient counseling basis. Claimant's work

prognosis was "very much acceptable" and "his emotional state

and his intellectual capacities" were "appropriate" for

vocational rehabilitation.

However, the one examiner who completed a mental

RFC assessment, see Exhibit 40, rated claimant's abilities to
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function in the following areas as "poor or none" (defined on

the RFC form as "[n]o useful ability to function"): (1)

following work rules; (2) relating to co-workers; (3) dealing

with the public; (4) interacting with supervisors; (5) coping

with work stresses; (6) maintaining concentration; (7)



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handling detailed or complex job instructions; (8) behaving

in an emotionally stable manner; and (9) demonstrating

reliability. His abilities to use judgment, function

independently and relate predictably in social situations

were "fair" -- defined as "seriously limited, but not

precluded." Claimant had good ("limited but satisfactory")

abilities in the areas of understanding, remembering and

carryingout
simpleinstructions
andinmaintaining
personalappearance.

Two non-examining doctors completed RFC assessments

in 1986. See Exhibit 14. They agreed that claimant had no
___ __

significant limits in the following activities: (1)

remembering locations and work procedures; (2) understanding,

remembering and carrying out very short and simple

instructions; (3) making simple work-related decisions; (4)

asking simple questions; (5) requesting assistance; (6)

acting in a socially appropriate manner; and (7) responding

appropriately to changes in the work place. Both also viewed

claimant as being moderately limited in his capacity to

maintain a normal work week without interruptions due to

psychological symptoms, to accept criticism and to get along

with co-workers. These same evaluators, on the "B" criteria

of the Psychiatric Review Technique (PRT) Form, rated

claimant as slightly limited in daily living activities and

moderately limited in social functioning; claimant seldom





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experienced problems with concentration and never had

episodes of deterioration at work or in work-like settings.

In 1988, two non-examining physicians also

completed PRT forms. They opined that although claimant was

anxious and depressed, his emotional condition was not

severe. See Exhibit 35. As for the "B" criteria, claimant
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had slight limitations in daily living and social

functioning, seldom experienced problems with concentration

and never had problems with deterioration at work or in work-

like settings.

The ALJ also questioned the VE concerning the above

evidence. Again, the VE pointed out that the evidence was

conflicting and the conclusions as to claimant's work

abilities were dependent on what medical reports one

utilized. Based on the psychiatrist's report and the RFC

evaluation, claimant would not be able to work at all.

However, the other reports, according to the VE, did not

support such a finding of total disability.

Although we do not agree with the ALJ that claimant

did not have any emotional impairment and even hesitate to
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find, as did the Appeals Council, that while such an

impairment did exist, it had no significant effect on

claimant, we believe that there is substantial evidence to

support the conclusion that claimant was not precluded from

work. We first note, however, that the findings of moderate



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limitations in accommodating the demands of a work setting --

i.e., regular attendance and the completion of a work-week
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without interruption -- can erode the occupational base, at

least marginally. See Ortiz v. Secretary of Health and Human
___ _____ _____________________________

Services, 890 F.2d 520, 527 (1st Cir. 1989). Nonetheless,
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given the presence of the RFC assessments indicating that

claimant had the ability to follow simple instructions and

that his attention and concentration were only minimally

affected, along with the RFC assessments that claimant's

emotional impairment was not severe, we cannot say that the

VE's conclusion that claimant could work as a warehouse stock

person was without record support. Although the record could

support a different conclusion, we again emphasize that

conflicts in the record are for the Secretary. See Irlanda
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Ortiz v. Secretary of Health and Human Services, 955 F.2d
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765, 770 (1st Cir. 1991) (per curiam).

III. CONCLUSION
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For the foregoing reasons, the judgment of the

district court is affirmed.
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