Ocasio Vazquez v. SHHS

USCA1 Opinion




February 15, 1994

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 93-1861
ANA L. OCASIO VAZQUEZ,

Plaintiff, Appellant,


v.

SECRETARY OF HEALTH AND HUMAN SERVICES,

Defendant, Appellee.

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ERRATA SHEET


The opinion of this Court issued on February 9, 1993,
is ammended as follows:

On cover sheet "February 9, 1993" should be corrected
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to read "February 9, 1993".
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February 9, 1994 [NOT FOR PUBLICATION]

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

___________________


No. 93-1861
ANA L. OCASIO VAZQUEZ,

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

Breyer, Chief Judge,
Selya and Cyr, Circuit Judges.
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Juan A. Hernandez Rivera and Raymond Rivera Esteves on
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brief for appellant.
Guillermo Gil, United States Attorney, Maria Hortensia
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Rios, Assistant United States Attorney, and Robert J. Triba,
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Assistant Regional Counsel, Department of Health and Human
Services, on brief for appellee.



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Per Curiam. Ana L. Ocasio Vazquez (claimant) appeals
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from a district court judgment affirming the decision of the

Secretary of Health and Human Services denying her

application for disability benefits. For the reasons stated

below, we affirm.

BACKGROUND

Claimant was born on September 25, 1946, and applied for

benefits when she was forty three years old. She has a

seventh grade education and does not speak English. Between

1970 and 1988, she was employed as a sewing machine operator.

In 1978, she suffered trauma to her left knee and underwent a

left medial meniscectomy. She returned to work but injured

the same knee in 1982. Claimant continued to work until

March 15, 1988, when pain in her left leg worsened. She was

hospitalized for several days and, thereafter, did not return

to work.

On February 2, 1990, claimant filed her application for

benefits alleging that she was disabled by phlebitis in her

left leg, sinusitis, headaches, back pains, and nerves.1

She claimed that she could not work because:

My leg becomes swollen and my two legs go numb.
The backache and the headaches are frequent. At
night, I don't sleep much. Before, I used to turn
the house upside down [to give it a thorough
cleaning] but I can't do it anymore.


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1. Phlebitis is inflammation of a vein. See Dorland's
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Illustrated Medical Dictionary 1279 (27th ed. 1988).
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Sinusitis is inflammation of a sinus. Id. at 1531.
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The Social Security Administration denied claimant's

application initially and on reconsideration.

Claimant obtained a hearing before an Administrative Law

Judge (ALJ) on March 19, 1991. She was represented by an

attorney. In addition to the claimant, a medical expert (ME)

and a vocational expert (VE) testified.

At the hearing, claimant reiterated her claims about her

leg and back conditions, as well as headaches. She testified

that her headaches are relieved by medication, but that the

relief is only temporary. She also complained of pain and

numbness in her upper left shoulder, dizzy spells, and "teary

and itchy" eyes. With respect to her physical limitations,

claimant testified that she could not sit for more than one

half hour at a time, that she could not walk a distance of

more than four or five houses before pain in her back and

legs caused her to return home, and that sometimes her leg

pain was so strong that she had to lie down.2

The ME testified that claimant had only a very mild loss

of movement in her knee and suffered from "superficial

phlebitis, which though painful when occurring, is



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2. Although claimant testified that she did not think that
she could work, she also testified that she had not tried to
find a job because:

I don't feel capable. I don't know what
kind of work to look for because nowadays
one has to have a degree to get a
comfortable job and I don't have it.

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inconsequential."3 He concluded that "in terms of her

functioning, there isn't a great degree of limitation." With

respect to claimant's back pain, the ME testified that her

condition "at no time is characterized as abnormal." He

found no evidence of objective neurological pain. In

summation, the ME testified that "[he didn't] see the

severity in any of the conditions that [claimant] mentioned,"

even as a whole, and that she should try to find a job that

did not involve repetitive foot movements.

The VE identified claimant's former work as a sewing

machine operator as light and semi-skilled. The ALJ posed a

hypothetical to the VE which assumed that claimant can sit

for five hours in an eight hour day; can stand for three to

four hours in the same period; can lift ten pounds

frequently, and twenty-five pounds occasionally; can pull and

push with her hands, but not make repetitive leg movements;

and can bend and squat occasionally.4 The VE concluded that

claimant could not do her past work as a sewing machine

operator, because it required her to sit all day and to


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3. The ME testified that "superficial phlebitis is an
inflammation of the superficial veins in the legs and the
varicose veins, as we commonly know them are the ones seen
through the skins, they sometimes swell get reddish and could
be very painful, but besides being temporarily uncomfortable,
it is not a condition that's considered serious."

4. The hypothetical also assumed that claimant was somewhat
limited in her ability to work at unprotected heights, around
operating machinery, or in an environment where she would be
exposed to extreme changes in temperature.

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alternate her legs frequently. However, he identified three

other jobs within the clothing industry--garment bagger, spot

cleaner, and garment inspector--that claimant could perform.

In these jobs, the VE testified, claimant could change her

position at will. The VE further testified that claimant

could perform these jobs if she had mild pain.

The ALJ found that the combined effect of claimant's

status post left meniscectomy, status post left superficial

phlebitis, and sinusitis are severe. He also found that

claimant is unable to perform her past work. However, the

ALJ concluded that claimant has the residual functional

capacity to perform within sedentary to light exertional

demands.5 The AlJ further concluded that claimant's

allegations of left leg and knee pains do not disable her

from performing sedentary to light work. Finally, the ALJ

ruled that, based on the testimony of the vocational expert

and application of the Grid, claimant is not disabled at step

five of the sequential analysis because there are other jobs

that she can perform.


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5. The ALJ went on make specific findings that claimant has
the capacity:

to perform the physical exertion requirements of
work except for sitting over five hours, standing
and walking over three to four hours, lifting and
carrying over 10 pounds frequently and 25 pounds
occasionally, performing repetitive actions with
her lower extremities and exposure to unprotected
heights, moving machinery or abrupt changes in
temperature.

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The Appeals Council denied review. An appeal was taken

to the district court, where a magistrate-judge concluded

that the Secretary's decision was supported by substantial

evidence. The district court adopted the magistrate's report

and recommendation. This appeal followed.

MEDICAL HISTORY

The medical record is well-summarized in the ALJ's

report, and we need only provide a brief overview here. In

late February and early March 1988, claimant saw doctors at

the State Insurance Fund for pain and swelling in her left

knee. On March 21, 1988, claimant was hospitalized for these

complaints. A left leg venogram was negative for thrombosis,

but an x-ray indicated joint space narrowing compatible with

osteoarthritis. Claimant was prescribed an anti-inflammatory

medication and discharged on March 25, 1988. At the time of

discharge, she was not experiencing leg discomfort and there

were no restrictions on her activities.

After her release from the hospital, claimant underwent

further tests and her left leg condition was diagnosed as

superficial thrombophlebitis. She continued to be seen by

doctors at the State Insurance Fund for complaints of pain in

her left leg. A questionnaire completed by her personal

physician, Dr. Justimo Betancourt, on March 23, 1990,

indicates that she had difficulty walking on her left leg,

but had no inflammation. Dr. Betancourt also reported that



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claimant had a history of maxillary sinusitis and that she

had occasional dizzy spells.

An internist evaluation done by Dr. Isabel Cestero, on

March 30, 1990, noted that claimant complained of pain and

numbness in her left leg, as well as swelling if she remained

standing. Laboratory results for the left knee were normal,

but a back x-ray indicated minimal narrowing of the lumbo

sacral spine at L5-S1. Tests revealed some limitation in

mobility in the left knee (0 - 100 out of a possible range

of 0 - 120 ). The diagnosis was status post left

meniscectomy and status post left superficial phlebitis.

On September 21, 1990, Dr. Betancourt reported findings

similar to those he reported on March 23, 1990, although he

also noted left leg skin changes with edema. On September

28, 1990, an x-ray of claimant's cervical spine showed

straightening secondary to muscle spasms, as well as minimal

levoscoliosis.

DISCUSSION

On appeal, claimant raises two issues. First, claimant

argues that the ALJ failed to give proper consideration to

her subjective complaints of disabling pain. Second,

claimant contends that the ALJ's conclusions about her

physical exertional capacity are not supported by substantial

evidence because they were reached without any assessment of

residual functional capacity by a physician.



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With respect to claimant's argument that the ALJ failed

to properly evaluate her claim of subjective pain, we note

that although it was considered and rejected by the

magistrate, it was not encompassed in claimant's objection to

the magistrate's report. It is well-settled in this circuit

that a party may not obtain appellate review of an issue

determined by a magistrate when the party has failed to file

a timely objection to the magistrate's determination of the

issue as required by 28 U.S.C. 636(b). See Thomas v. Arn,
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474 U.S. 140, 147-48 (1985); Keating v. Secretary of Health &
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Human Services, 848 F.2d 271, 273 (1st Cir. 1988) (per
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curiam); Park Motor Mart, Inc. v. Ford Motor Co., 616 F.2d
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603, 605 (1st Cir. 1980). Accordingly, the issue is waived.



We add that even if we were to consider the issue, we

would disagree. Claimant was questioned regarding her daily

activities, functional restrictions, medication, and

frequency and duration of pain in conformity with the

guidelines set out in Avery v. Secretary of Health & Human
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Services, 797 F.2d 19 (1st Cir. 1986).6 In light of the
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lack of medical evidence to suggest an objective basis for



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6. Although more thorough questioning at the hearing
regarding claimant's daily activities would have been
preferable, the record included a questionnaire which
elicited this information from her. Claimant stated that she
spent most of the time lying down, but also stated that she
cooked occasionally and that she visited close relatives.

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disabling pain, the ALJ, who observed claimant's demeanor at

the hearing, was entitled to make a credibility determination

regarding claimant's pain, Da Rosa v. Secretary of Health &
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Human Services, 803 F.2d 24, 26 (1st Cir. 1986) (per curiam),
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and to conclude that her pain did not disable her from

performing within sedentary to light exertional demands. See
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Perez v. Secretary of Health & Human Services, 958 F.2d 445,
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448 (1st Cir. 1991) (per curiam).

The ALJ's finding that claimant has the residual

functional capacity to do sedentary to light work is slightly

more problematic, though we ultimately conclude that it is

supported by substantial evidence. It is true that we have

held that an ALJ is not qualified to interpret "raw medical

data" in functional terms. See Perez, 958 F.2d at 446. We
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have also stated, however, that the Secretary is not

precluded from rendering common-sense judgments about

functional capacity based on medical findings." Gordils v.
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Secretary of Health & Human Services, 921 F.2d 327, 329 (1st
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Cir. 1990) (per curiam). Here, there is no residual

functional capacity analysis by an expert in the record. We

find, however, that the ALJ could make a determination that

claimant was not disabled for the following reasons. First,

the impairments in the record appear to be "relatively mild"

in the sense that the reports show few symptoms that would

affect ability to do work. See Santiago v. Secretary of
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Health & Human Services, 944 F.2d 1 (1st Cir. 1991) (per
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curiam). Second, the ALJ's "common-sense judgment" was

bolstered by the testimony of a medical expert that "there

isn't a great degree of limitation" on claimant's functional

capacity, that he "[did not] see the severity" in any of the

conditions she mentioned, and that claimant should try to

find a job that did not require her to make repetitive foot

movements. Finally, aside from claimant's allegations of

disabling pain, which we have held the ALJ was entitled to

reject, the only other claimed limitation was an inability to

sit or walk for an extended period of time. The hypothetical

posed to the VE by the ALJ assumed the truth of this claimed

limitation, and the VE identified jobs that would permit her

to alternate positions at will.

The judgment of the district court is affirmed.























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