Lopez-Merrero v. SHHS

USCA1 Opinion









May 31, 1994
[NOT FOR PUBLICATION]

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 93-2092

LAURA E. LOPEZ-MERRERO,

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. Carmen Consuelo Cerezo, U.S. District Judge]
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Before

Selya, Cyr and Stahl,
Circuit Judges.
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Raymond Rivera Esteves and Juan A. Hernandez Rivera on brief for
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appellant.
Guillermo Gil, United States Attorney, Maria Hortensia Rios,
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Assistant United States Attorney, and Paul Germanotta, Assistant
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Regional Counsel, Department of Health and Human Services, on brief
for appellee.


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Per Curiam. Claimant Laura E. Lopez-Marrero
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appeals from the judgment of the district court which

affirmed the decision of the Secretary of Health and Human

Services that claimant was not entitled to Social Security

disability benefits.

I. BACKGROUND
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Claimant filed an application for Social Security

disability benefits on June 6, 1989. She alleged an onset

date of October 15, 1988. As disabilities she listed her

nerves and her back. She related her impairments to two

falls at work. An administrative law judge (ALJ) held a

hearing. Claimant testified concerning her most recent work.

First, she worked in a pharmaceutical factory where she

manually checked and counted the gloves made there. She

would alternate between sitting and standing and only had to

carry "little" things. Next, she was employed as an office

worker; she took notes and answered the phone.

Claimant stated that she lives with her husband.

After the accidents, she suffered pain in her left leg, left

hip, left ankle and right hand. She uses a cane because of

the pain in her legs. She visits a doctor when in pain and

takes Motrin. She can sit and stand for twenty minutes at a

time but has problems walking. She can lift light objects.

She would like to work but cannot because of the problems she

has with her memory due to her nerves and because of the pain



















in her lower back, coccidial area and left hip. She

described her pain as strong although sometimes the medicine

helps. As for her nerves, she feels desperate and restless.

The ALJ first determined that claimant's

impairments did not meet the listings. Nonetheless, he found

that there existed some limitations in her work-related

activities due to both her exertional and non-exertional

conditions. As for claimant's mental impairment, the ALJ

concluded that claimant was only precluded from performing

complex tasks due to some deterioration in her ability to

sustain concentration. Nonetheless, she retained the

capacity to perform simple tasks that were routine and

repetitive in nature. He rejected the level of deterioration

described by claimant, finding that, under Avery v. Secretary
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of Health and Human Services, 797 F.2d 19 (1st Cir. 1986),
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she was only somewhat limited in social functioning and daily

activities.

In relation to her neurological condition, the ALJ

found that she suffered from lumbar strain and had a history

of trauma to her left hip, left ankle and right hand. Under

Avery, the ALJ credited claimant's complaints of pain only to
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the extent that she was precluded from doing heavy lifting

and carrying and from standing or walking for prolonged

periods of time. Thus, he concluded, she could perform her

past work.



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On appeal, claimant argues that the ALJ's

determinations regarding her pain were not substantially

supported by the record. Further, claimant asserts, the ALJ

erred by translating, without the aid of a vocational expert,

the medical evidence of claimant's physical impairments into

functional limitations on her ability to perform her past

work. As for her mental condition, claimant asserts that the

ALJ's decision was not supported by substantial evidence when

viewed in the context of the record as a whole.

Specifically, claimant points to the findings concerning

restrictions in her ability to cope with the stresses of work

in general.

A. Physical Impairment
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The x-ray reports, which found partial

sacralization of the L-5 disc and narrowing of the L-5-S-1

disc space, do provide evidence of "a clinically determinable

medical impairment that can reasonably be expected to produce

the pain alleged." See Avery, 797 F.2d at 21. However,
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there also was evidence to support the ALJ's decision not to

credit claimant's claims of totally disabling pain.

For example, in November 1989, claimant underwent a

neurological evaluation. See Exhibit 15. Although
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claimant's complaints included constant pain, she had normal

tone, no atrophy and a strength rating of 4 out of 5. There

was no muscle spasm and no deformity. The diagnosis was



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lumbar strain. At another examination in October 1990, see
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Exhibit 22, claimant complained of mild lower back pain which

was alleviated with Motrin. Despite the presence of some

muscle spasm and a limited range of motion of the lumbar

spine, there was no muscle weakness or atrophy and no sensory

deficit; claimant's gait was normal. The diagnosis was a

back condition by history, with no evidence of radiculapathy.

Contrary to claimant's argument, the ALJ did not

impermissibly translate medical data into functional

limitations. Rather, the record contained two residual

functional capacity (RFC) forms. In December 1989, a

physician opined that, based on the medical records, claimant

had no exertional, postural or other limitations. In a
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November 1990 RFC assessment, it was noted that claimant

could occasionally lift and carry up to 50 pounds and could

frequently lift and carry 25 pounds. She could stand, sit

and walk for up to six hours each per day.

B. Mental Condition
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Claimant's mental impairment presents a more

complicated picture but, again, there is evidence to support

the Secretary's position. A psychiatric examination

conducted in November 1989, see Exhibit 16, revealed that
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claimant was logical, coherent, relevant and oriented. She

did not present any perceptual dysfunctions. Although she

appeared anxious and depressed, her attention span was



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conserved and her ability to concentrate was adequate. She

was described as capable of judging reality and the

consequences of her acts.

In July 1990, claimant also was described as

coherent, relevant, logical and cooperative; there were no

observable thought disorders. See Exhibit 18. Her affect
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was appropriate and her mood normal. She reported delusions,

but the examiner described them as hysterical in nature. Her

memory was conserved. In addition, claimant took the MMPI.

The examiner described the results as "exaggerated." That

is, claimant "reported symptoms of such severe disturbance

that her profile fell outside the maximum limits that the

profile was designed to measure." As a result, "[s]he would

have been unlikely to be unable [sic] to take the test

properly if she were as severely disturbed as she was

claiming, and her behavior during the clinical part of the

examination was in sharp contrast with her claims of

disturbance." The diagnoses were mild dysthymia and a

personality disorder with dependent and hysterical features.

Three non-examining doctors completed mental RFC

assessments. In December 1989, claimant was rated as not

significantly limited in understanding, remembering and

carrying out short, simple instructions. Also not

significantly limited were her abilities to sustain an

ordinary routine without supervision, to make simple work-



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related decisions, to relate to co-workers, to maintain

socially appropriate behavior and to handle changes in the

work environment. As for maintaining concentration for

extended periods of time, performing within a regular

schedule, and being able to complete a normal work-week

without interruptions from psychologically-based symptoms,

claimant was moderately limited. She was not "markedly

limited" in any areas. The conclusion was that claimant was

capable of performing simple tasks on a sustained basis.

The RFC assessment completed in August 1990

essentially reached the same results. Even with moderate

limits on her abilities to complete a normal work-week, to

respond appropriately to changes in the work setting, and to

accept supervision, claimant retained the abilities to cope

with simple instructions, to perform within a schedule, to

make simple work-related decisions, to work in proximity to

others, to sustain an ordinary work routine, to maintain

regular attendance and to be punctual. The third physician,

in November 1990, echoed the findings concerning claimant's

capacity to deal with simple instructions, to work with

others, to make simple, work-related decisions and to respond

appropriately to criticism. She was moderately limited in

dealing with the stresses of work in general -- being able to

concentrate, maintaining a routine without supervision,





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completing a normal work-week and keeping up regular

attendance.

In Social Security Ruling (SSR) 85-15, the

Secretary set out the framework for addressing mental

impairments in the context of unskilled work. See Ortiz v.
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Secretary of Health and Human Services, 890 F.2d 520, 526-27
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(1st Cir. 1989) (per curiam) (discussing SSR 85-15). Two

sets of capabilities are necessary for this kind of work.

First, claimant must be able to understand, remember and

carry out simple instructions, to respond appropriately to

co-workers, supervision and normal work situations, and to

cope with routine changes in the work situation. There is

substantial evidence, based on the above reports, that

claimant meets these requirements.

The second set of capabilities concerns the demands

of any work environment, regardless of the skill level

involved. To be able to accommodate a work setting per se,

according to SSR 85-15, an individual must be capable of

being punctual, attending work on a consistent basis and

staying at work for the entire day. The RFC assessments

uniformly rated claimant as "moderately limited" in these

spheres of functioning. We have acknowledged that such

limitations may erode the occupational base "at least

marginally, and possibly more so." See Ortiz, 890 F.2d at
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527; see also Irlanda Ortiz v. Secretary of Health and Human
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Services, 955 F.2d 765, 770 (1st Cir. 1991) (per curiam).
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In this case, we believe that there is substantial

record evidence to support the Secretary's decision that

claimant's dysthymia did not significantly affect her ability
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to successfully negotiate the work setting. In this regard,

we note that objective medical evidence -- the MMPI --

indicates that claimant may be exaggerating her symptomology.

III. CONCLUSION
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We conclude that claimant has not met her burden of

establishing that her impairments precluded her from

performing her past work. See Gray v. Heckler, 760 F.2d 369,
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371 (1st Cir. 1985) (per curiam). "We must uphold the

Secretary's findings . . . if a reasonable mind, reviewing

the evidence in the record as a whole, could accept it as

adequate to support [the Secretary's] decision." Rodriguez
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v. Secretary of Health and Human Services, 647 F.2d 218, 222
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(1st Cir. 1981). Although the record contains conflicting

evidence, the resolution of these conflicts is for the

Secretary, not the courts. See id. Given the medical
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reports described above, there was substantial evidence in

the record as a whole to support the Secretary's conclusion.

The judgment of the district court is affirmed.
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