Rivera Ojeda v. SHHS

USCA1 Opinion









July 6, 1994 [NOT FOR PUBLICATION]


UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
___________________


No. 93-2194



PEDRO RIVERA OJEDA,

Plaintiff, Appellant,

v.

SECRETARY OF HEALTH AND HUMAN SERVICES,

Defendant, Appellee.

__________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO


[Hon. Raymond L. Acosta, U.S. District Judge]
___________________

___________________

Before

Boudin, Circuit Judge,
_____________
Bownes, Senior Circuit Judge, and
____________________
Stahl, Circuit Judge.
_____________

___________________

Raymond Rivera Esteves and Juan A. Hernandez Rivera on brief
______________________ ________________________
for appellant.
Guillermo Gil, United States Attorney, Maria Hortensia Rios,
_____________ ____________________
Assistant United States Attorney, and Robert J. Triba, Assistant
_______________
Regional Counsel, Department of Health and Human Services, on
brief for appellee.


__________________

__________________












Per Curiam. Claimant Pedro Rivera Ojeda filed an
__________

application for Social Security disability benefits on June

20, 1990, alleging a back condition, severe back pain, and a

nervous condition. After a hearing, the ALJ conceded that

claimant had a severe back impairment that precluded his

return to his former job as a janitor required to do heavy

work. The ALJ found, however, that despite claimant's

exertional impairments claimant retained the residual

functional capacity to perform light work. The ALJ further

found that claimant's non-exertional impairments (his pain

and mental condition) did not significantly restrict his

capacity to perform the full range of jobs requiring light

work. Accordingly, the ALJ found claimant not disabled at

step 4 of the sequential evaluation process, 20 C.F.R.

404.1520(e), on the ground that claimant's impairments,

although they precluded performing his former janitor job,

did not preclude his return to his former type of work as a
____

janitor. This type of work, the ALJ ruled, generally

requires no more than light work.

After the Appeals Council denied claimant's request for

review of the ALJ's decision, claimant appealed to the

district court, which affirmed. Claimant appeals, contending

that the Secretary's determination is not supported by

substantial evidence. We affirm.

The objective medical evidence concerning claimant's

physical condition can be summarized as follows. Dr. Ruiz, a

general practitioner, examined claimant on January 5, 1990,

and diagnosed cervical and dorso-lumbar spondlyoarthritis and

muscle spasm and left carpal tunnel syndrome. Dr. Vargas, a
















physiatrist, treated claimant between February and April 1990

and reported moderate to severe muscle spasm, but good muscle

tone and no atrophy, and left carpal tunnel syndrome. Dr.

Gonzalez Cotto, a neurologist, examined claimant on July 23,

1990, and diagnosed chronic discogenic disease.

The record contains substantial evidence to support the

ALJ's functional conclusion that claimant, despite these

impairments, retains the exertional capacity to perform light

work. Dr. Sanchez, a non-examining physician, reviewed the

medical evidence in the record and prepared a residual

functional capacity assessment form on February 5, 1991,

accompanied by brief medical findings. On the form, Dr.

Sanchez checked boxes indicating that claimant can lift or

carry 20 pounds, 10 pounds frequently, can stand, walk, or

sit six hours, and can climb, balance, stoop, kneel, crouch,

and crawl occasionally. Dr. Sanchez further found that

claimant could not perform repetitive movements in his upper

extremities, and was limited in his capacity for gross

manipulation by the hands.

Another non-examining physician, Dr. Marxuach, reviewed

the medical evidence in the record and prepared a residual

functional capacity assessment form on August 13, 1990,

accompanied by brief medical findings. Dr. Marxuach, like

Dr. Sanchez, checked boxes indicating that claimant can lift

or carry 20 pounds, 10 pounds frequently, can stand, walk, or



-3-















sit six hours, and can climb, balance, stoop, kneel, crouch,

and crawl occasionally. Dr. Marxuach noted no further

limitations.

The governing regulations state that light work

"involves lifting no more than 20 pounds at a time with

frequent lifting or carrying of objects weighing up to 10

pounds [and] requires a good deal of walking or standing."

20 C.F.R. 404.1567(b). These regulations do not require

that a person be able to perform repetitive movements of the

upper extremities or gross manipulation of the hands, or be

able to climb, balance, stoop, kneel, crouch, and crawl more

than occasionally, in order to be able to perform a full

range of jobs requiring light work. Thus, both Dr. Sanchez'

and Dr. Marxuach's findings support the ALJ's determination

that claimant can perform light work.

We have held that the amount of weight that can properly

be given the conclusions of non-testifying, non-examining

physicians "will vary with the circumstances." Berrios Lopez
_____________

v. Secretary of Health and Human Services, 951 F.2d 427, 431
______________________________________

(1st Cir. 1991) (quoting Rodriguez v. Secretary of Health and
_________ _______________________

Human Services, 647 F.2d 218, 223 (1st Cir. 1981)); Gordils
______________ _______

v. Secretary of Health and Human Services, 921 F.2d 327, 328
______________________________________

(1st Cir. 1990 (same). In some cases, written reports

submitted by non-testifying, non-examining physicians cannot

alone constitute substantial evidence, see Browne v.
____________



-4-















Richardson, 468 F.2d 1003 (1972), although this is not an
__________

absolute rule. Berrios Lopez, supra, 951 F.2d at 431;
______________ _____

Gordils, supra, 921 F.2d at 328. This issue has generally
_______ _____

arisen in cases where such reports were the primary evidence

of a claimant's residual functional capacity, since "the ALJ

is not qualified to assess claimant's residual functional

capacity based on the bare medical record." Berrios Lopez,
_____________

supra, 951 F.2d at 430.
_____

In this case, however, these residual functional

capacity assessments by non-examining physicians are not the

only evidence expressed in functional terms that supports the

Secretary's conclusion that claimant retains the capacity to

perform light work. Dr. Vargas cleared claimant to return to

work on April 5, 1990, which suggests that Dr. Vargas

believed that claimant could return to his heavy janitor

position. At the hearing, furthermore, claimant testified

that a doctor had recommended that he walk at least a half

mile, and that "the doctors have told me that the maximum

that I'd [sic] might be able to try to lift would be fifteen

to twenty pounds." This testimony relates a partial residual

functional capacity assessment made by examining physicians.

Since light work, again, "involves lifting no more than 20

pounds at a time," 20 C.F.R. 404.1567(b), this partial

residual functional capacity assessment bolsters the findings

of the non-examining physicians that claimant can perform



-5-















light work. Based on this evidence we find that the record

does contain substantial functional evidence to support the

Secretary's conclusion to that effect.

A finding that a claimant can perform light work,

however, does not necessarily mean that a claimant can

perform any particular type of work -- such as the janitor
___

work in this case -- that requires an exertional capacity to

do no more than light work. Janitor work in general may, or

may not, require other specific capabilities that claimant

may, or may not, possess. Claimant argues that the ALJ, as a

layman, was not qualified to reach the vocational conclusion

that janitor work in general does not require any

capabilities that claimant's impairments deny him. To reach

that vocational conclusion, claimant insists, the testimony

of a vocational expert, at step 5 of the sequential

evaluation process, 20 C.F.R. 404.1520(f), would be

necessary.

We need not resolve this question. Even if we were to

find that the record lacked substantial vocational evidence

for the conclusion at step 4 that claimant could perform his

former type of work as a janitor, we would still affirm the

Secretary at step 5, without need for the testimony of a

vocational expert, by applying the Medical-Vocational

Guidelines, 20 C.F.R. Part 404, Subpart P, Appendix 2 ("the

grid").



-6-















The grid is based on a claimant's exertional capacity

and can only be applied where claimant's non-exertional

limitations do not significantly impair claimant's ability to

perform at a given exertional level. Sherwin v. Secretary of
_______ ____________

Health and Human Services, 685 F.2d 1, 3 (1st Cir. 1982),
__________________________

cert. denied, 461 U.S. 958 (1983). We find substantial
_____________

evidence in the record to support the Secretary's findings

that claimant's non-exertional impairments -- back pain and a

mental condition -- do not significantly impair his ability

to perform a full range of light work.

In addressing claimant's complaints of back pain, the

ALJ expressly followed the analysis required by Avery v.
_____

Secretary of Health and Human Services, 797 F.2d 19 (1st Cir.
______________________________________

1986), for evaluating subjective complaints of pain. Based

on the medical evidence already mentioned, the ALJ

permissibly found that claimant did not suffer from any

objective medical condition that would ordinarily be expected

to cause disabling pain. As we have noted, Dr. Vargas

cleared claimant to return to work in April 1990. The ALJ

also stated that his doubts about the severity of claimant's

pain were "further corroborated by the claimant's appearance

and demeanor at the hearing. The claimant was in no

significant physical or emotional distress, and he was able

to move about freely. He provided information accurately and

related adequately." The ALJ concluded that "claimant



-7-















possibly has mild occasional discomfort associated to his

condition, but he does not have disabling . . . distress."

The record contains ample evidence to support this finding.

As for claimant's mental condition, progress notes of

his treatment by the Mental Health Program of the Department

of Health stated that he had a somatoform disorder. Although

he complained of uneasiness and an inability to sleep,

claimant was nevertheless found to be oriented in the three

spheres, cooperative, coherent, and relevant, with

appropriate affect. Claimant was also reported to be

"feeling better with medication." A non-examining

psychologist reviewed the record and, in an October 9, 1990,

report, found that claimant was suffering from anxiety-

related disorders with no severe impairment and with only

slight functional limitations. In view of this evidence, we

cannot find a lack of substantial evidence to support the

Secretary's finding that claimant's mental condition did not

significantly affect his ability to perform the full range of

jobs that require light work.

Given the amply-supported findings that claimant

possessed the exertional capacity to perform light work and

that his pain and his mental condition did not significantly

affect his ability to do so, Rule 202.16 of the grid can

properly be applied in this case. That Rule dictates a

finding of "not disabled."



-8-















The judgment of the district court is affirmed.
________



















































-9-