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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September 23, 1992 [NOT FOR PUBLICATION]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
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(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
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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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Document Info
Docket Number： 92-1460
Filed Date： 9/23/1992
Precedential Status： Precedential
Modified Date： 9/21/2015