Acosta v. Barnhart , 114 F. App'x 7 ( 2004 )

Not for Publication in West's Federal Reporter
Citation Limited Pursuant to 1st Cir. Loc. R. 32.3
United States Court of Appeals
For the First Circuit
No. 04-1490
JERRY L. ACOSTA,
Plaintiff, Appellant,
v.
JO ANNE BARNHART,
COMMISSIONER OF SOCIAL SECURITY ADMINISTRATION,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. J. Antonio Castellanos, U.S. Magistrate Judge]
Before
Selya, Lynch and Lipez,
Circuit Judges.
Salvador Medina de la Cruz on brief for appellant.
H.S. Garcia, United States Attorney, Lisa E. Bhatia, Assistant
U.S. Attorney, and Robert J. Triba, Regional Chief Counsel, Social
Security Administration, on brief for appellee.
November 12, 2004
Per Curiam. Claimant Jerry L. Acosta appeals from the
district court's judgment affirming the denial of Social Security
benefits.1 The Commissioner of Social Security found that claimant
suffered from the following severe impairments (or combination of
impairments): herniated disc, high blood pressure, and adjustment
disorder. In denying benefits, the Commissioner first determined
that although claimant could not return to his past work as a truck
driver and ship unloader (medium, semi-skilled), claimant
nonetheless had the residual functional capacity ("RFC") to perform
light, unskilled work. Then, using the Medical Vocational
Guidelines (the "Grid"), 20 C.F.R. Part 404, Subpart P, App.2, as
a framework, the Commissioner concluded that claimant was not
disabled.
On appeal, claimant argues that the administrative law judge
(ALJ) 1) failed adequately to consider his allegations of pain in
assessing his RFC, and 2) erred in relying on the Grid rather than
obtaining the testimony of a vocational expert because claimant's
nonexertional limitations (caused by pain and an adjustment
disorder) significantly eroded the occupational base at the
relevant exertional level.
I. Consideration of Pain in Assessing RFC
The ALJ found that claimant had a medical condition -
1
Upon consent of the parties, the case was referred to a
magistrate judge for all proceedings and judgment. See 28 U.S.C.
§ 636(c).
-2-
herniated disc at L4-L5 and L5-S1 - that reasonably could be
expected to cause some discomfort and pain, but not to the extent
alleged. In reaching that conclusion, the ALJ relied upon
examining physicians' records of claimant's medical condition,
including claimant's descriptions of the location and intensity of
his pain. Claimant waived his right to appear at the hearing
before the ALJ, which would have provided an opportunity for
claimant to explain and demonstrate the functional impact of his
pain. Two RFCs were prepared, one by an examining physician and
the other by a non-examining physician, both of which noted that
they had taken claimant's allegations of pain into account. The
ALJ's approach was consistent with the policy described in Avery v.
Sec'y of HHS, 797 F.2d 19, 23 (1st Cir. 1986).
The only specific exertional limitation that claimant
identifies as support for the argument that his pain precluded him
from performing the full range of light work is an inability to
lift/carry more than 10 pounds, even occasionally.2 Even if
2
Limitations of functions are classified as exertional or
nonexertional. See 20 C.F.R. § 404.1569a. Impairments, including
pain, can cause exertional and/or nonexertional limitations of
functions. Id. Exertional limitations are those that affect a
claimant's "ability to meet strength demands of jobs (sitting,
standing, walking, lifting, carrying, pushing, and pulling)." Id.Nonexertional limitations are those that affect a claimant's
"ability to meet the demands of jobs other than the strength
demands." Id. Examples of non-strength demands of jobs are the
ability to concentrate, or to perform "the manipulative or
postural functions of some work such as reaching, handling,
stooping, climbing, crawling, or crouching." Id.-3-
claimant's pain so limited him, however, the Grid would still
dictate a finding of not disabled. The Commissioner found that
claimant was not disabled based on section 202.18 of the Grid,
involving the subsidiary finding that claimant could perform light
work (involving occasional lifting/carrying of up to 20 pounds).
If the capacity to perform sedentary work (involving the
lifting/carrying of no more than 10 pounds) is substituted for the
capacity to perform light work, section 201.19 of the Grid would
apply and would also direct a finding that claimant is not
disabled. Either way, substantial evidence sustains the ALJ's
determination of not disabled under the Grid. See Gordils v. Sec'y
of HHS, 921 F.2d 327 (1st Cir. 1990).
II. Impact of Nonexertional Limitations on Occupational Base
Claimant's main argument on appeal is that the ALJ erred in
relying exclusively on the Grid to determine whether there were a
significant number of jobs in the national economy that he could
perform. "The Grid is based on a claimant's exertional capacity
and can only be applied when claimant's nonexertional limitations
do not significantly impair claimant's ability to perform at a
given exertional level." Rose v. Shalala, 34 F.3d 13, 19 (1st Cir.
1994). "If a non-strength impairment, even though considered
significant, has the effect only of reducing that occupational base
marginally, the Grid remains highly relevant and can be relied on
exclusively to yield a finding as to disability." Ortiz v. Sec'y of
-4-
HHS, 890 F.2d 520, 524 (1st Cir. 1989).
A. Pain
"Pain may be a nonexertional factor to be considered in
combination with exertional limitations as well as a separate or
independent ground for disability." Gagnon v. Sec'y of HHS, 666
F.2d 662, 666 n.8 (1st Cir. 1981). Claimant suggests that
limitations in his postural and manipulative functions
(specifically, bending and reaching) caused by his pain symptoms
significantly eroded the relevant occupational base. Substantial
evidence supports the ALJ's determination that claimant's pain did
not amount to a significant nonexertional impairment.3
The two RFCs reached different conclusions regarding how the
medical findings translated into functional nonexertional
limitations. The RFC prepared by the non-examining physician
("non-examining RFC") reported that claimant could stoop
"occasionally," and that there were no limitations in claimant's
reaching ability. The other RFC, prepared by an examining
physician ("examining RFC"), reported that claimant could "never"
stoop and that he could reach only "occasionally."
"A bending restriction . . . constitutes a distinct
nonexertional limitation." Ortiz, 890 F.2d at 525. The
3
In reaching this conclusion, we have not considered the
medical report of treating physician Dr. Pagán, which was
submitted to the Appeals Council, but not the ALJ. We "may
review the ALJ decision solely on the evidence presented to the
ALJ." Mills v. Apfel, 244 F.3d 1, 5 (1st Cir. 2001).
-5-
Commissioner has stated that "[i]f a person can stoop occasionally
. . . in order to lift objects, the sedentary and light
occupational base is virtually intact." Social Security Ruling 85-
15, 1985 WL 56857, *7. Reaching is an activity "required in almost
all jobs. Significant limitations of reaching . . . may eliminate
a large number of occupations a person could otherwise do." Id.The non-examining RFC was based on a review of the medical
evidence and took claimant's allegations of pain into account. Its
conclusion that claimant could bend "occasionally" is not
inconsistent with the examining physicians' findings that he could
bend forward only 30 or 45 degrees. See Ortiz, 890 F.2d at 525(upholding an ALJ's finding that Ortiz's bending restriction did
not significantly reduce his potential occupational base where
bending range was limited to 30 to 40 degrees and RFC indicated
that Ortiz was capable of "occasional" bending). The non-examining
RFC's conclusion that claimant's reaching ability was not limited
is supported by Dr. Babilonia's examination report, which indicated
that claimant's joint movements in his shoulders were normal, that
there was no significant inflammation or swelling of the joints,
and that (other than in the dorsal spine area) his joints were
normal.
The examining RFC noted that its assessments were based on the
"patient's own reports" that certain activities exacerbated his
symptoms. Therefore, the ALJ was justified in giving less weight
-6-
to that RFC. See 20 C.F.R. § 404.1527(d)(3) ("The more a medical
source presents relevant evidence to support an opinion,
particularly medical signs and laboratory findings, the more weight
will we give that opinion."). Although the two RFCs were
inconsistent in certain respects, the medical evidence was largely
consistent. Both consulting physicians found that claimant's
ability to bend was limited (varying only from 30 degrees to 40
degrees). Conflicts in the evidence regarding the range of motion
in claimant's left shoulder were for the Commissioner to resolve.
See Rodriguez Pagan v. Sec'y of HHS, 819 F.2d 1, 3 (1st Cir. 1987).
We conclude that there is substantial evidence to support
findings (i) that claimant was capable of at least occasional
bending, and (ii) that his reaching abilities were not
significantly limited by his pain. Therefore, there was
substantial evidence to support the Commissioner's decision that
these nonexertional limitations did not so significantly erode the
occupational base as to require the testimony of a vocational
expert.
B. Adjustment Disorder
The issue concerning claimant's mental impairment is governed
by our decision in Ortiz, in which we approved the use of the Grid
in circumstances similar to the present case. There, we held that
exclusive reliance upon the Grid is appropriate so long as the
claimant's mental impairment does not "interfere more than
-7-
marginally with the performance of the full range of unskilled
work." Ortiz, 890 F.2d at 526. This determination involves the
following two lines of inquiry: "1) whether a claimant can perform
close to the full range of unskilled work, and 2) whether he can
conform to the demands of a work setting, regardless of the skill
level involved." Id. The Commissioner has described the mental
demands of unskilled work as follows:
the abilities (on a sustained basis) to understand, carry
out, and remember simple instructions; to respond
appropriately to supervision, coworkers, and usual work
situations; and to deal with changes in a routine work
setting.
SSR 85-15, 1985 WL 56857, at *4. Conforming to the demands of a
work setting involve "getting to work regularly . . . and remaining
in the workplace for a full day." Id. at *6.
There is substantial evidence to support the ALJ's findings
that claimant was "alert, coherent, relevant, logical and oriented
in the three spheres," able to understand and carry out
instructions, had sustained attention and concentration, and could
complete a normal work day and work week without undue
interruptions. The only contrary evidence is the treating health
center's report of "diminished" attention and concentration.
However, the examining psychiatrist concluded that claimant's
concentration was "intact." "[R]esolution of such conflicts in the
evidence is for the [Commissioner]." Rodriguez Pagan, 819 F.2d at
3. Although the examining psychiatrist did not complete a mental
-8-
RFC form, that failure did not preclude the Commissioner "from
rendering common-sense judgments about functional capacity based on
medical findings." Gordils, 921 F.2d at 329. On these facts,
substantial evidence supports the conclusion that claimant's mental
impairment does not "interfere more than marginally with the
performance of the full range of unskilled work." Ortiz, 890 F.2d
at 526.
Based on the foregoing, and according the appropriate
deference to the Commissioner's decision, we find no error in the
ALJ's treatment of claimant's subjective complaints of pain. The
ALJ partially credited claimant's allegations of pain and
discomfort related to his herniated disc, and determined that he
could perform only light work. There is substantial evidence in
the record to support the Commissioner's decision that
nonexertional limitations imposed by claimant's pain and mental
condition did not so significantly erode the occupational base that
testimony of a vocational expert was required. Consequently, the
judgment of the district court is affirmed.
-9-