Tavarez v. Commissioner of Social Security , 138 F. App'x 327 ( 2005 )

Not For Publication in West's Federal Reporter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. 04-2432
CELIA R. TAVAREZ,
Plaintiff, Appellant,
v.
COMMISSIONER OF SOCIAL SECURITY,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Jaime Pieras, U.S. District Judge]
Before
Torruella, Lipez and Howard,
Circuit Judges.
Melba N. Rivera Camacho on brief for appellant.
H.S. Garcia, United States Attorney, Katherine Gonzalez-
Valentin, Assistant U.S. Attorney, and Dino Trubiano, Assistant
Regional Counsel, on brief for appellee.
June 30, 2005
Per Curiam. Claimant Celia R. Tavarez filed an
application for Social Security disability benefits primarily
based on (1) back pain, (2) carpal tunnel syndrome, and (3) a
mental impairment (depression). The administrative law judge
(ALJ) determined that although claimant cannot perform her past
work due to the skill level involved in this work, she
nonetheless retains the residual functional capacity (RFC) to
perform the exertional demands of medium work (1) which is simple
and unskilled and (2) which does not require frequent bilateral
handling, fingering, and manipulating. Relying on the Medical
Vocational Guidelines (the Grid), 20 C.F.R. Part 404, Subpart P,
App. 2, as a framework, the ALJ then concluded that claimant was
not disabled. The district court upheld the denial of disability
benefits.
We agree with the district court concerning claimant's
mental impairment. Claimant did not seek any treatment for this
condition until three weeks before the date her insured status
expired (December 31, 2001), and Dr. Perez, claimant's treating
psychiatrist, did not place any limitations on claimant prior to
this date. Indeed, it was not until April 24, 2002, that Dr.
Perez opined that claimant's capacity for work was poor, and it
was not until March 2003 that Dr. Perez rated claimant as being
markedly limited in all areas of mental functioning. In neither
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of these opinions did Dr. Perez state that these limitations had
existed prior to December 31, 2001.
As a result, and given the lack of any evidence in the
record concerning the effects of claimant's mental impairment on
her ability to function in the workplace during the relevant
time, the ALJ's conclusion that this impairment is mild was
supported by substantial evidence. Similarly, the ALJ's
determination that claimant's mental condition only affected her
to the extent that she was limited to coping with simple
instructions is supported by substantial evidence. In relation
to this latter determination, the RFC assessment of the non-
examining clinical psychologist rated claimant as having no
significant limitations in dealing with such instructions. This
assessment further stated that claimant could sustain pace and
attention during a regular work-day or work-week and could
persist in work activities in a sustained manner.
However, we do agree with claimant that the ALJ's
reliance on the Grid was in error. Where a claimant cannot
return to her past work, as here, the Commissioner bears the
burden of proving the existence of other jobs in the national
economy which the claimant is capable of performing. See Ortiz
v. Secretary of Health and Human Services, 890 F.2d 520, 524 (1st
Cir. 1989) (per curiam). The Grid permits the Commissioner to
satisfy this burden without having to resort to the testimony of
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a vocational expert (VE). Id. Thus, "should a nonexertional
limitation be found to impose no significant restriction on the
range of work a claimant is exertionally able to perform,
reliance on the Grid remains appropriate." Id. However, where
a claimant has a nonexertional impairment which "significantly
affects" the claimant's capacity to perform the full range of
work he or she is otherwise exertionally capable of performing,
the Commissioner must carry her burden of showing the
availability of jobs in the national economy by other means. Id.(internal quotation marks and citation omitted). Usually, this
involves obtaining the testimony of a VE. Id. at 524.
Here, the ALJ found that claimant could perform all of
the exertional requirements of medium work, and such a finding
also means that claimant is capable of performing the exertional
demands of sedentary and light work. See 20 C.F.R. §
404.1567(c). As for claimant's carpal tunnel syndrome -- a
nonexertional impairment -- the ALJ concluded, as noted, that
claimant could not engage in frequent bilateral fingering,
handling, and manipulating. An uncontradicted RFC assessment
similarly found that claimant has limits in her ability to finger
(fine manipulation) and handle (gross manipulation).
"Fingering involves picking, pinching, or otherwise
working primarily with the fingers," and the ability to finger
"is needed to perform most unskilled sedentary jobs." Social
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Security Ruling (SSR) 85-15, Capability to Do Other Work -- The
Medical-Vocational Rules as a Framework for Evaluating Solely
Nonexertional Impairments, 1985 WL 56857, at *7 (internal
quotation marks omitted). See also SSR 83-10, Determining
Capability to Do Other Work -- The Medical-Vocational Rules of
Appendix 2, 1983 WL 31251, at *5 ("[m]ost unskilled sedentary
jobs require good use of the hands and fingers for repetitive
hand-finger actions"). "Handling" is defined as "seizing,
holding, grasping, turning or otherwise working primarily with
the whole hand or hands," and handling is "required in almost all
jobs." SSR 85-15, 1985 WL 56857, at *7. See also SSR 83-14,
Capability to Do Other Work -- The Medical-Vocational Rules as a
Framework for Evaluating a Combination of Exertional and
Nonexertional Impairments, 1983 WL 31254, at *2 (grasping,
holding, and turning are required "at all exertional levels").
"Significant limitations of . . . handling, therefore, may
eliminate a large number of occupations a person could otherwise
do." SSR 85-15, 1985 WL 56857, at *7.
The question, then, is whether an inability to
frequently finger and handle "significantly affects" claimant's
capacity to perform the full range of work at all of the relevant
exertional levels -- sedentary, light, and medium. See Ortiz,
890 F.2d at 524. The ALJ thought not as he concluded that
claimant's ability to perform at least medium work "was
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substantially intact and was not compromised by any nonexertional
limitations." The problem is that we cannot determine from the
record the basis for the ALJ's conclusion that claimant's
incapacity for frequent fingering and handling did not
significantly affect the range of work in which she could engage.
As SSR 85-15 points out, "[v]arying degrees of [manual]
limitations . . . have different effects, and the assistance of
a [VE] may be needed to determine the effects of the
limitations". 1985 WL 56857, at *7. Since at least the ability
to handle is required for most jobs, it seems obvious to us that
the ALJ should have consulted some expert source to determine
what kinds of jobs remained for a person incapable of frequently
engaging in such an activity.
Further complicating the ALJ's reliance on the Grid is
his failure to mention any limits on claimant's ability to stoop
and crouch. According to the only RFC assessment in the record,
claimant can only occasionally stoop and crouch. The
consultative neurologist who examined claimant also noted that
claimant's range of motion was limited in forward bending.
"[T]o perform the full range of medium work . . . , a
person must be able to do both frequent stooping and frequent
crouching -- bending both the back and the legs." SSR 83-14, at
*5 (emphasis added). Plainly, then, an ability to engage in only
occasional stooping and crouching limits the range of medium work
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that claimant can perform. The addition of restrictions on
claimant's capacity for stooping and crouching makes this case
even more complex and provides another reason why the use of the
Grid may have been problematic here. See id. at *4 ("[i]n more
complex situations, the assistance of a vocational resource may
be necessary").
Finally, we think that the ALJ's determination that
claimant's back pain was only mild is not well-supported. As
reasons for discrediting the severity of this pain, the ALJ
stated that the record was devoid of any x-rays or other tests
which established conditions -- such as bulging discs, herniated
discs, pinched nerves, or radiculopathy -- which can cause severe
pain. However, two x-rays, one taken in 1999 and the other in
2001, showed that claimant suffered from sacralization at her L5
vertebra. According to the report of the 1999 x-ray,
sacralization is a common cause of low back pain. Thus, the
record, in fact, contains evidence of a condition which could be
expected to produce more than mild pain.
Based on the foregoing, the judgment of the district
court is affirmed in part and vacated in part, and the matter is
remanded to the district court with instructions to remand to the
Commissioner for further proceedings consistent with this
opinion.
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