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USCA1 Opinion
September 25, 1995
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 95-1045
FELIX ROSSI,
Plaintiff, Appellant,
v.
DONNA E. SHALALA, SECRETARY OF HEALTH AND HUMAN SERVICES,
Defendant, Appellee.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Edward F. Harrington, U.S. District Judge] ___________________
____________________
Before
Torruella, Chief Judge, ___________
Selya and Boudin, Circuit Judges. ______________
____________________
Barbara E. Oro on brief for appellant. ______________
Donald K. Stern, United States Attorney, Charlene A. Stawicki, ________________ _____________________
Special Assistant United States Attorney, and Jessie M. Klyce, _________________
Assistant Regional Counsel, Department of Health and Human Services,
on brief for appellee.
____________________
____________________
Per Curiam. Claimant Felix Rossi appeals the ___________
Secretary's decision that he is not disabled under either the
Social Security Disability Insurance program ("SSDI"), 42
U.S.C. 401 et seq., or the Supplemental Security Income __ ___
program ("SSI"), 42 U.S.C. 1381 et seq.1 The district __ ___
court granted judgment in favor of the Secretary. We affirm
the district court's decision.
Background __________
Claimant, formerly a laborer in the construction
industry, filed for disability benefits on January 3, 1992,
with a protected filing date of December 30, 1991. He
alleged disability as of June 14, 1990, the date of a slip
and fall accident which caused him to suffer a back injury.
Claimant met the insured status requirements through March,
1992. The Administrative Law Judge ("ALJ") held a hearing
and heard testimony from claimant and a vocational expert
("VE"). Claimant was represented by an attorney.
After the hearing, the ALJ found that claimant was not
working; that he suffered a severe impairment; that his
symptoms did not meet or equal any listed impairment; that he
could not return to his past relevant work; and that he was
not disabled since he could perform other work. See 20 ___
C.F.R. 404.1520. The Appeals Council refused review.
____________________
1. For simplicity, we refer only to the SSDI regulations
since they are identical in all relevant particulars to the
SSI regulations.
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Claimant appealed to the district court, which affirmed the
Secretary. This appeal followed.
Discussion __________
We address each of claimant's arguments in turn and
incorporate facts and medical evidence as needed. Our
standard of review is limited. The Secretary's findings of
fact are conclusive if they are supported by substantial
evidence. "`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 his
conclusion.'" Irlanda Ortiz v. Secretary of Health and Human _____________ _____________________________
Services, 955 F.2d 765, 769 (1st Cir. 1991), quoting ________
Rodriguez v. Secretary of Health and Human Services, 647 F.2d _________ ______________________________________
218, 222 (1st Cir. 1981).
1. Claimant argues first that the ALJ erred in
concluding that he did not suffer from a listed impairment.
See 20 C.F.R. Part 404, Subpart P., Appendix I. ___
Specifically, claimant alleges that his condition meets or
equals in severity Listing 1.05(C).2
____________________
2. Disorders of the spine:
...
C. Other vertebrogenic disorders (e.g., herniated nucleus
pulposus, spinal stenosis) with the following persisting for
at least 3 months despite prescribed therapy and expected to
last 12 months. With both 1 and 2:
1. Pain, muscle spasm, and significant limitation of
motion in the spine; and
2. Appropriate radicular distribution of significant motor
loss with muscle weakness and sensory and reflex loss.
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We agree with the Secretary that the medical evidence of
record does not indicate that claimant's condition satisfies
the requirements set out in the Listing. We review the
evidence of reflex loss. In his exam of July 30, 1990, Dr.
Dorsey found the left knee and both ankle jerks diminished,
but the right knee jerk active. In his September 4, 1990
exam, Dr. Baradaran found normal knee jerks and slightly
diminished ankle jerks; he specifically found "no motor or
sensory deficit in the right or left lower extremity." Other
record evidence reflects diminished patella and absent ankle
jerks in December, 1991, and diminished left patella reflexes
in April and May, 1992. In July, 1992, Dr. Beal found "no
radicular-type sensory deficits," and "no focal deficits in
the reflexes, strength or sensation." This evidence
indicates absent ankle reflex only in December, 1991, with
periodic and occasional reflex loss or diminution in the
ankle and left knee. Only in December, 1991, does the
evidence indicate that there was any diminution in the right
knee reflex.3 In light of the criteria set out in Listing
____________________
3. We are puzzled by a reference in Dr. Grady's report to
"electrodiagnostic studies" done September 4, in which
"tibial H reflexes were absent in both legs." The only
electromyographic report of record is dated September 4,
1985. R. 164. It discusses an "absen[t] ... H reflex on the ____
right side, [and a] clinically absent ankle jerk." Claimant
visited Dr. Baradaran on September 4, 1990, and he ____
recommended an EMG; however, there are no results in the
record. Assuming arguendo that there was an EMG study of ________
September 4, 1990, indicating that "tibial H reflexes were
absent in both legs," this would not change our conclusion
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1.05(C), we conclude that there was substantial evidence in
support of the Secretary's decision that claimant did not
satisfy the Listing requirements.
2. Claimant argues next that the ALJ erred in failing
to consider his impairments in combination. Nurse
Demerjian's Progress Notes, from the South Boston Community
Health Center, reflect that on December 13, 1991, claimant
was deemed to have high blood pressure. A later note
(December 27, 1991) indicates that claimant's blood pressure
was elevated, and suggests that he lose weight, decrease
caffeine and stressors, and stop smoking. Claimant
apparently began taking some type of medication for his
pressure in May, 1992, and his blood pressure was controlled
by medication by June 26, 1992. Claimant argues as well that
he suffers from chronic obstructive pulmonary disease
("COPD") and that this, too, impairs him vocationally.
However, there is no evidence of any vocational limitations
as a result of the COPD. Claimant has the burden of proof on
this issue, see generally 20 C.F.R. ___ _________
404.1512, and has failed to carry it.
3. Claimant's third argument challenges the ALJ's
conclusion that he is capable of performing the full range of
____________________
that there is substantial evidence in favor of the
Secretary's conclusion that the Listing 1.05(C) criteria were
not satisfied.
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light work.4 We note first that although the ALJ did so
conclude in his findings, he did not treat claimant as
capable of performing the full range of light work. Instead,
he accepted for the most part the limitations set out in the
RFC prepared by Nurse Demerjian and he accepted as well
claimant's professed need to change position regularly.
These qualifications were part of the hypotheticals put to
the VE, and discussed in detail infra. _____
Nonetheless, claimant insists that in reaching his
"light work" conclusion, the ALJ mistakenly relied on two
medical reports which gave no opinion as to claimant's
ability to perform work-related activities, and that the ALJ
misapplied the limitations set out in the report of Nurse
Demerjian.
Nurse Demerjian submitted an RFC, dated June 1, 1993, in
which she indicated that claimant could sit for three hours;
stand for two hours; and walk for four hours as long as he
could change position every two hours. She indicated that he
could frequently lift up to 5 pounds, occasionally lift 5-10
____________________
4. 20 C.F.R. 404.1567(b) provides:
Light work involves lifting no more than 20 pounds at a
time with frequent lifting or carrying of objects weighing up
to 10 pounds. Even though the weight lifted may be very
little, a job is in this category when it requires a good
deal of walking or standing, or when it involves sitting most
of the time with some pushing and pulling of arm or leg
controls. To be considered capable of performing a full or
wide range of light work, you must have the ability to do
substantially all of these activities.
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pounds, and never lift any greater weight. While she thought
that claimant could bend occasionally, she indicated that he
could never squat, crawl, climb or reach above shoulder
level, and that he could use only his right foot to operate
foot controls. Nurse Demerjian revised her assessment one
week later, indicating that because of shortness of breath
and leg problems, claimant could walk for only 20-30 minutes
at a time, up to a total of one hour per day.
The record contains other RFCs. The first, dated
February 27, 1992, indicates that claimant could occasionally
lift 20 pounds; frequently lift 10 pounds; stand and/or walk
about 6 hours; sit up to 6 hours; and occasionally climb;
balance; stoop; kneel; crouch and crawl. The second, dated
July 23, 1992, reflects the same exertional limitations but
differs in its assessment of claimant's postural limitations,
limiting his stooping capacity to "occasionally," but finding
that he could frequently climb; balance; kneel; crouch and
crawl.
In determining a claimant's residual functional
capacity, the ALJ is not limited to reliance on reports
submitted by claimant's caregivers. The ALJ may also, under
certain circumstances, rely on reports submitted by non-
testifying, non-examining physicians. See generally Berrios ___ _________ _______
Lopez v. Secretary of Health and Human Services, 951 F. 2d _____ _______________________________________
427, 429-32 (1st Cir. 1991). This is especially true where,
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as here, these reports include medical findings to support
the conclusions; the reports were prepared after most of the
relevant medical data was generated; and the reports tend to
reinforce one another. Berrios Lopez, 951 F.2d at 431. _____________
Thus, we conclude that the ALJ could have relied on the
RFCs of the non-treating physicians, and we find further that
these would have supported a light work exertional capacity.
We note again that in any event the ALJ did not hold claimant
to this standard, but assessed his work capabilities in light
of his particular non-exertional impairments.
4. Claimant's fourth argument is that the hypotheticals
given to the VE did not accurately reflect the evidence in
the record and so were improper under the standard set out in
Arocho v. Secretary of Health and Human Services, 670 F.2d ______ _______________________________________
374 (1st Cir. 1982). We observed in Arocho that for a ______
vocational expert's answer to a hypothetical to be relevant,
"the inputs into that hypothetical must correspond to
conclusions that are supported by the outputs from the
medical authorities." Id. at 375. "To guarantee that ___
correspondence, the Administrative Law Judge must both
clarify the outputs (deciding what testimony will be credited
and resolving ambiguities), and accurately transmit the
clarified output to the expert in the form of assumptions."
Id. __
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Claimant described his daily activities at the hearing.
He indicated that he can walk twenty minutes before he needs
to stop to catch his breath, and that if he sits for "an
average of three hours, that's a lot." He does not make his
bed, but he does dust, and he prepares frozen dinners or
hamburgers for meals. He shops for groceries once a month
and he has them delivered.
The ALJ questioned the vocational expert about "light
jobs with an option to change position." After the VE
identified various jobs, such as security guard/gate keeper,
self service gas station attendant and cashier, the ALJ added
claimant's restrictions regarding sitting, walking and
standing, and the need to alternate position. He added as
well the exertional requirements described by Nurse
Demerjian, which were lower than the exertional requirements
described in the other RFPs in the record. The VE indicated
that the jobs he had identified did not involve any lifting,
and did not require the operation of any machinery. These
jobs assumed a sixth grade level of education, and the
ability to read a newspaper. If claimant could not reach
above the shoulder, that would eliminate the self service gas
station attendant.
We perceive no problem with the data given by the ALJ to
the VE. The record evidence supports the ALJ's conclusion
that the claimant can perform light work. The fact that the
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strength limitations the ALJ gave to the VE approximated the
sedentary strength requirements does not change this. First,
as indicated above, the ALJ could reasonably have relied on
the other RFCs of record which found claimant somewhat more
able than did the RFC completed by Nurse Demerjian. See ___
generally Berrios Lopez, 951 F.2d at 429-32. Next, we see no _________ _____________
reason why a VE cannot testify that particular light jobs
involve little or no lifting. Cf. Moncada v. Chater, 60 F.3d __ _______ ______
521, 524 (9th Cir. 1995)(fact that "some jobs listed by VE as
sedentary are also listed as "light" work in the DOT is
irrelevant; VE `can testify whether particular applicants for
disability benefits would be able to perform subcategories of
jobs within the DOT'")(citation omitted).
The ALJ apparently did not credit claimant's allegations
of disabling pain as imposing any additional exertional
limitations (see infra) and so was not obligated to present ___ _____
these to the VE. The ALJ otherwise tailored his hypothetical
to reflect claimant's particular needs.5 We perceive no
error. 5. Claimant's final challenge is to the ALJ's
failure to credit his complaints of unremitting and constant
____________________
5. Insofar as claimant may be arguing that the ALJ in fact
applied the grid to reach his conclusion against disability,
we do not agree. The ALJ cited to the grid in his findings,
but observed that the conclusion of "not disabled" which
would have been directed by the relevant grid rule coincided
with vocational expert testimony. As indicated above, we are
satisfied that the ALJ adequately conveyed claimant's
limitations to the VE.
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pain as imposing a non-exertional impairment in addition to
the exertional and positional impairments set out above.6
It appears to us that the ALJ properly followed the approach
endorsed in Avery v. Secretary of Health and Human Services, _____ ______________________________________
797 F. 2d 19 (1st Cir. 1986).
We have construed Avery to mean that "complaints of pain _____
need not be precisely corroborated by objective findings, but
they must be consistent with medical findings." Dupuis v. ______
Secretary of Health and Human Services, 869 F.2d 622, 623 _________________________________________
(1st Cir. 1989). Assuming without more that claimant's back
impairment could reasonably cause pain, the ALJ investigated
claimant's activities and medications, and observed him at
the hearing. The ALJ concluded, after considering all of
this, that claimant's allegations did not impose additional
restrictions other than limiting him to light work. Id. We __
have said repeatedly that we pay "`particular attention' to
an ALJ's evaluation of complaints of pain in light of their
`subjective nature.'" Ortiz v. Secretary of Health and Human _____ _____________________________
Services, 890 F.2d 520, 523 (1st Cir. 1989) (citations ________
____________________
6. The ALJ's credibility finding, to the effect that "[t]he
claimant is accepted as a credible witness to the extent set
forth above (Social Security Ruling 88-13)" means what it
says. Above, the ALJ had, in accordance with Avery v. _____
Secretary of Health and Human Services, 797 F.2d 19 (1st Cir. ______________________________________
1986), reviewed claimant's activities, his description of his
pain and his medication, and had concluded that claimant
could perform light work. We reject the suggestion that this
specific finding in favor of claimant's credibility means
that the ALJ found credible claimant's assertions that his
pain further limited him from performing work.
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omitted). We find no error. There is substantial evidence
in the record to support the Secretary's decision which is,
accordingly, affirmed. ________
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Document Info
Docket Number： 95-1045
Filed Date： 9/25/1995
Precedential Status： Precedential
Modified Date： 9/21/2015