Oyola Rosa v. SHHS
U.S. Court of Appeals for the First Circuit
Oyola Rosa v. SHHS
Opinion
USCA1 Opinion
December 30, 1992 [NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 92-1810
CARLOS OYOLA-ROSA,
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. Gilberto Gierbolini, U.S. District Judge]
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Before
Breyer, Chief Judge,
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Torruella and Selya, Circuit Judges.
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Raymond Rivera Esteves and Juan A. Hernandez Rivera on brief for
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appellant.
Daniel F. Lopez Romo, United States Attorney, Jose Vazquez
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Garcia, Assistant United States Attorney, and Paul Germanotta,
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Assistant Regional Counsel, Department of Health and Human Services,
on brief for appellee.
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Per Curiam. In 1989, Carlos Oyola filed an
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application for Social Security disability benefits, alleging
disability due to epilepsy, a nervous condition and back and
neck pain. After a hearing, the Administrative Law Judge
(ALJ) found that Oyola was not disabled at step five of the
sequential evaluation process set out in 20 C.F.R.
404.1520(f). The ALJ determined that Oyola's epilepsy was a
severe impairment which precluded him from returning to his
previous employment, but that Oyola did not have a disabling
emotional or mental condition. He credited Oyola's
allegations of pain to the extent that his pain would reduce
his residual functional capacity from heavy to medium work.
(Thus, he treated Oyola's pain as an exertional impairment.)
Although the ALJ found that Oyola could not engage in work in
which he would have to climb or balance,1 drive, or be
exposed to unprotected heights and moving machinery, he
concluded that those nonexertional impairments did not
significantly compromise Oyola's capacity for the full range
of medium work. Using Rule 203.25 of the Medical-Vocational
Guidelines (the Grid) in Appendix 2 of the regulations as a
framework for his decision, he determined that Oyola was not
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1. The ALJ did not resolve certain slight differences in the
staff physicians' assessments of Oyola's climbing and
balancing abilities. For purposes of our analysis in this
opinion, we adopt the more restrictive assessment offered by
Dr. Hernandez, which would be more favorable to Oyola, that
Oyola should never engage in work requiring any climbing or
balancing.
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disabled before his coverage expired. Oyola appealed the
ALJ's denial of benefits to the district court, which
affirmed the ALJ's decision, and then sought review in this
court. We affirm.
I. Severity of Alleged Disabilities
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Oyola does not challenge the ALJ's determination
that his epilepsy did not meet or equal the criteria in the
Listing of Impairments in Appendix 1 of the regulations. He
claims, however, that the ALJ failed to consider adequately
his allegations of disabling pain, and argues that his
medical record shows that he "constantly and persistently"
complained of "severe disabling pain" to his examining
physicians. In fact, the medical record shows that Oyola
only occasionally complained of pain or of other medical
problems that might have caused him pain. In 1978, he
reported that he had cervical muscle spasms and foot lesions,
and he was advised to rest for a week. In 1983, he
complained of pain in his feet, in his muscles and joints,
and specifically in his neck and back or shoulder, but no
medication or course of treatment was prescribed. In 1984,
he reported pain in his left anterior thorax, and, being
diagnosed provisionally as having angina pectoris and
muscular spasm, was prescribed medicine. He was reported
stable when he left the hospital. Pain in his thorax
recurred once again in mid-1985. Although the 1985 medical
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report is practically unreadable, it appears to indicate that
medication was prescribed for Oyola's pain. Between mid-1985
and December 31, 1988, the expiration date of Oyola's
coverage, the record contains no further report by Oyola of
any kind of pain. In early 1988, Oyola reported that he felt
"allright for now."
The ALJ did not specifically refer to this evidence
of pain in his decision, but his failure to do so was not
error under the circumstances. First, the medical records
evidencing Oyola's reports of pain are not very probative.
They indicate that Oyola complained of pain only sporadically
and not at all after the middle of 1985. The reports of pain
for 1984 and 1985 relate to chest pains which Oyola has not
asserted is or was disabling, and which he does not claim
arose out of his primary medical impairment, epilepsy.
Second, the ALJ made clear at the outset of his decision that
his task was to adjudicate only whether Oyola had a
disability between February 26, 1988 and December 31, 1988.2
(Two prior applications of Oyola relating to time periods
between 1983 and early 1988 were denied and not appealed.)
The evidence relating to pain suffered in prior periods was
useful background for determining whether the pain suffered
in the following period of time was disabling, Frustaglia v.
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2. The ALJ gives 1989 as the year ending the adjudicatory
period, but it is clear that he meant to say 1988 because
that is the year Oyola's coverage expired.
-4-
Secretary of Health and Human Services, 829 F.2d 192, 193
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(1st Cir. 1987), but was not itself dispositive.
Furthermore, the ALJ considered thoroughly Oyola's
testimony at a hearing in 1990 as to the severity of his
pain. At the hearing, Oyola testified that severe pain
caused by injuries suffered during a seizure and by bone
spurs and arthritis had caused him to stop working. The ALJ
noted, correctly, that the record showed that Oyola's
osteoarthritis and musculoskeletal complaints arose after
expiration of his coverage. He also noted that Oyola
appeared to be healthy and strong at the hearing.
Nevertheless, he evaluated Oyola's subjective complaints of
back pain and epilepsy-related pain under the factors listed
in Avery v. Secretary of Health and Human Services, 797 F.2d
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19 (1st Cir. 1986). Specifically stating that he was giving
Oyola the benefit of the doubt, he credited those
allegations, but only to the extent that he found that
Oyola's alleged pain reduced his exertional capability from
heavy to medium work. He did not find Oyola totally disabled
by pain because the medical record showed that Oyola did not
seek or follow consistent medical treatment for his epilepsy,
nor did the record indicate that the medications he received
were ineffective to control his epilepsy, that they should be
changed, or that there were adverse side effects. His
conclusion shows that the ALJ reviewed Oyola's medical
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records thoroughly, even if he did not specifically discuss
the records evidencing Oyola's complaints in 1978, 1983,
1984, and 1985. On the basis of all of the above factors, we
conclude that the ALJ properly reviewed the evidence relating
to Oyola's alleged pain, and that his findings relating to
pain were supported by substantial evidence.
Oyola alleges further that the ALJ cited only
evidence favorable to the Secretary, disregarded the medical
evidence of Oyola's disability, and based the disability
determination on his own medical opinion. He provides no
detail as to what evidence the ALJ allegedly disregarded, and
does not describe in what respect the ALJ ignored the
opinions of examining or consulting physicians, or based his
disability determination on his own medical opinion. We have
reviewed the ALJ's decision and the record and find no error
of the kind Oyola has alleged. The ALJ considered carefully
the evidence in the record which was favorable to Oyola,
reviewing even medical conditions suggested by the record
which Oyola himself did not claim were disabling. He
determined that Oyola's epilepsy and pain constituted a
"severe impairment" which imposed both exertional and
nonexertional limitations on Oyola. His determination is
supported by Oyola's testimony of pain and by the residual
functional capacity assessments of Drs. Marxuach and
Hernandez. There is no other relevant medical assessment of
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residual functional capacity in the record which would
support further restrictions on Oyola's ability to work, or
which would support a conclusion that Oyola was totally
disabled. The functional capacity assessment by Dr. Rivera,
upon which Oyola relies and which the ALJ excluded from his
consideration, relates to Oyola's condition in 1989, after
his coverage had expired, and the ALJ was fully justified in
discounting that assessment.3 In any event, the ultimate
conclusion in Dr. Rivera's assessment agrees broadly with the
assessments of Drs. Marxuach and Hernandez. Although Dr.
Rivera states that, as of 1989, Oyola was an "[u]ncontrolled
patient who comes frequently due to convulsions, receiving
occasional traumas," and Dr. Hernandez had concluded that, as
of December 1988, his seizures "had no frequency," Dr. Rivera
did not find Oyola to be totally disabled or prohibit him
from all work. She recommended only that Oyola "never[] [be]
alone or engage[] in work where he might be exposed to danger
due to convulsions."
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3. The English translation of Dr. Rivera's assessment, which
had been written in Spanish, gives 1985 as the date of her
report, and for that reason Oyola cites it as evidence of his
disability prior to expiration of his coverage. The original
document appears to give 1989 as the date it was prepared,
although the final numeral was hastily written and cannot be
said definitively to be a "9". Nevertheless, the record
shows that Dr. Rivera did not begin to treat Oyola for
epilepsy until 1989, and so the date on her assessment of his
condition could not have been 1985 as Oyola suggests.
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The record also supports the ALJ's conclusion that
Oyola did not have a disabling mental condition. In February
1985, he was referred to the Bayamon Mental Health Center in
connection with his application for social security benefits.
The referral stated that Oyola was "going through an intense
depressive episode that began five months ago," and that he
was not sleeping well and had been sleepwalking.
Nevertheless, Oyola was not admitted because he was found not
to have a "mental disorder." The report of his visit records
as a "diagnostic impression" that a neurological disorder
could be ruled out. Although the report of a visit in August
1985 states that he had previously been diagnosed tentatively
as having a "personality disorder" (the record does not
include any report stating this diagnosis), at the date of
the August visit he was found to be "in contact with reality"
and "oriented." He was not admitted for treatment because
"no major psych. pathology" was found. In October 1986, he
visited the Mental Health Center again, complaining of
sleeplessness and hallucinations. Although he was admitted
to receive treatment at the Center as an outpatient and the
examiner's "diagnostic impression" was that Oyola might have
an "adjustment disorder" and a "histrionic personality," the
record of his visit stated that he was "logical, coherent,
[and] oriented." At what appears to be his next appointment,
in January 1987, he was reported as not mentioning "anything
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that calls our attention." Records for the same day from the
Department of Mental Health state that he missed his
appointment there. Some days later he visited the Bayamon
Mental Health Center without an appointment, complaining that
he had had hallucinations, heard voices, and had memory
problems. He stated that his medication helped him "but not
enough." The record states that he was "logical, coherent,
oriented, approachable, communicative", and does not appear
to make any change in medication. Although the record of
that visit shows that an appointment for April 1987 was made,
the record contains no report of that visit or any subsequent
visit by Oyola to the Center, nor is there any other record
of any other treatment of Oyola for mental or emotional
problems. Accordingly, it appears that Oyola did not receive
treatment at the Mental Health Center or at any other
facility after January 1987. Thus, for approximately the
last two years of the coverage period (and the entire period
to be adjudicated here), he received no treatment for his
alleged nervous condition. Therefore, the record provides
substantial evidence for the ALJ's conclusion that Oyola did
not suffer from a disabling mental condition.
II. Reliance on the Grid
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After determining that Oyola could perform medium,
unskilled work in which he would not have to climb or
balance, drive or be exposed to unprotected heights or moving
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machinery, the ALJ concluded that Oyola could not perform his
previous heavy work which exposed him to a "hazardous
environment."4 Accordingly, the ALJ noted that the burden
of proof shifted to the Secretary to show that there were
other jobs existing in significant numbers in the national
economy which he could perform, given his exertional and
nonexertional impairments, age, education and work
experience. He found that Rule 203.25 of the Grid indicated
that Oyola could make a successful vocational adjustment
because he was a younger individual with marginal education
who could readjust to medium unskilled work activities.5
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4. The ALJ does not explain what hazards Oyola encountered
in his previous jobs, but the record shows that his most
recent job involved work with a machine called a "stacker"
and that an earlier job may have entailed some driving of the
trucks which it was his job to load.
5. The ALJ's finding that Oyola met those criteria was
supported by substantial evidence. Based on Oyola's
testimony as to his age at the hearing, Oyola would have been
40 years old or younger when his coverage expired, and thus
was a "younger individual." See 20 C.F.R. 404.1563(b)
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("[i]f you are under age 50, we generally do not consider
that your age will seriously affect your ability to adapt to
a new work situation."). Since Oyola had finished fifth
grade, his education was "limited or less." See id.
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404.1564(b)(2), (3) (a limited education is one between the
seventh and eleventh grades; a marginal education would be
formal schooling to the sixth grade level). In his previous
jobs, Oyola loaded and unloaded pipes and helped dig holes in
which to lay them; he cleaned gasoline tanks, washed trucks,
painted gasoline pipes, and stacked drums; and he lifted,
moved and stacked blocks, using his hands, wheelbarrows and a
stacking machine, and also performed maintenance work. This
work would appear to be unskilled work, as found by the ALJ.
Cf. id. 404.1568(a) (unskilled work requires little or no
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judgment to do simple duties that can be learned in a short
time on the job, e.g., handling, feeding and offbearing, and
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Without the aid of vocational testimony, the ALJ used Rule
203.25 as a "framework" for his decision and concluded that
Oyola was not disabled because his "capacity for the full
range of medium work was not significantly compromised by his
nonexertional conditions prior to the expiration of his
coverage." As we noted in Ortiz v. Secretary of Health and
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Human Services, 890 F.2d 520, 524 n.4 (1st Cir. 1989) (per
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curiam), because the ALJ failed to take vocational testimony,
he is deemed to have relied exclusively on the Grid to show
that jobs that Oyola could perform existed in significant
numbers in the national economy.
Oyola contends that the ALJ erred in relying
exclusively on the Grid. He argues that his nonexertional
limitations significantly compromised his ability to engage
in the full range of medium work, so that the ALJ should have
consulted a vocational expert before finding that he was not
disabled. Although Oyola's argument has merit and this issue
is a close one, we find that, under the circumstances of this
case, it is not necessary to remand to the ALJ to take the
testimony of a vocational expert.
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machine tending). Although the ALJ found that Oyola could
not speak English and the inability to speak English may
point to disability for some individuals at some exertional
levels, an ability to speak English is not relevant to the
disability determination in Table 3 of the Grid, in which
Rule 203.25 is located. See 20 C.F.R. Pt. 404, Supbt. P,
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App. 2, 203.00 & Table 3.
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In Ortiz, supra, we stated that an ALJ need not
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consult vocational experts if he determines that
nonexertional limitations, even significant ones, do not
significantly compromise the full range of work a claimant
may be expected to perform at the relevant exertional level.
See id. at 524 ("If a non-strength impairment, even though
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considered significant, has the effect only of reducing [a
claimant's] occupational base marginally, the Grid remains
highly relevant and can be relied on exclusively to yield a
finding as to disability.") (footnote omitted). At the same
time, we stated that "the more that occupational base is
reduced by a nonexertional impairment, the less applicable
are the factual predicates underlying the Grid rules, and the
greater is the need for vocational evidence." Id. at 524-25.
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In determining whether a nonexertional limitation
significantly compromises the occupational base, we have
sometimes analyzed the severity of the medical condition
causing the nonexertional limitation.6 See, e.g., Perez
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Torres v. Secretary of Health and Human Services, 890 F.2d
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1251, 1254-55 (1st Cir. 1989) (per curiam). If we use this
same analysis here, we would conclude that Oyola's
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6. The ALJ appears to have taken this approach. On the
basis of his discussion of the severity of Oyola's alleged
impairments, he concluded, without further support, that
Oyola's "capacity for the full range of medium work was not
significantly compromised by his non-exertional conditions
prior to the expiration of his coverage." See Finding No.
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12.
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nonexertional impairments did not significantly diminish his
ability to perform the full range of work at the medium
exertional level. Before his coverage expired, Oyola
apparently received emergency treatment for symptoms of a
possible seizure disorder only twice -- in October 1983,
where the provisional diagnosis ruled out an epileptic
seizure, and in September 1987, where epilepsy was
provisionally diagnosed. Although Oyola had reported that he
had suffered epileptic seizures since childhood and that he
had been "suspended" from work due to the seizures, he had
also reported that he had never been treated for the
seizures. In October 1985 Oyola's seizures were reported to
be under control, although he had lost his anticonvulsant
medication and had not been taking it. Lay statements by
Oyola's sister and sister-in-law in 1989 indicated that Oyola
suffered seizures once a month, but that the seizures could
be controlled for periods of up to four months, and that the
most recent seizures observed were in April, August and
September of 1989. The medical records and lay statements
show that Oyola's epileptic condition did not meet or equal
the criteria in the Listings, and Oyola has conceded that
fact. See 20 C.F.R., Pt. 404, Subpt. P, App. 1, 11.02,
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11.03 (to be presumptively disabled under the Listings, a
claimant must suffer major seizures more frequently than once
a month, and minor seizures more frequently than once weekly,
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despite following prescribed treatment for at least three
months). Based on the record of treatment alone, and
emphasizing that Oyola received no treatment for epilepsy at
all in 1988, the period to be adjudicated here, we would have
to conclude that Oyola's epilepsy did not manifest itself
frequently enough to significantly compromise his ability to
engage in the full range of medium work during the
adjudicatory period.
Given the nature of the nonexertional limitations
in this case, however, we are reluctant to rely on that kind
of analysis. In Perez Torres and other cases, see, e.g.,
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Heggarty v. Sullivan, 947 F.2d 990, 996-97 (1st Cir. 1991)
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(per curiam) (evaluating the claimant's poor manual dexterity
in light of the importance of fine motor skills to jobs at
the sedentary exertional level); Ortiz, supra, 890 F.2d at
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525 (evaluating the claimant's bending restriction in light
of the bending requirements for light work), the specific
nonexertional limitations in question diminished the
claimant's ability to perform certain kinds of physical or
mental tasks. As a result, analyzing the severity of the
physical or mental condition giving rise to the nonexertional
limitation truly captured the degree to which the
nonexertional limitation affected the claimant's ability to
perform the full range of work at the requisite exertional
level. In contrast, Oyola's nonexertional limitations
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consist of environmental restrictions which preclude him from
performing whole categories of jobs -- he cannot perform any
job that requires him to drive, to be near moving machinery,
or to be exposed to unprotected heights (which, for purposes
of our discussion here, we find subsumes Oyola's climbing and
balancing limitations).7
Under these circumstances, we believe that the
better way to determine whether Oyola's nonexertional
limitations significantly reduce his occupational base would
be to attempt to quantify in some way the reduction in
Oyola's occupational base caused by his environmental
limitations. See, e.g., Gagnon v. Secretary of Health and
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Human Services, 666 F.2d 662, 666 (1st Cir. 1981) (remanding
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because the ALJ failed to consider whether Gagnon's
nonexertional limitations, which included environmental
restrictions, limited the number of jobs he could perform).
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7. Oyola's climbing and balancing limitations are
essentially equivalent to the environmental restriction that
he not be exposed to unprotected heights. The conclusions of
Drs. Marxuach and Hernandez regarding those limitations are
supported by the record only to the extent that they are held
to derive from Oyola's epileptic condition. That is, there
is no evidence in the record that, physically, Oyola cannot
climb or balance. Oyola's epileptic condition would create a
problem for him in climbing and balancing terms only when he
actually suffers a seizure while climbing to or balancing at
heights. Consequently, we treat those limitations as
subsumed in the requirement that Oyola not be exposed to
unprotected heights. If only climbing and balancing
restrictions based on Oyola's physical capacities were
present here, the Perez Torres type of analysis would be
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adequate.
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This approach basically reflects the approach taken in the
Social Security Rulings discussed below, which consider
specific nonexertional limitations and, at least for some
restrictions, state whether few or many jobs at a given
exertional level are affected by those limitations. Other
circuits also appear to take a more quantitative approach in
determining the effect of environmental restrictions on a
claimant's occupational base. See, e.g., Allen v. Secretary
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of Health and Human Services, 726 F.2d 1470, 1472 (9th Cir.
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1984) (remanding because there was no evidence in the record
that there were a "significant number of sedentary jobs"
which the claimant could perform despite his ability to work
only in environments free of respiratory irritants); Asher v.
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Bowen, 837 F.2d 825, 827-28 (8th Cir. 1988) (remanding
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because the ALJ could not assume that the majority of
unskilled sedentary jobs took place in a pollution-free
environment in light of regulations and caselaw suggesting
that 85% of such jobs are in machine trades and benchwork
categories often involving exposure to respiratory
irritants); Ellison v. Sullivan, 921 F.2d 816, 820 (8th Cir.
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1990) (the reduction in the claimant's functional capacity
for sedentary work because of his environmental restriction
was significant because it rendered the claimant able to
perform only half the jobs in the occupational base);
Zalewski v. Heckler, 760 F.2d 160, 165 (7th Cir. 1985) (the
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claimant's antisocial personality did not significantly
affect his capacity to do sedentary work because regulations
indicated that 85% of such jobs were in machine trades and
benchwork categories that would not require much interaction
with others).
In the absence of other helpful measures of the
number of jobs Oyola is precluded from performing given his
restrictions, we turn to the assessments offered in the
Social Security Rulings. Ruling 83-14 is the most applicable
because it discusses cases like this one in which both
exertional and nonexertional limitations exist. The Ruling
states that "[r]elatively few jobs in the national economy
require ascending or descending ladders and scaffolding."
See SSR 83-14, reprinted in [Rulings 1983-91] West's Social
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Security Reprinting Service, at 43.8 Although that
statement applies to the larger job base existing for work at
all exertional levels, the Ruling also makes clear that the
___
effect of that restriction on the occupational base at the
medium exertional level is insignificant:
In jobs at the medium level of exertion,
there is more likelihood than in light
work that such factors as the ability to
ascend or descend ladders and
scaffolding, kneel, and crawl will be a
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8. The "ascending or descending ladders and scaffolding"
restriction reflects the climbing restriction placed on
Oyola. The residual functional capacity forms filled out by
Drs. Marxuach and Hernandez show climbing to involve
"ramp/stairs" and "ladder/rope/scaffolds."
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part of the work requirement. However,
limitations of these activities would not
significantly affect the occupational
base.
Thus, the Ruling suggests that a climbing restriction would
not affect a significant number of jobs, and so we assume
that Oyola would not be precluded from performing a
significant number of jobs by the unprotected heights
restriction. Since it is unclear, however, how Oyola's
additional restrictions against driving and being near moving
machinery would affect his occupational base, ultimately the
Ruling does not substantiate the ALJ's conclusion that
Oyola's restrictions did not significantly reduce his
occupational base.9
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9. Ruling 85-15, discussed next, also discusses a climbing
and balancing restriction, stating that: "Limitations on
climbing and balancing can have varying effects on the
occupational base, depending on the degree of limitation and
the type of job. . . . These activities are required more in
some jobs than in others, and they may be critical in some
occupations. Where a person has some limitation in climbing
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and balancing and it is the only limitation, it would not
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ordinarily have a significant impact on the broad world of
work." (Emphasis added.) Like Ruling 83-14, this Ruling
suggests that Oyola's restriction against climbing and
balancing -- equated here with the unprotected heights
restriction -- would not significantly diminish Oyola's
occupational base, but it is not dispositive. First, Oyola
does not just have "some limitation" in his ability to climb
and balance, but is completely prohibited from those
activities. Second, Ruling 85-15 applies only to claimants
with no exertional impairments. Thus, its starting point is
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the larger universe of jobs existing at all exertional
levels. A prohibition against climbing and balancing may
well implicate a smaller percentage of that occupational base
than it would the smaller initial base of jobs comprising
work at the medium level of exertion.
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The Secretary points to Social Security Ruling 85-
15 as substantial evidence for the ALJ's finding that Oyola's
nonexertional limitations do not significantly diminish his
occupational base. That Ruling states that "[a] person with
a seizure disorder who is restricted only from being on
unprotected elevations and near dangerous moving machinery is
an example of someone whose environmental restriction does
not have a significant effect on work that exists at all
exertional levels." See SSR 85-15, reprinted in [Rulings
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1983-91] West's Social Security Reporting Service, at 351.
As Oyola points out, this statement does not take into
account his additional restriction against driving.10 In
this connection, however, Ruling 83-10, which discusses the
Grid, is relevant. That Ruling defines medium work in part
as follows:
A full range of medium work requires
standing or walking, off and on, for a
total of approximately 6 hours in an 8-
hour workday in order to meet the
requirements of frequent lifting or
carrying objects weighing up to 25
pounds. As in light work, sitting may
occur intermittently during the remaining
time. . . . However, there are relatively
few occupations in the national economy
which require exertion in terms of
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10. And, as noted in the preceding footnote, the Ruling
applies to the larger base of jobs existing at all exertional
levels, rather than the smaller base of jobs existing at the
medium exertional level, so that the effect of a restriction
on unprotected elevations and moving machinery might be
insignificant for jobs existing at all levels, yet
significant for jobs only at the medium exertional level.
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weights that must be lifted at times . .
. but are performed primarily in a
sitting position, e.g., taxi driver, bus
driver, and tank-truck driver
(semiskilled jobs). In most medium jobs,
being on one's feet for most of the
workday is critical.
SSR 83-10, reprinted in [Ruling 1983-91] West's Social
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Security Reporting Service, at 30. Thus, this Ruling
indicates that there are fairly few jobs at the medium
exertional level which require the worker to drive, and that
most medium jobs entail standing for most of the workday.
Moreover, the examples the Ruling gives of driving jobs that
exist at the medium exertional level are all semiskilled jobs
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which would not be included in Oyola's occupational base in
any event since the Grid Rule in question applies only to
unskilled work.11 Once again, however, although this
Ruling suggests that the driving restriction by itself would
reduce Oyola's occupational base only marginally, if at all,
it gives no indication what effect that restriction has when
combined with Oyola's other environmental restrictions.
Therefore, we conclude that the Rulings indicate or strongly
suggest only that Oyola's environmental restrictions,
individually, would not significantly reduce his occupational
base. However, they do not support the ALJ's conclusion that
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11. See SSR 83-10, supra, at 27 ("The RFC addressed in a
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[Grid] rule establishes the presence of an occupational base
that is limited to and includes a full range (all or
substantially all) of the unskilled occupations existing at
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the exertional level in question.") (Emphasis added.)
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Oyola's combined limitations would not significantly reduce
his occupational base.
Our conclusion means that the ALJ could not rely
exclusively on the Grid to support his decision that Oyola's
nonexertional impairments did not significantly erode his
occupational base. It does not mean, however, that the ALJ
was required to consult a vocational expert to obtain
evidence on that point. The Rulings make clear that, in
"relatively simple" cases, an ALJ may consult the vocational
publications listed at 20 C.F.R. 404.1566 and 416.966 to
determine the extent to which additional nonexertional
limitations not considered in the Rulings affect a person's
occupational base. See SSR 83-14, supra, at 45; SSR 85-15,
___ _____
supra, at 346; SSR 83-12, supra, at 37; see also SSR 85-15,
_____ _____ ___ ____
supra, at 352 (where the environmental restriction falls
_____
between "very little" and "excessive," an ALJ would usually
need to consult occupational reference materials or the
__
services of a vocational specialist) (emphasis added); cf.
___
Gray v. Heckler, 760 F.2d 369, 371-72 (1st Cir. 1985) (per
____ _______
curiam) (although the court notes that it would be
"preferable" to elicit vocational testimony to show that the
claimant could return to the "type" of work he had previously
performed, the court approved the ALJ's reliance on
vocational publications to establish that fact).
-21-
We think that this case is a "relatively simple"
case for two reasons. First, although we do not know the
combined effect which Oyola's particular nonexertional
limitations have on his occupational base, the Rulings
indicate or strongly suggest that, individually, they would
not significantly reduce that base. Moreover, the
unprotected heights and driving limitations would probably
have very little effect at all on the number of jobs Oyola
______
could perform at the medium exertional level. See SSR 83-14,
___
supra, at 43 ("relatively few jobs . . . require ascending or
_____ __________ ___ ____
descending ladders and scaffolding") (emphasis added); SSR
83-10, supra, at 30 ("relatively few occupations . . .
_____ __________ ___ ___________
require exertion [at the medium level] . . . but are
performed primarily in a sitting position, e.g., taxi driver,
____
etc.") (emphasis added). Accordingly, it seems more likely
than not that, when combined with the moving machinery
restriction, those nonexertional impairments would not
significantly erode Oyola's occupational base, suggesting
that this case should be classified as a "simple" case under
the Rulings.
Second, apart from the question of Oyola's
nonexertional impairments, Rule 203.25 of the Grid would have
directed a conclusion of not disabled because Oyola could be
________
expected to make a vocational adjustment to medium work.
That is to say, Oyola's vocational attributes fit precisely
-22-
the vocational criteria of the Rule -- that the persons as to
whom it would direct a finding of not disabled are "younger
individuals" whose education is "limited or less" and whose
previous work experience was "unskilled". Consequently, this
case is certainly a "simpler" one than a case in which a Grid
Rule should not be applied both because nonexertional
____
limitations exist and because the claimant's vocational
___
profile is different than that assumed by the Rule. Cf.
___
Ortiz, supra, at 890 F.2d at 524 ("Whether by so invoking the
_____ _____
Grid as a 'framework,' the Secretary can satisfy his burden
under step five without resorting to vocational evidence
depends on how closely the claimant's characteristics and the
___ _______
Grid criteria overlap.") (emphasis added). In this
connection, we note that Oyola's characteristics did not
place him near the disabled/not disabled dividing line under
the Grid rules. See id. at 528; Rule 203.25.
___ ___
Accordingly, we think that this case is a
relatively simple case, and that the vocational publications
listed in the regulations may substitute for vocational
expert testimony to establish that specific jobs exist in
significant numbers in the national economy which Oyola could
perform given his restrictions. The vocational publication
relevant to this case is the Dictionary of Occupational
___________________________
Titles published by the Department of Labor, which is listed
______
at 20 C.F.R. 404.1566(d)(1), 416.966(d)(1).
-23-
The record contains "Supplemental Rationale"
reports by two disability examiners -- Belen Sampayo, who
denied Oyola's application initially, and Salvador Toro, who
denied Oyola's application upon reconsideration. Although
concluding apparently that Oyola could perform heavy
work,12 an assumption that does not affect our analysis
here, Sampayo and Toro each listed three jobs described in
the Dictionary of Occupational Titles which could be
_____________________________________
performed by Oyola and which they stated were available in
the national economy, for a total of six such jobs:
229.587-018 Ticketer (textile)
369.687-018 Folder (laundry)
795.687-014 Sample mounter (any
industry)13
920.687-126 Marker (any industry)
920.687-166 Shoe Packer (boot and shoe)
920.687-178 Stenciler (any industry)
____________________
12. Sampayo and Toro both used Grid Rule 204.00 as a frame
of reference for their decision. That Rule applies to
persons who can perform heavy work despite their severe
medically determinable impairments. We see no problem
arising out of Sampayo's and Toro's and the ALJ's different
evaluations of Oyola's exertional capacity. The ALJ
determined that Oyola's alleged pain constituted an
exertional impairment that reduced his functional capacity to
the medium exertional level. In doing so, he relied upon
Oyola's testimony at the hearing, evidence which was not
before Sampayo or Toro, who made their decisions before the
hearing on the basis of the medical records alone. As
already noted, those records would have supported a
conclusion that Oyola did not suffer pain between February
___
and December 1988 to a degree that would have affected his
exertional abilities.
13. The title given in the Dictionary of Occupational Titles
_________________________________
under this number is "gluer," but "sample mounter" is given
as an alternate title.
-24-
The descriptions of those jobs in the Dictionary of
_____________
Occupational Titles are consistent with work which Oyola
___________________
could perform given his exertional and nonexertional
restrictions. See U.S. Department of Labor, I Dictionary of
___ ______________
Occupational Titles (rev. ed. 1991), at 205, 266, 267; II
___________________
Dictionary, at 842, 937, 938; App. B, C. The jobs are all at
__________
the "light" exertional level, and thus within Oyola's
exertional capacity. See 20 C.F.R., Pt. 404, Subpt. P, App.
___
2, Rule 203.00(a) ("The functional capacity to perform medium
work includes the functional capacity to perform sedentary,
light, and medium work."). The general educational
development required to perform the jobs is low, and would
appear to be appropriate in light of Oyola's fifth grade
education.14 All of the jobs require minimal retraining,
____________________
14. The second lowest reasoning level is assigned to the
ticketer, folder, marker, and shoe packer jobs. That level
would require Oyola to "[a]pply commonsense understanding to
carry out detailed but uninvolved written or oral
instructions" and to "[d]eal with problems involving a few
concrete variables in or from standardized situations." The
lowest reasoning level applies to the sample mounter and
stenciler jobs, and requires application of "commonsense
understanding to carry out simple one- or -two-step
instructions" and the ability to deal with "standardized
situations with occasional or no variables . . . ." The
lowest language level is assigned to all but the ticketer
job, and would require Oyola to "[p]rint simple sentences
containing subject, verb, and object, and series of numbers,
names, and addresses", and to "[s]peak simple sentences,
using normal word order, and present and past tenses." The
second lowest language level applies to the ticketer
position, and would require Oyola to be able to read
"adventure stories and comic books, . . . [and] instructions
for assembling model cars and airplanes", to "[w]rite
compound and complex sentences," and to "[s]peak clearly and
-25-
i.e., instruction beyond a short demonstration, but lasting
____
no more than one month. None of the jobs requires climbing
and balancing or exposure to any hazards.15
Only one aspect of the job descriptions in the
Dictionary of Occupational Titles requires further
_______________________________________
discussion. The description for the folder, sample mounter
and marker positions appear to require work with machines: a
folder "[m]ay" use a "button-sewing-" or "button-attaching
machine"; a sample mounter may apply adhesives by "holding
material against [a] rotating saturated brush, or feeding
____________________
distinctly with . . . correct pronunciation, . . . using
present, perfect, and future tenses." All of the jobs
require only the most rudimentary mathematical skills, e.g.,
the ability to add and subtract only two digit numbers, to
perform some multiplication and division, to use money and to
measure with units like the cup, pint, quart, inch, foot,
yard, ounce and pound.
15. The Guide for Occupational Exploration ("GOE") numbers
given the jobs in the Dictionary of Occupational Titles are
__________________________________
cross-indexed in a companion volume prepared by the
Department of Labor entitled Selected Characteristics of
_____________________________
Occupations Defined in the Dictionary of Occupational Titles
_____________________________________________________________
(1981), the use of which we approved in Gray, supra. That
____ _____
volume classifies the physical demands of jobs (sedentary,
light, medium, etc.), and breaks jobs down into the types of
physical activities they entail. All of the jobs listed
above are coded as "4", meaning that they require "reaching,
handling, fingering, and/or feeling." Selected
________
Characteristics, at 75, 210, 212-14; App. A, at 465-66. (A
_______________
sample mounter is also required to have good visual
abilities.) Id. at 210; App. A, at 466. None of the jobs is
___
characterized as requiring climbing or balancing. The
Selected Characteristics volume also describes environmental
________________________
restrictions associated with certain jobs. Of all the jobs
listed above, only the folder position has an environmental
restriction. Coded as "4", it involves work in a wet and
humid environment, an environment in which Oyola could work.
Id. at 212, 467, 479.
___
-26-
part between saturated rollers"; and a marker "[m]ay" use a
"tag dispensing machine" to attached gummed labels to
merchandise. However, these "machines" do not appear to be
the kinds of dangerous moving machines which Oyola must
avoid. The sixth number in each of the title numbers given
in the above list is "7". According to Appendix B of the
Dictionary of Occupational Titles, that number means that
___________________________________
those jobs require workers to use "body members, handtools,
and/or special devices to work, move, or carry objects or
materials," whereas jobs involving "machines or equipment"
carry other numbers in the sixth place. See II Dictionary,
___ __________
App. B, at 1005-07. Consequently, the machines used in the
folder, sample mounter and marker jobs appear to be hand-or
foot-operated (e.g., like a household sewing machine or a
____
grocery store price tag dispenser). Thus, a worker suffering
a seizure would not only not be endangered by the machine,
but most likely the machine itself would stop operating once
the worker suffers a seizure because his hand or foot would
be removed from the controls. Cf. also Lizotte v. Secretary
________________ _________
of Health and Human Services, 654 F.2d 127, 130 (1st Cir.
_____________________________
1981) (the ALJ determined that the claimant could not work
around hazardous machinery, but would be able to perform the
job of "marker machine operator in a shoe factory").
Lest there be any doubt, however, that the folder,
sample mounter or marker positions would be appropriate for
-27-
Oyola, we do not rely on those positions in rendering our
decision. The remaining three jobs -- ticketer, shoe packer
and stenciler -- do not involve any machinery, and would
provide ample evidence that specific jobs exist in
significant numbers in the national economy which Oyola could
perform. See, e.g., Lizotte, supra, 654 F.2d at 130
__________ _______ _____
(affirming an ALJ decision that the claimant could engage in
substantial gainful activity where the decision was based on
vocational expert testimony that the claimant could perform
three named jobs); see also Arce Crespo v. Secretary of
___ ____ ___________ ____________
Health and Human Services, 831 F.2d 1, 3, 5 (1st Cir. 1987)
__________________________
(per curiam) (affirming an ALJ decision denying benefits
where the decision was based on vocational expert testimony
as to four jobs which the claimant could perform; the
vocational expert relied in part on the description of the
jobs found in the Dictionary of Occupational Titles).
_________________________________
Although the ALJ did not specifically refer to the
jobs listed by disability examiners Sampayo and Toro to
support his decision, at the outset of his opinion he stated
that he had "carefully considered all the documents
identified in the record as exhibits, . . . ." Exhibit C-8
includes the "Supplemental Rationale" reports listing those
jobs. In Geoffrey v. Secretary of Health and Human Services,
________ ______________________________________
663 F.2d 315 (1st Cir. 1981), we considered an argument that
the ALJ should have listed specific jobs to show that the
-28-
claimant could perform substantial gainful work. In dictum,
we noted that the record contained the names of several
occupations which the claimant could perform. Under the
circumstances, we saw no need for the ALJ to repeat those
occupations in his decision, but we also said that they
represented "a fair example of the type of light work the
records show Geoffrey can engage in" and that the listing
"demonstrate[d] . . . that the record is not entirely devoid
of evidence in this respect." Id. at 319 & n. 8. Thus, we
___
suggested that evidence of specific jobs in the record could
be given some weight upon appeal even if the ALJ had not
relied upon, or even mentioned, that evidence in his
decision. Here, at least, the ALJ made clear that he had
reviewed the disability examiners' reports, and may also have
been influenced by them in finding that Oyola was not
disabled from engaging in substantial gainful work, even if
he did not refer to them specifically.
Obviously, it would be preferable to require an ALJ
to describe specifically all evidence which supports his
decision that a claimant is not disabled from engaging in
substantial gainful employment. Nevertheless, under the
circumstances present here,16 it makes no sense to remand
____________________
16. Given the evidence in this case we would have sustained
a decision by the ALJ rendered consistent with the regulation
at 20 C.F.R., Pt. 404, Subpt. P, App. 2, 200.00(e)(2). In
that regulation the Secretary provides for the following
analytical procedure for determining whether an individual
-29-
solely to call a vocational expert to testify as to the
existence of jobs that Oyola may perform when at least three
appropriate jobs are already named in the record. Therefore,
we find that the Secretary has met his burden of proving that
Oyola's exertional and nonexertional impairments did not
____________________
with both exertional and nonexertional impairments is
disabled: (1) The decisionmaker is to see whether the
individual is disabled based on strength limitations alone.
Here, Oyola was not disabled because he retained the ability
to do medium work. (2) The decisionmaker is to consider the
relevant Grid Rule as a "framework." Rule 203.25 being used
as a framework, Oyola's residual functional capacity, age,
education and work experience all indicated that he was not
disabled. (3) Finally, the decisionmaker is to consider "all
of the relevant facts in the case" as described in the
regulations, including the adjudicative weight accorded such
factors. Here, the evidence showed that only Oyola's
epilepsy and pain could be characterized as medically
determinable severe impairments, but that his epilepsy did
not meet the criteria of the Listings, indicating that he was
not per se disabled from engaging in substantial gainful
employment. See 20 C.F.R. 404.1525(a). The evidence also
___
showed that he had not sought or followed consistent
treatment for his conditions, important failures under the
regulations and case law. See id. 404.1530; Irlanda Ortiz
_______ _____________
v. Secretary of Health and Human Services, 955 F.2d 765, 770
______________________________________
(1st Cir. 1991) (per curiam) (lack of sustained treatment
bolsters decision that the claimant was not disabled);
Tsarelka v. Secretary of Health and Human Services, 842 F.2d
________ _______________________________________
529, 534 (1st Cir. 1988) (per curiam) (the claimant should
have secured treatment to show that her ability to work could
not be restored). In addition, the Rulings indicate or
strongly suggest that, individually, Oyola's nonexertional
limitations would not significantly affect the full range of
medium work he could perform. Those Rulings further
indicated that, here, the Secretary could rely on the
Dictionary of Occupational Titles for vocational evidence
___________________________________
that specific jobs which Oyola could perform existed in
significant numbers in the national economy, and the record
contained specific job titles, whose descriptions matched
Oyola's exertional and nonexertional limitations.
-30-
disable him from engaging in substantial gainful employment.
The decision of the district court is affirmed.
________
-31-
Reference
- Status
- Published