Rios Vazquez v. SHHS
U.S. Court of Appeals for the First Circuit
Rios Vazquez v. SHHS
Opinion
USCA1 Opinion
January 23, 1995 [NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 94-1793
LUIS A. RIOS VAZQUEZ,
Plaintiff, Appellant,
v.
SECRETARY OF HEALTH AND HUMAN SERVICES,
Defendant, Appellee.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Jaime Pieras, II, Senior U.S. District Judge] __________________________
____________________
Before
Selya, Circuit Judge, _____________
Campbell, Senior Circuit Judge, and ____________________
Boudin, Circuit Judge. _____________
____________________
Juan R. Requena Davila and Juan A. Hernandez Rivera on brief for _______________________ _________________________
appellant.
Guillermo Gil, United States Attorney, Maria Hortensia Rios, ______________ _____________________
Assistant United States Attorney, and Eileen M. Cedrone, Assistant __________________
Regional Counsel, Region I, Department of Health and Human Services,
on brief for appellee.
____________________
____________________
Per Curiam. Luis A. Rios-Vazquez (claimant) appeals __________
from a district court judgment affirming the decision of the
Secretary of Health and Human Services denying his
application for disability benefits. For the reasons stated
below, we affirm.
I.
Claimant was born on May 23, 1945, and applied for
benefits when he was forty-four years old. He has an eighth
grade education. In 1977, while working in Chicago as a
crane operator, he lifted a steel object and became "stiff."
After two more similar episodes, he was diagnosed in 1979 as
having a herniated disc and underwent surgery on April 18,
1979. He was allowed to return to work on September 24,
1979, although he continued to experience some leg and back
pain. In 1981, claimant returned to Puerto Rico and began
working as a truck driver. His back pain worsened from time
to time, especially when he drove for long periods of time.
He also suffered pain and numbness in the legs. Claimant
ceased working on February 26, 1989, and he has not worked
since then. He is insured at least through March 11, 1991.
On February 28, 1990, claimant filed an application for
disability benefits alleging disability since February 26,
1989 due to back pain and "frequent loss of balance." He
claimed that his doctors had prohibited him from lifting
anything heavy. Asked to describe his daily activities, he
stated that he kept the area surrounding his home clean.
Other activities included driving his car, reading the bible,
visiting relatives, and going to church. The Social Security
Administration denied claimant's application initially. On
June 25, 1990, claimant requested reconsideration stating
that his pain had worsened and that his nerves had been
affected. Claimant's application was denied on
reconsideration.
Claimant obtained a hearing before an Administrative Law
Judge (ALJ) on February 11, 1991. He was represented by an
attorney. At the hearing, claimant testified that he ceased
working as a truck driver because of his back or waist pain.
He described the pain as pretty severe, sometimes causing him
to loose control of his leg. Although he takes pain
medication, it does not provide full relief. He testified
that he can take of his personal needs, and that he attempts
to help his wife with the wash. In addition, he visits with
company, reads a little, and goes to church. He also
testified that he began seeking mental health treatment in
July 1990 because he "felt nervous."
The ALJ found that although claimant has discogenic
disease at L4-L5, he does not have an impairment or
combination of impairments equivalent to one of the listed
impairments. He also found that claimant is unable to
perform his past relevant work, which required heavy lifting,
but that claimant has the residual functional capacity for
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the full range of light work. With respect to claimant's
alleged mental condition, the ALJ found that claimant has not
presented a severe mental impairment which can be expected to
last at least twelve months. Finally, the ALJ ruled that
based on claimant's capacity for light work, as well as his
age, education, and work experience, the Grid directs a
conclusion of not disabled. The Appeals Council denied
review. An appeal was taken to the district court, where a
magistrate-judge (magistrate) concluded that the Secretary's
decision was supported by substantial evidence. The district
court adopted the magistrate's report and recommendation.
This appeal followed.
II.
The medical record is well-summarized in the ALJ's and
the magistrate's reports, and we need only provide a brief
overview here. On April 18, 1979, claimant underwent a
partial hemilaminectomy of L4 on the left with excision of
L4-5 disc. Approximately five months later, he was
sufficiently improved to return to work, although he was
limited temporarily to lifting thirty pounds. He continued
to feel back pain and was fitted with a flexion jacket. He
was also advised to continue light work and exercise.
There is a gap in the medical record between August 1980
and August 1988. On August 26, 1988, claimant began
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treatment with Dr. Victor Burgos for lower back pain.1 Dr.
Burgos diagnosed claimant as suffering from discogenic
disease, osteoarthritis, and muscle spasms. He prescribed
various medications for claimant, including meclomen,
voltaren, and norflex.
Between January 1989 and June 1990, claimant underwent
physical therapy with Dr. Oscar Arroyo-Nieves. He diagnosed
claimant as suffering from lumbar radiculopathy, status post
laminectomy, degenerative joint disease, and chronic lower
back pain.
On May 6, 1990, claimant was examined by a consulting
neurologist, Dr. Nilda De Jesus Pla. The motor examination
revealed that claimant walks dragging his right leg, but has
good strength in the upper and lower extremities. Dr. De
Jesus Pla did not observe atrophy or abnormal movements. Her
examination of claimant's vertebral column revealed marked
spasms in the paravertebral region, as well as mild spasms in
the posterior region of the right thigh. A range of motion
examination disclosed that claimant's forward bending is
limited to forty-five degrees. An x-ray report showed a
____________________
1. A C.T. scan of claimant's spine, reported by Dr. Burgos,
showed degenerative changes at the lumbo sacral spine with
decreased intervertebral disc space at L4-L5 and bulging of
the annulus fibrosus at L4-L5. It also revealed segmental
calcifications at the outer annulus at the right
posterolateral aspect L5-S1, as well as sclerosis and
hypertrophic changes at the articular facets at L5-S1 at the
right side causing narrowing of the neural foramina.
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lumbar spondylolysis and myositis with disc disease at L5-L4.
Dr. De Jesus Pla concluded that claimant's condition
precludes him from returning to his past work as a truck
driver.
Dr. Tomas Hernandez, a neurologist, evaluated claimant
on June 11, 1990 and diagnosed him as suffering from a
pinched nerve root in the right side. Dr. Hernandez opined
that this condition, as well as the C.T. lumbar findings and
claimant's symptomatology, disabled claimant totally and
permanently from working.
Two residual physical functional capacity assessments,
prepared by non-examining medical consultants, are consistent
with the ALJ's finding that claimant has the capacity for
light work. The latter assessment, dated August 26, 1990 and
prepared by a consulting neurologist, concludes that "[t]here
is no motor, sensory, or reflex deficit to account for [the]
statement of inability to work."
Mental health records reveal that claimant sought
treatment on June 6, 1990, complaining of bad humor, an upset
stomach, difficulty sleeping, and a tight feeling in his
chest. Claimant was diagnosed with anxiety disorder and
prescribed xanax. He was otherwise found to be cooperative,
coherent, relevant, and somewhat oriented. On July 31, 1990,
claimant reported feeling better. On September 20, 1990,
claimant stated that he felt frightened. He was continued on
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xanax. On December 20, 1990, claimant reported feeling
better with medication.
III.
Claimant contends that the ALJ erred in relying on the
Grid to reach a conclusion of not disabled. In particular,
he argues that his restricted ability to bend from the waist,
as well as the pain he suffers, constitute non-exertional
impairments. Under the circumstances, he contends, the
testimony of a vocational expert was required to evaluate his
claim.
Where a claimant's impairments involve only exertional
limitations, the Grid provides a "streamlined" method by
which the Secretary can make a determination whether there
are jobs in the economy which the claimant can perform. See, ___
e.g., Heggarty v. Sullivan, 947 F.2d 990, 995 (1st Cir. ____ ________ ________
1991); Ortiz v. Secretary of Health & Human Servs., 890 F.2d _____ __________________________________
520, 524 (1st Cir. 1989) (per curiam). However, where a
claimant has non-exertional impairments in addition to
exertional limitations, the Grid may not be fully applicable.
See 20 C.F.R. Part 404, Subpart P, App. 2, 200(e). The ___
appropriateness of relying of the Grid in such a situation
"depends on whether claimant's nonexertional impairment
`significantly affects [a] claimant's ability to perform the
full range of jobs' at the appropriate strength level."
Heggarty v. Sullivan, 947 F.2d at 996 (quoting Lugo v. ________ ________ ____
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Secretary of Health & Human Servs., 794 F.2d 14, 17 (1st Cir. __________________________________
1986) (per curiam)).
With respect to claimant's restricted ability to bend
from the waist, we note that both residual functional
capacity assessments reported that claimant is capable of
occasional bending. This is all that "light" work requires.
Ortiz, 890 F.2d at 525; see also SSR 85-15 at 97 (CE 1985) _____ _________
("If a person can stoop occasionally (from very little up to
one-third of the time) in order to lift objects, the
sedentary and light occupational base is virtually intact.").
Under the circumstances, claimant's bending restriction did
not preclude reliance on the Grid. See Ortiz, 890 F.2d at ___ _____
525.
With respect to claimant's pain, we observe that the ALJ
concluded that claimant's back pain "does not constitute a
disabling factor upon his ability to perform tasks that do
not exceed light exertional demands." The ALJ evaluated
claimant's allegations of pain in accord with our decision in
Avery v. Secretary of Health & Human Servs., 797 F.2d 19 (1st _____ __________________________________
Cir. 1986). Claimant was questioned concerning his daily
activities, functional restrictions, medication, frequency
and duration of pain, and precipitating and aggravating
factors. See id. at 28-29. The ALJ also reviewed the ___ ___
objective medical evidence. He found that apart from marked
lumbar muscle spasms and some flexion difficulties, "claimant
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did not present gross neurological deficits or limited
movements as to impose significant restriction at all
exertional levels." The ALJ further noted that claimant
performed full body movements at the hearing and was not
distracted due to pain. We are persuaded that substantial
evidence supports the ALJ's conclusion that claimant's pain
does not impair his ability to perform light work. See ___
Frustaglia v. Secretary of Health & Human Servs., 829 F.2d __________ ____________________________________
192, 195 (1st Cir. 1987). Under the circumstances, there was
no error in relying on the Grid.
Claimant also contends that the ALJ gave undue weight to
the opinions of the Secretary's consulting physicians and too
little weight to the opinions of his treating physicians.
This is an apparent reference to recently promulgated
regulations which describe how the Secretary will weigh
medical opinions, and provide that, in general, the Secretary
will give more weight to opinions from treating sources. See ___
20 C.F.R. 404.1502 (1991) (defining treating source),
404.1527(d) (1991) (explaining how the Secretary weighs
medical opinions).2 Assuming, without deciding, that these
regulations are applicable here, we find no fault with the
ALJ's decision on this score.
____________________
2. These regulations were promulgated after the ALJ issued
his decision, but while the case was pending before the
Appeals Council.
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For the most part, the reports of claimant's physicians
are fully consistent with those of the Secretary's
physicians. The one exception is Dr. Hernandez' conclusory
statement that claimant is totally and permanently disabled
from working. However, the Secretary was not bound to accept
this statement. First, it is by no means obvious that Dr.
Hernandez should be considered a treating source. Claimant
did not consult Dr. Hernandez until after the initial
determination of no disability and apparently saw him on only
two occasions. See 20 C.F.R. 404.1502 (1991) (defining ___
treating source as a physician with whom claimant has had an
"ongoing" relationship based on the need for treatment and
not solely on the need to obtain a favorable report).
Second, and more importantly, the determination of disability
is reserved to the Secretary. See 20 C.F.R. 404.1527(e) ___
(1991). There is ample evidence in the record as a whole to
support the ALJ's conclusion that claimant retains the
functional capacity for light work.
Claimant's remaining argument is that the Secretary
erred in finding that he does not have a severe mental
impairment that can be expected to last at least twelve
months. This issue was not encompassed in claimant's
objection to the magistrate's report and, thus, is waived.
See Thomas v. Arn, 474 U.S. 140, 147-48 (1985); Keating v. ___ ______ ___ _______
Secretary of Health & Human Servs., 848 F.2d 271, 275 (1st ____________________________________
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Cir. 1988) (per curiam). We add that the record portrays a
relatively mild mental impairment, which has responded well
to medication. Moreover, claimant has never clarified how it
allegedly limits his ability to work. In such circumstances,
the Secretary could properly conclude that claimant's mental
impairment is "non-severe." See 20 C.F.R. 404.1521 ___
(defining "non-severe" impairment as one that does not
significantly limit a claimant's ability to do basic work
activities); Rodriguez v. Secretary of Health & Human _________ ______________________________
Servs., 893 F.2d 401, 403-04 (1st Cir. 1989). ______
The judgment of the district court is affirmed. ________
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