Rivera Ojeda v. SHHS, 1st Cir. (1994)

USCA1 Opinion
July 6, 1994
[NOT FOR PUBLICATION]

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
___________________
No. 93-2194
PEDRO RIVERA OJEDA,

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. Raymond L. Acosta, U.S. District Judge]
___________________
___________________
Before
Boudin, Circuit Judge,
_____________
Bownes, Senior Circuit Judge, and
____________________
Stahl, Circuit Judge.
_____________
___________________
Raymond Rivera Esteves and Juan A. Hernandez Rivera on brief

______________________
________________________
for appellant.
Guillermo Gil, United States Attorney, Maria Hortensia Rios,
_____________
____________________
Assistant United States Attorney, and Robert J. Triba, Assistant
_______________
Regional Counsel, Department of Health and Human Services, on
brief for appellee.
__________________
__________________
Per Curiam.
__________
application for
20,
Claimant Pedro Rivera
Social Security disability benefits
claimant had
return to
work.
After a
a severe
back
his former job as
The
exertional
ALJ
found,
impairments
hearing, the ALJ

impairment that
that claimant's
and mental
capacity
condition)
to perform the
conceded that
precluded
a janitor required
however,
claimant
functional capacity to perform light
work.
on June
1990, alleging a back condition, severe back pain, and a
nervous condition.
found
Ojeda filed an
that
to do heavy
despite
retained
work.
The ALJ
significantly
full range of
Accordingly, the ALJ
claimant's
the
non-exertional impairments
did not
his
residual
further
(his pain
restrict
his
jobs requiring light
found claimant not
disabled at
step 4
of the
404.1520(e),
on
although they
did
sequential
the
evaluation process,
ground
that
claimant's
impairments,
precluded performing
his former
janitor job,
not preclude his return to his
janitor.
20 C.F.R.
This
type
of
work,
former type of work as a

____
the ALJ
ruled,
generally
requires no more than light work.

After
review of
the Appeals Council denied claimant's request for

the
ALJ's
decision,
claimant
district court, which affirmed.

that
the
Secretary's
substantial evidence.
The
objective
appealed
to
the
Claimant appeals, contending
determination
is
not
supported
by
We affirm.
medical
evidence concerning
physical condition can be summarized as follows.

general practitioner, examined
claimant's
Dr. Ruiz, a
claimant on January
5, 1990,
and diagnosed cervical and dorso-lumbar spondlyoarthritis and

muscle
spasm and left carpal tunnel syndrome.
Dr. Vargas, a
physiatrist, treated claimant between February and April 1990

and reported moderate to severe muscle spasm, but good muscle
tone
and no atrophy, and
left carpal tunnel
syndrome.
Dr.
Gonzalez Cotto, a neurologist,
examined claimant on July 23,
1990, and diagnosed chronic discogenic disease.

The record contains substantial
ALJ's
functional conclusion
that
evidence to support the

claimant,
despite
these
impairments, retains the exertional capacity to perform light

work.
Dr. Sanchez, a non-examining
medical
evidence
functional
capacity
accompanied
by brief
Sanchez checked
carry 20
in
the
physician, reviewed the
record and
assessment form
prepared
on
medical findings.
boxes indicating
pounds, 10 pounds
crawl
occasionally.
On
that claimant can
claimant could not perform

extremities,
and
was
Sanchez
1991,
the form,
frequently, can stand,
Dr.
residual
February 5,
sit six hours, and can climb, balance, stoop,

and
Dr.
lift or
walk, or
kneel, crouch,
further found
that
repetitive movements in his upper
limited
in his
capacity
for
gross
manipulation by the hands.

Another non-examining physician, Dr.
the medical
functional
evidence in the
capacity
accompanied by
record and prepared
assessment
brief medical
Dr. Sanchez, checked boxes
Marxuach, reviewed
form
findings.
on August
Dr.
a residual
13,
1990,
Marxuach, like
indicating that claimant can lift
or carry 20 pounds, 10 pounds frequently, can stand, walk, or
-3-
sit six hours, and can climb,

and
crawl
occasionally.
balance, stoop, kneel, crouch,

Dr. Marxuach
noted
no
further
that
light
limitations.
The
governing
"involves
lifting
frequent lifting
regulations
no more
20
C.F.R.
that
than 20
or carrying of
pounds [and] requires
state
at a
objects weighing
a good deal
404.1567(b).
pounds
of walking or
These regulations
work
time with
up to
10
standing."
do not require
a person be able to perform repetitive movements of the
upper extremities or gross
manipulation of the hands,
or be
able
to climb, balance, stoop, kneel, crouch, and crawl more
than
occasionally, in
range
order to
be able
of jobs requiring light work.
and Dr.
to perform
a full
Thus, both Dr. Sanchez'
Marxuach's findings support the
ALJ's determination
that claimant can perform light work.

We have held that the amount of weight that can properly
be given
non-testifying,
non-examining
physicians "will vary with the circumstances."
Berrios Lopez
_____________
v.
the
conclusions of
Secretary of Health and Human Services, 951 F.2d 427, 431

______________________________________
(1st Cir. 1991) (quoting Rodriguez v. Secretary of Health and

_________
_______________________
Human Services, 647
______________
F.2d 218, 223 (1st
Cir. 1981)); Gordils

_______
v.
Secretary of Health and Human Services, 921 F.2d 327, 328

______________________________________
(1st
Cir.
1990 (same).
In
some cases,
submitted by non-testifying, non-examining

alone
constitute
substantial
written
reports
physicians cannot
evidence,
see
Browne
____________
v.
-4-
Richardson, 468 F.2d

__________
1003 (1972),
absolute
rule.
Berrios Lopez,
______________
Gordils,
_______
supra, 921 F.2d at

_____
although this
supra,
_____
328.
This
951
F.2d at
is
not qualified
capacity
an
431;
issue has generally
arisen in cases where such reports were the primary

of a claimant's residual
is not
evidence
functional capacity, since "the ALJ
to assess
based on the bare
claimant's residual
medical record."
functional
Berrios Lopez,
_____________
supra, 951 F.2d at 430.

_____
In
this
case,
however,
these
residual
functional
capacity assessments by non-examining physicians are not
the
only evidence expressed in functional terms that supports the

Secretary's conclusion
that claimant retains the capacity to
perform light work.
Dr. Vargas cleared claimant to return to
work
1990, which
on
April
believed
5,
that claimant
position.
At the
that a doctor
mile, and that
could
suggests
return to
hearing, furthermore,
had recommended that he

"the doctors
have told me
pounds
at a
his heavy
Vargas
janitor
claimant testified
that the
half
maximum
would be fifteen
This testimony relates a partial residual
functional capacity assessment

Since light work,
Dr.
walk at least a
that I'd [sic] might be able to try to lift

to twenty pounds."
that
made by examining physicians.
again, "involves lifting
time," 20
C.F.R.
no more than
404.1567(b), this
20
partial
residual functional capacity assessment bolsters the findings

of the
non-examining physicians
that
claimant can
perform
-5-
light
does
work.
Based on this
evidence we find that the record
contain substantial functional
Secretary's conclusion to that effect.
evidence to support the
finding
however,
perform
work
does
that
not
claimant can
necessarily
any particular type of

___
perform
mean that
work -- such
light
work,
claimant
can
as the janitor
in this case -- that requires an exertional capacity to
do no
may
more than light work.

not, require other
Janitor work in general may, or
specific capabilities
that claimant
may, or may not, possess.
Claimant argues that the ALJ, as a
layman, was not qualified
to reach the vocational conclusion
that
general
janitor
work
in
does
capabilities that claimant's impairments

that
of
vocational conclusion, claimant

a
vocational
evaluation
expert,
process,
20
at
step
C.F.R.
not
require
deny him.
any
To reach
insists, the testimony

5
of
the
404.1520(f),
sequential
would
be
necessary.
We need not
resolve this question.
find that the record

for
Even
if we were to
lacked substantial vocational
evidence
the conclusion at step 4 that claimant could perform his
former type of work

Secretary
at step
as a janitor, we would
5, without
by
need for
vocational
expert,
applying
Guidelines,
20 C.F.R. Part 404, Subpart
grid").
-6-
the
still affirm the
the testimony
of a
Medical-Vocational
P, Appendix 2 ("the
The grid
and
can
is based
only
be
on a claimant's
applied
exertional capacity
where claimant's
non-exertional
limitations do not significantly impair claimant's ability to

perform at a given exertional level.
Health and Human Services, 685
__________________________
cert. denied, 461
_____________
evidence in
U.S.
the record
Sherwin v. Secretary of
_______
____________
F.2d 1, 3
958 (1983).
(1st Cir.
We find
to support the
1982),
substantial
Secretary's findings
that claimant's non-exertional impairments -- back pain and a

mental condition
-- do not significantly
impair his ability
to perform a full range of light work.

In
ALJ
addressing claimant's
expressly followed
the
complaints of back
analysis required
pain, the
by Avery
_____
v.
Secretary of Health and Human Services, 797 F.2d 19 (1st Cir.

______________________________________
1986), for
on
the
permissibly
evaluating subjective complaints of

medical
found
evidence
already
that claimant
did
pain.
mentioned,
not
Based
the
ALJ
suffer from
any
objective medical condition that would ordinarily be expected

to
cause disabling
pain.
cleared claimant to return

also
As
we
have noted,
to work in April
Dr.
1990.
Vargas
The
ALJ
stated that his doubts about the severity of claimant's
pain were "further corroborated

and
demeanor at
the
significant physical
hearing.
The
claimant
was
or emotional distress, and
to move about freely.

related
by the claimant's appearance

in
no
he was able
He provided information accurately and
adequately."
The
ALJ
concluded
that
"claimant
-7-
possibly
has
condition,
mild occasional
but he does not
discomfort associated
have disabling .
to his
. . distress."
The record contains ample evidence to support this finding.

As
for claimant's
mental condition, progress
his treatment by the Mental
notes of
Health Program of the Department
of Health stated that he had a somatoform disorder.

he
complained
of
uneasiness
and an
claimant was nevertheless found to

spheres,
cooperative,
appropriate
"feeling
affect.
better
with
and
was
found
that
also
medication."
psychologist reviewed the record and,

report,
claimant was
to
sleep,
be oriented in the
coherent,
Claimant
inability
Although
three
relevant,
reported
A
with
to
be
non-examining
in an October 9, 1990,
suffering
from
anxiety-
related
disorders with
no severe
slight functional limitations.

cannot find
a lack
impairment and
In view of this
of substantial
with only
evidence, we
evidence to support
the
Secretary's finding that claimant's mental condition did
not
significantly affect his ability to perform the full range of

jobs that require light work.
Given
the
possessed the
amply-supported
findings
exertional capacity to perform
that
claimant
light work and
that his pain and his mental condition did not
significantly
affect his
the grid
properly
be
ability to do
so, Rule
applied in
this case.
202.16 of
That Rule
can
dictates a
finding of "not disabled."
-8-
The judgment of the district court is affirmed.

________
-9-

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USCA1 Opinion

[NOT FOR PUBLICATION]

PEDRO RIVERA OJEDA,

Raymond Rivera Esteves and Juan A. Hernandez Rivera on brief

Claimant Pedro Rivera

Social Security disability benefits

his former job as

hearing, the ALJ

functional capacity to perform light

1990, alleging a back condition, severe back pain, and a

Accordingly, the ALJ

jobs requiring light

found claimant not

not preclude his return to his

former type of work as a

requires no more than light work.

the Appeals Council denied claimant's request for

district court, which affirmed.

Claimant appeals, contending

physical condition can be summarized as follows.

and diagnosed cervical and dorso-lumbar spondlyoarthritis and

spasm and left carpal tunnel syndrome.

physiatrist, treated claimant between February and April 1990

and no atrophy, and

left carpal tunnel

Gonzalez Cotto, a neurologist,

examined claimant on July 23,

1990, and diagnosed chronic discogenic disease.

evidence to support the

impairments, retains the exertional capacity to perform light

Dr. Sanchez, a non-examining

physician, reviewed the

that claimant can

claimant could not perform

frequently, can stand,

sit six hours, and can climb, balance, stoop,

repetitive movements in his upper

manipulation by the hands.

record and prepared

Dr. Sanchez, checked boxes

indicating that claimant can lift

or carry 20 pounds, 10 pounds frequently, can stand, walk, or

sit six hours, and can climb,

balance, stoop, kneel, crouch,

pounds [and] requires

a person be able to perform repetitive movements of the

upper extremities or gross

manipulation of the hands,

to climb, balance, stoop, kneel, crouch, and crawl more

of jobs requiring light work.

Thus, both Dr. Sanchez'

Marxuach's findings support the

that claimant can perform light work.

physicians "will vary with the circumstances."

Secretary of Health and Human Services, 951 F.2d 427, 431

(1st Cir. 1991) (quoting Rodriguez v. Secretary of Health and

F.2d 218, 223 (1st

Cir. 1981)); Gordils

Secretary of Health and Human Services, 921 F.2d 327, 328