USCA1 Opinion

October 22, 1993

[NOT FOR PUBLICATION]

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________

No. 92-2445
SAUL BAEZ-HERNANDEZ,
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. Hector M. Laffitte, U.S. District Judge]
___________________
____________________
Before
Breyer, Chief Judge,
___________
Selya and Stahl, Circuit Judges.
______________
____________________

Raymond Rivera Esteves and Juan A. Hernandez Rivera on brief

______________________
_________________________
appellant.
Daniel F. Lopez Romo, United States Attorney, Jose Vazq
_______________________
__________
Garcia, Assistant United States Attorney, and Robert M. Peckri
______
__________________

Assistant Regional Counsel, Department of Health

on brief for appellee.

and Human Servic

____________________
____________________

Per Curiam.
__________
from the

district court

the Secretary of

Claimant Saul Baez Hernandez

judgment affirming the

Health and Human Services

appeals

decision of

that claimant is

not entitled to Social Security disability benefits.

I.
_
Claimant filed

PROCEEDINGS BELOW
_________________
an application for

disability benefits on March

date of
listed
Claimant

10, 1986.

January 25, 1985 when

as

his

impairments

returned

to

work

Social Security

He alleged

he hurt his back

back
on

and

nervous

November

16,

an onset

at work; he
conditions.
1988.

His

application was
in

July 1987

denied by an administrative
and

the Appeals

request

for review.

federal

district court,

Services requested

case

16, 1988,

disabled.

The Appeals

another

it

the

and Human
remand, the
with

the hearing,

no such

expert

that claimant was not

Council, on March

hearing;

At

it appears that

A different ALJ determined

in

hearing be held

vocational expert (VE).

testified.

yet

of Health

Pursuant to this

that a second

claimant's

was pending

the Secretary

a remand.

the testimony of a
held on November

Council rejected

While the

Appeals Council ordered

law judge (ALJ)

determined

20, 1989, ordered

that

claimant's

limitations significantly affected his ability to perform the

full range of light and sedentary work.

It ordered that a VE

-2-

testify

as

to the

existence

of jobs

that

claimant could

perform.
On June 22, 1989,

after holding the third hearing,

at which a

VE testified,

claimant's

application

disabled.

He

determined

found

lumbosacral strain.

the ALJ who

that

that claimant

As

first had

considered

claimant

suffered

was

from

not

severe

for claimant's complaints of totally

disabling pain, the ALJ concluded that while credible when he

first injured his back,
continuing

severe

allegations

of

there was no convincing evidence

pain.
pain

to

prohibited from engaging

not perform

Thus,
the

the

extent

in heavy work.

of

ALJ

credited

the

that

claimant

was

He therefore could

his past work as a truck driver and delivery man

which involved the carrying of heavy appliances.

However,

according to

the ALJ,

claimant retained

the capacity for the full range of light work limited only by
his need to alternate positions; claimant further was limited
because

he could

bend only

repetitive foot movements.

not have
work

such

The ALJ found that

any nonexertional impairments.

skills such

claimant

occasionally and could

was

as

able to

as a stock

following

instructions and

claimant had returned in November 1988.

counting,

work activities

warehouse -- the

-3-

claimant did

Given his acquired

perform semi-skilled

person in a

not use

job to which

The
review,

Appeals Council,

affirmed the decision

upon claimant's
of the ALJ

not entitled to disability benefits.

the

significantly
activity.

The Council did modify

However, this impairment did not

limit claimant's

On appeal

to the

recommended that

ability

A.

for further

Nonetheless, the district court

This appeal ensued.

Back Impairment
_______________
concerning the

back impairment

consultative
In

magistrate-

DISCUSSION OF THE MEDICAL EVIDENCE

__________________________________

The evidence
claimant's

work-related

be remanded

judge affirmed the Secretary's decision.

II.
__

to do

district court, a

the matter

administrative proceedings.

1988.

that claimant was

ALJ's decision in one respect by finding the presence of

a nonexertional impairment.

judge

request for

evaluations

nature and

is conflicting.
were

In

extent of
total, six

conducted between

1985

and

addition, claimant received treatment at the State

Insurance Fund

(SIF) from

See Exhibits 17 and 36.

___
performed in August
space

at L5-S1 with

small

lateral

August 1985,

January 1985 through

April 1988.

According to SIF records, a C-T Scan

1985 revealed
a disc

a narrowing

herniation to

disc herniation

to the

a physiatrist at the SIF

left

of the

the right
at L4-L5.

disc
and a
In

examined claimant and

found that claimant could not

and upon flexion and
1985, claimant

squat, had pain upon palpation

lateral movement of the trunk.

continued with

these symptoms.

During

However, an

-4-

SIF physician in September of 1985 noted that claimant's pain

appeared only
or standing.

upon exercise or prolonged

At this

periods of sitting

examination, he found no radiculopathy

and that claimant's gait was normal.

In March
claimant evinced
rehabilitation.
reported that

1986, a

little interest
In

June

despite

claimant

Although he

had

was

1986,

trouble

sufficient lengths

to

claimant

lift

bending

vocational

evaluator

of

up

to

testicular

forward

twenty
and

and squatting, he could

of

time so

allowed him to change position,

Thus,

was noted

that

that

in vocational

in his fingers, neck, low

able

difficulties kneeling
for

in engaging

claimant's complaints

pain, headaches and pain

legs,

follow-up report indicated

back and
pounds.

experienced
sit and stand

with a

job

that

he could perform light work.

as having

"great" rehabilitative

potential.
Turning to the consultative medical evaluations, we
find

it necessary

for

review only those upon

the disposition

no swelling,

See Exhibit
___

41.

no muscle

lumbosacral spine
S1.

The residual

to

In August 1988, an internist

atrophy and

There was diminished

claimant's left leg.

this appeal

which the VE based his opinions as to

appellant's physical abilities.

found

of

The

normal reflexes.

pinprick sensation in

diagnosis was fibromyositis of the

with spasms and discogenic

disease at L5-

functional capacity (RFC)

form indicated

-5-

that

claimant could lift a maximum of 50 pounds on occasion,

could stand or walk for four to six hours at a time and could
sit

for up

positions.

to

four hours

so long

as

he could

Claimant could frequently climb

alternate

and balance and

could occasionally stoop, kneel, crawl and crouch.

A
1988,

neurologist, also

found claimant

with

examining claimant

a normal

spine, full

in August
strength,

normal tone and no evidence of atrophy or radiculopathy.

See
___

Exhibit

movements

and

they did

not

42.

Claimant

although he showed
follow

had

limited

signs of

any anatomical

sensory deficit,

distribution.

narrowing

of the

diagnosis

was chronic back pain.

L5-S1 disc

could

He could stand and

work day.

crouching, crawling,

X-ray revealed
lumbar spasm.

a
The

In the RFC evaluation, the

could lift a maximum of

walk without any limits, but

sit for an uninterrupted

hours in a

An

space and

neurologist determined that claimant

50 pounds.

trunk

time for only

Claimant had

three to four

no limits in

climbing or balancing.

kneeling,

He was limited

in his ability to push or pull.

In

contrast

evaluation performed
See Exhibit 20.
___

to the
by a

above

is

the

neurologist on January

an

28, 1987.

This examiner found lumbar dextroscoliosis,

marked lumbosacral paravertebral muscle spasm

to palpation.

report of

and tenderness

Claimant had limited range of motion and could

bend forward only 30 degrees.

The diagnoses were as follows:

-6-

(1) herniated nucleus pulposus (HNP) at

L4-L5 and L5-S1; (2)

bilateral intractable S1 radiculopathies; (3) severe, chronic

lumbosacral
facet

myositis and

axial

injury

conclusions

myofascial

and

pain

pain; and

syndrome.

were that claimant's

(4)
The

lumbar
report's

musculoskeletal and spinal

conditions, along with nerve root involvement, contributed to

"severe
lumbar

functional spinal limitation in

movements."

maintain a
was

As

a result,

fixed position for

limited;

exacerbated

further,

from engaging
According to

claimant's

exertion.

in "any type of
this doctor,

ability

a substantial period

claimant's

by physical

all of the range of

constant
Thus, he

to

of time

pain

was

was precluded

gainful activity whatsoever."

claimant

was in

"dire need"

of

treatment.
At

the last

opinion of what
responded

hearing,

the ALJ

asked

the VE

type of work claimant could perform.

that if one

used only Exhibit

his

The VE

20, claimant would

not be able to engage in any substantial gainful activity due

to

his functional limits and severe pain.

However, based on

the RFC forms completed by the other two examiners, claimant,

although

precluded from

heavy work

could perform moderate work.

even

taking

into

account

such as

his last

The VE reached this

claimant's

pain

and

job,

conclusion
decreased

abilities in sitting, standing or walking for long periods of

time.

-7-

Claimant

argues that

complaints of pain.
claimant

as

We

being

profile.

The

claimant

could

alternate
fact

do not agree.
able

specifically referred

to

to pain

ALJ went

engage

light

to

in

credit his

in describing
moderate

of claimant's

VE, deciding

work

work

where

he

that
could

This finding was based in part on the

as well

required this kind of flexibility.

as

The VE

as a component

only

that claimant's pain

conflicting

did not

further than the

perform

positions.1

the ALJ

whether

as his

other conditions

Although the reports were

claimant's

pain

was

totally

disabling, such conflicts are for the ALJ, not the courts, to
resolve.

See
___

Rodriguez v.
_________

Services, 647 F.2d 218, 222

________
that

there was

conclusion that

Secretary of Health and Human

_______________________________
(1st Cir. 1981).

substantial

evidence to

claimant could perform the

Thus,

we find

support the

ALJ's

demands of light

work.
2.

Mental Impairment
_________________

Whether

claimant's

emotional

impairment

is

disabling

is

emotional

problems after he

treatment for
Center from

closer

question.

began

experiencing

injured his back.

He received

these problems

He

at the Carolina

Mental Health

March 1986 through February 1988.

See Exhibits
___

____________________
1. For some reason, claimant argues that the ALJ erred by
relying on the grid and that the testimony of a VE was
required. It appears that claimant bases this contention on
the first decision rendered by the ALJ in July 1987, rather
_____
than the most recent decision of June 1989.
-8-

18 and 37.
he
his

At his initial evaluation, claimant

had trouble sleeping, was irritable, lost his temper with

children,

experienced

hallucinations at night.

headaches

out-patient

indicate

that

counseling
during

and

1986,

the prognosis was

recommended.
claimant

cooperation with treatment; he stated that he

for the

some

visual

The diagnosis, at this time, was an

adjustment disorder with depression;

with

stated that

purpose of obtaining

Clinic
evinced

good
notes
little

was there only

medication to help

him sleep.

His

case

was terminated

having occurred.

in January

1987, no

real changes

However, in December 1987, claimant was re-

admitted to the out-patient program with the same complaints.

At

this

relevant
little

time,
and

claimant

was

his thought

cooperative,

processes

were

goal-directed,
intact.

Again,

gain appears to have been made with treatment and the

record reflects that his last visit was in February 1988.

Claimant underwent four psychiatric
two in 1986

and two in 1987.

claimant was
Exhibits

All

17,

38

and

40.

complaints of hallucinations, all

that his thought

Despite

Although two

impairment with recent and

this was not

oriented.
his

See
___

subjective

four examiners also agreed

processes were intact

psychotic perceptions.

and 40,

the examiners agreed that

coherent, logical, relevant and

15,

evaluations --

with no evidence
examiners noted

of
some

immediate memory, see Exhibits 17

___

perceived as

a major problem

and all

-9-

four

agreed

that claimant's

judgment

was,

at a

minimum,

adequate.
was

Similarly, all four examiners agreed that claimant

anxious

claimant
The

and

distracted,

with

appeared depressed.

most

common

three

observing

See Exhibits
___

diagnosis

was

15, 38

depression

that
and 40.

related

to

claimant's accident.
The
claimant's
work.

evaluators

differed

mental condition

A psychologist who

Exhibit 17, determined that

76.

to

the

effect

ability to

tested claimant for

of

function at
the SIF, see
___

claimant had a borderline

IQ of

His vocational test scores revealed a strong interest in

manual

activities.

moderate"

anxiety

the psychologist
on

or his

as

an

Despite

the

which affected

presence

counseling

"mild

to

claimant's concentration,

believed that this condition

out-patient

of

basis.

was treatable

Claimant's

work

prognosis was "very much acceptable" and "his emotional state

and

his

intellectual

capacities"

were

"appropriate"

for

vocational rehabilitation.
However, the

one examiner

who completed a

mental

RFC assessment, see Exhibit 40, rated claimant's abilities to

___
function in the following areas as "poor or none" (defined on
the

RFC form

as "[n]o

useful ability

to function"):

(1)

following work rules; (2) relating to co-workers; (3) dealing

with the public; (4) interacting with supervisors; (5) coping
with

work

stresses;

(6)

maintaining

-10-

concentration;

(7)

handling detailed or
in

an

emotionally

reliability.

His

independently
were

and

"fair"

--

precluded."
abilities

complex job instructions; (8)

stable

manner;

abilities

to

and
use

relate predictably
defined

as

(9)

areas

"seriously

of

function

social situations
limited,

Claimant had good ("limited

in the

demonstrating

judgment,
in

behaving

but

not

but satisfactory")

understanding, remembering

and

carryingout
simpleinstructions
andinmaintaining
personalappearance.
Two non-examining doctors completed RFC assessments
in

1986.

See Exhibit 14.

___

significant

limits

in

They agreed that claimant had no

__
the

following

activities:

(1)

remembering locations and work procedures; (2) understanding,

remembering

and

instructions;
asking

simple

acting in

carrying

out

(3) making simple

questions;

(5)

very

short

and

simple

work-related decisions; (4)

requesting

a socially appropriate manner;

assistance;

(6)

and (7) responding

appropriately to changes in the work place.

Both also viewed

claimant

his capacity

as

being moderately

limited

in

to

maintain

a normal

work

week without

psychological symptoms, to accept

with co-workers.
of

the

These same

Psychiatric

claimant as
moderately

to

criticism and to get along

evaluators, on the "B" criteria

Review

Technique

slightly limited in daily

limited in

interruptions due

social

(PRT)

Form,

rated

living activities and

functioning; claimant

seldom

-11-

experienced

problems

with

concentration

and

never

had

episodes of deterioration at work or in work-like settings.

In

1988,

completed PRT forms.

anxious

and

severe.

See Exhibit
___

had

slight

two

non-examining

physicians

also

They opined that although claimant

depressed,
35.

limitations

his

emotional

As for the "B"

in

functioning, seldom experienced

daily

condition

was

was
not

criteria, claimant
living

problems with

and

social

concentration

and never had problems with deterioration at work or in worklike settings.

The ALJ also questioned the VE concerning the above

evidence.

Again, the VE

conflicting
abilities

and

the

were

utilized.

pointed out that

conclusions

dependent

Based on the

evaluation, claimant
However, the

other

on

as

what

the evidence was

to

claimant's

medical

psychiatrist's report

would

not

be able

reports, according

to

reports

one

and the

RFC

work

to the

work

at

VE, did

all.
not

support such a finding of total disability.

Although we do not agree with the ALJ that claimant
did
find,

not have any

___
as

did

impairment

support the
work.

the

did

claimant, we

emotional impairment and

Appeals

exist,

Council,

it

believe that

had

no

even hesitate to

that

while

significant

there is substantial

conclusion that claimant was

such

an

effect

on

evidence to

not precluded from

We first note, however, that the findings of moderate

-12-

limitations in accommodating the demands of a work setting -i.e., regular

____

attendance and

the completion of

a work-week

without interruption
least marginally.
Services, 890
________
given

his

F.2d 520, 527

of the

the ability

attention and

affected, along

occupational base, at

See Ortiz v. Secretary of Health and Human

___ _____
_____________________________

the presence

claimant had
that

-- can erode the

with

(1st Cir. 1989).

RFC assessments

to follow simple
concentration

the RFC

emotional impairment was not

Nonetheless,
indicating that

instructions and

were

assessments

only minimally
that

claimant's

severe, we cannot say

that the

VE's conclusion that claimant could work as a warehouse stock

person was without record support.
support

different

conflicts in the record

Ortiz v.
_____

Although the record could

conclusion, we

again

emphasize

are for the Secretary.

that

See Irlanda
___ _______

Secretary of Health and Human Services, 955

________________________________________

F.2d

765, 770 (1st Cir. 1991) (per curiam).

III.
___
For

the

CONCLUSION
__________

foregoing reasons,

district court is affirmed.

________

the

judgment of

the

-13-