USCA1 Opinion

[NOT FOR PUBLICATION]

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

____________________
No. 94-1515
ANTONIO RIVERA GARAY,
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
Cyr, Boudin and Stahl, Circuit Judges.
______________
____________________

Juan R. Requena Davila, Raymond Rivera Esteves and Juan

_________________________
_______________________
_____
Hernandez Rivera on brief for appellant.
________________
Guillermo Gil, United States Attorney, Maria Hortensia Ri
_____________
____________________
Assistant United States Attorney, and Robert M. Peckrill, Assist

Regional
appellee.

___________________
Counsel, Department of Health & Human Services, on brief

____________________
____________________

Per Curiam.
__________
application
January

for

Claimant Antonio Rivera Garay filed an

social

security

disability

9, 1990, alleging disability

due to a

benefits

back and leg

condition, associated pain, and an anxiety disorder.

hearing,

the Administrative

claimant

had

severe

concluded that claimant

impairment
was not

sequential evaluation process,

the ground

Law Judge

(ALJ)
or

that claimant's impairments did

After a

conceded that

impairments,

disabled at step
20 C.F.R.

on

4 of

404.1520(e),

but
the
on

not preclude his

return to his former job as a lottery ticket vendor.

The ALJ

based

this determination

expert

at the

hearing

on the
that an

testimony of

a vocational

individual with

claimant's

impairments, as described by the ALJ, could perform that job.

After the Appeals Council denied claimant's request

for review of

the ALJ's decision,

district

court, which affirmed.

claimant

argues

that

the

to

the

Secretary

On

appeal to

Secretary's

supported by substantial evidence.

remand

claimant appealed to

for

the

this court,

decision

is

not

We agree, and we direct a

the

taking

of

additional

vocational evidence.

Background
__________

-2-

We

review

the

Secretary's

decision

under

"substantial evidence" standard; we will affirm that decision

if it is supported by "such relevant evidence as a reasonable
mind

might

accept as

adequate

Richardson v. Perales, 402

__________
_______
determination that
based

on the

questions

supported

support a

claimant could perform his

vocational

expert's

The ALJ's

past work was

answers to

hypothetical

We must, therefore, examine the

those questions' premises.

by substantial

conclusion."

U.S. 389, 401 (1971).

posed by the ALJ.

soundness of

to

evidence in

If the premises are

the record,

then the

vocational expert's responses constitute substantial evidence

to support the ALJ's vocational determination that claimant's
impairment

do not preclude his former work.

lack record
are

support, then the vocational

not substantial evidence.

expert's answer
the

inputs

conclusions
medical

to a

into
that

authorities."

expert's responses

order for a vocational

hypothetical question to

that
are

"[I]n

If the premises

hypothetical
supported
Arocho
______

must

by the

be relevant,
correspond

outputs

from

to
the

v. Secretary of Health and

_________________________

Human Services, 670 F.2d 374, 375 (1st Cir. 1982).

______________
The ALJ described claimant's

exertional impairment

to the vocational expert as follows:

[C]onsidering the claimant's age, education
and working experience; considering that he
can alternate positions, can perform fine and
gross manipulation, he can push and pull up
to 25 pounds, frequently.
That he can
occasionally lift more than 25 pounds. That
-3-

he would be limited in the use of foot

controls, but that he could bend, squat, he
could pull and push the weight mentioned
before. If this is the situation, are there
jobs in a significant number that a person
like the one we have described before could
do?
The vocational expert responded that claimant could return to
his former job as a lottery ticket vendor.
The
claimant's
mental

ALJ

then

added a

mental impairment,

condition

where

the

hypothetical

asking,
memory

directed

"And if
seems

to

we added

preserved,

a
the

recent, remote and immediate memory is present, there is good

attention,

concentration,

good introversion.

mental

Would your

capacity, good

opinion vary at

judgment,
all?"

The

vocational expert responded that it would not.

Finally, the ALJ asked, "And if we gave credibility
to the claimant's complaints as indicated here today, that he
feels pain in the leg, that the left leg gets
knee

fails him, that he has to use a cane, that he has chest

pains, that he
we

numb, that the

gave

likes to be alone, that he

credibility

to

these

hears voices.

complaints,

would

If
your

appreciation change at all?"

that

claimant

could

not

The vocational expert responded

perform

his

past

job

in

that

condition.

Claimant's Exertional Impairment

________________________________

-4-

Substantial record evidence

ALJ's

description of claimant's

non-examining
reviewed

the

physicians,
record

functional capacity.

and

Dr.

exists to support

the

exertional impairment.

Two

Fragoso and

assessed

Dr.

claimant's

Hernandez,
residual

Both found that claimant could lift and

carry up to 50 pounds, 25 pounds frequently; could sit, walk,

and stand up to six hours each day; could push

and pull; had

no manipulative limitations; and could climb, balance, stoop,

kneel, crouch and crawl at least occasionally.
findings, which

constituted the only

These medical

medical assessments of

claimant's

residual

exertional

capacity

in

the

record,

adequately supported the ALJ's hypothetical.

It is true that the weight to be given the residual
functional capacity assessments
"will vary
the

with the

illness

and

of non-examining

physicians

circumstances, including the

the

information

provided

nature of

the

expert."

Rodriguez v. Secretary of Health and Human Services, 647 F.2d

_________
______________________________________
218, 223

(1st Cir. 1981).

Claimant's benefits application,

however, was denied at step 4, and at step 4 it is ordinarily

claimant's burden,
to

demonstrate that

Gray v.
____

not the Secretary's, to

he cannot

return to

Heckler, 760 F.2d 369,

_______

claimant

was

justification
Currier v.
_______

represented
here for

produce evidence
his former

work.

375 (1st Cir. 1985).

by

counsel,

departure from

there
that

Since
is

rule.

no
See
___

Secretary of Health, Education and Welfare, 612

____________________________________________

-5-

F.2d 594,

598 (1st Cir.

therefore,

to

1980).

introduce

capacity assessments
Claimant having

The

additional

relevant to the

failed to do so, the

onus was

on claimant,

residual
step 4

functional

determination.

Secretary was entitled

to rely on the assessments of these non-examining physicians.

Claimant's Allegations of Pain

______________________________

We
claimant's

also find

no error

subjective complaints

aspects of claimant's

in the ALJ's
of

treatment of

pain.

The exertional

pain, associated with

claimant's back

and leg condition, are covered by our above remarks.

partly because

of claimant's "pain or

It was

discomfort related to

back syndrome" that the ALJ concluded that claimant faced the
exertional limitations the

ALJ outlined in her

hypothetical

to the vocational expert.

As for

the

non-exertional aspects

of

claimant's

pain, we find that the ALJ conducted the kind of inquiry into
claimant's allegations of pain required by Avery v. Secretary
_____
_________
of Health and Human Services,
_____________________________

797 F.2d 19

and

to

that

the ALJ's

disabling pain

decision

was supported

record supports,

discredit allegations

by substantial evidence.

and claimant has not

findings

that claimant

own, has

not been

"has been

going for

(1st Cir. 1986),

of
The

challenged, the ALJ's

taking medication

on his

treatment consistently and

he

-6-

should complain
action

may

to the

treating sources so

be undertaken

medication,

such

decreasing the

medication

or

as

prescribe a

frequency or

orienting the

that corrective

claimant

substitute

the dosage

of the

terms of

taking

in

medication consistently."

The ALJ also permissibly relied on

her

the hearing

own observations

at

that claimant

cane, but he did not appear to actually need it for

He

"had a
support.

admitted that such cane was not prescribed by any medical

source and that he bought it on his own.

stand

up

and

limitations."

exercise
This

with

no

evidence adequately supported

finding, as reflected in
expert, that

body control

He was able to sit,

claimant did

significant
the ALJ's

her hypotheticals to the vocational

not suffer from

significant pain

beyond that which contributed to his exertional limitations.

Claimant's Mental Impairment

____________________________

The
concerns

the

impairment
expert.

deficiency
ALJ's

in

The

the

in

the Secretary's

description

ALJ's

of

determination

claimant's

hypothetical

to

the

hypothetical merely stated that

mental

condition,

mental

impairment or

The hypothetical

without any

then went on to

vocational

claimant had a

description of

any specific

mental

any specific

functional consequences.
list a number

of areas in

which claimant's mental capabilities were found to be normal.

-7-

As

claimant

hypothetical

argues in

his brief

having to do

on appeal,

"the subject

with appellant's mental condition

poses no mental impairment at all."

The
mental

medical

condition to

psychological

evidence does
be ignored

evaluation most

not

in this
favorable

permit claimant's
manner.
to the

Even the
Secretary,

that of Dr. Orlando Maldonado Rodriguez conducted on March 7,

1990,

found a "mild anxiety

what, if

any,

disorder."

functional limitations

It

did not discuss

that disorder

posed.

The two assessments by non-examining agency review physicians

of claimant's

residual

mental

capacity,

provided

by

Dr.

Reboredo and Dr. Jeanette

Maldonado, found that claimant had

disorder which

severe anxiety-related

limitations

in

following:

various

maintaining

functional

areas,

attention

extended periods, performing

imposed "moderate"

and

including

the

concentration

for

within a schedule,

maintaining

regular attendance and punctuality, completing a normal

day or week
symptoms,

without interruption from

performing

unreasonable number

at

psychologically based

consistent

and length of rest

work

pace

without

an

periods, interacting

appropriately with the general public, getting along with coworkers

without

extremes, and
setting.
work as a

distracting them

or

exhibiting behavioral

responding appropriately to changes

Of particular

lottery ticket

relevance, given
salesman and the

in a work

claimant's past
ALJ's denial

of

-8-

benefits on the ground that claimant could still perform that

job,

Dr. Reboredor

public . . . on a

wrote

that claimant

"cannot relate

steady basis," and Dr. Jeanette

to

Maldonado

expressed a similar view.

The
decision

ALJ

herself

that claimant

specifically

has "some

concluded

anxiety related

in

her

disorder

although it is mild to moderate in nature," and that he could

not "perform . . . complex tasks with detailed instructions."
The ALJ

failed to address, however, what affect the moderate

limitations

on, for

example,

completing a normal workday

dealing with

the public

and

would have on claimant's ability

to perform his past work as a salesman.

Although
supported the
disorder,

recognize that

ALJ's finding of

the hypothetical

effectively
odds

we

with

medical evidence

a "mild to

moderate" mental

presented

to the

described no mental limitation

the

finding.

the

medical

It may

evidence

be that

and

claimant's

ALJ --

which

at all -- was at

with the

ALJ's

former job

own

could be

performed by an individual with claimant's "mild to moderate"

mental
make

impairment.
that

entitled
testimony.
basis

This court is certainly not qualified to

determination nor
to

do

so

in

the

is it

clear

absence

of

why the

expert vocational

Such was not obtained here and, if

on which

the

ALJ was

justified

-9-

ALJ was

there is some

in disregarding

or

discounting the medical evidence

as to mental disorder, that

explanation is not set forth in the ALJ' decision.

Conclusion
__________
For the
district

court is

district court
for

reasons stated above, the

vacated.
_______

opinion.

remand

this case

with instructions to remand

further proceedings,

additional

We

which

vocational evidence,

judgment of the

may include

to

the

to the Secretary
the taking

not inconsistent

of

with this

-10-