USCA1 Opinion

May 21, 1996

[NOT FOR PUBLICATION]

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

____________________

No. 95-2168

FELIX GONZALEZ-ALEMAN,

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, Jr., Senior U.S. District Judge]

__________________________

____________________

Before

Selya, Cyr and Lynch,

Circuit Judges.
______________

____________________

Fabio A. Roman Garcia on brief for appellant.

_____________________
Guillermo Gil, United
_____________
Acting Chief

States Attorney,

Civil Division,

Rosa E. Rodriguez-Vel
______________________

Robert M. Peckrill,
__________________

Assistant Regio

Counsel, Social Security Administration, on brief for appellee.

____________________

____________________

Per Curiam.
___________

from a district

Felix Gonzalez-Aleman

court judgment affirming

(claimant) appeals

a decision of

the

Secretary

of

Health

and

Human Services

disabled as of April 28, 1992.

finding

him

not

For the following reasons, we

vacate and remand.

On September 7,

1990, claimant was involved

vehicle accident and sustained

hip,

left femur,

claimant

could

applied

and

alleged that sitting

hips.

The

fractures of the pelvis, left

left ankle.

for disability

not stand or

walk due

in a motor

On October

benefits alleging

to these

caused pain

25,

fractures.

in the

Social Security Administration

1990,

that he

He also

pelvic region

and

denied claimant's

application initially and on reconsideration.

After a hearing, an Administrative Law Judge (ALJ) found

that claimant

was under a disability

beginning September 7,

1990 and continuing through April 27, 1992.

However, the ALJ

found

that

functional

after

capacity

sedentary work.

operator

April

27,

increased

Since

required more

1992,

to

claimant's

capacity

on

the Grid,

because there is

as a

machine

than

exertion,

five of the sequential

the ALJ

perform

work

determined that he could not perform this work.

proceeded to step

to

claimant's past

sedentary

found that

a broad range of

residual

the

The ALJ then

analysis.

claimant is

Relying

not disabled

unskilled, sedentary jobs

existing in the national economy which he can perform.

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ALJ

The Appeals Council denied review.

the

district court which

Claimant appealed to

affirmed the Secretary's decision.

This appeal followed.

Claimant

argues that the ALJ erred at step three of the

sequential analysis

Listed Impairment

in not finding

that he met

or equalled

1.03 (arthritis of a major weight-bearing

joint), 20 C.F.R. Part 404, Subpt. P, App. 1.1

1

We

The

arthritis

record

does

contain

some

evidence

of

disagree.

in

claimant's left

movement

in

ankle, as well as

this

contains X-rays,

deformity

of

Similarly, it

joint.

significant limitation of

However,

although

there is no indication

hip

or

knee

as

claimant's left leg satisfies

1.03B.

record

of gross anatomical

required

does not appear that the

the

by

1.03A.

surgery performed on

In any

event, given

____________________

1The following condition is listed at

1

1.03:

Arthritis of a major weight-bearing joint (due

to any cause):

With

history of

persistent

joint

pain

and

stiffness with signs of marked limitation of motion

or abnormal motion of the affected joint on current
physical examination.

A.
(e.g.

Gross

With:

anatomical

subluxation,

deformity

contracture,

of

hip

or knee

bony or

fibrous

ankylosis, instability) supported by X-ray evidence

of

either

significant

joint

significant bony destruction and

space

narrowing or

markedly limiting

ability to walk and stand; or

B.

Reconstructive surgery or surgical arthrodesis

of a major weight-bearing
weight-bearing

status did

joint and return to full

not

occur, or

is

not

expected to occur, within 12 months of onset.

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evidence in

the record

that claimant's fractures

are well-

healed, that

he can walk or stand for up to three hours, and

that he can carry up to thirty pounds, we think the ALJ could

find that

listing.

claimant's condition neither met

We add that although claimant was continuing to see

his orthopedic

surgeon, he

support his claim that

ability to

walk and

Human Servs., 870

____________

it is

proffered no medical

opinion to

he was still markedly limited

his leg

weight-bearing status.

that

nor equalled the

See
___

had not

yet returned to

full

Torres v. Secretary of Health &

______
______________________

F.2d 742, 745

the claimant's

in his

(1st Cir. 1989)

burden to

show that

(observing

he has

an

impairment that meets or equals a listing).

Similarly, we

could not

reject claimant's

properly find

that his

argument that

the ALJ

condition improved.

The

orthopedic

evaluations

Secretary

reflect steady

claimant

by

examining

progress.

could not carry any

consultants

On

for

January 18,

body weight, and

the

1991,

he could not

stand or walk without the use of crutches.

On June 25, 1991,

the femur

claimant required

the

fracture was

assistance of a

still healing and

walker.

fracture was well-healed.

on

that

assessment

date,

completed

By

April 27,

1992, the femur

Dr. Marrero, who examined claimant

(RFC) which amply

residual

functional

supports the

capacity

ALJ's conclusion

that claimant has the exertional capacity for sedentary work.

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We

are,

however,

persuaded

that there

is

merit

to

claimant's argument that the ALJ's determination at step five

cannot be

At this

upheld under the

stage in the sequential analysis,

to the Secretary

of jobs

"substantial evidence" standard.

to prove that there

in the national

See Heggarty
___ ________

the burden shifts

are sufficient numbers

economy that claimant

can perform.

v. Sullivan, 947 F.2d 990, 995 (1st Cir. 1991).

________

Where

claimant's

impairments

involve

only

strength

limitations, the ALJ may rely on the Grid to meet its burden.

Id.
___

However,

impairments,

the

where

Grid

may

claimant

not

availability of suitable jobs.

Dr. Marrero's

of

non-exertional

has

non-exertional

accurately

reflect

the

Id.
___

RFC indicates that claimant

limitations.

Most

has a number

notably,

the

RFC

indicates that claimant can never climb and is limited in his

ability

to

comments do

reader,

the

restrictions.

all

be

around

not

moving

machinery.

further illuminate,

nature

or

extent

The

at least

of

these

narrative

for the

lay

particular

The ALJ does not mention these restrictions at

in her decision.

Under the circumstances, this court is

left without any basis for determining whether the claimant's

non-exertional limitations are sufficiently minimal to permit

the

ALJ to rely on

was required.

the ability to

We

the Grid or

whether vocational evidence

note that even sedentary work

ascend or

descend stairs on

-6-

may require

a daily

basis.

See SSR
___

work

85-15 (observing

that usual everyday

activities at

include ascending or descending ramps or a few stairs).

Moreover,

the

Secretary's

approximately 85 percent of

own

regulations

state

that

unskilled, sedentary jobs are in

the machine trades and benchwork occupational categories.

C.F.R. Part 404, Subpt. P, App. 2,

Accordingly, a

which

may in

evidence.

In

light

secretary to consider

of our

disposition

in the first

Grid.

With

pain, however,

by Dr.

respect to

we note

further findings

the consideration

relevant, claimant's argument that

limitations found

201.00.

remand is required for

turn require

of vocational

we leave

instance, to the

to

the

extent

additional non-exertional

Marrero precluded reliance

claimant's allegation

that the

20

ALJ found

on the

of disabling

that claimant's

"subjective symptomatology

compromise

does not significantly

his ability to do

sedentary work."

affect or

Claimant has

made no meaningful argument that this finding was in error.

Vacated and remanded.

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