USCA1 Opinion

[NOT FOR PUBLICATION]

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

____________________

No. 95-1028

JOSE R. FIGUEROA ALVAREZ,

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. Salvador E. Casellas, U.S. District Judge]

___________________

____________________

Before

Torruella, Chief Judge,

___________
Selya and Boudin, Circuit Judges.
______________

____________________

Raymond Rivera Esteves and Juan A. Hernandez Rivera on brief

______________________
_________________________
appellant.
Guillermo Gil,
______________
Assistant
Regional
appellee.

United

United
States

States
Attorney,

Attorney,
and

Maria Hortensia Ri
___________________

Donna McCarthy,
_______________

Assist

Counsel, Department of Health & Human Services, on brief

____________________
August 2, 1995
____________________

Per Curiam.
__________

In 1990, Jose

Figueroa Alvarez filed

an

application

for

Social

Security

disability

alleging disability due to lower back pain.

the administrative law

concluding

security

judge (ALJ) denied

After a hearing,

Figueroa's claim,

that he could perform his past relevant work as a

guard,

and

the

Figueroa then appealed to

the decision.

Figueroa's

because

benefits,

He

Appeals

Council

now seeks review in

review of

review.

the district court, which affirmed

specific objections on

our

denied

the

this court.

Because

appeal are meritless, and

record

shows that

substantial

evidence supports the finding that Figueroa was not disabled,

we affirm.

In

his

decision,

the

medical evidence of record showed

musculoskeletal condition, but

ALJ

determined

that

the

that Figueroa has a severe

not one meeting or

equalling

the conditions listed in 20 C.F.R. Pt. 404, Subpt. P, App. 1.

Specifically, a CT scan showed lumbar spine spondylolysis and

spondylolisthesis

with

at the

small central

disc herniation

dural sac at that level.

condition was

The ALJ

compatible with

that the evidence did

basis for

L4-L5 level and

posterior bulging

and compression

of the

found that Figueroa's back

episodic pain,

but concluded

not establish a medically determinable

the degree of

pain alleged.

He also

found that

Figueroa's back condition had not limited his neurological or

orthopedic

functioning since

Figueroa had

-2-

always exhibited

good range of

the

prior

motion and no

muscle weakness.

Nonetheless,

ALJ determined that Figueroa could no longer perform his

medium exertional

fingerlift operator.

level

Because

job as

he found that

still perform light work, however,

could perform his past

warehouseman

Figueroa could

the ALJ concluded that he

relevant work as a security

job Figueroa had held from 1983-86 and again in 1990.

DISCUSSION
__________

and/or

guard, a

On appeal,

consider

his

concluding

Figueroa claims that the

allegations

that

security guard,

he

of

disabling

could return

and denied

to

his

ALJ failed to

pain,

erred

in

past

work as

him disability benefits

without

considering evidence in his favor.

consider

first

A.

Allegations of Disabling Pain

_____________________________

In

support of

his allegations of

that

he

constantly

examining physicians

that

his

the ALJ

claim that

the ALJ

disabling pain, Figueroa states

and

persistently

complained to

of severe disabling pain.

ignored that

failed to

evidence.

He suggests

The record

does not

substantiate his claim.

First,

there are

significant

gaps in

Figueroa's

medical records between December

1988, when he first injured

his back, and October 1991, when the hearing took

have

found

complained of

no

medical

pain to

records

indicating

place.

that

examining physicians for

We

Figueroa

the periods

-3-

from May 1989 to

December 1989, February 1990 to

June 1990,

or March 1991 to October 1991.1

Second, as the transcript shows, at the hearing the

ALJ elicited Figueroa's testimony

pain

he alleged,

as required

on relevant aspects of the

under Avery
_____

v. Secretary of
_____________

Health and Human Services, 797 F.2d 19, 29 (1st Cir. 1986).2
__________________________

In his decision, the

stated

that

ALJ took account of that

Figueroa's

"salient

complaint" was

decreased sensation in his right leg.

evidence, however,

allegations of pain.

the ALJ

pain

and

In view of the medical

did not fully

credit Figueroa's

He noted the gaps in Figueroa's medical

treatment history, including the fact

____________________

testimony and

that he had not sought

1.

The record contains an

Rico Industrial
that

August 1989 report of the

Commission in which

Puerto

the Commission reported

Figueroa alleged pain in his lower right back and right

hip.

Apparently, because of Figueroa's

allegation of pain,

the Commission overturned the State Insurance Fund's May 1989

discharge of Figueroa

as "cured and without disability."

February or March 1991,

under

the

December

the State Insurance Fund determined,

applicable

worker's compensation

1988 Figueroa

disability of 15 %

had

sustained a

by

law,

partial

entitled

the Secretary,

Administration
to

in

permanent

by other agencies

they

are not

disability

consideration,

but

is

may be

binding.

Mandrell v. Weinberger, 511 F.2d 1102, 1103 (10th

________
__________
(Veterans'

that

of his "general physiological functions."

Although disability determinations

considered

In

Cir. 1975)

determination
not

See
___

binding

on

is
the

Secretary).

2.

Under

Avery, the
_____

ALJ was required

nature, location, onset,

intensity

of

precipitated

the
or

for

the

in

question;
the

pain;

the
the

adverse side effects of

pain

into the

duration, frequency, radiation, and

aggravated

effectiveness, and
treatment

pain

to inquire

other

than

factors
type,

dosage,

pain medication;

medication;

and

claimant's functional restrictions and daily activities.

-4-

that

the

any treatment after February 1991.

Figueroa's

basis,

back condition

He concluded that, while

could cause

pain on

an episodic

the pain had proven treatable and had not limited his

functioning significantly, except to the extent that he could

not perform medium or heavy work.

Besides

other

evidence

the

gaps

supports

in Figueroa's

the ALJ's

medical

conclusion.

record,

Although

Figueroa testified that his pain was constant

also said

that medication

massaging

his leg

night.

and

for

and strong, he

"alleviate[d]" the pain

alleviated

painful cramping

and that

during

the

He testified that his medication gave him heartburn,

that

reason

it

had

been

changed;

his

current

medication allegedly had side effects, too, but Figueroa gave

no specifics and acknowledged that

it "at

least relieve[s] the pain a

he took it anyway because

little."3

The ALJ noted

that Figueroa appeared in no distress at the hearing and that

he walked adequately with no assistive device.

testified that he

could walk for 30 meters,

daily activities was

walking around

walked around the house when

Figueroa also

that one of his

his yard,

and that

leg pain woke him up at

he

night.

consulting

neurologist

reported

in

January

1991

that

Figueroa had back pain syndrome, but that he could do tip toe

____________________

3.

In

caused

his decision,
numbness,

but

transcript to support

the ALJ
we

stated that

found

the

hearing

that statement, and so assume

that it

was inadvertent error.

-5-

nothing

Figueroa's pills
in

gait, walk

on his heels

and squat

on his

knees; that

his

forward lumbar flexion was 80 degrees forward and his lateral

lumbar

flexion

negative5 and

he

was

degrees;4

and no muscle

paravertebral muscle

decreased sensation

distribution.

that

In

physicians reviewed

February and

carry 20

there was

without any anatomical

(RFC).6

Social Security

and assessed

Each

indicated

condition, Figueroa could perform the

exertional requirements of light work:

or

atrophy although he

June 1991,

capacity

was

90 degrees; that

Figueroa's medical records

residual functional

Lasegue

spasm; and that

in his right leg

that, despite his back

lift

his

his straight leg raising was

had no motor weakness

had minimal

his

20

pounds and

he could occasionally

frequently

lift or

carry 10

____________________

4.

Accompanying range of motion charts show that full lumbar

flexion forward

is 90 degrees

and that full

lateral lumbar

flexion is 20 degrees.

5.

This apparently

limitation of

movement

supine position.
743 (4th
supine

means that Figueroa suffered

ed. 1979) (Lasegue's

in

his

legs while

in

See Blakiston's Gould Medical Dictionary

___ ______________________________________

patient raises

knees

when raising

no pain or

sign becomes positive

his entire

full extension

lower extremity

and suffers

pain or

when a
with his

muscle spasm

resulting in limitation of movement at a particular

angle of

elevation).

6.

Among

other things,

the

medical opinion

request

form

underlying the February RFC assessment noted Figueroa's claim

of

pain, his

sensory

minimal paravertebral muscle

sensation

distribution,

and

in
his

his

original

results.

The

June

assessment noted,

RFC

right

medical opinion

paravertebral muscle spasm.

without

back injury
request form

among

condition, decreased sensation in

leg

spasm, decreased

other

and

anatomical
CT

scan

underlying the

things, his

back

his right leg, and minimal

-6-

pounds;

for

he could stand, walk and sit with normal breaks each

a total of

could push or

(the

about 6 hours

in an 8-hour

pull without limit.

See 20
___

workday; and he

C.F.R.

404.1567

physical exertional requirements of light work comprise

the ability

to lift no more

frequently lifting

than 20 pounds at

or carrying objects

up to 10

a time while

pounds, to

walk

or stand a

pulling of arm

good deal, or

or leg

to perform some

controls if the

pushing and

job mostly

required

sitting); SSR 83-10 ("[T]he full range of light work involves

standing or walking, off and on, for a total of approximately

hours

of

an

8-hour

intermittently during

not

submitted any

the remaining

as of

Sitting

time.").

physician's evaluation

report which contradicts the

condition

workday.

may

occur

Figueroa

or other

has

medical

neurologist's assessment of his

January 1991,

nor any

residual functional

capacity evaluation which contradicts the two RFC assessments

indicating that he could perform light work.

B.

Past Relevant Work

__________________

Figueroa objects

to the

ALJ's conclusion that

he

could perform his past relevant work of security guard, which

is

classified as light exertional

work.

See
___

U.S. Dep't of

Labor, Dictionary of Occupational Titles (DOT) 269 (4th rev.

__________________________________ ___

ed. 1991).

In support thereof, Figueroa

limitations

described in

Both

assessments indicated

the

cites the postural

Secretary's RFC

that, given his

-7-

assessments.

back condition,

Figueroa could only occasionally climb

and

crawl.7

Figueroa

could not evaluate how

his

ability

to

argues that

the

ALJ, as

a layman,

his postural limitations would affect

perform

suggesting that the

stairs, stoop, crouch

the

work

of

security

ALJ needed the guidance

guard,

of a vocational

expert.

We disagree.

that he

meet

Figueroa bore the

burden of showing

could no longer perform his former job.

that

burden,

information about

required[.]"

he

needed

provide

the activities that [his]

Santiago v.
________

Services, 944 F.2d

________

to

1, 5

In order to

"some

minimal

past usual work

Secretary of Health and Human

________________________________

(1st Cir. 1991);

accord Dudley
______ ______

v.

Secretary of Health and Human Services,

________________________________________

(1st Cir. 1987)

(per curiam).

But

816 F.2d

Figueroa never testified

that his prior work as security guard required

stooping,

than

crouching and

crawling, let

occasionally, nor does

record

evidence

perform

suggest

before

his

that

the ALJ

past job

postural limitations.

and crawling listed as

guard job in

to

as a

Nor

true.

show that

security

any climbing,

alone doing

anything we

this is

792, 794

so more

have found

Thus,

in the

there was

Figueroa

no

could not

guard because

of his

are climbing, stooping, crouching

physical requirements of the security

the relevant vocational publication.

See U.S.
___

____________________

7.

The RFC

assessment forms

define "occasionally"

to mean

"occurring

from very

little up

to

one-third of

an 8-hour

workday (cumulative, not continuous)."

-8-

Dep't

of

Labor,

Selected Characteristics of Occupations

__________________________________________

Defined in the Revised Dictionary of Occupational Titles

_____________________________________________________________

(SCO)
___

demand

Pt. A,

at 45;

components

App. C,

of

at C-3

climbing,

(1993) (the

stooping,

physical

crouching

and

crawling are "not

also
____

SSR 83-14

present" in the security

(stating

that relatively

guard job);8 see

___

few

jobs in

the

national economy require climbing and that workers performing

light exertional jobs would not have to crouch and would have

to stoop

only occasionally to perform

exertional requirements of most

substantially all the

light jobs).

Since Figueroa

never met his burden of showing that his postural limitations

prevented him

guard, and

from returning

the SCO
___

past work

indicates that his

would not prevent him from

as

to his

as security

postural limitations

performing the security guard job

usually performed in the national economy, the ALJ had no

obligation

to consult a vocational

expert.

See Musgrave v.
___ ________

Sullivan, 966 F.2d 1371, 1376 (10th Cir. 1992) (an ALJ has no
________

obligation

to

claimant has

seek

that

determining

expert

testimony

not established a disability

from performing his

(stating

vocational

job

experts

is

may

usually

that prevents him

past relevant work); see also

___ ____

vocational

how

where

be

SSR 82-61

necessary

performed

where

in

the

____________________

8.
the

The Secretary of
general

presumptively

job

Health and Human

categories

applicable to

in

Services may rely

the

a claimant's

DOT
___

and

prior work.

Villa v. Heckler, 797 F.2d 794, 798 (9th Cir. 1986).

_____
_______

-9-

SCO
___

on
as
See
___

vocational resource materials are insufficient); compare Gray

_______ ____

v.

rely

Heckler, 760
_______

F.2d 369, 373

on vocational

(1st Cir. 1985)

publications

(an ALJ may

in determining

whether

claimant could return to past work where the claimant had the

opportunity to, but did not, testify about the demands of her

prior job).

Figueroa

significant evidence

next

suggests

that

the

in determining that he

ALJ

ignored

could return to

his work as a security

testimony that he

guard.

At

leave

his

security

guard

back.

month because he was

working as a

Figueroa testified that

position

in

his

security

he had

June

1990

to

after

He also testified that he had tried to

work recently,

his leg and

Figueroa points first to

could not continue

the hearing,

reinjuring his

return to

guard.

but that

he had

to quit

required to stand all the

heel numb.9

after a

time, making

Furthermore, Figueroa stated

that

____________________

9.

The record does not show conclusively that this job was a

security guard position.

attempt

to work

whether he
June

1990,

position.
worked

again

Figueroa described his unsuccessful

in response

had worked

as a

suggesting that

to

the ALJ's

security guard
the

job was

question

elsewhere after
a

security guard

But, when the ALJ then concluded that Figueroa had

as

Figueroa's

security

attorney

guard

presented

for

five

letter

months

in

certifying

1990,
only

Figueroa's previous
four-month
the

employment as

period from February to

attorney's response

decision,

the

ALJ

a security guard
June 1990.

is listed as

reports

The rest of

"inaudible."

that Figueroa

alleged

the

months,

but that in his written submissions to the agency he

guard.

This

Figueroa's

guard for

at

that he

had also

a security

In his

hearing

stated that he

worked as

for the

as a

security

suggests that the ALJ's understanding

was that

unsuccessful

worked from 1983-86

only four

one-month

employment

was

not

-10-

he

could stand only for about

25-30 minutes, then he had to

move his legs or stand

on his toes.

Figueroa

also suggests

that the ALJ ignored medical records from April 1989 and June

1990 which

indicated that

The fact

he had difficulty

that Figueroa

in standing.10

had to leave

his security

guard job in June 1990 or that he complained of difficulty in

standing

in April 1989 and June 1990 is not very significant

since the

record indicates that his

afterwards

legs.

In

and that

September

it had

back condition improved

not significantly

1990, a

neurosurgeon

affected his

reported

Figueroa's back pain did not radiate to his legs

had

very infrequent

____________________

cramps; he found

that

and that he

that Figueroa

had no

security

guard

confusing

position.

passage

on

this

Figueroa's

brief

contains

point, but

seems

intended

to

confirm the ALJ's understanding.

Even if the job
however, Figueroa's
not

return

to a

in question were a security

testimony at

specific

most showed that

security

required him to stand continuously.

typical security guard job
six hours a day.
not

stand for

still

failed

Thus,

prolonged periods
security

guard.

proof by

exposure
such

because

it

He did not show that the

even if his allegation that he could

show

that

period were
his

fully credited,

inability

would prevent his

to

stand

returning to work

he
for
as a

See Pelletier v. Secretary of HEW, 525 F.2d

___ _________
________________

158, 160 (1st Cir. 1975) (a claimant

of

guard job

he could

entails standing for greater than

a prolonged
to

guard job,

showing

that a

to smoke and fumes;

exposure would

be

did not meet her burden

particular

past job

she was required

a condition

of

entailed

to show that

her type

of

work

generally).

10.

The records

stated that he complained

of difficulty in

sitting for prolonged periods of time, too, but Figueroa does

not

allege

the

ALJ

erred

by

difficulty in sitting.

-11-

failing

to

consider

his

diminished

with a

sensation or edema in his legs and that he walked

normal

gait;

reflexes were within

his

sensory

and

normal limits; his heel

was excellent;

there was

December 1990,

a State Insurance Fund

systems

and

to toe walking

no objective radiculopathy.11

that he could return to work.

the consulting

motor

By

physician advised him

In January 1991, Figueroa told

neurologist that

he had

difficulty sitting,
_______

but he

did

prolonged

not complain

periods.

about difficulty

Although

Figueroa had decreased

Figueroa

atrophy.

The uncontradicted

had no

motor

assessments both indicated that

six hours

never

out

neurologist found

sensation in his

found that

for

the

of an

in standing

February

that

right leg, he

weakness and

and

no

for

also

muscle

June 1991

RFC

Figueroa could stand or walk

eight-hour

workday.12

Figueroa

sought any treatment for numbness in his legs in 1991.

At the

hearing, Figueroa appeared to

attribute the numbness

in his legs to

the pain he suffered, but, as

he

that

also

said

his

medications

and

noted earlier,

hand

alleviated the pain.

In addition, he suggested

his

on his toes

legs or standing

caused by

prolonged standing.

massaging

that moving

helped relieve discomfort

Under

the circumstances, the

____________________

11.

Radiculopathy

roots."

See
___

is

defined

as

"disease

of

the

Dorland's Illustrated Medical Dictionary

_________________________________________

nerve
1405

(27th ed. 1988).

12.

Neither

indicated that

physician marked the box on

Figueroa

should alternate

the RFC form which

periodically

his

sitting and standing in order to relieve pain or discomfort.

-12-

ALJ's apparent failure fully to

that he could

not stand

credit Figueroa's allegation

for prolonged periods

of time

was

supported by substantial evidence in the record.13

C.

Failure to Consider Whole Record

________________________________

Figueroa claims

evidence

favorable

to

that the ALJ relied exclusively on

the

Secretary

"overwhelming evidence"

in the record which

disability.

discussion

substantial

decision.

As

our

evidence

in

the

above

record

and

disregarded

established his

shows,

supported

the

Two uncontradicted RFC assessments indicated

Figueroa could

perform light work that

ALJ's

that

entailed standing or

walking for six hours out of an eight-hour workday.

months

however,

Some six

after Figueroa had reinjured his back in June 1990, a

State Insurance Fund physician found

that he could return to

work.

There

was

no

evidence

that

Figueroa sought

any

treatment for pain or numbness after February 1991, and there

was evidence

that

he was

able

to relieve

the

discomfort

occasioned by his back condition.

Affirmed.
_________

____________________

13.
fact

Figueroa also states that

that he

wears an

develop that argument and

See
___

United States
_____________

"another telling fact" is the

orthopedic girdle,

but he

so we do not consider

v. Zannino,
_______

895 F.2d

cert. denied, 494 U.S. 1082 (1990).

____________

1, 17

does not

it further.
(1st Cir.),

-13-