USCA1 Opinion
May 21, 1996
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 95-2168
FELIX GONZALEZ-ALEMAN,
Plaintiff, Appellant,
v.
SECRETARY OF HEALTH AND HUMAN SERVICES,
Defendant, Appellee.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Jaime Pieras, Jr., Senior U.S. District Judge]
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Before
Selya, Cyr and Lynch,
Circuit Judges.
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Fabio A. Roman Garcia on brief for appellant.
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Guillermo Gil, United States Attorney, Rosa E. Rodriguez-Velez,
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Acting Chief Civil Division, Robert M. Peckrill, Assistant Regional
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Counsel, Social Security Administration, on brief for appellee.
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Per Curiam. Felix Gonzalez-Aleman (claimant) appeals
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from a district court judgment affirming a decision of the
Secretary of Health and Human Services finding him not
disabled as of April 28, 1992. For the following reasons, we
vacate and remand.
On September 7, 1990, claimant was involved in a motor
vehicle accident and sustained fractures of the pelvis, left
hip, left femur, and left ankle. On October 25, 1990,
claimant applied for disability benefits alleging that he
could not stand or walk due to these fractures. He also
alleged that sitting caused pain in the pelvic region and
hips. The Social Security Administration 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 after April 27, 1992, claimant's residual
functional capacity increased to a capacity to perform
sedentary work. Since claimant's past work as a machine
operator required more than sedentary exertion, the ALJ
determined that he could not perform this work. The ALJ then
proceeded to step five of the sequential analysis. Relying
on the Grid, the ALJ found that claimant is not disabled
because there is a broad range of unskilled, sedentary jobs
existing in the national economy which he can perform.
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The Appeals Council denied review. Claimant appealed to
the district court which affirmed the Secretary's decision.
This appeal followed.
Claimant argues that the ALJ erred at step three of the
sequential analysis in not finding that he met or equalled
Listed Impairment 1.03 (arthritis of a major weight-bearing
joint), 20 C.F.R. Part 404, Subpt. P, App. 1.1 We disagree.
1
The record does contain some evidence of arthritis in
claimant's left ankle, as well as significant limitation of
movement in this joint. However, although the record
contains X-rays, there is no indication of gross anatomical
deformity of a hip or knee as required by 1.03A.
Similarly, it does not appear that the surgery performed on
claimant's left leg satisfies 1.03B. In any event, given
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1The following condition is listed at 1.03:
1
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. With:
A. Gross anatomical deformity of hip or knee
(e.g. subluxation, contracture, bony or fibrous
ankylosis, instability) supported by X-ray evidence
of either significant joint space narrowing or
significant bony destruction and markedly limiting
ability to walk and stand; or
B. Reconstructive surgery or surgical arthrodesis
of a major weight-bearing joint and return to full
weight-bearing status did 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 claimant's condition neither met nor equalled the
listing. We add that although claimant was continuing to see
his orthopedic surgeon, he proffered no medical opinion to
support his claim that he was still markedly limited in his
ability to walk and his leg had not yet returned to full
weight-bearing status. See Torres v. Secretary of Health &
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Human Servs., 870 F.2d 742, 745 (1st Cir. 1989) (observing
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that it is the claimant's burden to show that he has an
impairment that meets or equals a listing).
Similarly, we reject claimant's argument that the ALJ
could not properly find that his condition improved. The
orthopedic evaluations by examining consultants for the
Secretary reflect steady progress. On January 18, 1991,
claimant could not carry any body weight, and he could not
stand or walk without the use of crutches. On June 25, 1991,
the femur fracture was still healing and claimant required
the assistance of a walker. By April 27, 1992, the femur
fracture was well-healed. Dr. Marrero, who examined claimant
on that date, completed a residual functional capacity
assessment (RFC) which amply supports the 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 upheld under the "substantial evidence" standard.
At this stage in the sequential analysis, the burden shifts
to the Secretary to prove that there are sufficient numbers
of jobs in the national economy that claimant can perform.
See Heggarty v. Sullivan, 947 F.2d 990, 995 (1st Cir. 1991).
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Where claimant's impairments involve only strength
limitations, the ALJ may rely on the Grid to meet its burden.
Id. However, where a claimant has non-exertional
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impairments, the Grid may not accurately reflect the
availability of suitable jobs. Id.
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Dr. Marrero's RFC indicates that claimant has a number
of non-exertional limitations. Most notably, the RFC
indicates that claimant can never climb and is limited in his
ability to be around moving machinery. The narrative
comments do not further illuminate, at least for the lay
reader, the nature or extent of these particular
restrictions. The ALJ does not mention these restrictions at
all 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 the Grid or whether vocational evidence
was required. We note that even sedentary work may require
the ability to ascend or descend stairs on a daily basis.
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See SSR 85-15 (observing that usual everyday activities at
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work include ascending or descending ramps or a few stairs).
Moreover, the Secretary's own regulations state that
approximately 85 percent of unskilled, sedentary jobs are in
the machine trades and benchwork occupational categories. 20
C.F.R. Part 404, Subpt. P, App. 2, 201.00.
Accordingly, a remand is required for further findings
which may in turn require the consideration of vocational
evidence. In light of our disposition we leave to the
secretary to consider in the first instance, to the extent
relevant, claimant's argument that additional non-exertional
limitations found by Dr. Marrero precluded reliance on the
Grid. With respect to claimant's allegation of disabling
pain, however, we note that the ALJ found that claimant's
"subjective symptomatology does not significantly affect or
compromise his ability to do sedentary work." Claimant has
made no meaningful argument that this finding was in error.
Vacated and remanded.
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