USCA1 Opinion
February 5, 1992 ____________________
No. 91-1471
VICTOR J. IRLANDA ORTIZ,
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. Juan M. Perez-Gimenez, U.S. District Judge]
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Before
Campbell, Torruella and Cyr,
Circuit Judges.
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Raymond Rivera Esteves and Juan A. Hernandez Rivera on brief for
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appellant.
Daniel F. Lopez Romo, United States Attorney, Jose Vazquez
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Garcia, Assistant United States Attorney, and Amy S. Knopf, Assistant
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Regional Counsel, Department of Health and Human Services, on brief
for appellee.
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Per Curiam. Claimant, Victor J. Irlanda Ortiz,
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appeals from the judgment of the Federal District Court for
the District of Puerto Rico affirming the decision of the
Secretary of Health and Human Services that claimant was not
entitled to disability benefits. We affirm.
BACKGROUND
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Claimant filed an application for Social Security
disability benefits on August 18, 1983. He alleged an onset
date of 1978 and claimed disability due to problems with his
back, nerves, arms, legs, headaches, stomach and high blood
pressure. Claimant's insured status expired on March 31,
1984. The application was denied initially and upon
reconsideration. On July 31, 1984, after holding a hearing,
an administrative law judge (ALJ) determined that claimant
was not disabled. The case was remanded, however, for
reconsideration under the new mental health regulations
contained in the Disability Benefits Reform Act of 1984.
The same ALJ conducted another hearing and on
December 18, 1987, concluded that claimant suffered from
severe musculoskeletal and mental impairments which prevented
him from returning to his past work as a construction
laborer. The ALJ did not credit claimant's allegations of
pain and found that his emotional problems did not
significantly reduce his ability to perform the full range of
sedentary work. Using the Medical-Vocational Guidelines (the
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Grid), Table No. 1, Rule 201.23, Pt. 404, Subpt. P., App. 2,
as a framework, he found that claimant was not disabled.
The Appeals Council ordered a remand. It directed
the ALJ to reconsider claimant's complaints of pain in light
of Avery v. Secretary of Health and Human Services, 797 F.2d
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19 (1st Cir. 1986). Specifically, the Appeal Council stated
that where the objective medical evidence does not support
the degree of pain alleged by claimant, the ALJ also must
consider the daily activities described by claimant and his
prior work record.
On remand, the ALJ again discounted claimant's
allegations of disabling pain, noting that the record
contained reports in which claimant was described as being in
no physical distress. The ALJ also relied on the fact that
for long periods of time claimant was not in any treatment
for his back problems. The ALJ inferred that had claimant's
pain been as severe as alleged, claimant would have sought
treatment. As for his mental impairment, the ALJ concluded
that a slight difficulty in maintaining social functioning
did not reduce claimant's ability to perform the full range
of sedentary work. Using the same Grid rule, the ALJ
concluded that claimant was not disabled.
On January 19, 1989, the Appeals Council once more
remanded the case to the ALJ. It apparently accepted the
ALJ's conclusions as to claimant's complaints of pain.
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However, it decided that vocational expert testimony was
required to determine the number of jobs available to
claimant given both his exertional and non-exertional
impairments. As a result, the ALJ held a hearing on June 14,
1989 at which a vocational expert (VE) testified. Based on
the Grid as a framework and the answers to the hypothetical
posed to the VE, discussed infra, the ALJ still concluded
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that claimant was not disabled. The Appeals Council denied
claimant's request for review on January 9, 1990. Thus, the
ALJ's decision became the final decision of the Secretary.
Claimant appealed the Secretary's decision to the
district court. The case was referred to a magistrate judge
who determined, without much explanation, that the
Secretary's decision was not supported by substantial
evidence. He therefore recommended vacating the decision.
However, the district court did not adopt this
recommendation. Rather, it affirmed the Secretary's decision
on the ground that the record contained conflicting evidence.
MEDICAL EVIDENCE
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The record reveals that claimant sought treatment
only from the State Insurance Fund (SIF) during the period
for which he was insured. He initially had pursued such
treatment in connection with an accident he sustained at work
in July 1978. The progress notes from the SIF reveal the
following sporadic course of treatment:
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(1) 1978.
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In 1978, claimant was evaluated only once. On
October 19, an examination revealed that there was stiffness
in the lumbosacral paravertebral muscles. The diagnosis was
post-traumatic chronic low back syndrome and herniated
nucleus pulposus (HNP). The note also indicates that
claimant had been under treatment with improvement; however,
there are no medical records that reflect such treatment. At
this time, claimant was placed on anti-inflammatory and
muscle relaxant medication.
(2) 1979.
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In 1979, claimant also was examined only once.
This neurological examination disclosed pain upon palpation
at L4-L5 and positive straight leg raising. Nonetheless,
claimant's reflexes were adequate. An EMG was recommended.
This test was performed in November and was normal.
(3) 1980.
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After a lapse of almost one year, claimant visited
the SIF four times. On September 2, his straight leg raising
was limited to 45 degrees bilaterally but there was no muscle
weakness. The diagnosis was suspected lumbar radiculopathy
at L5 with a herniated disc at L4-L5 and depression with
anxiety. In October, a physiatrist examined claimant and
found marked muscle spasms; again, there was motor weakness.
The diagnosis was chronic painful lumbosacral syndrome.
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However, on November 11, the physiatrist noted that
claimant's condition had improved and on November 24,
claimant's range of motion was preserved, his straight leg
raising was negative bilaterally and there was no sensory or
motor deficits.
(4) 1981.
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Claimant did not receive any treatment for his back
in 1981. A psychiatric evaluation, performed on July 9,
indicated that claimant was insecure, afraid and anxious.
However, he was oriented, his memory was conserved and his
judgment was adequate. Claimant was referred to the mental
health center. There are no records of any mental health
treatment subsequent to this evaluation.
(5) 1982.
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The next note from the SIF, dated January 22, 1982,
indicates that claimant's range of motion of his trunk was
moderately limited but he could walk on his heels and toes.
Straight leg raising was positive. At this time, he was
discharged with 15% disability. A psychiatrist noted, also
in January, that claimant should not undergo a myelogram
until his anxiety neurosis had improved. Claimant's next
visit to the SIF was not until November 29 when he underwent
a psychiatric evaluation to determine whether his mental
impairment was related to his work accident. At this
examination, claimant was logical, coherent, relevant,
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oriented, and realistic. His affect was adequate, his
intellectual capacity average, and his judgment acceptable.
The evaluating psychiatrist diagnosed a generalized anxiety
disorder which, he concluded, was not related to the
accident.
(6) 1983.
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In 1983, claimant's condition improved even though
a CT scan, performed on September 19, showed a herniated disc
at L5-S1. Two further neurological evaluations were
conducted. On November 29, a physiatric examination
disclosed no significant limits on claimant's range of
motion, no pain upon palpation, no significant muscle spasm,
and no deficits in his reflexes. Physical therapy was not
recommended. A note dated December 7 indicates that claimant
reported that he had experienced improvement of his condition
with the use of medications.
(7) 1984.
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Claimant received no treatment for his back in
1984. In January, the SIF re-evaluated claimant's emotional
condition. The reviewing psychiatrist determined that
claimant's anxiety neurosis was related to his back problems.
He also recommended psychotherapy as a means of improving
claimant's mental status to the point where surgery could be
performed. An initial evaluation was conducted on March 6.
Claimant was described as being in good physical condition.
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His thought content was relevant and coherent; his attention
span was good, his present memory was conserved, and he was
oriented. His affect was appropriate, but the evaluating
psychiatrist described him as being uncooperative concerning
the testing of conceptual clarity, mathematic operations, and
his remote memory. The diagnosis was anxiety neurosis. The
final psychiatric report, after five therapy sessions,
indicated only that claimant presented as coherent, logical,
and well oriented; his affect was described as appropriate.
The report indicated that claimant was being treated with
medications.
Apart from the SIF records, there are three other
medical reports relevant to the period of claimant's insured
status. The first is a psychiatric consultation performed on
January 3, 1983. Claimant's wife reported that claimant was
able to take care of his own personal needs, but did not do
any household chores. Claimant's activities were listed as
walking and smoking; he was described as quarrelsome and
irritable. The consulting psychiatrist stated that claimant
had poor muscle tone, but otherwise appeared to be healthy
and in no obvious stress. His gait appeared normal. The
mental status exam revealed that claimant was uncooperative,
answering few of the doctor's questions. Nonetheless,
claimant's speech was clear, there were no perceptual
disturbances and his ideas were goal oriented. His thought
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processes were logical, coherent, organized and relevant.
The psychiatrist could not test claimant's cognitive
abilities because he refused to respond to the questions.
She concluded that claimant's mental problems were "part of a
life long pattern of personality traits that are maladaptive
and inflexible, producing impairment in social and
occupational adjustment." Although claimant's prognosis was
viewed as "guarded," the doctor also noted that personality
deterioration was "slight." She did not indicate whether
psychiatric treatment was indicated.
The second evaluation, conducted just after
claimant's insured status had expired, was performed by a
neurologist at the behest of claimant's attorney. This
physician noted that there were no motor weaknesses or
atrophy and no sensory deficits in claimant's extremities.
His reflexes were normal and straight leg raising was
negative bilaterally, although claimant experienced some pain
in his left leg at 80 to 90 degrees. He could walk on his
heels and toes but only with some limping. There was only
mild tenderness to palpation in the lumbar area. The
diagnosis was chronic low back pain syndrome. The doctor
concluded that claimant could not perform his prior work.
This examiner also completed a residual functional
capacity (RFC) assessment. Claimant was described as being
able to occasionally lift files or ledgers; his abilities to
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stand, walk and sit were limited to less than six hours each
in an eight-hour workday. He could occasionally climb,
balance, stoop, kneel, crouch and crawl. His capacity for
reaching and handling was unlimited. However, claimant could
not use heavy effort to push or pull.
Finally, a non-examining consultant reviewed the
record and completed a mental RFC assessment. This physician
diagnosed an affective disorder characterized by anxiety,
tension and sadness which resulted in slight restrictions in
daily living activities and moderate limits in social
functioning. She determined that claimant was not
significantly limited in his abilities to remember work-like
procedures and to understand, remember and carry out short
and simple instructions. Claimant also had minimal
limitations in sustaining an ordinary routine without special
supervision, asking questions and requesting assistance,
maintaining socially appropriate behavior and traveling
alone. There was no evidence of limitations in claimant's
abilities to respond to changes in his work setting and to
make simple work-related decisions.
Claimant had moderate limits, however, in his
abilities in maintaining concentration for extended periods
of time, performing within the confines of a schedule,
maintaining regular work attendance, being punctual and being
able to complete a normal work week without interruptions due
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to psychologically based symptoms. He also had moderate
limits in interacting with the general public, accepting and
responding to criticism and getting along with coworkers
without distracting them.
Based on this evidence, the ALJ presented the VE
with the following hypothetical: an individual who is
limited to sedentary work where he can alternate positions
and who is attentive, cooperative, passive, coherent,
relevant, oriented, able to concentrate on and carry out
simple instructions and able to relate to coworkers and
supervisors, but unable to deal with the general public. The
VE testified that such an individual could be a packer,
sorter, classifier, assembler of small parts, or labeler in
the electronics field. The ALJ then added to the
hypothetical claimant's subjective complaints of constant
back pain which prevents him from concentrating, marked
anxiety and fear, poor memory and marked difficulty in
relating to others. To this hypothetical the VE replied that
claimant would have problems in complying with the minimum
requirements of the above jobs.
DISCUSSION
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The Social Security Act provides that the factual
findings of the Secretary shall be conclusive if supported by
"substantial evidence." 42 U.S.C. 405(g). "We must uphold
the Secretary's findings . . . if a reasonable mind,
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reviewing the evidence in the record as a whole, could accept
it as adequate to support his conclusion." Rodriguez v.
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Secretary of Health and Human Services, 647 F.2d 218, 222
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(1st Cir. 1981). It is the responsibility of the Secretary
to determine issues of credibility and to draw inferences
from the record evidence. Id. Indeed, the resolution of
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conflicts in the evidence is for the Secretary, not the
courts. Id.
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We find substantial evidence in the record to
support the finding that claimant's exertional impairments
did not preclude him from performing sedentary work.
Claimant maintains that his back pain resulted in more severe
strength limitations. It is true that there is an objective
medical impairment -- a ruptured disc at L5-S1 -- that can
reasonably be expected to produce pain. Avery, 797 F.2d at
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21. Yet, we believe the ALJ did not err in deciding that
claimant's complaints were not credible to the extent
alleged. More than a few of the evaluations from the SIF
found claimant with no motor or strength weaknesses and
little spasm. Indeed, the last SIF note of record concerning
claimant's back, made after the CT scan that resulted in a
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diagnosis of a ruptured disc, indicates that claimant had
improved, experienced no pain on palpation and demonstrated a
good range of motion.
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Further, the record reveals that claimant
apparently did not receive any treatment for his back in 1981
and 1984; he was seen only once in 1979 and once in 1980. We
view these gaps in the medical record as "evidence." The
Secretary concluded that this evidence conflicted with
claimant's allegations of unrelenting pain. The Secretary
then drew the inference that claimant would have secured more
treatment had his pain been as intense as alleged. As we
stated, the resolution of conflicts in the evidence and the
drawing of conclusions from such evidence are for the
Secretary. See Rodriguez, 647 F.2d at 222. We accordingly
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accept the Secretary's determinations relating to claimant's
exertional impairments.
Claimant's non-exertional impairment -- his mental
condition -- presents a closer case. The ALJ determined that
claimant's anxiety disorder reduced the full range of
sedentary work only to the extent that claimant could not
deal with the general public or perform complex or detailed
tasks. This conclusion was reflected in the hypothetical the
ALJ posed to the VE. She responded by listing several
unskilled jobs such an individual could perform.
Social Security Ruling (SSR) 85-15 contains two
sets of mental capabilities required for unskilled work. The
first group includes the abilities to understand, remember
and carry out simple instructions, to respond appropriately
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to the normal work environment and to deal with changes in a
routine work situation. The SIF psychiatric evaluations
describe claimant as being coherent, relevant and oriented;
his judgment and attention span were described as adequate.
The consultative psychiatric examiner reached similar
conclusions. As for the RFC form completed by the non-
examining physician, it specified that claimant could
perform simple work tasks, follow an ordinary routine,
request assistance and handle changes in the work-place
setting.
The second inquiry concerns a claimant's ability to
cope with the demands of any work environment. SSR 85-15
states that these demands include the need to be punctual and
to attend work on a regular basis, the ability to accept
supervision and the capacity to remain in the work place for
an entire day. Although the SIF evaluations and the
psychiatric consultation did not address these issues, the
physician who completed the RFC assessment indicated that
claimant was moderately limited in these areas of
functioning. Such limitations possibly erode the
occupational base available to claimant and could affect the
performance of even the jobs listed by the VE. See Ortiz v.
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Secretary of Health and Human Services, 890 F.2d 520, 527
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(1st Cir. 1989). The question is how much the range of
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sedentary, unskilled work is decreased. See id.
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Although the record arguably could support a
different conclusion, we believe there is substantial
evidence to support the Secretary's decision that claimant's
capacity for the full range of such work was not
significantly reduced. Thus, we must uphold his decision.
See Rodriguez Pagan v. Secretary of Health and Human
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Services, 819 F.2d 1, 3 (1st Cir. 1987), cert. denied, 484
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U.S. 1012 (1988). Apart from the conclusions of the non-
examining physician, there is no other indication that
claimant's ability to accommodate routine work demands was
inadequate -- either slightly, moderately or markedly.
Moreover, aside from the five therapy sessions
claimant attended through the SIF, there is no record of any
other mental health therapy during his insured status. As a
result, there is no way of telling whether psychiatric
treatment could have improved these "marked" limitations. We
do not think that a claimant with a diagnosed impairment may
assert entitlement to disability benefits without at least
securing a determination concerning what, if any, treatment
options are available to him or her. Indeed, "[i]mplicit in
a finding of disability is a determination that existing
treatment alternatives would not restore a claimant's ability
to work." Tsarelka v. Secretary of Health and Human
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Services, 842 F.2d 529, 534 (1st Cir. 1988) (per curiam). As
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we described in Tsarelka, the Social Security regulations
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specifically provide that to qualify for benefits a claimant
must follow prescribed treatment. Id. (citing 20 C.F.R.
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404.1530(a), (b)). The lack of any evidence of sustained
treatment in this case only bolsters our decision that the
record adequately supports the Secretary's final conclusion
that claimant was not disabled.
Affirmed.
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