USCA1 Opinion
October 22, 1993 [NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 92-2445
SAUL BAEZ-HERNANDEZ,
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. Hector M. Laffitte, U.S. District Judge]
___________________
____________________
Before
Breyer, Chief Judge,
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Selya and Stahl, 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 Robert M. Peckrill,
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Assistant Regional Counsel, Department of Health and Human Services,
on brief for appellee.
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____________________
Per Curiam. Claimant Saul Baez Hernandez appeals
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from the district court judgment affirming the decision of
the Secretary of Health and Human Services that claimant is
not entitled to Social Security disability benefits.
I. PROCEEDINGS BELOW
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Claimant filed an application for Social Security
disability benefits on March 10, 1986. He alleged an onset
date of January 25, 1985 when he hurt his back at work; he
listed as his impairments back and nervous conditions.
Claimant returned to work on November 16, 1988. His
application was denied by an administrative law judge (ALJ)
in July 1987 and the Appeals Council rejected claimant's
request for review. While the case was pending in the
federal district court, the Secretary of Health and Human
Services requested a remand. Pursuant to this remand, the
Appeals Council ordered that a second hearing be held with
the testimony of a vocational expert (VE). At the hearing,
held on November 16, 1988, it appears that no such expert
testified. A different ALJ determined that claimant was not
disabled. The Appeals Council, on March 20, 1989, ordered
yet another hearing; it determined that claimant's
limitations significantly affected his ability to perform the
full range of light and sedentary work. It ordered that a VE
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testify as to the existence of jobs that claimant could
perform.
On June 22, 1989, after holding the third hearing,
at which a VE testified, the ALJ who first had considered
claimant's application determined that claimant was not
disabled. He found that claimant suffered from severe
lumbosacral strain. As for claimant's complaints of totally
disabling pain, the ALJ concluded that while credible when he
first injured his back, there was no convincing evidence of
continuing severe pain. Thus, the ALJ credited the
allegations of pain to the extent that claimant was
prohibited from engaging in heavy work. He therefore could
not perform his past work as a truck driver and delivery man
which involved the carrying of heavy appliances.
However, according to the ALJ, claimant retained
the capacity for the full range of light work limited only by
his need to alternate positions; claimant further was limited
because he could bend only occasionally and could not use
repetitive foot movements. The ALJ found that claimant did
not have any nonexertional impairments. Given his acquired
work skills such as following instructions and counting,
claimant was able to perform semi-skilled work activities
such as a stock person in a warehouse -- the job to which
claimant had returned in November 1988.
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The Appeals Council, upon claimant's request for
review, affirmed the decision of the ALJ that claimant was
not entitled to disability benefits. The Council did modify
the ALJ's decision in one respect by finding the presence of
a nonexertional impairment. However, this impairment did not
significantly limit claimant's ability to do work-related
activity. On appeal to the district court, a magistrate-
judge recommended that the matter be remanded for further
administrative proceedings. Nonetheless, the district court
judge affirmed the Secretary's decision. This appeal ensued.
II. DISCUSSION OF THE MEDICAL EVIDENCE
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A. Back Impairment
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The evidence concerning the nature and extent of
claimant's back impairment is conflicting. In total, six
consultative evaluations were conducted between 1985 and
1988. In addition, claimant received treatment at the State
Insurance Fund (SIF) from January 1985 through April 1988.
See Exhibits 17 and 36. According to SIF records, a C-T Scan
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performed in August 1985 revealed a narrowing of the disc
space at L5-S1 with a disc herniation to the right and a
small lateral disc herniation to the left at L4-L5. In
August 1985, a physiatrist at the SIF examined claimant and
found that claimant could not squat, had pain upon palpation
and upon flexion and lateral movement of the trunk. During
1985, claimant continued with these symptoms. However, an
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SIF physician in September of 1985 noted that claimant's pain
appeared only upon exercise or prolonged periods of sitting
or standing. At this examination, he found no radiculopathy
and that claimant's gait was normal.
In March 1986, a follow-up report indicated that
claimant evinced little interest in engaging in vocational
rehabilitation. In June 1986, a vocational evaluator
reported that despite claimant's complaints of testicular
pain, headaches and pain in his fingers, neck, low back and
legs, claimant was able to lift up to twenty pounds.
Although he had trouble bending forward and experienced
difficulties kneeling and squatting, he could sit and stand
for sufficient lengths of time so that with a job that
allowed him to change position, he could perform light work.
Thus, claimant was noted as having "great" rehabilitative
potential.
Turning to the consultative medical evaluations, we
find it necessary for the disposition of this appeal to
review only those upon which the VE based his opinions as to
appellant's physical abilities. In August 1988, an internist
found no swelling, no muscle atrophy and normal reflexes.
See Exhibit 41. There was diminished pinprick sensation in
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claimant's left leg. The diagnosis was fibromyositis of the
lumbosacral spine with spasms and discogenic disease at L5-
S1. The residual functional capacity (RFC) form indicated
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that claimant could lift a maximum of 50 pounds on occasion,
could stand or walk for four to six hours at a time and could
sit for up to four hours so long as he could alternate
positions. Claimant could frequently climb and balance and
could occasionally stoop, kneel, crawl and crouch.
A neurologist, also examining claimant in August
1988, found claimant with a normal spine, full strength,
normal tone and no evidence of atrophy or radiculopathy. See
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Exhibit 42. Claimant had limited trunk movements and
although he showed signs of sensory deficit, they did not
follow any anatomical distribution. An X-ray revealed a
narrowing of the L5-S1 disc space and lumbar spasm. The
diagnosis was chronic back pain. In the RFC evaluation, the
neurologist determined that claimant could lift a maximum of
50 pounds. He could stand and walk without any limits, but
could sit for an uninterrupted time for only three to four
hours in a work day. Claimant had no limits in kneeling,
crouching, crawling, climbing or balancing. He was limited
in his ability to push or pull.
In contrast to the above is the report of an
evaluation performed by a neurologist on January 28, 1987.
See Exhibit 20. This examiner found lumbar dextroscoliosis,
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marked lumbosacral paravertebral muscle spasm and tenderness
to palpation. Claimant had limited range of motion and could
bend forward only 30 degrees. The diagnoses were as follows:
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(1) herniated nucleus pulposus (HNP) at L4-L5 and L5-S1; (2)
bilateral intractable S1 radiculopathies; (3) severe, chronic
lumbosacral myositis and myofascial pain; and (4) lumbar
facet axial injury and pain syndrome. The report's
conclusions were that claimant's musculoskeletal and spinal
conditions, along with nerve root involvement, contributed to
"severe functional spinal limitation in all of the range of
lumbar movements." As a result, claimant's ability to
maintain a fixed position for a substantial period of time
was limited; further, claimant's constant pain was
exacerbated by physical exertion. Thus, he was precluded
from engaging in "any type of gainful activity whatsoever."
According to this doctor, claimant was in "dire need" of
treatment.
At the last hearing, the ALJ asked the VE his
opinion of what type of work claimant could perform. The VE
responded that if one used only Exhibit 20, claimant would
not be able to engage in any substantial gainful activity due
to his functional limits and severe pain. However, based on
the RFC forms completed by the other two examiners, claimant,
although precluded from heavy work such as his last job,
could perform moderate work. The VE reached this conclusion
even taking into account claimant's pain and decreased
abilities in sitting, standing or walking for long periods of
time.
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Claimant argues that the ALJ did not credit his
complaints of pain. We do not agree. The VE in describing
claimant as being able to engage in moderate work
specifically referred to pain as a component of claimant's
profile. The ALJ went further than the VE, deciding that
claimant could perform only light work where he could
alternate positions.1 This finding was based in part on the
fact that claimant's pain as well as his other conditions
required this kind of flexibility. Although the reports were
conflicting as to whether claimant's pain was totally
disabling, such conflicts are for the ALJ, not the courts, to
resolve. See Rodriguez v. Secretary of Health and Human
___ _________ _______________________________
Services, 647 F.2d 218, 222 (1st Cir. 1981). Thus, we find
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that there was substantial evidence to support the ALJ's
conclusion that claimant could perform the demands of light
work.
2. Mental Impairment
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Whether claimant's emotional impairment is
disabling is a closer question. He began experiencing
emotional problems after he injured his back. He received
treatment for these problems at the Carolina Mental Health
Center from March 1986 through February 1988. See Exhibits
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1. For some reason, claimant argues that the ALJ erred by
relying on the grid and that the testimony of a VE was
required. It appears that claimant bases this contention on
the first decision rendered by the ALJ in July 1987, rather
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than the most recent decision of June 1989.
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18 and 37. At his initial evaluation, claimant stated that
he had trouble sleeping, was irritable, lost his temper with
his children, experienced headaches and some visual
hallucinations at night. The diagnosis, at this time, was an
adjustment disorder with depression; the prognosis was good
with out-patient counseling recommended. Clinic notes
indicate that during 1986, claimant evinced little
cooperation with treatment; he stated that he was there only
for the purpose of obtaining medication to help him sleep.
His case was terminated in January 1987, no real changes
having occurred. However, in December 1987, claimant was re-
admitted to the out-patient program with the same complaints.
At this time, claimant was cooperative, goal-directed,
relevant and his thought processes were intact. Again,
little gain appears to have been made with treatment and the
record reflects that his last visit was in February 1988.
Claimant underwent four psychiatric evaluations --
two in 1986 and two in 1987. All the examiners agreed that
claimant was coherent, logical, relevant and oriented. See
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Exhibits 15, 17, 38 and 40. Despite his subjective
complaints of hallucinations, all four examiners also agreed
that his thought processes were intact with no evidence of
psychotic perceptions. Although two examiners noted some
impairment with recent and immediate memory, see Exhibits 17
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and 40, this was not perceived as a major problem and all
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four agreed that claimant's judgment was, at a minimum,
adequate. Similarly, all four examiners agreed that claimant
was anxious and distracted, with three observing that
claimant appeared depressed. See Exhibits 15, 38 and 40.
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The most common diagnosis was depression related to
claimant's accident.
The evaluators differed as to the effect of
claimant's mental condition or his ability to function at
work. A psychologist who tested claimant for the SIF, see
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Exhibit 17, determined that claimant had a borderline IQ of
76. His vocational test scores revealed a strong interest in
manual activities. Despite the presence of "mild to
moderate" anxiety which affected claimant's concentration,
the psychologist believed that this condition was treatable
on an out-patient counseling basis. Claimant's work
prognosis was "very much acceptable" and "his emotional state
and his intellectual capacities" were "appropriate" for
vocational rehabilitation.
However, the one examiner who completed a mental
RFC assessment, see Exhibit 40, rated claimant's abilities to
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function in the following areas as "poor or none" (defined on
the RFC form as "[n]o useful ability to function"): (1)
following work rules; (2) relating to co-workers; (3) dealing
with the public; (4) interacting with supervisors; (5) coping
with work stresses; (6) maintaining concentration; (7)
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handling detailed or complex job instructions; (8) behaving
in an emotionally stable manner; and (9) demonstrating
reliability. His abilities to use judgment, function
independently and relate predictably in social situations
were "fair" -- defined as "seriously limited, but not
precluded." Claimant had good ("limited but satisfactory")
abilities in the areas of understanding, remembering and
carryingout
simpleinstructions
andinmaintaining
personalappearance.
Two non-examining doctors completed RFC assessments
in 1986. See Exhibit 14. They agreed that claimant had no
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significant limits in the following activities: (1)
remembering locations and work procedures; (2) understanding,
remembering and carrying out very short and simple
instructions; (3) making simple work-related decisions; (4)
asking simple questions; (5) requesting assistance; (6)
acting in a socially appropriate manner; and (7) responding
appropriately to changes in the work place. Both also viewed
claimant as being moderately limited in his capacity to
maintain a normal work week without interruptions due to
psychological symptoms, to accept criticism and to get along
with co-workers. These same evaluators, on the "B" criteria
of the Psychiatric Review Technique (PRT) Form, rated
claimant as slightly limited in daily living activities and
moderately limited in social functioning; claimant seldom
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experienced problems with concentration and never had
episodes of deterioration at work or in work-like settings.
In 1988, two non-examining physicians also
completed PRT forms. They opined that although claimant was
anxious and depressed, his emotional condition was not
severe. See Exhibit 35. As for the "B" criteria, claimant
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had slight limitations in daily living and social
functioning, seldom experienced problems with concentration
and never had problems with deterioration at work or in work-
like settings.
The ALJ also questioned the VE concerning the above
evidence. Again, the VE pointed out that the evidence was
conflicting and the conclusions as to claimant's work
abilities were dependent on what medical reports one
utilized. Based on the psychiatrist's report and the RFC
evaluation, claimant would not be able to work at all.
However, the other reports, according to the VE, did not
support such a finding of total disability.
Although we do not agree with the ALJ that claimant
did not have any emotional impairment and even hesitate to
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find, as did the Appeals Council, that while such an
impairment did exist, it had no significant effect on
claimant, we believe that there is substantial evidence to
support the conclusion that claimant was not precluded from
work. We first note, however, that the findings of moderate
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limitations in accommodating the demands of a work setting --
i.e., regular attendance and the completion of a work-week
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without interruption -- can erode the occupational base, at
least marginally. See Ortiz v. Secretary of Health and Human
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Services, 890 F.2d 520, 527 (1st Cir. 1989). Nonetheless,
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given the presence of the RFC assessments indicating that
claimant had the ability to follow simple instructions and
that his attention and concentration were only minimally
affected, along with the RFC assessments that claimant's
emotional impairment was not severe, we cannot say that the
VE's conclusion that claimant could work as a warehouse stock
person was without record support. Although the record could
support a different conclusion, we again emphasize that
conflicts in the record are for the Secretary. See Irlanda
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Ortiz v. Secretary of Health and Human Services, 955 F.2d
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765, 770 (1st Cir. 1991) (per curiam).
III. CONCLUSION
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For the foregoing reasons, the judgment of the
district court is affirmed.
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