USCA1 Opinion
November 10, 1993 [NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 93-1151
LUIS SANCHEZ-QUILES,
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., U.S. District Judge]
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Before
Breyer, Chief Judge,
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Selya and Boudin, Circuit Judges.
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LCDA. Cristina Munoz Gandara on brief for appellant.
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Daniel F. Lopez-Romo, United States Attorney, Jose Vazquez
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Garcia, Assistant United States Attorney, and Jessie M. Klyce,
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Assistant Regional Counsel, Region I, Department of Health and
Human Services, on brief for appellee.
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Per Curiam. Claimant Luis Sanchez-Quiles appeals from a
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district court judgment which affirms the decision of the
Secretary of Health and Human Services denying his claim for
social security disability benefits during the insured period
between July 2, 1971 and December 31, 1974. Claimant alleges
that he suffered from severe back, heart, and mental impairments
during that time period. We have thoroughly reviewed the
record and the parties' briefs on appeal and are persuaded that
the Secretary's decision is supported by substantial evidence.
Claimant's contention that the combination of his back, heart,
and mental impairments was, in essence, equivalent to the
listings for vertebrogenic, heart, and somatoform disorders, is
meritless. Findings of medical equivalence must be based on
"medical findings that are at least equal in severity and
duration to the listed findings." 20 C.F.R. 404.1526.
Claimant's alleged impairments are not supported by medical
findings from the insured period that approximate the
aforementioned listings in severity or duration.
Claimant's contention that the ALJ erred by failing to
evaluate his pain as a nonexertional impairment also is
unavailing. To be sure, "[p]ain may be a nonexertional factor to
be considered in combination with exertional limitations, even
though it may also serve as a separate and independent ground for
disability." Da Rosa v. Secretary of Health and Human Services,
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803 F.2d 24, 26 (1st Cir. 1986)(per curiam). "Where pain is
considered as a separate ground for disability ... it must be
severe enough to prevent the claimant from engaging in any
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substantial gainful employment. Where pain is considered in
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combination with exertional limitations, however, it need only be
found significant enough to prevent the claimant from engaging in
the full range of jobs contemplated by the exertional category
for which the claimant otherwise qualifies." Gagnon v. Secretary
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of Health and Human Services, 666 F.2d 662, 666 n. 8 (1st Cir.
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1981).
The ALJ found that claimant's complaints of pain were
credible only to the extent that they precluded the performance
of more than sedentary work because (1) the medical evidence
concerning his back impairment, particularly Dr. Arturo Feria's
report, disclosed a full range of motion, little in the way of
positive clinical findings, and an inability to "work hard, carry
light weights, and climb scaffolds and stairs," (2) the medical
evidence disclosed no objective basis for claimant's chest pain
complaints, since his myocardial infarction did not occur until
June 1975, and a "careful study" of progress notes indicated that
claimant's pain was "occasional," (3) claimant's activities
during the insured period, which included multiple trips between
the United States and Puerto Rico, and claimant's testimony that
he experienced at least some relief with medications, indicated
that claimant's pain allegations were not fully credible.
It is true that the ALJ did not explicitly address
claimant's pain as a nonexertional limitation. Nevertheless, we
think his decision implies that claimant's pain did not
significantly reduce his access to jobs at the sedentary level
and thus did not preclude reliance on the grid.1 So construed,
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1 Where "a nonexertional limitation ...[is] found to impose
no significant restriction on the range of work a claimant is
exertionally able to perform, reliance on the Grid remains
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the ALJ's decision is supportable. The record indicates that
claimant sought treatment for back pain on only two occasions
(August and November) in 1971 and two occasions (March and
September) in 1972. There appears to be a significant gap in
treatment between September 1972 and August 1983.2 The 1974
records indicate that claimant sought treatment more frequently
but not so much as to suggest the presence of a continuous
impairment. In short, the AlJ's conclusion that claimant's pain
was "occasional" appears to be correct.3 The claimant's
description of his daily activities (which noted that he took
care of the house, wife and children and could drive), the fact
that he could travel, and his admission that he experienced some
relief with medication all tend to support the ALJ's conclusion
that the sedentary work base was essentially intact during the
insured period.
Thus, claimant's contention that the ALJ erred by failing to
consider his pain as a nonexertional limitation ultimately fails.
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appropriate." Ortiz v. Secretary of Health and Human Services,
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890 F.2d 520, 524 (1st Cir. 1989)(per curiam).
2We note that some of the records that the ALJ relied upon
are not in the record before us, thus this gap may not be as
significant as the record presently suggests. But claimant has
not pointed out any records which suggest that his condition
became more dire during this period. Nor has he challenged the
ALJ's description of the missing records. Accordingly, we have
assumed that the ALJ's description is correct.
3The ALJ might be faulted for discounting the evidence of
claimant's chest pain on the ground that his myocardial
infarction did not happen until 1975. The record suggests that
claimant may have received treatment for a heart condition as
early as January-February 1975. (Tr. 291-92, 323-24). Even if
he did not, common sense suggests that claimant's ischemic heart
disease did not appear overnight, and that at least some of
claimant's complaints of chest pain during the insured period may
have resulted from his heart condition. But the record does not
show that this pain was disabling during that time.
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The ALJ's decision implies that claimant's pain was not so
persistent or severe as to significantly reduce the sedentary
occupational base. Even if the ALJ's decision is not so
construed, there is no error in failing to consider pain as a
nonexertional impairment where an ALJ reasonably discredits the
claimant's testimony concerning the limitations imposed by back
pain and other restrictions. See Frustaglia v. Secretary of
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Health and Human Services, 829 F.2d 192, 195 (1st Cir. 1987)(per
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curiam). Thus, we may conclude that there was no error in the
ALJ's assessment of the disabling effects of claimant's pain.
Claimant also faults the ALJ for failing to consider his
mental impairment as a possible explanation for his pain, and in
applying the grid despite the presence of significant,
nonexertional pain and mental impairments. We have already
addressed the claimant's pain. The sole evidence in the record
concerning an alleged mental impairment during the insured period
states simply "[rule out] psychosomatic disorder." (Tr. 222).
This is plainly insufficient to establish the presence of a
mental impairment that was significant enough to impede
claimant's access to the sedentary occupational base. While the
record includes more frequent references to anxiety and neurosis
after claimant's myocardial infarction was diagnosed in 1975, it
was the claimant's burden to prove that he became disabled before
his insured status expired. Cruz v. Secretary of Health and
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Human Services, 818 F.2d 97, 98 (1st Cir.), cert. denied, 497
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U.S. 1042 (1987). This he failed to do. Accordingly, the
judgment of the district court is affirmed.
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