USCA1 Opinion
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 97-1193
ALBERTO NAZARIO,
Plaintiff, Appellant,
v.
HHS, COMMISSIONER OF SOCIAL SECURITY,
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
Torruella, Chief Judge,
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Stahl and Lynch, Circuit Judges.
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Salvador Medina De La Cruz on brief for appellant.
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Guillermo Gil, United States Attorney, Lilliam Mendoza-Toro,
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Assistant United States Attorney, and Wayne G. Lewis, Assistant
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Regional Counsel, Social Security Administration, on brief for
appellee.
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October 29, 1997
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Per Curiam. Alberto Nazario appeals from the
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district court's judgment upholding the denial of his
application for Social Security disability benefits by the
Commissioner of Social Security. After a careful review of
the record, we affirm. In this opinion, we address only the
specific claims of error raised by Nazario on appeal.
Nazario contends, first, that the Commissioner
should have found him to be disabled on the ground that his
medical findings were "equal to" to the findings described in
Listings 4.02B and 6.02C. We find his contention
unpersuasive, however, because he does not describe -- and
the record does not disclose -- findings pertinent to each
criterion of those Listings. See Marciniak v. Shalala, 49
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F.3d 1350, 1353 (8th Cir. 1995) (a disability claimant's
failure to show medical findings equivalent to all of the
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Listings criteria defeats a claim of medical equivalence)
(citing Sullivan v. Zebley, 493 U.S. 521, 530 (1990)).
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Next, Nazario challenges the Commissioner's
determination that he could perform light exertional work
despite his impairments. In particular, he claims that the
functional assessments relied on by the Commissioner were not
substantial evidence in support of that determination because
they did not take into account the results of a subsequent
kidney biopsy report and because some of them were rendered
by nonexamining physicians. He also suggests that the
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Commissioner could not determine how serious his impairments
were because certain medical records contained illegible
entries. We conclude that these claims lack merit.
It is true that a residual functional capacity
assessment which does not consider the full medical record
may not constitute substantial evidence. See Frankl v.
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Shalala, 47 F.3d 935, 938 (8th Cir. 1995) (an agency residual
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functional capacity form which was not based on the full
medical record was not substantial evidence). Here, however,
the biopsy report itself stated that the preoperative and
postoperative diagnoses were the "same," and subsequent
progress notes showed no change in Nazario's renal
insufficiency, which was characterized as "stable." Given
the lack of change in Nazario's diagnosis and overall kidney
condition, the functional assessments in the record retained
validity and so constituted substantial evidence in support
of the Commissioner's decision that Nazario was not disabled.
See Gordils v. Secretary of Health and Human Services, 921
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F.2d 327, 330 (1st Cir. 1990) (per curiam) (taken together,
the results of a physical examination of the claimant and a
functional assessment made four months before the examination
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constituted substantial evidence in support of the denial of
disability benefits since the examination showed no objective
evidence of a disabling medical impairment).
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Moreover, we have declined to rule absolutely that
the opinions of nonexamining physicians cannot constitute
substantial evidence. See Rose v. Shalala, 34 F.3d 13, 18
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(1st Cir. 1994). Together with the supporting functional
assessment by a consulting, examining physician and
supporting medical evidence in the record, the nonexamining
physicians' opinions in this case constituted substantial
evidence in support of the Commissioner's determination. See
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Gordils, supra. Furthermore, the medical record overall was
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legible and adequately disclosed the status of Nazario's
various physical impairments, and so there is no need for a
remand. Compare Manso-Pizarro v. Secretary of Health and
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Human Services, 76 F.3d 15, 17 (1st Cir. 1996) (per curiam)
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(remanding a case in which "non-trivial" parts of the medical
record were illegible).
Finally, given his nonexertional limitations (in
particular, an anxiety disorder), Nazario objects to the
Commissioner's reliance on the Grid to show that there was
work in the economy which he could perform despite his
exertional limitations. Because there is substantial
evidence in the record that his nonexertional limitations
would not significantly affect his ability to perform the
full range of light work, we conclude that the Commissioner
could rely on the Grid to support her determination that
Nazario was not disabled. See Heggarty v. Sullivan, 947 F.2d
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990, 996 (1st Cir. 1991) (per curiam) (the Grid may be relied
on if the claimant's nonexertional impairment does not
"significantly" affect his or her ability to perform the full
range of jobs at the appropriate exertional level) (citation
omitted).
Affirmed.
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