Filed: Oct. 08, 2004
Latest Update: Feb. 21, 2020
Summary: Berrios Lopez v. Sec'y of HHS, 951 F.2d 427, 431 (1st Cir.1, Because the claimant here voluntarily waived her right to an, evidentiary hearing and chose to rely solely on the documentary, record, she cannot complain about her resulting inability to cross-, examine the nonexamining consultants.
Not for Publication in West's Federal Reporter
Citation Limited Pursuant to 1st Cir. Loc. R. 32.3
United States Court of Appeals
For the First Circuit
No. 04-1341
CARMEN L. QUINTANA,
Plaintiff, Appellant,
v.
COMMISSIONER OF SOCIAL SECURITY,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Justo Arenas, U.S. Magistrate Judge]
Before
Selya, Lynch and Lipez,
Circuit Judges.
Salvador Medina de la Cruz on brief for appellant.
H.S. Garcia, United States Attorney, Lisa E. Bhatia, Assistant
U.S. Attorney, and Joseph E. Dunn, Assistant Regional Counsel,
Social Security Administration, on brief for appellee.
October 7, 2004
Per Curiam. This appeal from the denial of social
security disability benefits focuses on whether the claimant's
residual functional capacity enables her to do work other than what
she did in the past, and whether, despite the claimant's exertional
(back pain) and nonexertional (asthma and anxiety) limitations,
there remain a significant number of jobs in the national economy
that she could perform. The administrative law judge (ALJ)
answered those questions in the affirmative, and the magistrate
judge, sitting as the district court, see 28 U.S.C. § 636(c),
affirmed.
On appeal, the claimant makes the following arguments:
(1) that the ALJ erred in relying, in part, on residual
functional capacity reports prepared by consultants who had not
examined the claimant, and
(2) that the ALJ erred in concluding that the claimant's
residual functional capacity was not significantly undermined by
her nonexertional impairments and therefore relying on the medical
vocational guidelines (the Grid) to determine that jobs exist that
the claimant can perform.
Given the deferential standard of judicial review applicable here,
see, e.g., Richardson v. Perales, 402 U.S. 389, 399 (1971);
Rodriguez v. Sec'y of HHS,
647 F.2d 218, 222 (1st Cir. 1981),
neither of those arguments warrants reversal.
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Reports by Nonexamining Consultants
Although we have encouraged the Commissioner to obtain a
residual functional capacity report from an examining consultant,
Rivera-Torres v. Sec'y of HHS, 837 F.2d 4, 6 (1st Cir. 1988),
reports from nonexamining, nontestifying consultants are "entitled
to evidentiary weight, which 'will vary with the circumstances,'"
Berrios Lopez v. Sec'y of HHS,
951 F.2d 427, 431 (1st Cir. 1991)
(per curiam) (quoting
Rodriguez, 647 F.2d at 223).1 Greater
reliance on such reports is warranted where, as here, the
nonexamining consultants, Hilario De La Iglesia, Ph.D., and Luis R.
Vecchini, M.D., who prepared the mental residual functional
capacity report, reviewed the reports of examining and treating
doctors before doing so and supported their conclusions with
reference to medical findings. See Berrios
Lopez, 951 F.2d at 431.
In this case, we need not consider whether the
nonexamining psychiatric consultants' report, standing alone,
constitutes substantial evidence to support the ALJ's decision
concerning the claimant's mental residual functional capacity. Cf.
Berrios Lopez, 951 F.2d at 431 (finding such reports sufficient
under similar circumstances). In this instance, the record also
contains comments on the claimant's residual functional capacity by
1
Because the claimant here voluntarily waived her right to an
evidentiary hearing and chose to rely solely on the documentary
record, she cannot complain about her resulting inability to cross-
examine the nonexamining consultants.
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an examining consultant, Dr. Alberto Rodriguez Robles, and two
treating psychiatrists, Dr. Ingrid Alicea-Berrios and Dr. Arias-
Boneta. This is, therefore, not a case in which the nonexamining
consultants' reports were the only evidence of the claimant's
residual functional capacity. Cf. Heggarty v. Sullivan, 947 F.2d
990, 997 (1st Cir. 1991). Nor is it a case in which the only
evidence consists of "raw, technical medical data." Cf. Berrios v.
Sec'y of HHS,
796 F.2d 574, 576 (1st Cir. 1986) (remanding because
there was "nothing in the record, intelligible to a lay person"
anent claimaint's residual functional capacity).
Although the claimant argues that the ALJ should not have
relied on reports of nonexamining consultants, she does not argue
that any particular finding of the ALJ is unsupported by other
substantial evidence in the record. In fact, although the reports
of the examining psychiatrists differ in some details from that of
the nonexamining consultants, both sets of experts seem to agree
with the ALJ's conclusion that, despite her mental impairments, the
claimant retains the capacity to follow simple instructions
involved in unskilled work. The examining psychiatrists' reports
also lend some support to the ALJ's subsidiary findings that the
claimant retains the capacity for social functioning and for
concentration, at least for short periods. Indeed, one of the
claimant's treating psychiatrists reported that, with medication,
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the claimant's self-esteem, independence, and attitude toward life
have improved.
In light of that substantial evidence supporting the
ALJ's decision as to the claimant's mental residual functional
capacity, it is inconsequential that, in some respects, the
examining psychiatrists characterized the claimaint's mental
impairments as imposing more limits than did the nonexamining
consultants. See Berrios Lopez, 951 F.2d at 429. In particular,
the ALJ's discrediting of claimant's claims that she was unable to
do any activities of daily living was warranted, given the
conflicting evidence in the record on this issue. Resolving such
conflicts is for the ALJ, not for a reviewing court.
Rodriguez,
647 F.2d at 222.
Reliance on the Grid
Simply because a claimant suffers from both exertional
and nonexertional impairments does not necessarily preclude using
the Grid to determine whether jobs exist that the claimant could
perform. Rather, where a nonexertional impairment has been
"found to impose no significant restriction on the range of work
a claimant is exertionally able to perform, reliance on the Grid
remains appropriate." Ortiz v. Sec'y of HHS, 890 F.2d 520, 524
(1st Cir. 1989); see also 20 C.F.R. pt. 404, subpt. P, app. 2,
§ 2.00(e)(2). As long as the nonexertional impairment "has the
effect only of reducing th[e] occupational base marginally, the
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Grid remains highly relevant and can be relied on exclusively to
yield a finding as to disability." Ortiz, 890 F.2d at 524.
While use of a vocational expert may be helpful in complex cases,
such use is not required. See Social Security Ruling 96-9p,
Determining Capability to Do Other Work–-Implications of a
Residual Functional Capacity for Less than a Full Range of
Sedentary Work,
1996 WL 374185, at *9 (S.S.A. July 2, 1996).
Here, considering only the claimant's exertional
limitation (back pain), which allowed her to do "medium" work, in
combination with her age (45, which is considered a "younger
individual," 20 C.F.R. § 404.1563(c)) and her education (high
school graduate), the Grid would dictate a finding of no
disability. See 20 C.F.R. pt. 404, subpt. P, app. 2, table 3.
This is so regardless of the claimant's previous skilled-work
experience. See id., rules 203.25-203.31. Therefore, that the
claimant's mental impairments limit her to unskilled work makes
no difference in the number of jobs available.
The claimant argues that her limitations in social
functioning would make her unable to get along with supervisors
and coworkers and would therefore so restrict her ability to do
unskilled work as to require a vocational expert to determine
whether sufficient jobs exist that she could perform. However,
the ALJ expressly found that the claimant can "relate normally to
co-workers and supervisors." That finding is supported by
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substantial evidence in the record, including the claimant's own
statements. Even claimant's treating psychiatrist rated the
claimant's social functioning as only "moderately limited" in
most respects.
Nor should the claimant's inability to be exposed to
extreme temperatures, chemicals, dust, fumes, and gases–-due to
her asthma–-reduce, more than marginally, the broad occupational
base generally available to a younger individual with a high-
school education who is able to do medium, light, or sedentary
work. See See SSR 96-9p, supra,
1996 WL 374185, at *9
(explaining that "[e]ven a need to avoid all exposure to these
conditions would not, by itself, result in a significant erosion
of the occupational base for sedentary work"). As noted by the
ALJ, that base includes approximately 2,500 separate sedentary,
light, and medium occupations, each of which represents numerous
jobs in the national economy. See 20 C.F.R. pt. 404, subpt. P,
app. 2, § 203.00).
We need go no further. For the reasons stated above,
we conclude that the Commissioner's decision was supported by
substantial evidence.
Affirmed.
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