USCA1 Opinion

September 23, 1992

[NOT FOR PUBLICATION]

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

___________________
No. 92-1460

CARMEN TORRES,
Plaintiff, Appellant,
v.
SECRETARY OF HEALTH AND HUMAN SERVICES,
Defendant, Appellee.
__________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Jaime Pieras, Jr., U.S. District Judge]
___________________
___________________
Before
Torruella, Cyr and Stahl,
Circuit Judges.
______________
___________________

Salvador Medina De La Cruz on brief for appellant.

__________________________
Daniel F. Lopez Romo, United States Attorney, Jose Vazquez
_____________________
____________
Garcia, Assistant United States Attorney, and Nancy B. Salafia,
______
________________
Assistant Regional Counsel, Dept. of Health & Human Services, on
brief for appellee.

__________________
__________________

Per Curiam.
__________
fibromyositis,

Claimant contends she

muscle spasm,

is disabled due

and thoracic

to

outlet syndrome.

The secretary disagreed, concluding that while claimant could

not

return

to her

certain sedentary

former

secretarial work,

jobs identified by a

response to a hypothetical

decision denying benefits was

ALJ

without any
residual

could do

vocational expert in

question and consequently was not

entitled to disability benefits.

First, the

she

Claimant contends that the

faulty in three main respects.

impermissibly interpreted

expert medical assistance

functional capacity (RFC).

raw medical

to assess

data

claimant's

Second, the RFC the ALJ

arrived

at

is not

failed

adequately

complaints.
her

supported
to

substantial evidence

consider

Third, the ALJ

hands repeatedly

by

subjective

concluded claimant could not use

for fine

include this limitation

claimant's

and

manipulation, but

failed to

in the hypothetical posed to the VE.

Consequently, the VE's testimony can not serve as substantial

evidence

to

maintains.

support
We

the

review

denial

the

of

evidence

benefits,

claimant

and

turn

then

to

claimant's arguments.
I.
Claimant worked as a
she

claims, the pain in

secretary until October 1987 when,

her neck, arms,

and back prevented

her from continuing.

-2-

The

first

medical

report

is

from

Dr.

Kindy,

an

orthopedic surgeon, who examined claimant in January 1988 and

reported
carrier.

his

results

to

claimant's

Claimant complained

employer's

of numbness in

insurance

both trapezii

and pain

in the arms,

persisted,
the

neck, back

worsening, for over a

cervical and

discomfort,"

and

complete with
evaluation

lumbar

by a

year.

back was

range of

"minimal

and legs.
Range

of

stiffness."

"moderate

the extremities
Dr. Kindy

and said

had

of motion of

complete with

motion

neurologist

The pain

was

recommended

claimant could

then

return to work.
Claimant saw
next

month.

a neurologist,

In addition

to the complaints

Kindy, Dr. Ramirez noted

sensation)

of

the

frequently dropping
gait,

no

and arm

things.

Dr.

sitting

of cervical

tenderness

to

pressure

limitation

of

motion.

fibromyositis

reported to Dr.

weariness
Ramirez

and

girdle

thoracic

His impression

contemplated,"

and

and

in

normal

no

motor,

He noted hardening and

shoulder

at

resulting

reported

or standing,

sensory, or cerebellar abnormalities.

tenderness

the

complaints of paresthesia (abnormal

limbs

difficulty

Dr. Ramirez Vincenty,

he

spine,
was

muscles,
but

without

"chance[]

projected

and

of

"good"

prognosis.
Beginning in April 1988, claimant began physical therapy
with

Dr. Garcia

and physiatrist

-3-

Dr. Martinez

Deliz.

The

first report
spasm

(4/12/88) noted

x-ray evidence of

neck muscle

and straighted cervical spine, but found full range of

motion, though
thoracic

with tenderness.

myositis.

claimant's

The

complaints

bilateral posterior

of

diagnosis was cervical

notation (4/26/88)

foot

spurs.

slowly" with therapy.

neck.

next

The

pain and

In May,

reported

swelling

due

to

claimant was "improving

"Moderate tenderness" continued in the

On May 24, 1988, Dr. Garcia executed a return to work

certificate
1988.

stating claimant

In August 1988,

could resume

work on

Dr. Martinez conducted

May 30,

an EMG study

and reported bilateral thoracic outlet syndrome.

Dr. Garcia
treating

referred claimant

claimant

in

late

May

to Dr. Acosta,
1988.

Dr.

who began

Acosta noted

cervical and lumbar joint pain, morning stiffness in neck and

shoulders,

limitation of

hypoesthesia
stimulation)
sensation

flexion-extension in

(abnormally
of

such

both
as

decreased

hands

with

sensitivity

paresthesia

tingling), respiratory

minimal exertion, and

edema of

"rheumatism-rheumatic

fibromyalgia"

lumbar zone,

and

(abnormal

difficulty

both ankles.

He

upon

diagnosed

prescribed

relaxants (flexeril) and other medications.

to

muscle

On May 26, 1988,

about the time Dr. Garcia said claimant could return to work,
Dr. Acosta filled

out a similar return

but projected the return date to

to work certificate,

be July 15, 1988 in view of

severe back muscle spasm and fibromyalgia.

-4-

In
form.

May 1988,

claimant filled

Questioned

out a

disability report

about her ability to do

household chores,

claimant said she did work at

to care for

and no one

great pain.

The only household

do was ironing.

home as she had three children

to help her,

caused

task she said she could

not

She drove in emergencies at the time.

Dr. Acosta saw claimant monthly.

largely

but the effort

illegible, but

notations of

His progress notes are

hand numbness

in June

1988 and spasm in August and September 1988 are discernible.

Dr. Carreras examined claimant in August 1988.
normal.

Motor, sensory,

and cerebellar systems were intact.

A test for

thoracic outlet syndrome was

tenderness

to

trapezius muscle

palpation

of

was noted.

"postural

cervical

secondary

bilateral

myositis
thoracic

chronic lumbar strain."

Gait was

the

positive.

right

neck

Dr. Carreras's
[muscle
outlet

Moderate

muscles

and

impression was

inflammation]
syndrome"

and

with
"mild

In September 1988,

Dr. Acosta (the

treating physician)

filled out an "Attending Physician's Statement of Disability"

supplied by claimant's employer's insurance
the four month period
diagnosis

was

May 1988 through September 1988.

bilateral

thoracic

fibromyalgia, and back muscle spasm.

"very

much" improved

carrier covering

during that

outlet

His

syndrome,

He stated claimant had

period, and

he projected

-5-

that claimant could return

to part-time light work

(but not

her secretarial job) by the end of November 1988.

After examining the reports
Deliz, and
that

none

claimant's

Dr. Carreras,
of

claimant's

ability to

of Dr. Acosta, Dr. Martinez

non-examining doctor
conditions

perform

basic work

severely

concluded
limited

duties and

that

consequently claimant was not disabled.

In November, claimant completed another disability form.
She said that her
and

she could

neck was stiff, arm movement

not keep

her arms in

a raised

was limited,
position and

hence

could not

hang

her clothes.

perform activities requiring

reading or

Also, she

her to lower her

washing dishes, because her

very stiff.

She said

her doctor

could

not

head, such as

muscles would become

had advised her

to avoid

stress and strenuous exercise.

Dr.
notes

Acosta continued treating

are again

largely

claimant.

illegible, but

The progress

mild shortness

of

breath was noted in October and muscle spasm in November.

In

December 1988 spasm was "minimal."

After
additional

reviewing

the

progress notes

examining doctor

earlier
from

reports

Dr. Acosta,

concluded that claimant had

plus

these

a second

non-

no severe loss

of movement, sensation, or reflexes and was not disabled.

-6-

Dr. Justiniano conducted an

extremities in

November 1988.

arterial study of the upper

His

impression was bilateral

mild obstructive disease of ulnar and radial arteries.

The last medical

neurologist,
complained

who examined

claimant in

arms, hand tremor,

finger dexterity,

spells.

May 1989.

Claimant

pain at pressure

strength,

occasional dizzy

diminution of grasp

over both

counter movements of the

loss of hand

chest pain, and

Dr. Bonilla noted

arms upon

Dr. Bonilla Torres,

of tension in the nape of the neck, tiredness and

numbness of both
loss of

report is from

trapezii, pain

both hands,

in muscles

neck, and pain and numbness

hyperabduction of

bilateral thoracic outlet

the arms.

His

upon
of the

impression was

syndrome and myofascial

syndrome,

both trapezii.
The
outlet

ALJ

syndrome

claimant

she retained
segment of

doctors'

myofascial

diagnoses

syndrome.

repeated use

raising arms

for fine

above shoulder level,

but that

hand movements

and would

Based

testimony, the ALJ concluded

concluded

of hands

unskilled sedentary work which

positions.

of thoracic
He

the residual functional capacity

arm and

alternate

and

"should avoid the

movements" and

those

accepted the

on

the

(RFC) for the

would not require

allow claimant

vocational

to

expert's

claimant could perform the jobs

of table worker, label picker, and tester.

II.

-7-

A.
No doctor (either examining or

non-examining) completed

an RFC form checking off how much weight claimant could lift,
how many hours

she could sit

other physical

functions such as reaching, grasping, bending

and stooping.

Consequently, citing Berrios v. Secretary, 796

_______
_________

F.2d 574 (1st

Cir. 1986) (Appeals

persons,

is

technical

not

competent

medical

data),

impermissibly interpreted
conclusion
requiring

that

or stand, or her

Council, composed of
interpret

claimant

and

argues

could

fine

do

apply

that

raw medical data to

claimant

repeated

to

capacity for

the

or

raw,
ALJ

arrive at the

sedentary

manipulation

lay

work

reaching

not
above

shoulder level.
The
data.

ALJ did

impermissibly

did

indicate functional

For example,

in May

return to work certificate

on

the

type

of work.

treating physician,
in

interpret raw

medical

While it is true that no doctor completed an RFC form,

various doctors
forms.

not

July 1988,

executed a

and did not place any

limitation

same month,

Dr.

Acosta, the

projected claimant could return

date less

alleged onset date of

other

Dr. Garcia

The

1988,

capacity in

than

disability.

a year

to work

after

claimant's

See 20 C.F.R.
___

404.1505

(to be

eligible for benefits, the

last, or be expected to
least 12

months).

disabling impairment must

last, for a continuous period

Claimant, too,

described a fairly

of at
wide

-8-

range of

activity she performed

as of May 1988.

She drove

(in emergencies), cared for three children, and did household

chores except ironing.
to

From this evidence it was permissible

conclude, as the ALJ did, that claimant could handle some

range of sedentary work.

Even if claimant's conditions flared up or worsened some
time

after

evidence
again

May

that

1988,

nevertheless

claimant could

by November 1988.

there

perform

is

sedentary

In his September

very much improved.

of

in head

bending, and

limitations

flexion, arm

Although as
movements,

prolonged sitting prevented her from performing

her secretarial
could begin part
months.

work once

1988 report, Dr.

Acosta stated claimant had

that date

substantial

job full time, Dr.

Acosta believed claimant

time work at a different, light

job in two

He stated that claimant should work "at first" part

time, a phrasing which suggests he did not think claimant was

permanently limited to part time work.
not a case where an ALJ
determine

claimant's

Consequently, this is

had to interpret raw medical data to

RFC.

Rather,

claimant's

treating

physician indicated in general terms what type of work (light

duties) claimant could do despite her limitations.
Claimant argues that the Secretary

should have obtained

a detailed assessment from a doctor specifically addressed to

claimant's manual
by a

full time

abilities and the

job

would have.

effect fatigue produced

In

the

context of

this

-9-

record,
filled
of

we disagree.
out a form

Disability"

to

Dr.

in

be

submitted

It was

assessing claimant's

Acosta, while

treating physician,

labelled "Attending Physician's Statement

disability insurer.
used

Acosta, the

to

claimant's employer's

clear that this

capacity

for

diagnosing bilateral thoracic

and noting limitations

form would

be

work, yet

Dr.

outlet syndrome

as of September 1988 in hand flexion,

arm movements, bending, and prolonged sitting which prevented

claimant from returning to

her secretarial position, did not

focus particularly on manual

limitations.

the

to

Secretary

was

required

recruit

We do
a

not think

more

detailed

analysis than claimant's own treating physician had provided.

B.
Claimant contends
and assess

the ALJ

her complaints of

did not

adequately consider

pain and

numbness and

should

have found a complete absence of bimanual dexterity rendering

her

unable

to work.

We

disagree.

The

ALJ specifically

followed Avery v. Secretary of Health and Human Services, 797

_____
______________________________________
F.2d 19

(1st Cir. 1986), in

complaints.

He

was

not

assessing claimant's subjective

required

assertions, particularly in view

to

accept

claimant's

of the treating physician's

opinion that claimant could work and the treating physician's

failure to

focus

on severe

manual

limitations

precluding

claimant from returning to work.

C.

-10-

The

ALJ did

credit claimant's

complaints in

part and

stated

that claimant "should avoid the repeated use of hands

for fine

movements."

return to her past

described by the
able

He

concluded that claimant

secretarial job, but could do

ALJ.

Claimant argues

to perform the jobs

not include the limitation

his

question to the VE and hence

other jobs

that she may

the VE identified

did

could not

not be

because the ALJ

in repeated fine movement in

the jobs the VE enumerated

may require fine manipulation abilities.

The ALJ posed the following question to the VE:
Q
If we
determined that the
claimant had or has the residual capacity
to do sedentary jobs that would allow her
to change positions and if she didn't
have to use her hands or raise them
higher than shoulders height, and that
she weren't near unprotected heights or
dangerous operating machinery, I ask you
if she could do the job she did in the
past, and if she couldn't if there is any
jobs [sic] that she could perform.
The

VE responded that

either

classify shoe

properly cut and

could

in the
parts or

glued.

be a tester,

In the

parts

summed up,

were sedentary,

question had

she

testing currents and

These

jobs, the

allowed for change

overhead, and

worker to dangerous heights.

had been

electronics industry,

with capacitators.

require reaching

claimant could

verify that labels

which would entail

electrical

did not

shoe industry

did not

VE

of position,
expose the

In other words, while the ALJ's

included the broad condition

-11-

that claimant not

have

to "use" her hands,

the VE's response

such an absolute limitation,

did not include

but rather described jobs which

apparently involved some use of the hands.

The ALJ's second question
He asked the
subjective
credited

to the ALJ added limitations.

VE whether claimant could handle any job if her

complaints

of

pain

and if claimant "had

severe to utilize her

sedentary tasks."

and

numbness

were

a limitation from moderate to

hands in a sustained manner,

The

fully

VE responded that there were

for even
no jobs

claimant could perform.

The fair
claimant has
hands

thrust

a moderate

the

listed, but if the

extremities is
problem here is
fell

VE's

to severe

in a sustained manner,

jobs he

ALJ,

of

testimony

is

limitation in

she can not

if

using her

perform the three

restriction in use of

limited to overhead

that

her upper

reaching, she can.

The

that claimant's functioning, as found by the

somewhere

in

between that

hypotheticals -- claimant could

should not repeatedly
was not asked, and

posited

in

the two

generally use her hands, but

perform fine movements

did not directly say, what

could handle if she were so restricted.

-- but the

VE

jobs claimant

We have indicated
must
for

that the hypothetical

accurately reflect the

the VE's

response

sustaining the

posed to a

claimant's limitation

to constitute

Secretary's burden

in order

substantial

at step five

VE

evidence

to identify

-12-

alternate work the claimant can perform.

Arocho v. Secretary
______
_________

of Health and Human Services, 670 F.2d 374 (1st

_____________________________
See
___
Cir.

also Cooper v. Sullivan,

____ ______
________
1989)

constitute

("A

vocational

substantial

determination as to a

expert's

evidence

to

testimony
support

of claimant's

and weakness,

as well

can
an

not
ALJ's

the claimant's limitations ...").

was materially deficient in

to include the limitation on fine manipulation.

in view

1158 n.13 (9th

claimant's disability status unless it

accurately reflects all of

Hence, the hypothetical

880 F.2d 1152,

Cir. 1982).

repeated complaints of
as the diagnosis

failing

Particularly
hand numbness

of thoracic

outlet

syndrome -- a condition characterized by pain in the arms and

weakness

and wasting

of

the

small

muscles of

the

Sloane-Dorland Annotated Medical Legal Dictionary

-- it was important for the VE to focus on
abilities

in

perform.

identifying

Not

being

what

jobs

hand,

697 (1987)

claimant's manual

the

vocational experts,

claimant
we

do

could

not know

whether the identified jobs require repeated fine movements.

The Secretary
that

argues, and the district court concluded,

claimant's failure

to object

hypothetical question or to

to

the phrasing

of the

elicit more information from the

VE on cross-examination forecloses claimant from now claiming

error.

In support, the

district court relied

Secretary of Health and Human Services, 870

________________________________________
Cir. 1989).

on Torres v.
______
F.2d 742

(1st

In Torres, claimant based disability on a visual

______

-13-

complaint.

The

VE, who

had reviewed

the file,

was asked

whether claimant could perform his past work (as a waiter) or

any

other work in the national economy.

argued that the

question was inadequate

On appeal, claimant
because it did

not

specifically
that

describe claimant's limitations.

claimant's

concluded

that

argument
it

was

might

be valid

unavailing

in

presented by that case where the record

evidence

was

(vision),

addressed

all

doctors

reported

in
the

general,

we

circumstances

was limited, medical

substantially
had

While noting

to

one

impairment

successful

cataract

surgery and good prognosis, and it was not likely that the VE
would

have

failed to

answering the
that

if

question.

claimant

focus

on

the visual

impairment

In those circumstances,

felt the

hypothetical

was

in

we stated

inadequately

phrased, he should have posed his own.

The

circumstances

different.

Multiple

manifestations
limitation on

in

were claimed.

The

fine manipulative

claimant to

will credit and

with

case

are

multiple

ALJ found

a significant

ability, but did

anticipate what complaints

the ALJ will

very

alleged

not focus

We think it is unrealistic

what limitations

require the claimant to

present

impairments

the ALJ's attention upon it.

require the

the

to

the ALJ

find and

to

insure that the hyothetical reflects

those limitations.

-14-

As

the

hypothetical

did

limitation, we conclude that

VE,

properly

informed

of

not

include

significant

a remand is required so
claimant's

that a

limitations,

can

determine whether there are jobs she can perform.

The judgment
case

of the district

is remanded with directions to

court is vacated

and the

remand to the Secretary

for further proceedings consistent with the opinion.

-15-