USCA1 Opinion

March 17, 1993

[NOT FOR PUBLICATION]

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
___________________

No. 92-2088

BIENVENIDO GONZALEZ-GARCIA,
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. Gilberto Gierbolini, U.S. District Judge]
___________________
___________________
Before
Selya, Cyr and Boudin,
Circuit Judges.
______________

___________________

Raymond Rivera Esteves and Juan A. Hernandez Rivera on brief

______________________
________________________
for appellant.
Daniel F. Lopez Romo, United States Attorney, Jose Vazquez
_____________________
____________
Garcia, Assistant U.S. Attorney, and Paul Germanotta, Assistant
______
_______________
Regional Counsel, Dept. of Health & Human Services, on brief for
appellee.
__________________
__________________

Per Curiam.
__________
for

Claimant Bienvenido Gonzalez Garcia applied

Social Security disability benefits on May 24, 1989.

alleged an onset
had
a

date of April 15, 1988 and

claimed that he

a back condition and a mental impairment.

hearing,

claimant

an administrative

was

not

entitled

law

to disability

Appeals Council

denied claimant's

district

affirmed the

court

judge

He

After holding

(ALJ) found

that

benefits.

The

request for review.

Secretary's decision

The

and this

appeal ensued.
I.
__
Claimant was injured

at work

when he tried

to lift

steel

beam.

He sought treatment at the State Insurance Fund

(SIF) for back pain.

course

According to claimant, he was

of physical therapy which left him feeling worse.

some point, he tried to resume work but could not

the pain.

All of his

frequent bending

and stooping.

Since his

sit, stand or

or stoop.

He cannot

lift objects weighing

with

injury, claimant

walk for any length

and he is constantly changing position.

At

because of

past jobs involved heavy lifting

states that he cannot

time

given a

of

He cannot bend
more than

five

pounds.
As for his daily

activities, claimant testified that he

could not take care of his personal needs; his wife helps him
to bathe

and dress.

visit his father.

He

does not leave the

house except to

Sometimes he watches television or listens

-2-

to the radio.
not drive.

He cannot help with household

chores and does

During the day, he sits or stands on the balcony;

he never walks.
Claimant described

his pain

as constant; it

starts in

his

lower back and spreads to his buttocks, thighs, legs and

feet.
does

He also complained of "palpitations" in his bones.

not sleep well due to the

In addition to his
nosebleeds.

He

pain and cramps in his legs.

back pain, he suffers from

headaches and

He takes medication which relieves the pain for

about two hours.

Claimant also takes medication for a dysthymic disorder.
He

stated that

shadows.

he hears

He is

voices calling

irritable and

therapy for

and sees

noises bother him.

problems relating to people and prefers

received sporadic

his name

He

to be alone.

this impairment at

has

He has

the local

mental health center.

II.
___
The

ALJ

determined

that

claimant

herniated disc at L5-S1, back pain

claimant

was

precluded

related activities.
retained the

allegations of
from

possible

and an affective disorder

which alone or in combination did not meet

credited claimant's

has

the listings.

pain to the

engaging in

He

extent that

strenuous

work-

Nonetheless, the ALJ found that claimant

residual functional capacity

(RFC) to

perform

the exertional requirements of work except to the extent that

-3-

claimant could not lift over ten pounds.

sit, stand

or walk

for over

Also,

one hour at

he could not

a time;

however,

claimant could perform each of these activities for up to six

hours

per eight-hour workday.

occasionally.

He could stoop and kneel only

Aside from these limits, claimant retained the

capacity to perform the full range of sedentary work.

The

ALJ determined that Rule

201.25 of Table

Medical-Vocational Guidelines, 20 C.F.R. Part

App.

2 (1992) (the "Grid"),

disabled"

for

individual

with

person
a

would direct a

such

limited

as

1 of the

404, Subpt. P,
finding of "not

claimant

education (7th

--

grade)

younger
and

no

transferable work skills. Because claimant's capacity for the

full

range of

sedentary

compromised" by
201.25

as a

disabled.
mental

to conclude

so finding,

impairment

limitations

in

not been

his nonexertional limits, the

framework
In

work had

did

those

the ALJ
not

areas

that

not

that claimant's

"more

considered

ALJ used Rule

claimant was

stated

impose

"significantly

than

relevant

slight
to

the

capacity to perform work-related activities."

III.
____
On

appeal, claimant

condition prevents him from

He also

essentially argues

that his

back

engaging in even sedentary work.

avers that the ALJ erred in applying the Grid on the

ground

that his

nonexertional impairments

emotional condition

-- significantly

-- pain

limit

and his

his ability

to

-4-

perform the full range

of sedentary work.

We

address these

issues separately.

A.

Back Condition
______________

The record contains conflicting evidence

effect

of

capabilities.

claimant's
X-ray

back

problem

results

showed a

concerning the

on
20

his
to

physical
25

percent

narrowing of the disc space at L5-S1, suggestive of a bulging

or

herniated disc.

bulging

Also,

a C-T

scan revealed

a possible

or herniated disc at L4-L5 with a slight swelling of

the left nerve root.

Over the course of his

treatment at the State Insurance

Fund, claimant's condition varied.

For example, on September

30 and October 13, 1988, claimant exhibited persistent lumbar

muscle

spasm

and

limited

range

of

motion.

However,

November

2,

1988

special

claimant's back was well

addition,
were

medical

vocational

of motion

deficits.

claimant could perform

stated

that

and there was no muscle spasm.

claimant's range

no neurological

report

was normal

The report

Although

and there

concluded that

light work and should be

rehabilitation.

In

referred to

claimant

exhibited

marked limitation in the movement of his trunk on November 7,

1988,

there

still

claimant could
discharged

from

was

no

significant

muscle

walk without

difficulty.

When

claimant was

he

had residuals

the SIF

in

April 1989,

spasm

and

-5-

consisting of slight spasm of the para-vertebral muscles with

slight limitation of movement of the trunk in all directions.
Claimant refused a referral to vocational rehabilitation.
A

neurological

evaluation

revealed no evidence of
atrophy;

there was

motor reflex
posture

in

July

1989

paravertebral muscle spasms or motor

normal

or sensory

were normal.

performed

strength in

disturbances.
He

refused to

all muscles
Claimant's
bend his

and no
gait and

spine.

In

January

1990, claimant

neurologist.
heels
had

was again

At this time,

examined by

a consulting

claimant could not

walk on his

weakness of the

left toe and

or toes, exhibited some

spasm in his paravertebral muscles.

His range of motion

was limited.1
A nonexamining physician completed an RFC form in August
1989.
and

This form reveals

carry up

to ten

that claimant can

pounds and

carry twenty

pounds.

crawl.

disc pathology

His

lower extremities to

He

occasionally can

can only

lift and

occasionally stoop

limits his

push and

frequently lift

pull.

ability to

However,

and

use his

he can

sit,

stand and walk for up to six hours per work day.

The medical
conclusion

findings outlined

that claimant

above amply

retained the

support the

ability to

meet the

____________________
1. Neither of these physicians filled out RFC assessments
despite the requirement in the regulations that a complete
consultative examination should include such findings. See
___
20 C.F.R.
404.1519n(c)(6).
-6-

exertional
limits

demands

in range

of sedentary

of

work.

motion were

Muscle spasm

not consistently

present.

Further, claimant rarely exhibited any neurological or

deficits.

Finally,

claimant's disc
at

the

the

RFC

assessment

sedentary

level.

Because

"a

motor

indicates

problems would not prevent

and

that

him from working

reasonable

mind,

reviewing the evidence in the record as a whole, could accept

it as adequate to support his conclusion," we must uphold the
Secretary's factual

determinations.

of Health and Human Services,

_____________________________

Rodriguez
_________

647 F.2d 218,

v. Secretary
_________
222 (1st

Cir.

1981).
B.

Nonexertional Impairments
_________________________

Next,
credit his

claimant alleges

complaints of totally

that there exists an

or

that the

ALJ did

not properly

disabling pain.

We agree

objective medical impairment -- bulging

herniated discs at L4-L5 and L5-S1 -- that can reasonably

be expected to cause pain.

and
Human Services,
_____________________
Nonetheless, as

See
___

797

Avery v. Secretary of Health

_____
___________________
F.2d

described above,

19

(1st

Cir.

the dearth of

1986).

evidence of

motor, sensory or strength

deficits conflicts with the level

of pain

Further,

claimant alleges.

medication

relieved the pain for

the ALJ diligently considered

claimant testified that

up to two

hours.

Because

the factors outlined in Avery,

_____

we find that his decision concerning the level

of claimant's

-7-

pain is supported by substantial record

evidence and did not

preclude reliance on the Grid.2

Claimant's mental impairment presents a closer question.
Absent

significant

provides a
sustain

nonexertional

"streamlined" method

his burden of proof

evaluation
Services,
________

process.

by which the

at step five

Ortiz v.
_____

890 F.2d 520,

limitations,

the

Secretary can

of the sequential

Secretary of Health and Human

_____________________________

524 (1st

Cir. 1989)

(per curiam);

Sherwin v. Secretary of Health and Human Services, 685

_______
_______________________________________
1,

2 (1st

Cir. 1982),

However, where

Grid

cert. denied,
____________

461 U.S.

F.2d

958 (1983).

a claimant has a

nonexertional impairment in

addition to an exertional limit,

the Grid may not accurately

reflect
perform.
Health

the

availability

Ortiz,
_____

890 F.2d

of

jobs such

at 524;

and Human Services, 666

claimant

Gagnon v.
______

F.2d 662, 665

could

Secretary of
____________
n.6 (1st Cir.

__________________________
1981).
The decision
depends

upon

of

rely on

whether

"significantly
range

to

affects

jobs"

at

the

Grid in

claimant's
[his]

mental

ability to

the sedentary

this

impairment

perform

level.

situation

the full

See
___

Lugo v.
____

____________________
2. We also note that claimant's limitations in stooping and
crawling -- nonexertional impairments -- do not significantly
limit his access to the full range of sedentary work.
See
___
Social Security
Ruling 85-15 (to meet requirements of
sedentary work, an individual would need to stoop only
occasionally and would rarely be required to crawl); cf.
___
Frustaglia v. Secretary of Health and Human Services, 829
__________
_________________________________________
F.2d 192, 195 (1st Cir. 1987) (per curiam).
-8-

Secretary of Health and Human Services, 794 F.2d 14, 17 (1st

_______________________________________
Cir. 1986)
occupational

(per curiam);
base

is

impairment, the Secretary

Ortiz, 890
_____

F.2d at 524.

significantly
erred in using

limited

If

the

by

this

the Grid to

carry

his
such

burden at step five.

See
___

a case, the testimony of

would have been required.

Here, the

ALJ

claimant's

sedentary,

F.2d at 524.

In

a vocational expert generally

Id.
__

essentially determined

emotional condition
on

Ortiz, 890
_____

that

claimant's

was not severe and thus, did not impinge

ability

to

unskilled work.

engage

in

the

There are two

full

range

of

distinct sets of

mental capabilities which are required for the performance of

unskilled work.
15.

These are

Id. at 526; Social Security Ruling (SSR) 85___

(1) the intellectual ability to

perform such

work and (2) the ability to cope with the demands of the work
environment per se.
______
As

Id.
__

for the first category

simple instructions,

-- the ability

respond to

supervision

coworkers -- we believe that there

support
disorder

the

ALJ's

did not

conclusion

1990

indicates

contact with
processes

claimant

reality and

were

claimant's

significantly impair

that

organized

and cope

-9-

dysthymic

his functioning.

by a psychiatrist in

was

coherent, relevant,

completely oriented.
and

with

is sufficient evidence to

that

consultative examination performed

to carry out

there

was

no

A
May
in

His thought
evidence

of

delusions

or

Although

his

hallucinations.
attention,

His

memory

concentration

and

was

intact.

retention were

"slightly diminished," claimant's judgment and reasoning were

not impaired.

The

psychiatrist diagnosed a

mild dysthymic

disorder; claimant's prognosis was fair.

This

psychiatrist

assessment.

He

also

indicated

maintain attention and to

both complex

completed

that

claimant's

mental

RFC

abilities

to

understand, remember and carry out

and detailed job

instructions were good.

capacity to deal with simple instructions

His

was unlimited.

He

also was rated as having good abilities in the areas of using

judgment, interacting with supervisors, relating to coworkers
and functioning independently.
The second

category includes

the ability to

remain in

the workplace the entire day and to attend work regularly and
punctually.

In

this

area, claimant

was

rated

as

being

capable of demonstrating responsibility, relating predictably

in social
manner.
only

situations and

behaving in an

emotionally stable

However, his ability to deal with "work stress" was

fair.

Fair

is defined on

the RFC

form as "seriously

limited but not precluded."

Given the evidence anent claimant's

limited capacity to

deal with "work stress," his

mental impairment might well be

-10-

deemed of some
reliance

on

severity.3
the

Grid

But, we believe

in

nevertheless appropriate

this

particular

(although by no

that the
situation

ALJ's
was

means inevitable).

See Ortiz, 890 F.2d at 524 (explaining that claimant's mental

___ _____
impairment,

even if

severe,

is

not

considered

disabling

unless it has eroded the occupational base for the full range
of

sedentary, unskilled work).

claimant was
the

stress of

concluded
areas

seriously limited

of dealing

stable manner
significant is

in his capacity

work in general, the

___________

that claimant's

concentration,

Aside from the finding that

abilities

with the

examining psychiatrist
in the

work environment

being reliable,

behaving

more

specific

-- maintaining

in an

and accepting supervision -- were

the fact

to confront

emotionally
good.

that claimant's situation

Also

does not

place him

anywhere near

and not disabled under

the dividing line

between disabled

Table 1 of the Grid.

See id. at 527___ ___

28.
For the foregoing reasons,

the judgment of the district

court is affirmed.
________

____________________
3. An impairment is not severe only when it has no more than
"a minimal effect on the person's . . . mental ability . . .
to perform basic work activities." SSR 85-28.
-11-