USCA1 Opinion

May 4, 1993

[NOT FOR PUBLICATION]

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
___________________

No. 92-2297

ANGEL LOPEZ RODRIGUEZ,

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
Breyer, Chief Judge,
___________
Torruella and Cyr, 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 United States Attorney, and Robert J. Triba,
______
________________
Assistant Regional Counsel, Department Health and Human Services
on brief for appellee.

__________________
__________________

Per Curiam.
___________
judgment

Angel

Lopez Rodriguez

appeals the

of the district court affirming a final decision of

the Secretary of Health and Human Services ("Secretary") that

appellant

did not

meet the

disability requirements

of the

Social Security Act.

Appellant's
alleged
Because

an inability
of

applications,
here

an

application,
to

filed

work beginning

earlier

disposition

the period of

April

13,

1989,

October 15,

1984.

of

his

previous

alleged disability under review

begins October 1, 1987 and ends December 31, 1989, when

appellant's

insured

status

expired.1

The

current

application was denied, appealed, and

de novo
__ ____
that

denied again.

hearing, the Administrative Law

appellant had

a residual

Judge ("ALJ") found

functional capacity

full range of light and sedentary work, and so was

a

disability as

denied
where

review.
a

defined in
An appeal

decision was supported by

to

the magistrate's

court

concluded

The

for the
not under

Appeals Council

the district court,

the

Secretary's

substantial evidence.

Objections

report

judge in a lengthy

the Act.
was taken to

magistrate-judge

After a

that

were rejected

opinion.

The

by the

district

district court also

____________________
1. Appellant filed two previous applications alleging the
same onset date.
The earlier applications were denied on
September 30, 1987.
The denial was affirmed by the Appeals
Council, and no further appeal was taken. There appears to
be no colorable challenge here to the finality of that
decision. Califano v. Sanders, 430 U.S. 99 (1977); Dvareckas
________
_______
_________
v. Secretary of HHS, 804 F.2d 770 (1st Cir. 1986).
________________
-2-

adopted

the

magistrate's

findings

affirming the Secretary's decision.

and

report

in

We, too, affirm.

full,

Appellant

claimed an

inability to

work due

to a

nervous condition, and heart and back problems accompanied by

severe pain.
the

Applying

regulations,

the sequential analysis

the

ALJ

appellant's conditions were

found

that

required by

in

combination

severe, but they did not meet or

equal any of the listed

impairments. 20 C.F.R.

404.1520a.

conditions, nevertheless, were found

to

Appellant's

404.1520,

prevent him from returning to his past relevant work as a

truck driver.
Appellant does not dispute
takes issue, however,
that despite

his conditions, he has

capacity to engage in
sedentary jobs
that

the ALJ

finding at step

mistakenly

the economy.

determined that

impairment

pain alleged,

likely

He

five,

the residual functional

the full range of unskilled

available in

objective medical
degree of

with the ALJ's

the above findings.

to

light and

Appellant argues
appellant had
cause

improperly weighed the

the

no

severe

testimonial

evidence of pain, and erred in relying on 20 C.F.R. Part 404,

Supt.

P, App.

2, Tables

1, 2 (the

"grid"), rather

than a

vocational expert.
Our
findings are
affirm the

standard of review
supported by

Secretary, "if

is whether the Secretary's

"substantial evidence."
a reasonable mind,

-3-

We will

reviewing the

evidence

in

the

record as

adequate to support
HHS,
___

whole,

his conclusion."

could

accept it

Ortiz v.
_____

as

Secretary of
____________

955 F.2d 765, 769 (1st Cir. 1991) (quoting Rodriguez v.

_________

Secretary of HHS, 647 F.2d 218, 222 (1st Cir. 1981)).2

________________
We have no difficulty finding
in

the record

conflicts

for

the ALJ's

resolution

in the medical evidence.

condition, the record shows that

substantial support
of the

As to appellant's heart

appellant began complaining

of chest pain of an unknown origin in March, 1988.

included arthralgia, controlled
syndrome.

Although an

purported

Diagnoses

hypertension and chest

initial

wall

electrocardiogram showed

first degree atrioventricular block leading to a diagnosis of

angina, three later electrocardiograms and a stress test were
normal.

The

condition

was

ALJ's

conclusion

not ischemic

in

that
nature

appellant's
was thus

chest

logically

dictated by the medical findings and tests in the record.

There

was

evidence relating to

somewhat

starker

conflict

appellant's back condition.

in

the

Appellant

was treated by a chiropractor between December, 1988 and May,

1989.

The

chiropractor

reported that

appellant showed

limited range of motion

and severe pain in the

cervical and

lumbar areas, muscle spasm, poor motor function in his

arms,

____________________
2. The ALJ's and magistrate's reports well summarize the
lengthy record, which includes a miscellany of physical
complaints and medical reports.
We recap here only those
record parts necessary to our decision.
-4-

a fair ability to walk on heels and toes and

normal reflexes

and no atrophy.

an unstable lower back

stiff gait, but

The chiropractor diagnosed

and possible discogenic disease, with

a poor prognosis.
By

contrast, a

consulting internist

who examined

appellant in June, 1989 reported observing normal joints with

no

swelling, tenderness

normal

gait,

coordination

cervical

spine were also

spaces.

Lumbar region

flexion was reported

pain.

The

nor

decreased range
and

reflexes.

normal, reflecting
lateral flexion was

to be a full 90 degrees,

internist

diagnosed

paravertebral muscle spasm.

back

pain

of motion,
X-rays

of

a
the

preserved disk
normal, forward
but with some
secondary

to

The ALJ fully credited the internist's report.

declined

to

assign

chiropractor's
the

other

record,

controlling

diagnoses because

substantial
including

conclusions

as

required by

of these

competence, and

We have
conflicts

amply supported

the

evidence

carefully

was

in the

explained

regulations.
no

treating

contradicted by

medical

He
the

to

they were

objective

x-rays.

404.1527(d)(2) (1991).
resolution

weight

He

his

20 C.F.R.

doubt that

the

ALJ's

reasonable, within

by the record.

his

Rodriguez,
_________

647 F.2d at 222.

As

to

appellant's

nervous

condition,

the

ALJ

concluded that it placed no limitation on appellant's ability

-5-

to

work.

medical

evidence.

attorneys
was
After

This conclusion

was also

Appellant

had

well supported
been

referred

by the
by

his

to a mental health center in March, 1989, where he

diagnosed as
small

doses

suffering

from a

of Vistaril

were

mild anxiety

disorder.

prescribed, appellant

reportedly remained
confirmed

by

repeatedly

stable and improved.

later

evaluations

described

relevant,

having

as

oriented,

adequate

Although it

was noted

maintaining

social

in

logic,

The diagnosis was

which

appellant

was

alert,

coherent

and

judgment

that appellant had

functioning,

and

memory.

slight difficulty

concentration,

and

persistence of pace, two residual mental capacity assessments

concluded that
work

tasks

he retains

and

environment.

to

the abilities to

cope

with

the

perform routine

demands

These assessments are sufficient

appellant's mental

capacity to engage in

skilled sedentary work remains intact.

of

work

to show that

unskilled or semiSee Ortiz, 955

___ _____

F.2d

at 769-70.
In

sum,

the

record

determination that the credible

objective medical
severe

degree

Moreover,

there

amply

supports

were no

and functional
reports

verifiable symptoms of severe pain.

-6-

ALJ's

diagnoses failed to show any

impairment reasonably associated

of pain

the

of

with the

limitations alleged.
any other

clinically

We also find

no error in

appellant's subjective

complaints

with the guidelines set

797

F.2d

19,

21

the ALJ's evaluation

of pain.

In

of

accordance

forth in Avery v. Secretary of HHS,

_____
_________________

(1st

Cir.

1986),

the

ALJ

considered

appellant's testimony in light

of the other record evidence.

Appellant described his current

pain as radiating from under

the armpit

and back;

said that

crooked, and his arms

sharp

chest pain,

breath,

at

times

consciousness.

his vertebral column

feel dead.

He also

accompanied

by nausea

so

that

severe

And he

testified

he
to

feels

described strong,
and shortness
claimed

to

feelings of

of
lose

extreme

anxiety and palpitations, as well as difficulty sleeping.

As
description

the
was

observations.

ALJ

noted,

corroborated
In three visits

appellant's

by neither

subjective

medical

to the District

nor

lay

Office, and

during

the residual

mental capacity

showed

no signs

any impairment

pain.

The ALJ noted, as background, that shortly before the

current
his

of

disability period,

daily activities

papers

and

the

as

Bible,

evaluations, appellant
consistent with

appellant himself
watching
going

to

severe

had described

television, reading
church

almost

the

daily,

occasionally visiting the sick, and driving about three times

a week.
most

At the instant hearing, appellant testified, for the

part,

to

more

limited

daily

activities,

but

also

-7-

mentioned

some

activities which

seemingly would

require a

high degree of exertion.3

We

necessarily defer

appellant's

to

the ALJ's

evaluation of

credibility, especially where it is supported by

substantial evidence

and specific

findings.

Frustaglia
__________

v.

Secretary of HHS, 829 F.2d 192, 195 (1st Cir. 1987).

________________

The ALJ

credited appellant's

only to

subjective complaints

the extent consistent

the

existence

of

of pain

with the medical evidence,

mild

pain.

Although

the

indicating
appellant's

combination of conditions precluded his returning to his past

relevant work

as truck

appellant retained the

driver, the ALJ

further found

capacity to engage in

that

the full range

of light and sedentary work.

Although
residual
associated

we have

functional capacity

not

located in

the record

assessments, other

with appellant's mental

any

than those

impairment, we think the

ALJ made a competent, commonsense judgment about

appellant's

exertional functional capacity based on the medical findings.

See Gordils v. Secretary of HHS, 921 F.2d 327 (1st Cir. 1990)
___ _______
________________
(although ALJ is ordinarily
functional capacity based
so as

long as he does

not qualified to assess residual

on bare medical record,

not overstep the boundaries

he may do
of a lay

____________________
3. Although appellant stated that he spent much of his time
in bed or in a hammock due to weakness and pain, when asked
about his personal relationships he mentioned that not long
ago, when his "blood pressure went up," he took a hammer and
broke a door.
-8-

person's
445,
suffer

competence); Perez
_____

446 (1st Cir. 1991)

from

any

v. Secretary of HHS,
_________________

(a finding that

impairment posing

958 F.2d

claimant does not

significant

exertional

restrictions would obviate the need for medical assessment of

exertional residual functional capacity).
In

Gordils,
_______

we

upheld

lay

fact

finder's

conclusion that a diagnosis of "weaker back" did not preclude

sedentary work.

There we said we might be troubled by a lay

fact finder's opinion that a claimant was capable of the more

physically demanding efforts required by light work.

In this

case, however, we need not pause to consider the ALJ's "light

work"

conclusion,

appellant was

because

his

alternate

finding

"not disabled" from performing

of sedentary work

was, on

the basis of

that

the full range

the medical

record

before us, well within the ALJ's competence.

Accordingly, we also
to the use
expert.

reject appellant's

challenge

of reliance on a

vocational

of the grid instead

Rodriguez-Pagan v.
_______________

Secretary of HHS, 819 F.2d

________________

(1st Cir. 1987), cert. denied, 484 U.S. 1012 (1988).

____________
consulted the
alleged

grid only

non-exertional

after determining
impairments

did

1, 3

The ALJ

that appellant's
not

significantly

affect his ability to engage in the full range of work in the

sedentary jobs
years old),

category.

Considering appellant's

education (7th grade level)

(semi-skilled,

non-transferrable

-9-

age (46

and work experience

skills), the

ALJ properly

reached

the alternate

finding of "not

conclusion

disabled".

20 C.F.R. Part

App. 2, Table 1, Rule 201.19.

the ALJ's

failure to

plaintiff's

ask

non-exertional

that the

grid directs

404, Subpt.

P,

There thus was no prejudice in

the vocational
impairments

expert about
might

affect

how
his

ability to perform light or sedentary work.

For

the

reasons

district court is affirmed.

________

stated,

the

judgment

of

the

-10-