USCA1 Opinion

December 30, 1992

[NOT FOR PUBLICATION]

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________

No. 92-1810
CARLOS OYOLA-ROSA,
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 Selya, Circuit Judges.
______________
____________________

Raymond Rivera Esteves and Juan A. Hernandez Rivera on brief

______________________
_________________________
appellant.
Daniel F. Lopez Romo, United States Attorney, Jose Vazq
_______________________
__________

Garcia, Assistant United States

Attorney, and Paul Germanot
______
______________
Assistant Regional Counsel, Department of Health and Human Servic
on brief for appellee.
____________________
____________________

Per Curiam.
___________

In

1989,

Carlos

Oyola

filed

an

application for Social Security disability benefits, alleging

disability due to epilepsy, a
neck

pain.

After a hearing,

(ALJ) found that Oyola was not

sequential

evaluation

404.1520(f).

The

severe impairment

allegations

or

the Administrative

Law Judge

disabled at step five of

set

out

in

20

the

C.F.R.

ALJ determined that Oyola's epilepsy was a

which precluded him from

previous employment,
emotional

process

nervous condition and back and

mental

returning to his

but that Oyola did not have a disabling

condition.

He

credited

Oyola's

of pain to the extent that his pain would reduce

his residual

functional capacity from heavy

(Thus, he treated Oyola's

to medium work.

pain as an exertional impairment.)

Although the ALJ found that Oyola could not engage in work in
which

he would

exposed

to

concluded

have

to climb

unprotected
that

significantly

those

or

heights

balance,1 drive,
and

nonexertional

or

be

moving machinery,

he

impairments

did

not

compromise Oyola's capacity for the full range

of medium work.

Using Rule

Guidelines (the Grid) in

203.25 of the Medical-Vocational

Appendix 2 of the regulations

framework for his decision, he

as a

determined that Oyola was not

____________________
1. The ALJ did not resolve certain slight differences in the
staff physicians'
assessments of Oyola's
climbing and
balancing abilities.
For purposes of our analysis in this
opinion, we adopt the more restrictive assessment offered by
Dr. Hernandez, which would be more favorable to Oyola, that
Oyola should never engage in work requiring any climbing or
balancing.
-2-

disabled
ALJ's

before his

denial

of

affirmed the ALJ's

coverage expired.

benefits

to

the

Oyola

district

decision, and then sought

appealed the
court,

which

review in this

court.

We affirm.
I.

Severity of Alleged Disabilities

________________________________

Oyola

does not

that his epilepsy

Listing

challenge the

ALJ's determination

did not meet or equal

the criteria in the

of Impairments in Appendix 1 of the regulations.

claims, however,

that the ALJ failed

his

of

allegations

medical

record shows

complained

of

physicians.
only

disabling

In

pain, and

disabling

pain"

fact, the medical

occasionally complained

problems

that might

to consider adequately

that he "constantly

"severe

have

of

He

argues

his

record shows

caused him

his

and persistently"
to

pain or

that

examining
that Oyola

of other

pain.

In

medical
1978,

he

reported that he had cervical muscle spasms and foot lesions,

and

he

was

complained

advised

reported pain

muscular
stable
recurred

provisionally

when

he

week.

In

and back or

left anterior
as

having

shoulder, but

angina

hospital.

once again in mid-1985.

-3-

Pain

pectoris
He

no

In 1984,

thorax, and,

prescribed medicine.

left the

1983, he

muscles and joints,

of treatment was prescribed.

in his

spasm, was

feet, in his

his neck

medication or course

diagnosed

rest for

of pain in his

and specifically in

he

to

being
and

was reported
in his

thorax

Although the 1985 medical

report is practically unreadable, it appears to indicate that

medication was prescribed for Oyola's pain.
and

December

31,

coverage, the

1988,

the

Between mid-1985

expiration

date

of

record contains no further report

any kind of pain.

Oyola's

by Oyola of

In early 1988, Oyola reported that he felt

"allright for now."

The ALJ did not specifically refer to this evidence
of

pain in his

error under

decision, but his

the circumstances.

evidencing Oyola's

reports of

failure to do

so was not

First, the

medical records

pain are not

very probative.

They indicate that Oyola complained of pain only sporadically

and not at all after the middle of 1985.
for 1984 and 1985 relate

to chest pains which Oyola

asserted is or

was disabling,

arose

his

out

of

The reports of pain

primary

and which he
medical

has not

does not

impairment,

claim

epilepsy.

Second, the ALJ made clear at the outset of his decision that
his

task

was

to

adjudicate

disability between February 26,

(Two

prior applications

between

1983 and early

only

whether

Oyola

had

1988 and December 31, 1988.2

of Oyola

relating to

time periods

1988 were denied

and not appealed.)

The evidence relating

to pain suffered in

prior periods was

useful background for

determining whether the pain

in the following period of

suffered

time was disabling, Frustaglia v.

__________
____________________
2. The ALJ gives 1989 as the year ending the adjudicatory
period, but it is clear that he meant to say 1988 because
that is the year Oyola's coverage expired.
-4-

Secretary of Health and Human Services, 829

________________________________________

F.2d 192,

193

(1st Cir. 1987), but was not itself dispositive.

Furthermore, the ALJ considered
testimony

at a

hearing in 1990

the

hearing, Oyola

pain.

At

caused

by injuries

suffered

as to

thoroughly Oyola's
the severity

testified
during a

that severe

seizure and

spurs and arthritis had caused him to stop working.

noted,

correctly,

that

the

record

osteoarthritis

and

musculoskeletal

expiration

his

coverage.

appeared

of
to

be

Nevertheless, he

healthy

and

in

showed

He also
strong

noted
at

The

that

ALJ

Oyola's

that
the

pain

by bone

complaints arose

evaluated Oyola's subjective

back pain and epilepsy-related

of his

after
Oyola

hearing.

complaints of

pain under the factors listed

Avery v. Secretary of Health and Human Services, 797 F.2d

_____
______________________________________

19

(1st Cir. 1986).

Oyola

the

allegations,

Specifically stating that he was giving

benefit
but

of

only

Oyola's alleged pain

to

doubt,

the extent

he

credited

that

reduced his exertional

heavy to medium work.

by

the

he

those

found that

capability from

He did not find Oyola totally disabled

pain because the medical record showed that Oyola did not

seek or follow consistent medical treatment for his epilepsy,

nor did the record indicate that the medications he

received

were ineffective to control his epilepsy, that they should be

changed, or

that

there

conclusion

shows

that

were
the

adverse side
ALJ

reviewed

effects.
Oyola's

His
medical

-5-

records thoroughly,
the records

even if he did

evidencing

1984, and 1985.

not specifically discuss

Oyola's complaints

in

1978,

1983,

On the basis of all of the above factors, we

conclude that the ALJ properly reviewed the evidence relating

to Oyola's

alleged pain, and

that his findings

relating to

pain were supported by substantial evidence.

Oyola

alleges

further

that the

ALJ

cited

only

evidence favorable to the Secretary,

evidence of

Oyola's

determination on his

disregarded the medical

disability, and
own medical

based

the

opinion.

disability

He provides

no

detail as to what evidence the ALJ allegedly disregarded, and

does

not

describe

in

what respect

opinions of examining or

the

ALJ

ignored

consulting physicians, or based his

disability determination on his own medical opinion.

reviewed
of

the evidence

in

reviewing even
Oyola

determined
"severe

We have

the ALJ's decision and the record and find no error

the kind Oyola has alleged.

which

the

the record

that

functional
Hernandez.

did

Oyola's

impairment"

supported by

which was

medical conditions
himself

nonexertional

The ALJ considered carefully

not

limitations

claim were

both

on Oyola.

His

There

assessments

by the

Drs.

record

constituted
exertional

He
a
and

determination is

pain and by
of

Oyola,

disabling.

pain

imposed

Oyola's testimony of
capacity

suggested

epilepsy and

which

favorable to

the residual
Marxuach

and

is no other relevant medical assessment of

-6-

residual

functional

support further
which

would

disabled.

capacity

the

record

which

restrictions on Oyola's ability

support a

conclusion

The functional

upon which Oyola relies

consideration, relates
his

in

that

would

to work, or

Oyola was

totally

capacity assessment by Dr. Rivera,

and which the ALJ excluded

to Oyola's

condition in

from his

1989, after

coverage had expired, and the ALJ was fully justified in

discounting

that assessment.3

In

any event,

the ultimate

conclusion in Dr. Rivera's assessment agrees broadly with the

assessments
Rivera

of Drs.

Marxuach and

Hernandez.

Although Dr.

states that, as of 1989, Oyola was an "[u]ncontrolled

patient who

comes frequently

due to convulsions,

receiving

occasional traumas," and Dr. Hernandez had concluded that, as

of December 1988, his seizures "had no frequency," Dr. Rivera
did not find
from all work.

Oyola to

be totally disabled

or prohibit

him

She recommended only that Oyola "never[] [be]

alone or engage[] in work where he might be exposed to danger

due to convulsions."

____________________
3. The English translation of Dr. Rivera's assessment, which
had been written in Spanish, gives 1985 as the date of her
report, and for that reason Oyola cites it as evidence of his
disability prior to expiration of his coverage. The original
document appears to give 1989 as the date it was prepared,
although the final numeral was hastily written and cannot be
said definitively to be a "9".
Nevertheless, the record
shows that Dr. Rivera did not begin to treat Oyola for
epilepsy until 1989, and so the date on her assessment of his
condition could not have been 1985 as Oyola suggests.

-7-

The record also supports the

ALJ's conclusion that

Oyola did not have a disabling mental condition.

1985,

In February

he was referred to the Bayamon Mental Health Center in

connection with his application for social security benefits.

The referral stated that Oyola

was "going through an intense

depressive

episode that began five months

was

sleeping

not

well

and

had

ago," and that he

been

sleepwalking.

Nevertheless, Oyola was not admitted because he was found not

to have a "mental disorder."
as

a "diagnostic

The report of his visit records

impression"

could be ruled out.

that a

neurological disorder

Although the report of a visit in August

1985 states that he had previously been diagnosed tentatively

as

having

include any

a "personality

disorder"

report stating this

(the

record does

diagnosis), at the

not

date of

the August visit he was found to be "in contact with reality"

and "oriented."

He was not

"no major psych. pathology"

visited

the

Mental

Health

admitted for treatment

was found.
Center

sleeplessness and hallucinations.

In October

again,

because
1986, he

complaining

Although he was

of

admitted

to receive treatment at

the Center as an outpatient

examiner's "diagnostic impression" was

an "adjustment disorder" and a
record of

his visit stated

and the

that Oyola might have

"histrionic personality," the

that he was

"logical, coherent,

[and] oriented."

At what appears to be his next appointment,

in January 1987,

he was reported as not mentioning "anything

-8-

that calls our attention."

Department

of

Mental

appointment there.

Records for the same day from the

Health

Some days

state

that

he

later he visited

missed

his

the Bayamon

Mental Health Center without an appointment, complaining that

he

had

had hallucinations,

problems.

heard

voices,

memory

He stated that his medication helped him "but not

enough."

The record states

oriented,

approachable, communicative", and

to make any

and had

change in

that he was "logical, coherent,

medication.

Although

does not appear

the record

of

that visit shows that an appointment for April 1987 was made,
the record contains no report of that visit or any subsequent
visit

by Oyola to the Center,

nor is there any other record

of

any

other treatment

of

Oyola for

mental

or emotional

problems.

Accordingly, it appears that Oyola did not receive

treatment

at

facility
last
to

the

Mental

after January

Health

1987.

Center

or

Thus, for

at any

other

approximately the

two years of the coverage period (and the entire period

be adjudicated

alleged nervous

here), he

condition.

substantial evidence for the

received no treatment
Therefore, the record

for his
provides

ALJ's conclusion that Oyola did

not suffer from a disabling mental condition.

II.

Reliance on the Grid

____________________

After determining that Oyola could

unskilled

work

in

which he

would

not

perform medium,

have

to climb

or

balance, drive or be exposed to unprotected heights or moving

-9-

machinery, the ALJ concluded that Oyola could not perform his
previous

heavy

environment."4
of proof shifted
other jobs

work

which

exposed

Accordingly, the
to the

existing in

him

"hazardous

ALJ noted that

the burden

Secretary to show

to

that there

significant numbers in

were

the national

economy

which he

nonexertional
experience.

could

perform, given

impairments,

age,

education

and

and
work

He found that Rule 203.25 of the Grid indicated

that Oyola

could

because he

was a younger individual

who

readjust to

could

his exertional

make a

successful

medium

vocational

adjustment

with marginal education

unskilled work

activities.5

____________________
4. The ALJ does not explain what hazards Oyola encountered
in his previous jobs, but the record shows that his most
recent job involved work with a machine called a "stacker"
and that an earlier job may have entailed some driving of the
trucks which it was his job to load.
5. The ALJ's finding that Oyola met those criteria was
supported by substantial
evidence.
Based on
Oyola's
testimony as to his age at the hearing, Oyola would have been
40 years old or younger when his coverage expired, and thus
was a "younger individual."
See 20 C.F.R.
404.1563(b)
___
("[i]f you are under age 50, we generally do not consider
that your age will seriously affect your ability to adapt to
a new work situation.").
Since Oyola had finished fifth
grade, his education was "limited or less."
See id.
________
404.1564(b)(2), (3) (a limited education is one between the
seventh and eleventh grades; a marginal education would be
formal schooling to the sixth grade level). In his previous
jobs, Oyola loaded and unloaded pipes and helped dig holes in
which to lay them; he cleaned gasoline tanks, washed trucks,
painted gasoline pipes, and stacked drums; and he lifted,
moved and stacked blocks, using his hands, wheelbarrows and a
stacking machine, and also performed maintenance work. This
work would appear to be unskilled work, as found by the ALJ.
Cf. id.
404.1568(a) (unskilled work requires little or no
________
judgment to do simple duties that can be learned in a short
time on the job, e.g., handling, feeding and offbearing, and
-10-

Without the aid

203.25 as a
Oyola was

of vocational testimony,

the ALJ used

"framework" for his decision and

not disabled

because his

Rule

concluded that

"capacity for

the full

range of medium work was not significantly compromised by his

nonexertional
coverage."

conditions prior

As we

to

the

expiration

of

his

noted in Ortiz v. Secretary of Health and

_____
________________________

Human Services, 890 F.2d 520,

_______________

524 n.4 (1st

Cir. 1989) (per

curiam), because the ALJ failed to take vocational testimony,

he is deemed to have
that

jobs that

relied exclusively on the Grid to

Oyola could

perform existed

show

in significant

numbers in the national economy.

Oyola

contends

exclusively on the
limitations

Grid.

that
He

the

ALJ

erred

argues that his

significantly compromised his

in

relying

nonexertional

ability to engage

in the full range of medium work, so that the ALJ should have
consulted a vocational
disabled.

expert before finding that he was not

Although Oyola's argument has merit and this issue

is a close one, we find that, under the circumstances of this

case, it

is not necessary to

remand to the ALJ

testimony of a vocational expert.

to take the

____________________
machine tending).
Although the ALJ found that Oyola could
not speak English and the inability to speak English may
point to disability for some individuals at some exertional
levels, an ability to speak English is not relevant to the
disability determination in Table 3 of the Grid, in which
Rule 203.25 is located.
See 20 C.F.R. Pt. 404, Supbt. P,
___
App. 2,
203.00 & Table 3.
-11-

In Ortiz, supra,
_____ _____
consult

vocational

nonexertional

we stated

experts

limitations,

significantly compromise

at 524 ("If

he

ALJ need

determines

significant ones,
range of work

has the

occupational base

highly relevant and can

effect only of
marginally, the

we stated

reduced by

that "the

a nonexertional

that
do

not

a claimant

even though
reducing [a
Grid remains

be relied on exclusively to

finding as to disability.") (footnote omitted).

time,

not

at the relevant exertional level.

a non-strength impairment,

considered significant,
claimant's]

even

the full

may be expected to perform

See id.
___ ___

if

that an

more

At the same

that occupational

impairment, the less

yield a

base is

applicable

are the factual predicates underlying the Grid rules, and the

greater is the need for vocational evidence."

In determining whether
significantly
sometimes
causing

compromises the

analyzed the

a nonexertional
occupational

severity

the nonexertional

Id. at 524-25.
___

of the

limitation

base,

medical

limitation.6

See,
___

we

have

condition
e.g., Perez
____ _____

Torres v. Secretary of Health and Human Services, 890

______
________________________________________

F.2d

1251, 1254-55 (1st Cir. 1989) (per curiam).

this

same

analysis

here,

we

would

conclude

If

we use
that

Oyola's

____________________
6. The ALJ appears to have taken this approach.
On the
basis of his discussion of the severity of Oyola's alleged
impairments, he concluded, without further support, that
Oyola's "capacity for the full range of medium work was not
significantly compromised by his non-exertional conditions
prior to the expiration of his coverage."
See Finding No.
___
12.
-12-

nonexertional
ability

to

exertional

impairments did not significantly diminish his

perform the

level.

full range

Before

his

of

work at

coverage

the medium

expired,

Oyola

apparently received
possible
where

emergency treatment

seizure disorder

the

seizure,

provisional
and

in

only

twice --

diagnosis

ruled

September

provisionally diagnosed.
had suffered
had

reported

seizures.
be

1987,

symptoms of

in October
out

where

an

he

had

In October 1985

under control,

due to the
never

epileptic
was

not been

been

and that he

seizures, he had
treated

for

the

Oyola's seizures were reported to

although he

medication and had

1983,

epilepsy

epileptic seizures since childhood

that

Although Oyola had reported that he

been "suspended" from work

also

for

had lost

taking it.

his anticonvulsant
Lay statements

by

Oyola's sister and sister-in-law in 1989 indicated that Oyola

suffered

seizures once a month,

but that the seizures could

be controlled for periods of up to

most

recent

seizures observed

September of 1989.
show that Oyola's
the criteria
fact.
11.03

The medical

were

in

April, August

records and lay

in the

Listings, and

Oyola has

404, Subpt. P, App.

presumptively disabled

under the

and

statements

epileptic condition did not meet

See 20 C.F.R., Pt.

___
(to be

four months, and that the

or equal

conceded that
1,

11.02,

Listings, a

claimant must suffer major seizures more frequently than once

a month, and minor seizures more frequently than once weekly,

-13-

despite

following

months).

prescribed treatment

Based

on the

record

emphasizing that Oyola received

for at

of treatment

least three
alone,

and

no treatment for epilepsy at

all in 1988, the period to be adjudicated here, we would have

to

conclude that

Oyola's epilepsy

did not

manifest itself

frequently enough to significantly

compromise his ability to

engage

medium

in

the

full

range

of

work

during

the

adjudicatory period.
Given the
in

nature of the

nonexertional limitations

this case, however, we are reluctant to rely on that kind

of analysis.
Heggarty v.
________

In Perez Torres and other

_____________
Sullivan, 947 F.2d
________

cases, see,
___

990, 996-97 (1st

e.g.,
____

Cir. 1991)

(per curiam) (evaluating the claimant's poor manual dexterity

in light

of the importance of

the sedentary
525
of

fine motor skills to

exertional level);

(evaluating the claimant's

the bending

nonexertional

claimant's ability
mental tasks.

As a

to perform

in

F.2d at

bending restriction in light

requirements for
limitations

Ortiz, supra, 890

_____ _____

jobs at

light work),
question

diminished

certain kinds of

result, analyzing the

the specific
the

physical or

severity of

the

physical or mental condition giving rise to the nonexertional

limitation

truly

nonexertional
perform the
level.

captured

the

degree

limitation affected the

full range of

In

contrast,

which

the

claimant's ability to

work at the
Oyola's

to

requisite exertional

nonexertional

limitations

-14-

consist of environmental restrictions which preclude him from

performing
job

whole categories of jobs -- he cannot perform any

that requires him to drive, to be near moving machinery,

or to be exposed to unprotected heights (which, for

purposes

of our discussion here, we find subsumes Oyola's climbing and

balancing limitations).7
Under
better

way

these circumstances,

to

determine

whether

limitations significantly reduce

be

to attempt

Oyola's

to

quantify in

occupational

limitations.

base

believe

Oyola's

that

the

nonexertional

his occupational base would

some

caused

See, e.g., Gagnon

___ ____ ______

we

way the

reduction

by

environmental

his

in

v. Secretary of Health and

________________________

Human Services, 666 F.2d 662, 666 (1st Cir. 1981)

______________

(remanding

because

the

ALJ

nonexertional

failed

to

limitations,

restrictions, limited

consider

which

whether

included

the number of jobs

Gagnon's

environmental

he could perform).

____________________
7. Oyola's
climbing
and
balancing
limitations
are
essentially equivalent to the environmental restriction that
he not be exposed to unprotected heights. The conclusions of
Drs. Marxuach and Hernandez regarding those limitations are
supported by the record only to the extent that they are held
to derive from Oyola's epileptic condition. That is, there
is no evidence in the record that, physically, Oyola cannot
climb or balance. Oyola's epileptic condition would create a
problem for him in climbing and balancing terms only when he
actually suffers a seizure while climbing to or balancing at
heights.
Consequently, we treat
those limitations as
subsumed in the requirement that Oyola not be exposed to
unprotected
heights.
If
only climbing and balancing
restrictions based on
Oyola's physical capacities were
present here, the Perez Torres type of analysis would be
_____ ______
adequate.
-15-

This approach
Social
specific

basically reflects

Security

Rulings

the approach taken

discussed

nonexertional limitations

restrictions,

state

exertional level are

whether few

below,
and,

or

in the

which

consider

at least

for some

many jobs

at

a given

affected by those limitations.

Other

circuits also appear to take a more quantitative

determining

the effect

of environmental

claimant's occupational base.

restrictions on

1984) (remanding because there was no

there were

See, e.g., Allen v. Secretary

___ ____ _____
_________

of Health and Human Services, 726 F.2d 1470, 1472

_____________________________

that

approach in

evidence in the record

"significant number

which the claimant could perform

(9th Cir.

of sedentary

jobs"

despite his ability to work

only in environments free of respiratory irritants); Asher v.

_____
Bowen,
_____

837

because

F.2d

825,

ALJ

could

the

unskilled

sedentary

environment in

827-28 (8th
not

jobs

Cir.

assume

took

that

place

light of regulations

1988)

the majority

in a

of

pollution-free

and caselaw

such jobs

categories

often

irritants);

Ellison v. Sullivan, 921 F.2d 816, 820 (8th Cir.

_______
________
reduction in

for sedentary work

was

involving

only

half

exposure

to

the claimant's

the

Zalewski v. Heckler, 760

________
_______

it

rendered the

jobs

in

the

respiratory

restriction

claimant able

occupational

F.2d 160, 165 (7th Cir.

-16-

benchwork

functional capacity

because of his environmental

significant because

perform

trades and

suggesting

that 85% of

1990) (the

are in machine

(remanding

to

base);

1985) (the

claimant's

antisocial

personality

affect his capacity to

did

not

significantly

do sedentary work because regulations

indicated

that 85% of such

jobs were in

machine trades and

benchwork

categories that would not require much interaction

with others).
In
number

the absence

of jobs Oyola is

restrictions,

we

it

discusses

the

assessments

cases like

"[r]elatively few

this

one

jobs in the

ascending

See SSR
___

83-14, reprinted in [Rulings

____________
Reprinting

offered in

in which

limitations exist.

require

Security

of the

the

Ruling 83-14 is the most applicable

exertional and nonexertional

states that

helpful measures

precluded from performing given his

turn to

Social Security Rulings.

because

of other

or descending

Service,

ladders

at

both

The Ruling

national economy
and scaffolding."

1983-91] West's Social

43.8

Although

that

statement applies to the larger job base existing for work at

all exertional levels, the Ruling
___
effect of

that restriction on

also makes clear that

the occupational base

medium exertional level is insignificant:

In jobs at the medium level of exertion,
there is more likelihood than in light
work that such factors as the ability to
ascend
or
descend
ladders
and

the

at the

scaffolding, kneel, and

crawl will be

____________________
8. The "ascending or descending ladders and scaffolding"
restriction reflects the climbing restriction placed on
Oyola. The residual functional capacity forms filled out by
Drs. Marxuach
and Hernandez show
climbing to involve
"ramp/stairs" and "ladder/rope/scaffolds."
-17-

part of the work requirement.

However,
limitations of these activities would not
significantly affect
the occupational
base.
Thus, the

Ruling suggests that a

not affect a

significant number

that

Oyola

would

not

be

significant

number

of

jobs

restriction.

Since it

is

climbing restriction would

of jobs, and

precluded
by

the

unclear,

from

so we

assume

performing

unprotected

heights

however, how

Oyola's

additional restrictions against driving and being near moving

machinery would affect his
Ruling
Oyola's

does

not

substantiate

restrictions

occupational base.9

occupational base, ultimately the

did

not

the

ALJ's

conclusion

significantly

reduce

that
his

____________________
9. Ruling 85-15, discussed next, also discusses a climbing
and balancing restriction, stating that:
"Limitations on
climbing and balancing can have varying effects on the
occupational base, depending on the degree of limitation and
the type of job. . . . These activities are required more in
some jobs than in others, and they may be critical in some
occupations. Where a person has some limitation in climbing
________________
and balancing and it is the only limitation, it would not
_______________
ordinarily have a significant impact on the broad world of
work."
(Emphasis added.)
Like Ruling 83-14, this Ruling
suggests
that Oyola's restriction against climbing and
balancing -- equated here with the unprotected heights
restriction -- would not significantly diminish Oyola's
occupational base, but it is not dispositive. First, Oyola
does not just have "some limitation" in his ability to climb
and balance,
but is completely prohibited
from those
activities.
Second, Ruling 85-15 applies only to claimants
with no exertional impairments. Thus, its starting point is
__ __________ ___________
the larger universe of jobs existing at all exertional
levels.
A prohibition against climbing and balancing may
well implicate a smaller percentage of that occupational base
than it would the smaller initial base of jobs comprising
work at the medium level of exertion.
-18-

The Secretary points to Social

Security Ruling 85-

15 as substantial evidence for the ALJ's finding that Oyola's

nonexertional limitations
occupational base.
a

seizure disorder

do not significantly

diminish his

That Ruling states that "[a] person

who

is restricted

only

from being

with
on

unprotected elevations and near dangerous moving machinery is

an example
not

of someone

have a

exertional

significant effect
levels."

1983-91] West's
As

Oyola

account

whose environmental

See SSR
___

on work

that exists

85-15, reprinted
_________

Social Security Reporting

points out,
his additional

this connection,

this

restriction does

statement

in [Rulings
__

Service, at

does

restriction against

however, Ruling 83-10, which

Grid, is relevant.

at all

not take
driving.10

351.
into
In

discusses the

That Ruling defines medium work

in part

as follows:
A full range of medium work requires
standing or walking, off and on, for a
total of approximately 6 hours in an 8hour workday in
order to meet
the
requirements
of frequent
lifting or
carrying objects weighing
up to
25
pounds.
As in light work, sitting may
occur intermittently during the remaining
time. . . . However, there are relatively
few occupations in the national economy
which require exertion
in terms
of
____________________
10. And, as noted in the preceding footnote, the Ruling
applies to the larger base of jobs existing at all exertional
levels, rather than the smaller base of jobs existing at the
medium exertional level, so that the effect of a restriction
on unprotected elevations and moving machinery might be
insignificant
for jobs
existing
at all
levels, yet
significant for jobs only at the medium exertional level.
-19-

weights that must be lifted at times . .

. but are
performed primarily in a
sitting position, e.g., taxi driver, bus
driver,
and
tank-truck
driver
(semiskilled jobs). In most medium jobs,
being on one's feet for most of the
workday is critical.
SSR

83-10,

Security

reprinted
_________

Reporting

indicates that

in
__

[Ruling

Service,

there

are

at

1983-91]
30.

fairly few

medium jobs

entail standing

jobs

this

Ruling

the

medium

at

drive, and that

for most of

Moreover, the examples the Ruling gives

Social

Thus,

exertional level which require the worker to

most

West's

the workday.

of driving jobs that

exist at the medium exertional level are all semiskilled jobs

___________
which would not

be included in Oyola's

any event since

the Grid

unskilled

work.11

Rule in question

Once

Ruling suggests that the

again,

however,

Oyola's

other

Therefore, we conclude that

suggest

only

that

although

to
this

only marginally, if at all,

it gives no indication what effect that

with

applies only

driving restriction by itself would

reduce Oyola's occupational base

combined

occupational base in

restriction has when

environmental

restrictions.

the Rulings indicate or strongly

Oyola's

environmental

restrictions,

individually, would not significantly reduce his occupational

base.

However, they do not support the ALJ's conclusion that

____________________
11.

See SSR 83-10, supra, at 27 ("The RFC addressed in a

___
_____
[Grid] rule establishes the presence of an occupational base
that is limited to and includes a full range (all or
substantially all) of the unskilled occupations existing at
_________
the exertional level in question.") (Emphasis added.)
-20-

Oyola's combined limitations

would not significantly

reduce

his occupational base.

Our conclusion

means that

the ALJ could

not rely

exclusively on the Grid to support his decision that

nonexertional impairments
occupational base.
was

required

evidence

to

on that

It

did

consult

point.

The Rulings

publications listed at 20
the

limitations not

extent

supra, at 346;

vocational

make clear

See
___

to

his

the ALJ
obtain
that, in

ALJ may consult the vocational

C.F.R.

to

expert

which

404.1566 and
additional

considered in the Rulings

occupational base.

erode

does not mean, however, that

"relatively simple" cases, an

determine

not significantly

Oyola's

nonexertional

affect a person's

SSR 83-14, supra, at 45;

_____

SSR 83-12, supra, at 37; see

416.966 to

SSR 85-15,

also SSR 85-15,

_____

_____

supra,
_____

at

352 (where

between "very
need

to

services
Gray
____

restriction falls

little" and "excessive," an

ALJ would usually

of a

occupational

reference

materials

vocational specialist) (emphasis

v. Heckler, 760 F.2d

_______

curiam)

____

environmental

consult

the

___

(although

the

369, 371-72 (1st

court

notes

"preferable" to elicit vocational

or the
__

added); cf.
___

Cir. 1985) (per

that

it

would

be

testimony to show that the

claimant could return to the "type" of work he had previously

performed,

the

court

approved

the

ALJ's

reliance

on

vocational publications to establish that fact).

-21-

We think
case

for two

combined

reasons.

effect

limitations

that this

have

First,

which
on

case is a

Oyola's
his

"relatively simple"

although we do

not know the

particular

nonexertional

occupational

base,

the

Rulings

indicate or strongly suggest

that, individually, they

not

that

significantly

unprotected

reduce

heights and

base.

Moreover,

driving limitations

have very little effect

______

at all on the

would
the

would probably

number of jobs

could perform at the medium exertional level.

Oyola

See SSR 83-14,

___

supra, at 43 ("relatively few jobs . . . require ascending or

_____
__________ ___ ____
descending
83-10,

ladders and

supra,
_____

require

at 30

scaffolding") (emphasis
("relatively
__________

exertion [at

the

medium

few
___

added); SSR

occupations .
___________

level]

but

.
are

performed primarily in a sitting position, e.g., taxi driver,

____
etc.") (emphasis

added).

than

when

not

that,

restriction,
significantly
that

those

Accordingly, it

combined with

nonexertional

erode

Oyola's

the

seems more likely

moving

impairments

occupational base,

machinery
would

not

suggesting

this case should be classified as a "simple" case under

the Rulings.
Second,

apart

from

the

question

of

Oyola's

nonexertional impairments, Rule 203.25 of the Grid would have

directed a conclusion of not
________
expected
That is

to make

disabled because Oyola could be

vocational adjustment

to say, Oyola's vocational

-22-

to medium

work.

attributes fit precisely

the vocational criteria of the Rule -- that the persons as to

whom it would direct
individuals" whose

a finding of not disabled

education is "limited or

previous work experience was "unskilled".

are "younger

less" and whose

Consequently, this

case is certainly a "simpler" one than a case in which a Grid

Rule

should

limitations
profile

not

be

exist

applied

and
___

is different

both
____

because
than that

because

the

nonexertional

claimant's

assumed by

vocational

the Rule.

Cf.
___

Ortiz, supra, at 890 F.2d at 524 ("Whether by so invoking the

_____ _____
Grid as a 'framework,'
under

step

the Secretary can satisfy

five without

resorting

his burden

to vocational

evidence

depends on how closely the claimant's characteristics and the

___ _______
Grid

criteria

connection,

overlap.")

we note

place him near the

the Grid rules.

that

Oyola's

added).

In

this

characteristics did

not

disabled/not disabled dividing line under

See id. at 528; Rule 203.25.

___ ___

Accordingly,
relatively

(emphasis

we

think

that

this

case

is

simple case, and that the vocational publications

listed

in the

regulations

expert

testimony to

may

substitute

establish that

for

vocational

specific jobs

exist in

significant numbers in the national economy which Oyola could

perform given his
relevant

to

restrictions.

this case

is

The vocational

the

publication

Dictionary of Occupational
___________________________

Titles published by the Department of Labor, which

______
at 20 C.F.R.

is listed

404.1566(d)(1), 416.966(d)(1).

-23-

The
reports

record

by two

contains

"Supplemental

disability examiners

-- Belen

Rationale"
Sampayo, who

denied Oyola's application initially, and Salvador Toro,

denied

Oyola's application

concluding

apparently

work,12

assumption that

an

here, Sampayo and

the

that

upon reconsideration.
Oyola
does

Toro each listed

could

not

Oyola and which

heavy

analysis

three jobs described

Dictionary of
Occupational Titles
_____________________________________

performed by

Although

perform

affect our

who

which

they stated were

could

in
be

available in

the national economy, for a total of six such jobs:

229.587-018
369.687-018
795.687-014

Ticketer (textile)
Folder (laundry)
Sample
mounter

920.687-126
920.687-166
920.687-178

Marker (any industry)

Shoe Packer (boot and shoe)
Stenciler (any industry)

(any

industry)13

____________________
12. Sampayo and Toro both used Grid Rule 204.00 as a frame
of reference for their decision.
That Rule applies to
persons who can perform heavy work despite their severe
medically determinable impairments.
We see no problem
arising out of Sampayo's and Toro's and the ALJ's different
evaluations of
Oyola's exertional capacity.
The ALJ
determined that
Oyola's
alleged pain
constituted
an
exertional impairment that reduced his functional capacity to
the medium exertional level.
In doing so, he relied upon
Oyola's testimony at the hearing, evidence which was not
before Sampayo or Toro, who made their decisions before the
hearing on the basis of the medical records alone.
As
already noted,
those records
would have
supported a
conclusion that Oyola did not suffer pain between February
___
and December 1988 to a degree that would have affected his
exertional abilities.
13.

The title given in the Dictionary of Occupational Titles

_________________________________
under this number is "gluer," but "sample mounter" is given
as an alternate title.
-24-

The descriptions of those jobs in the Dictionary of

_____________

Occupational Titles
___________________
could

perform

restrictions.

are

given

consistent with
his

exertional

(rev. ed.

1991), at

Dictionary, at 842, 937, 938; App. B, C.

__________
"light"

exertional

and

which

Oyola

nonexertional

See U.S. Department of Labor, I Dictionary of

___
______________

Occupational Titles
___________________

the

work

exertional
capacity.

level,

and

205, 266,

267; II

The jobs are all at

thus

within

Oyola's

See 20 C.F.R., Pt. 404, Subpt. P, App.

___

2, Rule 203.00(a) ("The functional capacity to perform medium

work includes
light,

and

the functional capacity

medium

development required
appear to

work.").

education.14

All

The

to perform the

be appropriate
of the

in

to perform sedentary,
general
jobs is low,

light of

jobs require

educational
and would

Oyola's fifth

grade

minimal retraining,

____________________
14. The second lowest reasoning level is assigned to the
ticketer, folder, marker, and shoe packer jobs.
That level
would require Oyola to "[a]pply commonsense understanding to
carry out
detailed
but uninvolved
written
or
oral
instructions" and to "[d]eal with problems involving a few
concrete variables in or from standardized situations." The
lowest reasoning level applies to the sample mounter and
stenciler jobs, and requires application of "commonsense
understanding to carry
out simple
one- or
-two-step
instructions" and the ability to deal with "standardized
situations with occasional or no variables . . . ."
The
lowest language level is assigned to all but the ticketer
job, and would require Oyola to "[p]rint simple sentences
containing subject, verb, and object, and series of numbers,
names, and addresses", and to "[s]peak simple sentences,
using normal word order, and present and past tenses."
The
second lowest language level
applies to the
ticketer
position, and would require Oyola to be able to read
"adventure stories and comic books, . . . [and] instructions

for assembling model cars and airplanes", to

"[w]rite
compound and complex sentences," and to "[s]peak clearly and
-25-

i.e., instruction beyond

____

a short demonstration, but

no more than one month.

None of the jobs

lasting

requires climbing

and balancing or exposure to any hazards.15

Only

one aspect

of

the job

Dictionary
of
Occupational
Titles
_______________________________________
discussion.

The description for the

descriptions in
requires

further

folder, sample mounter

and marker positions appear to require work with machines:

folder

"[m]ay" use

machine"; a
material

a "button-sewing-"

sample mounter

against [a]

or "button-attaching

may apply adhesives

rotating

the

saturated brush,

by "holding
or feeding

____________________
distinctly with . . . correct pronunciation, . . . using
present, perfect, and future tenses."
All of the jobs
require only the most rudimentary mathematical skills, e.g.,
the ability to add and subtract only two digit numbers, to
perform some multiplication and division, to use money and to
measure with units like the cup, pint, quart, inch, foot,
yard, ounce and pound.
15. The Guide
given the jobs

for Occupational Exploration ("GOE") numbers

in the Dictionary of Occupational Titles are

__________________________________
cross-indexed in
a companion
volume prepared by
the
Department of Labor entitled Selected Characteristics of
_____________________________
Occupations Defined in the Dictionary of Occupational Titles
_____________________________________________________________
(1981), the use of which we approved in Gray, supra.
That
____ _____
volume classifies the physical demands of jobs (sedentary,
light, medium, etc.), and breaks jobs down into the types of
physical activities they entail.
All of the jobs listed
above are coded as "4", meaning that they require "reaching,
handling,
fingering,
and/or
feeling."
Selected
________
Characteristics, at 75, 210, 212-14; App. A, at 465-66.
(A
_______________
sample mounter
is also required to
have good visual
abilities.) Id. at 210; App. A, at 466. None of the jobs is
___
characterized as requiring climbing or balancing.
The
Selected Characteristics volume also describes environmental
________________________
restrictions associated with certain jobs. Of all the jobs
listed above, only the folder position has an environmental
restriction. Coded as "4", it involves work in a wet and
humid environment, an environment in which Oyola could work.
Id. at 212, 467, 479.
___
-26-

part between saturated rollers";

"tag

dispensing

merchandise.
the

kinds

avoid.

machine"

However,
of dangerous

to

and a marker "[m]ay"

attached

gummed

these "machines" do not

moving

The sixth number in

machines

use a

labels

to

appear to be

which Oyola

each of the title numbers

must
given

in the

above list is

"7".

According

to Appendix B

Dictionary of Occupational Titles, that

___________________________________
those jobs
and/or

require workers to use

special devices

materials,"

to work,

whereas jobs

carry other numbers in

App. B, at 1005-07.
folder, sample
foot-operated

involving "machines

the sixth place.

mounter and marker jobs appear

seizure would not only

the worker suffers a

a household

or equipment"
II Dictionary,
__________

to be hand-or
or a

Thus, a worker suffering

by the machine,

stop operating once

seizure because his hand or

of Health and Human Services,

_____________________________

in the

sewing machine

not be endangered

removed from the controls.

1981) (the

See
___

objects or

Consequently, the machines used

(e.g., like
____

that

"body members, handtools,

but most likely the machine itself would

be

number means

move, or carry

grocery store price tag dispenser).

a

of the

foot would

Cf. also Lizotte v. Secretary

________________
_________
654 F.2d 127,

ALJ determined that

130 (1st

the claimant could

Cir.

not work

around hazardous machinery, but would be able to perform

the

job of "marker machine operator in a shoe factory").

Lest there be any
sample mounter

doubt, however, that the folder,

or marker positions would

-27-

be appropriate for

Oyola, we do
decision.
and

not rely

in rendering

our

The remaining three jobs -- ticketer, shoe packer

stenciler --

provide

on those positions

ample

do not

involve any

evidence

that

machinery, and

specific

jobs

would

exist

in

significant numbers in the national economy which Oyola could

perform.

See, e.g.,
__________

(affirming an ALJ

Lizotte,
_______

three

expert testimony that

named

654

curiam)

where the
as

to

jobs); see
___

also
____

(affirming

jobs

vocational expert

130

the claimant could perform

Arce Crespo
___________

an ALJ

decision was based on

four

at

the decision was based on

v.

Health and Human Services, 831 F.2d 1, 3, 5

__________________________
(per

F.2d

decision that the claimant could engage in

substantial gainful activity where

vocational

supra,
_____

which the

decision

Secretary of
____________

(1st Cir. 1987)

denying benefits

vocational expert testimony

claimant

relied in part

could

perform;

on the description

the

of the

jobs found in the Dictionary of Occupational Titles).

_________________________________
Although the ALJ did
jobs

listed

support
that

he

by disability

not specifically refer to the

examiners

Sampayo

and Toro

to

his decision, at the outset of his opinion he stated

had

"carefully

considered

all

the

documents

identified in the

record as exhibits, . . .

includes the "Supplemental

jobs.
663

."

Exhibit C-8

Rationale" reports listing

those

In Geoffrey v. Secretary of Health and Human Services,

________
______________________________________
F.2d 315 (1st Cir. 1981), we considered an argument that

the ALJ should

have listed

specific jobs to

show that

the

-28-

claimant could perform substantial

we noted

that

occupations

the record

which the

circumstances, we saw
occupations

in his

records show

claimant
no need

example of

Geoffrey can

"demonstrate[d]

contained

decision,

represented "a fair

gainful work.
the names

could perform.
for the ALJ
but we

also

the type of

engage in"

some weight
upon,

several

Under

to repeat

the
those

said that

they

light work

the

and that the

Id. at 319 & n. 8.

___

suggested that evidence of specific jobs

relied

of

listing

. . . that the record is not entirely devoid

of evidence in this respect."

be given

In dictum,

or

even

upon appeal
mentioned,

Thus, we

in the record could

even if

the ALJ

that

evidence

had not
in

his

decision.

Here,

at least, the

ALJ made clear

that he had

reviewed the disability examiners' reports, and may also have

been

influenced

disabled from

by

them

in

finding

that

engaging in substantial gainful

Oyola was

not

work, even if

he did not refer to them specifically.

Obviously, it would be preferable to require an ALJ
to

describe

decision that
substantial

specifically

all evidence

a claimant

is not disabled

gainful

circumstances

employment.

present here,16

which

supports his

from engaging

Nevertheless,

it makes

under

no sense

in
the

to remand

____________________
16. Given the evidence in this case we would have sustained
a decision by the ALJ rendered consistent with the regulation
at 20 C.F.R., Pt. 404, Subpt. P, App. 2,
200.00(e)(2). In
that regulation the Secretary provides for the following
analytical procedure for determining whether an individual
-29-

solely

to

existence

call a

vocational expert

to

testify as

to the

of jobs that Oyola may perform when at least three

appropriate jobs are already named in the record.

Therefore,

we find that the Secretary has met his burden of proving that
Oyola's

exertional

and

nonexertional

impairments

did not

____________________
with both
exertional and nonexertional
impairments is
disabled:
(1) The decisionmaker is to see whether the
individual is disabled based on strength limitations alone.
Here, Oyola was not disabled because he retained the ability
to do medium work. (2) The decisionmaker is to consider the
relevant Grid Rule as a "framework." Rule 203.25 being used
as a framework, Oyola's residual functional capacity, age,
education and work experience all indicated that he was not
disabled. (3) Finally, the decisionmaker is to consider "all
of the relevant facts in the case" as described in the
regulations, including the adjudicative weight accorded such
factors.
Here, the evidence showed that only Oyola's
epilepsy and pain could
be characterized as medically
determinable severe impairments, but that his epilepsy did
not meet the criteria of the Listings, indicating that he was
not per se disabled from engaging in substantial gainful
employment.
See 20 C.F.R.
404.1525(a). The evidence also
___
showed that he had
not sought or followed consistent
treatment for his conditions, important failures under the
regulations and case law. See id.
404.1530; Irlanda Ortiz
_______
_____________
v. Secretary of Health and Human Services, 955 F.2d 765, 770
______________________________________
(1st Cir. 1991) (per curiam) (lack of sustained treatment
bolsters decision that the claimant was not disabled);
Tsarelka v. Secretary of Health and Human Services, 842 F.2d
________
_______________________________________
529, 534 (1st Cir. 1988) (per curiam) (the claimant should
have secured treatment to show that her ability to work could
not be restored).
In addition, the Rulings indicate or
strongly suggest that, individually, Oyola's nonexertional
limitations would not significantly affect the full range of
medium work he could
perform.
Those Rulings further
indicated that, here, the Secretary could rely on the
Dictionary of Occupational Titles for vocational evidence
___________________________________
that specific jobs which Oyola could perform existed in
significant numbers in the national economy, and the record
contained specific job titles, whose descriptions matched
Oyola's exertional and nonexertional limitations.
-30-

disable him from engaging in

substantial gainful employment.

The decision of the district court is affirmed.

________

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