USCA1 Opinion

January 23, 1995

[NOT FOR PUBLICATION]

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

____________________
No. 94-1793

LUIS A. RIOS VAZQUEZ,

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, II, Senior U.S. District Judge]
__________________________
____________________
Before

Selya, Circuit Judge,

_____________
Campbell, Senior Circuit Judge, and
____________________
Boudin, Circuit Judge.
_____________
____________________

Juan R. Requena Davila and Juan A. Hernandez Rivera on brief

_______________________
_________________________
appellant.
Guillermo Gil, United States Attorney, Maria Hortensia Ri
______________
___________________
Assistant United States Attorney, and Eileen M. Cedrone, Assist
__________________

Regional Counsel, Region I, Department of Health

on brief for appellee.

and Human Servic

____________________
____________________
Luis A. Rios-Vazquez (claimant)

Per Curiam.
__________

appeals

from a district court judgment affirming the decision of

the

Secretary

his

of

Health

and

Human

application for disability benefits.

Services

denying

For the reasons

stated

below, we affirm.
I.
Claimant

was born

on

May 23,

1945,

benefits when he was forty-four years old.

grade

education.

In 1977,

while working

and applied
He has an
in Chicago

for

eighth
as a

crane operator, he lifted a

After

steel object and became "stiff."

two more similar episodes, he was diagnosed in 1979 as

having a
1979.

herniated disc and

He was allowed

1979,

underwent surgery on

to return

although he continued to

pain.

In 1981, claimant

working as a truck driver.

to time, especially when
He also suffered
ceased

pain and

on September

Rico and began

His back pain worsened

from time

he drove for long periods

of time.

numbness in the

legs.

1989, and he

Claimant

has not worked

He is insured at least through March 11, 1991.

On February 28, 1990, claimant filed an application

disability
1989 due

benefits alleging
to back pain

claimed that

that

Asked

he kept

disability since

and "frequent

his doctors

anything heavy.
stated

24,

experience some leg and back

returned to Puerto

working on February 26,

since then.

to work

April 18,

had

February 26,

loss of balance."

prohibited him

from

surrounding his

He

lifting

to describe his daily activities,

the area

for

he

home clean.

Other activities included driving his car, reading the bible,

visiting relatives, and going to church.

Administration denied

claimant's application initially.

June

25,

1990, claimant

that

his

pain had

affected.

The Social Security

requested

worsened and

Claimant's

On

reconsideration stating

that

his nerves

application

was

had been

denied

on

reconsideration.
Claimant obtained a hearing before an Administrative Law
Judge (ALJ) on February 11,
attorney.

1991.

He was represented by

At the hearing, claimant

working as a truck driver because

an

testified that he ceased

of his back or waist pain.

He described the pain as pretty severe, sometimes causing him

to

loose control

medication, it

of

his

leg.

does not provide

Although

he

full relief.

takes

He testified

that he can take of his personal needs, and that

to help his wife with the wash.

In addition,

company,

goes

reads

testified that

little, and

he began

to

pain

he attempts

he visits with

church.

seeking mental health

He

also

treatment in

July 1990 because he "felt nervous."

The
disease

ALJ found
at

L4-L5,

that
he

although
does

not

claimant has
have

combination of

impairments equivalent

impairments.

He also

found

that

an

discogenic

impairment

to one of
claimant is

or

the listed
unable

to

perform his past relevant work, which required heavy lifting,

but that

claimant has

the residual functional

-3-

capacity for

the full range

of light

work.

With

respect to

claimant's

alleged mental condition, the ALJ found that claimant has not
presented a severe mental impairment which can be expected to
last at least

twelve months.

Finally, the

based on claimant's capacity

age,

education,

and work

for light work, as well

experience,

conclusion of not disabled.

review.

ALJ ruled

The

An appeal was taken to

the

Appeals

Council

denied

the district court, where a

the Secretary's

decision was supported by substantial evidence.

the

as his

Grid directs

magistrate-judge (magistrate) concluded that

court adopted

that

magistrate's report

and

The district

recommendation.

This appeal followed.

II.
The medical

record is well-summarized in

the magistrate's

reports, and we

overview

On

partial
L4-5

here.

April

disc.

sufficiently

Approximately
improved to

limited temporarily

need only provide

18, 1979,

hemilaminectomy of L4

claimant

on the left
five

return

the ALJ's and

underwent a

with excision of

months
to work,

a brief

later,

he

was

although he

was

to lifting thirty pounds.

He continued

to feel back

pain and was fitted with a

flexion jacket.

He

was also advised to continue light work and exercise.

There is a gap in the medical record between August 1980
and

August

1988.

On

August

26,

1988,

claimant

began

-4-

treatment with Dr. Victor

Burgos

diagnosed

claimant

disease, osteoarthritis,
various

Burgos for lower back pain.1

medications

as

suffering

from

discogenic

He

prescribed

and muscle spasms.

for

claimant,

Dr.

including

meclomen,

voltaren, and norflex.

Between January

1989 and June 1990,

physical therapy with Dr.

Oscar Arroyo-Nieves.

claimant as suffering from lumbar

laminectomy,

claimant underwent

degenerative joint

He diagnosed

radiculopathy, status post

disease, and

chronic lower

back pain.
On

May 6, 1990,

neurologist, Dr. Nilda

claimant was examined

De Jesus Pla.

by a consulting

The motor examination

revealed that claimant walks dragging his right leg, but

good strength in

the upper

and lower extremities.

Dr.

Jesus Pla did not observe atrophy or abnormal movements.

examination

of claimant's

vertebral column

has
De
Her

revealed marked

spasms in the paravertebral region, as well as mild spasms in

the posterior region
examination
limited

of the right thigh.

disclosed that

to forty-five

claimant's

degrees.

An

A range of motion
forward

bending

x-ray report

is

showed a

____________________
1. A C.T. scan of claimant's spine, reported by Dr. Burgos,
showed degenerative changes at the lumbo sacral spine with
decreased intervertebral disc space at L4-L5 and bulging of
the annulus fibrosus at L4-L5.
It also revealed segmental
calcifications
at
the
outer
annulus
at the
right
posterolateral aspect L5-S1, as
well as sclerosis and
hypertrophic changes at the articular facets at L5-S1 at the
right side causing narrowing of the neural foramina.
-5-

lumbar spondylolysis and myositis with disc disease at L5-L4.

Dr.

De

precludes
driver.

Jesus

Pla

him from

concluded
returning to

that

claimant's

his past

work as

condition
a truck

Dr.
on

Tomas Hernandez, a

June 11,

1990

and diagnosed

pinched nerve root in

that

neurologist, evaluated claimant

him

as suffering

the right side.

Dr.

from

Hernandez opined

this condition, as well as the C.T. lumbar findings and

claimant's

symptomatology,

disabled

claimant

totally

and

permanently from working.

Two residual physical

functional capacity

assessments,

prepared by non-examining medical consultants, are consistent

with

the ALJ's

light work.

finding that claimant

has the

capacity for

The latter assessment, dated August 26, 1990 and

prepared by a consulting neurologist, concludes that "[t]here

is

no motor, sensory, or reflex deficit to account for [the]

statement of inability to work."

Mental

health

records

reveal

that

claimant

sought

treatment on June 6, 1990, complaining of bad humor, an upset

stomach,
chest.

difficulty sleeping,
Claimant

prescribed xanax.

was

and

a tight

diagnosed with

feeling in

his

anxiety disorder

and

He was otherwise found to be

coherent, relevant, and somewhat oriented.

claimant

reported feeling

better.

On July 31, 1990,

On September

claimant stated that he felt frightened.

-6-

cooperative,

20, 1990,

He was continued on

xanax.

On December

20,

1990,

claimant reported

feeling

better with medication.

III.
Claimant contends
Grid to reach a

that the ALJ erred in

relying on the

conclusion of not disabled.

In particular,

he argues that his restricted ability to bend from the waist,

as

well as

the pain

impairments.

Under

he suffers,
the

constitute non-exertional

circumstances, he

contends,

the

testimony of a vocational expert was required to evaluate his

claim.
Where

a claimant's impairments

limitations,
which the

the

Grid

involve only exertional

provides a

Secretary can

"streamlined"

make a determination

method by

whether there

are jobs in the economy which the claimant can perform.

See,
___

e.g.,
____

Cir.

Heggarty v.
________

1991);
520,

Sullivan,
________

947 F.2d

990,

995 (1st

Ortiz v. Secretary of Health & Human Servs., 890 F.2d

_____
__________________________________
524 (1st

claimant

has

Cir. 1989)

(per curiam).

non-exertional

impairments

However,
in

where a

addition

to

exertional limitations, the Grid may not be fully applicable.

See 20
___

C.F.R.

Part 404,

appropriateness of

Subpart P,

relying of the

App. 2,

Grid in such

200(e).

The

a situation

"depends

on

whether

claimant's

nonexertional

`significantly affects [a] claimant's ability to

full

range

of jobs'

Heggarty v.
________

at

Sullivan,
________

the

947

impairment
perform the

appropriate strength

F.2d at

996

(quoting

level."
Lugo
____

v.

-7-

Secretary of Health & Human Servs., 794 F.2d 14, 17 (1st Cir.
__________________________________
1986) (per curiam)).
With respect
from

the

capacity

waist,

("If

we

note

that

assessments reported

occasional bending.
Ortiz, 890
_____

to claimant's restricted
both

ability to

residual

that claimant

This is all that "light"

F.2d at 525; see also SSR 85-15 at

_________

is

bend

functional
capable of

work requires.
97 (CE 1985)

a person can stoop occasionally (from very little up to

one-third

of

the

time)

in

order

to

lift

objects,

the

sedentary and light occupational base is virtually intact.").

Under

the circumstances, claimant's

bending restriction did

not preclude

reliance on the

Grid.

See Ortiz,
___ _____

890 F.2d at

525.
With respect to claimant's pain, we observe that the ALJ
concluded that

claimant's back

disabling factor upon

not

exceed light

pain "does not

his ability to

exertional

constitute a

perform tasks that

demands."

The ALJ

do

evaluated

claimant's allegations of pain in accord with our decision in

Avery v. Secretary of Health & Human Servs., 797 F.2d 19 (1st
_____
__________________________________
Cir.

1986).

activities,
and

Claimant was
functional

duration

factors.

See
___

of
id.
___

pain,

questioned concerning

his daily

restrictions, medication,

frequency

and precipitating

at 28-29.

objective medical evidence.

The ALJ

and

aggravating

also reviewed

He found that apart

the

from marked

lumbar muscle spasms and some flexion difficulties, "claimant

-8-

did

not

movements

present
as

to

gross

neurological

impose

significant

deficits

or

restriction

limited
at

all

exertional

levels."

The

ALJ further

performed full

body movements

distracted due

to pain.

evidence supports
does

not

the hearing

We are persuaded

the ALJ's conclusion that

impair his

Frustaglia
__________

at

noted that

ability to

perform

claimant

and was

not

that substantial
claimant's pain
light work.

See
___

v. Secretary of Health & Human Servs., 829 F.2d

____________________________________

192, 195 (1st Cir. 1987).

Under the circumstances, there was

no error in relying on the Grid.

Claimant also contends that the ALJ gave undue weight to
the opinions of the Secretary's consulting physicians and too
little
This

weight to
is

an

regulations

the opinions

apparent
which

of his

reference

describe

how

to

treating physicians.
recently

the Secretary

promulgated
will

weigh

medical opinions, and provide that, in general, the Secretary

will give more weight to opinions from treating sources.
20

C.F.R.

404.1527(d)

404.1502
(1991)

medical opinions).2
regulations are

(1991)

(explaining

(defining treating
how

the

applicable here, we

source),

Secretary

Assuming, without deciding,

find no fault

See
___

weighs

that these
with the

ALJ's decision on this score.

____________________
2. These regulations were promulgated after the ALJ issued
his decision, but while the case was pending before the
Appeals Council.
-9-

For the most part,

are

fully

the reports of claimant's physicians

consistent

physicians.

with

those

The one exception is

statement that claimant

from working.

of

is totally and

permanently disabled

However, the Secretary was not bound to accept

First, it is by

Hernandez should

be considered a treating

not

Secretary's

Dr. Hernandez' conclusory

this statement.

did

the

consult

Dr.

no means obvious that

Hernandez

until

source.
after

Dr.

Claimant

the

initial

determination of no disability and apparently saw him on only

two occasions.
treating

See 20
___

404.1502 (1991)

(defining

source as a physician with whom claimant has had an

"ongoing" relationship
not

C.F.R.

solely

on

the

based on
need

to

the need for

obtain

treatment and

favorable report).

Second, and more importantly, the determination of disability

is

reserved to the Secretary.

See 20
___

C.F.R.

(1991).

There is ample evidence in the record as

support

the

ALJ's

conclusion

that

functional capacity for light work.

claimant

404.1527(e)
a whole to
retains

the

Claimant's
erred

in finding

impairment
months.

that

that can
This

objection to
See
___

remaining argument
he does

be

issue

is

not

not

the magistrate's

Thomas v. Arn, 474

______
___

the

have a

expected to
was

that

last

Secretary

severe

mental

at least

twelve

encompassed

in

claimant's

report and, thus,

is waived.

U.S. 140, 147-48

(1985); Keating v.
_______

Secretary of Health & Human Servs., 848 F.2d

____________________________________

271, 275 (1st

-10-

Cir.

1988) (per curiam).

relatively

We

add that the record portrays a

mild mental impairment,

to medication.

which has responded well

Moreover, claimant has never clarified how it

allegedly limits his ability to work.

the Secretary
impairment
(defining

is

could properly conclude that claimant's mental

"non-severe."

"non-severe"

significantly

In such circumstances,

limit a

See
___

impairment

20
as

C.F.R.
one

claimant's ability

that
to do

404.1521
does

not

basic work

activities);

Rodriguez
_________

v.

Secretary of Health & Human

______________________________

Servs., 893 F.2d 401, 403-04 (1st Cir. 1989).

______
The judgment of the district court is affirmed.
________

-11-