USCA1 Opinion

[NOT FOR PUBLICATION]

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT
____________________

No. 97-1193

ALBERTO NAZARIO,

Plaintiff, Appellant,

v.

HHS, COMMISSIONER OF SOCIAL SECURITY,

Defendant, Appellee.

____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Juan M. Perez-Gimenez, U.S. District Judge]

___________________

____________________

Before

Torruella, Chief Judge,

___________
Stahl and Lynch, Circuit Judges.
______________

____________________

Salvador Medina De La Cruz on brief for appellant.

__________________________
Guillermo Gil,
______________
Assistant
Regional
appellee.

United

United States
Counsel,

Social

States

Attorney,
Security

Attorney,
and

Lilliam Mendoza-To
___________________

Wayne G. Lewis,
________________

Administration,

on

Assist
brief

____________________

October 29, 1997

____________________

Per Curiam.
___________

Alberto Nazario

appeals

from

the

district

court's

application

judgment

upholding

for Social Security

the

denial

of

disability benefits

Commissioner of Social

Security.

the record, we affirm.

In

After a

his

by the

careful review of

this opinion, we address only the

specific claims of error raised by Nazario on appeal.

Nazario

should have found

contends,

first,

that

him to be disabled on the

the

Commissioner

ground that his

medical findings were "equal to" to the findings described in

Listings

4.02B

unpersuasive,

and

F.3d

We

find

his

contention

however, because he

does not describe

not disclose --

findings pertinent to

the record does

criterion of

6.02C.

those Listings.

1350, 1353

(8th Cir.

See Marciniak v.
___ _________

1995)

(a disability

-- and

each

Shalala, 49
_______

claimant's

failure to

Listings

show medical

criteria

findings equivalent

defeats a

claim of

to all of
___

the

medical equivalence)

(citing Sullivan v. Zebley, 493 U.S. 521, 530 (1990)).

________
______

Next,

determination that

Nazario

challenges

he could

despite his impairments.

perform

the

Commissioner's

light exertional

In particular, he

work

claims that the

functional assessments relied on by the Commissioner were not

substantial evidence in support of that determination because

they did

kidney

by

not take into

account the results of

biopsy report and because

nonexamining physicians.

He

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a subsequent

some of them were rendered

also

suggests

that

the

Commissioner could not determine

were because

entries.

may

not

medical

records

contained

illegible

We conclude that these claims lack merit.

It

assessment

certain

how serious his impairments

is true

that

which does not

constitute

a residual

functional

consider the full

substantial evidence.

capacity

medical record

See
___

Frankl v.
______

Shalala, 47 F.3d 935, 938 (8th Cir. 1995) (an agency residual
_______

functional capacity

form which

was not

based

medical record was not substantial evidence).

the biopsy

report itself

postoperative

progress

notes

diagnoses

showed

insufficiency, which

stated that

were

no

"same,"

change

in

and

validity and so

and

subsequent

Nazario's

renal

as "stable."

Given

the lack of change in Nazario's diagnosis and

condition, the functional assessments

full

Here, however,

the preoperative

the

was characterized

on the

overall kidney

in the record retained

constituted substantial evidence in

support

of the Commissioner's decision that Nazario was not disabled.

See Gordils v.
___ _______

F.2d 327, 330

the results of

Secretary of Health and Human Services,

_______________________________________

(1st Cir. 1990) (per curiam)

a physical examination of the

921

(taken together,

claimant and a

functional assessment made four months before the examination

______

constituted

substantial evidence in support of the denial of

disability benefits since the examination showed no objective

evidence of a disabling medical impairment).

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Moreover, we have declined

the

opinions of

nonexamining

substantial evidence.

(1st Cir.

1994).

assessment

by

physicians cannot

See Rose
___ ____

consulting,

constitute

v. Shalala, 34 F.3d
_______

Together with

to rule absolutely that

the supporting

examining

13, 18

functional

physician

and

supporting medical evidence in

the record, the

nonexamining

physicians'

case constituted

substantial

opinions in

this

evidence in support of the Commissioner's determination.

Gordils,
_______

supra.
_____

legible and

Furthermore, the medical record overall was

adequately

disclosed the

various physical impairments,

remand.

See
___

Compare Manso-Pizarro
_______ _____________

status

of

and so there is no

Nazario's

need for a

v. Secretary of Health and

_________________________

Human Services, 76
______________

F.3d 15, 17 (1st Cir.

1996) (per curiam)

(remanding a case in which "non-trivial" parts of the medical

record were illegible).

Finally,

particular, an

given his

anxiety

disorder), Nazario

Commissioner's reliance on

work

in

exertional

evidence

would not

full

could

the economy

the Grid to

which

limitations.

in the

nonexertional limitations

he

Because

record that

significantly affect

range of light work, we

rely on

the Grid

Nazario was not disabled.

could

objects

(in

to

the

show that there

was

perform despite

his

there

is

substantial

his nonexertional

limitations

his ability

to perform

the

conclude that the Commissioner

to support

her

determination that

See Heggarty v. Sullivan, 947 F.2d

___ ________
________

-4-

990, 996 (1st Cir. 1991) (per curiam) (the Grid may be relied

on

if

the

claimant's

nonexertional

impairment

does

not

"significantly" affect his or her ability to perform the full

range

of jobs at the appropriate exertional level) (citation

omitted).

Affirmed.
_________

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