USCA1 Opinion

June 1, 1994

[NOT FOR PUBLICATION]

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
___________________

No. 93-2349

CRUZ L. 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. Jose Antonio Fuste, U.S. District Judge]
___________________
___________________
Before
Selya, Cyr and Boudin,
Circuit Judges.
______________
___________________

Helen E. M. Briganti on brief for appellant.

____________________
Guillermo Gil, United States Attorney, Maria Hortensia Rios,
_____________
____________________
Assistant United States Attorney, and Thomas D. Ramsey, Assistant
________________
Regional Counsel, Department of Health & Human Services, on brief
for appellee.
__________________
__________________

Per Curiam.
__________
a

district

Secretary

The claimant, Cruz

court
of

judgment

Health

application for

and

disability

L. Garcia, appeals from

affirming
Human

decision

Services

insurance

benefits.

of

the

denying

her

For

the

reasons stated below, we affirm.

I.
Claimant

was born on June 16, 1933.

school and has one

She completed high

year of college education.

Between 1976

and 1982, she worked for the Commonwealth of Puerto Rico as a

revenue
years

officer.
as

Prior

a disbursement

to that,

she worked

clerk.

She

for eighteen

stopped working

on

December 31,

1982, at

condition became
then.

On

age forty-nine, "because

so terrible."

She has

her nervous

not worked

her last insured date, December 31,

since

1987, she was

age fifty-four.
On January
benefits

15, 1991, claimant filed

alleging

that

condition,

herniated

fibrositis

in her

hands.

31, 1982.1

She

December

she

disk,

is

disabled

pinched
She

an application for
by

nerves,

alleged

claimed that her

nervous

asthma,

an onset

date

and
of

doctors had told

____________________
1. Claimant had applied for benefits once before, alleging
the same onset date, and her application had been denied on
May 14, 1984. The Administrative Law Judge believed that the
Social Security Disability Benefits Reform Act of 1984
required him to consider evidence of claimant's mental
condition from the alleged onset date.
The district court
held, however, that our decision in Mazzola v. Secretary of
_______
____________
Health & Human Servs., 795 F.2d 222 (1st Cir. 1986) (per
_______________________
curiam) precluded any such redetermination, and that the ALJ
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her not to perform

household tasks because of

disc,

her pinched

claimed

as

well as

nerve

her herniated

condition.

She also

that she does not go outside the home unescorted due

to her mental condition, that her husband does the housework,

and that she goes to church once or twice a week.
Security

Administration

denied

The Social

claimant's

application

initially and on reconsideration.

Claimant obtained a hearing before an Administrative Law
Judge (ALJ) on December 2,
attorney.

In addition

1991.

She was represented by

to the claimant, a

an

vocational expert

(VE) testified.
At

the hearing,

working at
rendered

the end
her

procedures.
worsened since

claimant
of

unable
This

1982 because
to

follow

nervous

1984.

testified

that

her nervous

instructions

condition, she

According to

she

or

ceased

condition
remember

testified,

the claimant, she

has
gets

lost when she is outside the home unescorted, and she suffers
from
and

feelings of sadness, migraine headaches, crying spells,

suicidal impulses.

pain which forces

her to

She also testified that she has back

depend upon her

husband for

chores and is only relieved when she lies down.

takes

Although she

pain medication, it does not provide full relief.

testified that she cannot sit for more than one

most

She

half hour at

____________________
should only have considered the period after May 14, 1984 for
all of claimant's disabilities. Plaintiff has not challenged
this ruling on appeal.
-3-

a time without needing to change her position.

complained of

asthma and

Claimant also

mentioned operations that

she has

had on her arms for pinched nerves.

The VE

identified claimant's

former

jobs as

skilled,

light work (revenue officer) and semi-skilled, sedentary work

(disbursement clerk).
which

assumed

insured,

had

The ALJ posed a hypothetical to the VE

that claimant,
various moderate

capable of light work,

to be able

as

in

mental

she

was

limitations

last

and was

These

needed
mental

included moderate limitations in her capacity to

her

carry-out detailed instruction, as

capacity

extended periods of

time.

to

maintain

The VE

limited her

He

jobs that

identified

performed--final

three

examiner

stamper

in

electronics,

existed

in significant

economy

through

in

testified, permit alternation

for

cord

have

industry,

cutter--which

national and
These

work.

could

electronics

in the
1987.

to unskilled
claimant

electric

numbers

December 31,

____________________

the

and

concentration

testified that claimant's

moderate mental limitations

then

time

positions at will.2

understand, remember, and

well

the

with the restriction that she

to alternate

limitations

at

local

jobs, the

of positions at will.

VE

The VE

2. The hypothetical also assumed that claimant was age

forty-nine at onset of her alleged disabilities and age
fifty-four on her last insured date; that she had one year of
college education; that she had past, skilled and semiskilled, work experience; and that she needed to work in an
adequately ventilated environment, free of
extremes in
temperature, dust, and gas fumes.
-4-

also testified that if claimant's subjective allegations were

completely credible,

she could

not have performed

these or

any other job on a sustained basis.

The ALJ
of

found that although claimant

mental

compression
claimant

did

and

back

of

ulnar
not

conditions,
nerve

have

an

and

as

has a combination
well

carpal

impairment

as

bilateral

tunnel

syndrome,

or

combination

of

impairments equivalent to one of the listed impairments prior

to the expiration of her insured status.
claimant was unable to
ALJ concluded that
insured

status,

light, unskilled
she needed

to be

He also found that

perform her past work.

However, the

claimant, prior to the expiration

had

the residual

work, with

functional

the additional

able to alternate

of her

capacity for

limitation that

positions occasionally.

Finally, the ALJ ruled that, based on the testimony of the VE

and application

of the

Grid, claimant

was not disabled

step five of the sequential analysis because

at

there were jobs

in the economy that she could have performed through December

31, 1987.
The
to

the

Appeals Council denied review.

district

summarized the
of

court.

An appeal was taken

The

district

court

medical records.

It found

that the decision

the Secretary

is supported

affirmed the denial of benefits.

by substantial

accurately

evidence and

This appeal followed.

II.

-5-

Claimant contends that

the ALJ erred

at step three

of

the sequential evaluation in finding that her impairments did

not meet or
Subpt. P,

equal a listed impairment in 20

App. 1.

determination
physician,
medical

of

(2)

In particular,
medical

the

record

equivalency by

claimant's

combined

she argues

equivalency
contains

a physician
impairments,

C.F.R. Pt. 404,

must be
no

made

by

determination

who takes
and

that (1)

(3)

of

into account
the

ALJ's

determination

that

her condition

did

not

equal a

listed

impairment, made without the testimony of a medical expert at

the administrative hearing, was
that

the

ALJ erred

process

of

the

impairments"

in

failing

[her]

and "the

error.

Claimant also argues

to consider

emotional

and

"the

disease

musculoskeletal

functional consequences

and physical

limitations which would be expected to occur as

the disorder

advance [sic]."
We

note,

claimant's

as

preliminary

burden to

impairments
Appendix

We disagree.

1.

that

show

meet

Torres v.
______

or

matter,

that it

that she

has

equal

listed

is

an impairment
impairment

the
or
in

Secretary of Health & Human Servs.,

___________________________________

870

F.2d 742, 745 (1st Cir. 1989) (per curiam).

Garcia does

not

state,

purportedly

equals,

in

her

brief, which

much less present

listing

she

a substantive argument indicating

how,

allegedly, she equals a listed impairment.

the

record

contains

determinations

-6-

by

We add that
consulting

psychologist and psychiatrist

not

meet or equal

1987.

See
___

20

Secretary will
more

a listed impairment
C.F.R.

designated

404.1526(b)

consultants

Under

medical

expert on

(stating

because

the

record

that

medical

no testimony

by a

Furthermore,

that during

the

insured

impairments were relatively mild

to treatment,

obtain a medical

the

by one or

determining

was necessary.

demonstrated

period, claimant's physical

responded

in

the circumstances,

this issue

did

through December 31,

consider the medical opinion given

equivalence).

and

that her mental condition

the

ALJ was

opinion which addressed

not

required to

whether claimant's

combined impairments equalled a listing.

We also reject claimant's
in

failing

to

impairments.
benefits
existed

consider
A

unless

the

claimant
she

contention that the ALJ erred

can

likely

is not

progression

entitled

demonstrate

of

her

to

disability

that her

disability

prior to the expiration of her insured status.

Cruz
____

Rivera v. Secretary of Health & Human Servs., 818 F.2d 96, 97

______
__________________________________
(1st Cir. 1986)
(1987).
that

It

(per curiam),

is not

sufficient for a

her impairment had its

insured status expired.

her impairment(s)
that date.
Servs., 686

cert. denied,
____________

479 U.S.

claimant to

roots before the

establish

date that her

Rather, the claimant must show

reached a

disabling level of

1042

that

severity by

See, e.g., Deblois v. Secretary of Health & Human

___ ____ _______
___________________________
F.2d 76, 79 (1st

Cir. 1982).

The

ALJ properly

______

-7-

focused on
listing

whether claimant's impairments met

through December

31, 1987,

the

or equalled a

date she

was last

insured.
Claimant

also argues that the ALJ erred at step five of

the sequential

analysis.

In particular, she

contends that

(1) the ALJ did not properly evaluate her claim of subjective
pain; (2) the
capacity

ALJ erred in not obtaining residual functional

assessments

addition to

from

her

treating

physicians,

in

those obtained from the consultants; and (3) the

ALJ could not

properly conclude

functional

capacity to do light

assessment

in the

record of

that she

had the

work in the

her capacity

residual

absence of any
for stooping

or

crouching.
Contrary to claimant's allegations, the ALJ's evaluation
of her complaints of pain comports with our decision in Avery
_____
v. Secretary of Health & Human Servs., 797 F.2d 19 (1st Cir.
___________________________________

1986).

Claimant

activities,
and

functional

duration of

factors.

was

pain,

See id. at
___ ___

questioned

regarding

restrictions, medication,
and
29.

precipitating
Although

and

her

daily

frequency
aggravating

claimant testified that

she has back pain which forces her to depend upon her husband
for most chores and is only
did not focus

relieved when she lies down, she

her testimony on the

relevant insured period.

Medical records from that period indicate that her occasional

back and

neck pain

responded to

treatment.

psychiatric

-8-

evaluation

indicates that

prior

to the

daily

activities included

in

expiration of

her insured
rising

cooking, washing, caring for

out.

July 1987,

just five

months

status, claimant's

early, eating

breakfast,

her personal hygiene, and going

We believe that the ALJ supportably credited claimant's

allegations of disabling pain

during the insured period only

to the extent that they precluded medium or heavy exertion.

We also reject claimant's
in

not obtaining

residual

contention that the ALJ erred

functional capacity

assessments

from her
from

the consultants.

1003, 1006
that

treating physicians, in addition

In

Browne
______

(1st Cir. 1972),

case, a

non-testifying

physician

substantial evidence

submitted by
could

not

to support the

Our later cases, however,

v. Richardson,
__________

we held that,

written report

to those obtained

on the

468 F.2d
facts of

a non-examining,
alone

constitute

Secretary's conclusion.

demonstrate that this principle is

by no means an absolute rule.

Berrios Lopez v. Secretary of

_____________
____________

Health & Human Servs., 951 F.2d 427, 431 (1st Cir. 1991) (per
_____________________
curiam).

Advisory

reports such

as those

submitted by

the

consulting psychologist and psychiatrist here are entitled to

evidentiary weight, which "will
including
provided

the
the

nature of
expert."

the
See
___

vary with the circumstances,

illness
id.
___

and the

(quoting

Secretary of Health & Human Servs., 647 F.2d

____________________________________
Cir.

1981)).

information
Rodriguez
_________

v.

218, 223 (1st

In the instant case, there is every indication

-9-

that the consultants had available to them most, although not

all, of

the medical

evidence for their

review.

Moreover,

their conclusions that claimant suffers from moderate

limitations, but

could

function

in

simple,

environment, were mutually reinforcing.

think

the advisory

reports were

to perform

unskilled

work.

Health & Human Servs.,

_______________________

support the

had the mental capacity

Cf. Tremblay
___ ________

676 F.2d

repetitive

In this context, we

sufficient to

Secretary's conclusion that claimant

mental

11,

v. Secretary of
_____________

13 (1st

Cir.

1982)

(affirming the Secretary's adoption of the findings of a nontestifying,

non-examining

findings by

themselves to constitute substantial evidence in

the face

of a

physician

and

permitting

treating physician's conclusory

those

statement of

disability).
Claimant's
contains

no

remaining

claimed

assessment of

her

error--that

capacity

the

record

for stooping

and

crouching--was not raised in the district court and so is not

preserved for our review.

See Gonzalez-Ayala v. Secretary of

___ ______________
____________

Health & Human Servs., 807 F.2d 255, 256 (1st Cir. 1986) (per
_____________________
curiam).
the

Having

Secretary's

reviewed the record, we are

decision

supported by substantial
that decision.
Affirmed.
________

denying

evidence.

claimant

persuaded that
benefits

Accordingly, we

is

affirm

-10-