USCA1 Opinion

May 31, 1994

[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 93-2092
LAURA E. LOPEZ-MERRERO,
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. Carmen Consuelo Cerezo, U.S. District Judge]
___________________
____________________
Before
Selya, Cyr and Stahl,
Circuit Judges.
______________
____________________
Raymond Rivera Esteves and Juan A. Hernandez Rivera on brief
______________________
_________________________

appellant.
Guillermo Gil, United States Attorney, Maria Hortensia Ri
______________
____________________
Assistant United States Attorney, and Paul Germanotta, Assist
________________
Regional Counsel, Department of Health and Human Services, on br
for appellee.
____________________
____________________

Per
Curiam.
____________
appeals

from

the

Claimant

judgment

of

affirmed the

decision of the

Services that

claimant was

Laura

the

E.

Lopez-Marrero

district

court

Secretary of Health
not entitled to

which

and Human

Social Security

disability benefits.
I.
_
Claimant filed an
disability

BACKGROUND
__________
application for Social

benefits on June 6,

1989.

She

date of October

15, 1988.

As disabilities

nerves

and her

back.

She related

falls

at work.

An

administrative law

Security

alleged an onset
she listed

her impairments
judge (ALJ)

her

to two
held a

hearing.
First,

Claimant testified concerning her most recent work.

she

manually

worked in

checked and

pharmaceutical

counted the

factory where

gloves made

there.

would alternate between sitting and standing and only

carry "little" things.

Next, she was employed as

she
She

had to

an office

worker; she took notes and answered the phone.

Claimant
After

stated that

she lives with

her husband.

the accidents, she suffered pain in her left leg, left

hip, left ankle and right

the pain in her legs.
takes Motrin.

hand.

She uses a cane

She visits a doctor when in

She can sit and stand for twenty

time but has problems

because of

walking.

She can lift

pain and

minutes at a
light objects.

She would like to work but cannot because of the problems she
has with her memory due to her nerves and because of the pain

in

her lower

back,

described her pain as

helps.

coccidial

area

and

left

hip.

She

strong although sometimes the medicine

As for her nerves, she feels desperate and restless.

The

ALJ

first

determined

that

claimant's

impairments did not meet the listings.

Nonetheless, he found

that

in

there

existed

activities

due to

conditions.

As

concluded

some limitations
both

her

exertional and

for claimant's

that claimant was

complex tasks due

to some

sustain

concentration.

capacity

to

perform

repetitive in nature.

her

non-exertional

mental impairment,

only precluded

Nonetheless,
tasks that

the ALJ

from performing

deterioration in

simple

work-related

her ability

to

she

retained

the

were

routine

and

He rejected the level of deterioration

described by claimant, finding that, under Avery v. Secretary

_____
_________
of Health and Human Services,
_____________________________

797 F.2d 19

(1st Cir. 1986),

she was only somewhat limited in social functioning and daily

activities.
In
found

relation to her neurological condition, the ALJ

that she suffered from lumbar strain and had a history

of trauma

to her left hip, left ankle and right hand.

Under

Avery, the ALJ credited claimant's complaints of pain only to

_____
the extent that
and

carrying

she was precluded

and from

periods of time.

standing

from doing heavy

or

walking for

Thus, he concluded, she could

past work.

-3-

lifting
prolonged

perform her

On

appeal,

determinations

claimant

regarding

supported by the record.

her

argues

pain

that

were

the

ALJ's

not substantially

Further, claimant asserts, the ALJ

erred by translating, without the aid of a vocational expert,

the medical
functional
work.

evidence of claimant's physical impairments into

limitations on

her ability

to perform

her past

As for her mental condition, claimant asserts that the

ALJ's decision was not supported by substantial evidence when

viewed

in

the

Specifically,

context

of

claimant points

the
to

record
the

as

findings

whole.

concerning

restrictions in her ability to cope with the stresses of work

in general.
A.

Physical Impairment
___________________

The
sacralization of

x-ray

reports,

the L-5 disc

which

found

and narrowing of

partial

the L-5-S-1

disc space, do provide evidence of "a clinically determinable

medical impairment that can reasonably be expected to produce
the pain
there

alleged."

See Avery, 797

___ _____

F.2d at

21.

However,

also was evidence to support the ALJ's decision not to

credit claimant's claims of totally disabling pain.

For example, in November 1989, claimant underwent a

neurological

evaluation.

See
___

Exhibit

15.

Although

claimant's complaints included constant pain, she

tone, no atrophy and a strength rating
was

no muscle

spasm and

had normal

of 4 out of 5.

no deformity.

The

There

diagnosis was

-4-

lumbar strain.

At

another examination in October

1990, see
___

Exhibit 22, claimant complained of mild lower back pain which

was alleviated
muscle

with Motrin.

spasm and

Despite

a limited

range of

the presence
motion of

of some

the lumbar

spine, there was no muscle weakness or atrophy and no sensory

deficit; claimant's

gait was normal.

The

diagnosis was

back condition by history, with no evidence of radiculapathy.

Contrary to claimant's
impermissibly

translate

limitations.

Rather,

functional

capacity

argument, the

medical
the

(RFC)

data

record
forms.

into

contained
In

ALJ did

not

functional
two residual

December

1989,

physician opined that, based on the medical records, claimant

had

no
__

exertional, postural

or

other limitations.

In a

November

1990 RFC

assessment,

could occasionally lift and

frequently

it was

noted that

carry up to 50 pounds

lift and carry 25

pounds.

She

claimant
and could

could stand, sit

and walk for up to six hours each per day.

B.

Mental Condition
________________

Claimant's

mental

impairment

presents

more

complicated picture but, again,

there is evidence to support

the

Secretary's

conducted

in November

claimant was
did not
appeared

position.

psychiatric

1989, see
___

Exhibit 16,

logical, coherent, relevant and

present any
anxious

perceptual dysfunctions.

and

depressed,

her

examination
revealed that

oriented.

She

Although she

attention

span

was

-5-

conserved and her ability

was

described

as

to concentrate was adequate.

capable

of

judging

reality

and

She
the

consequences of her acts.

In

July

coherent, relevant,

1990,

claimant

logical and

also

was

described

as

cooperative; there were

no

observable thought

disorders.

See
___

Exhibit 18.

was appropriate and her mood normal.

Her affect

She reported delusions,

but the examiner described them as hysterical in nature.

memory was conserved.
The examiner
is,

described the

claimant "reported

that her
profile
have

In addition, claimant took the

profile fell

properly

symptoms of such
outside the

if

she

claiming, and her

examination

was

disturbance."

to

be unable

were

as

The

[sic]

contrast

diagnoses

that the

As a result, "[s]he would

severely

sharp

That

severe disturbance

maximum limits

behavior during the

in

MMPI.

results as "exaggerated."

was designed to measure."

been unlikely

Her

to take

the

test

as she

was

clinical part of

the

disturbed

with

were mild

her

claims

dysthymia

of

and

personality disorder with dependent and hysterical features.

Three

non-examining

doctors completed

assessments.

In December

1989, claimant

significantly

limited

understanding,

carrying

out

short,

significantly

limited

ordinary

in

simple
were

routine without

her

was rated

to

supervision, to make

-6-

as not

remembering

instructions.
abilities

mental RFC

and

Also

not

sustain

an

simple work-

related

decisions,

to

relate

to co-workers,

socially appropriate

behavior and

work

As

environment.

extended

periods

schedule,

and

without

of

for

claimant

was

limited"

in any areas.

in the

concentration for

performing

within

complete

a normal

work-week

from psychologically-based

symptoms,

being able

interruptions

maintain

to handle changes

maintaining

time,

to

to

moderately limited.

She

was not

regular

"markedly

The conclusion was that claimant was

capable of performing simple tasks on a sustained basis.

The
essentially
limits on

RFC

assessment

reached the

completed

same results.

her abilities to

in

August

1990

Even

with moderate

complete a normal

work-week, to

respond appropriately to changes in the work setting, and

accept supervision,

claimant retained the abilities

with simple

instructions, to

make simple

work-related decisions, to work

others,

to sustain

regular attendance

an

to

ordinary work

and to be punctual.

in November 1990, echoed

capacity

perform within a

deal with

to cope

schedule, to

in proximity to

routine, to

maintain

The third physician,

the findings concerning

simple

to

instructions,

claimant's

to work

with

others, to make simple, work-related decisions and to respond

appropriately to

criticism.

She was moderately

limited in

dealing with the stresses of work in general -- being able to

concentrate,

maintaining

routine

without

supervision,

-7-

completing

normal

work-week

and

keeping

up

regular

attendance.
In
Secretary

Social
set

out

Security
the

Ruling

framework

impairments in the context

(SSR)

for

85-15,

addressing

of unskilled work.

See
___

Secretary of Health and Human Services, 890 F.2d

______________________________________
(1st Cir.
sets

1989) (per

of capabilities are

First,

claimant must

carry out

be

necessary for
able to

simple instructions, to

co-workers,
cope

curiam) (discussing

supervision and

with routine changes in

substantial

evidence,

based

mental
Ortiz v.
_____

520, 526-27

SSR 85-15).
this kind

Two

of work.

understand, remember

and

respond appropriately

to

normal work situations,

the work situation.
on

the

the

above

and to
There is

reports,

that

claimant meets these requirements.

The second set of capabilities concerns the demands
of

any

work

environment,

regardless of

the

skill

level

involved.

To be

according to
being

able to accommodate a work setting

SSR 85-15,

an individual

punctual, attending

staying

at work

uniformly
spheres

for the

We
the

have

limitations

may

marginally,

and possibly more so."

be capable

consistent basis
The

as "moderately

functioning.
erode

on a

entire day.

rated claimant
of

work

must

per se,

and

RFC assessments

limited" in

these

acknowledged that

occupational

of

base

See Ortiz,
___ _____

"at

such
least

890 F.2d at

-8-

527;

see also Irlanda Ortiz v. Secretary of Health and Human

___ ____ _____________
_____________________________

Services, 955 F.2d 765, 770 (1st Cir. 1991) (per curiam).
________
In this case, we
record

evidence

believe that there is substantial

to support

the

Secretary's decision

that

claimant's dysthymia did not significantly affect her ability

_____________
to successfully negotiate the work setting.
we note

that

objective

medical evidence

In
--

this regard,
the

MMPI

--

indicates that claimant may be exaggerating her symptomology.

III.
___

CONCLUSION
__________

We conclude that claimant has not met her burden of

establishing

that

her

performing her past work.

371

(1st Cir.

1985)

Secretary's findings
the evidence in
adequate
v.

impairments

her

from

See Gray v. Heckler, 760 F.2d 369,

___ ____
_______

(per curiam).
. . .

"We must

if a reasonable

the record as

to support [the

precluded

uphold

the

mind, reviewing

a whole, could

accept it

Secretary's] decision."

as

Rodriguez
_________

Secretary of Health and Human Services, 647 F.2d 218, 222

______________________________________

(1st Cir.

1981).

evidence,

the

Secretary,

Although the record

resolution

not the

reports described

of

courts.

contains conflicting

these conflicts
See
___

above, there

id.
___

Given

was substantial

is
the

for

the

medical

evidence in

the record as a whole to support the Secretary's conclusion.

The judgment of the district court is affirmed.
________

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