Arce Crespo v. Secretary of Health and Human Services, 86-1527

• Decision Date: 07 July 1987
• Docket Number: No. 86-1527,86-1527
• Citation: 831 F.2d 1
• Parties: Unempl.Ins.Rep. CCH 17,623 Jose ARCE CRESPO, Plaintiff, Appellant, v. SECRETARY OF HEALTH AND HUMAN SERVICES, Defendant, Appellee.
• Court: U.S. Court of Appeals — First Circuit

Page 1

831 F.2d 1

Unempl.Ins.Rep. CCH 17,623

Jose ARCE CRESPO, Plaintiff, Appellant, v. SECRETARY OF HEALTH AND HUMAN SERVICES, Defendant, Appellee.

No. 86-1527.

United States Court of Appeals First Circuit.

Submitted Jan. 9, 1987.

Decided July 7, 1987.

Aurelio Saliva Mattei, Ponce, P.R., on brief, for plaintiff, appellant.

Wendy J. Miller, Office of the Gen. Counsel, Social Security Div., Dept. of Health and Human Services, Baltimore, Md., Daniel F. Lopez Romo, U.S. Atty., Hato Rey, P.R., Donald A. Gonya, Chief Counsel for Social Sec., Randolph W. Gaines, Deputy Chief Counsel for Social Sec. Litigation, and A. George Lowe, Chief, Disability Litigation Branch, Baltimore, Md., on brief, for defendant, appellee.

Before BOWNES, BREYER and TORRUELLA, Circuit Judges.

PER CURIAM.

Claimant Jose Arce Crespo filed an application on April 30, 1980 for Social Security disability benefits, alleging a kidney condition, high blood pressure, chest, back and leg pain, a skin condition, headaches, and nerves, with an onset date of December 1, 1977. On September 15, 1978 and February 2, 1979, claimant had been denied benefits for some of the same conditions on two prior applications which had both alleged the same December 1, 1977 onset date. The Administrative Law Judge (ALJ) considered the new application for benefits de novo and, in a May 19, 1981 decision, found claimant not disabled under the Medical-Vocational Guidelines, 20 C.F.R. Part 404, Appendix 2, Subpart P, Rules 202.10 and 202.11 ("the grid"), on the ground that claimant retained the residual functional capacity to perform light work. Claimant sought review in the district court, which remanded to the Secretary. The court held, inter alia, that in view of claimant's nonexertional impairments, there was a lack of substantial evidence to support the ALJ's finding that claimant could perform the full range of light work. The court suggested the taking of additional evidence, such as the testimony of a vocational expert.

On remand, three additional hearings were held, at which the testimony of a vocational expert was received. The ALJ declined to reopen the denial of benefits on claimant's two prior applications, but considered all the medical evidence from December 1, 1977, the onset date alleged in all three applications. In essence, therefore, the ALJ considered claimant's application de novo as to the entire claimed period of disability. The ALJ found that claimant suffers from lumbosacral strain, status post right nephrectomy, hypertension, and onychia with paronychia (a skin condition). The ALJ concluded that claimant could perform only a limited range of light work because of his nonexertional impairments, i.e., his inability to be in contact with skin irritants or work with moving machinery or near unprotected heights. Relying on the testimony of the vocational expert, the ALJ found that claimant's past work included skilled work as a cook. Claimant was found to have transferable skills from that past work such as elementary arithmetic skills, adjustment of controls and processes, supervising and coordinating work activities, and the ability to evaluate whether work was done correctly. Again relying on the vocational expert's testimony, the ALJ found that these transferable skills would allow claimant to perform several jobs in the local economy such as checker one, final examiner, hand coil taper, and calibrator, all of which are light semi-skilled jobs which would permit claimant to alternate positions. The ALJ also used Rule 202.12 of the grid, which would direct a finding of "not disabled," as a framework for decision. Accordingly, the ALJ found claimant not disabled. After the Appeals Council denied claimant's request for review of the ALJ's decision, claimant appealed to the district court, which affirmed the Secretary. Claimant appealed. We affirm.

Claimant first attacks the Secretary's failure to find significant impairments of hypertensive cardiovascular disease, angina, and osteoarthritis. However, although the ALJ did find that claimant suffered from hypertension, medical reports indicated no damage to claimant's heart. For example, Dr. Acevedo, a consulting cardiologist, found "no evidence of cardiac or hypertensive pathology." There was no medical evidence diagnosing osteoarthritis. The ALJ was fully justified in discounting claimant's allegations of hypertensive cardiovascular disease, angina, and osteoarthritis.

Claimant next challenges the ALJ's finding that claimant retains the residual functional capacity to perform a limited range of light work. Claimant argues that he should not have been found capable of performing more than sedentary work. The social security regulations define light work as follows:

"Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. Even though the weight lifted may be very little, a job is in this category when it requires a good deal of walking or standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg controls. To be considered capable of performing a full or wide range of light work, you must have the ability to do substantially all of these activities. If someone can do light work, we determine that he or she can also do sedentary work, unless there are additional limiting factors such as loss of fine dexterity or inability to sit for long periods of time."

20 C.F.R. Sec. 404.1567(b). Under Social Security Ruling 83-10, West's Social Security Reporting Service, Rulings, at 51 (1986 supp.),

"[T]he full range of light work requires standing or walking, off and on, for a total of approximately 6 hours of an 8-hour workday. Sitting may occur intermittently during the remaining time."

Sedentary work by contrast, is defined as follows:

"Sedentary work involves lifting no more than 10 pounds at a time and occasionally lifting or carrying articles like docket files, ledgers, and small tools. Although a sedentary job is defined as one which involves sitting, a certain amount of walking and standing is often necessary in carrying out job duties. Jobs are sedentary if walking and standing are required occasionally and other sedentary criteria are met."

20 C.F.R. Sec. 404.1567(a). The record contains several residual functional capacity assessments prepared by physicians that support the ALJ's finding. Dr. Cases, a consulting neurologist, found that claimant could sit four hours, stand four hours, and walk four hours during an eight-hour workday, lift or carry ten pounds frequently and twenty pounds occasionally, operate arm controls, and bend occasionally. Dr. Acevedo found that claimant could sit and stand or walk eight hours, lift fifty pounds and twenty-five pounds frequently, use his hands to push and pull, operate foot controls, and bend frequently. Dr. Rodriguez, a consulting urologist, found that claimant could sit six hours, stand six hours, and walk six hours during an eight-hour workday, lift or carry ten pounds frequently and twenty pounds occasionally, operate arm and leg controls, and bend occasionally. These assessments unquestionably constitute substantial evidence of record to support the ALJ's finding that claimant's exertional impairments permit him to perform light work.

We also find substantial evidence to support the Secretary's finding that claimant had skills in his former work as a cook which were transferable to several light, semi-skilled jobs. Claimant testified at a February 17, 1981 hearing that in his work as a cook he "cooked rice, beans, I prepared the beefsteaks, I would clean and prepare the fish, and pick out the scales, I would prepare lobsters, I opened them and put them in the machine to clean them ... I'd take out the guts, clean them out ... and then when somebody wanted a grilled lobster, I'd put it in the grill...." Claimant described his cook work in a vocational report as follows: "Had to cook at a restaurant. Usually had to prepare food for not less than 60 persons a day. Besides the daily menus I also had to prepare special orders. Had to do the dishes too." Although claimant subsequently testified in a May 16, 1983 hearing that he worked not as a cook, but merely as a kitchen helper, the ALJ was permitted to credit claimant's earlier assertions that he had worked as a cook. This is especially so in view of the candid assertions by claimant and claimant's counsel in that same hearing that claimant suffered from a gradually failing memory.

Furthermore, the ALJ was justified in concluding that claimant's cook job was skilled, or at least semi-skilled, work. The ALJ credited the vocational expert's testimony that the cook job involved the following skills: the use of elementary arithmetic skills to figure the quantity of material needed and the dimensions to be followed; the ability to adjust controls, regulate processes, and work with precise measurements; the ability to supervise and coordinate working activities; and the ability to detect or examine the work to determine if it was done correctly. Claimant argues that nothing in his own description of his former work warranted this finding. It is true that, as claimant contends, the vocational expert's description of the skills involved in the job of cook relied to some extent on the description of that work in the Dictionary of Occupational Titles, Sec. 313.361-014. The vocational expert testified that according to that description the job of cook would qualify as "skilled" work. However, the vocational expert's assessment of claimant's work as a cook also relied on claimant's own description of that work, as quoted above, and is wholly consistent with that description. We cannot quarrel with the ALJ's conclusion that the cooking duties as described by claimant would necessarily require the...