Ortiz v. Secretary of Health and Human Services

• Decision Date: 29 November 1989
• Docket Number: No. 89-1426,89-1426
• Citation: 890 F.2d 520
• Parties: , Unempl.Ins.Rep. CCH 15109A Victor M. ORTIZ, Plaintiff, Appellant, v. SECRETARY OF HEALTH AND HUMAN SERVICES, Defendant, Appellee.
• Court: U.S. Court of Appeals — First Circuit

Page 520

890 F.2d 520

28 Soc.Sec.Rep.Ser. 3, Unempl.Ins.Rep. CCH 15109A

Victor M. ORTIZ, Plaintiff, Appellant, v. SECRETARY OF HEALTH AND HUMAN SERVICES, Defendant, Appellee.

No. 89-1426.

United States Court of Appeals First Circuit.

Submitted Sept. 15, 1989.

Decided Nov. 29, 1989.

Salvador Medina De La Cruz, on brief, for appellant.

Daniel F. Lopez Romo, U.S. Atty., Hato Rey, P.R., Jose Vazquez Garcia, Asst. U.S. Atty., and John F. Aronson, Asst. Regional Counsel, Region 1, Dept. of Health and Human Services, Cambridge, Mass., on brief for appellee.

Before CAMPBELL, Chief Judge, and BOWNES and BREYER, Circuit Judges.

PER CURIAM.

Victor Ortiz appeals from a district court judgment affirming a decision by the Secretary of Health and Human Services to deny his application for Social Security disability benefits. We find substantial evidence in the record in support of the Secretary's determination and therefore affirm.

I.

Between February 26, 1981, when his alleged disability started, and June 30, 1986, when his insured status expired, Ortiz suffered from a combination of impairments resulting in both exertional and nonexertional limitations. On that earlier date, while employed as a truck driver and loader, the then-34-year-old claimant injured his lower back in a work accident. He was admitted to the Font Clinic in Puerto Rico and diagnosed as having "lumbosacral sprain." His "strong" back pain eventually subsided with the help of Demerol and other medications, a lumbosacral spine x-ray was negative, and he was discharged on March 5, 1981 in an "improved" condition. Yet over the next five years, Ortiz continued to complain of back pain and occasional numbness in his legs and feet, and he was examined by a succession of neurologists and related specialists.

In September 1981, a physiatrist (Seinz) diagnosed lumbar strain and demonstrated physical therapy exercises for Ortiz to perform at home. An electromyograph on June 22, 1983 suggested right L5 radiculopathy (a lesion or other disease of the nerve root). That diagnosis was confirmed by a treating neurosurgeon (Davila) two months later, who also observed moderate limitation of flexion of the trunk, but found no muscular weakness and said surgery was not then considered. On September 13, 1984, a neurologist (Rodriguez) diagnosed low back painful syndrome due to sacrolumbar myalgias (muscle pain) and recommended that a CT Scan be performed. Another neurologist (Calcano), to whom claimant had been sent by the disability determination program, indicated on October 10, 1984 that he suspected lumbosacral radiculitis and lumbar myositis, and in a second examination one month later reported that Ortiz's ability to bend forward and sideways was limited. A CT Scan was performed on November 20, 1984 and revealed a herniated disc at the L5-S1 intervertebral levels. Ortiz continued receiving pain medications over the next months while he debated whether to undergo surgery. During this period, on February 21, 1985, the Medical Consultant prepared a Residual Functional Capacity ("RFC") assessment indicating that claimant could lift fifty pounds (twenty-five frequently), could stand or sit for six hours per eight-hour day, and could kneel and crouch frequently and stoop occasionally.

On October 16, 1985, Ortiz underwent a right lumbar laminectomy with disc removal, being discharged one week later with a prognosis of "good." This surgery, however, proved to be less than a complete cure. He persisted in his complaints of back pain, and continued to undergo physical therapy and receive pain medications. Based on an examination on March 4, 1986, the Secretary's consulting neurologist (Ulloa) quoted Ortiz as complaining of only "mild" pain which was aggravated by prolonged walking, sitting, or standing. Yet he reported a marked limitation on Ortiz's ability to bend forward (40 degrees as opposed to the normal 90 degrees). Dr. Ulloa did not prepare an RFC assessment or express an opinion as to claimant's ability to work; his diagnosis was simply "status post lumbar laminectomy." Six months later, and based in part on the Ulloa report, a nonexamining neurologist (Anduze) submitted a second RFC assessment. Dr. Anduze echoed the findings of the Medical Consultant with respect to claimant's lifting, standing and sitting capabilities; he differed, however, in finding that claimant could kneel and crouch, as well as stoop, only occasionally.

Throughout this period, Ortiz also suffered from a depressive neurosis known as dysthymia--a specific affective disorder characterized by "chronic disturbance of mood involving either depressed mood or loss of interest or pleasure in all, or almost all, usual activities." American Psychiatric Ass'n, Diagnostic and Statistical Manual of Mental Disorders 220 (3d ed. 1980). He first sought help at a mental health center in August 1981, complaining of suicidal ideas, insomnia, ill-humor, poor memory and strong headaches. These symptoms, he explained, had been present for six years (since the death of his father in a traffic accident) and had intensified in the wake of his back injury and ongoing marital problems. Ortiz was referred to an out-patient clinic for daily therapy sessions, but was discharged six weeks later because of frequent absences and an uncooperative attitude. On a sporadic basis thereafter (first monthly and then twice-yearly), he visited the mental health center to receive therapy and/or medications. He also, between 1984 and 1986, was evaluated by a number of outside psychiatrists. With minor differences, these doctors agreed on Ortiz's basic symptoms: he exhibited anxiety, depression, irritability, low self-esteem and poor interpersonal relations; his attention span, concentration and memory were moderately limited; yet he was oriented, logical and coherent and suffered no delusions or hallucinations. Their evaluations and long-term prognoses, however, diverged rather sharply. Two of the psychiatrists (Miguez, who examined claimant at the disability program's request, and Betancourt) rendered a diagnosis of "severe" dysthymia with sharply impaired occupational functioning and a poor or guarded long-term prognosis. The others (Torres, Keene, Toro and Quinones), along with a psychologist (Iglesia), deemed the dysthymia of only "moderate" intensity, entailing less extreme, if still significant, restrictions on his occupational suitability. A number of these doctors prepared mental RFC assessments, which we shall discuss as the need arises below.

II.

The ALJ, in an opinion adopted by the Appeals Council and echoed by the district court, applied the full five-step analysis prescribed by 20 C.F.R. Sec. 404.1520 (1988). See, e.g., Goodermote v. Secretary of Health and Human Services, 690 F.2d 5, 6-7 (1st Cir.1982). He determined that Ortiz (1) had not worked since his accident, and that his back impairment and mental condition (2) were each "severe" impairments which (3) prevented him from returning to his past relevant work as a truck driver and loader, but which, when considered either individually or in combination, (4) did not meet or equal a listed impairment and (5) did not prevent him from engaging in other substantial gainful employment. Also as prescribed by regulation, 20 C.F.R. Part 404, Subpart P, App. 2, Sec. 200.00(e)(2), see, e.g., Lugo v. Secretary of Health and Human Services, 794 F.2d 14, 17 (1st Cir.1986) (per curiam), the ALJ first analyzed the effects of Ortiz's strength limitations, and then determined to what extent his work capability was "further diminished" by his nonexertional limitations. As to the former, he concluded that his back impairment prohibited "heavy" or "medium" exertion, but did not preclude him from performing the full range of "light" work. ¹ Consequently, in light of Ortiz's age ("younger"), education ("limited or less"), and previous work experience ("semiskilled"), Rule 202.18 of the Medical Vocational Guidelines, 20 C.F.R. Part 404, Subpart P, App. 2 (the "Grid"), would dictate a finding of not disabled based on the exertional impairment alone. The ALJ next determined that Ortiz's mental impairment prevented him from doing skilled or semiskilled work on a sustained basis, but posed no barrier to the performance of unskilled work. In sum, after considering the combined effects of Ortiz's multiple impairments, the ALJ concluded that he retained the residual functional capacity to engage in light, unskilled work. Citing to the Grid as a "framework" for his decision, see 20 C.F.R. Part 404, Subpart P, App. 2, Sec. 200.00(e)(2), he determined that these factors warranted a finding of not disabled.

Ortiz now challenges this decision on two grounds. First, he argues that the ALJ's conclusions regarding his back pain--that Ortiz's subjective complaints could be partially discounted, and what pain in fact existed was nondisabling--lacked substantial support in the record. And second, he attacks the ALJ's reliance on the Grid (and the corresponding failure to take other vocational evidence) to support the finding that jobs existed in the national economy that Ortiz retained the capacity to perform. We think it more helpful to analyze separately those impairments that were exertional and those that were nonexertional. We find the ALJ's treatment of the former fully supportable. His treatment of the latter presents a closer question but proves ultimately acceptable.

III.

As noted above, the ALJ deemed Ortiz's back ailment to be a "severe" impairment which prevented him from performing any work entailing an exertional level of medium or higher. Yet he also found that Ortiz retained the exertional capability to perform light work--a finding that, given claimant's age, education and work experience, compelled a conclusion of no disability based on exertional grounds alone. See Grid Rule 202.18. The record contains ample support for this finding.

Ortiz argues that his back pain...