USCA1 Opinion

July 6, 1994

[NOT FOR PUBLICATION]

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
___________________

No. 93-2194

PEDRO RIVERA OJEDA,

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. Raymond L. Acosta, U.S. District Judge]
___________________
___________________
Before
Boudin, Circuit Judge,
_____________
Bownes, Senior Circuit Judge, and
____________________
Stahl, Circuit Judge.
_____________

___________________

Raymond Rivera Esteves and Juan A. Hernandez Rivera on brief

______________________
________________________
for appellant.
Guillermo Gil, United States Attorney, Maria Hortensia Rios,
_____________
____________________
Assistant United States Attorney, and Robert J. Triba, Assistant
_______________
Regional Counsel, Department of Health and Human Services, on
brief for appellee.
__________________
__________________

Per Curiam.
__________
application for
20,

Claimant Pedro Rivera

Social Security disability benefits

claimant had
return to
work.

After a

a severe

back

his former job as

The

exertional

ALJ

found,

impairments

hearing, the ALJ

impairment that

that claimant's

and mental
capacity

condition)
to perform the

conceded that
precluded

a janitor required

however,
claimant

functional capacity to perform light

work.

on June

1990, alleging a back condition, severe back pain, and a

nervous condition.

found

Ojeda filed an

that

to do heavy

despite

retained
work.

The ALJ

significantly

full range of

Accordingly, the ALJ

claimant's

the

non-exertional impairments
did not

his

residual
further
(his pain

restrict

his

jobs requiring light

found claimant not

disabled at

step 4

of the

404.1520(e),

on

although they
did

sequential
the

evaluation process,

ground

that

claimant's

impairments,

precluded performing

his former

janitor job,

not preclude his return to his

janitor.

20 C.F.R.

This

type

of

work,

former type of work as a

____
the ALJ

ruled,

generally

requires no more than light work.

After
review of

the Appeals Council denied claimant's request for

the

ALJ's

decision,

claimant

district court, which affirmed.

that

the

Secretary's

substantial evidence.
The

objective

appealed

to

the

Claimant appeals, contending

determination

is

not

supported

by

We affirm.
medical

evidence concerning

physical condition can be summarized as follows.

general practitioner, examined

claimant's
Dr. Ruiz, a

claimant on January

5, 1990,

and diagnosed cervical and dorso-lumbar spondlyoarthritis and

muscle

spasm and left carpal tunnel syndrome.

Dr. Vargas, a

physiatrist, treated claimant between February and April 1990

and reported moderate to severe muscle spasm, but good muscle
tone

and no atrophy, and

left carpal tunnel

syndrome.

Dr.

Gonzalez Cotto, a neurologist,

examined claimant on July 23,

1990, and diagnosed chronic discogenic disease.

The record contains substantial
ALJ's

functional conclusion

that

evidence to support the

claimant,

despite

these

impairments, retains the exertional capacity to perform light

work.

Dr. Sanchez, a non-examining

medical

evidence

functional

capacity

accompanied

by brief

Sanchez checked
carry 20

in

the

physician, reviewed the

record and

assessment form

prepared
on

medical findings.

boxes indicating

pounds, 10 pounds

crawl

occasionally.

On

that claimant can

claimant could not perform

extremities,

and

was

Sanchez

1991,

the form,

frequently, can stand,

Dr.

residual

February 5,

sit six hours, and can climb, balance, stoop,

and

Dr.

lift or
walk, or

kneel, crouch,

further found

that

repetitive movements in his upper

limited

in his

capacity

for

gross

manipulation by the hands.

Another non-examining physician, Dr.
the medical
functional

evidence in the
capacity

accompanied by

record and prepared

assessment

brief medical

Dr. Sanchez, checked boxes

Marxuach, reviewed

form

findings.

on August
Dr.

a residual
13,

1990,

Marxuach, like

indicating that claimant can lift

or carry 20 pounds, 10 pounds frequently, can stand, walk, or

-3-

sit six hours, and can climb,

and

crawl

occasionally.

balance, stoop, kneel, crouch,

Dr. Marxuach

noted

no

further

that

light

limitations.
The

governing

"involves

lifting

frequent lifting

regulations
no more

20

C.F.R.

that

than 20

or carrying of

pounds [and] requires

state

at a

objects weighing

a good deal

404.1567(b).

pounds

of walking or

These regulations

work

time with
up to

10

standing."

do not require

a person be able to perform repetitive movements of the

upper extremities or gross

manipulation of the hands,

or be

able

to climb, balance, stoop, kneel, crouch, and crawl more

than

occasionally, in

range

order to

be able

of jobs requiring light work.

and Dr.

to perform

a full

Thus, both Dr. Sanchez'

Marxuach's findings support the

ALJ's determination

that claimant can perform light work.

We have held that the amount of weight that can properly
be given

non-testifying,

non-examining

physicians "will vary with the circumstances."

Berrios Lopez
_____________

v.

the

conclusions of

Secretary of Health and Human Services, 951 F.2d 427, 431

______________________________________

(1st Cir. 1991) (quoting Rodriguez v. Secretary of Health and

_________
_______________________
Human Services, 647
______________

F.2d 218, 223 (1st

Cir. 1981)); Gordils

_______

v.

Secretary of Health and Human Services, 921 F.2d 327, 328

______________________________________

(1st

Cir.

1990 (same).

In

some cases,

submitted by non-testifying, non-examining

alone

constitute

substantial

written

reports

physicians cannot

evidence,

see
Browne
____________

v.

-4-

Richardson, 468 F.2d

__________

1003 (1972),

absolute

rule.

Berrios Lopez,
______________

Gordils,
_______

supra, 921 F.2d at

_____

although this
supra,
_____

328.

This

951

F.2d at

is

not qualified

capacity

an
431;

issue has generally

arisen in cases where such reports were the primary

of a claimant's residual

is not

evidence

functional capacity, since "the ALJ

to assess

based on the bare

claimant's residual
medical record."

functional

Berrios Lopez,
_____________

supra, 951 F.2d at 430.

_____
In

this

case,

however,

these

residual

functional

capacity assessments by non-examining physicians are not

the

only evidence expressed in functional terms that supports the

Secretary's conclusion

that claimant retains the capacity to

perform light work.

Dr. Vargas cleared claimant to return to

work

1990, which

on

April

believed

5,

that claimant

position.

At the

that a doctor
mile, and that

could

suggests
return to

hearing, furthermore,

had recommended that he

"the doctors

have told me

pounds

at a

his heavy

Vargas
janitor

claimant testified

that the

half

maximum

would be fifteen

This testimony relates a partial residual

functional capacity assessment

Since light work,

Dr.

walk at least a

that I'd [sic] might be able to try to lift

to twenty pounds."

that

made by examining physicians.

again, "involves lifting

time," 20

C.F.R.

no more than

404.1567(b), this

20

partial

residual functional capacity assessment bolsters the findings

of the

non-examining physicians

that

claimant can

perform

-5-

light
does

work.

Based on this

evidence we find that the record

contain substantial functional

Secretary's conclusion to that effect.

evidence to support the

finding

however,
perform
work

does

that
not

claimant can

necessarily

any particular type of

___

perform

mean that

work -- such

light

work,

claimant

can

as the janitor

in this case -- that requires an exertional capacity to

do no
may

more than light work.

not, require other

Janitor work in general may, or

specific capabilities

that claimant

may, or may not, possess.

Claimant argues that the ALJ, as a

layman, was not qualified

to reach the vocational conclusion

that

general

janitor

work

in

does

capabilities that claimant's impairments

that
of

vocational conclusion, claimant

a

vocational

evaluation

expert,

process,

20

at

step

C.F.R.

not

require

deny him.

any

To reach

insists, the testimony

5

of

the

404.1520(f),

sequential
would

be

necessary.
We need not

resolve this question.

find that the record

for

Even

if we were to

lacked substantial vocational

evidence

the conclusion at step 4 that claimant could perform his

former type of work

Secretary

at step

as a janitor, we would
5, without
by

need for

vocational

expert,

applying

Guidelines,

20 C.F.R. Part 404, Subpart

grid").

-6-

the

still affirm the

the testimony

of a

Medical-Vocational
P, Appendix 2 ("the

The grid
and

can

is based

only

be

on a claimant's

applied

exertional capacity

where claimant's

non-exertional

limitations do not significantly impair claimant's ability to

perform at a given exertional level.
Health and Human Services, 685
__________________________
cert. denied, 461
_____________
evidence in

U.S.

the record

Sherwin v. Secretary of
_______
____________

F.2d 1, 3

958 (1983).

(1st Cir.

We find

to support the

1982),

substantial

Secretary's findings

that claimant's non-exertional impairments -- back pain and a

mental condition

-- do not significantly

impair his ability

to perform a full range of light work.

In
ALJ

addressing claimant's

expressly followed

the

complaints of back
analysis required

pain, the

by Avery
_____

v.

Secretary of Health and Human Services, 797 F.2d 19 (1st Cir.

______________________________________
1986), for
on

the

permissibly

evaluating subjective complaints of

medical
found

evidence

already

that claimant

did

pain.

mentioned,
not

Based

the

ALJ

suffer from

any

objective medical condition that would ordinarily be expected

to

cause disabling

pain.

cleared claimant to return

also

As

we

have noted,

to work in April

Dr.

1990.

Vargas
The

ALJ

stated that his doubts about the severity of claimant's

pain were "further corroborated

and

demeanor at

the

significant physical

hearing.

The

claimant

was

or emotional distress, and

to move about freely.

related

by the claimant's appearance

in

no

he was able

He provided information accurately and

adequately."

The

ALJ

concluded

that

"claimant

-7-

possibly

has

condition,

mild occasional

but he does not

discomfort associated

have disabling .

to his

. . distress."

The record contains ample evidence to support this finding.

As

for claimant's

mental condition, progress

his treatment by the Mental

notes of

Health Program of the Department

of Health stated that he had a somatoform disorder.

he

complained

of

uneasiness

and an

claimant was nevertheless found to

spheres,

cooperative,

appropriate
"feeling

affect.
better

with

and

was

found

that

also

medication."

psychologist reviewed the record and,

report,

claimant was

to

sleep,

be oriented in the

coherent,
Claimant

inability

Although

three

relevant,
reported
A

with
to

be

non-examining

in an October 9, 1990,

suffering

from

anxiety-

related

disorders with

no severe

slight functional limitations.

cannot find

a lack

impairment and

In view of this

of substantial

with only

evidence, we

evidence to support

the

Secretary's finding that claimant's mental condition did

not

significantly affect his ability to perform the full range of

jobs that require light work.
Given

the

possessed the

amply-supported

findings

exertional capacity to perform

that

claimant

light work and

that his pain and his mental condition did not

significantly

affect his

the grid

properly

be

ability to do

so, Rule

applied in

this case.

202.16 of

That Rule

can

dictates a

finding of "not disabled."

-8-

The judgment of the district court is affirmed.

________

-9-