Barbosa v. Secretary of Health and Human Services

1990 | Cited 0 times | First Circuit | December 11, 1990

Carmen Huertas Barbosa appeals the denial of her application for disability benefits. The Secretary of Health and Human Services ("the Secretary") denied the application initially and on reconsideration. The Secretary then referred the matter to an administrative law judge (ALJ) for a hearing, at which both Mrs. Huertas and a medical advisor testified. The ALJ ruled that Mrs. Huertas was not disabled, and the district court affirmed the ALJ's decision. This appeal followed. For the reasons stated in this opinion, we affirm the district court's decision.


The ALJ formally denied Mrs. Huertas' claim at step two of the "sequential analysis" described in the Secretary's regulations. 20 C.F.R. § 404.1520. That is, he decided that Mrs. Huertas did not suffer from a "severe impairment." He first determined that Mrs. Huertas' alleged physical ailments had no legally noteworthy effect on her ability to work, notwithstanding her complaints of residual pain from thrombophlebitis, because the medical evidence showed that Mrs. Huertas' doctors had successfully treated that condition. We have no quarrel with this part of the ALJ's analysis. It finds support in the medical record, in the ALJ's first-hand observation of Mrs. Huertas at her hearing, and in Mrs. Huertas' own application for benefits and request for reconsideration of the Secretary's decision to deny them, both of which documents refer only to a nervous condition.

While the ALJ thus properly took into account only Mrs. Huertas' "nonexertional" (i.e. mental and emotional) afflictions, his conclusion that they did not produce a "severe" impairment was not supported by his own groundwork. In making his decision, the ALJ filled out and appears to have relied on a Psychiatric Review Technique (PRT) form. This form provides a standard framework for the initial analysis of a claim of mental or emotional disability. By placing check marks in appropriate boxes, an examiner can determine whether the claimant suffers from no medically determinable impairment, from an impairment which is not "severe" and therefore dictates a finding of no disability (Step 2 of the sequential analysis), or from a severe impairment which either (a) "meets or equals a listed impairment" and thus entitles the claimant to relief (Step 3),1 or (b) does not meet or equal one of the listings and thus requires a further assessment of the claimant's "residual functional capacity" (Steps 4 and 5).

The examiner first determines the category or categories of disorder from which the claimant suffers. In this case, the ALJ found that Mrs. Huertas suffered from an affective disorder, a "disturbance of mood, accompanied by a full or partial manic or depressive syndrome," as evidenced in this case by sleep disturbances and decreased energy.2

The examiner then rates the degree of limitation in "four areas considered by [the Secretary] as essential to work", 20 C.F.R. § 404.1520a(b)(3): (1) Restriction of Activities of Daily Living, (2) Difficulties in Maintaining Social Functioning, (3) Deficiencies of Concentration, Persistence or Pace, and (4) Episodes of Deterioration or Decompensation in Work or Work-like Settings. In the first two categories, the degree of limitation is expressed in terms of intensity (none, slight, moderate, marked, extreme), in the third and fourth categories in terms of frequency (never, seldom, often, frequent or constant in the third category, and never, once or twice, repeated or continual in the fourth). The examiner has the option of deciding that he has insufficient evidence to give an opinion about any or all categories.

Here, the ALJ found that Mrs. Huertas suffered "moderate" limitations in the daily living and social functioning categories, and "seldom" experienced deficiencies of concentration, persistence or pace. He saw insufficient evidence to give an opinion about the fourth category of functional limitation.

We can assume for purposes of argument that the ALJ's check marks corresponded to medical reality and derived substantial support from the psychiatric record.3 We cannot, however, conclude that these preparatory findings adequately supported the ALJ's ultimate determination that Mrs. Huertas' impairment was not "severe."

According to 20 C.F.R. § 404.1520a(c)(1):

If the four areas considered by us as essential to work have been rated to indicate a degree of limitation as "none" or "slight" in the first and second areas, "never" or "seldom" in the third area, and "never" in the fourth area, we can generally conclude that the impairment is not severe, unless the evidence otherwise indicates there is significant limitation of your ability to do basic work activities.

As we have said before, this means that an ALJ can decide that a claimant's impairment is not severe if he rates her limitations as "none" or "slight" in the first two categories, "never" or "seldom" in the third category, and "never" in the fourth -- or, perhaps, if he supplies an express (and, we might add, persuasive) explanation for his departure from the "general" rule set forth in the regulation. See Figueroa-Rodriguez v. Secretary of Health and Human Services, 845 F.2d 370, 374 (1st Cir. 1988). Since, as noted above, the ALJ here saw "moderate" limitations in the first two categories, and since he did not explain the discrepancy between his findings and the rule stated by § 404.1520a(c)(1), he could not correctly say that the impairment was not severe. He should instead have concluded, as Drs. Quinones and Vilar did, that Mrs. Huertas suffered from a severe impairment that did not meet or equal a listed impairment, and that an assessment of her residual functional capacity (RFC) was required to determine, at step four of the sequential analysis, whether she could do the kind of work she had done in the past.4 20 C.F.R. § 404.1520a(c)(3).


It so happens that the Secretary's two consulting doctors, because they reached the correct conclusion about the level of impairment, went on to provide the RFC assessments needed at step four. Dr. Quinones found that Mrs. Huertas had "moderate" limitations in her ability to remember locations and work-like procedures, to carry out detailed instructions, to maintain attention and concentration for extended periods, to perform activities within a schedule, maintain regular attendance and be punctual within customary tolerances, to complete a normal work week and perform at a consistent pace, to accept instructions and respond appropriately to criticism from supervisors, to respond appropriately to changes in the work setting, and to travel in unfamiliar places or use public transportation. In all other respects, Dr. Quinones believed that Mrs. Huertas was "not significantly limited." Dr. Vilar agreed with all but one aspect of Dr. Quinones' assessment: she believed that Mrs. Huertas also was moderately limited in her ability to interact appropriately with the general public.

The ALJ, moreover, although he formally placed his decision at step two of the sequential analysis, did speak in his memorandum of decision to the question of Mrs. Huertas' ability to do her past work:

As to claimant's past relevant work, the record shows that during the performance of her customary job she had to, in an eight hour day, walk for one hour, stand for four to five hours or sit for three hours. Her job was sedentary and she had to bend frequently and reach constantly. Her job was unskilled, simple and repetitive. The record clearly shows that the claimant retains the residual functional capacity to perform sedentary work which coincides with her past relevant work. Therefore, she can perform her customary job as a laborer. Her emotional condition has not posed any mental restrictions whatsoever to interfere with her ability to perform a light to sedentary work or her past relevant work. Her mental condition according to the record is characterized by sleep disturbances and decreased energy, however, the same has not resulted in any severe degree of limitation in daily activities or social interaction.

The RFC assessments supplied only half of the information needed for a decision at step four. At that stage, the Secretary is supposed to review the claimant's residual functional capacity in light of "the physical and mental demands" of the work she has done in the past. If the claimant can still do this kind of work, she is not disabled. 20 C.F.R. § 404.1520(e).

What the record in this case lacks is detailed evidence about Mrs. Huertas' past work as a laborer that would allow us to perform an analysis which adequately "relates [her] psychological disorder to the capabilities necessary to work at [her] prior vocation." Gonzalez Perez v. Secretary of Health, Education and Welfare, 572 F.2d 886, 888 (1st Cir. 1978). The record here contains only a disability report with a brief description of the basic physical requirements of Mrs. Huertas' last two jobs (Tr. 78-79); Mrs. Huertas' equally brief description from the witness stand of her duties as a worker in a purse factory (Tr. 36-37); and her testimony, in response to a question from the ALJ, that she "sometimes" was required to meet a "production schedule," and that she "sometimes" did so successfully (Tr. 36). This information agrees, in a general way, with the ALJ's comment that Mrs. Huertas' past work was "unskilled, simple and repetitive." But we think that it was too skimpy to allow the ALJ to make an informed decision about Mrs. Huertas' ability to perform that past work, given her demonstrated limitations in such areas as her ability to carry out instructions, keep to a schedule and maintain concentration and attention.

The responsibility for any deficiency in the record, however, must be attributed to the claimant. "It is well settled that a claimant seeking disability benefits has the initial burden of proving that her impairments prevent her from performing her former type of work", Gray v. Heckler, 760 F.2d 369, 371 (1st Cir. 1985), and that along with this burden of proof the claimant bears a burden of producing evidence about her past work. Id. at 372. In the past we have held claimants responsible for the lack of an adequate record, affirming decisions to deny benefits where the claimants failed to describe their past work and thus failed to build the foundation on which a decision at step four must rest. See Gonzalez Perez v. Secretary of Health, Education and Welfare, 572 F.2d at 888; Pitchard v. Schweiker, 692 F.2d 198, 201 (1st Cir. 1982).

Neither Gonzalez Perez nor Pitchard took into account Social Security Ruling 82-62, which the Secretary promulgated in late 1982. According to this Ruling, then a case reaches step four of the sequential analysis, past work experience must be "considered carefully" and given "careful appraisal," and "every effort must be made to secure evidence that resolves the issue clearly and explicitly as circumstances permit." When the claim involves a mental or emotional impairment, "care must be taken to obtain a precise description of the job duties which are likely to produce tension and anxiety, e.g. speed, precision, complexity of tasks, independent judgments, working with other people, etc." Finally, if the ALJ decides that the claimant can return to her past work, he must make three specific findings of fact: (1) a finding about the claimant's residual functional capacity, (2) a finding about the physical and mental demands of the claimant's past work, and (3) a finding that the claimant's residual functional capacity would permit a return to the past work. Id.5

We have not had occasion to decide whether or how SSR 82-62 affects the allocation of burdens at step four. In May v. Bowen, 663 F.Supp. 388 (D.Me. 1987), the district court decided that, while SSR 82-62 does not alter the historical allocation of the burdens of proof and production, it does impose "a burden on the Secretary to develop the record after the claimant has met her burden of producing relevant information on the subject of past relevant work." 663 F.Supp. at 394. In that case, the claimant met her obligation (1) by showing that she suffered from an arteriosclerotic condition that placed her at risk of a stroke, and (2) by stating in a vocational report filed with the Secretary that her past jobs were "pressure jobs." This was sufficient to trigger the Secretary's duty to perform the investigation described in SSR 82-62. Id.

The district court in May v. Bowen applied a distinction that we had made in cases preceding SSR 82-62. For example, in Pelletier v. Secretary of Health, Education and Welfare, 525 F.2d 158 (1st Cir. 1975), the claimant quit her job as an illustrator because she suffered from a respiratory condition that was aggravated by her co-workers' cigarette smoke and by chemicals she used on the job. The ALJ denied benefits, but the district court reversed on the ground that the claimant could not return to her past work. We ruled that the district court erred, because there was no evidence in the record to show that the claimant's former job required exposure to smoke and chemical fumes. Rather than reverse, however, we remanded. The claimant's application for benefits stated that she was allergic to three chemicals, and that two of those chemicals were used by illustrators. "Thus she did not fail altogether to raise the point to the Secretary." Id. at 161. Since the rules respecting burdens of proof "resist translation into absolutes" in social security proceedings, which are not strictly adversarial, we thought it better that the Secretary take further evidence on the issue. Id., citing Miranda v. Secretary of Health, Education and Welfare, 514 F.2d 996, 998 (1st Cir. 1975).

The claimant here, unfortunately, has not met even the minimal, threshold burden imposed by the Pelletier and May cases. She is more like the claimant in Pitchard, who submitted a "mere scintilla" of evidence to describe the demands of his previous work, and offered no explanation about why he could not return to that work. 692 F.2d at 201. Mrs. Huertas failed not only to describe the aspects of her past jobs that were "likely to produce tension and anxiety," but even to allege that those jobs produced tension, anxiety or similar impediments. Instead, she submitted only a meager description of the physical duties of her former jobs -- a description which, if it has any relevance, serves to support rather than refute the ALJ's conclusion that those jobs were "unskilled, simple and repetitive." In short, the evidence she presented "could certainly be understood by the ALJ as posing no issue as to her ability to work." Jones v. Bowen, 699 F.Supp. 693, 696 (N.D. Ill. 1988).

Without Mrs. Huertas "presenting any evidence or even allegations" about her inability to return to her past work, "we have no basis for reversing the lower court's decision." Gonzalez Perez, 572 F.2d at 888.


1. The so-called listed impairments can be found in Appendix 1 to Subpart P of the Secretary's regulations, 20 C.F.R. Part 404.

2. The ALJ, relying on the testimony of the medical advisor, decided that these problems were to at least some extent iatrogenic -- that is, caused by the virtual pharmacopeia (Vistaril, Benadryl, Halcion, Serax and Mellaril) that Mrs. Huertas was ingesting on the advice of her treating physician.

3. We note, though, that Drs. Quinones and Vilar, two physicians hired by the Secretary to examine the record and fill out PRT forms, made different findings. Both doctors saw slight (rather than moderate) limitations in the first two categories, but felt that Mrs. Huertas suffered often (rather than seldom) from deficiencies of concentration, persistence or pace. Both doctors also found enough evidence in the record to conclude that Mrs. Huertas never suffered from episodes of deterioration or decompensation in the workplace.

4. Mrs. Huertas' impairments did not meet or equal a listed impairment because according to the PRT form an affective disorder satisfies the listings only when the degree of limitation is at least "marked" in the first two categories, "frequent" in the third and "repeated" in the fourth.

5. Because the ALJ formally made his decision at step two, he did not set out as "findings" the information required by SSR 82-62. His memorandum of decision, however, addressed each of the three points those findings are supposed to cover.

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