Ocasio Vazquez v. SHHS, 29 F.3d 619, 1st Cir. (1994)

29 F.
3d 619
NOTICE: First Circuit Local Rule 36.2(b)6 states unpublished

opinions may be cited only in related cases.
Ana L. OCASIO VAZQUEZ, Plaintiff, Appellant,
v.
SECRETARY OF HEALTH AND HUMAN SERVICES,
Defendant, Appellee.
No. 93-1861
United States Court of Appeals,

First Circuit.
February 9, 1994
Appeal from the United States District Court for the District of Puerto
Rico [Hon. Juan M. Perez-Gimenez, U.S. District Judge ]
Juan A. Hernandez Rivera and Raymond Rivera Esteves 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.
D. Puerto Rico
AFFIRMED.
Before Breyer, Chief Judge, Selya and Cyr, Circuit Judges.
Per Curiam.
Ana L. Ocasio Vazquez (claimant) appeals from a district court judgment

affirming the decision of the Secretary of Health and Human Services denying
her application for disability benefits. For the reasons stated below, we affirm.
BACKGROUND
Claimant was born on September 25, 1946, and applied for benefits when she
was forty three years old. She has a seventh grade education and does not speak
English. Between 1970 and 1988, she was employed as a sewing machine
operator. In 1978, she suffered trauma to her left knee and underwent a left
medial meniscectomy. She returned to work but injured the same knee in 1982.
Claimant continued to work until March 15, 1988, when pain in her left leg
worsened. She was hospitalized for several days and, thereafter, did not return
to work.
On February 2, 1990, claimant filed her application for benefits alleging that
she was disabled by phlebitis in her left leg, sinusitis, headaches, back pains,
and nerves.1 She claimed that she could not work because:
My leg becomes swollen and my two legs go numb. The backache and the
headaches are frequent. At night, I don't sleep much. Before, I used to turn the
house upside down [to give it a thorough cleaning] but I can't do it anymore.
The Social Security Administration denied claimant's application initially and

on reconsideration.
Claimant obtained a hearing before an Administrative Law Judge (ALJ) on

March 19, 1991. She was represented by an attorney. In addition to the
claimant, a medical expert (ME) and a vocational expert (VE) testified.
At the hearing, claimant reiterated her claims about her leg and back
conditions, as well as headaches. She testified that her headaches are relieved
by medication, but that the relief is only temporary. She also complained of
pain and numbness in her upper left shoulder, dizzy spells, and "teary and
itchy" eyes. With respect to her physical limitations, claimant testified that she
could not sit for more than one half hour at a time, that she could not walk a
distance of more than four or five houses before pain in her back and legs
caused her to return home, and that sometimes her leg pain was so strong that
she had to lie down.2
The ME testified that claimant had only a very mild loss of movement in her
knee and suffered from "superficial phlebitis, which though painful when
occurring, is inconsequential."3 He concluded that "in terms of her functioning,
there isn't a great degree of limitation." With respect to claimant's back pain,
the ME testified that her condition "at no time is characterized as abnormal." He
found no evidence of objective neurological pain. In summation, the ME
testified that "[he didn't] see the severity in any of the conditions that [claimant]
mentioned," even as a whole, and that she should try to find a job that did not
involve repetitive foot movements.
9
The VE identified claimant's former work as a sewing machine operator as light

and semi-skilled. The ALJ posed a hypothetical to the VE which assumed that
claimant can sit for five hours in an eight hour day; can stand for three to four
hours in the same period; can lift ten pounds frequently, and twenty-five
pounds occasionally; can pull and push with her hands, but not make repetitive
leg movements; and can bend and squat occasionally.4 The VE concluded that
claimant could not do her past work as a sewing machine operator, because it
required her to sit all day and to alternate her legs frequently. However, he
identified three other jobs within the clothing industry-garment bagger, spot
cleaner, and garment inspector-that claimant could perform. In these jobs, the
VE testified, claimant could change her position at will. The VE further
testified that claimant could perform these jobs if she had mild pain.
10
The ALJ found that the combined effect of claimant's status post left
meniscectomy, status post left superficial phlebitis, and sinusitis are severe. He
also found that claimant is unable to perform her past work. However, the ALJ
concluded that claimant has the residual functional capacity to perform within
sedentary to light exertional demands.5 The AlJ further concluded that
claimant's allegations of left leg and knee pains do not disable her from
performing sedentary to light work. Finally, the ALJ ruled that, based on the
testimony of the vocational expert and application of the Grid, claimant is not
disabled at step five of the sequential analysis because there are other jobs that
she can perform.
11
The Appeals Council denied review. An appeal was taken to the district court,
where a magistrate-judge concluded that the Secretary's decision was supported
by substantial evidence. The district court adopted the magistrate's report and
recommendation. This appeal followed.
MEDICAL HISTORY
12
The medical record is well-summarized in the ALJ's report, and we need only
provide a brief overview here. In late February and early March 1988, claimant
saw doctors at the State Insurance Fund for pain and swelling in her left knee.
On March 21, 1988, claimant was hospitalized for these complaints. A left leg
venogram was negative for thrombosis, but an x-ray indicated joint space
narrowing compatible with osteoarthritis. Claimant was prescribed an antiinflammatory medication and discharged on March 25, 1988. At the time of
discharge, she was not experiencing leg discomfort and there were no
restrictions on her activities.

13
After her release from the hospital, claimant underwent further tests and her left
leg condition was diagnosed as superficial thrombophlebitis. She continued to
be seen by doctors at the State Insurance Fund for complaints of pain in her left
leg. A questionnaire completed by her personal physician, Dr. Justimo
Betancourt, on March 23, 1990, indicates that she had difficulty walking on her
left leg, but had no inflammation. Dr. Betancourt also reported that claimant
had a history of maxillary sinusitis and that she had occasional dizzy spells.
14
An internist evaluation done by Dr. Isabel Cestero, on March 30, 1990, noted
that claimant complained of pain and numbness in her left leg, as well as
swelling if she remained standing. Laboratory results for the left knee were
normal, but a back x-ray indicated minimal narrowing of the lumbo sacral spine
at L5-S1. Tests revealed some limitation in mobility in the left knee (0?-100?
out of a possible range of 0?-120?). The diagnosis was status post left
meniscectomy and status post left superficial phlebitis.
15
On September 21, 1990, Dr. Betancourt reported findings similar to those he

reported on March 23, 1990, although he also noted left leg skin changes with
edema. On September 28, 1990, an x-ray of claimant's cervical spine showed
straightening secondary to muscle spasms, as well as minimal levoscoliosis.
DISCUSSION
16
On appeal, claimant raises two issues. First, claimant argues that the ALJ failed
to give proper consideration to her subjective complaints of disabling pain.
Second, claimant contends that the ALJ's conclusions about her physical
exertional capacity are not supported by substantial evidence because they were
reached without any assessment of residual functional capacity by a physician.
17
With respect to claimant's argument that the ALJ failed to properly evaluate her
claim of subjective pain, we note that although it was considered and rejected
by the magistrate, it was not encompassed in claimant's objection to the
magistrate's report. It is well-settled in this circuit that a party may not obtain
appellate review of an issue determined by a magistrate when the party has
failed to file a timely objection to the magistrate's determination of the issue as
required by 28 U.S.C. Sec. 636(b). See Thomas v. Arn, 474 U.S. 140, 147-48
(1985); Keating v. Secretary of Health & Human Services, 848 F.2d 271, 273
(1st Cir. 1988) (per curiam); Park Motor Mart, Inc. v. Ford Motor Co., 616 F.2d
603, 605 (1st Cir. 1980). Accordingly, the issue is waived.
18
We add that even if we were to consider the issue, we would disagree. Claimant
was questioned regarding her daily activities, functional restrictions,
medication, and frequency and duration of pain in conformity with the
guidelines set out in Avery v. Secretary of Health & Human Services, 797 F.2d
19 (1st Cir. 1986).6 In light of the lack of medical evidence to suggest an
objective basis for disabling pain, the ALJ, who observed claimant's demeanor
at the hearing, was entitled to make a credibility determination regarding
claimant's pain, Da Rosa v. Secretary of Health & Human Services, 803 F.2d
24, 26 (1st Cir. 1986) (per curiam), and to conclude that her pain did not disable
her from performing within sedentary to light exertional demands. See Perez v.
Secretary of Health & Human Services, 958 F.2d 445, 448 (1st Cir. 1991) (per
curiam).
19
The ALJ's finding that claimant has the residual functional capacity to do
sedentary to light work is slightly more problematic, though we ultimately
conclude that it is supported by substantial evidence. It is true that we have
held that an ALJ is not qualified to interpret "raw medical data" in functional
terms. See Perez, 958 F.2d at 446. We have also stated, however, that the
Secretary is not precluded from rendering common-sense judgments about
functional capacity based on medical findings." Gordils v. Secretary of Health
& Human Services, 921 F.2d 327, 329 (1st Cir. 1990) (per curiam). Here, there
is no residual functional capacity analysis by an expert in the record. We find,
however, that the ALJ could make a determination that claimant was not
disabled for the following reasons. First, the impairments in the record appear
to be "relatively mild" in the sense that the reports show few symptoms that
would affect ability to do work. See Santiago v. Secretary of Health & Human
Services, 944 F.2d 1 (1st Cir. 1991) (per curiam). Second, the ALJ's "commonsense judgment" was bolstered by the testimony of a medical expert that "there
isn't a great degree of limitation" on claimant's functional capacity, that he "[did
not] see the severity" in any of the conditions she mentioned, and that claimant
should try to find a job that did not require her to make repetitive foot
movements. Finally, aside from claimant's allegations of disabling pain, which
we have held the ALJ was entitled to reject, the only other claimed limitation
was an inability to sit or walk for an extended period of time. The hypothetical
posed to the VE by the ALJ assumed the truth of this claimed limitation, and
the VE identified jobs that would permit her to alternate positions at will.
20
The judgment of the district court is affirmed.
Phlebitis is inflammation of a vein. See Dorland's Illustrated Medical
Dictionary 1279 (27th ed. 1988). Sinusitis is inflammation of a sinus. Id. at

1531
2
Although claimant testified that she did not think that she could work, she also
testified that she had not tried to find a job because:
I don't feel capable. I don't know what kind of work to look for because
nowadays one has to have a degree to get a comfortable job and I don't have it.
The ME testified that "superficial phlebitis is an inflammation of the superficial

veins in the legs and the varicose veins, as we commonly know them are the
ones seen through the skins, they sometimes swell get reddish and could be
very painful, but besides being temporarily uncomfortable, it is not a condition
that's considered serious."
The hypothetical also assumed that claimant was somewhat limited in her
ability to work at unprotected heights, around operating machinery, or in an
environment where she would be exposed to extreme changes in temperature
The ALJ went on make specific findings that claimant has the capacity:
to perform the physical exertion requirements of work except for sitting over
five hours, standing and walking over three to four hours, lifting and carrying
over 10 pounds frequently and 25 pounds occasionally, performing repetitive
actions with her lower extremities and exposure to unprotected heights, moving
machinery or abrupt changes in temperature.
Although more thorough questioning at the hearing regarding claimant's daily

activities would have been preferable, the record included a questionnaire
which elicited this information from her. Claimant stated that she spent most of
the time lying down, but also stated that she cooked occasionally and that she
visited close relatives

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29 F.

NOTICE: First Circuit Local Rule 36.2(b)6 states unpublished

United States Court of Appeals,

Ana L. Ocasio Vazquez (claimant) appeals from a district court judgment

The Social Security Administration denied claimant's application initially and

Claimant obtained a hearing before an Administrative Law Judge (ALJ) on

The VE identified claimant's former work as a sewing machine operator as light

restrictions on her activities.

On September 21, 1990, Dr. Betancourt reported findings similar to those he

The judgment of the district court is affirmed.

Phlebitis is inflammation of a vein. See Dorland's Illustrated Medical

Dictionary 1279 (27th ed. 1988). Sinusitis is inflammation of a sinus. Id. at

The ME testified that "superficial phlebitis is an inflammation of the superficial

Although more thorough questioning at the hearing regarding claimant's daily

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