Luis A. Padilla v. Joanne B. Barnhart, Commissioner of Social Security

Not for Publication in West's Federal Reporter
Citation Limited Pursuant to 1st Cir. Loc. R. 32.3
United States Court of Appeals
For the First Circuit
No. 05-1883
LUIS A. PADILLA,
Plaintiff, Appellant,
v.
JOANNE B. BARNHART,
COMMISSIONER OF SOCIAL SECURITY,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Aida M. Delgado-Colón, U. S. Magistrate Judge]
Before
Torruella, Circuit Judge,
Stahl, Senior Circuit Judge,
and Lipez, Circuit Judge.
Luis M. Chaves Ghigliotty on brief for appellant.
H.S. Garcia, United States Attorney, and Dino Trubiano,
Special Assistant United States Attorney, on brief for appellee.
July 19, 2006

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Per Curiam. Claimant Luis A. Padilla appeals from a
decision of the district court accepting the opinion and order of
the magistrate judge affirming the Commissioner's denial of
disability benefits under the Social Security Act. We have
carefully reviewed the briefs and the record, Rodriguez Pagan v.
Secretary of Health & Human Services, 819 F.2d 1, 3 (1st Cir. 1987)
(per curiam), cert. denied, 484 U.S. 1012 (1988), and find that the
Commissioner's decision is not supported by the substantial
evidence.
Padilla was 45 years old when he filed his application
for Social Security disability benefits in June 2000. His last job
had ended in November 1996, when he injured his knee with a machete
while working as a tree cutter. Before that, Padilla had worked
for almost twenty years as a materials handler and group leader for
Baxter HealthCare Corp. Pharmaceutical Co. Padilla claimed that he
was unable to work because of hypertension, Type II diabetes,
arthritis, the injury to his knee, and an adjustment order with
depressed mood. Padilla's application was denied, as was his
request for reconsideration. A hearing was held before an
administrative law judge ("ALJ") in December 2001. Padilla waived
his right to attend, but was represented by his attorney.
The seven-minute hearing consisted entirely of the
testimony of the Commissioner's vocational expert in response to
hypothetical questions posed by the ALJ. Although the vocational

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expert testified that in his opinion, if the reports of Padilla's
treating psychiatrist and physician were given "full credibility,"
Padilla is completely unable to "function vocationally," the ALJ
discredited this testimony.
Instead, in reaching his decision that Padilla retained
the residual functional capacity to perform "light work" under Rule
202.18 of the Medical-Vocational Guidelines ("the Grid"), 20 C.F.R.
§ 404, App. 2, Subpt. P, the ALJ apparently relied on the
vocational expert's answer to a confusing compound hypothetical
question, as well as the opinions and reports of the consulting
physicians and psychologist which were based on an incomplete
medical record. As a result, substantial evidence in the record
regarding Padilla's physical and mental impairments was ignored.
In his first hypothetical question posed to the
vocational expert, the ALJ directed the expert to assume that
Padilla could perform "light work" -- with certain limitations
apparently derived from the physical residual functional capacity
("RFC") assessment completed by a non-examining consulting
physician -- and then asked whether such work existed in the
national economy and whether Padilla could perform his past "heavy"
work. The expert did not respond to the first portion of the ALJ's
compound question, but did reply that in his opinion, Padilla is
unable to perform "the job he did in the past." Perhaps attempting
to alert the ALJ to the problem with the question as it was posed,

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Padilla's counsel stipulated that the vocational expert would be
able to enumerate a "significant number of examples of jobs that
under the proposed hypothesis the claimant or any other person with
that vocational profile" could perform (emphasis added).
The ALJ erroneously regarded this stipulation as an
admission that Padilla could perform light work. The ALJ never
asked the vocational expert whether, given any of the specific
limitations described by the consulting physicians or psychologist,
Padilla could perform light work. All that the ALJ asked was
whether Padilla could perform his past work and, assuming that
Padilla could perform light work, whether such jobs existed.
Counsel's stipulation simply confirmed that if Padilla could
perform light work, such jobs existed.
In his next question, the ALJ specifically referenced the
fall 2001 mental rfc assessment prepared by Padilla's treating
psychiatrist and asked the vocational expert whether, if the report
were fully credited, Padilla could "perform any type of jobs that
exist in the national economy." The expert answered that "[a]
person with those limitations could not function in the industry of
our country." The ALJ then asked the same question based on the
fall 2001 physical assessment prepared by the physician treating
Padilla for his rheumatoid arthritis. Again, the expert answered
that "a person under those circumstances would not be able to
function vocationally." The ALJ kept the record open for ten days

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The progress notes were later submitted to the Appeals 1
Council, which entered an order making them part of the evidentiary
record.
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so that Padilla could submit his psychiatrist's progress notes, but
the ALJ did not request the treating physician's progress notes.
The psychiatrist's notes were not submitted within the time
allowed.1
The ALJ found Padilla's claims of disabling physical and
mental impairments not "credible." The ALJ based his decision on
the opinions of the consulting physicians and psychologist, all of
whom had examined Padilla before December 2000 or rendered their
opinions based on the medical record as it existed in December
2000, thus precluding consideration of the physical and psychiatric
assessments prepared by Padilla's treating psychiatrist and
physician almost a full year later. The ALJ explained that he
discredited Padilla's psychiatrist's assessment (and the vocational
expert's opinion based on it) because of the missing progress
notes, but he did not explain why he ignored Padilla's physician's
assessment of his physical limitations and pain and the vocational
expert's opinion based on that report. The ALJ ruled that the type
and dosage of medications Padilla took were not indicative of
"severe, chronic, and unrelenting pain," yet no such finding
appears in the record and no medical expert testified at the
hearing.

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Because the ALJ discounted and ignored the treating
physicians' reports and the corresponding testimony of the
vocational expert, his findings are based entirely on the use of
the Grid. Exclusive reliance on the grid is not appropriate in
mixed exertional/nonexertional cases. Ortiz v. Secretary of Health
& Human Services, 890 F.2d 520, 524-25 (1st Cir. 1989) (per
curiam). We have also noted that "[p]ain can constitute a
significant non-exertional impairment which precludes naked
application of the Grid and requires use of a vocational expert."
Nguyen v. Chater, 172 F.3d 31, 36 (1st Cir. 1999) (per curiam)
(collecting cases).
If a vocational expert's testimony is to have any
probative value, the hypothetical questions posed to the expert
must contain the relevant facts. In Lizotte v. Secretary of Health
& Human Services, 654 F.2d 127, 131 (1st Cir. 1981), for example,
the various hypothetical questions posed to the vocational expert
asked him to consider appellant's ability to perform under
different assumptions, including restrictions precluding appellant
from tolerating a regular eight-hour day on a sustained basis,
significant restrictions in appellant's ability to concentrate and
pay attention, and other restrictions. In that case, the ALJ
disregarded the opinions it determined were based on discredited
evidence. In this case, only three hypothetical questions were
asked and answered, and each presents a different problem: the

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first question was constructed in such a way that it assumed the
ultimate answer, thus preventing the vocational expert from
providing his opinion regarding whether Padilla could perform light
work under any set of assumptions; the ALJ decided to discredit the
second question and answer because of missing progress notes that
have since been made part of the record; and the ALJ simply, and
without explanation, ignored the third question and answer.
As a result, the ALJ disregarded the most current medical
information in the record and relied exclusively on the opinions
and assessments of the consulting physicians and psychologist
which, in turn, were based on an incomplete medical record. This
fact counsels against assigning controlling weight to these
opinions. Gordils v. Secretary of Health & Human Services, 921
F.2d 327, 330 (1sr Cir. 1990) (per curiam). Furthermore, there is
no dispute in the record that in addition to osteoarthritis,
Padilla suffers from rheumatoid arthritis, a progressive and
degenerative disease affecting all of the joints of the body, for
which there is no cure. One of the non-examining consulting
physicians stated in December 2000 that Padilla's physical
condition was "not severe at this time," apparently recognizing
that his condition could change, yet the ALJ did not follow up on
this issue or obtain a medical expert's opinion regarding its
significance.

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A similar problem attends the ALJ's decision to discredit
Padilla's psychiatrist's mental RFC assessment, purportedly because
of the lack of progress notes or explanation of the basis of the
doctor's opinion in the record. The ALJ instead credited the
mental RFC and Psychiatric Review Technique prepared by the non-
examining consulting psychologist, which is even more conclusory
and consisted entirely of checked boxes on the forms, without
narrative or explanation, and with no mention of Padilla's suicide
attempt or the "guarded" prognosis provided by the Commissioner's
consulting psychiatrist. The opinion of Padilla's treating
psychiatrist is not entitled to more weight simply because of her
status as a treating source, Rodriguez Pagan v. Secretary of Health
& Human Services, 819 F.2d 1, 3 (1st Cir. 1987) (per curiam), cert.
denied, 484 U.S. 1012 (1988), but rather because her opinion is
consistent both with the record as a whole and with many of the
factors listed in 20 C.F.R. § 404.1527(d).
Finally, the ALJ erred when he found that Padilla's
hypertension is "under control." No such diagnosis appears
anywhere in the record; rather, the record shows that despite the
treatment he has received over the years, Padilla's blood pressure
readings consistently remain in the hypertensive and pre-
hypertensive range. On appeal, Padilla argues for the first time
that his condition is cognizable as cardiovascular disease or is
medically equivalent to a Listing Impairment under 20 C.F.R. Part

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404, Subpart P, App. 1, § 400. It is well-settled that this court
will not consider issues not raised below. Dupuis v. Secretary of
Health & Human Services, 869 F.2d 622, 623 (1st Cir. 1989).
We vacate the judgment of the district court and direct
the district court to remand the case to the Commissioner for
further proceedings consistent with this opinion, including
obtaining any expert medical evidence needed to illuminate the
medical record. We express no opinion as to the ultimate outcome
of the case.
Vacated and remanded.

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