Not For Publication in West's Federal Reporter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. 04-2432

CELIA R. TAVAREZ,

Plaintiff, Appellant,

v.

COMMISSIONER OF SOCIAL SECURITY,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Jaime Pieras, U.S. District Judge]

Before

 Torruella, Lipez and Howard,

Circuit Judges.

Melba N. Rivera Camacho on brief for appellant.

H.S. Garcia, United States Attorney, Katherine GonzalezValentin, Assistant U.S. Attorney, and Dino Trubiano, Assistant

Regional Counsel, on brief for appellee.

June 30, 2005
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Per Curiam. Claimant Celia R. Tavarez filed an

application for Social Security disability benefits primarily

based on (1) back pain, (2) carpal tunnel syndrome, and (3) a

mental impairment (depression). The administrative law judge

(ALJ) determined that although claimant cannot perform her past

work due to the skill level involved in this work, she

nonetheless retains the residual functional capacity (RFC) to

perform the exertional demands of medium work (1) which is simple

and unskilled and (2) which does not require frequent bilateral

handling, fingering, and manipulating. Relying on the Medical

Vocational Guidelines (the Grid), 20 C.F.R. Part 404, Subpart P,

App. 2, as a framework, the ALJ then concluded that claimant was

not disabled. The district court upheld the denial of disability

benefits.

We agree with the district court concerning claimant's

mental impairment. Claimant did not seek any treatment for this

condition until three weeks before the date her insured status

expired (December 31, 2001), and Dr. Perez, claimant's treating

psychiatrist, did not place any limitations on claimant prior to

this date. Indeed, it was not until April 24, 2002, that Dr.

Perez opined that claimant's capacity for work was poor, and it

was not until March 2003 that Dr. Perez rated claimant as being

markedly limited in all areas of mental functioning. In neither
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of these opinions did Dr. Perez state that these limitations had

existed prior to December 31, 2001.

As a result, and given the lack of any evidence in the

record concerning the effects of claimant's mental impairment on

her ability to function in the workplace during the relevant

time, the ALJ's conclusion that this impairment is mild was

supported by substantial evidence. Similarly, the ALJ's

determination that claimant's mental condition only affected her

to the extent that she was limited to coping with simple

instructions is supported by substantial evidence. In relation

to this latter determination, the RFC assessment of the nonexamining clinical psychologist rated claimant as having no

significant limitations in dealing with such instructions. This

assessment further stated that claimant could sustain pace and

attention during a regular work-day or work-week and could

persist in work activities in a sustained manner.

However, we do agree with claimant that the ALJ's

reliance on the Grid was in error. Where a claimant cannot

return to her past work, as here, the Commissioner bears the

burden of proving the existence of other jobs in the national

economy which the claimant is capable of performing. See Ortiz

v. Secretary of Health and Human Services, 890 F.2d 520, 524 (1st

Cir. 1989) (per curiam). The Grid permits the Commissioner to

satisfy this burden without having to resort to the testimony of
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a vocational expert (VE). Id. Thus, "should a nonexertional

limitation be found to impose no significant restriction on the

range of work a claimant is exertionally able to perform,

reliance on the Grid remains appropriate." Id. However, where

a claimant has a nonexertional impairment which "significantly

affects" the claimant's capacity to perform the full range of

work he or she is otherwise exertionally capable of performing,

the Commissioner must carry her burden of showing the

availability of jobs in the national economy by other means. Id.

(internal quotation marks and citation omitted). Usually, this

involves obtaining the testimony of a VE. Id. at 524.

Here, the ALJ found that claimant could perform all of

the exertional requirements of medium work, and such a finding

also means that claimant is capable of performing the exertional

demands of sedentary and light work. See 20 C.F.R. §

404.1567(c). As for claimant's carpal tunnel syndrome -- a

nonexertional impairment -- the ALJ concluded, as noted, that

claimant could not engage in frequent bilateral fingering,

handling, and manipulating. An uncontradicted RFC assessment

similarly found that claimant has limits in her ability to finger

(fine manipulation) and handle (gross manipulation).

"Fingering involves picking, pinching, or otherwise

working primarily with the fingers," and the ability to finger

"is needed to perform most unskilled sedentary jobs." Social
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Security Ruling (SSR) 85-15, Capability to Do Other Work -- The

Medical-Vocational Rules as a Framework for Evaluating Solely

Nonexertional Impairments, 1985 WL 56857, at *7 (internal

quotation marks omitted). See also SSR 83-10, Determining

Capability to Do Other Work -- The Medical-Vocational Rules of

Appendix 2, 1983 WL 31251, at *5 ("[m]ost unskilled sedentary

jobs require good use of the hands and fingers for repetitive

hand-finger actions"). "Handling" is defined as "seizing,

holding, grasping, turning or otherwise working primarily with

the whole hand or hands," and handling is "required in almost all

jobs." SSR 85-15, 1985 WL 56857, at *7. See also SSR 83-14,

Capability to Do Other Work -- The Medical-Vocational Rules as a

Framework for Evaluating a Combination of Exertional and

Nonexertional Impairments, 1983 WL 31254, at *2 (grasping,

holding, and turning are required "at all exertional levels").

"Significant limitations of . . . handling, therefore, may

eliminate a large number of occupations a person could otherwise

do." SSR 85-15, 1985 WL 56857, at *7.

The question, then, is whether an inability to

frequently finger and handle "significantly affects" claimant's

capacity to perform the full range of work at all of the relevant

exertional levels -- sedentary, light, and medium. See Ortiz,

890 F.2d at 524. The ALJ thought not as he concluded that

claimant's ability to perform at least medium work "was
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substantially intact and was not compromised by any nonexertional

limitations." The problem is that we cannot determine from the

record the basis for the ALJ's conclusion that claimant's

incapacity for frequent fingering and handling did not

significantly affect the range of work in which she could engage.

As SSR 85-15 points out, "[v]arying degrees of [manual]

limitations . . . have different effects, and the assistance of

a [VE] may be needed to determine the effects of the

limitations". 1985 WL 56857, at *7. Since at least the ability

to handle is required for most jobs, it seems obvious to us that

the ALJ should have consulted some expert source to determine

what kinds of jobs remained for a person incapable of frequently

engaging in such an activity. 

Further complicating the ALJ's reliance on the Grid is

his failure to mention any limits on claimant's ability to stoop

and crouch. According to the only RFC assessment in the record,

claimant can only occasionally stoop and crouch. The

consultative neurologist who examined claimant also noted that

claimant's range of motion was limited in forward bending.

"[T]o perform the full range of medium work . . . , a

person must be able to do both frequent stooping and frequent

crouching -- bending both the back and the legs." SSR 83-14, at

*5 (emphasis added). Plainly, then, an ability to engage in only

occasional stooping and crouching limits the range of medium work
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that claimant can perform. The addition of restrictions on

claimant's capacity for stooping and crouching makes this case

even more complex and provides another reason why the use of the

Grid may have been problematic here. See id. at *4 ("[i]n more

complex situations, the assistance of a vocational resource may

be necessary").

Finally, we think that the ALJ's determination that

claimant's back pain was only mild is not well-supported. As

reasons for discrediting the severity of this pain, the ALJ

stated that the record was devoid of any x-rays or other tests

which established conditions -- such as bulging discs, herniated

discs, pinched nerves, or radiculopathy -- which can cause severe

pain. However, two x-rays, one taken in 1999 and the other in

2001, showed that claimant suffered from sacralization at her L5

vertebra. According to the report of the 1999 x-ray,

sacralization is a common cause of low back pain. Thus, the

record, in fact, contains evidence of a condition which could be

expected to produce more than mild pain.

Based on the foregoing, the judgment of the district

court is affirmed in part and vacated in part, and the matter is

remanded to the district court with instructions to remand to the

Commissioner for further proceedings consistent with this

opinion.