Not for Publication in West's Federal Reporter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
 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 nonexamining 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 prehypertensive 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.