
USCA1 Opinion

	




                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ___________________          No. 92-1970                                           JULIO SANTIAGO-JIMENEZ,                                Plaintiff, Appellant,                                          v.                       SECRETARY OF HEALTH AND HUMAN SERVICES,                                 Defendant, Appellee.                                  __________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                  [Hon. Juan M. Perez-Gimenez, U.S. District Judge]                                               ___________________                                 ___________________                                        Before                              Torruella, Cyr and Stahl,                                   Circuit Judges.                                   ______________                                 ___________________               Savador Medina De La Cruz, on brief for appellant.               _________________________               Daniel F. Lopez  Romo, United States Attorney,  Jose Vazquez               _____________________                           ____________          Garcia,  Assistant  United  States Attorney,  and  Amy  S. Knopf,          ______                                             _____________          Assistant  Regional  Counsel,  Department  of  Health  and  Human          Services on brief for appellee.                                  __________________                                     June 9, 1993                                  __________________                      Per Curiam.     Claimant appellant  Julio Santiago-                      __________            Jimenez filed an  application for social security  disability            benefits  in June,  1986.   He alleged  an inability  to work            beginning January,  1986, due to  a cardiovascular condition.            Claimant was 37  years old on the date of alleged onset.  His            most recent employment had been as a laborer and packer, jobs            which required heavy physical exertion.                        There have  been two  evidentiary hearings  in this            case.  At the first  hearing on December 16, 1987, appellant,            his   wife,   and   a  medical   advisor   testified.     The            administrative law judge ("ALJ") held appellant not  disabled            at  step  five of  the  sequential evaluation  process.   See                                                                      ___            Goodermote v.  Secretary of  HHS, 690 F.2d  5, 6-7  (1st Cir.            __________     _________________            1982).  Specifically, the ALJ found that while  appellant had            a  severe impairment  which  precluded  return  to  his  past            relevant  work,  he nevertheless  had  a  residual functional            capacity for the  full range of light work  jobs available in            the  economy.    The  ALJ's  functional  capacity assessment,            however,  had been made without the assistance of a qualified            physician.   On appeal  to the district  court, the  case was            remanded  to the  ALJ for further  consideration in  light of            this  court's previous  decisions.    See Rivera-Figueroa  v.                                                  ___ _______________            Secretary of  HHS, 858 F.2d  48, 52 (1st Cir.  1988); Rivera-            _________________                                     _______            Torres v. Secretary of HHS, 837 F.2d  4, 7 (1st Cir. 1988) (a            ______    ________________                                         -2-            lay  fact-finder is  not  qualified  to determine  functional            capacity solely on the basis of bare medical findings).                        On  remand, the ALJ held a supplementary hearing at            which he heard  more testimony from claimant, as  well as the            testimony  of a  second  medical  advisor  and  a  vocational            expert.   On the basis  of the  entire record,  the ALJ  then            concluded that  appellant retained  a capacity  for sedentary            jobs which  existed in significant numbers in the economy, as            well as one or two positions identified as "light" work jobs.            Appellant   appealed  to  the  district  court  again.    The            magistrate-judge issued  a report recommending  affirmance of            the  ALJ's  decision.     The  district  court   adopted  the            magistrate's   report  and   recommendation,  affirming   the            Secretary.  This appeal followed.  We, too, affirm.                      We are met at the  outset with an argument from the            Secretary  that  the  appeal  should   be  dismissed  because            appellant allegedly failed  to file timely objections  to the            magistrate's report in the  district court.  Failure  to file            specific  objections to a magistrate's report within the time            allowed  ordinarily waives the  right to appeal  the district            court's order.   Thomas v.  Arn, 474 U.S. 140  (1985); United                             ______     ___                        ______            States  v. Valencia-Copete,  792  F.2d  4  (1st  Cir.  1986).            ______     _______________            Appellant's  alleged  late  filing  in  this  case,  however,            contained specific objections  to the report,  as well as  an            assertion that  he  had received  the  report only  six  days                                         -3-            earlier.     The  Secretary  did  not   challenge  claimant's            assertion of  late notice in  the court below, nor  object in            any way to the district court's consideration of the  merits.            The district  judge adopted the  magistrate's report  without            reference to the timeliness of  the objections.  We thus have            no  reason  to  consider the  Secretary's  belated procedural            challenge here.                        Appellant's argument on the merits is confined to a            single issue:  whether the ALJ correctly determined on remand            that  appellant  is  capable  of  performing sedentary  work,            despite  evidence that he suffers from occasional episodes of            chest pain.  On this review our task is to determine  whether            the  Secretary's  findings   are  supported  by  "substantial            evidence."   Although the record  may support  more than  one            conclusion,  we uphold the Secretary when "a reasonable mind,            reviewing the evidence in the record as a whole, could accept            it  as  adequate  to  support  his  conclusion."    Ortiz  v.                                                                _____            Secretary of HHS, 955 F.2d  765, 769 (1st Cir. 1991), quoting            ________________            Rodriguez v.  Secretary of HHS,  647 F.2d 218, 222  (1st Cir.            _________     ________________            1981);  see also  Richardson v.  Perales, 402  U.S. 389,  401                    ________  __________     _______            (1971).  Resolutions of conflicts in the evidence are for the            Secretary.  Ortiz, 955 F.2d  at 769; Evangelista v. Secretary                        _____                    ___________    _________            of HHS, 826 F.2d 136, 141  (1st Cir. 1987).  Where the  facts            ______            permit  diverse inferences, we  will affirm the  Secretary so            long as the inferences drawn  are supported by the  evidence.                                         -4-            Rodriguez Pagan v. Secretary of HHS, 819 F.2d 1, 3 (1st  Cir.            _______________    ________________            1987),  cert.  denied,  484  U.S.  1012  (1988);  Lizotte  v.                    _____________                             _______            Secretary of HHS, 654 F.2d 127, 128 (1st Cir. 1981).            ________________                      Using the criteria for the evaluation of complaints            of pain set forth in Avery  v. Secretary of HHS, 797 F.2d  19                                 _____     ________________            (1st  Cir. 1986),  the  ALJ  determined  that  the  objective            medical  findings   in  the   record  did   not  substantiate            appellant's  claims  of  functionally limiting  pain  to  the            degree   alleged.    There   was  ample  evidence   for  this            conclusion.    While  appellant's  chest  condition had  been            variously  diagnosed, both  medical  advisors testified  that            claimant's pain  was not ischemic in nature,  but was instead            associated  with  costochondritis,  an  inflammation  of  the            cartilage connecting  the ribs to  the sternum.   They stated            that  the  condition  is treatable  with  steroids  and anti-            inflammatory  medications.   While costochondritis  can cause            severe  pain,  both  medical  advisors  concluded   that  the            diagnosis  alone  did not  dictate  a medical  basis  for the            frequency  and  degree of  functionally  limiting pain  which            appellant alleged.                       At the supplementary  hearing, the medical  advisor            also testified that, despite  appellant's chest condition, he            retained a functional capacity for sedentary work.  Appellant            was found able to  lift ten pounds, sit and stand  for six to            eight  hours at  a time,  and change  positions.   The expert                                         -5-            based his  opinion on all  of the medical records  and tests,            expressly    including    consideration     of    appellant's            costochondritis  as  well  as   his  occasional  tachycardia,            controlled hypertension, pain, and the effects of appellant's            various  medications.     While  the  expert   conceded  that            appellant  would  be unable  to  work during  any  episode of            uncontrolled severe pain,  which might occur on  average once            per week, he stated that such  an episode would be of limited            duration, lasting no more than one hour.  He based the latter            estimate  largely  on  appellant's own  testimony  as  to the            effectiveness  of prescribed  medication  in controlling  his            pain.                        The  vocational   expert  also  testified   to  the            existence of a series of jobs which a person with appellant's            skills and stamina could perform, despite occasional episodes            of severe  pain.  In  sum, there was substantial  evidence to            support the ALJ's conclusion that claimant was "not disabled"            at step five.             Appellant  argues   that  the   ALJ            should, instead, have  credited appellant's testimony  to the            effect  that  he  suffered much  more  frequent  (even daily)            debilitating  bouts of  pain.  Both  the medical  advisor and            vocational  expert agreed that  if appellant's bouts  of pain            were as severe and frequent as he claimed, appellant would be            unable to perform any sedentary job in the economy.  However,            evaluation of  the credibility of  unsubstantiated subjective                                         -6-            reports of pain is for the Secretary -- not the courts  -- to            resolve.  Evangelista v. Secretary  of HHS, 826 F.2d 136 (1st                      ___________    _________________            Cir.  1987). "The credibility  determination by the  ALJ, who            observed the claimant, evaluated his demeanor, and considered            how that testimony  fit in with the rest of  the evidence, is            entitled to  deference, especially when supported by specific            findings."  Frustaglia v. Secretary of                         __________    _____________            HHS, 829 F.2d 192, 195 (1st Cir. 1987).            ___                      Accordingly, the decision below is affirmed.                                                             ________                                         -7-
