
USCA1 Opinion

	




      [NOT FOR PUBLICATION--NOT TO BE CITED AS PRECEDENT]                 United States Court of Appeals                     For the First CircuitNo. 98-1245                         FRANCISCA COLON,                      Plaintiff, Appellant,                                v.                 SHIRLEY S. CHATER, COMMISSIONER,                 SOCIAL SECURITY ADMINISTRATION,                       Defendant, Appellee.           APPEAL FROM THE UNITED STATES DISTRICT COURT                 FOR THE DISTRICT OF RHODE ISLAND        [Hon. Robert W. Lovegreen, U.S. Magistrate Judge]                              Before                     Torruella, Chief Judge,                 Coffin, Senior Circuit Judge,                   and Stahl, Circuit Judge.                                                                     Donna M. Nesselbush and Green, Greenberg & Nesselbush on brieffor appellant.     Sheldon Whitehouse, United States Attorney, Mary E. Rodgers,Assistant U.S. Attorney, and Wayne G. Lewis, Assistant RegionalCounsel, on brief for appellee.September 30, 1998                                                                            Per Curiam.   Appellant Francisca Colon appeals from    the district court's decision affirming the final decision of    the Commissioner of Social Security which denied her disability    insurance benefits under the Social Security Act.  After    reviewing the administrative record, we conclude that    substantial evidence supported the denial of benefits,    essentially for the reasons given by the district court in its    decision.  In particular, we note that the district court    correctly construed the medical record, which showed that both    of appellant's treating physicians, rheumatologist Dr. Edward    Lally and orthopedist Dr. Howard Hirsch, ultimately viewed her    pain to be muscular in origin and that both rejected the view    that it was due to her clavicular non-union.  We make only the    following additional comments which relate to claims of error    not directly addressed by the district court.                   1.  We do not think that Social Security Ruling    96-5p required the administrative law judge ("ALJ") to    recontact Dr. Hirsch to clarify the basis for his opinion that    the appellant was disabled from December 1993 to December 1994.     Under the Ruling, the ALJ was required to do so only if he    could not "ascertain the basis of the opinion from the case    record."  The record contained a questionnaire, filled out by    Dr. Hirsch in July 1995, which stated the basis for his opinion    that the appellant was disabled.                   2.  We see no error in the ALJ's failure to    explain in detail why he discredited the appellant's testimony    as to her pain.  He does not appear to have discredited the    specific facts to which she testified, since he determined that    she had a severe impairment which prevented her from performing    her past work.  Rather, he apparently declined only to draw the    ultimate conclusion that her pain left her totally disabled,    offering legitimate reasons for doing so.  Nor do we agree that    he mischaracterized her testimony regarding her daily    activities.  Based on her testimony, the ALJ could reasonably    infer that, as the only adult regularly present, she cared for    her two young children who lived with her; that she could drive    (she stated only that she was not driving at the time of the    hearing because she did not have a car); that she could shop    (she testified only that her son lifted the "heavier" things);    and that she could do some household cleaning (she stated only    that she had "difficulty" cleaning, that she asked her younger    son to sweep the floor, and that her adult son, who lived in a    different state, did general cleaning when he was there).     While she did not testify that she visited with friends    regularly, she did report that fact in her disability    applications.  Finally, the appellant has not shown that the    ALJ failed to make the inquiries required by Avery v. Sec'y of    Health & Human Serv., 797 F.2d 19 (1st Cir. 1986).                   3.  The ALJ had no need to consult a medical    expert because the record contained several medical opinions on    appellant's functional capacity.  Both Dr. Lally and Dr. Hirsch    offered opinions, and the Commissioner's consulting, non-    examining physician, Dr. Richard Mignacci, filled out a    residual capacity assessment form.  While appellant's treating    physicians differed in their opinions on her functional    capacity, the ALJ reasonably explained why Dr. Lally's opinion    should be preferred.                   4.  The hypothetical, which appellant's counsel    posed to the vocational expert at the disability hearing, was    premised in part on the assumption that appellant's ability to    grasp with her dominant right hand was limited.  Because this    restriction was not supported by the medical evidence, the ALJ    did not err in ignoring the expert's response to counsel's    hypothetical.                   The decision of the district court is affirmed.    
