
USCA1 Opinion

	




                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 96-1283                                 ANGEL M. DIAZ-ZAYAS,                                Plaintiff, Appellant,                                          v.                   COMMISSIONER OF SOCIAL SECURITY ADMINISTRATION,                                 Defendant, Appellee.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                  [Hon. Carmen Consuelo Cerezo, U.S. District Judge]                                                ___________________                                 ____________________                                        Before                                Selya, Cyr and Boudin,                                   Circuit Judges.                                   ______________                                 ____________________            Paul Ramos Morales on brief for appellant.            __________________            Guillermo  Gil, United  States  Attorney, Charles  E. Fitzwilliam,            ______________                            _______________________        Assistant  United  States  Attorney,  and  Donna  McCarthy,  Assistant                                                   _______________        Regional   Counsel,  Social  Security  Administration,  on  brief  for        appellee.                                 ____________________                                   DECEMBER 3, 1996                                 ____________________                      Per Curiam.  Claimant-appellant Angel M. Diaz-Zayas                      __________            appeals  from a decision of  the district court affirming the            decision  of  the  Secretary  of Health  and  Human  Services            denying him social security disability benefits.  We affirm.                      Appellant applied for disability insurance benefits            alleging  disability since November 15, 1979 due to nerves, a            heart  condition,  and  sinusitis.     After  a  hearing,  an            Administrative Law  Judge (ALJ)  concluded that prior  to the            expiration of his coverage--on March 31,  1983--appellant had            preventricular  contractions,  sinusal  tachycardia,  chronic            anxiety disorder, and  Ativan dependence.   These conditions,            the ALJ found, were severe  but not equal to a listing.   The            ALJ  also  found  that   appellant  possibly  had  occasional            discomfort associated  to these  conditions, but that  he did            not  have  disabling  physical   or  mental  distress  for  a            continuous period of twelve months.  Based on these findings,            and a finding  that appellant could  perform light work,  the            ALJ concluded  that appellant was  not disabled prior  to the            expiration of  his coverage  because he could  have performed            his former jobs as a machine operator or production helper.                      Appellant  does not  argue  that the  ALJ erred  in            finding that he has the capacity for light work.  Instead, he            argues  that   the  ALJ  erred  in   his  findings  regarding            appellant's  mental condition.    We review  the  Secretary's            decision under  a "substantial  evidence"  standard; we  will            affirm that decision  if it is  supported by "'such  relevant            evidence as  a reasonable  mind might accept  as adequate  to            support a conclusion.'"  Richardson v. Perales, 402 U.S. 389,                                     __________    _______            401 (1971) (quoting Consolidated Edison Co. v. NLRB, 305 U.S.                                _______________________    ____            197,  229 (1938));  see  also Manso-Pizarro  v. Secretary  of                                _________ _____________     _____________            Health & Human Servs., 76 F.3d 15, 16 (1st Cir. 1996).              _____________________                      Contrary to appellant's suggestion, the ALJ was not            required to  accept  the opinion  of Dr.  Garcia Saliva  that            appellant's  mental  condition  disabled  him  from  working.            Assuming solely for the sake of argument that Dr. Garcia, who            saw appellant  on only  one occasion, could  be considered  a            treating  physician,  we  note  that  there  was  conflicting            evidence  from other  treating sources  regarding appellant's            ability  to  work.   Indeed,  appellant's  therapists at  the            Mental  Health  Center  encouraged  him,  on  more  than  one            occasion, to look for a job.  In any event, the determination            of disability is reserved to the Secretary.   See 20 C.F.R.                                                            ___            404.1527(e).    We think  the  ALJ  adequately explained  his            reasons for finding that appellant's mental condition did not            preclude him  from  performing his  past  jobs as  a  machine            operator or production assistant.1                                             1                                            ____________________               1We add that it  is not obvious that Dr.  Garcia's opinion               1            is inconsistent  with this finding.   Dr. Garcia  opined that            appellant  was  disabled  from performing  his  "usual work."            Read in context, "usual work" appears to refer to appellant's            past job as  a service  station attendant (the  only job  Dr.            Garcia mentions).   Dr.  Garcia did not  specifically address            whether appellant was able  to work as a machine  operator or                                         -3-                      Similarly, the  ALJ was not required  to accept the            diagnoses of schizophrenia made by Dr. Carlos J. Nogueras and            Dr. Luis Lozada Rivera, or the more specific findings made by            Dr.  Lozada regarding  appellant's mental impairment.   These            diagnoses and findings were  made in 1992, approximately nine            years  after appellant's  insurance  coverage  expired.   Cf.                                                                      ___            Deblois v. Secretary of  Health & Human Servs., 686  F.2d 76,            _______    ___________________________________            79  (1st Cir. 1982) (observing that a claimant has the burden            of establishing that his mental impairment was of a disabling            level of severity prior  to the expiration of  his coverage).            There  is ample evidence in the record from both treating and            non-treating  sources  to  support  the  ALJ's  finding  that            appellant  suffered from  an  anxiety  disorder--rather  than            schizophrenia--during the  critical  period.   Moreover,  the            only mental residual  functional capacity assessments in  the            record  which focus on the  critical period support the ALJ's            finding of no disability.                      Affirmed. [NOT FOR PUBLICATION]                      ________                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________                                            ____________________            production helper.                                           -4-            No. 96-1533                                    UNITED STATES,                                      Appellee,                                          v.                                  NORMAN L. BROOKS,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF NEW HAMPSHIRE                    [Hon. Paul J. Barbadoro, U.S. District Judge]                                             ___________________                                 ____________________                                        Before                                         -5-                               Selya, Boudin and Lynch,                                   Circuit Judges.                                   ______________                                 ____________________                 Richard F. Monteith, Jr. on brief for appellant.                 ________________________                 Paul  M. Gagnon,  United States  Attorney, and  Peter E.                 _______________                                 ________            Papps, First  Assistant United States Attorney,  on brief for            _____            appellee.                                 ____________________                                   DECEMBER 3, 1996                                 ____________________                      Per  Curiam.   Norman  L. Brooks  appeals from  his                      ___________            sentence  on  the sole  ground  that the  district  court, in            fashioning  the  restitution  order,  did  not take  adequate            account of his ability to  pay.  Brooks concedes that  he did            not raise this argument at sentencing.  Therefore, this court                                         -2-            reviews the order only for plain error.  See United States v.                                                     ___ _____________            Gilberg, 75 F.3d 15, 20 (1st Cir. 1996).            _______                 We  may assume  for purposes  of this  decision, without            deciding,  that  the  plea  agreement  does  not  contain  an            agreement to pay  restitution.  See United  States v. Ramilo,                                            ___ ______________    ______            986  F.2d  333, 334  (9th  Cir.  1993) (interpreting  similar            agreement  as merely  "specify[ing]  the amount  of the  loss            sustained by each victim and hence the amount the court might            order [defendant] to pay as a result of  his guilty plea" and            distinguishing it  from "an agreement  that [defendant] would            pay restitution in the amounts listed").                 Even though the plea  agreement does not preclude Brooks            from challenging  the restitution order, the  challenge fails            on other  grounds.   Brooks faults  the sentencing  court for            failing   to  consider   the  requisite   factors,  including            defendant's financial  resources,  as mandated  by 18  U.S.C.             3664(a).   The  court's undisputed  failure to  make express            findings is  not fatal, however, because  "the record clearly            indicates  that  the  court  gave thought  to  the  requisite            factors."   United States v.  Savoie, 985 F.2d  612, 618 (1st                        _____________     ______            Cir. 1993).                   The  presentence  report  contained   information  about            defendant's  financial  condition,  including  the  financial            needs and  resources of defendant  and his  dependents.   The            sentencing  court  expressly  adopted  the  findings  of  the                                         -3-            presentence report.  Therefore, there was no plain error with            regard   to  the  court's   satisfaction  of   its  statutory            obligation under   3664(a).  See  United States v.  Lilly, 80                                         ___  _____________     _____            F.3d 24, 29  (1st Cir. 1996)  (holding that obligation  under             3664(a) "generally is satisfied where . . . the court relies            on the presentence report detailing the defendant's financial            condition").                 Brooks also  argues  that it  was  plain error  for  the            district court to impose  a restitution order absent evidence            that  he has the present or future ability to comply with the            order.     "[T]he  statute  merely  requires   the  court  to            'consider'  financial  condition,  among  other  factors,  18            U.S.C.  3664(a);  there is no requirement  that the defendant            be found able to pay now."  United States v. Lombardi, 5 F.3d                                        _____________    ________            568, 573  (1st Cir. 1993).  With  regard to future ability to            pay,  we   have  not   yet  resolved   the  issue  of   "what            circumstance, if  any, would  preclude a district  court from            ordering restitution based on prospective income."  Lilly, 80                                                                _____            F.3d at 29.                 For  an error to  be "plain"  it must  be obvious.   See                                                                      ___            United States v. Olano,  507 U.S. 725, 732-34 (1993).   Given            _____________    _____            the legal  uncertainty about the circumstances  under which a            restitution order  may be based upon  prospective income, and            the factual uncertainty about  whether Brooks retained any of            the  ill-gotten funds which he has been ordered to repay, the                                         -4-            court's restitution  order was not obviously  erroneous.  See                                                                      ___            Lombardi,  5  F.3d  at  573.    We  "exercise  our  undoubted            ________            discretion  under  Olano  to  disregard  the  alleged error."                               _____            United States v. Camuti, 78 F.3d 738, 747 (1st Cir. 1996).            _____________    ______                 Brooks'  sentence is  summarily affirmed.   See  Loc. R.                                       __________________    ___            27.1.                                         -5-
