February 19, 1993     [NOT FOR PUBLICATION]

                UNITED STATES COURT OF APPEALS
                    FOR THE FIRST CIRCUIT
                                        

No. 92-1896

                     SONIA SANTOS RIVERA,

                    Plaintiff, Appellant,

                              v.

        SECRETARY OF HEALTH &amp; HUMAN SERVICES, ET AL.,

                    Defendants, Appellees.

                                        

         APPEAL FROM THE UNITED STATES DISTRICT COURT

               FOR THE DISTRICT OF PUERTO RICO

        [Hon. Raymond L. Acosta, U.S. District Judge]
                                                    

                                        

                            Before

                     Breyer, Chief Judge,
                                        
                Selya and Cyr, Circuit Judges.
                                             

                                        

   Salvador 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.

                                        

                                        

     Per Curiam.     This  appeal is from  a judgment of  the
               

district court affirming a final decision of the Secretary of

Health and  Human Services ("Secretary")  that appellant  did

not meet  the disability requirements of  the Social Security

Act.

     Appellant's application for disability  benefits alleged

an  inability to  work  beginning  May  16,  1988  due  to  a

combination  of  chest  pain  and  mental  disability.    Her

application was initially denied, appealed and  denied again.

A de novo hearing was held before an Administrative Law Judge
         

["ALJ"] on  July 10, 1990.   On July 30, 1990,  the ALJ found

that appellant had a residual functional capacity for certain

unskilled light work jobs  which exist in significant numbers

in the economy, and so was  not under a disability as defined

in  the Act.  The Appeals  Council denied appellant's request

for review.   On appeal to the  district court, the  case was

assigned to a magistrate-judge who found that the Secretary's

decision  was based  on substantial evidence  and recommended

affirmance.    The  district court  adopted  the magistrate's

report and recommendation, affirming the Secretary's decision

on May 11, 1992.  We affirm.      Appellant was  45 years old

at the time of the hearing.  She had completed the third year

of high school.  Her  immediate past relevant work experience

was  as  a welder/solderer  in  the  electronics industry,  a

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position she had held for ten years prior to the onset of her

illness.  

     Appellant was diagnosed as suffering from chest pain and

moderate to severe depression.  To qualify for benefits under

the  Act, appellant bore the burden of proving that by reason

of  one, or  a combination  of these  conditions, she  had an

"inability to engage in  any substantial gainful activity due

to ... impairment(s) which can be expected to result in death

or  last for a  continuous period of not  less than 12 months

....  " 42 U.S.C.    423(d)(1)(A); 42 U.S.C.    416(i)(1); 20

C.F.R.     404.1505; Bowen  v.  Yuckert,  482  U.S. 137,  140
                                       

(1987); McDonald v. Secretary of HHS, 795 F.2d 1118 (1st Cir.
                                    

1986).

     The ALJ considered appellant's testimony,  the testimony

of  a  vocational  expert  ("VE"),  and  appellant's  medical

records.   Using the  five-step sequential evaluation  of the

evidence required  by 20  C.F.R.    404.1520,  404.1520a, the

ALJ found  that appellant's  impairments were severe  but did

not, alone or in combination, equal the severity level of any

listed  impairment.  20 C.F.R. Part 404, Subpart. P, Appendix

1.  Appellant's chest pain, however, was found to prevent her

from returning to her past relevant work.  

     Appellant  does not  dispute  the above  findings.   She

takes issue,  however, with the  ALJ'S finding at  step five,

that  despite  her  combination  of  conditions,  she  has  a

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residual  functional  capacity to  engage in  unskilled light

work jobs which allow for alternating physical positions. See
                                                             

20  C.F.R.   404.1545.  Appellant's objection is not based on

the  existence  or  numbers  of  such  jobs  in  the national

economy, only  the extent  to which  the evidence  supports a

finding that she  is capable  of performing such  work.   The

Secretary bore the burden of proof on this issue.  20  C.F.R.

  404.1520(f)(1); Rosado v. Secretary  of HHS, 807 F.2d  292,
                                             

294 (1st Cir. 1986).

     Our  standard  of  review  is  whether  the  Secretary's

findings are supported  by "substantial evidence."   Although

the record may arguably support  more than one conclusion, we

must uphold  the Secretary, "if 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  credibility  issues  and  conflicts  in  the

evidence are for the  Secretary, not the courts.   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.   Rodriguez
                                                             

Pagan v.  Secretary of HHS,  819 F.2d  1, 3 (1st  Cir. 1987),
                          

                             -4-

cert. denied, 484 U.S.  1012 (1988); Lizotte v.  Secretary of
                                                             

HHS, 654 F.2d 127, 128 (1st Cir. 1981).
   

     There  was  ample  medical  evidence in  the  record  to

support the ALJ's  conclusion regarding appellant's  physical

capacities.  Appellant's chest pain was not attributed to any

major cardiac  impairment, hypertension or end  organ damage,

but  it  did  require  her  to  avoid  strenuous  activities.

Objective medical reports described  her pain as episodic and

controlled by  small doses  of medication.   After evaluating

appellant's  subjective complaints  of pain  in light  of the

factors set forth  in Avery v. Secretary of HHS,  797 F.2d 19
                                               

(1st Cir.  1986), the ALJ  fairly concluded that  despite her

chest  condition,  appellant  is physically  capable  of  the

exertions required  by light and  sedentary work, so  long as

she is permitted to alternate positions occasionally.  

      There  was also sufficient  evidence that  despite some

mental impairment attributable to major depression, appellant

retained the mental capacity to perform unskilled jobs in the

light  and sedentary  work categories.   The  medical records

showed that  appellant has been treated  with medications, on

an out-patient basis, at the Coamo Mental Health Center since

November,  1988.   Reports  from  Dr.  Vivian R.  Bonilla,  a

psychiatrist  who saw appellant  on two  occasions, described

her as  alert, oriented, coherent,  spontaneous, logical  and

goal  directed in  her responses.   Both  Dr. Bonilla,  and a

                             -5-

consulting psychiatrist, Dr. Hector Luis  Rodriguez, found no

significant limitations  on  appellant's memory,  ability  to

understand and  carry out short and  simple instructions, ask

simple   questions,  set   realistic   goals,   and   respond

appropriately to changes  in the work setting.   In addition,

two state agency physicians, on review of appellant's medical

records,   concluded  that   she  could   carry  out   simple

instructions,   maintain  a   normal  workweek,   respond  to

supervisors and co-workers and interact with the public.     

     The VE  opined, in answer to  a hypothetical summarizing

the  above evidence, that  appellant could not  return to her

prior  job  of  welder  because  the  job's  high  production

requirements did not permit  appellant to alternate positions

with  the frequency  required.   However,  the VE  identified

several   unskilled   light  work   jobs  which   allow  this

flexibility, and  which  can  be performed  by  a  person  of

appellant's age, education and work experience suffering from

moderate mental limitations.  The VE's answer assumed limited

abilities  to understand, remember, concentrate, interact and

work  near others, accept instruction, be punctual, etc.  The

jobs he  identified included hand classifier,  garment folder

and hand trimmer.

     Appellant contends that the ALJ  erred in relying on the

VE's testimony described above.  Instead, appellant says, the

ALJ should have based  his decision on the VE's  later answer

                             -6-

to a hypothetical posed by appellant's attorney.  Appellant's

hypothetical asked the VE whether appellant could perform the

identified jobs if the VE "gave credibility to the content of

Exhibit 21 and  the residuals accompanying  it."  Exhibit  21

appears to have been a copy of Dr. Bonilla's "Mental Residual

Functional Capacity Assessment."  The VE's answer was  in the

negative. 

     Appellant argues that the ALJ was required to accept the

VE's response to the latter question as "controlling" because

it  was based  on  the opinion  of  a doctor  described  as a

"treating"  psychiatrist.    This  argument  is  an  apparent

reference to  a recently promulgated regulation,  20 C.F.R.  

404.1527  (1991), which  describes  the manner  in which  the

Secretary weighs  medical evidence  of disability.   One part

provides:

     Generally we give more weight to opinions from your
     treating sources ....   If we find  that a treating
     source's opinion on the  issue(s) of the nature and
     severity of  your impairments is well  supported by
     medically   acceptable   clinical  and   laboratory
     diagnostic techniques and is not  inconsistent with
     other substantial  evidence in your case record, we
     will give  it controlling weight.   When we  do not
     give ...  controlling weight, we will  apply [other
     factors] in  determining [its] weight ...   We will
     always give  good reasons  in our ...  decision for
     the weight we give your treating source's opinion.

20 C.F.R.   404.1527(d)(2).

     The  regulation  is  thus   neither  as  delimiting  nor

inflexible  as appellant's  argument suggests.   It  does not

mandate assignment  of some unvarying weight  to every report

                             -7-

in every case.  The ALJ is not required automatically to give
                              

controlling   weight  to  any   "treating"  doctor's  report,
                             

denominated as such.  In  some cases "controlling weight" may

be assigned if the report meets the specified qualifications,
              

and is not inconsistent with  other substantial evidence.  In

other  cases, the  weight  of a  treating source's  report is

further evaluated  in light  of the many  factors articulated

throughout  the remainder  of  the rule.    See 20  C.F.R.   
                                               

404.1527(d)(1)-(6).    And  in  any  event, the  "controlling

weight" language  is relevant only to  those medical opinions

which the regulations elsewhere  define as originating from a

"treating"  source.   That  term, too,  is  not static.    As

defined in 20  C.F.R.    404.1502, and further  refined in   

404.1527(d)(2)(i)(ii),   it   refers   to   a   physician  or

psychologist  with  whom   the  applicant  has  an   "ongoing

treatment relationship," as determined by the type, frequency

and  quality  of  doctor-patient  contact  in  light  of  its

consistency with accepted medical practice for the particular

condition.  In all  cases, the responsibility for determining

whether the  statutory definition of disability  has been met

is reserved to the Secretary.  20 C.F.R.   404.1527(e).

      We  need not  reach the  Secretary's argument  that Dr.

Bonilla  is  not  properly  defined as  a  "treating"  doctor

because  we think  that appellant  exaggerates the  record in

reaching an issue under this regulation.   We do not read the

                             -8-

ALJ's  decision as  rejecting Dr.  Bonilla's opinion,  nor as

according its  relevant portions  any less than  full weight.

Since Dr. Bonilla's opinion was,  for the most part, entirely

consistent with the other medical evidence, and was among the

opinions  cited  by the  ALJ  as  cumulatively informing  his

decision, there  was no occasion redundantly  to describe the

weight  assigned to  this part  of Dr.  Bonilla's  opinion as

"controlling," or otherwise.

      Moreover,  as   to  the  "Mental   Residual  Functional

Capacity  Assessment,"  it appears  to us  that what  the ALJ

rejected was not  Dr. Bonilla's conclusions,  but appellant's

interpretation of both the assessment  and the VE's answer to

appellant's hypothetical.   The  VE's response  was ambiguous

due  to the question posed.  The hypothetical did not specify

facts, but  simply asked  the  VE to  assume as  a basis  the

entire, multi-faceted,  three-page exhibit.   It is  thus not

clear how the expert understood the question, or which of its

multiple facts he  was relying upon in his  answer.  The VE's

answer  mentioned  the "physical  demands" of  a job,  a term

which does not even  appear in the exhibit.   And appellant's

follow-up   question,  which   included,  as   an  additional

predicate,   appellant's   subjective  complaints   of  pain,

headaches,  and  the  like,  did  not  help  to  clarify  any

objective basis for the first answer.

                             -9-

     The   ALJ  interpreted   Dr.  Bonilla's   assessment  as

reflecting  that  appellant  suffered  only  insignificant or

moderate degree limitations in the mental abilities  required

for the simple  tasks in the  unskilled job category.   It is

true  the  assessment  also recited  some  "markedly" limited

abilities,  including the  ability to  sustain attention  and

concentration for extended periods  and "to complete a normal

workday ... without interruptions from  psychologically based

symptoms."   But  the ALJ  determined that  these limitations

were  of   primary  relevance  to   skilled  or  semi-skilled

positions,  not  unskilled jobs  with  only light  production

demands.  This  conclusion was supported by  the VE's earlier

testimony  as  to the  mental  skills needed  in  the various

categories. 

    As we read  the ALJ's  decision, then, it  was a  logical

matching of Dr. Bonilla's medical conclusions with the expert

evidence relating to the job market.   The ALJ did not reject

any of the doctor's  medical conclusions nor assign them  any

lesser weight.   His interpretation of  Dr. Bonilla's opinion

was  well  supported by  the  other  assessments and  medical

evidence in  the record, including Dr.  Bonilla's own written

report  of  her  examination  of  appellant.    And  we note,

parenthetically, that had the ALJ instead adopted appellant's

interpretation,   reading   Dr.   Bonilla's   assessment   as

inconsistent with the  other substantial medical  evidence in

                             -10-

the  record, the  regulation  cited would  not, as  appellant

argues,   have  required  the   assignment  of  "controlling"

weight.1  

      For the reasons stated, the decision below is affirmed.
                                                             

                    

1.  Although 20  C.F.R.   404.1527, was  promulgated in final
form  on August  1,  1991, while  this  case was  pending  on
appeal, the  Secretary has not objected  to the applicability
of the  regulation's approach in this case.   In light of our
conclusions and the  lack of  objection, we have  no need  to
consider any questions of retroactivity. 

                             -11-
