
USCA1 Opinion

	




          September 29, 1994                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 94-1121                                   WAYNE I. CARTER,                                Plaintiff, Appellant,                                          v.                             DONNA E. SHALALA, SECRETARY,                    U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES,                                 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,                                           ___________                           Selya and Stahl, Circuit Judges.                                            ______________                                 ____________________            Moe Greenberg on brief for appellant.            _____________            Edwin  J.  Gale, United  States  Attorney,  Stephanie  S.  Browne,            _______________                             _____________________        Assistant United States Attorney, and Amy S. Knopf, Assistant Regional                                              ____________        Counsel,  U.S. Department of Health  and Human Services,  on brief for        appellee.                                 ____________________                                 ____________________                      Per  Curiam.    Claimant  Wayne  Carter  appeals  a                      ___________            district  court  judgment that  affirmed  a  decision of  the            Secretary of Health and Human Services denying Carter's claim            for  Social Security  disability  and  Supplemental  Security            Income  (SSI)  benefits.     Carter  claimed that  he  became            disabled  in  June 1990  as a  result of  a right  leg injury            caused by a gunshot wound and a tendency to drink  "a bit too            much."   Carter had previously been employed as a grill cook,            laborer, messenger, and maintenance worker, jobs which ranged            from  semi-skilled  light  work  to  unskilled  heavy   work.            Following a hearing before  an administrative law Judge (ALJ)            at  which Carter was represented by counsel, the ALJ issued a            decision  which ruled  that Carter was  not disabled  at step            five of the sequential evaluation process.  See Goodermote v.                                                        ___ __________            Secretary of Health and Human Services, 690 F. 2d 5, 6-7 (1st            ______________________________________            Cir.  1982).  The ALJ  specifically found that Carter's right            leg injury imposed exertional limitations that prevented  him            from performing his past  work.  However, he also  found that            Carter retained  the physical residual functional capacity to            perform  the  full range  of sedentary  work.   The  ALJ also            determined that Carter's substance abuse did not constitute a            severe impairment.  Based in part on Carter's testimony  that            he believed  he physically could  do the sedentary  work that            the ALJ had described, the ALJ applied the Grid, Rules 201.25            (younger  individual, limited  or less education,  skilled or            semi-skilled  work  history   where  the   skills  were   not            transferable) and 201.26 (same findings where the skills were            transferable) to conclude that Carter  was not disabled.  The            district court  issued a  nineteen page memorandum  and order            upholding the ALJ's decision.  This appeal followed.                      We have thoroughly reviewed  the record and each of            the  parties contentions  on appeal.   We  find  ourselves in            agreement with  the thorough analysis of  the district court.            We  add   only  the  following  remarks.     First,  Carter's            contention  that  the  ALJ erred  by  relying  solely on  his            testimony  in concluding  that his  mental impairment  is not            severe  is not supported by  the record.   The ALJ's decision            relied  heavily on  Dr.  Sorrentino's report,  which did  not            identify any significant  vocational restrictions  associated            with Carter's  mental condition.   In fact,  Dr. Sorrentino's            report contained several findings (e.g. "able to concentrate,            "continues  in  tasks,"  good  relationship   with  authority            figures)  which  are wholly  consistent  with  an ability  to            perform basic mental  work activities.   See 20 C.F.R.   404.                                                     ___            1521.  Second, we  think that the ALJ's reliance  on Carter's            testimony,  which  indicated  that  Carter  had  considerably            curtailed   his  alcohol   and   cocaine   consumption,   was            supportable given  the  numerous conflicts  in  the  evidence            concerning   Carter's   substance   abuse   and   educational            limitations.   Such  conflicts and credibility  judgments are                                         -3-            for  the Secretary  to  resolve and  are  not to  be  second-            guessed.  See, e.g.   Ortiz v. Secretary of Health  and Human                      ___  ____   _____    ______________________________            Services, 955  F.2d 765, 769  (1st Cir. 1991);  Frustaglia v.            ________                                        __________            Secretary  of Health  and Human Services,  829 F.2d  192, 195            ________________________________________            (1st  Cir. 1987).   Third,  we  see no  harm  from the  ALJ's            failure  to  cite   consultant  Musika's  Psychiatric  Review            Technique  Form  (PRTF)  where  this  consultant  also  rated            Carter's mental impairment  non-severe.  Carter's claim  that            the ALJ  failed to give sufficient weight to his intellectual            limitations also  fails, for the  ALJ specifically recognized            that Dr.  Sorrentino's diagnosis  suggested  that Carter  may            have a  developmental reading  disorder.   Even if  Carter is            illiterate, there  are sufficient  jobs within  the sedentary            range of  work available  to him,  see   20 C.F.R.  Part 404,                                               ___            Subpart P, Appendix 2,   201.00(h).  In addition to  the Grid            Rules cited by the ALJ, Grid Rule 201.23 (younger individual,            illiterate, past  work unskilled) still directs  a finding of            not  disabled.1   Finally, it  is clear  that Carter  did not            sufficiently identify the  alcohol-treatment records that  he                                            ____________________            1.  Carter  also argues that the ALJ erred by failing to have            the  vocational  expert testify  about  the  impact that  his            alcoholism, personality disorder, and learning disability had            on  his  ability  to  meet the  mental/emotional  demands  of            competitive employment.  While it is generally preferable for            an  ALJ to  take  vocational evidence,  see,  e.g., Ortiz  v.                                                    ___   ____  _____            Secretary of Health  and Human  Services, 890  F.2d 520,  528            ________________________________________            (1st Cir. 1989)("an ALJ  should typically err on the  side of            taking vocational  evidence"), on this  record application of            the Grid alone was supportable.                                         -4-            now  says  were  essential to  an  evaluation  of his  mental            impairment.   Where Carter was represented by counsel and had            ample opportunity  to submit this evidence  to the Secretary,            we see no cause for remand now.  Accordingly, the judgment of            the district court is affirmed.                                  ________                                         -5-
