
USCA1 Opinion

	




          April 15, 1994        [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ___________________          No. 93-2288                                  ELIZABETH PATILLA,                                Plaintiff, Appellant,                                          v.               DONNA E. SHALALA, SECRETARY OF HEALTH & HUMAN SERVICES,                                 Defendant, Appellee.                                  __________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                   [Hon. Edward F. Harrington, U.S. District Judge]                                               ___________________                                 ___________________                                        Before                                 Breyer, Chief Judge,                                         ___________                          Boudin and Stahl, Circuit Judges.                                            ______________                                 ___________________               Sandra L. Smales on brief for appellant.               ________________               Donald K. Stern, United States Attorney,  Charlene Stawicki,               _______________                           _________________          Special Assistant United States Attorney, and Robert M. Peckrill,                                                        __________________          Assistant  Regional  Counsel,  Department   of  Health  &   Human          Services, on brief for appellee.                                  __________________                                  __________________                      Per  Curiam.   Claimant  Elizabeth  Patilla appeals                      ___________            from  a district court judgment affirming the decision of the            Secretary  of Health  and  Human Services  (the  "Secretary")            denying  her claim  for social security  disability benefits.            Patilla  claimed disability  stemming from  an injury  to her            right hand  sustained in November, 1980.   The Administrative            Law Judge ("ALJ")  concluded that  as of June  30, 1983,  the            date Patilla  was last  insured, she suffered  from "episodic            situational depression and sympathetic dystrophy of the right            hand," but  that those impairments, alone  or in combination,            did  not meet or equal the applicable Listings. See 20 C.F.R.                                                            ___            Pt. 404, subpt. P, App. 1.                        The  ALJ  did not  find  Patilla to  be  a credible            witness  "insofar   as  the  disabling  extent   of  pain  is            considered."  Although concluding  that Patilla was unable to            perform  her past  relevant work  as a  salad maker,  the ALJ            found  that "the  claimant  retained the  residual functional            capacity  to perform  a  full range  of  light and  sedentary            unskilled  work  activity  at  all times  pertinent  to  this            decision."  Taking into  account Patilla's age, education and            work  experience,  as well  as  her  medical impairments  and            functional limitations, the ALJ  determined that there were a            significant  number  of jobs  in  the  national economy  that            Patilla  could perform.  Therefore, he ruled that she was not            disabled at any time prior to June, 1983.                                         -2-                      Based  upon  our  careful  review of  the  parties'            briefs and the record on appeal, we find that the Secretary's            decision is supported by substantial evidence.  We affirm the            district  court judgment substantially for the reasons stated            in the district court's Memorandum and Order dated October 1,            1993.  We add the following comments.                      On appeal, Patilla argues first, that the ALJ erred            in rejecting her complaints of disabling pain  and in failing            to follow  the standards  for evaluating  pain  set forth  in            Avery v. Heckler, 797  F.2d 19 (1st Cir. 1986).   Second, she            _____    _______            contends that the  ALJ should have found that  her depression            constituted  a non-exertional  limitation on  her  ability to            function that, in combination  with her physical impairments,            rendered her disabled.   Patilla asserts that the Secretary's            contrary  conclusions   are  not  supported   by  substantial            evidence.                      Complaints of Pain.                        __________________                      Patilla testified  at the  hearing  before the  ALJ            that  she had experienced constant pain in her hand since her            injury.  She stated that  whenever she tried to use her  hand            she  would experience  pain  which felt  like muscle  spasms.            Patilla also testified that the cold weather sometimes caused            her hand  to hurt even though she wasn't using it.  She noted            that some days she would keep her hand in a hot towel all day            or for  three or four hours  to alleviate the pain.   Patilla                                         -3-            said   that  the   pain  interfered   with  her   ability  to            concentrate, causing  her to  stop whatever activity  she was            engaged in  until the pain subsided.   She noted that  all of            these descriptions of her pain applied to the period  between            November, 1980 and June, 1983.                      The ALJ found that  "[t]he claimant is not accepted            as a credible witness insofar as the disabling extent of pain            is considered."     He  concluded that  "she could  perform a            full  range  of  at  least light  unskilled  work  activity."            Patilla challenges these findings on appeal, arguing that the            ALJ  failed to follow  the standards for  evaluating pain set            forth in Avery  v. Heckler, 797 F.2d 19 (1st  Cir. 1986).  In                     _____     _______            Avery, we held that when a claimant alleges pain to an extent            _____            not  supported   by  objective  medical  evidence,   "a  full            description  of  the individual's  prior  work  record, daily            activities  and any additional  statements from the claimant,            his or her treating physician  or other third party  relative            to the  alleged pain must  be considered."   Id. at 23.   See                                                         ___          ___            also Social Security Ruling 88-13 (SSR 88-13).            ____                      Our  review of  the record  indicates that  the ALJ            complied with the requirements of Avery and SSR 88-13.  At a                                              _____            hearing held  on July  6,  1992, the  ALJ questioned  Patilla            about  her physical  condition  and her  daily activities  in            1983, the date she was last insured.Patilla   testified  that                                         -4-            she was "better" in 1983 than in 1992.1  She  stated that she            was able  to drive and to turn on the ignition with her right            hand.   She was  also able  to write and  eat with  her right            hand.  Patilla testified that she did her family's laundry.                        The  ALJ questioned  Patilla about  her  prior work            record,  including two  unsuccessful  attempts  to return  to            cafeteria  work in 1980 and 1981.  Patilla testified that she            was unable to do even "light duty" cafeteria work because she            "started dropping  things."  Patilla testified  that when she            tried to use her right hand, it would "start shaking and then            it goes  numb," causing her to lose control of the hand.  She            stated that  she tries not  to use her right  hand because it            hurts when she uses it and because she drops things.   At the            hearing, Patilla's  attorney elicited  a full  description of            the nature and duration of the pain.                      In  questioning the  vocational  expert  about  the            availability of work for someone with Patilla's  limitations,            the ALJ characterized claimant as possessing "reduced ability            to use the right arm, reduced  manual dexterity and basically            was  using the right arm for support."  The vocational expert            testified  that in the national  economy there is  a range of            unskilled work at the light and medium exertional levels that            involves  use of only one arm.   He further stated that these                                            ____________________            1.      Later in  the  hearing,  Patilla  testified that  her            condition was about the same in 1992 as in 1983.                                         -5-            jobs  could be performed by  a person with  "mild to moderate            impairment to concentration."                      The record  does not support  claimant's contention            that  the  ALJ failed  to  conform with  the  requirements of            Avery.   The ALJ credited Patilla's  subjective complaints of            _____            pain  to  the extent  that  he found  her to  have  a reduced            ability  to use her right arm and to have moderately impaired            concentration.  The  ALJ's determination that Patilla's  pain            did  not  render her  disabled  is  supported by  substantial            evidence in the record.  Dr.  John McGillicuddy, an examining            physician,  wrote  in  October,  1983,  that  Patilla  had  a            "swollen, painful right hand with marked weakness and limited            motions," however, he concluded that she was still capable of            doing "extremely  light work" with  her right hand.  In July,            1982,  Dr. Upton,  an  examining physician,  reported to  the            Social  Security Administration  that  although  Patilla  had            experienced  pain  in  her hand  in  the  past,  she was  not            experiencing much pain at that time.  According  to  her  own            testimony,  Patilla was able to  use her right  hand for many            daily activities, including driving, writing and eating.  Her            return to cafeteria employment  had been unsuccessful because            of her inability to hold onto things with her right hand, not            because of disabling pain.  "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                                         -6-            evidence  is entitled  to deference,  . .  ."   Frustaglia v.                                                            __________            Secretary  of Health & Human Services, 829 F.2d 192, 195 (1st            _____________________________________            Cir.  1987).   Therefore, the  ALJ did  not err  in rejecting            claimant's complaints of disabling pain.                      Mental Impairment.                      _________________                      The   ALJ   found   that  Patilla   suffered   from            "intermittent   depression,"  in  addition  to  her  physical            impairment.  He stated that "[h]er situational depression was            episodic only."  Therefore,  the ALJ concluded that Patilla's            capacity for light unskilled work was  not compromised by her            non-exertional   limitations.     Patilla   challenges  these            findings  as  unsupported  by   substantial  evidence.     We            disagree.                      The ALJ accurately summarized the  medical evidence            regarding  Patilla's  depression.    In November,  1982,  Dr.            Quentin R.  Regestine, an examining physician  from the Sleep            Clinic at  Brigham and  Women's Hospital, wrote  that Patilla            reported to him  that she lay in bed all  day and was "unable            to  fulfill  any responsibilities."    A test  of  ability to            concentrate  "revealed  gross  impairment."    Dr.  Regestine            reported, however, that Patilla  was "placed on protriptylene            and has sustained an initial and significant lessening of her            symptoms."                      There  is no  other  evidence in  the  record of  a            mental impairment that  existed prior to June, 1983, the date                                         -7-            Patilla  was last insured.  Notes from 1985 indicate that Dr.            Regestine  saw Patilla for complaints of crying spells and an            inability to get  out of  bed.  The  notes suggest,  however,            that those symptoms  occurred because Patilla  stopped taking            her prescribed medication, as a  result of constipation.  The            doctor adjusted the medications and Patilla felt better.   In            July, 1985, Dr. Regestine  examined Patilla and reported that            she  was  "neat,  conversational,  informative"   with  "mild            psychomotor retardation."  He  further noted that her current            interests and activities included  her house and her children            and  that she visited her  mother and was  able to "negotiate            the city."   Patilla  was taking  protriptylene.   The report            concluded that  the patient was "much improved"  and that the            prognosis for depression  was "good."  In  1987, Dr. Ryestine            reported that Patilla "does house work and cooking"  with her            daughters'  help and "can be self sufficient."  He noted that            she  was still taking  protriptylene and that  she had "shown            much improvement." She was out of the house and participating            in rehabilitation programs.                       In applying the Medical-Vocational  Guidelines, the            ALJ properly considered  non-exertional factors and concluded            that the "paucity  of this record"  supported a finding  that            Patilla was  not disabled.   This conclusion is  supported by            the  record as a whole.  The vocational expert testified that            if  Patilla's concentration were impaired  "to a marked or to                                         -8-            an extreme extent," it would preclude employment of any kind.            Dr.  Regestine found that in November, 1982, Patilla showed a            "gross impairment" of  her ability to concentrate.   There is            no indication, however, that  this impairment persisted for a            year or more.   In 1986, a  "complete psychometric assessment            was  performed"  and  Dr.  Peter  Rosenberger,  an  examining            physician, reported only "an  element of attention deficit in            the patient's learning style."  The diagnosis was of dyslexia            "in  this   otherwise  neurologically  intact   and  normally            intelligent lady." "It is the responsibility of the Secretary            to   . . . draw inferences from the record evidence.  Indeed,            the resolution of conflicts in evidence is for the Secretary,            not the courts."  Irlanda Ortiz v. Secretary of HHS, 955 F.2d                              _____________    ________________            765,  769 (1st  Cir.  1991).   The  ALJ's determination  that            Patilla's  mental  impairment  did  not  interfere  with  her            residual functional capacity to perform a full range of light            unskilled work is substantially supported by the record.                      Accordingly, we affirm the district court's opinion            affirming the Secretary's denial of benefits.                                         -9-
