               Not for Publication in West's Federal Reporter

          United States Court of Appeals
                      For the First Circuit


No. 09-1291

                      MARCELINA SOTO-CEDEÑO,

                       Plaintiff, Appellant,

                                    v.

       MICHAEL J. ASTRUE, Commissioner of Social Security,

                        Defendant, Appellee.


          APPEAL FROM THE UNITED STATES DISTRICT COURT

                 FOR THE DISTRICT OF PUERTO RICO

         [Hon. José Antonio Fusté,        U.S. District Judge]


                                 Before

                       Lynch, Chief Judge,
                Boudin and Stahl, Circuit Judges.



     Pedro G. Cruz Sánchez on brief for appellant.
     Matthew J. Del Mastro, Special Assistant U.S. Attorney and
Rosa Emilia Rodríguez-Vélez, United States Attorney, on brief for
appellee.



                             June 29, 2010
             Per Curiam.       Marcelina Soto-Cedeño (Soto) appeals from a

district court judgment upholding an administrative law judge (ALJ)

decision that denied her application for Social Security disability

benefits.     We vacate the judgment in part and direct the district

court to remand to the ALJ for reconsideration of one issue.

             I.   Background

             Soto     applied    for        disability    benefits,    alleging      a

disability onset date of May 19, 2001.                  She premised her claim of

disability on several conditions, including high blood pressure,

kidney disease, depression, and hand, back and hip pain.                    Her last

insured date was December 31, 2006.

             On December 15, 2005, a disability hearing was held, at

which Soto and a vocational expert (VE) testified.                    In a decision

dated March 7, 2006, the ALJ denied disability benefits at step 5

of    the   sequential      evaluation       process.      Relying    on    the   VE's

testimony, he concluded that, despite her limitations, Soto could

perform       three         unskilled        sedentary       jobs--parking         lot

attendant/cashier, fantasy jewelry production line worker, and

office photocopy worker.               The Appeals Council denied review,

rendering the ALJ's decision the final agency decision.

             Soto then sought judicial review.              On January 23, 2009,

the   district      court    issued     a    judgment    affirming    the   agency's

decision.     Soto appealed.




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              On appeal, our review "is limited to determining whether

the ALJ deployed the proper legal standards and found facts upon

the proper quantum of evidence."           Nguyen v. Chater, 172 F.3d 31, 35

(1st   Cir.    1991)    (per   curiam)    (citation      omitted).        An   "ALJ's

findings of fact are conclusive when supported by substantial

evidence, . . . but are not conclusive when derived by ignoring

evidence, misapplying the law, or judging matters entrusted to

experts."      Id. (citations omitted).

              Soto   raises    two    appellate   claims,      one   of   which      is

meritorious.

              II.    Discussion

              A.    Treating Source Opinion

              The    ALJ   rejected     the    opinion    of    Soto's     treating

psychiatrist, Dr. Hector Rivera, that her depression had imposed

marked or extreme limitations on her ability to perform the mental

demands of work.        Instead, he essentially accepted the assessments

by consulting examining psychiatrists that her depression had

imposed only mild or moderate limitations on her.                          The VE's

testimony indicated that if Soto had the marked limitations Dr.

Rivera perceived, she would have "difficulty" performing the jobs

he had identified on a sustained basis.

              Soto contends that the ALJ did not give good reasons for

rejecting      Dr.     Rivera's      medical   opinion,     citing    20       CFR   §

404.1527(d)(2).        That regulation states that the agency will give


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treating    source   opinions    "on    the    nature   and    severity"     of   a

claimant's impairment "controlling weight" if they are "well-

supported    by    medically     acceptable      clinical      and     laboratory

diagnostic    techniques"      and    "not    inconsistent     with    the   other

substantial evidence" in the case.              It also provides that the

agency will "always give good reasons" for the weight it gives a

treating source opinion.        Id.

            The ALJ rejected Dr. Rivera's opinion in part because no

supporting treatment notes were attached to his November 20, 2004

report and RFC assessment.            He also thought that Dr. Rivera's

opinion as of December 2, 2005 was inconsistent with "the remaining

medical record" and with statements by Soto.

            We agree with Soto that the absence of treatment notes

does not justify the rejection of Dr. Rivera's opinion.                        Dr.

Rivera's November 20, 2004 report explained the basis for his

opinion.    In particular, the doctor described his observations of

Soto and the results of specific memory tests he had administered

to her at her most recent appointment on October 26, 2004.                He used

the tests that were recommended on the agency report form he filled

out, and the consulting psychiatrists, whose opinions the ALJ

credited,    had   used   similar     tests,    relying   as    well    on   their

observations of Soto.

            Accordingly, the absence of treatment notes alone did not

show that Dr. Rivera's opinion was not "well-supported by medically


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acceptable clinical and laboratory diagnostic techniques" (if that

is what the ALJ meant to suggest).           In any event, the parties agree

that medical sources are not required to attach their treatment

notes to their reports to the agency.                 And an agency regulation

indicates    that    if   the   ALJ   deemed    Dr.    Rivera's    report   to   be

"inadequate," he should obtain additional information "first" by

recontacting Dr. Rivera.         20 CFR § 404.1512(e)(1).

             Nor do we think that Dr. Rivera's medical opinion as of

December 2, 2005 can reasonably be characterized as "inconsistent"

with   the   other   medical     evidence      of   record.       The   consulting

psychiatrists and Dr. Rivera evaluated Soto's condition as of

different time periods.         One consultant examined Soto on March 20,

2003, the other on November 18, 2003, and their opinions obviously

related to her functioning at that time. In contrast, Dr. Rivera's

November 20, 2004 RFC assessment indicated that it was a "current

evaluation," and referred to his accompanying report, which had

recorded his observations and testing of Soto on October 26, 2004.

In that report, Dr. Rivera also noted that Soto's condition had

deteriorated progressively.           In his December 2, 2005 report, Dr.

Rivera   used    present    tense     verb     forms    in    describing    Soto's

limitations and again noted her "sustained deterioration."                  There

is no conflicting medical evidence or opinion in the record for the

time period encompassed by Dr. Rivera's reports.




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          To sum the above up, while the consulting psychiatrists'

reports may well be substantial evidence that supports the ALJ's

determination that Soto was not disabled in 2003, they do not

conflict with, or undermine, Dr. Rivera's opinion relative to later

time periods.

          We    also   find   no   inconsistency     between   Dr.    Rivera's

assessment and statements by Soto.               Contrary to what the ALJ

apparently concluded, Soto reported only that her family doctor and

nephrologist had advised her against taking prescription pain

medications because they could worsen her kidney condition.                 She

did not say that Dr. Rivera or her other doctors had advised her

not to take her prescription psychiatric medications.                 And, on

December 10, 2003, Soto told a consulting examining physician that

she got "poor relief" from her psychiatric medications, which is

consistent with Dr. Rivera's report that she had not responded to

treatment with drugs.

          Soto's   description      of     her   daily   activities   did   not

undermine Dr. Rivera's assessment either.            Just as in March 2003,

Soto stated at the hearing in December 2005 that she watched TV.

Her ability to watch TV does not show her ability to perform the

mental tasks necessary for work.            Moreover, Soto's statement in

March 2003 that her husband would not let her cook because she left

the stove on is consistent with Dr. Rivera's comments on her memory




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deficits, inattentiveness, and inability to concentrate on tasks at

hand due to her depression.

           Soto's remaining statements from March 2003 were outdated

by the time the ALJ rendered his decision.            On November 18, 2003,

Soto had told a consulting examining psychologist that she did not

help with household duties, engage in social activities, or visit

with others, and Dr. Rivera gave similar reports for subsequent

years. He said that Soto's pain kept her from performing household

tasks, that she got confused and could not develop a work plan, and

that she rejected visitors and conversations.

           In short, the ALJ did not give supportable reasons for

rejecting Dr. Rivera's opinion as to Soto's ability to function in

the workplace for the time frame the doctor had evaluated.                  We

therefore vacate the district court's judgment insofar as it upheld

this portion of the ALJ's decision, and we direct the court to

remand to the ALJ for further proceedings consistent with our

opinion.   See Johnson v. Astrue, 597 F.3d 409, 411 (1st Cir. 2010)

(per curiam) (remanding under similar circumstances).

           B.    Physical Impairments

           Soto's second appellate claim is that the ALJ ignored

evidence about her various physical limitations and substituted his

judgment for that of medical professionals.           After careful review

of the record and the ALJ's decision, however, we conclude that the

substantial     evidence   of   record    supported    most   of   the   ALJ's


                                    -7-
conclusions.    We are somewhat troubled by the ALJ's treatment of

Soto's left-wrist condition and her claims of hand pain.                But the

only argument that Soto presents on that score is unpersuasive.

            Soto argues that, due to her hand impairments, she lacks

bilateral    manual   dexterity.      She   seems   to    maintain     that   her

limitation so eroded the range of unskilled sedentary work she

could perform that she should have been found to be disabled.                 She

cites Heggarty v. Sullivan, 947 F.2d 990 (1st Cir. 1991), a case

involving a claimant with a significant limitation in bilateral

manual dexterity, in which the ALJ had relied on the Grids as a

framework for finding the claimant not to be disabled.               We vacated

the district court's judgment, directing the court to remand to the

ALJ for further proceedings because the ALJ had not consulted a

vocational expert before denying disability benefits.                Id. at 996.

            Here, however, the ALJ did consult a VE, a fact that Soto

does not discuss.      Furthermore, the government argues that the

ALJ's hypothetical to the VE adequately accounted for Soto's

hand/wrist    condition,   and     that    the   VE's    testimony    therefore

supported the denial of benefits.         Soto has not filed a reply brief

responding to that argument.         If there was error in how the ALJ

proceeded, then, she has waived the defect. Poupore v. Astrue, 566

F.3d 303, 306 (2d Cir. 2009) (courts may deem unraised claims of

error to be waived); Wall v. Astrue, 561 F.3d 1048, 1065 (10th Cir.

2009) (courts may treat inadequately developed claims of error as


                                     -8-
waived); cf. Mills v. Apfel, 244 F.3d 1, 8 (1st Cir. 2001)

(objections not presented to the ALJ are waived).

           Finally,    we   note   that     Soto   has   given   this   court   a

disability decision, in which a different ALJ found her to be

disabled based on her depression and bilateral manual dexterity.

We   decline   to   consider   that   decision,     which   was   based   on    a

different record and on a much later onset date of disability.

           We vacate the district court's judgment in part and

direct the court to remand to the ALJ for further proceedings

consistent with this opinion.             Otherwise, the judgment of the

district court is affirmed.




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