
USCA1 Opinion

	




          May 31, 1994                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 93-2092                                LAURA E. LOPEZ-MERRERO,                                Plaintiff, Appellant,                                          v.                       SECRETARY OF HEALTH AND HUMAN SERVICES,                                 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 Stahl,                                   Circuit Judges.                                   ______________                                 ____________________            Raymond Rivera Esteves and Juan A.  Hernandez Rivera on brief  for            ______________________     _________________________        appellant.            Guillermo  Gil,  United  States  Attorney, Maria  Hortensia  Rios,            ______________                             ______________________        Assistant  United  States  Attorney, and  Paul  Germanotta,  Assistant                                                  ________________        Regional Counsel,  Department of Health  and Human Services,  on brief        for appellee.                                 ____________________                                 ____________________                      Per   Curiam.    Claimant  Laura  E.  Lopez-Marrero                      ____________            appeals  from  the  judgment  of  the  district  court  which            affirmed the  decision of the  Secretary of Health  and Human            Services that  claimant was  not entitled to  Social Security            disability benefits.                                    I.  BACKGROUND                                    _   __________                      Claimant filed an  application for Social  Security            disability  benefits on June 6,  1989.  She  alleged an onset            date of October  15, 1988.   As disabilities  she listed  her            nerves  and her  back.   She related  her impairments  to two            falls  at work.   An  administrative law  judge (ALJ)  held a            hearing.  Claimant testified concerning her most recent work.            First,  she  worked in  a  pharmaceutical  factory where  she            manually  checked and  counted the  gloves made  there.   She            would alternate between sitting and standing and only  had to            carry "little" things.   Next, she was employed as  an office            worker; she took notes and answered the phone.                      Claimant  stated that  she lives with  her husband.            After  the accidents, she suffered pain in her left leg, left            hip, left ankle and right  hand.  She uses a cane  because of            the pain in her legs.   She visits a doctor when in  pain and            takes Motrin.  She can sit and stand for twenty  minutes at a            time but has problems  walking.  She can lift  light objects.            She would like to work but cannot because of the problems she            has with her memory due to her nerves and because of the pain            in  her lower  back,  coccidial  area  and  left  hip.    She            described her pain as  strong although sometimes the medicine            helps.  As for her nerves, she feels desperate and restless.                      The   ALJ   first   determined    that   claimant's            impairments did not meet the listings.  Nonetheless, he found            that  there  existed  some limitations  in  her  work-related            activities  due to  both  her  exertional and  non-exertional            conditions.   As  for claimant's  mental impairment,  the ALJ            concluded  that claimant was  only precluded  from performing            complex tasks due  to some  deterioration in  her ability  to            sustain   concentration.    Nonetheless,   she  retained  the            capacity  to  perform  simple  tasks that  were  routine  and            repetitive in nature.  He rejected the level of deterioration            described by claimant, finding that, under Avery v. Secretary                                                       _____    _________            of  Health and Human Services,  797 F.2d 19  (1st Cir. 1986),            _____________________________            she was only somewhat limited in social functioning and daily            activities.                      In  relation to her neurological condition, the ALJ            found  that she suffered from lumbar strain and had a history            of trauma  to her left hip, left ankle and right hand.  Under            Avery, the ALJ credited claimant's complaints of pain only to            _____            the extent that  she was precluded  from doing heavy  lifting            and  carrying  and from  standing  or  walking for  prolonged            periods of time.   Thus, he concluded, she could  perform her            past work.                                         -3-                      On   appeal,   claimant  argues   that   the  ALJ's            determinations  regarding  her  pain  were  not substantially            supported by the record.   Further, claimant asserts, the ALJ            erred by translating, without the aid of a vocational expert,            the medical  evidence of claimant's physical impairments into            functional  limitations on  her ability  to perform  her past            work.  As for her mental condition, claimant asserts that the            ALJ's decision was not supported by substantial evidence when            viewed  in   the  context   of  the   record   as  a   whole.            Specifically,  claimant points  to  the  findings  concerning            restrictions in her ability to cope with the stresses of work            in general.                        A.  Physical Impairment                          ___________________                      The    x-ray    reports,   which    found   partial            sacralization of  the L-5 disc  and narrowing of  the L-5-S-1            disc space, do provide evidence of "a clinically determinable            medical impairment that can reasonably be expected to produce            the pain  alleged."   See Avery, 797  F.2d at  21.   However,                                  ___ _____            there  also was evidence to support the ALJ's decision not to            credit claimant's claims of totally disabling pain.                      For example, in November 1989, claimant underwent a            neurological  evaluation.     See  Exhibit   15.     Although                                          ___            claimant's complaints included constant pain, she  had normal            tone, no atrophy and a strength rating  of 4 out of 5.  There            was  no muscle  spasm and  no deformity.   The  diagnosis was                                         -4-            lumbar strain.  At  another examination in October  1990, see                                                                      ___            Exhibit 22, claimant complained of mild lower back pain which            was alleviated  with Motrin.   Despite  the presence  of some            muscle  spasm and  a limited  range of  motion of  the lumbar            spine, there was no muscle weakness or atrophy and no sensory            deficit; claimant's  gait was normal.   The  diagnosis was  a            back condition by history, with no evidence of radiculapathy.                      Contrary to claimant's  argument, the  ALJ did  not            impermissibly   translate   medical   data  into   functional            limitations.    Rather,  the  record  contained  two residual            functional  capacity  (RFC)  forms.    In  December  1989,  a            physician opined that, based on the medical records, claimant            had  no  exertional, postural  or  other limitations.    In a                 __            November  1990 RFC  assessment,  it was  noted that  claimant            could occasionally lift and  carry up to 50 pounds  and could            frequently  lift and carry 25  pounds.  She  could stand, sit            and walk for up to six hours each per day.                      B.  Mental Condition                          ________________                      Claimant's  mental  impairment   presents  a   more            complicated picture but, again,  there is evidence to support            the   Secretary's  position.     A   psychiatric  examination            conducted  in November  1989, see  Exhibit 16,  revealed that                                          ___            claimant was  logical, coherent, relevant and  oriented.  She            did not  present any  perceptual dysfunctions.   Although she            appeared  anxious  and  depressed,  her  attention  span  was                                         -5-            conserved and her ability  to concentrate was adequate.   She            was  described   as  capable  of  judging   reality  and  the            consequences of her acts.                      In  July  1990,  claimant  also  was  described  as            coherent, relevant,  logical and  cooperative; there were  no            observable thought  disorders.  See  Exhibit 18.   Her affect                                            ___            was appropriate and her mood normal.  She reported delusions,            but the examiner described them as hysterical in nature.  Her            memory was conserved.   In addition, claimant took the  MMPI.            The examiner  described the  results as "exaggerated."   That            is,  claimant "reported  symptoms of such  severe disturbance            that her  profile fell  outside the  maximum limits  that the            profile  was designed to measure."  As a result, "[s]he would            have  been unlikely  to  be unable  [sic]  to take  the  test            properly  if  she  were  as  severely  disturbed  as she  was            claiming, and her  behavior during the  clinical part of  the            examination  was  in  sharp   contrast  with  her  claims  of            disturbance."    The  diagnoses  were mild  dysthymia  and  a            personality disorder with dependent and hysterical features.                      Three  non-examining  doctors completed  mental RFC            assessments.   In December  1989, claimant  was rated  as not            significantly  limited  in  understanding,   remembering  and            carrying  out   short,   simple  instructions.     Also   not            significantly  limited  were  her  abilities  to  sustain  an            ordinary  routine without  supervision, to make  simple work-                                         -6-            related  decisions,  to  relate  to co-workers,  to  maintain            socially appropriate  behavior and  to handle changes  in the            work  environment.    As  for  maintaining  concentration for            extended   periods  of  time,  performing  within  a  regular            schedule,  and  being able  to  complete  a normal  work-week            without  interruptions  from psychologically-based  symptoms,            claimant  was  moderately limited.    She  was not  "markedly            limited"  in any areas.  The conclusion was that claimant was            capable of performing simple tasks on a sustained basis.                      The  RFC  assessment   completed  in  August   1990            essentially  reached the  same results.   Even  with moderate            limits on  her abilities to  complete a normal  work-week, to            respond appropriately to changes in the work setting, and  to            accept supervision,  claimant retained the abilities  to cope            with simple  instructions, to  perform within a  schedule, to            make simple  work-related decisions, to work  in proximity to            others,  to sustain  an  ordinary work  routine, to  maintain            regular attendance  and to be punctual.  The third physician,            in November 1990, echoed  the findings concerning  claimant's            capacity  to  deal with  simple  instructions,  to work  with            others, to make simple, work-related decisions and to respond            appropriately to  criticism.   She was moderately  limited in            dealing with the stresses of work in general -- being able to            concentrate,  maintaining  a  routine   without  supervision,                                         -7-            completing  a  normal   work-week  and  keeping  up   regular            attendance.                      In   Social  Security   Ruling  (SSR)   85-15,  the            Secretary   set  out  the  framework  for  addressing  mental            impairments in the context  of unskilled work.  See  Ortiz v.                                                            ___  _____            Secretary of Health and Human Services, 890 F.2d  520, 526-27            ______________________________________            (1st Cir.  1989) (per  curiam) (discussing  SSR 85-15).   Two            sets  of capabilities are  necessary for  this kind  of work.            First,  claimant must  be  able to  understand, remember  and            carry out  simple instructions, to  respond appropriately  to            co-workers,  supervision and  normal work situations,  and to            cope  with routine changes in  the work situation.   There is            substantial  evidence,  based  on  the  above  reports,  that            claimant meets these requirements.                      The second set of capabilities concerns the demands            of  any  work  environment,  regardless of  the  skill  level            involved.  To be  able to accommodate a work setting  per se,            according to  SSR 85-15,  an individual  must  be capable  of            being  punctual, attending  work  on a  consistent basis  and            staying  at work  for the  entire day.   The  RFC assessments            uniformly  rated claimant  as "moderately  limited" in  these            spheres  of  functioning.   We  have  acknowledged that  such            limitations  may  erode  the  occupational  base   "at  least            marginally,  and possibly more so."   See Ortiz,  890 F.2d at                                                  ___ _____                                         -8-            527;  see also Irlanda Ortiz v. Secretary of Health and Human                  ___ ____ _____________    _____________________________            Services, 955 F.2d 765, 770 (1st Cir. 1991) (per curiam).            ________                      In this case, we  believe that there is substantial            record  evidence  to support  the  Secretary's decision  that            claimant's dysthymia did not significantly affect her ability                                         _____________            to successfully negotiate the work setting.  In  this regard,            we note  that  objective  medical evidence  --  the  MMPI  --            indicates that claimant may be exaggerating her symptomology.                                   III.  CONCLUSION                                   ___   __________                      We conclude that claimant has not met her burden of            establishing   that  her   impairments  precluded   her  from            performing her past work.  See Gray v. Heckler, 760 F.2d 369,                                       ___ ____    _______            371  (1st Cir.  1985)  (per curiam).    "We must  uphold  the            Secretary's findings  . . .  if a reasonable  mind, reviewing            the evidence in  the record as  a whole, could  accept it  as            adequate  to support [the  Secretary's] decision."  Rodriguez                                                                _________            v.  Secretary of Health and Human Services, 647 F.2d 218, 222                ______________________________________            (1st Cir.  1981).   Although the record  contains conflicting            evidence,  the  resolution  of  these conflicts  is  for  the            Secretary,  not the  courts.   See  id.   Given  the  medical                                           ___  ___            reports described  above, there  was substantial  evidence in            the record as a whole to support the Secretary's conclusion.                      The judgment of the district court is affirmed.                                                            ________                                         -9-
