
USCA1 Opinion

	




          March 9, 1995                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 94-2012                                SONIA CABRERA MENDEZ,                                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. Jose Antonio Fuste, U.S. District Judge]                                              ___________________                                 ____________________                                        Before                                Torruella, Chief Judge,                                           ___________                          Selya and Boudin, 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  Robert  J. Triba,  Assistant                                                  ________________        Regional Counsel,  Department of Health  and Human Services,  on brief        for appellee.                                 ____________________                                 ____________________                      Per Curiam.   Sonia  Cabrera Mendez appeals  from a                      __________            district  court judgment  affirming a  final decision  of the            Secretary of  Health and  Human Services  to the  effect that            appellant  did not  meet the  disability requirements  of the            Social  Security  Act  for purposes  of  obtaining disability            insurance benefits.  As there is substantial evidence  in the            record to support the Secretary's decision, we affirm.                      Appellant  alleged an  inability to  work beginning            January 25, 1990, due to a musculoskeletal condition, asthma,            dysthymia  and  anxiety.     Following  a  hearing  at  which            appellant testified,  the  Administrative Law  Judge  ("ALJ")            found that appellant had  a severe impairment which prevented            her  from   returning  to  her  former  work   as  an  office            receptionist and  rendered  her skills  nontransferable,  but            twice concluded that  she was not  disabled at Step 5  of the            familiar  sequential   analytic   process.     20  C.F.R.                404.1520(f).                      In his first decision  the ALJ found that appellant            retained a functional  capacity to  perform a  wide range  of            light  work which  was not  significantly compromised  by her            nonexertional limitations,  so considering her age  (42 years            old), and education (12th grade), the denial of benefits  was            directed by  application of the  "grid," 20 C.F.R.  Part 404,            Subpt. P, App. 2, Rules 202.20, 202.21.  The Appeals Council,            however, remanded the  case to the  ALJ with instructions  to                                         -2-            obtain a vocational expert's [VE's] assessment of appellant's            occupational  base in light of the medical record relating to            appellant's nonexertional limitations.                        Following a new hearing at which appellant and a VE            testified, the ALJ again denied  benefits.  The second denial            was based  on the VE's  affirmative answer  to the  following            hypothetical question.                 [A]ssuming hypothetically .  . . that the  claimant                 physically would be limited  to sedentary or  light                 activities.  . .  where she  would lift  ten pounds                 frequently and  20 pounds maximum, and  most of the                 work would be standing,  but if necessary she could                 alternate her position as  needed . . . .  That the                 work  should be  performed .  . .  in a  clean work                 environment, in which she would not be subjected to                 excessive  dust  or  dirt,  fumes,  noxious  odors,                 excessive heat or cold.  That from a non-exertional                 standpoint  the claimant  should not  be placed  in                 work where she would  be under intensive tension or                 pressure in the performance of  the work.  In other                 words,  it  should be  work that  is of  a routine,                 repetitive and  simple nature.   Also, it  would be                 preferable  that  she  not  meet the  public  on  a                 continuing [or frequent] basis.                 . . . .                 That  any work  that she  would perform  that might                 elicit  any  type of  pain  should  be regarded  as                 tolerable  pain,  meaning  in effect  it  would not                 affect  her  attention   or  concentration  in  the                 performance  of her  work functions.   Under  these                 circumstances would  she be  able to return  to her                 former  employment or  would  there  be other  jobs                 existing  within  the  national  or  local  economy                 applicable to the claimant?            T.62-63.  In response, the VE opined that appellant could not            resume her former work, but identified several unskilled jobs            capable of  being  performed  by a  person  with  the  stated                                         -3-            limitations, and  which exist  in substantial numbers  in the            local economy.                      The Secretary  may meet  her burden of  proving the            existence  of a  substantial number of  suitable jobs  in the            economy by relying upon an  expert's answer to a hypothetical            question, so  long as the hypothetical  itself corresponds to            conclusions that are supported by substantial evidence in the            record.   Arocho v. Secretary of HHS,  670 F.2d 374, 375 (1st                      ______    ________________            Cir. 1982).  To  guarantee that correspondence, the ALJ  must            first  resolve  ambiguities  in  the  evidence,  decide  what            testimony to  credit, and  accurately  transmit the  relevant            conclusions to the expert in the form of assumptions.  Id.                                                                     ___                      Appellant   argues   that   the  hypothetical   was            defective  because  it  did  not fairly  reflect  the  record            evidence of her impairments.   She contends that the  ALJ was            required  instead to  accept  the VE's  negative response  to            three other hypotheticals which  posited a claimant with more            severe functional limitations.  We do not agree.                        While   hardly   a  model   of   articulation,  the            hypothetical    nonetheless    acceptably   corresponds    to            conclusions   that  find substantial  support in  the medical            evidence.     The  record  shows  that   appellant  had  been            repeatedly treated for depression  and anxiety since at least            October,  1990.   All  the examining  psychiatrists reported,                                         -4-            however, that appellant  was coherent, logical, and  oriented            in three spheres (person, place, and time).                        There was  conflicting evidence about  the severity            of  appellant's depressive  disorder  and its  effect on  her            ability to work.   On the one hand, appellant was admitted to            the  emergency room at least  once with a  diagnosis of major            depression.  In addition, a psychiatrist who treated her from            March through October,  1991, diagnosed a dysthymic  disorder            with psychomotor  retardation of  such severity as  to render            appellant  unable to  understand  and carry  out even  simple            instructions  under ordinary  supervision, or to  sustain any            work   performance,   even   in  minimally   stressful   work            situations.                        On  the  other  hand,  a   consulting  psychiatrist            concluded in December,  1991, that  while appellant  suffered            serious mental limitations, she  retained a "fair" ability to            follow work rules and  deal with work stresses, and  a "good"            ability to  maintain concentration, understand,  remember and            carry  out  simple job  instructions.    Assessments by  non-            examining  doctors in  November,  1990 and  June, 1991,  also            concluded that appellant had  only moderate and insignificant            limitations on  the various  capacities needed to  maintain a            consistent work schedule and carry out simple tasks.                        The hypothetical assumption that appellant retained            some   functional  capacity  for  simple  tasks  despite  her                                         -5-            depressive disorder thus was reasonably  substantiated by the            evaluating and  non-examining doctors' reports.   The ALJ was            not  required to  accept  the treating  psychiatrist's bottom            line conclusion that  appellant was unable  to engage in  any            work,  see 20  C.F.R.    404.1527(e),  especially  as it  was                   ___            inconsistent with  other  substantial medical evidence in the            record.  See  20 C.F.R.    404.1527(d)(2).  The  hypothetical                     ___            also  fairly  summarized   the  limitations  which  all   the            examining psychiatrists confirmed:  appellant's need to avoid            stress  and to  confine  her activities  to simple,  solitary            tasks.   While  reasonable minds  may differ  on how  best to            characterize  the degree  of  stress  which  appellant  might            tolerate,  we  are not  in a  position  to gainsay  the ALJ's            interpretation, but  confine our  analysis to the  search for            "substantial evidence."  Id.; Rodriguez Pagan v. Secretary of                                     __   _______________    ____________            HHS, 819 F.2d  1, 3 (1st Cir.  1987), cert. denied,  484 U.S.            ___                                   ____________            1012 (1988).   It is the ALJ's job, not the court's, to chose            between  competing evidence  and  inferences.   See Ortiz  v.                                                            ___ _____            Secretary of HHS, 955 F. 2d 765, 769 (1st Cir. 1991).                   ________________                      As  to appellant's physical  condition, again there            was conflicting evidence.  Although a neurologist tentatively            diagnosed collagen disease,  and chronic cervical and  lumbar            syndromes which  might render  appellant unable to  work, the            diagnosis was  expressly conditioned  on a reevaluation  by a            rheumatologist.      Consulting   rheumatologists,   however,                                         -6-            diagnosed  several  mild and  moderate  conditions, including            myositis,      bursitis,      tendinitis,      epicondylitis,            costochondritis,     psychogenic     rheumatism,    and     a            polyradiculopathy  of unknown origin, but found normal muscle            strength and  no limitations on appellant's  range of motion.            Two residual  functional capacity assessments  concluded that            appellant  was physically  capable  of  "medium" level  work.            Again,  the  ALJ's  resolution  of   the  conflict,  limiting            appellant to "light" work  to avoid aggravating her diagnosed            conditions, is supported by substantial evidence.   Moreover,            the  hypothetical  carefully  echoed  all  the  environmental            limitations suggested by the  medical reports to  accommodate            appellant's  asthma and  "very  mild"  restrictive  pulmonary            dysfunction.                      Appellant's final argument is that the ALJ erred by            assigning "little credibility"  to appellant's own  testimony            that she suffered from totally debilitating pain, depression,            and  anxiety.    The transcript  of  the  hearing  shows that            appellant  was   thoroughly  questioned  as  to  all  matters            relevant  to her subjective symptoms.  See Avery v. Secretary                                                   ___ _____    _________            of HHS, 797 F.2d 19 (1st Cir. 1986).  We necessarily defer to            ______            the ALJ's evaluation  of appellant's credibility,  especially            since  it  is  supported  by  substantial   medical  evidence            consistent  with  a  lesser  degree  of  pain  and a  greater                                         -7-            functional capacity.  See Frustaglia v. Secretary of HHS, 829                                  ___ __________    ________________            F.2d 192, 195 (1st Cir. 1987).                          Although  the  record   arguably  could  support  a            different   conclusion,   there   is   substantial   evidence            undergirding the  ALJ's determination.  Thus,  we must uphold            the Secretary's  decision.    See  Ortiz, 955  F.2d  at  770;                                          ___  _____            Rodriguez Pagan, 819 F.2d at 3.               _______________                      Affirmed.                      ________                                         -8-
