
USCA1 Opinion

	




          February 19, 1993     [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ___________________          No. 92-1896                                             SONIA SANTOS RIVERA,                                Plaintiff, Appellant,                                          v.                    SECRETARY OF HEALTH & HUMAN SERVICES, ET AL.,                                Defendants, Appellees.                                  __________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                    [Hon. Raymond L. Acosta, U.S. District Judge]                                             ___________________                                 ___________________                                        Before                                 Breyer, Chief Judge,                                         ___________                            Selya and Cyr, Circuit Judges.                                           ______________                                 ___________________               Salvador Medina De La Cruz on brief for appellant.               __________________________               Daniel F.  Lopez Romo, United States  Attorney, Jose Vazquez               _____________________                           ____________          Garcia,  Assistant  United States  Attorney,  and  Amy S.  Knopf,          ______                                             _____________          Assistant  Regional  Counsel,  Department  of  Health  and  Human          Services on brief for appellee.                                  __________________                                  __________________                 Per Curiam.     This  appeal is from  a judgment of  the                 __________            district court affirming a final decision of the Secretary of            Health and  Human Services ("Secretary")  that appellant  did            not meet  the disability requirements of  the Social Security            Act.                 Appellant's application for disability  benefits alleged            an  inability to  work  beginning  May  16,  1988  due  to  a            combination  of  chest  pain  and  mental  disability.    Her            application was initially denied, appealed and  denied again.            A de novo hearing was held before an Administrative Law Judge              __ ____            ["ALJ"] on  July 10, 1990.   On July 30, 1990,  the ALJ found            that appellant had a residual functional capacity for certain            unskilled light work jobs  which exist in significant numbers            in the economy, and so was  not under a disability as defined            in  the Act.  The Appeals  Council denied appellant's request            for review.   On appeal to the  district court, the  case was            assigned to a magistrate-judge who found that the Secretary's            decision  was based  on substantial evidence  and recommended            affirmance.    The  district court  adopted  the magistrate's            report and recommendation, affirming the Secretary's decision            on May 11, 1992.  We affirm.      Appellant was  45 years old            at the time of the hearing.  She had completed the third year            of high school.  Her  immediate past relevant work experience            was  as  a welder/solderer  in  the  electronics industry,  a                                         -2-            position she had held for ten years prior to the onset of her            illness.                   Appellant was diagnosed as suffering from chest pain and            moderate to severe depression.  To qualify for benefits under            the  Act, appellant bore the burden of proving that by reason            of  one, or  a combination  of these  conditions, she  had an            "inability to engage in  any substantial gainful activity due            to ... impairment(s) which can be expected to result in death            or  last for a  continuous period of not  less than 12 months            ....  " 42 U.S.C.    423(d)(1)(A); 42 U.S.C.    416(i)(1); 20            C.F.R.     404.1505; Bowen  v.  Yuckert,  482  U.S. 137,  140                                 _____      _______            (1987); McDonald v. Secretary of HHS, 795 F.2d 1118 (1st Cir.                    ________    ________________            1986).                 The ALJ considered appellant's testimony,  the testimony            of  a  vocational  expert  ("VE"),  and  appellant's  medical            records.   Using the  five-step sequential evaluation  of the            evidence required  by 20  C.F.R.    404.1520,  404.1520a, the            ALJ found  that appellant's  impairments were severe  but did            not, alone or in combination, equal the severity level of any            listed  impairment.  20 C.F.R. Part 404, Subpart. P, Appendix            1.  Appellant's chest pain, however, was found to prevent her            from returning to her past relevant work.                   Appellant  does not  dispute  the above  findings.   She            takes issue,  however, with the  ALJ'S finding at  step five,            that  despite  her  combination  of  conditions,  she  has  a                                         -3-            residual  functional  capacity to  engage in  unskilled light            work jobs which allow for alternating physical positions. See                                                                      ___            20  C.F.R.   404.1545.  Appellant's objection is not based on            the  existence  or  numbers  of  such  jobs  in  the national            economy, only  the extent  to which  the evidence  supports a            finding that she  is capable  of performing such  work.   The            Secretary bore the burden of proof on this issue.  20  C.F.R.              404.1520(f)(1); Rosado v. Secretary  of HHS, 807 F.2d  292,                              ______    _________________            294 (1st Cir. 1986).                 Our  standard  of  review  is  whether  the  Secretary's            findings are supported  by "substantial evidence."   Although            the record may arguably support  more than one conclusion, we            must uphold  the Secretary, "if a  reasonable mind, reviewing            the evidence  in the record  as a  whole, could accept  it as            adequate  to support his conclusion."   Ortiz v. Secretary of                                                    _____    ____________            HHS,  955 F.2d 765, 769 (1st Cir. 1991) (quoting Rodriguez v.            ___                                              _________            Secretary of HHS,  647 F.2d  218, 222 (1st  Cir. 1981));  see            ________________                                          ___            also  Richardson  v.  Perales,  402  U.S.  389,  401  (1971).            ____  __________      _______            Resolutions  of  credibility  issues  and  conflicts  in  the            evidence are for the  Secretary, not the courts.   Ortiz, 955                                                               _____            F.2d at 769; Evangelista  v. Secretary of HHS, 826  F.2d 136,                         ___________     ________________            141  (1st  Cir.  1987).    Where  the  facts  permit  diverse            inferences,  we will  affirm  the Secretary  so  long as  the            inferences drawn  are supported  by the evidence.   Rodriguez                                                                _________            Pagan v.  Secretary of HHS,  819 F.2d  1, 3 (1st  Cir. 1987),            _____     ________________                                         -4-            cert. denied, 484 U.S.  1012 (1988); Lizotte v.  Secretary of            ____________                         _______     ____________            HHS, 654 F.2d 127, 128 (1st Cir. 1981).            ___                 There  was  ample  medical  evidence in  the  record  to            support the ALJ's  conclusion regarding appellant's  physical            capacities.  Appellant's chest pain was not attributed to any            major cardiac  impairment, hypertension or end  organ damage,            but  it  did  require  her  to  avoid  strenuous  activities.            Objective medical reports described  her pain as episodic and            controlled by  small doses  of medication.   After evaluating            appellant's  subjective complaints  of pain  in light  of the            factors set forth  in Avery v. Secretary of HHS,  797 F.2d 19                                  _____    ________________            (1st Cir.  1986), the ALJ  fairly concluded that  despite her            chest  condition,  appellant  is physically  capable  of  the            exertions required  by light and  sedentary work, so  long as            she is permitted to alternate positions occasionally.                    There  was also sufficient  evidence that  despite some            mental impairment attributable to major depression, appellant            retained the mental capacity to perform unskilled jobs in the            light  and sedentary  work categories.   The  medical records            showed that  appellant has been treated  with medications, on            an out-patient basis, at the Coamo Mental Health Center since            November,  1988.   Reports  from  Dr.  Vivian R.  Bonilla,  a            psychiatrist  who saw appellant  on two  occasions, described            her as  alert, oriented, coherent,  spontaneous, logical  and            goal  directed in  her responses.   Both  Dr. Bonilla,  and a                                         -5-            consulting psychiatrist, Dr. Hector Luis  Rodriguez, found no            significant limitations  on  appellant's memory,  ability  to            understand and  carry out short and  simple instructions, ask            simple   questions,  set   realistic   goals,   and   respond            appropriately to changes  in the work setting.   In addition,            two state agency physicians, on review of appellant's medical            records,   concluded  that   she  could   carry  out   simple            instructions,   maintain  a   normal  workweek,   respond  to            supervisors and co-workers and interact with the public.                      The VE  opined, in answer to  a hypothetical summarizing            the  above evidence, that  appellant could not  return to her            prior  job  of  welder  because  the  job's  high  production            requirements did not permit  appellant to alternate positions            with  the frequency  required.   However,  the VE  identified            several   unskilled   light  work   jobs  which   allow  this            flexibility, and  which  can  be performed  by  a  person  of            appellant's age, education and work experience suffering from            moderate mental limitations.  The VE's answer assumed limited            abilities  to understand, remember, concentrate, interact and            work  near others, accept instruction, be punctual, etc.  The            jobs he  identified included hand classifier,  garment folder            and hand trimmer.                 Appellant contends that the ALJ  erred in relying on the            VE's testimony described above.  Instead, appellant says, the            ALJ should have based  his decision on the VE's  later answer                                         -6-            to a hypothetical posed by appellant's attorney.  Appellant's            hypothetical asked the VE whether appellant could perform the            identified jobs if the VE "gave credibility to the content of            Exhibit 21 and  the residuals accompanying  it."  Exhibit  21            appears to have been a copy of Dr. Bonilla's "Mental Residual            Functional Capacity Assessment."  The VE's answer was  in the            negative.                  Appellant argues that the ALJ was required to accept the            VE's response to the latter question as "controlling" because            it  was based  on  the opinion  of  a doctor  described  as a            "treating"  psychiatrist.    This  argument  is  an  apparent            reference to  a recently promulgated regulation,  20 C.F.R.              404.1527  (1991), which  describes  the manner  in which  the            Secretary weighs  medical evidence  of disability.   One part            provides:                 Generally we give more weight to opinions from your                 treating sources ....   If we find  that a treating                 source's opinion on the  issue(s) of the nature and                 severity of  your impairments is well  supported by                 medically   acceptable   clinical  and   laboratory                 diagnostic techniques and is not  inconsistent with                 other substantial  evidence in your case record, we                 will give  it controlling weight.   When we  do not                 give ...  controlling weight, we will  apply [other                 factors] in  determining [its] weight ...   We will                 always give  good reasons  in our ...  decision for                 the weight we give your treating source's opinion.            20 C.F.R.   404.1527(d)(2).                 The  regulation  is  thus   neither  as  delimiting  nor            inflexible  as appellant's  argument suggests.   It  does not            mandate assignment  of some unvarying weight  to every report                                         -7-            in every case.  The ALJ is not required automatically to give                                       ___            controlling   weight  to  any   "treating"  doctor's  report,                                      ___            denominated as such.  In  some cases "controlling weight" may            be assigned if the report meets the specified qualifications,                        __            and is not inconsistent with  other substantial evidence.  In            other  cases, the  weight  of a  treating source's  report is            further evaluated  in light  of the many  factors articulated            throughout  the remainder  of  the rule.    See 20  C.F.R.                                                           ___            404.1527(d)(1)-(6).    And  in  any  event, the  "controlling            weight" language  is relevant only to  those medical opinions            which the regulations elsewhere  define as originating from a            "treating"  source.   That  term, too,  is  not static.    As            defined in 20  C.F.R.    404.1502, and further  refined in               404.1527(d)(2)(i)(ii),   it   refers   to   a   physician  or            psychologist  with  whom   the  applicant  has  an   "ongoing            treatment relationship," as determined by the type, frequency            and  quality  of  doctor-patient  contact  in  light  of  its            consistency with accepted medical practice for the particular            condition.  In all  cases, the responsibility for determining            whether the  statutory definition of disability  has been met            is reserved to the Secretary.  20 C.F.R.   404.1527(e).                  We  need not  reach the  Secretary's argument  that Dr.            Bonilla  is  not  properly  defined as  a  "treating"  doctor            because  we think  that appellant  exaggerates the  record in            reaching an issue under this regulation.   We do not read the                                         -8-            ALJ's  decision as  rejecting Dr.  Bonilla's opinion,  nor as            according its  relevant portions  any less than  full weight.            Since Dr. Bonilla's opinion was,  for the most part, entirely            consistent with the other medical evidence, and was among the            opinions  cited  by the  ALJ  as  cumulatively informing  his            decision, there  was no occasion redundantly  to describe the            weight  assigned to  this part  of Dr.  Bonilla's  opinion as            "controlling," or otherwise.                  Moreover,  as   to  the  "Mental   Residual  Functional            Capacity  Assessment,"  it appears  to us  that what  the ALJ            rejected was not  Dr. Bonilla's conclusions,  but appellant's            interpretation of both the assessment  and the VE's answer to            appellant's hypothetical.   The  VE's response  was ambiguous            due  to the question posed.  The hypothetical did not specify            facts, but  simply asked  the  VE to  assume as  a basis  the            entire, multi-faceted,  three-page exhibit.   It is  thus not            clear how the expert understood the question, or which of its            multiple facts he  was relying upon in his  answer.  The VE's            answer  mentioned  the "physical  demands" of  a job,  a term            which does not even  appear in the exhibit.   And appellant's            follow-up   question,  which   included,  as   an  additional            predicate,   appellant's   subjective  complaints   of  pain,            headaches,  and  the  like,  did  not  help  to  clarify  any            objective basis for the first answer.                                         -9-                 The   ALJ  interpreted   Dr.  Bonilla's   assessment  as            reflecting  that  appellant  suffered  only  insignificant or            moderate degree limitations in the mental abilities  required            for the simple  tasks in the  unskilled job category.   It is            true  the  assessment  also recited  some  "markedly" limited            abilities,  including the  ability to  sustain attention  and            concentration for extended periods  and "to complete a normal            workday ... without interruptions from  psychologically based            symptoms."   But  the ALJ  determined that  these limitations            were  of   primary  relevance  to   skilled  or  semi-skilled            positions,  not  unskilled jobs  with  only light  production            demands.  This  conclusion was supported by  the VE's earlier            testimony  as  to the  mental  skills needed  in  the various            categories.                 As we read  the ALJ's  decision, then, it  was a  logical            matching of Dr. Bonilla's medical conclusions with the expert            evidence relating to the job market.   The ALJ did not reject            any of the doctor's  medical conclusions nor assign them  any            lesser weight.   His interpretation of  Dr. Bonilla's opinion            was  well  supported by  the  other  assessments and  medical            evidence in  the record, including Dr.  Bonilla's own written            report  of  her  examination  of  appellant.    And  we note,            parenthetically, that had the ALJ instead adopted appellant's            interpretation,   reading   Dr.   Bonilla's   assessment   as            inconsistent with the  other substantial medical  evidence in                                         -10-            the  record, the  regulation  cited would  not, as  appellant            argues,   have  required  the   assignment  of  "controlling"            weight.1                    For the reasons stated, the decision below is affirmed.                                                                _________                                                                                                                                                                       ____________________            1.  Although 20  C.F.R.   404.1527, was  promulgated in final            form  on August  1,  1991, while  this  case was  pending  on            appeal, the  Secretary has not objected  to the applicability            of the  regulation's approach in this case.   In light of our            conclusions and the  lack of  objection, we have  no need  to            consider any questions of retroactivity.                                          -11-
