
USCA1 Opinion

	




          December 29, 1992     [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ___________________          No. 92-1610                                     JOHN DEVLIN,                                Plaintiff, Appellant,                                          v.                       SECRETARY OF HEALTH AND HUMAN SERVICES,                                 Defendant, Appellee.                                  __________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                     [Hon. Joseph L. Tauro, U.S. District Judge]                                            ___________________                                 ___________________                                        Before                                 Breyer, Chief Judge,                                         ___________                         Torruella and Selya, Circuit Judges.                                              ______________                                 ___________________               Richard L.  Neumeier, Paul  M. Moretti and  Parker, Coulter,               ____________________  ________________      ________________          Daley & White on brief for appellant.          _____________               A.  John  Pappalardo,  United  States  Attorney,  George  B.               ____________________                              __________          Henderson, II,  Assistant United  States Attorney, and  Thomas D.          _____________                                           _________          Ramsey,  Assistant  Regional  Counsel,  Region  I, 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   insurance            benefits and Supplemental  Security Income benefits,  alleged            an inability to work  beginning on April 17, 1987, the day he            met  the special statutory  earnings requirement  for insured            status.  His application  was initially denied, appealed, and            denied  again.    A  de  novo  hearing  was  held  before  an                                 __  ____            Administrative Law  Judge ("ALJ") on  December 5, 1988.   The            ALJ found  that appellant had a  residual functional capacity            for sedentary  work activities,  including his  past relevant            work, and so  was not under  a disability as  defined in  the            Act.   Appellant's  request  for review  was  denied  by  the            Appeals  Council.    The  district  court  upheld  the  ALJ's            decision, finding  it was  based on substantial  evidence. We            affirm.                   Appellant was 45 years of age at the time of the de novo                                                                  __ ____            hearing.    He   had  a  ninth  grade   education  with  some            specialized vocational training in electronics.   As relevant            here, his  employment history  included work  as a  tester of            personal computer boards.                                           -2-                 Appellant  was  diagnosed  as  suffering  from  a  heart            condition,  high blood pressure,  respiratory impairment, and            peripheral vascular occlusive disease with neuropathy of  the            left leg and  foot.   His heart condition  required a  triple            bypass  operation in  1985.   A second  bypass operation  was            considered, but not recommended because of the risks.                  These  are  indeed  severe impairments,  as  the  record            shows, and the ALJ  found.  But to qualify for benefits under            the Act, appellant had  the burden of proving that  by reason            of one or more of them, he had an "inability to engage in any            substantial gainful  activity ... for a  continuous period of            not less than 12 months ....  "  42 U.S.C.   423(d)(1)(A); 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).                     Appellant  carries this burden  of proof throughout the            first four steps of the sequential evaluation of the evidence            required by the regulations.  20 C.F.R.   1520; Goodermote v.                                                            __________            Secretary of  HHS,  690  F.2d  5,  7 (1st  Cir.  1982).    He            _________________            challenges here the ALJ's determination at step four -- that,            in light of appellant's  residual functional capacity and the            demands  of his  past  relevant work,  appellant could  still            engage in  sedentary work he had done in the past as a tester            of  personal   computer  boards.     20  C.F.R.      1520(f).            Appellant's  burden  at this  step  of  the process  included                                         -3-            proving that  his impairment prevented him  from returning to            this type  of work  generally, not solely  to the  particular            job.  See Dudley v. Secretary  of HHS, 816 F.2d 792, 794 (1st                  ___ ______    _________________            Cir.  1987); Gray  v. Heckler,  760 F.2d  369, 372  (1st Cir.                         ____     _______            1985).                  Appellant's  primary argument  here  is  that the  ALJ's            decision was not supported  by the evidence.  He  also argues            that the ALJ failed to consider the effect of the combination            of impairments  on  appellant's residual  capacity,  did  not            properly  develop evidence  relating to  the side  effects of            appellant's medications,  and did  not  properly conduct  the            hearing.  We deal with these arguments in turn.                    Under Section 205(g) of the Act, 42 U.S.C.   405(g), our            standard of  review is whether the  Secretary's determination            is supported by "substantial  evidence."  Although the record            may  support more  than one  conclusion, we  will  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).    The  resolution of            _______            conflicts  in the  evidence  is for  the  Secretary, not  the            courts.   Ortiz, 955  F.2d at  769.  Where  the facts  permit                      _____            diverse  inferences, we will affirm  the Secretary so long as                                         -4-            the inferences drawn are  supported by the evidence,  even if            we  might have  reached  a different  conclusion.   Rodriguez                                                                _________            Pagan v.  Secretary of HHS,  819 F.2d  1, 3 (1st  Cir. 1987),            _____     ________________            cert. denied,  484 U.S. 1012 (1988); Lizotte  v. Secretary of            ____________                         _______     ____________            HHS, 654 F.2d 127, 128 (1st Cir. 1981).                ___                 This is a close case because of the conceded severity of            appellant's   multiple   conditions   and   the   conflicting            inferences that might be drawn  from the evidence.   However,            we see no basis for questioning the ALJ's resolution of these            conflicts.                       In  determining  that  appellant  retained   a  residual            functional  capacity  for  sedentary  work,  the  ALJ  placed            primary reliance on evidence appellant himself produced.  The            ALJ rejected  the agency doctors' conclusions  that appellant            could  perform the  more strenuous  activities in  the "light            work"  category.  Appellant's  combination of conditions, the            ALJ  said,  precluded  him  from  performing  tasks  in  that            category  because of  its requirements of  extensive standing            and walking.                 Nevertheless, appellant's own treating doctors' reports,            combined with other record evidence, supported a finding that            appellant  retained sufficient  residual capacity  to perform            the full range of sedentary work activities.  While appellant            correctly points out that in Gordils v. Secretary of HHS, 921                                         _______    ________________            F.2d 327, 329 (1st  Cir. 1990), we reaffirmed that,  "the ALJ                                         -5-            is not qualified to assess residual functional capacity based            on a bare medical record," this is not such a case.                   The ALJ had  here, in addition to  an extensive medical            record and  the agency  doctors' assessments and  analyses of            the record,1  a functional capacity assessment by appellant's            treating physician, plainly stated in lay person's terms.                  On  January  13,  1988,   Dr.  Sapienza,  who  had  been            appellant's  treating  physician  for  more  than  a  decade,            stated:                 [Appellant]  is  unable to  perform  work functions                 that will bring him  much of a remunerative reward.                 Certainly he can sit  for extended periods of time,                 but then has  to get up and  stretch his legs.   He                 can stand for extended periods  of time but he does                 have to  get off his feet and rest.  He can lift up                 to ten pounds  without any problem.   He can  think                 and write.              As the ALJ observed, sedentary work  typically allows for the            very conditions Dr. Sapienza  here describes -- an alteration            between  sitting and  standing,  at least  to  the extent  of                                            ____________________            1.  We read the ALJ's rejection of the agency doctors' "light            work"  conclusion as  a disagreement  with the  implied legal            conclusion,  not as  a  rejection of  the doctors'  firsthand            observations  of  appellant,  and  analyses  of  the  medical            records. Like  the treating doctors, the  agency doctors said            that  appellant  could  not engage  in  repetitive  climbing,            balancing,  stooping, kneeling,  crouching  and crawling.                And, contrary to the suggestion in appellant's brief, we know            of no  rule that  invariably requires assignment  of "little"            weight  to  reports by  non-treating  physicians.   Both  the            absolute and  relative evidentiary weight of doctors' reports            must  necessarily vary  with the  facts of  each case.   See,                                                                     ____            e.g.,  Gray, 760 F.2d at 372-73; Sitar v. Schweiker, 671 F.2d            ____   ____                      _____    _________            19,  22 (1st Cir. 1982);  Rodriguez v. Secretary  of HHS, 647                                      _________    _________________            F.2d 218, 223-24 (1st Cir. 1981).                                           -6-            allowing the claimant to  get up and stretch.2   This report,            together   with  the   ALJ's  "commonsense   judgments  about            functional  capacity  based  on  medical  findings,"  and the            corroborating inferences he  found in appellant's  testimony,            are clearly enough for substantial evidence. See Gordils, 921                                                         ___ _______            F.2d at 329.                  Although the ALJ's interpretation  of the record was not            the  only one possible,  it was certainly  a reasonable one.3            At the  hearing, appellant's  counsel offered a  report dated            December, 1988, from  Dr. Moschitto,  who had  taken over  as            appellant's treating  physician earlier in the  year when Dr.            Sapienza retired.                 Dr. Moschitto's report concluded:                                            ____________________            2.  Sedentary work is defined in 20 C.F.R.   404.1567(a), as:                 [W]ork involv[ing]  lifting no more than  10 pounds                 at  a  time and  occasionally  lifting or  carrying                 articles  like  docket  files,  ledgers,  and small                 tools.  Although  a sedentary job is defined as one                 which involves sitting, a certain amount of walking                 and standing is often necessary in carrying out job                 duties.  Jobs are sedentary if walking and standing                 are  required  occasionally  and   other  sedentary                 criteria are met.            3.  We note that the arguments in appellant's brief are based            on a different interpretation  of the record, relying heavily            on appellant's hearing testimony.  Appellant estimated a more            limited tolerance for sitting and standing -- saying that due            to leg pain, he estimated he could only stand for 15  minutes            at a time and sit for 30 minutes at a time.  However, the ALJ            is not  required to accept appellant's own estimates over the            doctors' reports.   Frustaglia v. Secretary of  HHS, 829 F.2d                                __________    _________________            192, 195 (1st  Cir. 1987). On  appeal, the ALJ's  credibility            determinations and resolutions of  conflicts in evidence, are            entitled to deference, especially when supported by  specific            findings.  Id.                       ___                                         -7-                 [Appellant's]  coronary   and  peripheral  vascular                 disease are clearly a severe degree such that he is                 totally  disabled.  I am not aware of any unskilled                 job  in  the present  labor  market  that does  not                 involve  mental  stress,   prolonged  standing   or                 ambulation to a degree that he is  capable of doing                 safely.                 Partly because  of the competing inferences  to be drawn            from this report, the  ALJ decided, sua sponte, to  hold open                                                ___ ______            the record for 15 days after the hearing to give appellant an            opportunity to  supplement the  evidence.  The  ALJ carefully            explained that despite a surface conflict with Dr. Sapienza's            assessment,  Dr. Moschitto's conclusion of "total" disability            is ambiguous.  It appears to be  based as much or more on Dr.            Moschitto's  belief about  the  configuration  of  the  labor            market,  in  which  he  was not  a  known  expert,  as on  an            assessment of appellant's functional  capacity.  Further, Dr.            Moschitto's  statement  that appellant  could  not  engage in            "prolonged"   standing  or  ambulation,  is  not  necessarily            inconsistent   with  a   residual  functional   capacity  for            sedentary work.                   Despite  the  opportunity  to do  so,  the supplementary            materials and  memorandum which  appellant then  produced did            not explain the ambiguity  in Dr. Moschitto's report, address            the  inconsistency between the treating doctors' conclusions,            nor undermine the plain import of Dr. Sapienza's opinion.                   In  light  of  appellant's  failure  to  produce   proof            directly supporting  a contrary  interpretation,  we have  no                                         -8-            difficulty   concluding  that   the  ALJ   did  not   err  in            determining,  on  the  basis  of  substantial evidence,  that            appellant had  a residual functional  capacity for  sedentary            work. See Rodriguez Pagan, 819 F.2d at 3.                     ___ _______________                 There   was   also   substantial   evidence,   based  on            appellant's  own written  description  of his  past work,  to            support  the  determination  that appellant  was  capable  of            returning,  specifically,  to his  past  relevant  work as  a            computer board tester.  The  ALJ was entitled to rely on  the            claimant's  own job  description.   Santiago v.  Secretary of                                                ________     ____________            HHS, 944 F.2d  1, 5 (1st Cir.  1991).  To the  extent that it            ___            diverged from  the description claimant gave  at the hearing,            we defer to the ALJ, who is in the better position to resolve            such conflicts. Ortiz, 955 F.2d at 765.                            _____                 Appellant's  remaining  assignments   of  error  do  not            withstand a  reading  of  the record.    First,  contrary  to            appellant's  characterization, it  is  clear from  the  ALJ's            lengthy  analysis  of the  evidence  that  he considered  the            effect  of  the  "combination" of  appellant's  conditions on            appellant's ability to work.  See McDonald, 795 F.2d at 1126.                                          ___ ________            Moreover both the treating and examining doctors' assessments            were based on  the effect of  the combination of  conditions.            The ALJ's  analysis reasonably reflected the  evidence in the            record by  placing greatest emphasis on  appellant's two most            severe conditions, the  heart and vascular problems.  The ALJ                                         -9-            did  not,  by   any  stretch   however,  ignore   appellant's            respiratory, back, and other  conditions.  Nor do we  see any            support for  appellant's complaints that the  ALJ misread the            medical record, or unfairly selected sections of the reports,            while  ignoring  the  record's  overall spirit.    The  ALJ's            resolution  of  the conflicts  in  the  medical evidence  was            supported by substantial evidence.  Rodriguez Pagan, 819 F.2d                                                _______________            at 3.                 Second,  the  ALJ  did not  err  by  failing  to develop            evidence   relating  to   any   disabling  side   effects  of            appellant's medicines.  See Figueroa v. Secretary of HEW, 585                                    ___ ________    ________________            F.2d  551, 554  (1st Cir.  1978).   The ALJ's  opinion fairly            summarized all  the evidence in the  record about appellant's            medications,   which  consisted  primarily   of  listings  of            prescriptions,   and    appellant's   abbreviated,   somewhat            inconsistent,  testimony about side  effects.   But appellant            offered  no  testimony  linking  these  side  effects  to  an            inability  to  engage in  sedentary  work  activities.   And,            despite  the  ALJ's  express  invitation  to  supplement  the            record, no evidence regarding such a link was offered.  Since            appellant bore the burden  of producing threshold evidence on            this issue, he cannot now complain.  Santiago, 944 F.2d at 6.                                                 ________            We also  reject appellant's related argument,  raised for the            first  time  on  appeal,  that  the  presence  of  this  non-                                         -10-            exertional factor required use of a vocational expert, rather            than the grid.                 Finally, appellant faults the ALJ for the brevity of the            hearing (30 minutes).  He sees unfairness, too, in the 8-page            length of the ALJ's  report, as compared with some  280 pages            of  medical and  vocational  evidence.   These arguments  are            specious  both in  their reliance  on an  imaginary numerical            norm,  as well  as the  aspersions they  cast upon  the ALJ's            attentiveness.  The record  clearly shows that the ALJ  did a            thorough  and  competent job  in a  difficult  case.   He was            familiar  with  the  record  at  the  time  of  the  hearing,            developed  the testimony  and  elicited further  proof in  an            organized  and professional  manner.  Not  only was  there no            objection  below to  the ALJ's  conduct of  the hearing,  but            appellant's  counsel expressly  declined  the opportunity  to            control  and lengthen  the presentation  of his  case, asking            only a few follow-up questions.                 Appellant bore the burden  of proof below.  He  has been            represented by counsel, albeit different ones, at every stage            of the proceedings.  Although social security proceedings are            not  strictly   adversarial,  and   the  Secretary   bears  a            responsibility   for  adequate  development  of  the  record,            Evangelista  v. Secretary of HHS, 826 F.2d 136, 142 (1st Cir.            ___________     ________________            1987), we think the ALJ here did  all that could be done.  He            did not  sit  back,  but attempted  to  assist  appellant  to                                         -11-            develop  the  record,  pointed  out the  deficiencies  as  he            perceived them, and held  the record open for supplementation            supportive of appellant's  view of the case.  No  more can be            required.                 Accordingly, the judgment below is affirmed.                                                       _________                                                                                                                         -12-
