
USCA1 Opinion

	




        December 14, 1995       [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                                            ____________________        No. 95-1646                                      DAVIS VELEZ,                                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, Stahl and Lynch,                                   Circuit Judges.                                   ______________                                 ____________________            Raymond Rivera Esteves on brief for appellant.            ______________________            Guillermo  Gil,  United  States  Attorney, Maria  Hortensia  Rios,            ______________                             ______________________        Assistant United  States Attorney,  and  Nancy B.  Salafia,  Assistant                                                 _________________        Regional  Counsel,  Social  Security  Administration,  on  brief   for        appellee.                                 ____________________                                 ____________________                 Per Curiam.  Davis  Velez appeals from a district  court                 __________            judgment affirming a decision of the  Secretary of Health and            Human   Services  denying  Velez's   application  for  social            security disability benefits.  We affirm.                 Velez applied for social security benefits on  September            10, 1992, alleging  that he  could not work  due to  "nerves,            back, and ankle pain."  After a hearing, an Adminstrative Law            Judge (ALJ) concluded  that Velez has a severe combination of            impairments with a history of herniated nucleus pulposus  and            depression and anxiety related disorders.  He also found that            Velez is unable  to perform his past work.   However, the ALJ            concluded that Velez has the residual functional capacity for            light work,  exclusive  of  jobs  requiring  him  to  perform            complex tasks or to have frequent contact with the public.            Finally,  the ALJ  ruled that,  based on  the testimony  of a            vocational expert (VE) and application of the Grid,  Velez is            not disabled because  there are light, unskilled jobs that he            can perform.                  Velez  does not  argue  on  appeal  that  he  lacks  the            physical capacity for  light work.   Instead, he argues  that            the ALJ  erred  in  his  findings  regarding  Velez's  mental            capacity.    We  review  the  Secretary's  decision  under  a            "substantial evidence" standard; we will affirm that decision            if  it  is  supported  by   "`such  relevant  evidence  as  a            reasonable  mind  might  accept  as  adequate  to  support  a            conclusion.'"    Richardson v.  Perales,  402  U.S. 389,  401                             __________     _______            (1971)  (quoting Consolidated  Edison Co.  v. NLRB,  305 U.S.                             ________________________     ____            197, 229  (1938)); see also  Rodriguez Pagan v.  Secretary of                               ________  _______________     ____________            Health &  Human Servs., 819  F.2d 1, 3  (1st Cir.  1987) (per            ______________________            curiam), cert. denied, 484 U.S. 1012 (1988).                       ____________                 The medical  record reveals that  Velez was seen  at the            Mental Health Center in  Arecibo on July 28, 1992.   Although            Velez appeared  anxious and  somewhat depressed, he  was also            cooperative,  logical, and  coherent  with apparently  normal            intellect.   He  was diagnosed  as suffering  from adjustment            problems,   with   depressive   mood,   and   was  prescribed            medication.                 Between September  11, 1992 and January  22, 1993, Velez            was  seen on  six occasions  at the  State Insurance  Fund in            connection with  his mental condition.   On October  7, 1992,            Dr.  Lopez  Cumpiano evaluated  Velez  and  diagnosed him  as            suffering  from  anxiety  disorder  with  depressive  traits.            Although  Dr. Lopez  noted  that Velez  reported episodes  of            auditive and  visual hallucinations, he found  that Velez was            in   contact   with   reality   and   presented   no  thought            disturbances.   He  also  found  that  Velez  was  clear  and            oriented,  with  fair   memory,  unimpaired  judgment,   fair            insight, and  preserved intellectual ability.   The remaining            records  from   the  State   Insurance  Fund  are   not  very            informative, but Velez is consistently described as alert and            oriented.                   On  November 10, 1992, Velez was  examined by Dr. Mojica            Sandoz,  a consultant to the  Secretary.  Dr. Mojica observed                                         -3-            that  Velez  was markedly  anxious  and tense,  and  that his            movements were somewhat slow.  However, Dr. Mojica found that            Velez was accessible, cooperative, and frank, and that he did            not show any difficulty  in establishing adequate and lasting            interpersonal relationships.  He further found that Velez had            adequate capacity  to pay  attention and to  concentrate, was            oriented, functioned with an average intellectual makeup, and            had  adequate  judgment  and   memory.    The  diagnosis  was            moderate, generalized anxiety disorder.                   A  non-examining medical  consultant  to  the  Secretary            reviewed  much   of  this  evidence  and   completed  both  a            Psychiatric  Review Technique  form  and  a  Mental  Residual            Functional  Capacity Assessment.    Although  the  consultant            noted   some  moderate  limitations   on  various  capacities            required  for  unskilled   work,  he   reached  the   general            conclusion that  Velez is  capable of  functioning in a  non-            demanding   work   environment--with   simple   instructions,            routines, and  decisions--as long as Velez is not required to            have  frequent  contact  with  the general  public.1    These            latter limitations were reflected  in a hypothetical posed to            the VE, who, in  turn, identified specific jobs in  the local                                            ____________________            1.  A second  consultant, who apparently reviewed  all of the            evidence,  agreed  with  the  first  consultant's conclusions            without additional comment.                                         -4-            economy that Velez could  perform.2  Under the circumstances,            we  think that there  is substantial evidence  to support the            Secretary's  finding of no disability.  We add that since the            ALJ  adopted the  consultant's general  conclusions regarding            Velez's  mental  limitations,  any differences  in  the boxes            checked  on the Psychiatric Review Technique  form by the ALJ            and the consultant are of no consequence.                   Affirmed.                 _________                                            ____________________            2.  Velez suggests that the hypothetical posed to the  VE was            incomplete since  it  did not  include  all of  the  moderate            limitations noted by the consultant.  See Arocho v. Secretary                                                  ___ ______    _________            of  Health & Human Servs., 670  F.2d 374, 375 (1st Cir. 1982)            _________________________            (hypothetical    must     accurately    reflect    claimant's            limitations).    This  argument  was  not  presented  to  the            district  court, and we deem it waived.  See, e.g., Sandstrom                                                     ___  ____  _________            v. Chemlawn Corp., 904 F.2d  83, 87 (1st Cir. 1990).   In any               ______________            event, we  think  that the  consultant's  findings  regarding            these  moderate  limitations  were subsumed  in  his  general            conclusion,  and that  the hypothetical  accurately reflected            this conclusion.                                           -5-
