
USCA1 Opinion

	




                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 96-1283                                 ANGEL M. DIAZ-ZAYAS,                                Plaintiff, Appellant,                                          v.                   COMMISSIONER OF SOCIAL SECURITY ADMINISTRATION,                                 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 Boudin,                                   Circuit Judges.                                   ______________                                 ____________________            Paul Ramos Morales on brief for appellant.            __________________            Guillermo  Gil, United  States  Attorney, Charles  E. Fitzwilliam,            ______________                            _______________________        Assistant  United  States  Attorney,  and  Donna  McCarthy,  Assistant                                                   _______________        Regional   Counsel,  Social  Security  Administration,  on  brief  for        appellee.                                 ____________________                                   December 3, 1996                                 ____________________                      Per Curiam.  Claimant-appellant Angel M. Diaz-Zayas                      __________            appeals  from a decision of  the district court affirming the            decision  of  the  Secretary  of Health  and  Human  Services            denying him social security disability benefits.  We affirm.                      Appellant applied for disability insurance benefits            alleging  disability since November 15, 1979 due to nerves, a            heart  condition,  and  sinusitis.     After  a  hearing,  an            Administrative Law  Judge (ALJ)  concluded that prior  to the            expiration of his coverage--on March 31,  1983--appellant had            preventricular  contractions,  sinusal  tachycardia,  chronic            anxiety disorder, and  Ativan dependence.   These conditions,            the ALJ found, were severe  but not equal to a listing.   The            ALJ  also  found  that   appellant  possibly  had  occasional            discomfort associated  to these  conditions, but that  he did            not  have  disabling  physical   or  mental  distress  for  a            continuous period of twelve months.  Based on these findings,            and a finding  that appellant could  perform light work,  the            ALJ concluded  that appellant was  not disabled prior  to the            expiration of  his coverage  because he could  have performed            his former jobs as a machine operator or production helper.                      Appellant  does not  argue  that the  ALJ erred  in            finding that he has the capacity for light work.  Instead, he            argues  that   the  ALJ  erred  in   his  findings  regarding            appellant's  mental condition.    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 Manso-Pizarro  v. Secretary  of                                _________ _____________     _____________            Health & Human Servs., 76 F.3d 15, 16 (1st Cir. 1996).              _____________________                      Contrary to appellant's suggestion, the ALJ was not            required to  accept  the opinion  of Dr.  Garcia Saliva  that            appellant's  mental  condition  disabled  him  from  working.            Assuming solely for the sake of argument that Dr. Garcia, who            saw appellant  on only  one occasion, could  be considered  a            treating  physician,  we  note  that  there  was  conflicting            evidence  from other  treating sources  regarding appellant's            ability  to  work.   Indeed,  appellant's  therapists at  the            Mental  Health  Center  encouraged  him,  on  more  than  one            occasion, to look for a job.  In any event, the determination            of disability is reserved to the Secretary.   See 20 C.F.R.                                                            ___            404.1527(e).    We think  the  ALJ  adequately explained  his            reasons for finding that appellant's mental condition did not            preclude him  from  performing his  past  jobs as  a  machine            operator or production assistant.1                                             1                                            ____________________               1We add that it  is not obvious that Dr.  Garcia's opinion               1            is inconsistent  with this finding.   Dr. Garcia  opined that            appellant  was  disabled  from performing  his  "usual work."            Read in context, "usual work" appears to refer to appellant's            past job as  a service  station attendant (the  only job  Dr.            Garcia mentions).   Dr.  Garcia did not  specifically address            whether appellant was able  to work as a machine  operator or                                         -3-                      Similarly, the  ALJ was not required  to accept the            diagnoses of schizophrenia made by Dr. Carlos J. Nogueras and            Dr. Luis Lozada Rivera, or the more specific findings made by            Dr.  Lozada regarding  appellant's mental impairment.   These            diagnoses and findings were  made in 1992, approximately nine            years  after appellant's  insurance  coverage  expired.   Cf.                                                                      ___            Deblois v. Secretary of  Health & Human Servs., 686  F.2d 76,            _______    ___________________________________            79  (1st Cir. 1982) (observing that a claimant has the burden            of establishing that his mental impairment was of a disabling            level of severity prior  to the expiration of  his coverage).            There  is ample evidence in the record from both treating and            non-treating  sources  to  support  the  ALJ's  finding  that            appellant  suffered from  an  anxiety  disorder--rather  than            schizophrenia--during the  critical  period.   Moreover,  the            only mental residual  functional capacity assessments in  the            record  which focus on the  critical period support the ALJ's            finding of no disability.                      Affirmed.                      ________                                            ____________________            production helper.                                           -4-
