
USCA1 Opinion

	




          May 4, 1993           [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ___________________          No. 92-2297                                            ANGEL LOPEZ RODRIGUEZ,                                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. Gilberto Gierbolini, U.S. District Judge]                                              ___________________                                 ___________________                                        Before                                 Breyer, Chief Judge,                                         ___________                          Torruella and Cyr, Circuit Judges.                                             ______________                                 ___________________               Raymond Rivera Esteves and Juan A. Hernandez Rivera on brief               ______________________     ________________________          for appellant.               Daniel F.  Lopez Romo, United States  Attorney, Jose Vazquez               _____________________                           ____________          Garcia, Assistant  United States  Attorney, and Robert  J. Triba,          ______                                          ________________          Assistant  Regional Counsel, Department Health and Human Services          on brief for appellee.                                  __________________                                  __________________                      Per  Curiam.    Angel  Lopez Rodriguez  appeals the                      ___________            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,  filed  April  13,  1989,            alleged  an inability  to  work beginning  October 15,  1984.            Because   of   an  earlier   disposition   of   his  previous            applications,  the period of  alleged disability under review            here  begins October 1, 1987 and ends December 31, 1989, when            appellant's   insured   status   expired.1      The   current            application was denied, appealed, and  denied again.  After a            de novo  hearing, the Administrative Law  Judge ("ALJ") found            __ ____            that  appellant had  a residual  functional capacity  for the            full range of light and sedentary work, and so was  not under            a  disability as  defined in  the Act.   The  Appeals Council            denied  review.  An appeal  was taken to  the district court,            where  a  magistrate-judge  concluded  that  the  Secretary's            decision was supported by  substantial evidence.   Objections            to  the magistrate's  report  were rejected  by the  district            court  judge in a lengthy  opinion.  The  district court also                                            ____________________            1.  Appellant  filed two  previous applications  alleging the            same  onset date.   The  earlier applications were  denied on            September 30, 1987.   The denial was affirmed by  the Appeals            Council, and no further  appeal was taken.  There  appears to            be no  colorable  challenge  here  to the  finality  of  that            decision.  Califano v. Sanders, 430 U.S. 99 (1977); Dvareckas                       ________    _______                      _________            v. Secretary of HHS, 804 F.2d 770 (1st Cir. 1986).               ________________                                         -2-            adopted  the  magistrate's  findings  and   report  in  full,            affirming the Secretary's decision.   We, too, affirm.                      Appellant  claimed an  inability to  work due  to a            nervous condition, and heart and back problems accompanied by            severe pain.   Applying  the sequential analysis  required by            the   regulations,  the   ALJ  found   that  in   combination            appellant's conditions were  severe, but they did not meet or            equal any of the listed  impairments. 20 C.F.R.     404.1520,            404.1520a.  Appellant's  conditions, nevertheless, were found            to  prevent him from returning to his past relevant work as a            truck driver.                      Appellant does not dispute  the above findings.  He            takes issue, however,  with the ALJ's  finding at step  five,            that despite  his conditions, he has  the residual functional            capacity to engage in  the full range of unskilled  light and            sedentary jobs  available in  the economy.   Appellant argues            that  the ALJ  mistakenly  determined that  appellant had  no            objective medical  impairment  likely  to  cause  the  severe            degree of  pain alleged,  improperly weighed the  testimonial            evidence of pain, and erred in relying on 20 C.F.R. Part 404,            Supt.  P, App.  2, Tables  1, 2 (the  "grid"), rather  than a            vocational expert.                        Our  standard of review  is whether the Secretary's            findings are  supported by  "substantial evidence."   We will            affirm the  Secretary, "if  a reasonable mind,  reviewing the                                         -3-            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)).2             ________________                       We have no difficulty finding  substantial support            in  the record  for  the ALJ's  resolution  of the  purported            conflicts  in the medical evidence.   As to appellant's heart            condition, the record shows that  appellant began complaining            of chest pain of an unknown origin in March, 1988.  Diagnoses            included arthralgia, controlled  hypertension and chest  wall            syndrome.   Although an  initial  electrocardiogram showed  a            first degree atrioventricular block leading to a diagnosis of            angina, three later electrocardiograms and a stress test were            normal.     The  ALJ's  conclusion  that   appellant's  chest            condition  was  not ischemic  in  nature  was thus  logically            dictated by the medical findings and tests in the record.                        There  was  a  somewhat  starker  conflict  in  the            evidence relating to  appellant's back condition.   Appellant            was treated by a chiropractor between December, 1988 and May,            1989.   The  chiropractor  reported that  appellant showed  a            limited range of motion  and severe pain in the  cervical and            lumbar areas, muscle spasm, poor motor function in his  arms,                                            ____________________            2.  The ALJ's  and  magistrate's reports  well summarize  the            lengthy  record,  which  includes a  miscellany  of  physical            complaints and  medical reports.   We recap  here only  those            record parts necessary to our decision.                                         -4-            a fair ability to walk on heels and toes and  stiff gait, but            normal reflexes  and no atrophy.   The chiropractor diagnosed            an unstable lower back  and possible discogenic disease, with            a poor prognosis.                        By  contrast, a  consulting internist  who examined            appellant in June, 1989 reported observing normal joints with            no  swelling, tenderness  nor  decreased range  of motion,  a            normal  gait,  coordination  and  reflexes.   X-rays  of  the            cervical  spine were also  normal, reflecting  preserved disk            spaces.   Lumbar region  lateral flexion was  normal, forward            flexion was reported  to be a full 90 degrees,  but with some            pain.    The  internist  diagnosed  back  pain  secondary  to            paravertebral muscle spasm.                        The ALJ fully credited the internist's report.  He            declined  to  assign  controlling  weight   to  the  treating            chiropractor's  diagnoses because  they were  contradicted by            the  other  substantial  objective  medical  evidence  in the            record,   including  x-rays.    He  carefully  explained  his            conclusions  as  required by  the  regulations.  20 C.F.R.               404.1527(d)(2) (1991).    We have  no  doubt that  the  ALJ's            resolution  of these  conflicts  was  reasonable, within  his            competence, and  amply supported  by the record.   Rodriguez,                                                               _________            647 F.2d at 222.                           As  to  appellant's   nervous  condition,  the  ALJ            concluded that it placed no limitation on appellant's ability                                         -5-            to  work.   This conclusion  was also  well supported  by the            medical  evidence.    Appellant  had  been  referred  by  his            attorneys  to a mental health center in March, 1989, where he            was  diagnosed as  suffering  from a  mild anxiety  disorder.            After  small  doses  of Vistaril  were  prescribed, appellant            reportedly remained  stable and improved.   The diagnosis was            confirmed  by  later  evaluations   in  which  appellant  was            repeatedly   described  as  oriented,   alert,  coherent  and            relevant,  having   adequate  logic,  judgment   and  memory.            Although it  was noted  that appellant had  slight difficulty            maintaining    social    functioning,   concentration,    and            persistence of pace, two residual mental capacity assessments            concluded that  he retains  the abilities to  perform routine            work  tasks  and  to   cope  with  the  demands  of   a  work            environment.   These assessments are sufficient  to show that            appellant's mental  capacity to engage in  unskilled or semi-            skilled sedentary work remains intact.   See Ortiz, 955  F.2d                                                     ___ _____            at 769-70.                       In  sum,   the  record  amply  supports  the  ALJ's            determination that the credible  diagnoses failed to show any            objective medical  impairment reasonably associated  with the            severe  degree  of pain  and functional  limitations alleged.            Moreover,  there  were no  reports  of  any other  clinically            verifiable symptoms of severe pain.                                         -6-                      We also find  no error in  the ALJ's evaluation  of            appellant's subjective  complaints  of pain.   In  accordance            with the guidelines set  forth in Avery v. Secretary  of HHS,                                              _____    _________________            797  F.2d  19,  21  (1st  Cir.  1986),  the  ALJ   considered            appellant's testimony in light  of the other record evidence.            Appellant described his current  pain as radiating from under            the armpit  and back;  said that  his vertebral column  feels            crooked, and his arms  feel dead.  He also  described strong,            sharp  chest pain,  accompanied  by nausea  and shortness  of            breath,  at  times  so   severe  that  he  claimed   to  lose            consciousness.    And he  testified  to  feelings of  extreme            anxiety and palpitations, as well as difficulty sleeping.                         As   the   ALJ   noted,    appellant's   subjective            description  was  corroborated  by neither  medical  nor  lay            observations.   In three visits  to the District  Office, and            during  the residual  mental capacity  evaluations, appellant            showed  no signs  of  any impairment  consistent with  severe            pain.   The ALJ noted, as background, that shortly before the            current  disability period,  appellant himself  had described            his  daily activities  as  watching  television, reading  the            papers  and   the  Bible,  going  to   church  almost  daily,            occasionally visiting the sick, and driving about three times            a week.  At the instant hearing, appellant testified, for the            most  part,  to  more  limited  daily  activities,  but  also                                         -7-            mentioned  some  activities which  seemingly would  require a            high degree of exertion.3                      We  necessarily defer  to  the ALJ's  evaluation of            appellant's  credibility, especially where it is supported by            substantial evidence  and specific  findings.  Frustaglia  v.                                                           __________            Secretary of HHS, 829 F.2d 192, 195 (1st Cir. 1987).  The ALJ            ________________            credited appellant's  subjective complaints  of pain  only to            the extent consistent  with the medical evidence,  indicating            the  existence  of  mild  pain.    Although  the  appellant's            combination of conditions precluded his returning to his past            relevant work  as truck  driver, the ALJ  further found  that            appellant retained the  capacity to engage in  the full range            of light and sedentary work.                           Although  we have  not  located in  the record  any            residual  functional capacity  assessments, other  than those            associated  with appellant's mental  impairment, we think the            ALJ made a competent, commonsense judgment about  appellant's            exertional functional capacity based on the medical findings.            See Gordils v. Secretary of HHS, 921 F.2d 327 (1st Cir. 1990)            ___ _______    ________________            (although ALJ is ordinarily  not qualified to assess residual            functional capacity based  on bare medical record,  he may do            so as  long as he does  not overstep the boundaries  of a lay                                            ____________________            3.  Although appellant stated that he  spent much of his time            in  bed or in a hammock due  to weakness and pain, when asked            about his  personal relationships he mentioned  that not long            ago,  when his "blood pressure went up," he took a hammer and            broke a door.                                           -8-            person's  competence); Perez  v. Secretary  of HHS,  958 F.2d                                   _____     _________________            445,  446 (1st Cir. 1991)  (a finding that  claimant does not            suffer  from  any  impairment posing  significant  exertional            restrictions would obviate the need for medical assessment of            exertional residual functional capacity).                       In  Gordils,   we  upheld   a  lay   fact  finder's                          _______            conclusion that a diagnosis of "weaker back" did not preclude            sedentary work.   There we said we might be troubled by a lay            fact finder's opinion that a claimant was capable of the more            physically demanding efforts required by light work.  In this            case, however, we need not pause to consider the ALJ's "light            work"   conclusion,  because   his  alternate   finding  that            appellant was  "not disabled" from performing  the full range            of sedentary work  was, on  the basis of  the medical  record            before us, well within the ALJ's competence.                      Accordingly, we also  reject appellant's  challenge            to the use  of the grid instead  of reliance on a  vocational            expert.  Rodriguez-Pagan v.  Secretary of HHS, 819 F.2d  1, 3                     _______________     ________________            (1st Cir. 1987), cert. denied, 484 U.S. 1012 (1988).  The ALJ                             ____________            consulted the  grid only  after determining  that appellant's            alleged  non-exertional  impairments  did  not  significantly            affect his ability to engage in the full range of work in the            sedentary jobs   category.   Considering appellant's  age (46            years old),  education (7th grade level)  and work experience            (semi-skilled,  non-transferrable  skills), the  ALJ properly                                         -9-            reached  the alternate  conclusion  that the  grid directs  a            finding of "not  disabled".   20 C.F.R. Part  404, Subpt.  P,            App. 2, Table 1, Rule 201.19.  There thus was no prejudice in            the ALJ's  failure to  ask  the vocational  expert about  how            plaintiff's  non-exertional  impairments  might   affect  his            ability to perform light or sedentary work.                      For  the  reasons  stated,   the  judgment  of  the            district court is affirmed.                              ________                                         -10-
