
USCA1 Opinion

	




      [NOT FOR PUBLICATION--NOT TO BE CITED AS PRECEDENT]                 United States Court of Appeals                     For the First CircuitNo. 98-1548                          LINDA KEATING,                      Plaintiff, Appellant,                                v.                        SHIRLEY S. CHATER,                       Defendant, Appellee.           APPEAL FROM THE UNITED STATES DISTRICT COURT                FOR THE DISTRICT OF MASSACHUSETTS           [Hon. Robert E. Keeton, U.S. District Judge]                              Before                     Selya, Stahl and Lynch,                        Circuit Judges.                                                                     Francis X. Quinn, Jr., Benjamin T. King and Boynton, Waldron,Doleac, Woodman & Scott, P.A. on brief for appellant.     Donald K. Stern, United States Attorney and Christopher M.Tauro, Assistant U.S. Attorney on brief for appellee.December 14, 1998                                                                            Per Curiam.  Claimant Linda J. Keating appeals from    the judgment of the district court which affirmed the decision    of the Commissioner of Social Security that she was not    entitled to Social Security disability benefits.  On appeal,    claimant argues that the determination of the administrative    law judge (ALJ) that her impairments did not prevent her from    performing the full range of sedentary work was not supported    by substantial evidence.  However, in support of this    contention, claimant raises on appeal arguments that were not    presented, in the first instance, to the district court.     "Ordinarily, an appellant who has not proffered a particular    claim or defense in the district court may not unveil it in the    court of appeals."  National Ass'n of Social Workers v.    Harwood, 69 F.3d 622, 627 (1st Cir. 1995) (internal quotation    marks and citation omitted).  We nonetheless briefly address,    and reject, these new arguments.              1.  Claimant's argument that her alleged inability to    work full-time precludes a finding that she retained the    capacity for the full range of sedentary work is based on the    report of the physical therapist.  However, contrary to    claimant's assertion, this report is not uncontradicted.  In    particular, Dr. Marini did not limit claimant to part-time work    when he opined that she was a candidate for retraining for a    sedentary job and the RFC assessment completed by the    consulting physician assumed that claimant could work full-    time.   These reports provide substantial evidence to support                                  -2-    the ALJ's use of the grid based on her decision that claimant    had the ability to perform a wide range of sedentary work.  SeeRodriguez Pagan v. Secretary of Health and Human Services, 819    F.2d 1, 2-3 (1st Cir. 1987) (per curiam) (holding that the    Secretary did not act unreasonably in crediting the RFC    assessment of a consulting physician which established that    claimant could perform sedentary work, rather than the    conflicting reports of two of claimant's treating physicians;    also affirming the Secretary's use of the grid).              2.  Claimant next contends that the uncontradicted    evidence in the record shows that the limitations on the use of    her right hand prevent her from being able to perform the full    range of sedentary work.  This argument fails for the simple    reason that the record, in fact, contains conflicting evidence    regarding the problems with claimant's right hand.  See Irlanda    Ortiz v. Secretary of Health and Human Services, 955 F.2d 765,    769 (1st Cir. 1991) (per curiam) (conflicts in the evidence are    for the Commissioner, not the courts).              Significantly, the EMG conducted in March 1992    revealed no evidence of carpal tunnel syndrome or neuropathy in    claimant's hands.  Further, in his discharge summary, Dr.    Marini, claimant's treating chiropractor, did not note any    problems with claimant's right hand when he opined that    claimant could perform sedentary work.  Similarly, Dr. Krutt,    in September 1993, stated that claimant had no objective    findings which would prevent her from engaging in normal    activities and Dr. McCann's December 1992 physical examination    did not reveal any pathological reflexes, weakness or sensory    disturbances.  Finally, although the physical therapist    determined that claimant had limited use of her right hand, she    concluded only that this limitation prevented claimant from    performing her past work as a chef; the physical therapist did    not state that the limitation prevented claimant from doing any    other kinds of work.              3.  Claimant again relies on the report of the    physical therapist for the argument that there is    uncontradicted evidence in the record that she needs to    alternate positions frequently.  However, as with the    contention regarding the limitations in the use of her right    hand, claimant ignores the rest of the record.  Specifically,    the residual functional capacity assessment of the consulting    physician did not state that claimant is limited by any need to    alternate positions; rather, this physician opined that    claimant could sit and stand for up to six hours each in an    eight-hour day.  This assessment, then, provides conflicting    evidence on which the ALJ was entitled to rely.  See Rodriguez    Pagan, supra, 819 F.2d at 2-3.              Based on the foregoing, the ALJ's reliance on the    grid was appropriate and a vocational expert was not required    to testify regarding what jobs claimant could perform despite    her impairments.  See Ortiz v. Secretary of Health and Human    Services, 890 F.2d 520, 524-25 (1st Cir. 1989) (per curiam).                The judgment of the district court is therefore    affirmed. 
