
USCA1 Opinion

	




          May 9, 1995                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 94-2152                               VIRGINIA SANTOS-MARTINEZ,                                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. Hector M. Laffitte, U.S. District Judge]                                              ___________________                                 ____________________                                        Before                                Torruella, Chief Judge,                                           ___________                            Cyr and Stahl, Circuit Judges.                                           ______________                                 ____________________            Juan A. Hernandez Rivera and Raymond  Rivera Esteves on brief  for            ________________________     _______________________        appellant.            Guillermo  Gil,  United  States  Attorney,  Maria Hortensia  Rios,            ______________                              _____________________        Assistant  United  States Attorney,  and  Robert  J. Triba,  Assistant                                                  ________________        Regional Counsel, Department  of Health and  Human Services, on  brief        for appellee.                                 ____________________                                 ____________________                      Per  Curiam.    Claimant  Virginia  Santos-Martinez                      ___________            appeals from a district court judgment affirming the decision            of  the  Secretary   of  Health  and   Human  Services   (the            "Secretary") denying her claim for social security disability            benefits.  Having  carefully reviewed the  record, we  affirm            the judgment  of the  district  court substantially  for  the            reasons  stated   in  the   magistrate  judge's  Report   and            Recommendation dated March 11, 1993, which was adopted by the            district court.                      Claimant makes essentially two arguments on appeal.            First,   she  argues  that   the  Secretary's   finding  that            claimant's disability  does not preclude  her from performing            her  past relevant work as a receptionist is not supported by            substantial evidence.  In particular, claimant relies upon  a            residual  functional capacity  assessment ("RFC")  that noted            limitations  in  pushing  or  pulling  ten  or  more  pounds,            "fingering   (fine   manipulation)"   and    "feeling   (skin            receptors)".  Second, claimant argues that, in light of those            limitations,   the Administrative Law Judge  ("ALJ") erred in            not obtaining testimony of a vocational expert regarding  how            those limitations  would affect claimant's ability to perform            her past relevant work as a receptionist.                               I. Substantial Evidence                                  ____________________                      Even where the record is capable of supporting more            than   one  conclusion,  we   will  affirm   the  Secretary's            determination when "a reasonable mind, reviewing the evidence            in the  record as a  whole, could  accept it  as adequate  to            support his  conclusion."  Rodriguez v. Secretary of HHS, 647                                       _________    ________________            F.2d 218, 222 (1st  Cir. 1981).  Resolutions of  conflicts in            the evidence  are for the Secretary.   Id.   Where the record                                                   ___            permits  diverse  inferences,  the Secretary's  determination            will  be  affirmed,  so  long  as  the  inferences  drawn are            supported by the  evidence.  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 (1st                         _______     ________________            Cir. 1981).                      The  ALJ  made  the  following  findings  regarding            claimant's  medical condition  as of  December 31,  1988 (the            date the claimant was last insured for disability purposes):                      In  January,  1988,  and February,  1989,                      [claimant]  underwent surgery  for carpal                      tunnel  release of  her  left  and  right                      hands, respectively.                                        . . .                      [T]here is no doubt that the claimant had                      a   condition  which   required  surgery.                      However, the claimant  responded well  to                      treatment  and  medication. She  regained                      most of the  capacity associated with the                      hands such as grasping, pushing, pulling,                      lifting and carrying.  The claimant on or                      before  December  1988,  still  had  some                      limitations,  and on or  before this date                      the   claimant   was   not   capable   of                      performing  medium  or heavy  activities.                      However,  she  was  not   precluded  from                      performing  the  full   range  of   light                      exertion. .  . . As long  as the claimant                      avoids  activities  as  heavy lifting  or                      carrying,   she   is  able   to  function                      normally.            Based  upon  this  analysis of  claimant's  capabilities  and            claimant's   own  description   of  her   former  job   as  a                                         -3-            receptionist, the ALJ concluded that she  was able to perform            her past relevant work as a receptionist.                      On appeal,  claimant faults the ALJ  for failing to            consider allegedly uncontroverted  evidence of  "disabilities            beyond an impairment to lift or carry."  Claimant relies upon            an  RFC  dated  August 15,  1991.    That  RFC noted  certain            "manipulative   limitations,"   including  "Fingering   (fine            manipulation)"   and  "Feeling   (skin  receptors),"   and  a            limitation in claimant's ability to push and or pull (limited            to  weights of less than ten pounds).  A second RFC, however,            dated March, 1992, indicated  that there were no manipulative            limitations   established   and   no  limitations   regarding            claimant's  ability  to push  and/or  pull.   Therefore,  the            evidence is not uncontroverted, as claimant alleges.                      Moreover, the ALJ specifically addressed claimant's            manipulative  abilities.   He found  that after  surgery, the            claimant "regained  most of  the functional capacity  of both            hands.  She also had a marked improvement in her capacity for            grasping and making a  fist.  The numbness she  alleged prior            to surgery  showed marked  improvement."  Those  findings are            supported  by the  record.   Progress notes  of an  examining            physician from  the State  Insurance Fund ("SIF"),  dated May            24,  1989, report that  following physical  therapy, claimant            "has less pain  and now  full grip strength."   SIF  progress            notes dated June 3,  1989, indicate that the range  of motion                                         -4-            of  the wrist  and  fingers  (of  the  right  hand)  is  only            "slightly limited."   A "surgery evaluation"  dated March 30,            1990,  reported  that  the  surgery had  resulted  in  "great            improvement"  in both  hands and  that claimant  was "feeling            well"  in both hands.   SIF progress notes  dated January 29,            1991, indicate that claimant had "weakness" in her  left hand            causing  slight  limitations, but  that  her  right hand  was            "normal."  Given  this support  in the record  for the  ALJ's            findings, they will not be overturned on appeal.                           II. Testimony by a Vocational Expert                             ________________________________                      Claimant argues  that the  ALJ erred in  failing to            elicit  the  testimony  of  a  Vocational  Expert  ("VE")  to            determine whether  the impairments  indicated by  the medical            record would  preclude her from performing  her past relevant            work  as a  receptionist.    At  step  4  of  the  disability            determination process,  however, the  ALJ is not  required to            elicit  the  testimony of  a  vocational  expert ("VE").  See                                                                      ___            Musgrave v.  Sullivan, 966 F.2d  1371, 1376 (10th  Cir. 1992)            ________     ________            (holding that because claimant  failed to meet his  burden of            establishing a disability which prevented him from performing            his past relevant work,  "the ALJ was under no  obligation to            elicit the testimony of a vocational expert").                      "The claimant is the primary source  for vocational            documentation, and statements by the claimant regarding  past            work are  generally  sufficient  for  determining  the  skill                                         -5-            level, exertional demands  and nonexertional demands of  such            work."    Social  Security   Ruling  82-62.    In  claimant's            application  of disability  insurance benefits  she described            her  basic duties  in her  former job  as a  receptionist, as            follows: "1.  take telephone calls,  care for the  public. 3.            keep daily reports in  the books. 4. Messenger. 5.  In charge            of  photostatic  copies."   At  the hearing  before  the ALJ,            claimant  testified  that  in  her former  job  she  had been            required to write, to record things in books and to type.                        Claimant testified  at her hearing  before the  ALJ            that her  impairments precluded  the performance of  her past            work  as a  receptionist because  she could  hardly move  her            hands and "things fall from my hands."  The ALJ  did not find            claimant's allegations of manipulative limitations that would            preclude  performance  of her  past  relevant  work credible.            "The credibility  determination by  the ALJ who  observed the            claimant,  evaluated his  demeanor,  and considered  how that            testimony fit in with the rest of the evidence is entitled to            deference, . . . " Frustaglia v. HHS, 829 F.2d  192, 195 (1st                               __________    ___            Cir. 1987).  On this  record, the ALJ did not err  in failing            to elicit the testimony of a VE regarding claimant's capacity            to perform her past relevant work as a receptionist.                 Claimant's allegations of manipulative  limitations that            would preclude  performance of her  past relevant  work as  a            receptionist  are  directly   contradicted  by  the   medical                                         -6-            evidence.  That evidence, as summarized above, indicates that            claimant regained  full grip strength after  surgery and that            her right hand  was normal and weakness in her  left hand was            only slightly limiting.  The RFC dated March, 1992, indicated            that  she had  no  "manipulative limitations."     The  ALJ's            determination that on or  before December, 1988, claimant was            capable   of   performing   her  past   relevant   work,   is            substantially supported by the record as a whole.                      Accordingly, we affirm the district court's opinion            affirming the Secretary's denial of benefits.                                         -7-
