
USCA1 Opinion

	




          April 23, 1996                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 95-1791                               ADRIAN GARCIA-MARTINEZ,                                Plaintiff, Appellant,                                          v.                           COMMISSIONER OF SOCIAL SECURITY,                                 Defendant, Appellee.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                    [Hon. Jaime Pieras, Jr., U.S. District Judge]                                             ___________________                                 ____________________                                        Before                                Torruella, Chief Judge,                                           ___________                          Boudin and Stahl, Circuit Judges.                                            ______________                                 ____________________            Raymond Rivera Esteves and Juan A.  Hernandez Rivera on brief  for            ______________________     _________________________        appellant.            Guillermo  Gil,  United States  Attorney,  Maria  Hortensia  Rios-            ______________                             _______________________        Gandara,  Assistant  United  States  Attorney,  and  Wayne  G.  Lewis,        _______                                              ________________        Assistant Regional Counsel, Region  I, Social Security Administration,        on brief for appellee.                                 ____________________                                 ____________________                      Per  Curiam.     Claimant  Adrian   Garcia-Martinez                      ___________            appeals  from  the  district  court  judgment  affirming  the            decision of the  Secretary of Health and  Human Services that            claimant  is  not  entitled  to  Social  Security  disability            benefits.  Claimant raises four arguments on appeal:  (1) the            administrative  law  judge  (ALJ)  did not  comply  with  the            Appeals  Council's  remand  order  to  obtain  more  evidence            concerning the existence of a mental impairment;  (2) the ALJ            erred  in not  crediting the  opinion of  claimant's treating            physician  that claimant  was  completely disabled;  (3)  the            ALJ's finding that  claimant could return to his  past medium            work was  unsupported by the  record; and (4)  the vocational            expert  (VE) failed  to  take  into consideration  claimant's            limitations  on his  range  of motion.    We agree  with  the            district court's decision, adding the  following points keyed            to claimant's arguments on appeal.                      1.   The  ALJ obtained  the services  of a  medical            advisor, a  psychiatrist and  neurologist,  who reviewed  the            entire  record  and observed  claimant  at the  hearing.   He            opined  that claimant did not have a mental impairment.  This            conclusion particularly was  supported by claimant's response            to  the  question  why  he  had  stopped  working.    On  two            occasions,  claimant  answered  that  his  physical  problems            prevented him from continuing with his employment.   He never            referred to  any emotional symptoms, much  less described how                                         -2-            his mental condition affected his ability  to engage in work-            related  activities.  See Santiago v. Secretary of Health and                                  ___ ________    _______________________            Human  Services, 944 F.2d 1, 5-7 (1st Cir. 1991) (per curiam)            _______________            (where the testimony and  the evidence did not go  far enough            to raise  a "meaningful  issue" in  regard to  how claimant's            impairments affected her ability to work, the ALJ had no duty            to  further   develop  the   record  by   obtaining  residual            functional capacity assessments).                      2.  The ALJ  did not err in not  giving controlling            weight to  the opinion of claimant's  treating physician, Dr.            Martinez, that  claimant was completely disabled.   Given the            conflicting evidence, the  ALJ was not required  to accede to            the  treating physician's  opinion rather  than the  contrary            evidence  of  the  medical  advisor  and  to  other  evidence            supporting  the latter's  position.   See Rodriguez  Pagan v.                                                  ___ ________________            Secretary  of Health and Human  Services, 819 F.2d  1, 3 (1st            ________________________________________            Cir. 1987) (per curiam), cert. denied, 484 U.S. 1012 (1988).                                     ____________                      3.  The uncontradicted residual functional capacity            assessment  of  the  medical advisor  restricted  claimant to            lifting 30 pounds;  medium work involves the ability  to lift            50  pounds.   See  20 C.F.R.     404.1567(c).   Consequently,                          ___            claimant  cannot  perform  the  full range  of  medium  work.                                            ____            However, the vocational expert  not only opined that claimant            could perform  his past, medium  work as a  groundskeeper, he            also  listed light jobs that  would be available to claimant.                                         -3-            Given that claimant can do some medium work, he  is deemed to            be able  to perform  light work.   Id.   Thus, the  Secretary                                               ___            satisfied her burden, at step five of the sequential process,            to  show that  there was other  work claimant  could perform.            Id.   404.1520(f).            ___                      4.    There  was  conflicting  evidence  concerning            claimant's range of motion (for example, Dr. Stella-Arrillaga            found  no  limitations).   Thus, there  is  no basis  for the                   __            claimant's  assertion  that  the  vocational  expert and  ALJ            disregarded  established limitations  on claimant's  range of            motion.  The  ALJ's decision  must stand.   See Rodriguez  v.                                                        ___ _________            Secretary of  Health and  Human Services,  647 F.2d  218, 222            ________________________________________            (1st  Cir. 1981)  (conflicts  in  the  evidence are  for  the            Secretary to resolve).                      Affirmed.                      ________                                         -4-
