Santos Rivera v. SHHS, 1st Cir. (1993)

USCA1 Opinion
February 19, 1993
[NOT FOR PUBLICATION]

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
___________________
No. 92-1896
SONIA SANTOS RIVERA,

Plaintiff, Appellant,
v.
SECRETARY OF HEALTH & HUMAN SERVICES, ET AL.,
Defendants, Appellees.
__________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Raymond L. Acosta, U.S. District Judge]
___________________
___________________
Before
Breyer, Chief Judge,
___________
Selya and Cyr, Circuit Judges.
______________
___________________
Salvador Medina De La Cruz on brief for appellant.

__________________________
Daniel F. Lopez Romo, United States Attorney, Jose Vazquez
_____________________
____________
Garcia, Assistant United States Attorney, and Amy S. Knopf,
______
_____________
Assistant Regional Counsel, Department of Health and Human
Services on brief for appellee.
__________________
__________________
Per Curiam.
__________
This
appeal is from
a judgment of
the
district court affirming a final decision of the Secretary of

Health and
not meet
Human Services ("Secretary")
that appellant
the disability requirements of
did
the Social Security
Act.
Appellant's application for disability
an
inability to
combination
of
work
chest
beginning
May
pain
mental
and
16,
benefits alleged
1988
due
disability.
application was initially denied, appealed and
to
a
Her
denied again.
A de novo hearing was held before an Administrative Law Judge

__ ____
["ALJ"] on
July 10, 1990.
On July 30, 1990,
the ALJ found
that appellant had a residual functional capacity for certain

unskilled light work jobs
which exist in significant numbers
in the economy, and so was
not under a disability as defined
in
the Act.
for review.
The Appeals
Council denied appellant's request
On appeal to the
district court, the
case was
assigned to a magistrate-judge who found that the Secretary's

decision
was based
affirmance.
The
on substantial evidence
district court
adopted
and recommended
the magistrate's
report and recommendation, affirming the Secretary's decision

on May 11, 1992.
We affirm.
at the time of the hearing.

of high school.
was
as
Her
Appellant was
45 years old
She had completed the third year
immediate past relevant work experience
a welder/solderer
in
the
electronics industry,
-2-
position she had held for ten years prior to the onset of her
illness.
Appellant was diagnosed as suffering from chest pain and
moderate to severe depression.

the
of
To qualify for benefits under
Act, appellant bore the burden of proving that by reason

one, or
a combination
"inability to engage in
of these
conditions, she
had an
any substantial gainful activity due
to ... impairment(s) which can be expected to result in death

or
last for a
....
continuous period of not
" 42 U.S.C.
C.F.R.
less than 12 months
423(d)(1)(A); 42 U.S.C.
404.1505; Bowen
_____
v.
Yuckert,
_______
482
416(i)(1); 20
U.S. 137,
140
(1987); McDonald v. Secretary of HHS, 795 F.2d 1118 (1st Cir.

________
________________
1986).
The ALJ considered appellant's testimony,
of
vocational
records.
expert
Using the
evidence required
ALJ found
("VE"),
and
the testimony
appellant's
medical
five-step sequential evaluation
by 20
C.F.R.
that appellant's
404.1520,
of the
404.1520a, the
impairments were severe
but did
not, alone or in combination, equal the severity level of any

listed
1.
impairment.
20 C.F.R. Part 404, Subpart. P, Appendix
Appellant's chest pain, however, was found to prevent her
from returning to her past relevant work.

Appellant
takes issue,
that
despite
does not
dispute
however, with the

her
combination
-3-
the above
findings.
ALJ'S finding at
of
conditions,
She
step five,
she
has
residual
functional
capacity to
engage in
unskilled light
work jobs which allow for alternating physical positions. See

___
20
C.F.R.
the
404.1545.
existence
or
economy, only
Appellant's objection is not based on
numbers
the extent
finding that she
of
such
to which
is capable
jobs
in
the national
the evidence
supports a
of performing such
work.
Secretary bore the burden of proof on this issue.
20
The
C.F.R.
404.1520(f)(1); Rosado v. Secretary of HHS, 807 F.2d

______
_________________
292,
294 (1st Cir. 1986).

Our
standard
of
findings are supported
review
is
the evidence
adequate
HHS,
___
Secretary's
in the record
Although
more than one conclusion, we
the Secretary, "if a

as a
reasonable mind, reviewing

whole, could accept
to support his conclusion."
it as
Ortiz v. Secretary of
_____
____________
955 F.2d 765, 769 (1st Cir. 1991) (quoting Rodriguez v.

_________
Secretary of HHS,
________________
also
____
the
by "substantial evidence."
the record may arguably support

must uphold
whether
Richardson
__________
Resolutions
of
647 F.2d
v.
218, 222 (1st
Perales,
_______
credibility
402
U.S.
issues
and
Cir. 1981));
389,
401
conflicts
see
___
(1971).
in
the
evidence are for the
Secretary, not the courts.
F.2d at 769; Evangelista

___________
141
(1st
Cir.
inferences,
inferences drawn
Pagan v.
_____
v. Secretary of HHS, 826

________________
1987).
we will
Ortiz, 955
_____
Where
affirm
facts
the Secretary
are supported
Secretary of HHS,
________________
the
F.2d 136,
permit
so
long as
by the evidence.
819 F.2d
diverse
1, 3 (1st
the
Rodriguez
_________
Cir. 1987),
-4-
cert. denied, 484 U.S.

____________
1012 (1988); Lizotte v.

_______
Secretary of
____________
HHS, 654 F.2d 127, 128 (1st Cir. 1981).

___
There
was
ample
support the ALJ's

capacities.
major cardiac
but
it
did
medical
evidence in
record
conclusion regarding appellant's
to
physical
Appellant's chest pain was not attributed to any

impairment, hypertension or end
require
her
to
avoid
Objective medical reports described

controlled by
the
small doses
strenuous
organ damage,
activities.
her pain as episodic and
of medication.
After evaluating
appellant's
subjective complaints
factors set forth

(1st Cir.
chest
in light
in Avery v. Secretary of HHS,

_____
________________
1986), the ALJ
condition,
of pain
fairly concluded that
appellant
exertions required
is physically
by light and
of the
797 F.2d 19
despite her
capable
sedentary work, so
of
the
long as
she is permitted to alternate positions occasionally.

There
was also sufficient
evidence that
despite some
mental impairment attributable to major depression, appellant

retained the mental capacity to perform unskilled jobs in the
light
and sedentary
showed that
work categories.
The
appellant has been treated
medical records
with medications, on
an out-patient basis, at the Coamo Mental Health Center since

November,
1988.
psychiatrist
her as
goal
Reports
from
who saw appellant
Dr.
on two
alert, oriented, coherent,

directed in
her responses.
Vivian R.
Bonilla,
occasions, described
spontaneous, logical
Both
Dr. Bonilla,
and
and a
-5-
consulting psychiatrist, Dr. Hector Luis

significant limitations
on
Rodriguez, found no
appellant's memory,
ability
to
understand and
simple
carry out short and
questions,
set
simple instructions, ask
realistic
appropriately to changes
goals,
and
in the work setting.
respond
In addition,
two state agency physicians, on review of appellant's medical

records,
concluded
instructions,
that
maintain
she
a
could
normal
carry
out
workweek,
simple
respond
to
supervisors and co-workers and interact with the public.

The VE
the
opined, in answer to
above evidence, that
prior
job
of
welder
appellant could not
because
requirements did not permit

with
the frequency
several
unskilled
flexibility, and
light
can
the
job's
return to her
high
production
appellant to alternate positions
required.
which
a hypothetical summarizing
However,
work
jobs
be performed
the VE
which
by
identified
allow
person
this
of
appellant's age, education and work experience suffering from

moderate mental limitations.
abilities
work
The VE's answer assumed limited
to understand, remember, concentrate, interact and
near others, accept instruction, be punctual, etc.
jobs he
identified included hand classifier,
The
garment folder
and hand trimmer.

Appellant contends that the ALJ
VE's testimony described above.
ALJ should have based
erred in relying on the
Instead, appellant says, the
his decision on the VE's
-6-
later answer
to a hypothetical posed by appellant's attorney.
Appellant's
hypothetical asked the VE whether appellant could perform the

identified jobs if the VE "gave credibility to the content of
Exhibit 21 and
the residuals accompanying
it."
Exhibit
21
appears to have been a copy of Dr. Bonilla's "Mental Residual

Functional Capacity Assessment."
The VE's answer was
in the
negative.
Appellant argues that the ALJ was required to accept the
VE's response to the latter question as "controlling" because
it
was based
"treating"
the opinion
psychiatrist.
reference to
404.1527
on
of
This
a doctor
argument
described
is
an
a recently promulgated regulation,
(1991), which
Secretary weighs
describes
medical evidence
the manner
as a
apparent
20 C.F.R.
in which
of disability.
the
One part
provides:
Generally we give more weight to opinions from your
treating sources ....
If we find that a treating
source's opinion on the issue(s) of the nature and
severity of your impairments is well supported by
medically
acceptable
clinical and
laboratory
diagnostic techniques and is not inconsistent with
other substantial evidence in your case record, we
will give it controlling weight.
When we do not
give ... controlling weight, we will apply [other
factors] in determining [its] weight ...
We will
always give good reasons in our ... decision for
the weight we give your treating source's opinion.
20 C.F.R.
The
404.1527(d)(2).
regulation
inflexible
is
thus
as appellant's
mandate assignment
neither
as
delimiting
argument suggests.
of some unvarying weight
It
nor
does not
to every report
-7-
in every case.
controlling
The ALJ is not required automatically to give

___
weight
to
any
___
"treating"
doctor's
report,
denominated as such.
In
some cases "controlling weight" may
be assigned if the report meets the specified qualifications,

__
and is not inconsistent with
other
cases, the
weight
further evaluated
throughout
of a
in light
the remainder
404.1527(d)(1)-(6).
weight" language
other substantial evidence.
of the many
of
And
in
source.
defined in 20
any
C.F.R.
That
report is
factors articulated
the rule.
See 20
___
event, the
is relevant only to
which the regulations elsewhere

"treating"
treating source's
In
C.F.R.
"controlling
those medical opinions
define as originating from a
term, too,
is
not static.
404.1502, and further
refined in
As
404.1527(d)(2)(i)(ii),
psychologist
with
it
whom
refers
the
to
applicant
physician
has
an
or
"ongoing
treatment relationship," as determined by the type, frequency

and
quality
of
doctor-patient
contact
in
light
of
its
consistency with accepted medical practice for the particular

condition.
In all
whether the
cases, the responsibility for determining
statutory definition of disability
is reserved to the Secretary.

We
need not
Bonilla
is
not
because
we think
reach the
properly
20 C.F.R.
has been met
404.1527(e).
Secretary's argument
defined as
that appellant
"treating"
exaggerates the
reaching an issue under this regulation.
that Dr.
doctor
record in
We do not read the
-8-
ALJ's
decision as
according its
rejecting Dr.
relevant portions
Since Dr. Bonilla's opinion was,
Bonilla's opinion,
any less than
nor as
full weight.
for the most part, entirely
consistent with the other medical evidence, and was among the
opinions
cited
decision, there
by the
ALJ
as
cumulatively informing
was no occasion redundantly
his
to describe the
weight
assigned to
this part
of Dr.
Bonilla's
opinion as
"Mental
Residual
Functional
"controlling," or otherwise.
Moreover,
Capacity
as
to
Assessment,"
rejected was not
the
it appears
to us
Dr. Bonilla's conclusions,
interpretation of both the assessment

appellant's hypothetical.
due
The
to the question posed.
facts, but
that what
simply asked
entire, multi-faceted,
the ALJ
but appellant's
and the VE's answer to
VE's response
was ambiguous
The hypothetical did not specify
the
VE to
assume as
three-page exhibit.
a basis
It is
the
thus not
clear how the expert understood the question, or which of its

multiple facts he
was relying upon in his
answer
the "physical
mentioned
which does not even

follow-up
predicate,
headaches,
question,
the
demands" of
appear in the exhibit.

which
appellant's
and
answer.
like,
included,
subjective
did
not
objective basis for the first answer.
-9-
a job,
a term
And appellant's
as
an
complaints
help
The VE's
to
additional
of
clarify
pain,
any
The
ALJ
reflecting
interpreted
that
Dr.
appellant
Bonilla's
suffered
assessment
only
insignificant or
moderate degree limitations in the mental abilities

for the simple
true
the
tasks in the
assessment
abilities,
including the
some
ability to
concentration for extended periods
were
But
of
the ALJ
primary
positions,
not
demands.
This
testimony
as
"markedly" limited
to
unskilled jobs
psychologically based
these limitations
skilled
with
mental
or
semi-skilled
only light
conclusion was supported by

to the
and
and "to complete a normal
determined that
relevance
It is
sustain attention
workday ... without interruptions from

symptoms."
required
unskilled job category.
also recited
as
skills needed
production
the VE's earlier

in
the various
categories.
As we read
the ALJ's
decision, then, it
was a
logical
matching of Dr. Bonilla's medical conclusions with the expert

evidence relating to the job market.
any of the doctor's
lesser weight.
was
well
evidence in
report
of
The ALJ did not reject
medical conclusions nor assign them
His interpretation of
supported by
the
other
her
examination
of
Dr. Bonilla's opinion
assessments and
the record, including Dr.
any
medical
Bonilla's own written
appellant.
And
we note,
parenthetically, that had the ALJ instead adopted appellant's

interpretation,
reading
inconsistent with the
Dr.
Bonilla's
assessment
other substantial medical
as
evidence in
-10-
the
record, the
argues,
have
regulation
required
the
cited would
assignment
not, as
of
appellant
"controlling"
weight.1
For the reasons stated, the decision below is affirmed.
_________
____________________
1. Although 20 C.F.R.
404.1527, was promulgated in final
form on August 1, 1991, while this case was pending on
appeal, the Secretary has not objected to the applicability
of the regulation's approach in this case.
In light of our
conclusions and the lack of objection, we have no need to
consider any questions of retroactivity.
-11-

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USCA1 Opinion

February 19, 1993

[NOT FOR PUBLICATION]

SONIA SANTOS RIVERA,

Salvador Medina De La Cruz on brief for appellant.

district court affirming a final decision of the Secretary of

Human Services ("Secretary")

the disability requirements of

the Social Security

application was initially denied, appealed and

A de novo hearing was held before an Administrative Law Judge

July 10, 1990.

On July 30, 1990,

the ALJ found

that appellant had a residual functional capacity for certain

which exist in significant numbers

in the economy, and so was

not under a disability as defined

Council denied appellant's request

district court, the

assigned to a magistrate-judge who found that the Secretary's

report and recommendation, affirming the Secretary's decision

at the time of the hearing.

She had completed the third year

immediate past relevant work experience

moderate to severe depression.

To qualify for benefits under

Act, appellant bore the burden of proving that by reason

any substantial gainful activity due

to ... impairment(s) which can be expected to result in death

continuous period of not

less than 12 months

(1987); McDonald v. Secretary of HHS, 795 F.2d 1118 (1st Cir.

five-step sequential evaluation

impairments were severe

not, alone or in combination, equal the severity level of any

20 C.F.R. Part 404, Subpart. P, Appendix

Appellant's chest pain, however, was found to prevent her

from returning to her past relevant work.

however, with the

work jobs which allow for alternating physical positions. See

Appellant's objection is not based on

finding that she

Secretary bore the burden of proof on this issue.

404.1520(f)(1); Rosado v. Secretary of HHS, 807 F.2d

294 (1st Cir. 1986).

findings are supported

more than one conclusion, we

the Secretary, "if a

reasonable mind, reviewing

to support his conclusion."

955 F.2d 765, 769 (1st Cir. 1991) (quoting Rodriguez v.

the record may arguably support

218, 222 (1st

evidence are for the

Secretary, not the courts.

F.2d at 769; Evangelista

v. Secretary of HHS, 826

cert. denied, 484 U.S.