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USCA1 Opinion
December 29, 1992 [NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 92-1610
JOHN DEVLIN,
Plaintiff, Appellant,
v.
SECRETARY OF HEALTH AND HUMAN SERVICES,
Defendant, Appellee.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Joseph L. Tauro, U.S. District Judge]
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Before
Breyer, Chief Judge,
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Torruella and Selya, Circuit Judges.
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Richard L. Neumeier, Paul M. Moretti and Parker, Coulter,
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Daley & White on brief for appellant.
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A. John Pappalardo, United States Attorney, George B.
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Henderson, II, Assistant United States Attorney, and Thomas D.
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Ramsey, Assistant Regional Counsel, Region I, Department of
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Health and Human Services, on brief for appellee.
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Per Curiam. This appeal is from a judgment of the
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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 for disability insurance
benefits and Supplemental Security Income benefits, alleged
an inability to work beginning on April 17, 1987, the day he
met the special statutory earnings requirement for insured
status. His application was initially denied, appealed, and
denied again. A de novo hearing was held before an
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Administrative Law Judge ("ALJ") on December 5, 1988. The
ALJ found that appellant had a residual functional capacity
for sedentary work activities, including his past relevant
work, and so was not under a disability as defined in the
Act. Appellant's request for review was denied by the
Appeals Council. The district court upheld the ALJ's
decision, finding it was based on substantial evidence. We
affirm.
Appellant was 45 years of age at the time of the de novo
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hearing. He had a ninth grade education with some
specialized vocational training in electronics. As relevant
here, his employment history included work as a tester of
personal computer boards.
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Appellant was diagnosed as suffering from a heart
condition, high blood pressure, respiratory impairment, and
peripheral vascular occlusive disease with neuropathy of the
left leg and foot. His heart condition required a triple
bypass operation in 1985. A second bypass operation was
considered, but not recommended because of the risks.
These are indeed severe impairments, as the record
shows, and the ALJ found. But to qualify for benefits under
the Act, appellant had the burden of proving that by reason
of one or more of them, he had an "inability to engage in any
substantial gainful activity ... for a continuous period of
not less than 12 months .... " 42 U.S.C. 423(d)(1)(A); 20
C.F.R. 404.1505; Bowen v. Yuckert, 482 U.S. 137, 140
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(1987); McDonald v. Secretary of HHS, 795 F.2d 1118 (1st Cir.
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1986).
Appellant carries this burden of proof throughout the
first four steps of the sequential evaluation of the evidence
required by the regulations. 20 C.F.R. 1520; Goodermote v.
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Secretary of HHS, 690 F.2d 5, 7 (1st Cir. 1982). He
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challenges here the ALJ's determination at step four -- that,
in light of appellant's residual functional capacity and the
demands of his past relevant work, appellant could still
engage in sedentary work he had done in the past as a tester
of personal computer boards. 20 C.F.R. 1520(f).
Appellant's burden at this step of the process included
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proving that his impairment prevented him from returning to
this type of work generally, not solely to the particular
job. See Dudley v. Secretary of HHS, 816 F.2d 792, 794 (1st
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Cir. 1987); Gray v. Heckler, 760 F.2d 369, 372 (1st Cir.
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1985).
Appellant's primary argument here is that the ALJ's
decision was not supported by the evidence. He also argues
that the ALJ failed to consider the effect of the combination
of impairments on appellant's residual capacity, did not
properly develop evidence relating to the side effects of
appellant's medications, and did not properly conduct the
hearing. We deal with these arguments in turn.
Under Section 205(g) of the Act, 42 U.S.C. 405(g), our
standard of review is whether the Secretary's determination
is supported by "substantial evidence." Although the record
may support more than one conclusion, we will uphold the
Secretary if "a reasonable mind, reviewing the 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,
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769 (1st Cir. 1991) (quoting Rodriguez v. Secretary of HHS,
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647 F.2d 218, 222 (1st Cir. 1981)); see also Richardson v.
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Perales, 402 U.S. 389, 401 (1971). The resolution of
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conflicts in the evidence is for the Secretary, not the
courts. Ortiz, 955 F.2d at 769. Where the facts permit
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diverse inferences, we will affirm the Secretary so long as
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the inferences drawn are supported by the evidence, even if
we might have reached a different conclusion. Rodriguez
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Pagan v. Secretary of HHS, 819 F.2d 1, 3 (1st Cir. 1987),
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cert. denied, 484 U.S. 1012 (1988); Lizotte v. Secretary of
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HHS, 654 F.2d 127, 128 (1st Cir. 1981).
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This is a close case because of the conceded severity of
appellant's multiple conditions and the conflicting
inferences that might be drawn from the evidence. However,
we see no basis for questioning the ALJ's resolution of these
conflicts.
In determining that appellant retained a residual
functional capacity for sedentary work, the ALJ placed
primary reliance on evidence appellant himself produced. The
ALJ rejected the agency doctors' conclusions that appellant
could perform the more strenuous activities in the "light
work" category. Appellant's combination of conditions, the
ALJ said, precluded him from performing tasks in that
category because of its requirements of extensive standing
and walking.
Nevertheless, appellant's own treating doctors' reports,
combined with other record evidence, supported a finding that
appellant retained sufficient residual capacity to perform
the full range of sedentary work activities. While appellant
correctly points out that in Gordils v. Secretary of HHS, 921
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F.2d 327, 329 (1st Cir. 1990), we reaffirmed that, "the ALJ
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is not qualified to assess residual functional capacity based
on a bare medical record," this is not such a case.
The ALJ had here, in addition to an extensive medical
record and the agency doctors' assessments and analyses of
the record,1 a functional capacity assessment by appellant's
treating physician, plainly stated in lay person's terms.
On January 13, 1988, Dr. Sapienza, who had been
appellant's treating physician for more than a decade,
stated:
[Appellant] is unable to perform work functions
that will bring him much of a remunerative reward.
Certainly he can sit for extended periods of time,
but then has to get up and stretch his legs. He
can stand for extended periods of time but he does
have to get off his feet and rest. He can lift up
to ten pounds without any problem. He can think
and write.
As the ALJ observed, sedentary work typically allows for the
very conditions Dr. Sapienza here describes -- an alteration
between sitting and standing, at least to the extent of
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1. We read the ALJ's rejection of the agency doctors' "light
work" conclusion as a disagreement with the implied legal
conclusion, not as a rejection of the doctors' firsthand
observations of appellant, and analyses of the medical
records. Like the treating doctors, the agency doctors said
that appellant could not engage in repetitive climbing,
balancing, stooping, kneeling, crouching and crawling.
And, contrary to the suggestion in appellant's brief, we know
of no rule that invariably requires assignment of "little"
weight to reports by non-treating physicians. Both the
absolute and relative evidentiary weight of doctors' reports
must necessarily vary with the facts of each case. See,
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e.g., Gray, 760 F.2d at 372-73; Sitar v. Schweiker, 671 F.2d
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19, 22 (1st Cir. 1982); Rodriguez v. Secretary of HHS, 647
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F.2d 218, 223-24 (1st Cir. 1981).
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allowing the claimant to get up and stretch.2 This report,
together with the ALJ's "commonsense judgments about
functional capacity based on medical findings," and the
corroborating inferences he found in appellant's testimony,
are clearly enough for substantial evidence. See Gordils, 921
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F.2d at 329.
Although the ALJ's interpretation of the record was not
the only one possible, it was certainly a reasonable one.3
At the hearing, appellant's counsel offered a report dated
December, 1988, from Dr. Moschitto, who had taken over as
appellant's treating physician earlier in the year when Dr.
Sapienza retired.
Dr. Moschitto's report concluded:
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2. Sedentary work is defined in 20 C.F.R. 404.1567(a), as:
[W]ork involv[ing] lifting no more than 10 pounds
at a time and occasionally lifting or carrying
articles like docket files, ledgers, and small
tools. Although a sedentary job is defined as one
which involves sitting, a certain amount of walking
and standing is often necessary in carrying out job
duties. Jobs are sedentary if walking and standing
are required occasionally and other sedentary
criteria are met.
3. We note that the arguments in appellant's brief are based
on a different interpretation of the record, relying heavily
on appellant's hearing testimony. Appellant estimated a more
limited tolerance for sitting and standing -- saying that due
to leg pain, he estimated he could only stand for 15 minutes
at a time and sit for 30 minutes at a time. However, the ALJ
is not required to accept appellant's own estimates over the
doctors' reports. Frustaglia v. Secretary of HHS, 829 F.2d
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192, 195 (1st Cir. 1987). On appeal, the ALJ's credibility
determinations and resolutions of conflicts in evidence, are
entitled to deference, especially when supported by specific
findings. Id.
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[Appellant's] coronary and peripheral vascular
disease are clearly a severe degree such that he is
totally disabled. I am not aware of any unskilled
job in the present labor market that does not
involve mental stress, prolonged standing or
ambulation to a degree that he is capable of doing
safely.
Partly because of the competing inferences to be drawn
from this report, the ALJ decided, sua sponte, to hold open
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the record for 15 days after the hearing to give appellant an
opportunity to supplement the evidence. The ALJ carefully
explained that despite a surface conflict with Dr. Sapienza's
assessment, Dr. Moschitto's conclusion of "total" disability
is ambiguous. It appears to be based as much or more on Dr.
Moschitto's belief about the configuration of the labor
market, in which he was not a known expert, as on an
assessment of appellant's functional capacity. Further, Dr.
Moschitto's statement that appellant could not engage in
"prolonged" standing or ambulation, is not necessarily
inconsistent with a residual functional capacity for
sedentary work.
Despite the opportunity to do so, the supplementary
materials and memorandum which appellant then produced did
not explain the ambiguity in Dr. Moschitto's report, address
the inconsistency between the treating doctors' conclusions,
nor undermine the plain import of Dr. Sapienza's opinion.
In light of appellant's failure to produce proof
directly supporting a contrary interpretation, we have no
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difficulty concluding that the ALJ did not err in
determining, on the basis of substantial evidence, that
appellant had a residual functional capacity for sedentary
work. See Rodriguez Pagan, 819 F.2d at 3.
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There was also substantial evidence, based on
appellant's own written description of his past work, to
support the determination that appellant was capable of
returning, specifically, to his past relevant work as a
computer board tester. The ALJ was entitled to rely on the
claimant's own job description. Santiago v. Secretary of
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HHS, 944 F.2d 1, 5 (1st Cir. 1991). To the extent that it
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diverged from the description claimant gave at the hearing,
we defer to the ALJ, who is in the better position to resolve
such conflicts. Ortiz, 955 F.2d at 765.
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Appellant's remaining assignments of error do not
withstand a reading of the record. First, contrary to
appellant's characterization, it is clear from the ALJ's
lengthy analysis of the evidence that he considered the
effect of the "combination" of appellant's conditions on
appellant's ability to work. See McDonald, 795 F.2d at 1126.
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Moreover both the treating and examining doctors' assessments
were based on the effect of the combination of conditions.
The ALJ's analysis reasonably reflected the evidence in the
record by placing greatest emphasis on appellant's two most
severe conditions, the heart and vascular problems. The ALJ
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did not, by any stretch however, ignore appellant's
respiratory, back, and other conditions. Nor do we see any
support for appellant's complaints that the ALJ misread the
medical record, or unfairly selected sections of the reports,
while ignoring the record's overall spirit. The ALJ's
resolution of the conflicts in the medical evidence was
supported by substantial evidence. Rodriguez Pagan, 819 F.2d
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at 3.
Second, the ALJ did not err by failing to develop
evidence relating to any disabling side effects of
appellant's medicines. See Figueroa v. Secretary of HEW, 585
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F.2d 551, 554 (1st Cir. 1978). The ALJ's opinion fairly
summarized all the evidence in the record about appellant's
medications, which consisted primarily of listings of
prescriptions, and appellant's abbreviated, somewhat
inconsistent, testimony about side effects. But appellant
offered no testimony linking these side effects to an
inability to engage in sedentary work activities. And,
despite the ALJ's express invitation to supplement the
record, no evidence regarding such a link was offered. Since
appellant bore the burden of producing threshold evidence on
this issue, he cannot now complain. Santiago, 944 F.2d at 6.
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We also reject appellant's related argument, raised for the
first time on appeal, that the presence of this non-
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exertional factor required use of a vocational expert, rather
than the grid.
Finally, appellant faults the ALJ for the brevity of the
hearing (30 minutes). He sees unfairness, too, in the 8-page
length of the ALJ's report, as compared with some 280 pages
of medical and vocational evidence. These arguments are
specious both in their reliance on an imaginary numerical
norm, as well as the aspersions they cast upon the ALJ's
attentiveness. The record clearly shows that the ALJ did a
thorough and competent job in a difficult case. He was
familiar with the record at the time of the hearing,
developed the testimony and elicited further proof in an
organized and professional manner. Not only was there no
objection below to the ALJ's conduct of the hearing, but
appellant's counsel expressly declined the opportunity to
control and lengthen the presentation of his case, asking
only a few follow-up questions.
Appellant bore the burden of proof below. He has been
represented by counsel, albeit different ones, at every stage
of the proceedings. Although social security proceedings are
not strictly adversarial, and the Secretary bears a
responsibility for adequate development of the record,
Evangelista v. Secretary of HHS, 826 F.2d 136, 142 (1st Cir.
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1987), we think the ALJ here did all that could be done. He
did not sit back, but attempted to assist appellant to
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develop the record, pointed out the deficiencies as he
perceived them, and held the record open for supplementation
supportive of appellant's view of the case. No more can be
required.
Accordingly, the judgment below is affirmed.
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Document Info
Docket Number： 92-1610
Filed Date： 12/29/1992
Precedential Status： Precedential
Modified Date： 9/21/2015