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USCA1 Opinion
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 96-1283
ANGEL M. DIAZ-ZAYAS,
Plaintiff, Appellant,
v.
COMMISSIONER OF SOCIAL SECURITY ADMINISTRATION,
Defendant, Appellee.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Carmen Consuelo Cerezo, U.S. District Judge] ___________________
____________________
Before
Selya, Cyr and Boudin,
Circuit Judges. ______________
____________________
Paul Ramos Morales on brief for appellant. __________________
Guillermo Gil, United States Attorney, Charles E. Fitzwilliam, ______________ _______________________
Assistant United States Attorney, and Donna McCarthy, Assistant _______________
Regional Counsel, Social Security Administration, on brief for
appellee.
____________________
DECEMBER 3, 1996
____________________
Per Curiam. Claimant-appellant Angel M. Diaz-Zayas __________
appeals from a decision of the district court affirming the
decision of the Secretary of Health and Human Services
denying him social security disability benefits. We affirm.
Appellant applied for disability insurance benefits
alleging disability since November 15, 1979 due to nerves, a
heart condition, and sinusitis. After a hearing, an
Administrative Law Judge (ALJ) concluded that prior to the
expiration of his coverage--on March 31, 1983--appellant had
preventricular contractions, sinusal tachycardia, chronic
anxiety disorder, and Ativan dependence. These conditions,
the ALJ found, were severe but not equal to a listing. The
ALJ also found that appellant possibly had occasional
discomfort associated to these conditions, but that he did
not have disabling physical or mental distress for a
continuous period of twelve months. Based on these findings,
and a finding that appellant could perform light work, the
ALJ concluded that appellant was not disabled prior to the
expiration of his coverage because he could have performed
his former jobs as a machine operator or production helper.
Appellant does not argue that the ALJ erred in
finding that he has the capacity for light work. Instead, he
argues that the ALJ erred in his findings regarding
appellant's mental condition. We review the Secretary's
decision under a "substantial evidence" standard; we will
affirm that decision if it is supported by "'such relevant
evidence as a reasonable mind might accept as adequate to
support a conclusion.'" Richardson v. Perales, 402 U.S. 389, __________ _______
401 (1971) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. _______________________ ____
197, 229 (1938)); see also Manso-Pizarro v. Secretary of _________ _____________ _____________
Health & Human Servs., 76 F.3d 15, 16 (1st Cir. 1996). _____________________
Contrary to appellant's suggestion, the ALJ was not
required to accept the opinion of Dr. Garcia Saliva that
appellant's mental condition disabled him from working.
Assuming solely for the sake of argument that Dr. Garcia, who
saw appellant on only one occasion, could be considered a
treating physician, we note that there was conflicting
evidence from other treating sources regarding appellant's
ability to work. Indeed, appellant's therapists at the
Mental Health Center encouraged him, on more than one
occasion, to look for a job. In any event, the determination
of disability is reserved to the Secretary. See 20 C.F.R. ___
404.1527(e). We think the ALJ adequately explained his
reasons for finding that appellant's mental condition did not
preclude him from performing his past jobs as a machine
operator or production assistant.1 1
____________________
1We add that it is not obvious that Dr. Garcia's opinion 1
is inconsistent with this finding. Dr. Garcia opined that
appellant was disabled from performing his "usual work."
Read in context, "usual work" appears to refer to appellant's
past job as a service station attendant (the only job Dr.
Garcia mentions). Dr. Garcia did not specifically address
whether appellant was able to work as a machine operator or
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Similarly, the ALJ was not required to accept the
diagnoses of schizophrenia made by Dr. Carlos J. Nogueras and
Dr. Luis Lozada Rivera, or the more specific findings made by
Dr. Lozada regarding appellant's mental impairment. These
diagnoses and findings were made in 1992, approximately nine
years after appellant's insurance coverage expired. Cf. ___
Deblois v. Secretary of Health & Human Servs., 686 F.2d 76, _______ ___________________________________
79 (1st Cir. 1982) (observing that a claimant has the burden
of establishing that his mental impairment was of a disabling
level of severity prior to the expiration of his coverage).
There is ample evidence in the record from both treating and
non-treating sources to support the ALJ's finding that
appellant suffered from an anxiety disorder--rather than
schizophrenia--during the critical period. Moreover, the
only mental residual functional capacity assessments in the
record which focus on the critical period support the ALJ's
finding of no disability.
Affirmed. [NOT FOR PUBLICATION] ________
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
____________________
production helper.
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No. 96-1533
UNITED STATES,
Appellee,
v.
NORMAN L. BROOKS,
Defendant, Appellant.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Paul J. Barbadoro, U.S. District Judge] ___________________
____________________
Before
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Selya, Boudin and Lynch,
Circuit Judges. ______________
____________________
Richard F. Monteith, Jr. on brief for appellant. ________________________
Paul M. Gagnon, United States Attorney, and Peter E. _______________ ________
Papps, First Assistant United States Attorney, on brief for _____
appellee.
____________________
DECEMBER 3, 1996
____________________
Per Curiam. Norman L. Brooks appeals from his ___________
sentence on the sole ground that the district court, in
fashioning the restitution order, did not take adequate
account of his ability to pay. Brooks concedes that he did
not raise this argument at sentencing. Therefore, this court
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reviews the order only for plain error. See United States v. ___ _____________
Gilberg, 75 F.3d 15, 20 (1st Cir. 1996). _______
We may assume for purposes of this decision, without
deciding, that the plea agreement does not contain an
agreement to pay restitution. See United States v. Ramilo, ___ ______________ ______
986 F.2d 333, 334 (9th Cir. 1993) (interpreting similar
agreement as merely "specify[ing] the amount of the loss
sustained by each victim and hence the amount the court might
order [defendant] to pay as a result of his guilty plea" and
distinguishing it from "an agreement that [defendant] would
pay restitution in the amounts listed").
Even though the plea agreement does not preclude Brooks
from challenging the restitution order, the challenge fails
on other grounds. Brooks faults the sentencing court for
failing to consider the requisite factors, including
defendant's financial resources, as mandated by 18 U.S.C.
3664(a). The court's undisputed failure to make express
findings is not fatal, however, because "the record clearly
indicates that the court gave thought to the requisite
factors." United States v. Savoie, 985 F.2d 612, 618 (1st _____________ ______
Cir. 1993).
The presentence report contained information about
defendant's financial condition, including the financial
needs and resources of defendant and his dependents. The
sentencing court expressly adopted the findings of the
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presentence report. Therefore, there was no plain error with
regard to the court's satisfaction of its statutory
obligation under 3664(a). See United States v. Lilly, 80 ___ _____________ _____
F.3d 24, 29 (1st Cir. 1996) (holding that obligation under
3664(a) "generally is satisfied where . . . the court relies
on the presentence report detailing the defendant's financial
condition").
Brooks also argues that it was plain error for the
district court to impose a restitution order absent evidence
that he has the present or future ability to comply with the
order. "[T]he statute merely requires the court to
'consider' financial condition, among other factors, 18
U.S.C. 3664(a); there is no requirement that the defendant
be found able to pay now." United States v. Lombardi, 5 F.3d _____________ ________
568, 573 (1st Cir. 1993). With regard to future ability to
pay, we have not yet resolved the issue of "what
circumstance, if any, would preclude a district court from
ordering restitution based on prospective income." Lilly, 80 _____
F.3d at 29.
For an error to be "plain" it must be obvious. See ___
United States v. Olano, 507 U.S. 725, 732-34 (1993). Given _____________ _____
the legal uncertainty about the circumstances under which a
restitution order may be based upon prospective income, and
the factual uncertainty about whether Brooks retained any of
the ill-gotten funds which he has been ordered to repay, the
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court's restitution order was not obviously erroneous. See ___
Lombardi, 5 F.3d at 573. We "exercise our undoubted ________
discretion under Olano to disregard the alleged error." _____
United States v. Camuti, 78 F.3d 738, 747 (1st Cir. 1996). _____________ ______
Brooks' sentence is summarily affirmed. See Loc. R. __________________ ___
27.1.
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Document Info
Docket Number： 96-1533
Filed Date： 12/3/1996
Precedential Status： Precedential
Modified Date： 9/21/2015