Keating v. Chater ( 1998 )

USCA1 Opinion

      [NOT FOR PUBLICATION--NOT TO BE CITED AS PRECEDENT]

                 United States Court of Appeals

                     For the First Circuit











No. 98-1548



                          LINDA KEATING,



                      Plaintiff, Appellant,



                                v.



                        SHIRLEY S. CHATER,



                       Defendant, Appellee.







           APPEAL FROM THE UNITED STATES DISTRICT COURT



                FOR THE DISTRICT OF MASSACHUSETTS



           [Hon. Robert E. Keeton, U.S. District Judge]







                              Before



                     Selya, Stahl and Lynch,

                        Circuit Judges.









     Francis X. Quinn, Jr., Benjamin T. King and Boynton, Waldron,

Doleac, Woodman & Scott, P.A. on brief for appellant.

     Donald K. Stern, United States Attorney and Christopher M.

Tauro, Assistant U.S. Attorney on brief for appellee.









December 14, 1998

















            Per Curiam.  Claimant Linda J. Keating appeals from

    the judgment of the district court which affirmed the decision

    of the Commissioner of Social Security that she was not

    entitled to Social Security disability benefits.  On appeal,

    claimant argues that the determination of the administrative

    law judge (ALJ) that her impairments did not prevent her from

    performing the full range of sedentary work was not supported

    by substantial evidence.  However, in support of this

    contention, claimant raises on appeal arguments that were not

    presented, in the first instance, to the district court.

    "Ordinarily, an appellant who has not proffered a particular

    claim or defense in the district court may not unveil it in the

    court of appeals."  National Ass'n of Social Workers v.

    Harwood, 69 F.3d 622, 627 (1st Cir. 1995) (internal quotation

    marks and citation omitted).  We nonetheless briefly address,

    and reject, these new arguments.

              1.  Claimant's argument that her alleged inability to

    work full-time precludes a finding that she retained the

    capacity for the full range of sedentary work is based on the

    report of the physical therapist.  However, contrary to

    claimant's assertion, this report is not uncontradicted.  In

    particular, Dr. Marini did not limit claimant to part-time work

    when he opined that she was a candidate for retraining for a

    sedentary job and the RFC assessment completed by the

    consulting physician assumed that claimant could work full-

    time.   These reports provide substantial evidence to support

                                  -2-

    the ALJ's use of the grid based on her decision that claimant

    had the ability to perform a wide range of sedentary work.  SeeRodriguez Pagan v. Secretary of Health and Human Services, 819

    F.2d 1, 2-3 (1st Cir. 1987) (per curiam) (holding that the

    Secretary did not act unreasonably in crediting the RFC

    assessment of a consulting physician which established that

    claimant could perform sedentary work, rather than the

    conflicting reports of two of claimant's treating physicians;

    also affirming the Secretary's use of the grid).

              2.  Claimant next contends that the uncontradicted

    evidence in the record shows that the limitations on the use of

    her right hand prevent her from being able to perform the full

    range of sedentary work.  This argument fails for the simple

    reason that the record, in fact, contains conflicting evidence

    regarding the problems with claimant's right hand.  See Irlanda

    Ortiz v. Secretary of Health and Human Services, 955 F.2d 765,

    769 (1st Cir. 1991) (per curiam) (conflicts in the evidence are

    for the Commissioner, not the courts).

              Significantly, the EMG conducted in March 1992

    revealed no evidence of carpal tunnel syndrome or neuropathy in

    claimant's hands.  Further, in his discharge summary, Dr.

    Marini, claimant's treating chiropractor, did not note any

    problems with claimant's right hand when he opined that

    claimant could perform sedentary work.  Similarly, Dr. Krutt,

    in September 1993, stated that claimant had no objective

    findings which would prevent her from engaging in normal

    activities and Dr. McCann's December 1992 physical examination

    did not reveal any pathological reflexes, weakness or sensory

    disturbances.  Finally, although the physical therapist

    determined that claimant had limited use of her right hand, she

    concluded only that this limitation prevented claimant from

    performing her past work as a chef; the physical therapist did

    not state that the limitation prevented claimant from doing any

    other kinds of work.

              3.  Claimant again relies on the report of the

    physical therapist for the argument that there is

    uncontradicted evidence in the record that she needs to

    alternate positions frequently.  However, as with the

    contention regarding the limitations in the use of her right

    hand, claimant ignores the rest of the record.  Specifically,

    the residual functional capacity assessment of the consulting

    physician did not state that claimant is limited by any need to

    alternate positions; rather, this physician opined that

    claimant could sit and stand for up to six hours each in an

    eight-hour day.  This assessment, then, provides conflicting

    evidence on which the ALJ was entitled to rely.  See Rodriguez

    Pagan, supra, 819 F.2d at 2-3.

              Based on the foregoing, the ALJ's reliance on the

    grid was appropriate and a vocational expert was not required

    to testify regarding what jobs claimant could perform despite

    her impairments.  See Ortiz v. Secretary of Health and Human

    Services, 890 F.2d 520, 524-25 (1st Cir. 1989) (per curiam).

              The judgment of the district court is therefore

    affirmed.