Diaz-Zayas v. Comm. Social Sec. ( 1996 )

USCA1 Opinion

                                [NOT FOR PUBLICATION]



                            UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT



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        No. 96-1283





                                 ANGEL M. DIAZ-ZAYAS,



                                Plaintiff, Appellant,



                                          v.



                   COMMISSIONER OF SOCIAL SECURITY ADMINISTRATION,



                                 Defendant, Appellee.



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                     APPEAL FROM THE UNITED STATES DISTRICT COURT



                           FOR THE DISTRICT OF PUERTO RICO



                  [Hon. Carmen Consuelo Cerezo, U.S. District Judge]
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                                        Before



                                Selya, Cyr and Boudin,

                                   Circuit Judges.
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            Paul Ramos Morales on brief for appellant.
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            Guillermo  Gil, United  States  Attorney, Charles  E. Fitzwilliam,
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        Assistant  United  States  Attorney,  and  Donna  McCarthy,  Assistant
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        Regional   Counsel,  Social  Security  Administration,  on  brief  for

        appellee.





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                                   December 3, 1996

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                      Per Curiam.  Claimant-appellant Angel M. Diaz-Zayas
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            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,
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            401 (1971) (quoting Consolidated Edison Co. v. NLRB, 305 U.S.
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            197,  229 (1938));  see  also Manso-Pizarro  v. Secretary  of
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            Health & Human Servs., 76 F.3d 15, 16 (1st Cir. 1996).
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                      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.
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            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
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               1We add that it  is not obvious that Dr.  Garcia's opinion
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            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.
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            Deblois v. Secretary of  Health & Human Servs., 686  F.2d 76,
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            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.
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            production helper.



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