Santiago-Jimenez v. SHHS ( 1993 )

[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 92-1970
JULIO SANTIAGO-JIMENEZ,
Plaintiff, Appellant,
v.
SECRETARY OF HEALTH AND HUMAN SERVICES,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Juan M. Perez-Gimenez, U.S. District Judge]
Before
Torruella, Cyr and Stahl,
Circuit Judges.
Savador 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.
June 9, 1993
Per Curiam. Claimant appellant Julio Santiago-
Jimenez filed an application for social security disability
benefits in June, 1986. He alleged an inability to work
beginning January, 1986, due to a cardiovascular condition.
Claimant was 37 years old on the date of alleged onset. His
most recent employment had been as a laborer and packer, jobs
which required heavy physical exertion.
There have been two evidentiary hearings in this
case. At the first hearing on December 16, 1987, appellant,
his wife, and a medical advisor testified. The
administrative law judge ("ALJ") held appellant not disabled
at step five of the sequential evaluation process. See
Goodermote v. Secretary of HHS, 690 F.2d 5, 6-7 (1st Cir.
1982). Specifically, the ALJ found that while appellant had
a severe impairment which precluded return to his past
relevant work, he nevertheless had a residual functional
capacity for the full range of light work jobs available in
the economy. The ALJ's functional capacity assessment,
however, had been made without the assistance of a qualified
physician. On appeal to the district court, the case was
remanded to the ALJ for further consideration in light of
this court's previous decisions. See Rivera-Figueroa v.
Secretary of HHS, 858 F.2d 48, 52 (1st Cir. 1988); Rivera-
Torres v. Secretary of HHS, 837 F.2d 4, 7 (1st Cir. 1988) (a
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lay fact-finder is not qualified to determine functional
capacity solely on the basis of bare medical findings).
On remand, the ALJ held a supplementary hearing at
which he heard more testimony from claimant, as well as the
testimony of a second medical advisor and a vocational
expert. On the basis of the entire record, the ALJ then
concluded that appellant retained a capacity for sedentary
jobs which existed in significant numbers in the economy, as
well as one or two positions identified as "light" work jobs.
Appellant appealed to the district court again. The
magistrate-judge issued a report recommending affirmance of
the ALJ's decision. The district court adopted the
magistrate's report and recommendation, affirming the
Secretary. This appeal followed. We, too, affirm.
We are met at the outset with an argument from the
Secretary that the appeal should be dismissed because
appellant allegedly failed to file timely objections to the
magistrate's report in the district court. Failure to file
specific objections to a magistrate's report within the time
allowed ordinarily waives the right to appeal the district
court's order. Thomas v. Arn, 474 U.S. 140 (1985); United
States v. Valencia-Copete, 792 F.2d 4 (1st Cir. 1986).
Appellant's alleged late filing in this case, however,
contained specific objections to the report, as well as an
assertion that he had received the report only six days
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earlier. The Secretary did not challenge claimant's
assertion of late notice in the court below, nor object in
any way to the district court's consideration of the merits.
The district judge adopted the magistrate's report without
reference to the timeliness of the objections. We thus have
no reason to consider the Secretary's belated procedural
challenge here.
Appellant's argument on the merits is confined to a
single issue: whether the ALJ correctly determined on remand
that appellant is capable of performing sedentary work,
despite evidence that he suffers from occasional episodes of
chest pain. On this review our task is to determine whether
the Secretary's findings are supported by "substantial
evidence." Although the record may support more than one
conclusion, we uphold the Secretary when "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, 769 (1st Cir. 1991), quoting
Rodriguez v. Secretary of HHS, 647 F.2d 218, 222 (1st Cir.
1981); see also Richardson v. Perales, 402 U.S. 389, 401
(1971). Resolutions of conflicts in the evidence are for the
Secretary. Ortiz, 955 F.2d at 769; Evangelista v. Secretary
of HHS, 826 F.2d 136, 141 (1st Cir. 1987). Where the facts
permit diverse inferences, we will affirm the Secretary so
long as the inferences drawn are supported by the evidence.
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Rodriguez Pagan v. Secretary of HHS, 819 F.2d 1, 3 (1st Cir.
1987), cert. denied, 484 U.S. 1012 (1988); Lizotte v.
Secretary of HHS, 654 F.2d 127, 128 (1st Cir. 1981).
Using the criteria for the evaluation of complaints
of pain set forth in Avery v. Secretary of HHS, 797 F.2d 19(1st Cir. 1986), the ALJ determined that the objective
medical findings in the record did not substantiate
appellant's claims of functionally limiting pain to the
degree alleged. There was ample evidence for this
conclusion. While appellant's chest condition had been
variously diagnosed, both medical advisors testified that
claimant's pain was not ischemic in nature, but was instead
associated with costochondritis, an inflammation of the
cartilage connecting the ribs to the sternum. They stated
that the condition is treatable with steroids and anti-
inflammatory medications. While costochondritis can cause
severe pain, both medical advisors concluded that the
diagnosis alone did not dictate a medical basis for the
frequency and degree of functionally limiting pain which
appellant alleged.
At the supplementary hearing, the medical advisor
also testified that, despite appellant's chest condition, he
retained a functional capacity for sedentary work. Appellant
was found able to lift ten pounds, sit and stand for six to
eight hours at a time, and change positions. The expert
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based his opinion on all of the medical records and tests,
expressly including consideration of appellant's
costochondritis as well as his occasional tachycardia,
controlled hypertension, pain, and the effects of appellant's
various medications. While the expert conceded that
appellant would be unable to work during any episode of
uncontrolled severe pain, which might occur on average once
per week, he stated that such an episode would be of limited
duration, lasting no more than one hour. He based the latter
estimate largely on appellant's own testimony as to the
effectiveness of prescribed medication in controlling his
pain.
The vocational expert also testified to the
existence of a series of jobs which a person with appellant's
skills and stamina could perform, despite occasional episodes
of severe pain. In sum, there was substantial evidence to
support the ALJ's conclusion that claimant was "not disabled"
at step five. Appellant argues that the ALJ
should, instead, have credited appellant's testimony to the
effect that he suffered much more frequent (even daily)
debilitating bouts of pain. Both the medical advisor and
vocational expert agreed that if appellant's bouts of pain
were as severe and frequent as he claimed, appellant would be
unable to perform any sedentary job in the economy. However,
evaluation of the credibility of unsubstantiated subjective
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reports of pain is for the Secretary -- not the courts -- to
resolve. Evangelista v. Secretary of HHS, 826 F.2d 136 (1st
Cir. 1987). "The credibility determination by the ALJ, who
observed the claimant, evaluated his demeanor, and considered
how that testimony fit in with the rest of the evidence, is
entitled to deference, especially when supported by specific
findings." Frustaglia v. Secretary of
HHS, 829 F.2d 192, 195 (1st Cir. 1987).
Accordingly, the decision below is affirmed.
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