Santos Rivera v. SHHS ( 1993 )

February 19, 1993 [NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 92-1896
SONIA SANTOS RIVERA,
Plaintiff, Appellant,
v.
SECRETARY OF HEALTH & HUMAN SERVICES, ET AL.,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Raymond L. Acosta, U.S. District Judge]
Before
Breyer, Chief Judge,
Selya and Cyr, Circuit Judges.
Salvador 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.
Per Curiam. This appeal is from a judgment of the
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 benefits alleged
an inability to work beginning May 16, 1988 due to a
combination of chest pain and mental disability. Her
application was initially denied, appealed and denied again.
A de novo hearing was held before an Administrative Law Judge
["ALJ"] on July 10, 1990. On July 30, 1990, the ALJ found
that appellant had a residual functional capacity for certain
unskilled light work jobs which exist in significant numbers
in the economy, and so was not under a disability as defined
in the Act. The Appeals Council denied appellant's request
for review. On appeal to the district court, the case was
assigned to a magistrate-judge who found that the Secretary's
decision was based on substantial evidence and recommended
affirmance. The district court adopted the magistrate's
report and recommendation, affirming the Secretary's decision
on May 11, 1992. We affirm. Appellant was 45 years old
at the time of the hearing. She had completed the third year
of high school. Her immediate past relevant work experience
was as a welder/solderer in the electronics industry, a
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position she had held for ten years prior to the onset of her
illness.
Appellant was diagnosed as suffering from chest pain and
moderate to severe depression. To qualify for benefits under
the Act, appellant bore the burden of proving that by reason
of one, or a combination of these conditions, she had an
"inability to engage in any substantial gainful activity due
to ... impairment(s) which can be expected to result in death
or last for a continuous period of not less than 12 months
.... " 42 U.S.C. 423(d)(1)(A); 42 U.S.C. 416(i)(1); 20
C.F.R. 404.1505; Bowen v. Yuckert, 482 U.S. 137, 140
(1987); McDonald v. Secretary of HHS, 795 F.2d 1118 (1st Cir.
1986).
The ALJ considered appellant's testimony, the testimony
of a vocational expert ("VE"), and appellant's medical
records. Using the five-step sequential evaluation of the
evidence required by 20 C.F.R. 404.1520, 404.1520a, the
ALJ found that appellant's impairments were severe but did
not, alone or in combination, equal the severity level of any
listed impairment. 20 C.F.R. Part 404, Subpart. P, Appendix
1. Appellant's chest pain, however, was found to prevent her
from returning to her past relevant work.
Appellant does not dispute the above findings. She
takes issue, however, with the ALJ'S finding at step five,
that despite her combination of conditions, she has a
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residual functional capacity to engage in unskilled light
work jobs which allow for alternating physical positions. See
20 C.F.R. 404.1545. Appellant's objection is not based on
the existence or numbers of such jobs in the national
economy, only the extent to which the evidence supports a
finding that she is capable of performing such work. The
Secretary bore the burden of proof on this issue. 20 C.F.R.
404.1520(f)(1); Rosado v. Secretary of HHS, 807 F.2d 292,
294 (1st Cir. 1986).
Our standard of review is whether the Secretary's
findings are supported by "substantial evidence." Although
the record may arguably support more than one conclusion, we
must 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, 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 credibility issues and conflicts in the
evidence are for the Secretary, not the courts. 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. Rodriguez
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
HHS, 654 F.2d 127, 128 (1st Cir. 1981).
There was ample medical evidence in the record to
support the ALJ's conclusion regarding appellant's physical
capacities. Appellant's chest pain was not attributed to any
major cardiac impairment, hypertension or end organ damage,
but it did require her to avoid strenuous activities.
Objective medical reports described her pain as episodic and
controlled by small doses of medication. After evaluating
appellant's subjective complaints of pain in light of the
factors set forth in Avery v. Secretary of HHS, 797 F.2d 19(1st Cir. 1986), the ALJ fairly concluded that despite her
chest condition, appellant is physically capable of the
exertions required by light and sedentary work, so long as
she is permitted to alternate positions occasionally.
There was also sufficient evidence that despite some
mental impairment attributable to major depression, appellant
retained the mental capacity to perform unskilled jobs in the
light and sedentary work categories. The medical records
showed that appellant has been treated with medications, on
an out-patient basis, at the Coamo Mental Health Center since
November, 1988. Reports from Dr. Vivian R. Bonilla, a
psychiatrist who saw appellant on two occasions, described
her as alert, oriented, coherent, spontaneous, logical and
goal directed in her responses. Both Dr. Bonilla, and a
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consulting psychiatrist, Dr. Hector Luis Rodriguez, found no
significant limitations on appellant's memory, ability to
understand and carry out short and simple instructions, ask
simple questions, set realistic goals, and respond
appropriately to changes in the work setting. In addition,
two state agency physicians, on review of appellant's medical
records, concluded that she could carry out simple
instructions, maintain a normal workweek, respond to
supervisors and co-workers and interact with the public.
The VE opined, in answer to a hypothetical summarizing
the above evidence, that appellant could not return to her
prior job of welder because the job's high production
requirements did not permit appellant to alternate positions
with the frequency required. However, the VE identified
several unskilled light work jobs which allow this
flexibility, and which can be performed by a person of
appellant's age, education and work experience suffering from
moderate mental limitations. The VE's answer assumed limited
abilities to understand, remember, concentrate, interact and
work near others, accept instruction, be punctual, etc. The
jobs he identified included hand classifier, garment folder
and hand trimmer.
Appellant contends that the ALJ erred in relying on the
VE's testimony described above. Instead, appellant says, the
ALJ should have based his decision on the VE's later answer
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to a hypothetical posed by appellant's attorney. Appellant's
hypothetical asked the VE whether appellant could perform the
identified jobs if the VE "gave credibility to the content of
Exhibit 21 and the residuals accompanying it." Exhibit 21
appears to have been a copy of Dr. Bonilla's "Mental Residual
Functional Capacity Assessment." The VE's answer was in the
negative.
Appellant argues that the ALJ was required to accept the
VE's response to the latter question as "controlling" because
it was based on the opinion of a doctor described as a
"treating" psychiatrist. This argument is an apparent
reference to a recently promulgated regulation, 20 C.F.R.
404.1527 (1991), which describes the manner in which the
Secretary weighs medical evidence of disability. One part
provides:
Generally we give more weight to opinions from your
treating sources .... If we find that a treating
source's opinion on the issue(s) of the nature and
severity of your impairments is well supported by
medically acceptable clinical and laboratory
diagnostic techniques and is not inconsistent with
other substantial evidence in your case record, we
will give it controlling weight. When we do not
give ... controlling weight, we will apply [other
factors] in determining [its] weight ... We will
always give good reasons in our ... decision for
the weight we give your treating source's opinion.
20 C.F.R. 404.1527(d)(2).
The regulation is thus neither as delimiting nor
inflexible as appellant's argument suggests. It does not
mandate assignment of some unvarying weight to every report
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in every case. The ALJ is not required automatically to give
controlling weight to any "treating" doctor's report,
denominated as such. In some cases "controlling weight" may
be assigned if the report meets the specified qualifications,
and is not inconsistent with other substantial evidence. In
other cases, the weight of a treating source's report is
further evaluated in light of the many factors articulated
throughout the remainder of the rule. See 20 C.F.R.
404.1527(d)(1)-(6). And in any event, the "controlling
weight" language is relevant only to those medical opinions
which the regulations elsewhere define as originating from a
"treating" source. That term, too, is not static. As
defined in 20 C.F.R. 404.1502, and further refined in
404.1527(d)(2)(i)(ii), it refers to a physician or
psychologist with whom the applicant has an "ongoing
treatment relationship," as determined by the type, frequency
and quality of doctor-patient contact in light of its
consistency with accepted medical practice for the particular
condition. In all cases, the responsibility for determining
whether the statutory definition of disability has been met
is reserved to the Secretary. 20 C.F.R. 404.1527(e).
We need not reach the Secretary's argument that Dr.
Bonilla is not properly defined as a "treating" doctor
because we think that appellant exaggerates the record in
reaching an issue under this regulation. We do not read the
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ALJ's decision as rejecting Dr. Bonilla's opinion, nor as
according its relevant portions any less than full weight.
Since Dr. Bonilla's opinion was, for the most part, entirely
consistent with the other medical evidence, and was among the
opinions cited by the ALJ as cumulatively informing his
decision, there was no occasion redundantly to describe the
weight assigned to this part of Dr. Bonilla's opinion as
"controlling," or otherwise.
Moreover, as to the "Mental Residual Functional
Capacity Assessment," it appears to us that what the ALJ
rejected was not Dr. Bonilla's conclusions, but appellant's
interpretation of both the assessment and the VE's answer to
appellant's hypothetical. The VE's response was ambiguous
due to the question posed. The hypothetical did not specify
facts, but simply asked the VE to assume as a basis the
entire, multi-faceted, three-page exhibit. It is thus not
clear how the expert understood the question, or which of its
multiple facts he was relying upon in his answer. The VE's
answer mentioned the "physical demands" of a job, a term
which does not even appear in the exhibit. And appellant's
follow-up question, which included, as an additional
predicate, appellant's subjective complaints of pain,
headaches, and the like, did not help to clarify any
objective basis for the first answer.
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The ALJ interpreted Dr. Bonilla's assessment as
reflecting that appellant suffered only insignificant or
moderate degree limitations in the mental abilities required
for the simple tasks in the unskilled job category. It is
true the assessment also recited some "markedly" limited
abilities, including the ability to sustain attention and
concentration for extended periods and "to complete a normal
workday ... without interruptions from psychologically based
symptoms." But the ALJ determined that these limitations
were of primary relevance to skilled or semi-skilled
positions, not unskilled jobs with only light production
demands. This conclusion was supported by the VE's earlier
testimony as to the mental skills needed in the various
categories.
As we read the ALJ's decision, then, it was a logical
matching of Dr. Bonilla's medical conclusions with the expert
evidence relating to the job market. The ALJ did not reject
any of the doctor's medical conclusions nor assign them any
lesser weight. His interpretation of Dr. Bonilla's opinion
was well supported by the other assessments and medical
evidence in the record, including Dr. Bonilla's own written
report of her examination of appellant. And we note,
parenthetically, that had the ALJ instead adopted appellant's
interpretation, reading Dr. Bonilla's assessment as
inconsistent with the other substantial medical evidence in
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the record, the regulation cited would not, as appellant
argues, have required the assignment of "controlling"
weight.1
For the reasons stated, the decision below is affirmed.
1. Although 20 C.F.R. 404.1527, was promulgated in final
form on August 1, 1991, while this case was pending on
appeal, the Secretary has not objected to the applicability
of the regulation's approach in this case. In light of our
conclusions and the lack of objection, we have no need to
consider any questions of retroactivity.
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