Roman-Roman v. Commissioner of Social Security ( 2004 )


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  •                 Not for Publication in West's Federal Reporter
    Citation Limited Pursuant to 1st Cir. Loc. R. 32.3
    United States Court of Appeals
    For the First Circuit
    No. 03-2258
    PASCUAL ROMAN-ROMAN,
    Plaintiff, Appellant,
    v.
    COMMISSIONER OF SOCIAL SECURITY,
    Defendant, Appellee.
    APPEAL FROM THE UNITED STATES DISTRICT COURT
    FOR THE DISTRICT OF PUERTO RICO
    [Hon. Héctor M. Laffitte, U.S. District Judge]
    Before
    Boudin, Chief Judge,
    Lipez and Howard, Circuit Judges.
    Raymond Rivera Esteves and Juan A. Hernandez Rivera on brief
    for appellant.
    H. S. Garcia, Unites States Attorney, Camille Velez-Rive,
    Assistant United States Attorney, and Robert M. Peckrill, Assistant
    Regional Counsel, Social Security Administration, on brief for
    appellee.
    November 19, 2004
    Per Curiam.     Appellant Pascual Roman-Roman alleged
    disability due to severe mental and physical impairments.                The
    evidence submitted by appellant showed that he had worked at a
    newspaper for nearly 30 years.          Toward the end of this period a
    back injury and back surgery, followed by re-injury and other
    events, precipitated debilitating pain and serious depression.
    In   1998,     after    physical   therapy    and   psychiatric   treatment,
    appellant sought disability benefits alleging inability to work
    from March 1998 onward.
    The ALJ found that appellant's impairments barred his
    return    to    his    past   work,   but    that   despite   some   physical
    limitations appellant retained the residual physical capacity for
    unskilled light work.         These findings are not at issue on this
    appeal.      The ALJ further found, however, that appellant's non-
    exertional impairments--that is, his mental difficulties--did not
    significantly erode the occupational base available to appellant
    for such work, and that the occupational "grid" therefore applied
    to (and precluded) his disability claim.            Appellant seeks review
    of this determination.
    Our review is limited to assuring that the ALJ deployed
    the correct legal standards and found facts upon the proper
    quantum of evidence. 
    42 U.S.C. § 405
    (g) (2000); Manso-Pizarro v.
    Sec'y of Health & Human Servs., 
    76 F.3d 15
    , 16 (1st Cir. 1996)
    (per curiam).         We will uphold the decision only if it is
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    supported by substantial evidence, evidence rationally adequate
    on the record as a whole to justify the conclusion.             Rodriguez
    Pagan v. Sec'y of Health & Human Servs., 
    819 F.2d 1
    , 3 (1st Cir.
    1987) (per curiam), cert. denied, 
    484 U.S. 1012
     (1988). Although
    weighting       evidence    and   resolving   conflicts   are   the   ALJ's
    prerogative, he may not ignore evidence, misapply the law or
    judge matters entrusted to experts.           Nguyen v. Chater, 
    172 F.3d 31
    , 35 (1st Cir. 1999) (per curiam).
    Under the case law, it is appropriate for the Secretary
    to rely upon the grid to bar disability status where a claimant
    is within the exertional limitations and the admitted mental
    impairments have only a slight effect on the availability of
    work.       Heggarty v. Sullivan, 
    947 F.2d 990
    , 996 (1st Cir. 1991).
    "If     a     non-strength     impairment,    even   though     considered
    significant, has the effect only of reducing that occupational
    base marginally, the Grid . . . can be relied on exclusively . .
    . ."    Ortiz v. Sec'y of Health & Human Servs., 
    890 F.2d 520
    , 524
    (1st Cir. 1989).           The ALJ's determination thus presents two
    questions for review: whether the ALJ acted properly in crediting
    some experts' testimony over others', and if so whether the
    credited portions of the medical evidence were sufficient to
    permit the ALJ to rely solely on the grid.
    With regard to the first question, the ALJ's relative
    weighing of the medical testimony is adequately supported by the
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    evidence.        The ALJ was presented with conflicting opinions
    regarding Roman's mental capacity: these ranged from a prognosis
    of    complete    dysfunction       by   Roman's   psychiatrist     to   one   of
    moderate functioning by a non-examining government psychologist.
    The    record    also    included        two   other   government    attending
    psychologists' opinions, which were less sanguine than the non-
    attending physician but conveyed some degree of adequate mental
    functioning.      It was within the ALJ's discretion to credit the
    more positive reports of Roman's mental condition; we cannot find
    his    conclusions      in   this    regard    unsupported   by     substantial
    evidence.    See Rodriguez Pagan, 
    819 F.2d at 2-3
    .
    The second question is more difficult. The question of
    the impact of Roman's condition on the availability of work is
    one on which the Secretary bears the burden of proof, Vazquez v.
    Sec'y of Health & Human Servs., 
    683 F.2d 1
    , 2 (1st Cir. 1982),
    and under Ortiz the Secretary may use the grid as a shortcut to
    denial of disability only if the impairments do no more than
    marginally erode the range of work available to the applicant in
    an established work category.              
    890 F.2d at 524
    .       Although the
    issue is a close one, we think that even the more positive
    evaluations of Roman's mental condition are insufficient to show
    what Ortiz requires.
    The most favorable report of any of the attending
    psychiatrists still found moderate depression sufficient to merit
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    a "guarded" prognosis; it also found that appellant's judgment
    was only fair, that his short-term memory remained poor, that he
    could not concentrate enough to recite days backward or subtract
    by   threes,    and     that   his   daily     activities   were     minimal.
    Similarly,     the    non-examining    state    psychologist    noted    that
    appellant was afflicted with an affective disorder including
    depression,          irritability,      hallucinations         and      other
    characteristics that moderately limited his functioning in a
    number   of     relevant       categories,     including    understanding,
    concentration and social interaction.
    In the absence of a better explanation as to how these
    medical findings illustrate that a nearly full set of unskilled
    light work is available to Roman, we believe that a translation
    from medical evaluations to job prospects was more appropriately
    reserved for a vocational expert.              On this record, there are
    significant mental constraints outlined by even the most positive
    psychological prognoses and we cannot find any clear basis for
    concluding that the impairments have no significant effect on the
    work still available to appellant.           This certainly does not show
    that appellant is disabled but, unless this gap is closed, it
    does preclude reliance upon the grid.
    On remand, the ALJ may employ a vocational expert to
    fill the gap, obtain further medical evidence that may link
    Roman's mental capacity more directly to the work he is capable
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    of doing, or both.   This is admittedly a close case but the
    evidence of impairment is somewhat stronger here than in Ortiz,
    which affirmed a denial based upon the grid but only barely.   We
    do not suggest that a vocational expert is required in all such
    cases.
    Vacated and remanded.
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