Cabrera Mendez v. SHHS

Opinion

USCA1 Opinion

March 9, 1995
                                [NOT FOR PUBLICATION]
                            UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT

____________________

No. 94-2012

                                SONIA CABRERA MENDEZ,
                                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. Jose Antonio Fuste, U.S. District Judge]
                                              ___________________

                                 ____________________

                                        Before

                                Torruella, Chief Judge,
                                           ___________
                          Selya and Boudin, Circuit Judges.
                                            ______________

                                 ____________________

            Raymond Rivera Esteves and Juan A.  Hernandez Rivera, on brief for
            ______________________     _________________________
        appellant.
            Guillermo  Gil,  United  States  Attorney,  Maria  Hortensia Rios,
            ______________                              _____________________
        Assistant  United  States Attorney,  and  Robert  J. Triba,  Assistant
                                                  ________________
        Regional Counsel,  Department of Health  and Human Services,  on brief
        for appellee.

____________________

                                 ____________________



Per Curiam.   Sonia  Cabrera Mendez appeals  from a
                      __________

            district  court judgment  affirming a  final decision  of the

            Secretary of  Health and  Human Services  to the  effect that

            appellant  did not  meet the  disability requirements  of the

            Social  Security  Act  for purposes  of  obtaining disability

            insurance benefits.  As there is substantial evidence  in the

            record to support the Secretary's decision, we affirm.

                      Appellant  alleged an  inability to  work beginning

            January 25, 1990, due to a musculoskeletal condition, asthma,

            dysthymia  and  anxiety.     Following  a  hearing  at  which

            appellant testified,  the  Administrative Law  Judge  ("ALJ")

            found that appellant had  a severe impairment which prevented

            her  from   returning  to  her  former  work   as  an  office

            receptionist and  rendered  her skills  nontransferable,  but

            twice concluded that  she was not  disabled at Step 5  of the

            familiar  sequential   analytic   process.     20  C.F.R.    

            404.1520(f).

                      In his first decision  the ALJ found that appellant

            retained a functional  capacity to  perform a  wide range  of

            light  work which  was not  significantly compromised  by her

            nonexertional limitations,  so considering her age  (42 years

            old), and education (12th grade), the denial of benefits  was

            directed by  application of the  "grid," 20 C.F.R.  Part 404,

            Subpt. P, App. 2, Rules 202.20, 202.21.  The Appeals Council,

            however, remanded the  case to the  ALJ with instructions  to

-2-



obtain a vocational expert's [VE's] assessment of appellant's

            occupational  base in light of the medical record relating to

            appellant's nonexertional limitations.  

                      Following a new hearing at which appellant and a VE

            testified, the ALJ again denied  benefits.  The second denial

            was based  on the VE's  affirmative answer  to the  following

            hypothetical question.

                 [A]ssuming hypothetically .  . . that the  claimant
                 physically would be limited  to sedentary or  light
                 activities.  . .  where she  would lift  ten pounds
                 frequently and  20 pounds maximum, and  most of the
                 work would be standing,  but if necessary she could
                 alternate her position as  needed . . . .  That the
                 work  should be  performed .  . .  in a  clean work
                 environment, in which she would not be subjected to
                 excessive  dust  or  dirt,  fumes,  noxious  odors,
                 excessive heat or cold.  That from a non-exertional
                 standpoint  the claimant  should not  be placed  in
                 work where she would  be under intensive tension or
                 pressure in the performance of  the work.  In other
                 words,  it  should be  work that  is of  a routine,
                 repetitive and  simple nature.   Also, it  would be
                 preferable  that  she  not  meet the  public  on  a
                 continuing [or frequent] basis.

                 . . . .

                 That  any work  that she  would perform  that might
                 elicit  any  type of  pain  should  be regarded  as
                 tolerable  pain,  meaning  in effect  it  would not
                 affect  her  attention   or  concentration  in  the
                 performance  of her  work functions.   Under  these
                 circumstances would  she be  able to return  to her
                 former  employment or  would  there  be other  jobs
                 existing  within  the  national  or  local  economy
                 applicable to the claimant?

            T.62-63.  In response, the VE opined that appellant could not

            resume her former work, but identified several unskilled jobs

            capable of  being  performed  by a  person  with  the  stated

-3-



limitations, and  which exist  in substantial numbers  in the

            local economy.

                      The Secretary  may meet  her burden of  proving the

            existence  of a  substantial number of  suitable jobs  in the

            economy by relying upon an  expert's answer to a hypothetical

            question, so  long as the hypothetical  itself corresponds to

            conclusions that are supported by substantial evidence in the

            record.   Arocho v. Secretary of HHS,  670 F.2d 374, 375 (1st
                      ______    ________________

            Cir. 1982).  To  guarantee that correspondence, the ALJ  must

            first  resolve  ambiguities  in  the  evidence,  decide  what

            testimony to  credit, and  accurately  transmit the  relevant

            conclusions to the expert in the form of assumptions.  Id.  
                                                                   ___

                      Appellant   argues   that   the  hypothetical   was

            defective  because  it  did  not fairly  reflect  the  record

            evidence of her impairments.   She contends that the  ALJ was

            required  instead to  accept  the VE's  negative response  to

            three other hypotheticals which  posited a claimant with more

            severe functional limitations.  We do not agree.  

                      While   hardly   a  model   of   articulation,  the

            hypothetical    nonetheless    acceptably   corresponds    to

            conclusions   that  find substantial  support in  the medical

            evidence.     The  record  shows  that   appellant  had  been

            repeatedly treated for depression  and anxiety since at least

            October,  1990.   All  the examining  psychiatrists reported,

-4-



however, that appellant  was coherent, logical, and  oriented

            in three spheres (person, place, and time).  

                      There was  conflicting evidence about  the severity

            of  appellant's depressive  disorder  and its  effect on  her

            ability to work.   On the one hand, appellant was admitted to

            the  emergency room at least  once with a  diagnosis of major

            depression.  In addition, a psychiatrist who treated her from

            March through October,  1991, diagnosed a dysthymic  disorder

            with psychomotor  retardation of  such severity as  to render

            appellant  unable to  understand  and carry  out even  simple

            instructions  under ordinary  supervision, or to  sustain any

            work   performance,   even   in  minimally   stressful   work

            situations.  

                      On  the  other  hand,  a   consulting  psychiatrist

            concluded in December,  1991, that  while appellant  suffered

            serious mental limitations, she  retained a "fair" ability to

            follow work rules and  deal with work stresses, and  a "good"

            ability to  maintain concentration, understand,  remember and

            carry  out  simple job  instructions.    Assessments by  non-

            examining  doctors in  November,  1990 and  June, 1991,  also

            concluded that appellant had  only moderate and insignificant

            limitations on  the various  capacities needed to  maintain a

            consistent work schedule and carry out simple tasks.  

                      The hypothetical assumption that appellant retained

            some   functional  capacity  for  simple  tasks  despite  her

-5-



depressive disorder thus was reasonably  substantiated by the

            evaluating and  non-examining doctors' reports.   The ALJ was

            not  required to  accept  the treating  psychiatrist's bottom

            line conclusion that  appellant was unable  to engage in  any

            work,  see 20  C.F.R.    404.1527(e),  especially  as it  was
                   ___

            inconsistent with  other  substantial medical evidence in the

            record.  See  20 C.F.R.    404.1527(d)(2).  The  hypothetical
                     ___

            also  fairly  summarized   the  limitations  which  all   the

            examining psychiatrists confirmed:  appellant's need to avoid

            stress  and to  confine  her activities  to simple,  solitary

            tasks.   While  reasonable minds  may differ  on how  best to

            characterize  the degree  of  stress  which  appellant  might

            tolerate,  we  are not  in a  position  to gainsay  the ALJ's

            interpretation, but  confine our  analysis to the  search for

            "substantial evidence."  Id.; Rodriguez Pagan v. Secretary of
                                     __   _______________    ____________

            HHS, 819 F.2d  1, 3 (1st Cir.  1987), cert. denied,  484 U.S.
            ___                                   ____________

            1012 (1988).   It is the ALJ's job, not the court's, to chose

            between  competing evidence  and  inferences.   See Ortiz  v.
                                                            ___ _____

            Secretary of HHS, 955 F. 2d 765, 769 (1st Cir. 1991).       
            ________________

                      As  to appellant's physical  condition, again there

            was conflicting evidence.  Although a neurologist tentatively

            diagnosed collagen disease,  and chronic cervical and  lumbar

            syndromes which  might render  appellant unable to  work, the

            diagnosis was  expressly conditioned  on a reevaluation  by a

            rheumatologist.      Consulting   rheumatologists,   however,

-6-



diagnosed  several  mild and  moderate  conditions, including

            myositis,      bursitis,      tendinitis,      epicondylitis,

            costochondritis,     psychogenic     rheumatism,    and     a

            polyradiculopathy  of unknown origin, but found normal muscle

            strength and  no limitations on appellant's  range of motion.

            Two residual  functional capacity assessments  concluded that

            appellant  was physically  capable  of  "medium" level  work.

            Again,  the  ALJ's  resolution  of   the  conflict,  limiting

            appellant to "light" work  to avoid aggravating her diagnosed

            conditions, is supported by substantial evidence.   Moreover,

            the  hypothetical  carefully  echoed  all  the  environmental

            limitations suggested by the  medical reports to  accommodate

            appellant's  asthma and  "very  mild"  restrictive  pulmonary

            dysfunction.

                      Appellant's final argument is that the ALJ erred by

            assigning "little credibility"  to appellant's own  testimony

            that she suffered from totally debilitating pain, depression,

            and  anxiety.    The transcript  of  the  hearing  shows that

            appellant  was   thoroughly  questioned  as  to  all  matters

            relevant  to her subjective symptoms.  See Avery v. Secretary
                                                   ___ _____    _________

            of HHS, 797 F.2d 19 (1st Cir. 1986).  We necessarily defer to
            ______

            the ALJ's evaluation  of appellant's credibility,  especially

            since  it  is  supported  by  substantial   medical  evidence

            consistent  with  a  lesser  degree  of  pain  and a  greater

-7-



functional capacity.  See Frustaglia v. Secretary of HHS, 829
                                  ___ __________    ________________

            F.2d 192, 195 (1st Cir. 1987).    

                      Although  the  record   arguably  could  support  a

            different   conclusion,   there   is   substantial   evidence

            undergirding the  ALJ's determination.  Thus,  we must uphold

            the Secretary's  decision.    See  Ortiz, 955  F.2d  at  770;
                                          ___  _____

            Rodriguez Pagan, 819 F.2d at 3.   
            _______________

                      Affirmed.
                      ________

-8-