Devlin v. SHHS

Opinion

USCA1 Opinion

December 29, 1992     [NOT FOR PUBLICATION]

UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT

___________________

No. 92-1610

JOHN DEVLIN,

                                Plaintiff, Appellant,

                                          v.

                       SECRETARY OF HEALTH AND HUMAN SERVICES,

                                 Defendant, Appellee.

                                  __________________

                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                          FOR THE DISTRICT OF MASSACHUSETTS

                     [Hon. Joseph L. Tauro, U.S. District Judge]
                                            ___________________

                                 ___________________

                                        Before

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

                                 ___________________

               Richard L.  Neumeier, Paul  M. Moretti and  Parker, Coulter,
               ____________________  ________________      ________________
          Daley & White on brief for appellant.
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               A.  John  Pappalardo,  United  States  Attorney,  George  B.
               ____________________                              __________
          Henderson, II,  Assistant United  States Attorney, and  Thomas D.
          _____________                                           _________
          Ramsey,  Assistant  Regional  Counsel,  Region  I, Department  of
          ______
          Health and Human Services, on brief for appellee.

                                  __________________

                                 __________________ 

Per  Curiam.   This  appeal is  from  a judgment  of the
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            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   insurance

            benefits and Supplemental  Security Income benefits,  alleged

            an inability to work  beginning on April 17, 1987, the day he

            met  the special statutory  earnings requirement  for insured

            status.  His application  was initially denied, appealed, and

            denied  again.    A  de  novo  hearing  was  held  before  an
                                 __  ____

            Administrative Law  Judge ("ALJ") on  December 5, 1988.   The

            ALJ found  that appellant had a  residual functional capacity

            for sedentary  work activities,  including his  past relevant

            work, and so  was not under  a disability as  defined in  the

            Act.   Appellant's  request  for review  was  denied  by  the

            Appeals  Council.    The  district  court  upheld  the  ALJ's

            decision, finding  it was  based on substantial  evidence. We

            affirm.  

                 Appellant was 45 years of age at the time of the de novo
                                                                  __ ____

            hearing.    He   had  a  ninth  grade   education  with  some

            specialized vocational training in electronics.   As relevant

            here, his  employment history  included work  as a  tester of

            personal computer boards.  

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Appellant  was  diagnosed  as  suffering  from  a  heart

            condition,  high blood pressure,  respiratory impairment, and

            peripheral vascular occlusive disease with neuropathy of  the

            left leg and  foot.   His heart condition  required a  triple

            bypass  operation in  1985.   A second  bypass operation  was

            considered, but not recommended because of the risks. 

                 These  are  indeed  severe impairments,  as  the  record

            shows, and the ALJ  found.  But to qualify for benefits under

            the Act, appellant had  the burden of proving that  by reason

            of one or more of them, he had an "inability to engage in any

            substantial gainful  activity ... for a  continuous period of

            not less than 12 months ....  "  42 U.S.C.   423(d)(1)(A); 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).   

                  Appellant  carries this burden  of proof throughout the

            first four steps of the sequential evaluation of the evidence

            required by the regulations.  20 C.F.R.   1520; Goodermote v.
                                                            __________

            Secretary of  HHS,  690  F.2d  5,  7 (1st  Cir.  1982).    He
            _________________

            challenges here the ALJ's determination at step four -- that,

            in light of appellant's  residual functional capacity and the

            demands  of his  past  relevant work,  appellant could  still

            engage in  sedentary work he had done in the past as a tester

            of  personal   computer  boards.     20  C.F.R.      1520(f).

            Appellant's  burden  at this  step  of  the process  included

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proving that  his impairment prevented him  from returning to

            this type  of work  generally, not solely  to the  particular

            job.  See Dudley v. Secretary  of HHS, 816 F.2d 792, 794 (1st
                  ___ ______    _________________

            Cir.  1987); Gray  v. Heckler,  760 F.2d  369, 372  (1st Cir.
                         ____     _______

            1985). 

                 Appellant's  primary argument  here  is  that the  ALJ's

            decision was not supported  by the evidence.  He  also argues

            that the ALJ failed to consider the effect of the combination

            of impairments  on  appellant's residual  capacity,  did  not

            properly  develop evidence  relating to  the side  effects of

            appellant's medications,  and did  not  properly conduct  the

            hearing.  We deal with these arguments in turn.   

                 Under Section 205(g) of the Act, 42 U.S.C.   405(g), our

            standard of  review is whether the  Secretary's determination

            is supported by "substantial  evidence."  Although the record

            may  support more  than one  conclusion, we  will  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,
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            647  F.2d 218, 222 (1st  Cir. 1981)); see  also Richardson v.
                                                  _________ __________

            Perales,  402  U.S.  389,  401  (1971).    The  resolution of
            _______

            conflicts  in the  evidence  is for  the  Secretary, not  the

            courts.   Ortiz, 955  F.2d at  769.  Where  the facts  permit
                      _____

            diverse  inferences, we will affirm  the Secretary so long as

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the inferences drawn are  supported by the evidence,  even if

            we  might have  reached  a different  conclusion.   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).    
            ___

                 This is a close case because of the conceded severity of

            appellant's   multiple   conditions   and   the   conflicting

            inferences that might be drawn  from the evidence.   However,

            we see no basis for questioning the ALJ's resolution of these

            conflicts.      

                 In  determining  that  appellant  retained   a  residual

            functional  capacity  for  sedentary  work,  the  ALJ  placed

            primary reliance on evidence appellant himself produced.  The

            ALJ rejected  the agency doctors' conclusions  that appellant

            could  perform the  more strenuous  activities in  the "light

            work"  category.  Appellant's  combination of conditions, the

            ALJ  said,  precluded  him  from  performing  tasks  in  that

            category  because of  its requirements of  extensive standing

            and walking.

                 Nevertheless, appellant's own treating doctors' reports,

            combined with other record evidence, supported a finding that

            appellant  retained sufficient  residual capacity  to perform

            the full range of sedentary work activities.  While appellant

            correctly points out that in Gordils v. Secretary of HHS, 921
                                         _______    ________________

            F.2d 327, 329 (1st  Cir. 1990), we reaffirmed that,  "the ALJ

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is not qualified to assess residual functional capacity based

            on a bare medical record," this is not such a case. 

                  The ALJ had  here, in addition to  an extensive medical

            record and  the agency  doctors' assessments and  analyses of

            the record,1  a functional capacity assessment by appellant's

            treating physician, plainly stated in lay person's terms. 

                 On  January  13,  1988,   Dr.  Sapienza,  who  had  been

            appellant's  treating  physician  for  more  than  a  decade,

            stated:

                 [Appellant]  is  unable to  perform  work functions
                 that will bring him  much of a remunerative reward.
                 Certainly he can sit  for extended periods of time,
                 but then has  to get up and  stretch his legs.   He
                 can stand for extended periods  of time but he does
                 have to  get off his feet and rest.  He can lift up
                 to ten pounds  without any problem.   He can  think
                 and write.  

            As the ALJ observed, sedentary work  typically allows for the

            very conditions Dr. Sapienza  here describes -- an alteration

            between  sitting and  standing,  at least  to  the extent  of

____________________

            1.  We read the ALJ's rejection of the agency doctors' "light
            work"  conclusion as  a disagreement  with the  implied legal
            conclusion,  not as  a  rejection of  the doctors'  firsthand
            observations  of  appellant,  and  analyses  of  the  medical
            records. Like  the treating doctors, the  agency doctors said
            that  appellant  could  not engage  in  repetitive  climbing,
            balancing,  stooping, kneeling,  crouching  and crawling.    
            And, contrary to the suggestion in appellant's brief, we know
            of no  rule that  invariably requires assignment  of "little"
            weight  to  reports by  non-treating  physicians.   Both  the
            absolute and  relative evidentiary weight of doctors' reports
            must  necessarily vary  with the  facts of  each case.   See,
                                                                     ____
            e.g.,  Gray, 760 F.2d at 372-73; Sitar v. Schweiker, 671 F.2d
            ____   ____                      _____    _________
            19,  22 (1st Cir. 1982);  Rodriguez v. Secretary  of HHS, 647
                                      _________    _________________
            F.2d 218, 223-24 (1st Cir. 1981).  

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allowing the claimant to  get up and stretch.2   This report,

            together   with  the   ALJ's  "commonsense   judgments  about

            functional  capacity  based  on  medical  findings,"  and the

            corroborating inferences he  found in appellant's  testimony,

            are clearly enough for substantial evidence. See Gordils, 921
                                                         ___ _______

            F.2d at 329. 

                 Although the ALJ's interpretation  of the record was not

            the  only one possible,  it was certainly  a reasonable one.3

            At the  hearing, appellant's  counsel offered a  report dated

            December, 1988, from  Dr. Moschitto,  who had  taken over  as

            appellant's treating  physician earlier in the  year when Dr.

            Sapienza retired.

                 Dr. Moschitto's report concluded:

____________________

            2.  Sedentary work is defined in 20 C.F.R.   404.1567(a), as:
                 [W]ork involv[ing]  lifting no more than  10 pounds
                 at  a  time and  occasionally  lifting or  carrying
                 articles  like  docket  files,  ledgers,  and small
                 tools.  Although  a sedentary job is defined as one
                 which involves sitting, a certain amount of walking
                 and standing is often necessary in carrying out job
                 duties.  Jobs are sedentary if walking and standing
                 are  required  occasionally  and   other  sedentary
                 criteria are met.

            3.  We note that the arguments in appellant's brief are based
            on a different interpretation  of the record, relying heavily
            on appellant's hearing testimony.  Appellant estimated a more
            limited tolerance for sitting and standing -- saying that due
            to leg pain, he estimated he could only stand for 15  minutes
            at a time and sit for 30 minutes at a time.  However, the ALJ
            is not  required to accept appellant's own estimates over the
            doctors' reports.   Frustaglia v. Secretary of  HHS, 829 F.2d
                                __________    _________________
            192, 195 (1st  Cir. 1987). On  appeal, the ALJ's  credibility
            determinations and resolutions of  conflicts in evidence, are
            entitled to deference, especially when supported by  specific
            findings.  Id.
                       ___

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[Appellant's]  coronary   and  peripheral  vascular
                 disease are clearly a severe degree such that he is
                 totally  disabled.  I am not aware of any unskilled
                 job  in  the present  labor  market  that does  not
                 involve  mental  stress,   prolonged  standing   or
                 ambulation to a degree that he is  capable of doing
                 safely.

                 Partly because  of the competing inferences  to be drawn

            from this report, the  ALJ decided, sua sponte, to  hold open
                                                ___ ______

            the record for 15 days after the hearing to give appellant an

            opportunity to  supplement the  evidence.  The  ALJ carefully

            explained that despite a surface conflict with Dr. Sapienza's

            assessment,  Dr. Moschitto's conclusion of "total" disability

            is ambiguous.  It appears to be  based as much or more on Dr.

            Moschitto's  belief about  the  configuration  of  the  labor

            market,  in  which  he  was not  a  known  expert,  as on  an

            assessment of appellant's functional  capacity.  Further, Dr.

            Moschitto's  statement  that appellant  could  not  engage in

            "prolonged"   standing  or  ambulation,  is  not  necessarily

            inconsistent   with  a   residual  functional   capacity  for

            sedentary work.  

                 Despite  the  opportunity  to do  so,  the supplementary

            materials and  memorandum which  appellant then  produced did

            not explain the ambiguity  in Dr. Moschitto's report, address

            the  inconsistency between the treating doctors' conclusions,

            nor undermine the plain import of Dr. Sapienza's opinion.  

                 In  light  of  appellant's  failure  to  produce   proof

            directly supporting  a contrary  interpretation,  we have  no

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difficulty   concluding  that   the  ALJ   did  not   err  in

            determining,  on  the  basis  of  substantial evidence,  that

            appellant had  a residual functional  capacity for  sedentary

            work. See Rodriguez Pagan, 819 F.2d at 3.   
                  ___ _______________

                 There   was   also   substantial   evidence,   based  on

            appellant's  own written  description  of his  past work,  to

            support  the  determination  that appellant  was  capable  of

            returning,  specifically,  to his  past  relevant  work as  a

            computer board tester.  The  ALJ was entitled to rely on  the

            claimant's  own job  description.   Santiago v.  Secretary of
                                                ________     ____________

            HHS, 944 F.2d  1, 5 (1st Cir.  1991).  To the  extent that it
            ___

            diverged from  the description claimant gave  at the hearing,

            we defer to the ALJ, who is in the better position to resolve

            such conflicts. Ortiz, 955 F.2d at 765.
                            _____

                 Appellant's  remaining  assignments   of  error  do  not

            withstand a  reading  of  the record.    First,  contrary  to

            appellant's  characterization, it  is  clear from  the  ALJ's

            lengthy  analysis  of the  evidence  that  he considered  the

            effect  of  the  "combination" of  appellant's  conditions on

            appellant's ability to work.  See McDonald, 795 F.2d at 1126.
                                          ___ ________

            Moreover both the treating and examining doctors' assessments

            were based on  the effect of  the combination of  conditions.

            The ALJ's  analysis reasonably reflected the  evidence in the

            record by  placing greatest emphasis on  appellant's two most

            severe conditions, the  heart and vascular problems.  The ALJ

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did  not,  by   any  stretch   however,  ignore   appellant's

            respiratory, back, and other  conditions.  Nor do we  see any

            support for  appellant's complaints that the  ALJ misread the

            medical record, or unfairly selected sections of the reports,

            while  ignoring  the  record's  overall spirit.    The  ALJ's

            resolution  of  the conflicts  in  the  medical evidence  was

            supported by substantial evidence.  Rodriguez Pagan, 819 F.2d
                                                _______________

            at 3.

                 Second,  the  ALJ  did not  err  by  failing  to develop

            evidence   relating  to   any   disabling  side   effects  of

            appellant's medicines.  See Figueroa v. Secretary of HEW, 585
                                    ___ ________    ________________

            F.2d  551, 554  (1st Cir.  1978).   The ALJ's  opinion fairly

            summarized all  the evidence in the  record about appellant's

            medications,   which  consisted  primarily   of  listings  of

            prescriptions,   and    appellant's   abbreviated,   somewhat

            inconsistent,  testimony about side  effects.   But appellant

            offered  no  testimony  linking  these  side  effects  to  an

            inability  to  engage in  sedentary  work  activities.   And,

            despite  the  ALJ's  express  invitation  to  supplement  the

            record, no evidence regarding such a link was offered.  Since

            appellant bore the burden  of producing threshold evidence on

            this issue, he cannot now complain.  Santiago, 944 F.2d at 6.
                                                 ________

            We also  reject appellant's related argument,  raised for the

            first  time  on  appeal,  that  the  presence  of  this  non-

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exertional factor required use of a vocational expert, rather

            than the grid.

                 Finally, appellant faults the ALJ for the brevity of the

            hearing (30 minutes).  He sees unfairness, too, in the 8-page

            length of the ALJ's  report, as compared with some  280 pages

            of  medical and  vocational  evidence.   These arguments  are

            specious  both in  their reliance  on an  imaginary numerical

            norm,  as well  as the  aspersions they  cast upon  the ALJ's

            attentiveness.  The record  clearly shows that the ALJ  did a

            thorough  and  competent job  in a  difficult  case.   He was

            familiar  with  the  record  at  the  time  of  the  hearing,

            developed  the testimony  and  elicited further  proof in  an

            organized  and professional  manner.  Not  only was  there no

            objection  below to  the ALJ's  conduct of  the hearing,  but

            appellant's  counsel expressly  declined  the opportunity  to

            control  and lengthen  the presentation  of his  case, asking

            only a few follow-up questions.

                 Appellant bore the burden  of proof below.  He  has been

            represented by counsel, albeit different ones, at every stage

            of the proceedings.  Although social security proceedings are

            not  strictly   adversarial,  and   the  Secretary   bears  a

            responsibility   for  adequate  development  of  the  record,

            Evangelista  v. Secretary of HHS, 826 F.2d 136, 142 (1st Cir.
            ___________     ________________

            1987), we think the ALJ here did  all that could be done.  He

            did not  sit  back,  but attempted  to  assist  appellant  to

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develop  the  record,  pointed  out the  deficiencies  as  he

            perceived them, and held  the record open for supplementation

            supportive of appellant's  view of the case.  No  more can be

            required.

                 Accordingly, the judgment below is affirmed.   
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