Patilla v. Shalala

Opinion

USCA1 Opinion

April 15, 1994        [NOT FOR PUBLICATION]

                            UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT
                                 ___________________

No. 93-2288

ELIZABETH PATILLA,

                                Plaintiff, Appellant,

                                          v.

               DONNA E. SHALALA, SECRETARY OF HEALTH & HUMAN SERVICES,

                                 Defendant, Appellee.

                                  __________________

                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                          FOR THE DISTRICT OF MASSACHUSETTS

                   [Hon. Edward F. Harrington, U.S. District Judge]
                                               ___________________

                                 ___________________

                                        Before

                                 Breyer, Chief Judge,
                                         ___________
                          Boudin and Stahl, Circuit Judges.
                                            ______________

                                 ___________________

               Sandra L. Smales on brief for appellant.
               ________________
               Donald K. Stern, United States Attorney,  Charlene Stawicki,
               _______________                           _________________
          Special Assistant United States Attorney, and Robert M. Peckrill,
                                                        __________________
          Assistant  Regional  Counsel,  Department   of  Health  &   Human
          Services, on brief for appellee.

__________________

                                  __________________

Per  Curiam.   Claimant  Elizabeth  Patilla appeals
                      ___________

            from  a district court judgment affirming the decision of the

            Secretary  of Health  and  Human Services  (the  "Secretary")

            denying  her claim  for social security  disability benefits.

            Patilla  claimed disability  stemming from  an injury  to her

            right hand  sustained in November, 1980.   The Administrative

            Law Judge ("ALJ")  concluded that  as of June  30, 1983,  the

            date Patilla  was last  insured, she suffered  from "episodic

            situational depression and sympathetic dystrophy of the right

            hand," but  that those impairments, alone  or in combination,

            did  not meet or equal the applicable Listings. See 20 C.F.R.
                                                            ___

            Pt. 404, subpt. P, App. 1.  

                      The  ALJ  did not  find  Patilla to  be  a credible

            witness  "insofar   as  the  disabling  extent   of  pain  is

            considered."  Although concluding  that Patilla was unable to

            perform  her past  relevant work  as a  salad maker,  the ALJ

            found  that "the  claimant  retained the  residual functional

            capacity  to perform  a  full range  of  light and  sedentary

            unskilled  work  activity  at  all times  pertinent  to  this

            decision."  Taking into  account Patilla's age, education and

            work  experience,  as well  as  her  medical impairments  and

            functional limitations, the ALJ  determined that there were a

            significant  number  of jobs  in  the  national economy  that

            Patilla  could perform.  Therefore, he ruled that she was not

            disabled at any time prior to June, 1983.

-2-

Based  upon  our  careful  review of  the  parties'

            briefs and the record on appeal, we find that the Secretary's

            decision is supported by substantial evidence.  We affirm the

            district  court judgment substantially for the reasons stated

            in the district court's Memorandum and Order dated October 1,

            1993.  We add the following comments.

                      On appeal, Patilla argues first, that the ALJ erred

            in rejecting her complaints of disabling pain  and in failing

            to follow  the standards  for evaluating  pain  set forth  in

            Avery v. Heckler, 797  F.2d 19 (1st Cir. 1986).   Second, she
            _____    _______

            contends that the  ALJ should have found that  her depression

            constituted  a non-exertional  limitation on  her  ability to

            function that, in combination  with her physical impairments,

            rendered her disabled.   Patilla asserts that the Secretary's

            contrary  conclusions   are  not  supported   by  substantial

            evidence.

                      Complaints of Pain.  
                      __________________

                      Patilla testified  at the  hearing  before the  ALJ

            that  she had experienced constant pain in her hand since her

            injury.  She stated that  whenever she tried to use her  hand

            she  would experience  pain  which felt  like muscle  spasms.

            Patilla also testified that the cold weather sometimes caused

            her hand  to hurt even though she wasn't using it.  She noted

            that some days she would keep her hand in a hot towel all day

            or for  three or four hours  to alleviate the pain.   Patilla

-3-

said   that  the   pain  interfered   with  her   ability  to

            concentrate, causing  her to  stop whatever activity  she was

            engaged in  until the pain subsided.   She noted that  all of

            these descriptions of her pain applied to the period  between

            November, 1980 and June, 1983.

                      The ALJ found that  "[t]he claimant is not accepted

            as a credible witness insofar as the disabling extent of pain

            is considered."     He  concluded that  "she could  perform a

            full  range  of  at  least light  unskilled  work  activity."

            Patilla challenges these findings on appeal, arguing that the

            ALJ  failed to follow  the standards for  evaluating pain set

            forth in Avery  v. Heckler, 797 F.2d 19 (1st  Cir. 1986).  In
                     _____     _______

            Avery, we held that when a claimant alleges pain to an extent
            _____

            not  supported   by  objective  medical  evidence,   "a  full

            description  of  the individual's  prior  work  record, daily

            activities  and any additional  statements from the claimant,

            his or her treating physician  or other third party  relative

            to the  alleged pain must  be considered."   Id. at 23.   See
                                                         ___          ___

            also Social Security Ruling 88-13 (SSR 88-13).
            ____

                      Our  review of  the record  indicates that  the ALJ

            complied with the requirements of Avery and SSR 88-13.  At a
                                              _____

            hearing held  on July  6,  1992, the  ALJ questioned  Patilla

            about  her physical  condition  and her  daily activities  in

            1983, the date she was last insured.Patilla   testified  that

-4-

she was "better" in 1983 than in 1992.1  She  stated that she

            was able  to drive and to turn on the ignition with her right

            hand.   She was  also able  to write and  eat with  her right

            hand.  Patilla testified that she did her family's laundry.  

                      The  ALJ questioned  Patilla about  her  prior work

            record,  including two  unsuccessful  attempts  to return  to

            cafeteria  work in 1980 and 1981.  Patilla testified that she

            was unable to do even "light duty" cafeteria work because she

            "started dropping  things."  Patilla testified  that when she

            tried to use her right hand, it would "start shaking and then

            it goes  numb," causing her to lose control of the hand.  She

            stated that  she tries not  to use her right  hand because it

            hurts when she uses it and because she drops things.   At the

            hearing, Patilla's  attorney elicited  a full  description of

            the nature and duration of the pain.

                      In  questioning the  vocational  expert  about  the

            availability of work for someone with Patilla's  limitations,

            the ALJ characterized claimant as possessing "reduced ability

            to use the right arm, reduced  manual dexterity and basically

            was  using the right arm for support."  The vocational expert

            testified  that in the national  economy there is  a range of

            unskilled work at the light and medium exertional levels that

            involves  use of only one arm.   He further stated that these

____________________

            1.      Later in  the  hearing,  Patilla  testified that  her
            condition was about the same in 1992 as in 1983.

                                         -5-

jobs  could be performed by  a person with  "mild to moderate

            impairment to concentration."

                      The record  does not support  claimant's contention

            that  the  ALJ failed  to  conform with  the  requirements of

            Avery.   The ALJ credited Patilla's  subjective complaints of
            _____

            pain  to  the extent  that  he found  her to  have  a reduced

            ability  to use her right arm and to have moderately impaired

            concentration.  The  ALJ's determination that Patilla's  pain

            did  not  render her  disabled  is  supported by  substantial

            evidence in the record.  Dr.  John McGillicuddy, an examining

            physician,  wrote  in  October,  1983,  that  Patilla  had  a

            "swollen, painful right hand with marked weakness and limited

            motions," however, he concluded that she was still capable of

            doing "extremely  light work" with  her right hand.  In July,

            1982,  Dr. Upton,  an  examining physician,  reported to  the

            Social  Security Administration  that  although  Patilla  had

            experienced  pain  in  her hand  in  the  past,  she was  not

            experiencing much pain at that time.  According  to  her  own

            testimony,  Patilla was able to  use her right  hand for many

            daily activities, including driving, writing and eating.  Her

            return to cafeteria employment  had been unsuccessful because

            of her inability to hold onto things with her right hand, not

            because of disabling pain.  "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

-6-

evidence  is entitled  to deference,  . .  ."   Frustaglia v.
                                                            __________

            Secretary  of Health & Human Services, 829 F.2d 192, 195 (1st
            _____________________________________

            Cir.  1987).   Therefore, the  ALJ did  not err  in rejecting

            claimant's complaints of disabling pain.

                      Mental Impairment.
                      _________________

                      The   ALJ   found   that  Patilla   suffered   from

            "intermittent   depression,"  in  addition  to  her  physical

            impairment.  He stated that "[h]er situational depression was

            episodic only."  Therefore,  the ALJ concluded that Patilla's

            capacity for light unskilled work was  not compromised by her

            non-exertional   limitations.     Patilla   challenges  these

            findings  as  unsupported  by   substantial  evidence.     We

            disagree.

                      The ALJ accurately summarized the  medical evidence

            regarding  Patilla's  depression.    In November,  1982,  Dr.

            Quentin R.  Regestine, an examining physician  from the Sleep

            Clinic at  Brigham and  Women's Hospital, wrote  that Patilla

            reported to him  that she lay in bed all  day and was "unable

            to  fulfill  any responsibilities."    A test  of  ability to

            concentrate  "revealed  gross  impairment."    Dr.  Regestine

            reported, however, that Patilla  was "placed on protriptylene

            and has sustained an initial and significant lessening of her

            symptoms."

                      There  is no  other  evidence in  the  record of  a

            mental impairment that  existed prior to June, 1983, the date

-7-

Patilla  was last insured.  Notes from 1985 indicate that Dr.

            Regestine  saw Patilla for complaints of crying spells and an

            inability to get  out of  bed.  The  notes suggest,  however,

            that those symptoms  occurred because Patilla  stopped taking

            her prescribed medication, as a  result of constipation.  The

            doctor adjusted the medications and Patilla felt better.   In

            July, 1985, Dr. Regestine  examined Patilla and reported that

            she  was  "neat,  conversational,  informative"   with  "mild

            psychomotor retardation."  He  further noted that her current

            interests and activities included  her house and her children

            and  that she visited her  mother and was  able to "negotiate

            the city."   Patilla  was taking  protriptylene.   The report

            concluded that  the patient was "much improved"  and that the

            prognosis for depression  was "good."  In  1987, Dr. Ryestine

            reported that Patilla "does house work and cooking"  with her

            daughters'  help and "can be self sufficient."  He noted that

            she  was still taking  protriptylene and that  she had "shown

            much improvement." She was out of the house and participating

            in rehabilitation programs. 

                      In applying the Medical-Vocational  Guidelines, the

            ALJ properly considered  non-exertional factors and concluded

            that the "paucity  of this record"  supported a finding  that

            Patilla was  not disabled.   This conclusion is  supported by

            the  record as a whole.  The vocational expert testified that

            if  Patilla's concentration were impaired  "to a marked or to

-8-

an extreme extent," it would preclude employment of any kind.

            Dr.  Regestine found that in November, 1982, Patilla showed a

            "gross impairment" of  her ability to concentrate.   There is

            no indication, however, that  this impairment persisted for a

            year or more.   In 1986, a  "complete psychometric assessment

            was  performed"  and  Dr.  Peter  Rosenberger,  an  examining

            physician, reported only "an  element of attention deficit in

            the patient's learning style."  The diagnosis was of dyslexia

            "in  this   otherwise  neurologically  intact   and  normally

            intelligent lady." "It is the responsibility of the Secretary

            to   . . . draw inferences from the record evidence.  Indeed,

            the resolution of conflicts in evidence is for the Secretary,

            not the courts."  Irlanda Ortiz v. Secretary of HHS, 955 F.2d
                              _____________    ________________

            765,  769 (1st  Cir.  1991).   The  ALJ's determination  that

            Patilla's  mental  impairment  did  not  interfere  with  her

            residual functional capacity to perform a full range of light

            unskilled work is substantially supported by the record.

                      Accordingly, we affirm the district court's opinion

            affirming the Secretary's denial of benefits.

-9-