Santiago-Jimenez v. SHHS

• Court: Court of Appeals for the First Circuit
• Decided: June 9, 1993
• Docket: 92-1970
• Status: Published

Opinion

USCA1 Opinion

                                [NOT FOR PUBLICATION]

UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT

___________________

No. 92-1970

JULIO SANTIAGO-JIMENEZ,

                                Plaintiff, Appellant,

                                          v.

                       SECRETARY OF HEALTH AND HUMAN SERVICES,

                                 Defendant, Appellee.

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                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                           FOR THE DISTRICT OF PUERTO RICO

[Hon. Juan M. Perez-Gimenez, U.S. District Judge]
                                               ___________________

                                 ___________________

                                        Before

                              Torruella, Cyr and Stahl,
                                   Circuit Judges.
                                   ______________

                                 ___________________

               Savador 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.

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                                     June 9, 1993
                                  __________________

Per Curiam.     Claimant appellant  Julio Santiago-
                      __________

            Jimenez filed an  application for social security  disability

            benefits  in June,  1986.   He alleged  an inability  to work

            beginning January,  1986, due to  a cardiovascular condition.

            Claimant was 37  years old on the date of alleged onset.  His

            most recent employment had been as a laborer and packer, jobs

            which required heavy physical exertion.  

                      There have  been two  evidentiary hearings  in this

            case.  At the first  hearing on December 16, 1987, appellant,

            his   wife,   and   a  medical   advisor   testified.     The

            administrative law judge ("ALJ") held appellant not  disabled

            at  step  five of  the  sequential evaluation  process.   See
                                                                      ___

            Goodermote v.  Secretary of  HHS, 690 F.2d  5, 6-7  (1st Cir.
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            1982).  Specifically, the ALJ found that while  appellant had

            a  severe impairment  which  precluded  return  to  his  past

            relevant  work,  he nevertheless  had  a  residual functional

            capacity for the  full range of light work  jobs available in

            the  economy.    The  ALJ's  functional  capacity assessment,

            however,  had been made without the assistance of a qualified

            physician.   On appeal  to the district  court, the  case was

            remanded  to the  ALJ for further  consideration in  light of

            this  court's previous  decisions.    See Rivera-Figueroa  v.
                                                  ___ _______________

            Secretary of  HHS, 858 F.2d  48, 52 (1st Cir.  1988); Rivera-
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            Torres v. Secretary of HHS, 837 F.2d  4, 7 (1st Cir. 1988) (a
            ______    ________________

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lay  fact-finder is  not  qualified  to determine  functional

            capacity solely on the basis of bare medical findings).  

                      On  remand, the ALJ held a supplementary hearing at

            which he heard  more testimony from claimant, as  well as the

            testimony  of a  second  medical  advisor  and  a  vocational

            expert.   On the basis  of the  entire record,  the ALJ  then

            concluded that  appellant retained  a capacity  for sedentary

            jobs which  existed in significant numbers in the economy, as

            well as one or two positions identified as "light" work jobs.

            Appellant   appealed  to  the  district  court  again.    The

            magistrate-judge issued  a report recommending  affirmance of

            the  ALJ's  decision.     The  district  court   adopted  the

            magistrate's   report  and   recommendation,  affirming   the

            Secretary.  This appeal followed.  We, too, affirm.

                      We are met at the  outset with an argument from the

            Secretary  that  the  appeal  should   be  dismissed  because

            appellant allegedly failed  to file timely objections  to the

            magistrate's report in the  district court.  Failure  to file

            specific  objections to a magistrate's report within the time

            allowed  ordinarily waives the  right to appeal  the district

            court's order.   Thomas v.  Arn, 474 U.S. 140  (1985); United
                             ______     ___                        ______

            States  v. Valencia-Copete,  792  F.2d  4  (1st  Cir.  1986).
            ______     _______________

            Appellant's  alleged  late  filing  in  this  case,  however,

            contained specific objections  to the report,  as well as  an

            assertion that  he  had received  the  report only  six  days

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earlier.     The  Secretary  did  not   challenge  claimant's

            assertion of  late notice in  the court below, nor  object in

            any way to the district court's consideration of the  merits.

            The district  judge adopted the  magistrate's report  without

            reference to the timeliness of  the objections.  We thus have

            no  reason  to  consider the  Secretary's  belated procedural

            challenge here.  

                      Appellant's argument on the merits is confined to a

            single issue:  whether the ALJ correctly determined on remand

            that  appellant  is  capable  of  performing sedentary  work,

            despite  evidence that he suffers from occasional episodes of

            chest pain.  On this review our task is to determine  whether

            the  Secretary's  findings   are  supported  by  "substantial

            evidence."   Although the record  may support  more than  one

            conclusion,  we uphold the Secretary when "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 conflicts in the evidence are for the

            Secretary.  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.

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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).
            ________________

                      Using the criteria for the evaluation of complaints

            of pain set forth in Avery  v. Secretary of HHS, 797 F.2d  19
                                 _____     ________________

            (1st  Cir. 1986),  the  ALJ  determined  that  the  objective

            medical  findings   in  the   record  did   not  substantiate

            appellant's  claims  of  functionally limiting  pain  to  the

            degree   alleged.    There   was  ample  evidence   for  this

            conclusion.    While  appellant's  chest  condition had  been

            variously  diagnosed, both  medical  advisors testified  that

            claimant's pain  was not ischemic in nature,  but was instead

            associated  with  costochondritis,  an  inflammation  of  the

            cartilage connecting  the ribs to  the sternum.   They stated

            that  the  condition  is treatable  with  steroids  and anti-

            inflammatory  medications.   While costochondritis  can cause

            severe  pain,  both  medical  advisors  concluded   that  the

            diagnosis  alone  did not  dictate  a medical  basis  for the

            frequency  and  degree of  functionally  limiting pain  which

            appellant alleged. 

                      At the supplementary  hearing, the medical  advisor

            also testified that, despite  appellant's chest condition, he

            retained a functional capacity for sedentary work.  Appellant

            was found able to  lift ten pounds, sit and stand  for six to

            eight  hours at  a time,  and change  positions.   The expert

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based his  opinion on all  of the medical records  and tests,

            expressly    including    consideration     of    appellant's

            costochondritis  as  well  as   his  occasional  tachycardia,

            controlled hypertension, pain, and the effects of appellant's

            various  medications.     While  the  expert   conceded  that

            appellant  would  be unable  to  work during  any  episode of

            uncontrolled severe pain,  which might occur on  average once

            per week, he stated that such  an episode would be of limited

            duration, lasting no more than one hour.  He based the latter

            estimate  largely  on  appellant's own  testimony  as  to the

            effectiveness  of prescribed  medication  in controlling  his

            pain.  

                      The  vocational   expert  also  testified   to  the

            existence of a series of jobs which a person with appellant's

            skills and stamina could perform, despite occasional episodes

            of severe  pain.  In  sum, there was substantial  evidence to

            support the ALJ's conclusion that claimant was "not disabled"

            at step five.             Appellant  argues   that  the   ALJ

            should, instead, have  credited appellant's testimony  to the

            effect  that  he  suffered much  more  frequent  (even daily)

            debilitating  bouts of  pain.  Both  the medical  advisor and

            vocational  expert agreed that  if appellant's bouts  of pain

            were as severe and frequent as he claimed, appellant would be

            unable to perform any sedentary job in the economy.  However,

            evaluation of  the credibility of  unsubstantiated subjective

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reports of pain is for the Secretary -- not the courts  -- to

            resolve.  Evangelista v. Secretary  of HHS, 826 F.2d 136 (1st
                      ___________    _________________

            Cir.  1987). "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 evidence, is

            entitled to  deference, especially when supported by specific

            findings."  Frustaglia v. Secretary of 
                        __________    _____________

            HHS, 829 F.2d 192, 195 (1st Cir. 1987).
            ___

                      Accordingly, the decision below is affirmed.    
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