Santos-Martinez v. SHHS

• Court: Court of Appeals for the First Circuit
• Decided: May 9, 1995
• Docket: 94-2152
• Status: Published

Opinion

USCA1 Opinion

May 9, 1995
                                [NOT FOR PUBLICATION]

UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT

                                 ____________________

No. 94-2152 

                              VIRGINIA SANTOS-MARTINEZ,

                                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. Hector M. Laffitte, U.S. District Judge]
                                              ___________________

                                 ____________________

                                        Before

                                Torruella, Chief Judge,
                                           ___________
                            Cyr and Stahl, Circuit Judges.
                                           ______________

                                 ____________________

            Juan A. Hernandez Rivera and Raymond  Rivera Esteves 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.    Claimant  Virginia  Santos-Martinez
                      ___________

            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.  Having  carefully reviewed the  record, we  affirm

            the judgment  of the  district  court substantially  for  the

            reasons  stated   in  the   magistrate  judge's  Report   and

            Recommendation dated March 11, 1993, which was adopted by the

            district court.

                      Claimant makes essentially two arguments on appeal.

            First,   she  argues  that   the  Secretary's   finding  that

            claimant's disability  does not preclude  her from performing

            her  past relevant work as a receptionist is not supported by

            substantial evidence.  In particular, claimant relies upon  a

            residual  functional capacity  assessment ("RFC")  that noted

            limitations  in  pushing  or  pulling  ten  or  more  pounds,

            "fingering   (fine   manipulation)"   and    "feeling   (skin

            receptors)".  Second, claimant argues that, in light of those

            limitations,   the Administrative Law Judge  ("ALJ") erred in

            not obtaining testimony of a vocational expert regarding  how

            those limitations  would affect claimant's ability to perform

            her past relevant work as a receptionist.

                               I. Substantial Evidence
                                  ____________________

                      Even where the record is capable of supporting more

            than   one  conclusion,  we   will  affirm   the  Secretary's

            determination when "a reasonable mind, reviewing the evidence

            in the  record as a  whole, could  accept it  as adequate  to

            support his  conclusion."  Rodriguez v. Secretary of HHS, 647
                                       _________    ________________



F.2d 218, 222 (1st  Cir. 1981).  Resolutions of  conflicts in

            the evidence  are for the Secretary.   Id.   Where the record
                                                   ___

            permits  diverse  inferences,  the Secretary's  determination

            will  be  affirmed,  so  long  as  the  inferences  drawn are

            supported by the  evidence.  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 (1st
                         _______     ________________

            Cir. 1981).

                      The  ALJ  made  the  following  findings  regarding

            claimant's  medical condition  as of  December 31,  1988 (the

            date the claimant was last insured for disability purposes):

                      In  January,  1988,  and February,  1989,
                      [claimant]  underwent surgery  for carpal
                      tunnel  release of  her  left  and  right
                      hands, respectively.
                                        . . .
                      [T]here is no doubt that the claimant had
                      a   condition  which   required  surgery.
                      However, the claimant  responded well  to
                      treatment  and  medication. She  regained
                      most of the  capacity associated with the
                      hands such as grasping, pushing, pulling,
                      lifting and carrying.  The claimant on or
                      before  December  1988,  still  had  some
                      limitations,  and on or  before this date
                      the   claimant   was   not   capable   of
                      performing  medium  or heavy  activities.
                      However,  she  was  not   precluded  from
                      performing  the  full   range  of   light
                      exertion. .  . . As long  as the claimant
                      avoids  activities  as  heavy lifting  or
                      carrying,   she   is  able   to  function
                      normally.

            Based  upon  this  analysis of  claimant's  capabilities  and

            claimant's   own  description   of  her   former  job   as  a

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receptionist, the ALJ concluded that she  was able to perform

            her past relevant work as a receptionist.

                      On appeal,  claimant faults the ALJ  for failing to

            consider allegedly uncontroverted  evidence of  "disabilities

            beyond an impairment to lift or carry."  Claimant relies upon

            an  RFC  dated  August 15,  1991.    That  RFC noted  certain

            "manipulative   limitations,"   including  "Fingering   (fine

            manipulation)"   and  "Feeling   (skin  receptors),"   and  a

            limitation in claimant's ability to push and or pull (limited

            to  weights of less than ten pounds).  A second RFC, however,

            dated March, 1992, indicated  that there were no manipulative

            limitations   established   and   no  limitations   regarding

            claimant's  ability  to push  and/or  pull.   Therefore,  the

            evidence is not uncontroverted, as claimant alleges.

                      Moreover, the ALJ specifically addressed claimant's

            manipulative  abilities.   He found  that after  surgery, the

            claimant "regained  most of  the functional capacity  of both

            hands.  She also had a marked improvement in her capacity for

            grasping and making a  fist.  The numbness she  alleged prior

            to surgery  showed marked  improvement."  Those  findings are

            supported  by the  record.   Progress notes  of an  examining

            physician from  the State  Insurance Fund ("SIF"),  dated May

            24,  1989, report that  following physical  therapy, claimant

            "has less pain  and now  full grip strength."   SIF  progress

            notes dated June 3,  1989, indicate that the range  of motion

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of  the wrist  and  fingers  (of  the  right  hand)  is  only

            "slightly limited."   A "surgery evaluation"  dated March 30,

            1990,  reported  that  the  surgery had  resulted  in  "great

            improvement"  in both  hands and  that claimant  was "feeling

            well"  in both hands.   SIF progress notes  dated January 29,

            1991, indicate that claimant had "weakness" in her  left hand

            causing  slight  limitations, but  that  her  right hand  was

            "normal."  Given  this support  in the record  for the  ALJ's

            findings, they will not be overturned on appeal.  

                         II. Testimony by a Vocational Expert
                             ________________________________

                      Claimant argues  that the  ALJ erred in  failing to

            elicit  the  testimony  of  a  Vocational  Expert  ("VE")  to

            determine whether  the impairments  indicated by  the medical

            record would  preclude her from performing  her past relevant

            work  as a  receptionist.    At  step  4  of  the  disability

            determination process,  however, the  ALJ is not  required to

            elicit  the  testimony of  a  vocational  expert ("VE").  See
                                                                      ___

            Musgrave v.  Sullivan, 966 F.2d  1371, 1376 (10th  Cir. 1992)
            ________     ________

            (holding that because claimant  failed to meet his  burden of

            establishing a disability which prevented him from performing

            his past relevant work,  "the ALJ was under no  obligation to

            elicit the testimony of a vocational expert").

                      "The claimant is the primary source  for vocational

            documentation, and statements by the claimant regarding  past

            work are  generally  sufficient  for  determining  the  skill

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level, exertional demands  and nonexertional demands of  such

            work."    Social  Security   Ruling  82-62.    In  claimant's

            application  of disability  insurance benefits  she described

            her  basic duties  in her  former job  as a  receptionist, as

            follows: "1.  take telephone calls,  care for the  public. 3.

            keep daily reports in  the books. 4. Messenger. 5.  In charge

            of  photostatic  copies."   At  the hearing  before  the ALJ,

            claimant  testified  that  in  her former  job  she  had been

            required to write, to record things in books and to type.  

                      Claimant testified  at her hearing  before the  ALJ

            that her  impairments precluded  the performance of  her past

            work  as a  receptionist because  she could  hardly move  her

            hands and "things fall from my hands."  The ALJ  did not find

            claimant's allegations of manipulative limitations that would

            preclude  performance  of her  past  relevant  work credible.

            "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, . . . " Frustaglia v. HHS, 829 F.2d  192, 195 (1st
                               __________    ___

            Cir. 1987).  On this  record, the ALJ did not err  in failing

            to elicit the testimony of a VE regarding claimant's capacity

            to perform her past relevant work as a receptionist.

                 Claimant's allegations of manipulative  limitations that

            would preclude  performance of her  past relevant  work as  a

            receptionist  are  directly   contradicted  by  the   medical

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evidence.  That evidence, as summarized above, indicates that

            claimant regained  full grip strength after  surgery and that

            her right hand  was normal and weakness in her  left hand was

            only slightly limiting.  The RFC dated March, 1992, indicated

            that  she had  no  "manipulative limitations."     The  ALJ's

            determination that on or  before December, 1988, claimant was

            capable   of   performing   her  past   relevant   work,   is

            substantially supported by the record as a whole.

                      Accordingly, we affirm the district court's opinion

            affirming the Secretary's denial of benefits.

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