Velez v. SHHS

Court of Appeals for the First Circuit·Decided December 14, 1995·No. 95-1646·Published

Opinion

USCA1 Opinion

December 14, 1995 [NOT FOR PUBLICATION]

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

____________________

No. 95-1646

DAVIS VELEZ,

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. Carmen Consuelo Cerezo, U.S. District Judge] ___________________

____________________

Before

Selya, Stahl and Lynch,
Circuit Judges. ______________

____________________

Raymond Rivera Esteves on brief for appellant. ______________________
Guillermo Gil, United States Attorney, Maria Hortensia Rios, ______________ ______________________
Assistant United States Attorney, and Nancy B. Salafia, Assistant _________________
Regional Counsel, Social Security Administration, on brief for
appellee.

____________________

____________________

Per Curiam. Davis Velez appeals from a district court __________

judgment affirming a decision of the Secretary of Health and

Human Services denying Velez's application for social

security disability benefits. We affirm.

Velez applied for social security benefits on September

10, 1992, alleging that he could not work due to "nerves,

back, and ankle pain." After a hearing, an Adminstrative Law

Judge (ALJ) concluded that Velez has a severe combination of

impairments with a history of herniated nucleus pulposus and

depression and anxiety related disorders. He also found that

Velez is unable to perform his past work. However, the ALJ

concluded that Velez has the residual functional capacity for

light work, exclusive of jobs requiring him to perform

complex tasks or to have frequent contact with the public.

Finally, the ALJ ruled that, based on the testimony of a

vocational expert (VE) and application of the Grid, Velez is

not disabled because there are light, unskilled jobs that he

can perform.

Velez does not argue on appeal that he lacks the

physical capacity for light work. Instead, he argues that

the ALJ erred in his findings regarding Velez's mental

capacity. We review the Secretary's decision under a

"substantial evidence" standard; we will affirm that decision

if it is supported by "`such relevant evidence as a

reasonable mind might accept as adequate to support a

conclusion.'" Richardson v. Perales, 402 U.S. 389, 401 __________ _______

(1971) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. ________________________ ____

197, 229 (1938)); see also Rodriguez Pagan v. Secretary of ________ _______________ ____________

Health & Human Servs., 819 F.2d 1, 3 (1st Cir. 1987) (per ______________________

curiam), cert. denied, 484 U.S. 1012 (1988). ____________

The medical record reveals that Velez was seen at the

Mental Health Center in Arecibo on July 28, 1992. Although

Velez appeared anxious and somewhat depressed, he was also

cooperative, logical, and coherent with apparently normal

intellect. He was diagnosed as suffering from adjustment

problems, with depressive mood, and was prescribed

medication.

Between September 11, 1992 and January 22, 1993, Velez

was seen on six occasions at the State Insurance Fund in

connection with his mental condition. On October 7, 1992,

Dr. Lopez Cumpiano evaluated Velez and diagnosed him as

suffering from anxiety disorder with depressive traits.

Although Dr. Lopez noted that Velez reported episodes of

auditive and visual hallucinations, he found that Velez was

in contact with reality and presented no thought

disturbances. He also found that Velez was clear and

oriented, with fair memory, unimpaired judgment, fair

insight, and preserved intellectual ability. The remaining

records from the State Insurance Fund are not very

informative, but Velez is consistently described as alert and

oriented.

On November 10, 1992, Velez was examined by Dr. Mojica

Sandoz, a consultant to the Secretary. Dr. Mojica observed

-3-

that Velez was markedly anxious and tense, and that his

movements were somewhat slow. However, Dr. Mojica found that

Velez was accessible, cooperative, and frank, and that he did

not show any difficulty in establishing adequate and lasting

interpersonal relationships. He further found that Velez had

adequate capacity to pay attention and to concentrate, was

oriented, functioned with an average intellectual makeup, and

had adequate judgment and memory. The diagnosis was

moderate, generalized anxiety disorder.

A non-examining medical consultant to the Secretary

reviewed much of this evidence and completed both a

Psychiatric Review Technique form and a Mental Residual

Functional Capacity Assessment. Although the consultant

noted some moderate limitations on various capacities

required for unskilled work, he reached the general

conclusion that Velez is capable of functioning in a non-

demanding work environment--with simple instructions,

routines, and decisions--as long as Velez is not required to

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USCA1 Opinion



        December 14, 1995       [NOT FOR PUBLICATION]



                            UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT


____________________


No. 95-1646 



                                     DAVIS VELEZ,



                                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. Carmen Consuelo Cerezo, U.S. District Judge]
                                                ___________________



                                 ____________________



                                        Before



                                Selya, Stahl and Lynch,

                                   Circuit Judges.
                                   ______________



                                 ____________________



            Raymond Rivera Esteves on brief for appellant.
            ______________________

            Guillermo  Gil,  United  States  Attorney, Maria  Hortensia  Rios,
            ______________                             ______________________

        Assistant United  States Attorney,  and  Nancy B.  Salafia,  Assistant
                                                 _________________

        Regional  Counsel,  Social  Security  Administration,  on  brief   for

        appellee.


____________________


____________________



Per Curiam.  Davis  Velez appeals from a district  court
                 __________



            judgment affirming a decision of the  Secretary of Health and



            Human   Services  denying  Velez's   application  for  social



            security disability benefits.  We affirm.



                 Velez applied for social security benefits on  September



            10, 1992, alleging  that he  could not work  due to  "nerves,



            back, and ankle pain."  After a hearing, an Adminstrative Law



            Judge (ALJ) concluded  that Velez has a severe combination of



            impairments with a history of herniated nucleus pulposus  and



            depression and anxiety related disorders.  He also found that



            Velez is unable  to perform his past work.   However, the ALJ



            concluded that Velez has the residual functional capacity for



            light work,  exclusive  of  jobs  requiring  him  to  perform



            complex tasks or to have frequent contact with the public.



            Finally,  the ALJ  ruled that,  based on  the testimony  of a



            vocational expert (VE) and application of the Grid,  Velez is



            not disabled because  there are light, unskilled jobs that he



            can perform. 



                 Velez  does not  argue  on  appeal  that  he  lacks  the



            physical capacity for  light work.   Instead, he argues  that



            the ALJ  erred  in  his  findings  regarding  Velez's  mental



            capacity.    We  review  the  Secretary's  decision  under  a



            "substantial evidence" standard; we will affirm that decision



            if  it  is  supported  by   "`such  relevant  evidence  as  a



            reasonable  mind  might  accept  as  adequate  to  support  a



            conclusion.'"    Richardson v.  Perales,  402  U.S. 389,  401
                             __________     _______



            (1971)  (quoting Consolidated  Edison Co.  v. NLRB,  305 U.S.
                             ________________________     ____



            197, 229  (1938)); see also  Rodriguez Pagan v.  Secretary of
                               ________  _______________     ____________



Health &  Human Servs., 819  F.2d 1, 3  (1st Cir.  1987) (per
            ______________________



            curiam), cert. denied, 484 U.S. 1012 (1988).  
                     ____________



                 The medical  record reveals that  Velez was seen  at the



            Mental Health Center in  Arecibo on July 28, 1992.   Although



            Velez appeared  anxious and  somewhat depressed, he  was also



            cooperative,  logical, and  coherent  with apparently  normal



            intellect.   He  was diagnosed  as suffering  from adjustment



            problems,   with   depressive   mood,   and   was  prescribed



            medication.



                 Between September  11, 1992 and January  22, 1993, Velez



            was  seen on  six occasions  at the  State Insurance  Fund in



            connection with  his mental condition.   On October  7, 1992,



            Dr.  Lopez  Cumpiano evaluated  Velez  and  diagnosed him  as



            suffering  from  anxiety  disorder  with  depressive  traits.



            Although  Dr. Lopez  noted  that Velez  reported episodes  of



            auditive and  visual hallucinations, he found  that Velez was



            in   contact   with   reality   and   presented   no  thought



            disturbances.   He  also  found  that  Velez  was  clear  and



            oriented,  with  fair   memory,  unimpaired  judgment,   fair



            insight, and  preserved intellectual ability.   The remaining



            records  from   the  State   Insurance  Fund  are   not  very



            informative, but Velez is consistently described as alert and



            oriented.  



                 On  November 10, 1992, Velez was  examined by Dr. Mojica



            Sandoz,  a consultant to the  Secretary.  Dr. Mojica observed


-3-



that  Velez  was markedly  anxious  and tense,  and  that his



            movements were somewhat slow.  However, Dr. Mojica found that



            Velez was accessible, cooperative, and frank, and that he did



            not show any difficulty  in establishing adequate and lasting



            interpersonal relationships.  He further found that Velez had



            adequate capacity  to pay  attention and to  concentrate, was



            oriented, functioned with an average intellectual makeup, and



            had  adequate  judgment  and   memory.    The  diagnosis  was



            moderate, generalized anxiety disorder.  



                 A  non-examining medical  consultant  to  the  Secretary



            reviewed  much   of  this  evidence  and   completed  both  a



            Psychiatric  Review Technique  form  and  a  Mental  Residual



            Functional  Capacity Assessment.    Although  the  consultant



            noted   some  moderate  limitations   on  various  capacities



            required  for  unskilled   work,  he   reached  the   general



            conclusion that  Velez is  capable of  functioning in a  non-



            demanding   work   environment--with   simple   instructions,



            routines, and  decisions--as long as Velez is not required to



            have  frequent  contact  with  the general  public.1    These



            latter limitations were reflected  in a hypothetical posed to



            the VE, who, in  turn, identified specific jobs in  the local


____________________



            1.  A second  consultant, who apparently reviewed  all of the

            evidence,  agreed  with  the  first  consultant's conclusions

            without additional comment.



                                         -4-



economy that Velez could  perform.2  Under the circumstances,



            we  think that there  is substantial evidence  to support the



            Secretary's  finding of no disability.  We add that since the



            ALJ  adopted the  consultant's general  conclusions regarding



            Velez's  mental  limitations,  any differences  in  the boxes



            checked  on the Psychiatric Review Technique  form by the ALJ



            and the consultant are of no consequence.  



                 Affirmed.
                 _________


____________________



            2.  Velez suggests that the hypothetical posed to the  VE was

            incomplete since  it  did not  include  all of  the  moderate

            limitations noted by the consultant.  See Arocho v. Secretary
                                                  ___ ______    _________

            of  Health & Human Servs., 670  F.2d 374, 375 (1st Cir. 1982)
            _________________________

            (hypothetical    must     accurately    reflect    claimant's

            limitations).    This  argument  was  not  presented  to  the

            district  court, and we deem it waived.  See, e.g., Sandstrom
                                                     ___  ____  _________

            v. Chemlawn Corp., 904 F.2d  83, 87 (1st Cir. 1990).   In any
               ______________

            event, we  think  that the  consultant's  findings  regarding

            these  moderate  limitations  were subsumed  in  his  general

            conclusion,  and that  the hypothetical  accurately reflected

            this conclusion.  



                                         -5-

Velez v. SHHS, (1st Cir. 1995).

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Richardson v. Perales

402 U.S. 389 (Supreme Court, 1971)

Bienvenido Arocho v. Secretary of Health and Human Services

670 F.2d 374 (First Circuit, 1982)

Nicasio RODRIGUEZ PAGAN, Plaintiff, Appellant, v. SECRETARY OF HEALTH AND HUMAN SERVICES, Defendant, Appellee

819 F.2d 1 (First Circuit, 1987)

Richard L. Sandstrom, Etc. v. Chemlawn Corporation

904 F.2d 83 (First Circuit, 1990)

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