April 15, 1994 [NOT FOR PUBLICATION]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.
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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
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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
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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.
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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
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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
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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
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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.
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