March 9, 1995
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 94-2012
SONIA CABRERA MENDEZ,
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. Jose Antonio Fuste, U.S. District Judge]
Before
Torruella, Chief Judge,
Selya and Boudin, Circuit Judges.
Raymond Rivera Esteves and Juan A. Hernandez Rivera, 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. Sonia Cabrera Mendez appeals from a
district court judgment affirming a final decision of the
Secretary of Health and Human Services to the effect that
appellant did not meet the disability requirements of the
Social Security Act for purposes of obtaining disability
insurance benefits. As there is substantial evidence in the
record to support the Secretary's decision, we affirm.
Appellant alleged an inability to work beginning
January 25, 1990, due to a musculoskeletal condition, asthma,
dysthymia and anxiety. Following a hearing at which
appellant testified, the Administrative Law Judge ("ALJ")
found that appellant had a severe impairment which prevented
her from returning to her former work as an office
receptionist and rendered her skills nontransferable, but
twice concluded that she was not disabled at Step 5 of the
familiar sequential analytic process. 20 C.F.R.
404.1520(f).
In his first decision the ALJ found that appellant
retained a functional capacity to perform a wide range of
light work which was not significantly compromised by her
nonexertional limitations, so considering her age (42 years
old), and education (12th grade), the denial of benefits was
directed by application of the "grid," 20 C.F.R. Part 404,
Subpt. P, App. 2, Rules 202.20, 202.21. The Appeals Council,
however, remanded the case to the ALJ with instructions to
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obtain a vocational expert's [VE's] assessment of appellant's
occupational base in light of the medical record relating to
appellant's nonexertional limitations.
Following a new hearing at which appellant and a VE
testified, the ALJ again denied benefits. The second denial
was based on the VE's affirmative answer to the following
hypothetical question.
[A]ssuming hypothetically . . . that the claimant
physically would be limited to sedentary or light
activities. . . where she would lift ten pounds
frequently and 20 pounds maximum, and most of the
work would be standing, but if necessary she could
alternate her position as needed . . . . That the
work should be performed . . . in a clean work
environment, in which she would not be subjected to
excessive dust or dirt, fumes, noxious odors,
excessive heat or cold. That from a non-exertional
standpoint the claimant should not be placed in
work where she would be under intensive tension or
pressure in the performance of the work. In other
words, it should be work that is of a routine,
repetitive and simple nature. Also, it would be
preferable that she not meet the public on a
continuing [or frequent] basis.
. . . .
That any work that she would perform that might
elicit any type of pain should be regarded as
tolerable pain, meaning in effect it would not
affect her attention or concentration in the
performance of her work functions. Under these
circumstances would she be able to return to her
former employment or would there be other jobs
existing within the national or local economy
applicable to the claimant?
T.62-63. In response, the VE opined that appellant could not
resume her former work, but identified several unskilled jobs
capable of being performed by a person with the stated
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limitations, and which exist in substantial numbers in the
local economy.
The Secretary may meet her burden of proving the
existence of a substantial number of suitable jobs in the
economy by relying upon an expert's answer to a hypothetical
question, so long as the hypothetical itself corresponds to
conclusions that are supported by substantial evidence in the
record. Arocho v. Secretary of HHS, 670 F.2d 374, 375 (1st
Cir. 1982). To guarantee that correspondence, the ALJ must
first resolve ambiguities in the evidence, decide what
testimony to credit, and accurately transmit the relevant
conclusions to the expert in the form of assumptions. Id.
Appellant argues that the hypothetical was
defective because it did not fairly reflect the record
evidence of her impairments. She contends that the ALJ was
required instead to accept the VE's negative response to
three other hypotheticals which posited a claimant with more
severe functional limitations. We do not agree.
While hardly a model of articulation, the
hypothetical nonetheless acceptably corresponds to
conclusions that find substantial support in the medical
evidence. The record shows that appellant had been
repeatedly treated for depression and anxiety since at least
October, 1990. All the examining psychiatrists reported,
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however, that appellant was coherent, logical, and oriented
in three spheres (person, place, and time).
There was conflicting evidence about the severity
of appellant's depressive disorder and its effect on her
ability to work. On the one hand, appellant was admitted to
the emergency room at least once with a diagnosis of major
depression. In addition, a psychiatrist who treated her from
March through October, 1991, diagnosed a dysthymic disorder
with psychomotor retardation of such severity as to render
appellant unable to understand and carry out even simple
instructions under ordinary supervision, or to sustain any
work performance, even in minimally stressful work
situations.
On the other hand, a consulting psychiatrist
concluded in December, 1991, that while appellant suffered
serious mental limitations, she retained a "fair" ability to
follow work rules and deal with work stresses, and a "good"
ability to maintain concentration, understand, remember and
carry out simple job instructions. Assessments by non-
examining doctors in November, 1990 and June, 1991, also
concluded that appellant had only moderate and insignificant
limitations on the various capacities needed to maintain a
consistent work schedule and carry out simple tasks.
The hypothetical assumption that appellant retained
some functional capacity for simple tasks despite her
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depressive disorder thus was reasonably substantiated by the
evaluating and non-examining doctors' reports. The ALJ was
not required to accept the treating psychiatrist's bottom
line conclusion that appellant was unable to engage in any
work, see 20 C.F.R. 404.1527(e), especially as it was
inconsistent with other substantial medical evidence in the
record. See 20 C.F.R. 404.1527(d)(2). The hypothetical
also fairly summarized the limitations which all the
examining psychiatrists confirmed: appellant's need to avoid
stress and to confine her activities to simple, solitary
tasks. While reasonable minds may differ on how best to
characterize the degree of stress which appellant might
tolerate, we are not in a position to gainsay the ALJ's
interpretation, but confine our analysis to the search for
"substantial evidence." Id.; Rodriguez Pagan v. Secretary of
HHS, 819 F.2d 1, 3 (1st Cir. 1987), cert. denied, 484 U.S.
1012 (1988). It is the ALJ's job, not the court's, to chose
between competing evidence and inferences. See Ortiz v.
Secretary of HHS, 955 F. 2d 765, 769 (1st Cir. 1991).
As to appellant's physical condition, again there
was conflicting evidence. Although a neurologist tentatively
diagnosed collagen disease, and chronic cervical and lumbar
syndromes which might render appellant unable to work, the
diagnosis was expressly conditioned on a reevaluation by a
rheumatologist. Consulting rheumatologists, however,
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diagnosed several mild and moderate conditions, including
myositis, bursitis, tendinitis, epicondylitis,
costochondritis, psychogenic rheumatism, and a
polyradiculopathy of unknown origin, but found normal muscle
strength and no limitations on appellant's range of motion.
Two residual functional capacity assessments concluded that
appellant was physically capable of "medium" level work.
Again, the ALJ's resolution of the conflict, limiting
appellant to "light" work to avoid aggravating her diagnosed
conditions, is supported by substantial evidence. Moreover,
the hypothetical carefully echoed all the environmental
limitations suggested by the medical reports to accommodate
appellant's asthma and "very mild" restrictive pulmonary
dysfunction.
Appellant's final argument is that the ALJ erred by
assigning "little credibility" to appellant's own testimony
that she suffered from totally debilitating pain, depression,
and anxiety. The transcript of the hearing shows that
appellant was thoroughly questioned as to all matters
relevant to her subjective symptoms. See Avery v. Secretary
of HHS, 797 F.2d 19 (1st Cir. 1986). We necessarily defer to
the ALJ's evaluation of appellant's credibility, especially
since it is supported by substantial medical evidence
consistent with a lesser degree of pain and a greater
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functional capacity. See Frustaglia v. Secretary of HHS, 829
F.2d 192, 195 (1st Cir. 1987).
Although the record arguably could support a
different conclusion, there is substantial evidence
undergirding the ALJ's determination. Thus, we must uphold
the Secretary's decision. See Ortiz, 955 F.2d at 770;
Rodriguez Pagan, 819 F.2d at 3.
Affirmed.
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