[NOT FOR PUBLICATION–NOT TO BE CITED AS PRECEDENT]
United States Court of Appeals
For the First Circuit
No. 00-1476
RAMON RIVERA,
Plaintiff, Appellant,
v.
KENNETH S. APFEL, COMMISSIONER,
SOCIAL SECURITY ADMINISTRATION,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Ronald R. Lagueux, U.S. District Judge]
Before
Torruella, Chief Judge,
Selya and Boudin, Circuit Judges.
Donna M. Nesselbush and Marasco & Nesselbush on brief for
appellant.
Margaret E. Curran, United States Attorney, Anthony C.
DiGioia, Assistant United States Attorney, and Wayne G. Lewis,
Assistant Regional Counsel, on brief for appellee.
December 28, 2000
Per Curiam. Ramon Rivera appeals from the judgment
of the district court affirming the decision of the
Commissioner of Social Security that claimant is not
disabled and therefore not entitled to supplemental security
income benefits. On appeal, claimant raises three issues:
(1) whether the administrative law judge (ALJ) abused his
discretion, first, when he failed to acknowledge claimant's
request for a supplemental hearing to cross-examine Dr.
Teixeira, who conducted a psychological evaluation of
claimant and, second, when he (the ALJ) implicitly denied
the request without giving any reasons for his action; (2)
whether the IQ test used by Dr. Teixeira was inaccurate; and
(3) whether reliance on the grid was precluded under our
decision in Ortiz v. Secretary of Health and Human Services,
890 F.2d 520 (1st Cir. 1989) (per curiam).
As for the first two issues, it is noteworthy that
claimant was the one who had sought, at the last minute, a
psychological evaluation. In this context, it was incumbent
upon claimant to explain, in his request for a supplemental
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hearing, what such a hearing likely would reveal and why
there were no other ways, short of a hearing, of obtaining
the needed information. Given this, we cannot say that the
ALJ's implicit denial of claimant's request for a
supplemental hearing was an abuse of discretion.
Although we agree that there is a general dispute
concerning the accuracy of the Spanish version of the
Wechsler Adult Intelligence Scale (EIWA), that dispute need
not be addressed in order to resolve this case.
Specifically, the IQ scores seem not to have been the
determining factor in Dr. Teixeira's evaluation of claimant
or in the ALJ's decision of no disability. Indeed, the ALJ
only mentioned claimant's EIWA IQ scores in passing and
seemed to rely more on Dr. Teixeira's observations of
claimant's mental capacities and on claimant's history.
These observations, according to Dr. Teixeira, conformed to
claimant's EIWA IQ scores.
Dr. Teixeira's observations resulted in the
following residual functional capacity (RFC) assessment.
First, Dr. Teixeira found no limits in claimant's abilities
(1) to relate to other people, (2) to respond appropriately
to supervision and to coworkers, and (3) to perform simple
tasks. Second, Dr. Teixeira determined that claimant had
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mild limitations in responding to customary work pressures,
and in performing complex or varied tasks. Finally, Dr.
Teixeira opined that claimant had moderate limitations in
understanding, remembering, and carrying out instructions.
Based on this RFC assessment, it is plain that there is
substantial evidence to support the ALJ's conclusion that
claimant's mental impairment did not affect, more than
marginally, his (claimant's) capacity to engage in the full
range of light work.
Claimant nonetheless argues that the ALJ erred in
relying on the grid on the ground that the ALJ himself found
that claimant "often" experienced deficiencies in
concentration, persistence, or pace, which resulted in the
failure to complete tasks in a timely fashion. Claimant
maintains that due to this finding, the instant case falls
outside the situations in which use of the grid is permitted
as set out in Ortiz v. Secretary of Health and Human
Services, supra, 890 F.2d 520. In particular, claimant
argues that since the ALJ in Ortiz had found that the
claimant there "seldom" had such problems, the instant case
requires the testimony of a vocational expert.
However, while claimant is correct regarding the
ALJ's rating in Ortiz, we found that this rating was
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ambiguous and thus we decided to disregard it. Id. at 526
n.6. Rather, in relation to the ability to concentrate, we
relied on the RFC evaluations completed by the various
medical experts. The claimant, according to these
evaluations, had moderate limits in maintaining attention
and concentration for extended periods. Id. at 527. We
nonetheless held that use of the grid was appropriate.
Thus, the question is whether the ALJ's "often"
rating here is equivalent to the "moderate" rating in Ortiz.
We find that it is. Specifically, "often" and "moderate"
are both the middle ratings on five-point scales. That is,
the ratings on the "B" criteria of the Psychiatric Review
Technique Form regarding how often deficiencies in
concentration occur are never, seldom, often, frequent, and
constant; on the RFC forms, the limits are rated as none,
mild, moderate, moderately severe, and severe. A "moderate"
limit is defined as "an impairment which affects but does
not preclude [the] ability to function." See, e.g., Trans.
at 195 (RFC form completed by Dr. Teixeira). As a result,
the use of the grid was not precluded by Ortiz.
The judgment of the district court is affirmed.*
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*Chief Judge Torruella respectfully dissents and
would order a remand for further proceedings on the question
of the accuracy of the EIWA.
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