Not for Publication in West's Federal Reporter
Citation Limited Pursuant to 1st Cir. Loc. R. 32.3
United States Court of Appeals
For the First Circuit
No. 03-2258
PASCUAL ROMAN-ROMAN,
Plaintiff, Appellant,
v.
COMMISSIONER OF SOCIAL SECURITY,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Héctor M. Laffitte, U.S. District Judge]
Before
Boudin, Chief Judge,
Lipez and Howard, Circuit Judges.
Raymond Rivera Esteves and Juan A. Hernandez Rivera on brief
for appellant.
H. S. Garcia, Unites States Attorney, Camille Velez-Rive,
Assistant United States Attorney, and Robert M. Peckrill, Assistant
Regional Counsel, Social Security Administration, on brief for
appellee.
November 19, 2004
Per Curiam. Appellant Pascual Roman-Roman alleged
disability due to severe mental and physical impairments. The
evidence submitted by appellant showed that he had worked at a
newspaper for nearly 30 years. Toward the end of this period a
back injury and back surgery, followed by re-injury and other
events, precipitated debilitating pain and serious depression.
In 1998, after physical therapy and psychiatric treatment,
appellant sought disability benefits alleging inability to work
from March 1998 onward.
The ALJ found that appellant's impairments barred his
return to his past work, but that despite some physical
limitations appellant retained the residual physical capacity for
unskilled light work. These findings are not at issue on this
appeal. The ALJ further found, however, that appellant's non-
exertional impairments--that is, his mental difficulties--did not
significantly erode the occupational base available to appellant
for such work, and that the occupational "grid" therefore applied
to (and precluded) his disability claim. Appellant seeks review
of this determination.
Our review is limited to assuring that the ALJ deployed
the correct legal standards and found facts upon the proper
quantum of evidence. 42 U.S.C. § 405(g) (2000); Manso-Pizarro v.
Sec'y of Health & Human Servs., 76 F.3d 15, 16 (1st Cir. 1996)
(per curiam). We will uphold the decision only if it is
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supported by substantial evidence, evidence rationally adequate
on the record as a whole to justify the conclusion. Rodriguez
Pagan v. Sec'y of Health & Human Servs., 819 F.2d 1, 3 (1st Cir.
1987) (per curiam), cert. denied, 484 U.S. 1012 (1988). Although
weighting evidence and resolving conflicts are the ALJ's
prerogative, he may not ignore evidence, misapply the law or
judge matters entrusted to experts. Nguyen v. Chater, 172 F.3d
31, 35 (1st Cir. 1999) (per curiam).
Under the case law, it is appropriate for the Secretary
to rely upon the grid to bar disability status where a claimant
is within the exertional limitations and the admitted mental
impairments have only a slight effect on the availability of
work. Heggarty v. Sullivan, 947 F.2d 990, 996 (1st Cir. 1991).
"If a non-strength impairment, even though considered
significant, has the effect only of reducing that occupational
base marginally, the Grid . . . can be relied on exclusively . .
. ." Ortiz v. Sec'y of Health & Human Servs., 890 F.2d 520, 524
(1st Cir. 1989). The ALJ's determination thus presents two
questions for review: whether the ALJ acted properly in crediting
some experts' testimony over others', and if so whether the
credited portions of the medical evidence were sufficient to
permit the ALJ to rely solely on the grid.
With regard to the first question, the ALJ's relative
weighing of the medical testimony is adequately supported by the
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evidence. The ALJ was presented with conflicting opinions
regarding Roman's mental capacity: these ranged from a prognosis
of complete dysfunction by Roman's psychiatrist to one of
moderate functioning by a non-examining government psychologist.
The record also included two other government attending
psychologists' opinions, which were less sanguine than the non-
attending physician but conveyed some degree of adequate mental
functioning. It was within the ALJ's discretion to credit the
more positive reports of Roman's mental condition; we cannot find
his conclusions in this regard unsupported by substantial
evidence. See Rodriguez Pagan, 819 F.2d at 2-3.
The second question is more difficult. The question of
the impact of Roman's condition on the availability of work is
one on which the Secretary bears the burden of proof, Vazquez v.
Sec'y of Health & Human Servs., 683 F.2d 1, 2 (1st Cir. 1982),
and under Ortiz the Secretary may use the grid as a shortcut to
denial of disability only if the impairments do no more than
marginally erode the range of work available to the applicant in
an established work category. 890 F.2d at 524. Although the
issue is a close one, we think that even the more positive
evaluations of Roman's mental condition are insufficient to show
what Ortiz requires.
The most favorable report of any of the attending
psychiatrists still found moderate depression sufficient to merit
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a "guarded" prognosis; it also found that appellant's judgment
was only fair, that his short-term memory remained poor, that he
could not concentrate enough to recite days backward or subtract
by threes, and that his daily activities were minimal.
Similarly, the non-examining state psychologist noted that
appellant was afflicted with an affective disorder including
depression, irritability, hallucinations and other
characteristics that moderately limited his functioning in a
number of relevant categories, including understanding,
concentration and social interaction.
In the absence of a better explanation as to how these
medical findings illustrate that a nearly full set of unskilled
light work is available to Roman, we believe that a translation
from medical evaluations to job prospects was more appropriately
reserved for a vocational expert. On this record, there are
significant mental constraints outlined by even the most positive
psychological prognoses and we cannot find any clear basis for
concluding that the impairments have no significant effect on the
work still available to appellant. This certainly does not show
that appellant is disabled but, unless this gap is closed, it
does preclude reliance upon the grid.
On remand, the ALJ may employ a vocational expert to
fill the gap, obtain further medical evidence that may link
Roman's mental capacity more directly to the work he is capable
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of doing, or both. This is admittedly a close case but the
evidence of impairment is somewhat stronger here than in Ortiz,
which affirmed a denial based upon the grid but only barely. We
do not suggest that a vocational expert is required in all such
cases.
Vacated and remanded.
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