Patilla v. Shalala

USCA1 Opinion









April 15, 1994 [NOT FOR PUBLICATION]

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 93-2288


ELIZABETH PATILLA,

Plaintiff, Appellant,

v.

DONNA E. SHALALA, SECRETARY OF HEALTH & HUMAN SERVICES,

Defendant, Appellee.

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APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Edward F. Harrington, U.S. District Judge]
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Before

Breyer, Chief Judge,
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Boudin and Stahl, Circuit Judges.
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Sandra L. Smales on brief for appellant.
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Donald K. Stern, United States Attorney, Charlene Stawicki,
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Special Assistant United States Attorney, and Robert M. Peckrill,
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Assistant Regional Counsel, Department of Health & Human
Services, on brief for appellee.



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Per Curiam. Claimant Elizabeth Patilla appeals
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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.
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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
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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.
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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
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Avery, we held that when a claimant alleges pain to an extent
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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
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also Social Security Ruling 88-13 (SSR 88-13).
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Our review of the record indicates that the ALJ

complied with the requirements of Avery and SSR 88-13. At a
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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



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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
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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.
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Secretary of Health & Human Services, 829 F.2d 192, 195 (1st
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Cir. 1987). Therefore, the ALJ did not err in rejecting

claimant's complaints of disabling pain.

Mental Impairment.
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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
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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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