USCA1 Opinion
September 29, 1994
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 94-1121
WAYNE I. CARTER,
Plaintiff, Appellant,
v.
DONNA E. SHALALA, SECRETARY,
U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES,
Defendant, Appellee.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Robert W. Lovegreen, U.S. Magistrate Judge]
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Before
Torruella, Chief Judge,
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Selya and Stahl, Circuit Judges.
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Moe Greenberg on brief for appellant.
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Edwin J. Gale, United States Attorney, Stephanie S. Browne,
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Assistant United States Attorney, and Amy S. Knopf, Assistant Regional
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Counsel, U.S. Department of Health and Human Services, on brief for
appellee.
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Per Curiam. Claimant Wayne Carter appeals a
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district court judgment that affirmed a decision of the
Secretary of Health and Human Services denying Carter's claim
for Social Security disability and Supplemental Security
Income (SSI) benefits. Carter claimed that he became
disabled in June 1990 as a result of a right leg injury
caused by a gunshot wound and a tendency to drink "a bit too
much." Carter had previously been employed as a grill cook,
laborer, messenger, and maintenance worker, jobs which ranged
from semi-skilled light work to unskilled heavy work.
Following a hearing before an administrative law Judge (ALJ)
at which Carter was represented by counsel, the ALJ issued a
decision which ruled that Carter was not disabled at step
five of the sequential evaluation process. See Goodermote v.
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Secretary of Health and Human Services, 690 F.2d 5, 6-7 (1st
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Cir. 1982). The ALJ specifically found that Carter's right
leg injury imposed exertional limitations that prevented him
from performing his past work. However, he also found that
Carter retained the physical residual functional capacity to
perform the full range of sedentary work. The ALJ also
determined that Carter's substance abuse did not constitute a
severe impairment. Based in part on Carter's testimony that
he believed he physically could do the sedentary work that
the ALJ had described, the ALJ applied the Grid, Rules 201.25
(younger individual, limited or less education, skilled or
semi-skilled work history where the skills were not
transferable) and 201.26 (same findings where the skills were
transferable) to conclude that Carter was not disabled. The
district court issued a nineteen page memorandum and order
upholding the ALJ's decision. This appeal followed.
We have thoroughly reviewed the record and each of
the parties contentions on appeal. We find ourselves in
agreement with the thorough analysis of the district court.
We add only the following remarks. First, Carter's
contention that the ALJ erred by relying solely on his
testimony in concluding that his mental impairment is not
severe is not supported by the record. The ALJ's decision
relied heavily on Dr. Sorrentino's report, which did not
identify any significant vocational restrictions associated
with Carter's mental condition. In fact, Dr. Sorrentino's
report contained several findings (e.g. "able to concentrate,
"continues in tasks," good relationship with authority
figures) which are wholly consistent with an ability to
perform basic mental work activities. See 20 C.F.R. 404.
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1521. Second, we think that the ALJ's reliance on Carter's
testimony, which indicated that Carter had considerably
curtailed his alcohol and cocaine consumption, was
supportable given the numerous conflicts in the evidence
concerning Carter's substance abuse and educational
limitations. Such conflicts and credibility judgments are
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for the Secretary to resolve and are not to be second-
guessed. See, e.g. Ortiz v. Secretary of Health and Human
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Services, 955 F.2d 765, 769 (1st Cir. 1991); Frustaglia v.
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Secretary of Health and Human Services, 829 F.2d 192, 195
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(1st Cir. 1987). Third, we see no harm from the ALJ's
failure to cite consultant Musika's Psychiatric Review
Technique Form (PRTF) where this consultant also rated
Carter's mental impairment non-severe. Carter's claim that
the ALJ failed to give sufficient weight to his intellectual
limitations also fails, for the ALJ specifically recognized
that Dr. Sorrentino's diagnosis suggested that Carter may
have a developmental reading disorder. Even if Carter is
illiterate, there are sufficient jobs within the sedentary
range of work available to him, see 20 C.F.R. Part 404,
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Subpart P, Appendix 2, 201.00(h). In addition to the Grid
Rules cited by the ALJ, Grid Rule 201.23 (younger individual,
illiterate, past work unskilled) still directs a finding of
not disabled.1 Finally, it is clear that Carter did not
sufficiently identify the alcohol-treatment records that he
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1. Carter also argues that the ALJ erred by failing to have
the vocational expert testify about the impact that his
alcoholism, personality disorder, and learning disability had
on his ability to meet the mental/emotional demands of
competitive employment. While it is generally preferable for
an ALJ to take vocational evidence, see, e.g., Ortiz v.
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Secretary of Health and Human Services, 890 F.2d 520, 528
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(1st Cir. 1989)("an ALJ should typically err on the side of
taking vocational evidence"), on this record application of
the Grid alone was supportable.
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now says were essential to an evaluation of his mental
impairment. Where Carter was represented by counsel and had
ample opportunity to submit this evidence to the Secretary,
we see no cause for remand now. Accordingly, the judgment of
the district court is affirmed.
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