Not for Publication in West’s Federal Reporter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. 02-2171
LUIS M. ARIAS,
Plaintiff, Appellant,
v.
COMMISSIONER OF SOCIAL SECURITY,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Jay A. García-Gregory, U.S. District Judge]
Before
Boudin, Chief Judge,
Campbell, Senior Circuit Judge,
and Lipez, Circuit Judge.
Rafael Colon Flores on brief for appellant.
H.S. Garcia, United States Attorney, Camille Velez-Rive,
Assistant United States Attorney, and Karen B. Burzycki, Assistant
Regional Counsel, on brief for appellee.
July 24, 2003
Per Curiam. Claimant Luis M. Arias appeals from the judgment
of the district court affirming the partial denial of Social
Security disability benefits. The Commissioner of Social Security
determined that claimant was disabled, and thus was entitled to
such benefits, as of November 1, 1997, but not before. Claimant
contends that he became disabled as of March 31, 1995 -- the date
of onset he originally had alleged in his application.
Claimant, who suffers from prostate cancer and a mental
impairment, worked at Damas Hospital in Puerto Rico until March 31,
1995, when he was fired. The Commissioner rejected this as an
onset date because claimant had worked subsequent to this time at
Auto Mart de Ponce, and this work had amounted to substantial
gainful employment. Claimant stopped this second job in March
1996. However, the Commissioner determined that from April 1996
through the end of October 1997, claimant had retained the residual
functional capacity to perform his past work. It was not until
claimant's cancer had metastasized in approximately November 1997
that the Commissioner found that claimant had become disabled.
On appeal, claimant argues that his job at Auto Mart was an
unsuccessful work attempt and thus did not amount to substantial
gainful activity. See Social Security Ruling 84-25, Determination
of Substantial Gainful Activity if Substantial Work Activity is
Discontinued or Reduced -- Unsuccessful Work Attempt, 1984 WL
49799. However, claimant never presented this argument below. It
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is settled that arguments which could have been presented to the
district court, but were not, generally are waived on appeal.
Windsor Mount Joy Mut. Ins. Co. v. Giragosian, 57 F.3d 50, 56 n.7
(1st Cir. 1995).
Even assuming, without deciding, that claimant's job at Auto
Mart was an unsuccessful work attempt, the onset date of November
1, 1997 initially established by the administrative law judge (ALJ)
is supported by substantial evidence. See Nguyen v. Chater, 172
F.3d 31, 35 (1st Cir. 1999) (per curiam) ("[t]he ALJ's findings of
fact are conclusive when supported by substantial evidence"). In
this regard, there are two time periods in issue: (1) April 1996
through the end of October 1997 -- the period during which the ALJ
concluded that claimant could perform his past work; and (2) April
1995 through March 1996 -- the period the ALJ did not adjudicate
because he had found that claimant had been engaged in substantial
gainful activity during this time. As for the adjudicated time
period, the ALJ concluded that claimant (1) retained the residual
functional capacity (RFC) for light work, (2) could walk or sit for
up to six hours each in an eight-hour work day, and (3) did not
have any limitations on his ability to engage in mental work-
related activities.
In relation to his physical impairment, claimant argues only
that because he never had recovered from his cancer, he became
disabled on March 31, 1995. However, claimant does not address the
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real issue -- the impact of his cancer on his capacity to perform
the exertional requirements of work. A review of the record
nonetheless indicates that claimant experienced little in the way
of physical limitations as the result of his prostate cancer during
the relevant time.
After claimant's surgery (November 1993), claimant reported
that he essentially was doing well. And, although claimant's PSA
levels were increasing in July and November 1996, there were no
reports by claimant of any physical complaints. Indeed, claimant's
treating physician completed a Genito-Urinary Medical Report, dated
November 11, 1996, in which he indicates that claimant's only
limitations were that he was precluded from heavy lifting and
strenuous exercise. In addition to the foregoing, an RFC
assessment, completed by a non-examining physician in 1996 and
affirmed by a second non-examining physician in April 1997, found
that claimant was capable of performing medium work. Thus, the
ALJ's decision that, from April 1996 through the end of October
1997, claimant retained the exertional RFC to perform his past work
-- which was light -- is supported by substantial evidence.
As for claimant's mental impairment, the ALJ concluded that
this condition was not severe during the period from April 1996
through the end of October 1997. Claimant argues that the ALJ was
required to give controlling weight to the opinion of Dr. Ruben
Rivera Carrion that claimant essentially was incapable of
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performing any work due to his mental impairment. We disagree and
find that substantial evidence supports the ALJ's decision
regarding the non-severity of this impairment.
First, Dr. Rivera did not have a long treatment relationship
with claimant, having seen claimant on only three occasions.
Second, Dr. Rivera's conclusions about the severity of claimant's
mental impairment are not consistent with the other substantial
evidence in the record. See Keating v. Secretary of Health and
Human Services 848 F.2d 271, 275-76 (1st Cir. 1988) (per curiam)
(the conclusions of a treating physician regarding disability may
be rejected by the Commissioner where contradictory medical
evidence appears in the record). In particular, both of the
consultative psychiatrists who had examined claimant opined that
claimant was coherent, relevant, logical, and oriented; they also
found that claimant's memory was intact. And, although Dr. Luis A.
Toro found that claimant's capacity for concentration had slightly
diminished, Dr. Carmen M. Cotto-Perez found that it was
satisfactory. See Sitar v. Schweiker, 671 F.2d 19, 22 (1st Cir.
1982) ("a treating physician's diagnosis is not necessarily
entitled to more weight than that of a [physician] who examines the
claimant only once").
Further, two of the non-examining physicians who completed
Psychiatric Review Technique forms specifically opined that
claimant's mental impairment was not severe. And, both Drs. Cotto
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and Toro never indicated that claimant was incapable of working due
to his emotional problems. Although the report of Dr. Rivera
conflicts with the above, the resolution of conflicts in the
evidence and the ultimate determination of disability are for the
ALJ, not the courts. See Rodriguez v. Secretary of Health and
Human Services, 647 F.2d 218, 222 (1st Cir. 1981).
Given the above, we see no reason for a remand for a decision
regarding the un-adjudicated period of April 1995 through March
1996. In particular, there simply is no indication that either of
claimant's impairments were worse during this earlier time. It
therefore is clear that, based on the evidence in the record and
the findings the ALJ already had made, only one result could obtain
for this earlier time -- that claimant retained the RFC for light
work and that he did not have any limitations on his ability to
engage in mental work-related activities. As a result, claimant
did not become disabled until November 1, 1997 the onset date
established by the Commissioner.
Affirmed.
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