USCA1 Opinion

March 9, 1995
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

____________________
No. 94-2012
SONIA CABRERA MENDEZ,
Plaintiff, Appellant,
v.
SECRETARY OF HEALTH AND HUMAN SERVICES,
Defendant, Appellee.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Jose Antonio Fuste, U.S. District Judge]
___________________
____________________
Before
Torruella, Chief Judge,
___________
Selya and Boudin, Circuit Judges.
______________

____________________

Raymond Rivera Esteves and Juan A. Hernandez Rivera, on brief

______________________
_________________________
appellant.
Guillermo Gil, United States Attorney, Maria Hortensia Ri
______________
___________________
Assistant United States Attorney, and Robert J. Triba, Assist
________________
Regional Counsel, Department of Health and Human Services, on br
for appellee.
____________________
____________________

Per Curiam.
__________
district

court judgment

Secretary of

Health and

Sonia

Cabrera Mendez appeals

affirming a

final decision

Human Services

to the

from a
of the

effect that

appellant
Social

did not

Security

meet the
Act

insurance benefits.

disability requirements

for purposes

of

of the

obtaining disability

As there is substantial evidence

in the

record to support the Secretary's decision, we affirm.

Appellant

alleged an

inability to

work beginning

January 25, 1990, due to a musculoskeletal condition, asthma,

dysthymia

and

anxiety.

appellant testified,

the

found that appellant had

her

from

returning

receptionist and

rendered

twice concluded that

familiar

to

sequential

Following

hearing

Administrative Law

at

Judge

which
("ALJ")

a severe impairment which prevented

her

former

her skills

she was not

work

as

an

nontransferable,

disabled at Step 5

analytic

office

process.

20

but

of the

C.F.R.

404.1520(f).
In his first decision
retained a functional
light

work which

the ALJ found that appellant

capacity to

was not

nonexertional limitations,

perform a

wide range

significantly compromised
so considering her age

by her

(42 years

old), and education (12th grade), the denial of benefits

directed by

application of the

"grid," 20 C.F.R.

Subpt. P, App. 2, Rules 202.20, 202.21.

however, remanded the

case to the

-2-

of

was

Part 404,

The Appeals Council,

ALJ with instructions

to

obtain a vocational expert's [VE's] assessment of appellant's

occupational

base in light of the medical record relating to

appellant's nonexertional limitations.

Following a new hearing at which appellant and a VE
testified, the ALJ again denied
was based

on the VE's

benefits.

affirmative answer

The second denial

to the

following

hypothetical question.
[A]ssuming hypothetically . . . that the claimant
physically would be limited to sedentary or light
activities. . . where she would lift ten pounds
frequently and 20 pounds maximum, and most of the
work would be standing, but if necessary she could
alternate her position as needed . . . . That the
work should be performed . . . in a clean work
environment, in which she would not be subjected to
excessive dust or dirt, fumes, noxious odors,
excessive heat or cold. That from a non-exertional
standpoint the claimant should not be placed in
work where she would be under intensive tension or
pressure in the performance of the work. In other
words, it should be work that is of a routine,
repetitive and simple nature.
Also, it would be
preferable that she not meet the public on a
continuing [or frequent] basis.
. . . .
That any work that she would perform that might
elicit any type of pain should be regarded as
tolerable pain, meaning in effect it would not
affect her attention
or concentration in the
performance of her work functions.
Under these
circumstances would she be able to return to her
former employment or would there be other jobs
existing within the national or local economy
applicable to the claimant?

T.62-63.

In response, the VE opined that appellant could not

resume her former work, but identified several unskilled jobs

capable of

being

performed

by a

person

with

the

stated

in substantial numbers

in the

-3-

limitations, and

which exist

local economy.
The Secretary
existence

of a

may meet

substantial number of

economy by relying upon an

question, so

her burden of

proving the

suitable jobs

in the

expert's answer to a hypothetical

long as the hypothetical

itself corresponds to

conclusions that are supported by substantial evidence in the

record.

Arocho v. Secretary of HHS,

______
________________

Cir. 1982).
first

To

resolve

testimony to

670 F.2d 374, 375 (1st

guarantee that correspondence, the ALJ

ambiguities

credit, and

in

the

accurately

evidence,

decide

transmit the

argues

that

the

what

relevant

conclusions to the expert in the form of assumptions.

Appellant

must

hypothetical

Id.
___
was

defective

because

it

did

not fairly

evidence of her impairments.

required

instead to

accept

the VE's

hypothetical

nonetheless

conclusions

that

evidence.

The

model

1990.

All

negative response

of

acceptably

shows

repeatedly treated for depression

October,

ALJ was
to

We do not agree.

find substantial
record

record

posited a claimant with more

severe functional limitations.

hardly

the

She contends that the

three other hypotheticals which

While

reflect

that

articulation,

the

corresponds

to

support in

the medical

appellant

had

been

and anxiety since at least

the examining

psychiatrists reported,

-4-

however, that appellant

was coherent, logical, and

oriented

in three spheres (person, place, and time).

There was
of

conflicting evidence about

appellant's depressive

ability to work.

disorder

and its

the severity
effect on

her

On the one hand, appellant was admitted to

the

emergency room at least

depression.

with psychomotor

1991, diagnosed a dysthymic

retardation of

unable to

instructions
work

diagnosis of major

In addition, a psychiatrist who treated her from

March through October,

appellant

once with a

performance,

such severity as

understand

under ordinary
even

and carry

minimally

to render

out even

supervision, or to
in

disorder

simple

sustain any

stressful

work

situations.
On

the

other

concluded in December,

hand,

1991, that

serious mental limitations, she

follow work rules and

consulting

while appellant

deal with work stresses, and

maintain concentration, understand,

carry

simple job

examining

doctors in

instructions.
November,

concluded that appellant had

limitations on

suffered

retained a "fair" ability to

ability to
out

psychiatrist

the various

a "good"

remember and

Assessments by

1990 and

June, 1991,

nonalso

only moderate and insignificant

capacities needed to

maintain a

consistent work schedule and carry out simple tasks.

The hypothetical assumption that appellant retained
some

functional

capacity

for

-5-

simple

tasks

despite

her

depressive disorder thus was reasonably

evaluating and
not

non-examining doctors' reports.

required to

accept

line conclusion that

work,

see 20
___

also

See
___

fairly

the treating

404.1527(e),

other

and to

tasks.

While

characterize
tolerate,

we

especially

20 C.F.R.

404.1527(d)(2).

summarized

the

confine

interpretation, but

any

as it

was

of
in a

"substantial evidence."

which

all

to simple,

may differ

stress
position

confine our

hypothetical
the

appellant's need to avoid

her activities

the degree

The

limitations

reasonable minds

are not

to engage in

substantial medical evidence in the

examining psychiatrists confirmed:

stress

The ALJ was

psychiatrist's bottom

appellant was unable

C.F.R.

inconsistent with
record.

substantiated by the

which

solitary

on how

best to

appellant

to gainsay

analysis to the

might

the ALJ's
search for

Id.; Rodriguez Pagan v. Secretary of

__
_______________
____________

HHS, 819 F.2d

___

1, 3 (1st Cir.

1012 (1988).

It is the ALJ's job, not the court's, to chose

between

competing evidence

1987), cert. denied,

____________

and

inferences.

484 U.S.

See Ortiz
___ _____

v.

Secretary of HHS, 955 F. 2d 765, 769 (1st Cir. 1991).

________________
As

to appellant's physical

was conflicting evidence.

condition, again there

Although a neurologist tentatively

diagnosed collagen disease,

syndromes which
diagnosis was

and chronic cervical and

might render

appellant unable to

expressly conditioned

rheumatologist.

Consulting

lumbar

work, the

on a reevaluation

rheumatologists,

by a

however,

-6-

diagnosed

several

myositis,

mild and

bursitis,

costochondritis,
polyradiculopathy

moderate

conditions, including

tendinitis,

psychogenic

epicondylitis,

rheumatism,

no limitations on appellant's

Two residual

functional capacity assessments

Again,

the

was physically
ALJ's

capable

resolution

appellant to "light" work

of

of

range of motion.
concluded that

"medium" level

the

conflict,

hypothetical

carefully

limitations suggested by the

appellant's

asthma and

work.

limiting

to avoid aggravating her diagnosed

conditions, is supported by substantial evidence.

the

of unknown origin, but found normal muscle

strength and

appellant

and

"very

echoed

all

the

environmental

medical reports to
mild"

Moreover,

restrictive

accommodate
pulmonary

dysfunction.
Appellant's final argument is that the ALJ erred by
assigning "little credibility"

to appellant's own

testimony

that she suffered from totally debilitating pain, depression,

and

anxiety.

appellant
relevant

The transcript

was

thoroughly

of

questioned

to her subjective symptoms.

of HHS, 797 F.2d 19 (1st Cir. 1986).

______
the ALJ's evaluation
since

it

consistent

the

is

as

to

shows that
all

by

lesser

We necessarily defer to

substantial
degree

matters

See Avery v. Secretary

___ _____
_________

of appellant's credibility,

supported

with

hearing

of

especially

medical
pain

evidence

and a

greater

-7-

functional capacity.

See Frustaglia v. Secretary of HHS, 829

___ __________
________________

F.2d 192, 195 (1st Cir. 1987).

Although

the

record

arguably

could

support

different

conclusion,

undergirding the
the Secretary's

there

is

ALJ's determination.
decision.

See
___

Rodriguez Pagan, 819 F.2d at 3.

_______________
Affirmed.
________

-8-

substantial
Thus,

Ortiz, 955
_____

evidence

we must uphold
F.2d

at

770;