USCA1 Opinion
May 9, 1995
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 94-2152
VIRGINIA SANTOS-MARTINEZ,
Plaintiff, Appellant,
v.
SECRETARY OF HEALTH AND HUMAN SERVICES,
Defendant, Appellee.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Hector M. Laffitte, U.S. District Judge]
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Before
Torruella, Chief Judge,
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Cyr and Stahl, Circuit Judges.
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Juan A. Hernandez Rivera and Raymond Rivera Esteves on brief for
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appellant.
Guillermo Gil, United States Attorney, Maria Hortensia Rios,
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Assistant United States Attorney, and Robert J. Triba, Assistant
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Regional Counsel, Department of Health and Human Services, on brief
for appellee.
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Per Curiam. Claimant Virginia Santos-Martinez
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appeals 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. Having carefully reviewed the record, we affirm
the judgment of the district court substantially for the
reasons stated in the magistrate judge's Report and
Recommendation dated March 11, 1993, which was adopted by the
district court.
Claimant makes essentially two arguments on appeal.
First, she argues that the Secretary's finding that
claimant's disability does not preclude her from performing
her past relevant work as a receptionist is not supported by
substantial evidence. In particular, claimant relies upon a
residual functional capacity assessment ("RFC") that noted
limitations in pushing or pulling ten or more pounds,
"fingering (fine manipulation)" and "feeling (skin
receptors)". Second, claimant argues that, in light of those
limitations, the Administrative Law Judge ("ALJ") erred in
not obtaining testimony of a vocational expert regarding how
those limitations would affect claimant's ability to perform
her past relevant work as a receptionist.
I. Substantial Evidence
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Even where the record is capable of supporting more
than one conclusion, we will affirm the Secretary's
determination when "a reasonable mind, reviewing the evidence
in the record as a whole, could accept it as adequate to
support his conclusion." Rodriguez v. Secretary of HHS, 647
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F.2d 218, 222 (1st Cir. 1981). Resolutions of conflicts in
the evidence are for the Secretary. Id. Where the record
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permits diverse inferences, the Secretary's determination
will be affirmed, so long as the inferences drawn are
supported by the evidence. Rodriguez Pagan v. Secretary of
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HHS, 819 F.2d 1, 3 (1st Cir. 1987), cert. denied, 484 U.S.
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1012 (1988); Lizotte v. Secretary of HHS, 654 F.2d 127 (1st
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Cir. 1981).
The ALJ made the following findings regarding
claimant's medical condition as of December 31, 1988 (the
date the claimant was last insured for disability purposes):
In January, 1988, and February, 1989,
[claimant] underwent surgery for carpal
tunnel release of her left and right
hands, respectively.
. . .
[T]here is no doubt that the claimant had
a condition which required surgery.
However, the claimant responded well to
treatment and medication. She regained
most of the capacity associated with the
hands such as grasping, pushing, pulling,
lifting and carrying. The claimant on or
before December 1988, still had some
limitations, and on or before this date
the claimant was not capable of
performing medium or heavy activities.
However, she was not precluded from
performing the full range of light
exertion. . . . As long as the claimant
avoids activities as heavy lifting or
carrying, she is able to function
normally.
Based upon this analysis of claimant's capabilities and
claimant's own description of her former job as a
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receptionist, the ALJ concluded that she was able to perform
her past relevant work as a receptionist.
On appeal, claimant faults the ALJ for failing to
consider allegedly uncontroverted evidence of "disabilities
beyond an impairment to lift or carry." Claimant relies upon
an RFC dated August 15, 1991. That RFC noted certain
"manipulative limitations," including "Fingering (fine
manipulation)" and "Feeling (skin receptors)," and a
limitation in claimant's ability to push and or pull (limited
to weights of less than ten pounds). A second RFC, however,
dated March, 1992, indicated that there were no manipulative
limitations established and no limitations regarding
claimant's ability to push and/or pull. Therefore, the
evidence is not uncontroverted, as claimant alleges.
Moreover, the ALJ specifically addressed claimant's
manipulative abilities. He found that after surgery, the
claimant "regained most of the functional capacity of both
hands. She also had a marked improvement in her capacity for
grasping and making a fist. The numbness she alleged prior
to surgery showed marked improvement." Those findings are
supported by the record. Progress notes of an examining
physician from the State Insurance Fund ("SIF"), dated May
24, 1989, report that following physical therapy, claimant
"has less pain and now full grip strength." SIF progress
notes dated June 3, 1989, indicate that the range of motion
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of the wrist and fingers (of the right hand) is only
"slightly limited." A "surgery evaluation" dated March 30,
1990, reported that the surgery had resulted in "great
improvement" in both hands and that claimant was "feeling
well" in both hands. SIF progress notes dated January 29,
1991, indicate that claimant had "weakness" in her left hand
causing slight limitations, but that her right hand was
"normal." Given this support in the record for the ALJ's
findings, they will not be overturned on appeal.
II. Testimony by a Vocational Expert
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Claimant argues that the ALJ erred in failing to
elicit the testimony of a Vocational Expert ("VE") to
determine whether the impairments indicated by the medical
record would preclude her from performing her past relevant
work as a receptionist. At step 4 of the disability
determination process, however, the ALJ is not required to
elicit the testimony of a vocational expert ("VE"). See
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Musgrave v. Sullivan, 966 F.2d 1371, 1376 (10th Cir. 1992)
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(holding that because claimant failed to meet his burden of
establishing a disability which prevented him from performing
his past relevant work, "the ALJ was under no obligation to
elicit the testimony of a vocational expert").
"The claimant is the primary source for vocational
documentation, and statements by the claimant regarding past
work are generally sufficient for determining the skill
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level, exertional demands and nonexertional demands of such
work." Social Security Ruling 82-62. In claimant's
application of disability insurance benefits she described
her basic duties in her former job as a receptionist, as
follows: "1. take telephone calls, care for the public. 3.
keep daily reports in the books. 4. Messenger. 5. In charge
of photostatic copies." At the hearing before the ALJ,
claimant testified that in her former job she had been
required to write, to record things in books and to type.
Claimant testified at her hearing before the ALJ
that her impairments precluded the performance of her past
work as a receptionist because she could hardly move her
hands and "things fall from my hands." The ALJ did not find
claimant's allegations of manipulative limitations that would
preclude performance of her past relevant work credible.
"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 evidence is entitled to
deference, . . . " Frustaglia v. HHS, 829 F.2d 192, 195 (1st
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Cir. 1987). On this record, the ALJ did not err in failing
to elicit the testimony of a VE regarding claimant's capacity
to perform her past relevant work as a receptionist.
Claimant's allegations of manipulative limitations that
would preclude performance of her past relevant work as a
receptionist are directly contradicted by the medical
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evidence. That evidence, as summarized above, indicates that
claimant regained full grip strength after surgery and that
her right hand was normal and weakness in her left hand was
only slightly limiting. The RFC dated March, 1992, indicated
that she had no "manipulative limitations." The ALJ's
determination that on or before December, 1988, claimant was
capable of performing her past relevant work, is
substantially supported by the record as a whole.
Accordingly, we affirm the district court's opinion
affirming the Secretary's denial of benefits.
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