Velez v. SHHS
U.S. Court of Appeals for the First Circuit
Velez v. SHHS
Opinion
USCA1 Opinion
December 14, 1995 [NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 95-1646
DAVIS VELEZ,
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. Carmen Consuelo Cerezo, U.S. District Judge] ___________________
____________________
Before
Selya, Stahl and Lynch,
Circuit Judges. ______________
____________________
Raymond Rivera Esteves on brief for appellant. ______________________
Guillermo Gil, United States Attorney, Maria Hortensia Rios, ______________ ______________________
Assistant United States Attorney, and Nancy B. Salafia, Assistant _________________
Regional Counsel, Social Security Administration, on brief for
appellee.
____________________
____________________
Per Curiam. Davis Velez appeals from a district court __________
judgment affirming a decision of the Secretary of Health and
Human Services denying Velez's application for social
security disability benefits. We affirm.
Velez applied for social security benefits on September
10, 1992, alleging that he could not work due to "nerves,
back, and ankle pain." After a hearing, an Adminstrative Law
Judge (ALJ) concluded that Velez has a severe combination of
impairments with a history of herniated nucleus pulposus and
depression and anxiety related disorders. He also found that
Velez is unable to perform his past work. However, the ALJ
concluded that Velez has the residual functional capacity for
light work, exclusive of jobs requiring him to perform
complex tasks or to have frequent contact with the public.
Finally, the ALJ ruled that, based on the testimony of a
vocational expert (VE) and application of the Grid, Velez is
not disabled because there are light, unskilled jobs that he
can perform.
Velez does not argue on appeal that he lacks the
physical capacity for light work. Instead, he argues that
the ALJ erred in his findings regarding Velez's mental
capacity. We review the Secretary's decision under a
"substantial evidence" standard; we will affirm that decision
if it is supported by "`such relevant evidence as a
reasonable mind might accept as adequate to support a
conclusion.'" Richardson v. Perales, 402 U.S. 389, 401 __________ _______
(1971) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. ________________________ ____
197, 229 (1938)); see also Rodriguez Pagan v. Secretary of ________ _______________ ____________
Health & Human Servs., 819 F.2d 1, 3 (1st Cir. 1987) (per ______________________
curiam), cert. denied, 484 U.S. 1012 (1988). ____________
The medical record reveals that Velez was seen at the
Mental Health Center in Arecibo on July 28, 1992. Although
Velez appeared anxious and somewhat depressed, he was also
cooperative, logical, and coherent with apparently normal
intellect. He was diagnosed as suffering from adjustment
problems, with depressive mood, and was prescribed
medication.
Between September 11, 1992 and January 22, 1993, Velez
was seen on six occasions at the State Insurance Fund in
connection with his mental condition. On October 7, 1992,
Dr. Lopez Cumpiano evaluated Velez and diagnosed him as
suffering from anxiety disorder with depressive traits.
Although Dr. Lopez noted that Velez reported episodes of
auditive and visual hallucinations, he found that Velez was
in contact with reality and presented no thought
disturbances. He also found that Velez was clear and
oriented, with fair memory, unimpaired judgment, fair
insight, and preserved intellectual ability. The remaining
records from the State Insurance Fund are not very
informative, but Velez is consistently described as alert and
oriented.
On November 10, 1992, Velez was examined by Dr. Mojica
Sandoz, a consultant to the Secretary. Dr. Mojica observed
-3-
that Velez was markedly anxious and tense, and that his
movements were somewhat slow. However, Dr. Mojica found that
Velez was accessible, cooperative, and frank, and that he did
not show any difficulty in establishing adequate and lasting
interpersonal relationships. He further found that Velez had
adequate capacity to pay attention and to concentrate, was
oriented, functioned with an average intellectual makeup, and
had adequate judgment and memory. The diagnosis was
moderate, generalized anxiety disorder.
A non-examining medical consultant to the Secretary
reviewed much of this evidence and completed both a
Psychiatric Review Technique form and a Mental Residual
Functional Capacity Assessment. Although the consultant
noted some moderate limitations on various capacities
required for unskilled work, he reached the general
conclusion that Velez is capable of functioning in a non-
demanding work environment--with simple instructions,
routines, and decisions--as long as Velez is not required to
have frequent contact with the general public.1 These
latter limitations were reflected in a hypothetical posed to
the VE, who, in turn, identified specific jobs in the local
____________________
1. A second consultant, who apparently reviewed all of the
evidence, agreed with the first consultant's conclusions
without additional comment.
-4-
economy that Velez could perform.2 Under the circumstances,
we think that there is substantial evidence to support the
Secretary's finding of no disability. We add that since the
ALJ adopted the consultant's general conclusions regarding
Velez's mental limitations, any differences in the boxes
checked on the Psychiatric Review Technique form by the ALJ
and the consultant are of no consequence.
Affirmed. _________
____________________
2. Velez suggests that the hypothetical posed to the VE was
incomplete since it did not include all of the moderate
limitations noted by the consultant. See Arocho v. Secretary ___ ______ _________
of Health & Human Servs., 670 F.2d 374, 375 (1st Cir. 1982) _________________________
(hypothetical must accurately reflect claimant's
limitations). This argument was not presented to the
district court, and we deem it waived. See, e.g., Sandstrom ___ ____ _________
v. Chemlawn Corp., 904 F.2d 83, 87 (1st Cir. 1990). In any ______________
event, we think that the consultant's findings regarding
these moderate limitations were subsumed in his general
conclusion, and that the hypothetical accurately reflected
this conclusion.
-5-
Reference
- Status
- Published