[NOT FOR PUBLICATION–NOT TO BE CITED AS PRECEDENT]

United States Court of Appeals For the First Circuit

No. 99-2205

CHRISTINA TROISI,

Plaintiff, Appellant,

v.

KENNETH S. APFEL, COMMISSIONER OF SOCIAL SECURITY ADMINISTRATION,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Richard G. Stearns, U.S. District Judge]

Before

Lynch, Circuit Judge, Bownes, Senior Circuit Judge, and Lipez, Circuit Judge.

Nancy Lorenz, Taramattie Doucette and Greater Boston Legal Services on brief for appellant. Donald K. Stern, United States Attorney, and Michael J. Pineault, Assistant U.S. Attorney, on brief for appellee.

AUGUST 23, 2000 Per Curiam. Appellant Christina Troisi appeals

from a judgment of the district court upholding the

Commissioner's denial of social security disability benefits

("SSDI") and supplemental security benefits ("SSI"). Troisi

alleged an inability to engage in any "substantial gainful

activity" beginning in 1990 due to headaches, a depressive

disorder and a gender identity disorder. She stated in her

application that she had worked full-time as a hairdresser

until 1990, and had continued to work at that trade, but on

a part-time basis, earning $90 per week, until shortly

before she filed her application for benefits on April 26,

1995. Her last insured date was September 30, 1996.

At the hearing before an ALJ in August, 1996,

Troisi acknowledged that by March or May, 1996, she had

resumed her part-time work as a hairdresser and was still so

employed for approximately three days per week, now earning

$18 per day. The ALJ found that this work "probably" was

not at a substantial "gainful" level, so her application was

not disqualified at Step One of the familiar sequential

process. See

(b), 416.974(b) (1997)

(defining "gainful" earnings); see also

(providing that part-time work which involves significant

physical or mental activity is "substantial" work).

At the hearing, the ALJ heard testimony from

Troisi, a vocational expert, and a medical expert. The

record was held open for additional medical evidence. Based

on the entire record, the ALJ determined that despite her

mental impairments, Troisi retained a residual functional

capacity to work at a "substantial gainful" level as a

hairdresser and to make an adjustment to other work which

exists in significant numbers in the national economy. The

Appeals Council denied review.

Upon a careful review of the record, we agree with

the district court that the ALJ's determination is supported

by substantial evidence. Accordingly, we affirm adding only

the following in light of the arguments here.

(1) The ALJ did not "ignore" the second opinion

letter from Troisi's treating psychologist dated August 26,

1996, but fully summarized it in his report. The ALJ was

not required to chose between the psychologist's second

diagnosis of "major depression in partial remission" and the

examining psychiatrist's diagnosis of "dysthymia" since

neither doctor described an impairment which "meets or

equals" the severity required for a finding of disability

-3- at Step Three. The psychologist's opinion, that Troisi was

not ready to return to "full-time" work without risk to her

mental health, was not entitled to "controlling" weight

since it was inconsistent with other substantial evidence in

the record including evidence from the other treating

sources. See

(d)(2). Anyway, the

question before the ALJ was whether, as defined in the

regulations, Troisi's impairments precluded "substantial

gainful work activity" for a continuous twelve-month period

and that question is reserved to the Commissioner. See

(e).

(2) The ALJ's finding that Troisi's "statements

about her impairments and their impact on her ability to

work are not entirely credible," is sufficiently explained

by the ensuing discussion of the medical evidence in his

report and his comments at the hearing. A credibility

finding is entitled to deference especially where, as here,

it is consistent with substantial medical evidence.

(3) The ALJ's findings as to Troisi's non-

exertional limitations were specific and individualized and

did fall below the regulatory standard explained in

Lancellotta v. Secretary of HHS,

(1st Cir.

1986). The hypothetical which the ALJ posed to the VE fairly

-4- summarized the limitations which were found to be credible

and supported by the medical evidence.

(4) The parties disagree about whether the

psychologist's third opinion letter, dated March 26, 1997,

is a part of the record for purposes of judicial review.

The letter was offered to the Appeals Council as "new"

evidence, but the Appeals Council denied review.

Troisi seeks a remand to the Commissioner for

further "evaluation," but we are not sure whether she means

to argue (1) that under

(g), the letter is

"new" and "material" evidence and there was "good cause" for

the failure to incorporate it into the record "in a prior

proceeding," or (2) that the Appeals Council erred as a

matter of law by denying review under

,

416.1476, because the letter was "new" and "material" to the

period "on or before" the ALJ's decision date, and/or (3)

that we should include the letter in our judicial review of

the entire record for "substantial evidence." As to the

last of the possible arguments, the circuits are split over

whether such "new evidence" is considered a part of the

administrative record for purposes of judicial review.

However, here we need not reach the issue which has

divided the circuits. Under any of Troisi's possible

-5- arguments, we find that the psychologist's third opinion

letter cannot reasonably change the result. The letter is

dated six months after Troisi's insurance expired and two

months after the ALJ's decision. It "updates" Troisi's

"mental status and current functioning," in light of

intervening events and adds new diagnoses. It was too

remote to be "material" to the SSDI issue of whether Troisi

had acquired a defined disability prior to the expiration of

her insurance. Any retrospective inferences, even to the

date of the ALJ's decision, are too attenuated to add weight

to Troisi's claims or to change the result of our

"substantial evidence" review.1

Affirmed.

1 In addition to the time line issue, we note that the doctor's new diagnosis of "apparent" attention deficits and "possible learning disabilities," would carry little or no weight, especially since the doctor had "not been able to test Ms. Troisi to determine the nature and/or level of her cognitive deficits." Other "new" diagnoses, or bases for the opinion include, "lacking in job interview skills" and "lack of adequate [employment] training," matters which are not entitled to weight as "medical" opinion.

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