[NOT FOR PUBLICATION–NOT TO BE CITED AS PRECEDENT]

United States Court of Appeals For the First Circuit

No. 00-1476

RAMON RIVERA,

Plaintiff, Appellant,

v.

KENNETH S. APFEL, COMMISSIONER, SOCIAL SECURITY ADMINISTRATION,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF RHODE ISLAND

[Hon. Ronald R. Lagueux, U.S. District Judge]

Before

Torruella, Chief Judge, Selya and Boudin, Circuit Judges.

Donna M. Nesselbush and Marasco & Nesselbush on brief for appellant. Margaret E. Curran, United States Attorney, Anthony C. DiGioia, Assistant United States Attorney, and Wayne G. Lewis, Assistant Regional Counsel, on brief for appellee. December 28, 2000

Per Curiam. Ramon Rivera appeals from the judgment

of the district court affirming the decision of the

Commissioner of Social Security that claimant is not

disabled and therefore not entitled to supplemental security

income benefits. On appeal, claimant raises three issues:

(1) whether the administrative law judge (ALJ) abused his

discretion, first, when he failed to acknowledge claimant's

request for a supplemental hearing to cross-examine Dr.

Teixeira, who conducted a psychological evaluation of

claimant and, second, when he (the ALJ) implicitly denied

the request without giving any reasons for his action; (2)

whether the IQ test used by Dr. Teixeira was inaccurate; and

(3) whether reliance on the grid was precluded under our

decision in Ortiz v. Secretary of Health and Human Services,

(1st Cir. 1989) (per curiam).

As for the first two issues, it is noteworthy that

claimant was the one who had sought, at the last minute, a

psychological evaluation. In this context, it was incumbent

upon claimant to explain, in his request for a supplemental

-2- hearing, what such a hearing likely would reveal and why

there were no other ways, short of a hearing, of obtaining

the needed information. Given this, we cannot say that the

ALJ's implicit denial of claimant's request for a

supplemental hearing was an abuse of discretion.

Although we agree that there is a general dispute

concerning the accuracy of the Spanish version of the

Wechsler Adult Intelligence Scale (EIWA), that dispute need

not be addressed in order to resolve this case.

Specifically, the IQ scores seem not to have been the

determining factor in Dr. Teixeira's evaluation of claimant

or in the ALJ's decision of no disability. Indeed, the ALJ

only mentioned claimant's EIWA IQ scores in passing and

seemed to rely more on Dr. Teixeira's observations of

claimant's mental capacities and on claimant's history.

These observations, according to Dr. Teixeira, conformed to

claimant's EIWA IQ scores.

Dr. Teixeira's observations resulted in the

following residual functional capacity (RFC) assessment.

First, Dr. Teixeira found no limits in claimant's abilities

(1) to relate to other people, (2) to respond appropriately

to supervision and to coworkers, and (3) to perform simple

tasks. Second, Dr. Teixeira determined that claimant had

-3- mild limitations in responding to customary work pressures,

and in performing complex or varied tasks. Finally, Dr.

Teixeira opined that claimant had moderate limitations in

understanding, remembering, and carrying out instructions.

Based on this RFC assessment, it is plain that there is

substantial evidence to support the ALJ's conclusion that

claimant's mental impairment did not affect, more than

marginally, his (claimant's) capacity to engage in the full

range of light work.

Claimant nonetheless argues that the ALJ erred in

relying on the grid on the ground that the ALJ himself found

that claimant "often" experienced deficiencies in

concentration, persistence, or pace, which resulted in the

failure to complete tasks in a timely fashion. Claimant

maintains that due to this finding, the instant case falls

outside the situations in which use of the grid is permitted

as set out in Ortiz v. Secretary of Health and Human

Services, supra,

. In particular, claimant

argues that since the ALJ in Ortiz had found that the

claimant there "seldom" had such problems, the instant case

requires the testimony of a vocational expert.

However, while claimant is correct regarding the

ALJ's rating in Ortiz, we found that this rating was

-4- ambiguous and thus we decided to disregard it. Id. at 526

n.6. Rather, in relation to the ability to concentrate, we

relied on the RFC evaluations completed by the various

medical experts. The claimant, according to these

evaluations, had moderate limits in maintaining attention

and concentration for extended periods. Id. at 527. We

nonetheless held that use of the grid was appropriate.

Thus, the question is whether the ALJ's "often"

rating here is equivalent to the "moderate" rating in Ortiz.

We find that it is. Specifically, "often" and "moderate"

are both the middle ratings on five-point scales. That is,

the ratings on the "B" criteria of the Psychiatric Review

Technique Form regarding how often deficiencies in

concentration occur are never, seldom, often, frequent, and

constant; on the RFC forms, the limits are rated as none,

mild, moderate, moderately severe, and severe. A "moderate"

limit is defined as "an impairment which affects but does

not preclude [the] ability to function." See, e.g., Trans.

at 195 (RFC form completed by Dr. Teixeira). As a result,

the use of the grid was not precluded by Ortiz.

The judgment of the district court is affirmed.*

-5- *Chief Judge Torruella respectfully dissents and

would order a remand for further proceedings on the question

of the accuracy of the EIWA.

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