USCA1 Opinion

May 9, 1995
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 94-2152
VIRGINIA SANTOS-MARTINEZ,
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. Hector M. Laffitte, U.S. District Judge]
___________________
____________________
Before
Torruella, Chief Judge,
___________
Cyr and Stahl, Circuit Judges.
______________
____________________

Juan A. Hernandez Rivera and Raymond Rivera Esteves 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.
___________

Claimant

Virginia

Santos-Martinez

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

the judgment
reasons

carefully reviewed the

of the

stated

in

district
the

record, we

court substantially

magistrate

judge's

affirm
for

Report

the
and

Recommendation dated March 11, 1993, which was adopted by the

district court.
Claimant makes essentially two arguments on appeal.
First,

she

argues

claimant's disability

that

the

Secretary's

does not preclude

finding

that

her from performing

her

past relevant work as a receptionist is not supported by

substantial evidence.
residual

In particular, claimant relies upon

functional capacity

limitations

in

"fingering

(fine

receptors)".
limitations,

pushing

or

assessment ("RFC")
pulling

manipulation)"

ten
and

or

that noted

more

pounds,

"feeling

(skin

Second, claimant argues that, in light of those

the Administrative Law Judge

("ALJ") erred in

not obtaining testimony of a vocational expert regarding

those limitations

how

would affect claimant's ability to perform

her past relevant work as a receptionist.

I. Substantial Evidence
____________________
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

support his

whole, could

conclusion."

F.2d 218, 222 (1st

accept it

as adequate

to

Rodriguez v. Secretary of HHS, 647

_________
________________

Cir. 1981).

Resolutions of

conflicts in

the evidence
permits
will

are for the Secretary.

diverse

be

inferences,

affirmed,

supported by the
HHS, 819 F.2d
___

so

as

the

determination

inferences

Rodriguez Pagan
_______________

1, 3 (1st Cir.

1012 (1988); Lizotte v.

_______

Where the record

the Secretary's

long

evidence.

Id.
___

drawn are

v. Secretary of
____________

1987), cert. denied, 484

____________

Secretary of HHS, 654 F.2d

________________

U.S.

127 (1st

Cir. 1981).
The
claimant's

ALJ

made

the

medical condition

following
as of

findings

regarding

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

claimant's

this
own

analysis of
description

claimant's
of

her

capabilities
former

job

and
as

-3-

receptionist, the ALJ concluded that she

was able to perform

her past relevant work as a receptionist.

On appeal,

claimant faults the ALJ

consider allegedly uncontroverted

evidence of

beyond an impairment to lift or carry."

an

RFC

dated

"manipulative
manipulation)"

August 15,

1991.

limitations,"
and

That

(skin

"disabilities

Claimant relies upon

including

"Feeling

for failing to

RFC noted

certain

"Fingering

receptors),"

(fine
and

limitation in claimant's ability to push and or pull (limited

to

weights of less than ten pounds).

dated March, 1992, indicated

limitations
claimant's

established
ability

that there were no manipulative

and

to push

A second RFC, however,

no

and/or

limitations
pull.

regarding

Therefore,

the

evidence is not uncontroverted, as claimant alleges.

Moreover, the ALJ specifically addressed claimant's
manipulative

abilities.

claimant "regained
hands.

most of

He found

that after

surgery, the

the functional capacity

of both

She also had a marked improvement in her capacity for

grasping and making a

to surgery
supported

showed marked
by the

physician from
24,

fist.

improvement."

record.

the State

1989, report that

"has less pain

alleged prior

Those

Progress notes

findings are

of an

examining

Insurance Fund ("SIF"),

dated May

following physical

and now

notes dated June 3,

The numbness she

therapy, claimant

full grip strength."

SIF

1989, indicate that the range

progress
of motion

-4-

of

the wrist

and

fingers

"slightly limited."
1990,

reported

improvement"
well"

that

in both

in both hands.

(of

the

right

hand)

A "surgery evaluation"
the

surgery had

hands and

that claimant

in

"normal."

slight
Given

limitations, but
this support

that

"great

was "feeling

dated January 29,

1991, indicate that claimant had "weakness" in her

causing

only

dated March 30,

resulted

SIF progress notes

is

her

in the record

left hand

right hand
for the

findings, they will not be overturned on appeal.

II. Testimony by a Vocational Expert

was
ALJ's

________________________________
Claimant argues
elicit

the

testimony

determine whether
record would
work

as a

of

Musgrave v.
________

Expert

indicated by

preclude her from performing

receptionist.

the

ALJ erred in

Vocational

the impairments

determination process,
elicit

that the

At

step

however, the

testimony of

Sullivan, 966 F.2d

________

(holding that because claimant

("VE")

to

the medical

her past relevant

of

the

ALJ is not

vocational

failing to

disability
required to

expert ("VE").

See
___

1371, 1376 (10th

Cir. 1992)

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

work are

generally

sufficient

-5-

for

determining

the

past
skill

level, exertional demands

work."

Social

application
her

Security

basic duties

former job

take telephone calls,

photostatic

In

as a

At

that

she described

receptionist, as

care for the

the hearing

in

her former

such

claimant's

public. 3.

the books. 4. Messenger. 5.

copies."

testified

82-62.

insurance benefits

in her

keep daily reports in

claimant

Ruling

of disability

follows: "1.

of

and nonexertional demands of

In charge

before
job

the ALJ,

she

had been

required to write, to record things in books and to type.

Claimant testified
that her
work

at her hearing

impairments precluded

as a

before the

the performance of

receptionist because

she could

hands and "things fall from my hands."

her past

hardly move

The ALJ

ALJ

her

did not find

claimant's allegations of manipulative limitations that would

preclude

performance

"The credibility
claimant,

of her

past

determination by

evaluated his

demeanor,

relevant

work credible.

the ALJ who

observed the

and considered

how that

testimony fit in with the rest of the evidence is entitled to

deference, . . . " Frustaglia v. HHS, 829 F.2d
__________
___
Cir. 1987).

On this

192, 195 (1st

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
would preclude
receptionist

performance of her
are

directly

past relevant

contradicted

-6-

limitations that

by

the

work as

medical

evidence.

That evidence, as summarized above, indicates that

claimant regained
her right hand

full grip strength after

was normal and weakness in her

only slightly limiting.

that

she had

no

of

left hand was

The RFC dated March, 1992, indicated

"manipulative limitations."

determination that on or
capable

surgery and that

performing

The

ALJ's

before December, 1988, claimant was

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.

-7-