Garcia-Martinez v. Barnhart, (1st Cir. 2004)

Text

---

Not for Publication in West's Federal Reporter

Citation Limited Pursuant to 1st Cir. Loc. R. 32.3

United States Court of Appeals

For the First Circuit

No. 04-1332

SYLVIA GARCIA-MARTINEZ,

Plaintiff, Appellant,

v.

JO ANNE BARNHART,

COMMISSIONER OF SOCIAL SECURITY,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. José Antonio Fusté, U.S. District Judge]

Before

Boudin, Chief Judge,

Lipez and Howard, Circuit Judges.

Felix M. Zeno Gloro on brief for appellant.

H.S. Garcia, United States Attorney, Joseph Dunn, Assistant

Regional Counsel, and Lisa E. Bhatia, Assistant U.S. Attorney on

brief for appellee.

October 1, 2004

Per Curiam. Claimant Sylvia Garcia-Martinez appeals from

the district court's judgment affirming the denial of Social

Security disability benefits. Claimant alleged only a mental

impairment (depression and anxiety), and the Commissioner

determined that this severe impairment prevented claimant from

performing her past work. The Commissioner nonetheless concluded

that there was other work (at all exertional levels) which claimant

could perform, so long as such work (1) was of a routine,

repetitive nature, (2) did not involve undue pressure, and (3) did

not involve interactions with the public. In reaching this

conclusion, the Commissioner used the Medical Vocational Guidelines

(the grid), 20 C.F.R. Part 404, Subpart P, App. 2, as a framework

for her decision. Claimant makes two arguments on appeal.

First, claimant contends that the administrative law

judge (ALJ) erroneously failed to give controlling weight to the

opinion of her treating psychiatrist that she essentially is

disabled. This contention fails because (1) the treating

psychiatrist's opinion conflicts with the other evidence in the

record and (2) this doctor opined that claimant was experiencing

disabling symptoms during three years in which claimant was able to

perform her past work. The ALJ therefore permissibly decided that

the psychiatrist's opinion should not be adopted. See Security

Ruling 96-2p, Giving Controlling Weight to Treating Source Medical

Opinions, 1996 WL 374188.

Second, claimant argues that the ALJ erred by using the

grid in deciding her case. Rather, she maintains that, because her

only impairment was mental, the testimony of a vocational expert

(VE) was required. However, the source claimant cites for this

proposition -- the Hearings, Appeals and Litigation Law Manual

(HALLEX) -- does not require a VE's testimony in such a situation,

but instead just recommends the use of a VE. Further, where, as

here, a claimant's non-exertional impairment does not significantly

interfere with the performance of the full range of unskilled work,

the use of the grid as a framework is not error. See SSR 85-15,

Capability to do Other Work -- the Medical-Vocational Rules as a

Framework for Evaluating Solely Nonexertional Impairments, 1985 WL

56857; Ortiz v. Secretary of Health and Human Services, 890 F.2d

520 (1st Cir. 1989) (per curiam).

The judgment of the district court is summarily affirmed.

See Local Rule 27(c).

---