USCA1 Opinion

[NOT FOR PUBLICATION]

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
___________________
No. 92-1970

JULIO SANTIAGO-JIMENEZ,
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. Juan M. Perez-Gimenez, U.S. District Judge]
___________________
___________________
Before
Torruella, Cyr and Stahl,
Circuit Judges.
______________
___________________
Savador Medina De La Cruz, on brief for appellant.
_________________________

Daniel F. Lopez Romo, United States Attorney, Jose Vazquez

_____________________
____________
Garcia, Assistant United States Attorney, and Amy S. Knopf,
______
_____________
Assistant Regional Counsel, Department of Health and Human
Services on brief for appellee.

__________________
June 9, 1993
__________________

Per Curiam.
__________
Jimenez filed an
benefits

Julio Santiago-

application for social security

in June,

beginning January,
Claimant was 37

Claimant appellant

1986.

He alleged

1986, due to

disability

an inability

to work

a cardiovascular condition.

years old on the date of alleged onset.

His

most recent employment had been as a laborer and packer, jobs

which required heavy physical exertion.
There have
case.
his

been two

At the first
wife,

and

evidentiary hearings

in this

hearing on December 16, 1987, appellant,

a

medical

advisor

testified.

administrative law judge ("ALJ") held appellant not

The
disabled

at

step

five of

Goodermote v.
__________
1982).
a

the

Secretary of HHS, 690 F.2d

_________________

relevant

work,

capacity for the

economy.

however,
physician.
remanded
this

which

precluded

he nevertheless

return

had

ALJ's

functional

See
___

(1st Cir.

appellant had
to

his

past

residual functional

full range of light work

The

process.

5, 6-7

Specifically, the ALJ found that while

severe impairment

the

sequential evaluation

jobs available in

capacity assessment,

had been made without the assistance of a qualified

On appeal
to the

to the district

ALJ for further

court's previous

court, the

case was

consideration in

light of

decisions.

Secretary of HHS, 858 F.2d

_________________

See Rivera-Figueroa
___ _______________

48, 52 (1st Cir.

Torres v. Secretary of HHS, 837 F.2d

______
________________

v.

1988); Rivera_______

4, 7 (1st Cir. 1988) (a

-2-

lay

fact-finder is

not

qualified

to determine

functional

capacity solely on the basis of bare medical findings).

On

remand, the ALJ held a supplementary hearing at

which he heard
testimony

of a

expert.

more testimony from claimant, as

second

medical

On the basis

concluded that
jobs which

of the

advisor

and

entire record,

appellant retained

well as the
vocational

the ALJ

a capacity

then

for sedentary

existed in significant numbers in the economy, as

well as one or two positions identified as "light" work jobs.

Appellant

appealed

to

magistrate-judge issued
the

ALJ's

the

Secretary.

report

The
and

district

We are met at the

that

the

again.

adopted
affirming

appeal

should

be

dismissed

because

magistrate's report in the

district court.

Failure

to the
to file

objections to a magistrate's report within the time

ordinarily waives the

court's order.
States
______

the

outset with an argument from the

to file timely objections

allowed

the

We, too, affirm.

appellant allegedly failed

specific

The

affirmance of

court

recommendation,

This appeal followed.

Secretary

court

a report recommending

decision.

magistrate's

district

Thomas v.
______

Arn, 474 U.S. 140

___

v. Valencia-Copete,
_______________

Appellant's

alleged

late

792
filing

contained specific objections

assertion that

he

right to appeal

F.2d
in

to the report,

had received

-3-

the

(1985); United
______

(1st

this

the district

Cir.

case,

1986).
however,

as well as

report only

six

an
days

earlier.

The

assertion of

Secretary

did

late notice in

not

challenge

claimant's

the court below, nor

object in

any way to the district court's consideration of the

merits.

The district

without

judge adopted the

magistrate's report

reference to the timeliness of

no

reason

to

consider the

the objections.
Secretary's

We thus have

belated procedural

challenge here.
Appellant's argument on the merits is confined to a
single issue:
that

appellant

despite

is

capable

of

performing sedentary

work,

evidence that he suffers from occasional episodes of

chest pain.
the

whether the ALJ correctly determined on remand

On this review our task is to determine

Secretary's

findings

are

supported
may support

by

whether

"substantial

evidence."

Although the record

more than

one

conclusion,

we uphold the Secretary when "a reasonable mind,

reviewing the evidence in the record as a whole, could accept

it

as

adequate

to

support

Secretary of HHS, 955 F.2d

________________
Rodriguez v.
_________

his

conclusion."

Ortiz
_____

v.

765, 769 (1st Cir. 1991), quoting

Secretary of HHS,
________________

647 F.2d 218, 222

(1st Cir.

1981);

see also
________

(1971).

Richardson v.
__________

U.S. 389,

401

Resolutions of conflicts in the evidence are for the

Secretary.

Ortiz, 955 F.2d

_____

of HHS, 826 F.2d 136, 141

______
permit

Perales, 402
_______

at 769; Evangelista v. Secretary

___________
_________
(1st Cir. 1987).

diverse inferences, we

long as the inferences drawn

Where the

will affirm the

facts

Secretary so

are supported by the

evidence.

-4-

Rodriguez Pagan v. Secretary of HHS, 819 F.2d 1, 3 (1st

_______________
________________
1987),

cert. denied,
_____________

484

U.S.

1012

(1988);

Lizotte
_______

Cir.
v.

Secretary of HHS, 654 F.2d 127, 128 (1st Cir. 1981).

________________
Using the criteria for the evaluation of complaints
of pain set forth in Avery
_____
(1st

Cir. 1986),

medical

findings

appellant's
degree

claims

alleged.

the

ALJ

in

the

of

v. Secretary of HHS, 797 F.2d

________________
determined
record

did

that
not

functionally limiting

There

was

ample

the

19

objective

substantiate
pain

evidence

to
for

the
this

conclusion.
variously

While

appellant's

diagnosed, both

claimant's pain
associated

medical

with

costochondritis,
the ribs to

that

is treatable

condition

inflammatory
severe

medications.

pain,

condition had

been

advisors testified

that

was not ischemic in nature,

cartilage connecting
the

chest

both

diagnosis

alone

frequency

and

degree of

inflammation

the sternum.
with

of

the

They stated

steroids

and anti-

While costochondritis

can cause

medical

did not

an

but was instead

advisors

dictate

concluded

a medical

functionally

that

basis

the

for the

limiting pain

which

appellant alleged.
At the supplementary
also testified that, despite

hearing, the medical

appellant's chest condition, he

retained a functional capacity for sedentary work.

was found able to
eight

hours at

lift ten pounds, sit and stand

a time,

advisor

and change

positions.

Appellant
for six to
The expert

-5-

based his

opinion on all

expressly

including

of the medical records

consideration

of

and tests,
appellant's

costochondritis

as

well

as

his

occasional

tachycardia,

controlled hypertension, pain, and the effects of appellant's

various

medications.

appellant

would

While

be unable

uncontrolled severe pain,

the

to

expert

work during

effectiveness

on

that

episode of
average once

an episode would be of limited

duration, lasting no more than one hour.

largely

any

which might occur on

per week, he stated that such

estimate

conceded

appellant's own

of prescribed

He based the latter

testimony

medication

as

to the

in controlling

his

testified

the

pain.
The

vocational

expert

also

to

existence of a series of jobs which a person with appellant's

skills and stamina could perform, despite occasional episodes
of severe

pain.

In

sum, there was substantial

evidence to

support the ALJ's conclusion that claimant was "not disabled"

at step five.

Appellant

should, instead, have

effect

that

he

debilitating
vocational

that

the

credited appellant's testimony

suffered much

bouts of

argues

pain.

more
Both

expert agreed that

ALJ
to the

frequent

(even daily)

the medical

advisor and

if appellant's bouts

of pain

were as severe and frequent as he claimed, appellant would be

unable to perform any sedentary job in the economy.
evaluation of

the credibility of

-6-

However,

unsubstantiated subjective

reports of pain is for the Secretary -- not the courts

resolve.
Cir.

-- to

Evangelista v. Secretary of HHS, 826 F.2d 136 (1st

___________
_________________

1987). "The credibility

determination by the

ALJ, who

observed the claimant, evaluated his demeanor, and considered

how that testimony
entitled to
findings."

fit in with the rest of

the evidence, is

deference, especially when supported by specific

Frustaglia v. Secretary of
__________
_____________

HHS, 829 F.2d 192, 195 (1st Cir. 1987).

___
Accordingly, the decision below is affirmed.
________

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