Not for Publication in West's Federal Reporter Citation Limited Pursuant to 1st Cir. Loc. R. 32.3 

# United Stat es Court of Appeals

For the First C ircuit

No. 03-2258 PASCUAL ROMAN-ROMAN, Plaintiff, Appellant,

v. COMMISSIONER OF SOCIAL SECURITY, Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO [Hon. Héctor M. Laffitte, U.S. District Judge ]
Before Boudin, Chief Judge , Lipez and Howard, Circuit Judges .
Raymond Rivera Esteves and Juan A. Hernandez Rivera on brief for appellant. H. S. Garcia , U nites States Attorney, Camille Velez-Rive , Assistant United States Attorney, and Robert M. Peckrill , Assistant Reg ional Counsel, Social Security Administration, on brief fo r appellee.

November 19, 2004Per Curiam . Appellant Pascual Roman-Roman alleged

disabilitydue to se vere m ental and physical impairments. The evidence submitted by appellant showed that he had worked at a newspaper for nearly 30 years. Toward the end of this period a back injury andba ck surgery, followed by re-injury and other events, precipitated debilitating pain and serious depression. In 1998, after physical th erapy and psychiatric treatment, appellant sought disability benefits alleging inability to work from March 1998 onward.

The ALJ found that appellant's impairments barred his return to his past work, bu t that despite some physical limitations appellant retainedthe residual physical capacity for unskilledlight wo rk. These findings are not at issue on this appeal. The ALJ further found, however, that appell ant's nonexertional impairments--that is, his mental difficulties--did not significantly erode the occupational base available to appellant for such work, and that the occupational "grid" therefore applied to (and precluded) his disability claim. Appellant seeks review of this determination.

Our review is limited to assuring that the ALJdeployed the correct legal standards and fo und facts upon the proper quantumof evidence. 42 U.S.C. § 405(g) (2000); Manso-Pizarro v. Sec'yof Health & Human Servs. , 76 F.3d 15, 16 (1st Cir. 1996) (per curiam). We will uphold the decision only if it is -2--3-

supported by substantial evidence, evidence rationally adequate
on the reco rd as a whole to justify the conclusion. Rodriguez Pagan v. Sec'y of Health & Human Servs. , 819 F.2d 1, 3 (1st Cir. 1987) (per curiam), cert. denied , 484 U.S. 1012 (1988). Although weighting evidence and resolving conflicts are the ALJ's prerogative, he may not ignore evidence, misapply the law or judge matters entrusted to experts. Nguyen v. Chater , 172 F.3d 31, 35 (1st Cir. 1999) (per curiam).

Under the case law, it is appropriate for the Secretary to rely upon the grid to bar disability status where a claimant is w ithin the exertional limitations and the admitted mental impairments have only a slight effect on the availability of work. Heggartyv. Sullivan , 947 F.2d 990, 996 (1st Cir. 1991). "If a non-strength impairment, even though considered sig nificant, has the effect only of reducing that occupation a l base marginally, the Grid . . . can be relied on exclusively . .

. ." Ortiz v. Sec'y of Health & Human Servs. , 890 F.2d 520, 524 (1st Cir. 1989). The ALJ's determination thus presents two questions for review: whether the ALJacted properly in crediting
some experts' testimony over others' , and if so whether the creditedportions of the medical evidenc e we re sufficient to permit the ALJ to rely solely on the grid.

With regard to the first question, the ALJ's relative weighing of the medical testimony is adequately supportedby the-4-

evid ence . The ALJ was presented with conflicting opinions regarding Roman's mental capacity: these ranged froma prognosis of complete dysfunction by Roman's psychiatrist to one of moderate functioning by a non-examining government psychologist. The record also included two other government atte ndingpsychologists' opinions, which were less sanguine than the nonattending physician but conveyed some degree of adequate mental functioning. It was within the ALJ's discretion to credit the
more positive reports of Roman's mental condition; we cannot find his conclusion s i n this regard unsupported by substantial evidence. See Rodriguez Pagan , 819 F.2d at 2-3.

The secondquestion is more difficult. The question of the impact of Roman's condition on the availability of work is
one on which the Secretary bears the burden of proof, Vazquez v. Sec'yof Health & Human Servs. , 683 F.2d 1, 2 (1st Cir. 1982), and under Ortiz the Secretary may use the grid as a shortcut to denial of disability only if the impairments do no more than marginallyerode the range of work available to the applicant in
an estab lished wor k category. 890 F.2d at 524. Although the issue is a cl ose one, we think that even the more positive evaluations of Roman's mental condition are insufficient to show what Ortiz requires.

The most favorable report of any of the attending psychiatrists still found moderate depression sufficient to merit-5-

a "guarded" prognosis; it also found tha t ap pellant's judgment
was only fair, that his short-term memory remained poor, that he couldnot concentrate enough to recite days backwardor subtract by threes, and that his daily ac tivi ties were minimal. Similarly, the non-examining state psychologist noted that appellant was a fflicted with an affective disorder including depression, ir ritability, hallucinations and othe r characteristics th at mo derately limited his functioning in a number of relevant categories, including understanding, concentration and social interaction.

In the absence of a better explanation as to how these medical findings illustrate that a nearly full set of unskilled light work is available to Roman, we believe that a translation frommedical evaluations to job prospects was more appropriately reservedfor a vocational expert. On this record, there are significant mental constraints outlined by even the most positive psychological prognoses and we cannot find any clear b asis f or concluding that the impairments have no significant effect on the work still available to appellant. This certainly does not show that appellant is disabled but, unless this gap is closed, it does preclude reliance upon the grid.

On reman d, the ALJ may employ a vocational expert to fill the gap, obtain further medica l evidence that may link Roman's mental capacity more directly to the work he is capable-6-

of doing, or both. This is admittedly a close case but the evidence of impairment is somewhat stronger here than in Ortiz , which affirmed a denial based upon the grid but only barely . We do not suggest that a vocational expert is required in all such
cases. Vacated and remanded.