Not for Publication in West's Federal Reporter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. 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, Unites States Attorney, Camille Velez-Rive,

Assistant United States Attorney, and Robert M. Peckrill, Assistant

Regional Counsel, Social Security Administration, on brief for

appellee.

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

disability due to severe mental 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 and back surgery, followed by re-injury and other

events, precipitated debilitating pain and serious depression.

In 1998, after physical therapy 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, but that despite some physical

limitations appellant retained the residual physical capacity for

unskilled light work. These findings are not at issue on this

appeal. The ALJ further found, however, that appellant'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 ALJ deployed

the correct legal standards and found facts upon the proper

quantum of evidence. 42 U.S.C. § 405(g) (2000); Manso-Pizarro v.

Sec'y of Health & Human Servs., 76 F.3d 15, 16 (1st Cir. 1996)

(per curiam). We will uphold the decision only if it is 

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supported by substantial evidence, evidence rationally adequate

on the record 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 within the exertional limitations and the admitted mental

impairments have only a slight effect on the availability of

work. Heggarty v. Sullivan, 947 F.2d 990, 996 (1st Cir. 1991).

"If a non-strength impairment, even though considered

significant, has the effect only of reducing that occupational

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 ALJ acted properly in crediting

some experts' testimony over others', and if so whether the

credited portions of the medical evidence were 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 supported by the
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evidence. The ALJ was presented with conflicting opinions

regarding Roman's mental capacity: these ranged from a 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 attending

psychologists' 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 conclusions in this regard unsupported by substantial

evidence. See Rodriguez Pagan, 819 F.2d at 2-3.

The second question 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'y of 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

marginally erode the range of work available to the applicant in

an established work category. 890 F.2d at 524. Although the

issue is a close 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
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a "guarded" prognosis; it also found that appellant's judgment

was only fair, that his short-term memory remained poor, that he

could not concentrate enough to recite days backward or subtract

by threes, and that his daily activities were minimal.

Similarly, the non-examining state psychologist noted that

appellant was afflicted with an affective disorder including

depression, irritability, hallucinations and other

characteristics that moderately 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

from medical evaluations to job prospects was more appropriately

reserved for 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 basis for

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 remand, the ALJ may employ a vocational expert to

fill the gap, obtain further medical evidence that may link

Roman's mental capacity more directly to the work he is capable
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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.