November 10, 1994 [NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT
No. 94-1638
NORBERTA BATISTA-CANALES,
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
Cyr, Circuit Judge,
Bownes, Senior Circuit Judge,
and Stahl, Circuit Judge.
Juan R. Requena Davila and Juan A. Hernandez Rivera on brief for
appellant. Guillermo Gil, United States Attorney, Maria Hortensia Rios,
Assistant United States Attorney, and Nancy B. Salafia, Assistant
Regional Counsel, Department of Health and Human Services, on brief for appellee.
Per Curiam. Claimant, Norberta Batista-Canales,
appeals from the judgment of the district court affirming the
decision of the Secretary of Health and Human Services that
she is not entitled to Social Security disability benefits.
Claimant filed an application for disability
benefits on March 14, 1991, listing as disabilities asthma
and a back condition. She alleged an onset date of April 1,
1985; her insured status expired on September 30, 1990.
After a hearing, an administrative law judge (ALJ) determined
that claimant's impairments, as of September 30, 1990, did
not prevent her from performing her past work as a machine
operator in the electronics industry. In this job, she
assembled parts by soldering them together; she functioned in
a seated position and was not required to lift more than 10
pounds at a time. She stopped working in February 1985 when
the company closed.
Specifically, the ALJ found that claimant suffered
from severe degenerative disease of the facet joints in her
spine, chronic lumbosacral sprain, allergic rhinitis,
bronchial asthma and depression. He credited her allegations
of pain to the extent that she was precluded from performing
more than sedentary work. He next found that claimant had
the residual functional capacity to engage in work that did
not involve (1) prolonged walking or standing, (2) lifting
more than 10 pounds, (3) frequent bending, and (4) exposure
to dust, fumes, gases, detergents and perfumes. The Appeals
Council denied claimant's request for review.
On appeal to this court, claimant first asserts
that the ALJ was not qualified to assess whether her prior
work was free of the above pollutants. She cites to Social
Security Ruling 85-15 which provides, in part, that "[w]here
an individual can tolerate very little noise, dust, etc., the
impact on the ability to work would be considerable because
very few job environments are entirely free of irritants,
pollutants, and other potentially damaging conditions."
Social Security Ruling 85-15 goes on to distinguish between
the above situation and one requiring only avoidance of
excessive amounts of pollutants. In the latter case, "the
impact on the broad world of work would be minimal because
most job environments do not involve great noise, amounts of
dust, etc." Where the level of restriction "falls between
very little and excessive, resolution of the issue will
generally require consultation of occupational reference
materials or the services of a VS [vocational specialist]."
Claimant argues that because there was no evidence
from which the ALJ could have concluded that her past work
was compatible with the limits placed on her by her asthma,
the ALJ should have consulted a VS. Although the ALJ did not
specify the level of claimant's environmental restriction, we
do not need to reach this issue. There is substantial
evidence in the record to support the conclusion that
claimant's asthma, prior to September 30, 1990, imposed
-3-
minimal restrictions on her abilities to function at work.
As such, the impact on the number of sedentary jobs would be
small.
Before September 1990, there is only one reference
to an asthmatic condition. In January 1990, claimant
underwent surgery to remove a cyst due to chronic maxillary
sinusitis. See Exhibit 14. The diagnoses were bronchial
asthma and allergic rhinitis. A chest X-ray taken at this
time revealed clear lungs and claimant's prognosis was
considered to be good. The rest of the medical evidence is
from 1991 and 1992. Specifically, claimant's treating
physician, Dr. Juan de los Santos, did not mention a
diagnosis of chronic bronchial asthma until March 1991. See
Exhibit 11.
There is no evidence in the 1990 reports concerning
any treatment for claimant's asthma during the period of time
for which she was insured. The diagnosis of bronchial asthma
standing by itself is insufficient to establish claimant's
entitlement to disability benefits. See Tsarelka v.
Secretary of Health and Human Services, 842 F.2d 529, 534
(1st Cir. 1988) (per curiam). In any event, Dr. de los
Santos stated that claimant experienced only two attacks per
month, each one lasting 15 to 20 minutes. See Exhibit 11.
Further, in two residual functional capacity (RFC)
assessments, completed by non-examining physicians in 1991,
-4-
claimant was rated as having no environmental restrictions.
Given the paucity of evidence indicating a more severe
condition, the ALJ's conclusion that claimant's asthma did
not preclude her from performing her past work is
sufficiently supported.
Claimant's second argument on appeal is that the
ALJ did not engage in the correct analysis in evaluating her
complaints of disabling pain. Specifically, claimant asserts
that, at the hearing, the ALJ failed to inquire about the
nature of the pain, the effectiveness of any medication or
other treatment, and the impact the pain had on claimant's
daily activities and functional restrictions. At the
hearing, claimant was questioned by her attorney concerning
her back pain. She testified that she experiences stabbing
pain in the left side of her back and in her left leg. As a
result of this pain, claimant stated that she could not bend
over to pick up something from the floor and that after
sitting, she must straighten herself out slowly in order to
be able to stand. She also must change position frequently
and must crawl to dress herself. Since the first episode of
back pain in April 1985, the pain has worsened. Further, in
a disability report, claimant stated that she could not lift
or carry heavy objects, could not sit for any length of time
and must avoid bending. She cannot perform household chores.
-5-
In his decision, the ALJ referred to the above
information in evaluating claimant's pain. He also relied on
the complaints of pain that claimant presented to a
consulting neurologist on April 30, 1991. Therefore, we
think that the ALJ correctly applied Avery v. Secretary of
Health and Human Services, 797 F.2d 19 (1st Cir. 1986). As
for the severity of claimant's pain, the ALJ, in fact,
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November 10, 1994 [NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT
No. 94-1638
NORBERTA BATISTA-CANALES,
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
Cyr, Circuit Judge,
Bownes, Senior Circuit Judge,
and Stahl, Circuit Judge.
Juan R. Requena Davila and Juan A. Hernandez Rivera on brief for
appellant. Guillermo Gil, United States Attorney, Maria Hortensia Rios,
Assistant United States Attorney, and Nancy B. Salafia, Assistant
Regional Counsel, Department of Health and Human Services, on brief for appellee.
Per Curiam. Claimant, Norberta Batista-Canales,
appeals from the judgment of the district court affirming the
decision of the Secretary of Health and Human Services that
she is not entitled to Social Security disability benefits.
Claimant filed an application for disability
benefits on March 14, 1991, listing as disabilities asthma
and a back condition. She alleged an onset date of April 1,
1985; her insured status expired on September 30, 1990.
After a hearing, an administrative law judge (ALJ) determined
that claimant's impairments, as of September 30, 1990, did
not prevent her from performing her past work as a machine
operator in the electronics industry. In this job, she
assembled parts by soldering them together; she functioned in
a seated position and was not required to lift more than 10
pounds at a time. She stopped working in February 1985 when
the company closed.
Specifically, the ALJ found that claimant suffered
from severe degenerative disease of the facet joints in her
spine, chronic lumbosacral sprain, allergic rhinitis,
bronchial asthma and depression. He credited her allegations
of pain to the extent that she was precluded from performing
more than sedentary work. He next found that claimant had
the residual functional capacity to engage in work that did
not involve (1) prolonged walking or standing, (2) lifting
more than 10 pounds, (3) frequent bending, and (4) exposure
to dust, fumes, gases, detergents and perfumes. The Appeals
Council denied claimant's request for review.
On appeal to this court, claimant first asserts
that the ALJ was not qualified to assess whether her prior
work was free of the above pollutants. She cites to Social
Security Ruling 85-15 which provides, in part, that "[w]here
an individual can tolerate very little noise, dust, etc., the
impact on the ability to work would be considerable because
very few job environments are entirely free of irritants,
pollutants, and other potentially damaging conditions."
Social Security Ruling 85-15 goes on to distinguish between
the above situation and one requiring only avoidance of
excessive amounts of pollutants. In the latter case, "the
impact on the broad world of work would be minimal because
most job environments do not involve great noise, amounts of
dust, etc." Where the level of restriction "falls between
very little and excessive, resolution of the issue will
generally require consultation of occupational reference
materials or the services of a VS [vocational specialist]."
Claimant argues that because there was no evidence
from which the ALJ could have concluded that her past work
was compatible with the limits placed on her by her asthma,
the ALJ should have consulted a VS. Although the ALJ did not
specify the level of claimant's environmental restriction, we
do not need to reach this issue. There is substantial
evidence in the record to support the conclusion that
claimant's asthma, prior to September 30, 1990, imposed
-3-
minimal restrictions on her abilities to function at work.
As such, the impact on the number of sedentary jobs would be
small.
Before September 1990, there is only one reference
to an asthmatic condition. In January 1990, claimant
underwent surgery to remove a cyst due to chronic maxillary
sinusitis. See Exhibit 14. The diagnoses were bronchial
asthma and allergic rhinitis. A chest X-ray taken at this
time revealed clear lungs and claimant's prognosis was
considered to be good. The rest of the medical evidence is
from 1991 and 1992. Specifically, claimant's treating
physician, Dr. Juan de los Santos, did not mention a
diagnosis of chronic bronchial asthma until March 1991. See
Exhibit 11.
There is no evidence in the 1990 reports concerning
any treatment for claimant's asthma during the period of time
for which she was insured. The diagnosis of bronchial asthma
standing by itself is insufficient to establish claimant's
entitlement to disability benefits. See Tsarelka v.
Secretary of Health and Human Services, 842 F.2d 529, 534
(1st Cir. 1988) (per curiam). In any event, Dr. de los
Santos stated that claimant experienced only two attacks per
month, each one lasting 15 to 20 minutes. See Exhibit 11.
Further, in two residual functional capacity (RFC)
assessments, completed by non-examining physicians in 1991,
-4-
claimant was rated as having no environmental restrictions.
Given the paucity of evidence indicating a more severe
condition, the ALJ's conclusion that claimant's asthma did
not preclude her from performing her past work is
sufficiently supported.
Claimant's second argument on appeal is that the
ALJ did not engage in the correct analysis in evaluating her
complaints of disabling pain. Specifically, claimant asserts
that, at the hearing, the ALJ failed to inquire about the
nature of the pain, the effectiveness of any medication or
other treatment, and the impact the pain had on claimant's
daily activities and functional restrictions. At the
hearing, claimant was questioned by her attorney concerning
her back pain. She testified that she experiences stabbing
pain in the left side of her back and in her left leg. As a
result of this pain, claimant stated that she could not bend
over to pick up something from the floor and that after
sitting, she must straighten herself out slowly in order to
be able to stand. She also must change position frequently
and must crawl to dress herself. Since the first episode of
back pain in April 1985, the pain has worsened. Further, in
a disability report, claimant stated that she could not lift
or carry heavy objects, could not sit for any length of time
and must avoid bending. She cannot perform household chores.
-5-
In his decision, the ALJ referred to the above
information in evaluating claimant's pain. He also relied on
the complaints of pain that claimant presented to a
consulting neurologist on April 30, 1991. Therefore, we
think that the ALJ correctly applied Avery v. Secretary of
Health and Human Services, 797 F.2d 19 (1st Cir. 1986). As
for the severity of claimant's pain, the ALJ, in fact,
credited her allegations of disabling pain in determining
that work more arduous than sedentary would aggravate her
condition. This finding is supported by the record.
As the ALJ pointed out, claimant only received
treatment on one occasion prior to the expiration of her
insured status. Claimant was hospitalized from April 11 to
April 15, 1985 due to severe lumbosacral myositis. See
Exhibit 20. A note dated April 12, 1985 stated that claimant
was markedly improved. When she was discharged claimant was
stable but still had some lumbosacral discomfort. According
to Dr. de los Santos, a C-T Scan, performed two months prior
to claimant's hospitalization, was within normal limits,
despite a finding of degenerative joint disease in the facet
joints. The only other reference to claimant's back is an X-
ray report dated June 30, 1990. It showed mild
spondyloarthritic changes of the L4 vertebra, with well-
preserved vertebral height and intervertebral spaces.
-6-
Claimant did not seek any other treatment for her back until
March 1991 when she began seeing Dr. Noreiga Sanchez.
Again, the lack of medical evidence for the
relevant time period supports the decision of the ALJ that
claimant could perform her past work. Also, the two 1991 RFC
assessments indicate that claimant can frequently lift up to
25 pounds and can sit, stand and walk for up to six hours
each in an eight-hour work day. Finally, the consultative
neurology examination in April 1991 showed normal gait,
posture and muscle tone. Claimant could pick up pieces of
paper from the floor without difficulty. There was no
atrophy and claimant retained full range of motion in all
extremities.
For the foregoing reasons, the judgment of the
district court is affirmed.
-7-