Galarza v. SHHS

Opinion

USCA1 Opinion

          March 10, 1994        [NOT FOR PUBLICATION]

                            UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT

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No. 93-1703

NELLY ROMAN GALARZA,

                                Plaintiff, Appellant,

                                          v.

                       SECRETARY OF HEALTH AND HUMAN SERVICES,

                                 Defendant, Appellee.

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                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                           FOR THE DISTRICT OF PUERTO RICO

[Hon. Juan M. Perez-Gimenez, U.S. District Judge]
                                               ___________________

                                 ___________________

                                        Before

                                 Breyer, Chief Judge,
                                         ___________
                         Torruella and Selya, Circuit Judges.
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                                 ___________________

               Juan A. Hernandez Rivera and Raymond Rivera Esteves on brief
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          for appellant.
               Guillermo Gil, United States Attorney, Maria Hortensia Rios,
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          Assistant United States  Attorney, and Joseph E.  Dunn, Assistant
                                                 _______________
          Regional  Attorney,  Department of  Health  & Human  Services, on
          brief for appellee.

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                                  __________________

Per Curiam.     Plaintiff appeals  from a  district
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            court decision affirming a final decision of the Secretary of

            Health  and Human  Services that appellant  did not  meet the

            disability  requirements  of  the  Social  Security  Act  for

            purposes of  obtaining disability  benefits.   We affirm  the

            judgment below.          Appellant's      application     for

            disability benefits alleged an inability to work beginning at

            age  47, due  to asthma,  chest pain,  back pain,  high blood

            pressure and a  nervous condition.  After a  hearing at which

            appellant  was represented by  counsel, an Administrative Law

            Judge ("ALJ")  found that appellant  suffered from  bronchial

            asthma  and allergic rhinopharyngitis.  The medical evidence,

            however,  did  not  indicate that  these  conditions  were as

            severe  as appellant claimed,  and the ALJ  found appellant's

            testimony on this  point "not credible."   The ALJ  concluded

            that  appellant was capable  of performing her  past relevant

            work  as  a  photo supply  sales  clerk  or  customer service

            representative.    The  Appeals  Council  affirmed  after   a

            separate  review, modifying the  record to include  a finding

            that evidence of appellant's  alleged mental impairment  also

            reflected a lack of the requisite severity, both alone and in

            combination with her other medical conditions.  

                      In sum, the Secretary found that appellant was "not

            disabled" at step  four of the familiar  regulatory five-step

            sequential analysis, in that she was able to perform her past

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relevant work.   See  20 C.F.R.    404.1520.   Appellant then
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            appealed  to  the   district  court,  where  the   magistrate

            undertook  a  thorough  and detailed  review  of  the record,

            concluding that there was substantial evidence to support the

            Secretary's  decision.    The  district  judge  accepted  the

            magistrate's recommendation and entered judgment accordingly.

                      While  appellant  attempts   here  to  reargue  the

            substantial evidence issue on the basis of the entire record,

            in  the district  court  she  interposed  only  one  specific

            objection  to the magistrate's  report.  She  argued that the

            ALJ's finding that she could return to her past relevant work

            was  error  because  the Secretary  had  not  produced expert

            vocational testimony  proving that  her work environment  was

            "entirely free of irritants, pollutants and other potentially

            damaging conditions."   Since appellant and her  counsel were

            notified that a  failure to object would result  in waiver of

            any issue  not specifically raised, on appeal we need address

            only   the  issue  properly  preserved.    United  States  v.
                                                       ______________

            Valencia-Copete, 792  F.2d 4  (1st Cir.  1986) (after  proper
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            notice,  failure to file a specific objection to magistrate's

            report will waive  the right to appeal); P.R.  Loc. R. 510.2;

            see  also  Thomas v.  Arn,  474  U.S. 140  (1985)  (upholding
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            constitutionality of waiver rule). 

                     Appellant's  objection  misperceives the  burden  of

            proof  at the preliminary  stages of the  sequential analytic

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process, and assumes a conclusion about her condition that is

            not supported by the  evidence.  "It is  well settled that  a

            claimant  seeking disability benefits  has the initial burden

            of proving that  her impairments prevent her  from performing

            her former type of work."  Gray v. Heckler, 760 F.2d 369, 371
                                       ____    _______

            (1st Cir. 1985); see also Goodermote v. Secretary of HHS, 690
                             ________ __________    ________________

            F.2d 5,  7 (1st  Cir. 1982) (explaining  burdens at  steps of

            sequential  analytic  process).     The  burden  includes  an

            obligation  to  present evidence  relating to  the particular

            demands of  the  job that  the  claimant alleges  she  cannot

            perform.  Dudley v. Secretary of HHS,  816 F.2d 792, 795 (1st
                      ______    ________________

            Cir. 1987).  

                      The  medical evidence  produced did  not  require a

            finding that  appellant needed  a work  environment "entirely

            free" of irritants.  The  evidence showed a history of asthma

            dating back  to 1986, but  with at  most only a  few sporadic

            episodes that  might be  characterized as  severe.   Overall,

            appellant's  treating  allergist  reported  that  her  asthma

            attacks were  not frequent,  not severe, and  her lungs  were

            clear between episodes.   Pulmonary function studies  and the

            remainder  of the  medical evidence  were  consistent with  a

            conclusion that appellant suffered  only a mildly restrictive

            ventilatory  impairment.     Appellant   had  no   exertional

            limitations whatsoever according  to two residual  functional

            capacity  assessments.  Although one of the assessments might

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be  construed as urging that appellant avoid any contact with

            extreme cold, wetness,  humidity or fumes, the  weight of the

            medical evidence most strongly corroborated the conclusion in

            the  second  assessment,  that  appellant  should  avoid only

            "concentrated  exposure"  to  these  irritants.    The  ALJ's

            evaluation of  appellant's testimonial  credibility, and  his

            resolution of conflicts between her testimony and the medical

            evidence  are entitled to deference.  Frustaglia v. Secretary
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            of HHS, 829 F.2d 192, 195 (1st Cir. 1987).    
            ______

                      Appellant  offered   no  evidence  that   her  past

            relevant  work generally  involved  exposure to  concentrated

            amounts of irritants, although she did show that at one time,

            during a  company move, she  was exposed to large  amounts of

            dust. Appellant's  burden, however,  required proof  that she

            could not return to her past type of work generally, not just

            a  particular  job.    Gray,  760  F.2d  at  372.    Her  own
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            description  of  her  work  experience  as primarily  indoor,

            office  work, instead  suggested a  likely  lack of  severely

            limiting environmental factors.   As appellee's  brief points

            out,   occupational   reference   materials   available   for

            administrative   notice   reflect   a   general  absence   of

            environmental concerns in  the relevant job categories.   See
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            U.S. Dep't of Labor, Selected  Characteristics of Occupations
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            Defined in  the Dictionary  of Occupational  Titles 227,  243
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            (1981)   (annotating   general    characteristics   of   work

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environments   for  customer   service  representatives   and

            photographic supplies salespersons); see also  Gray, 760 F.2d
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            at  372  (approving  administrative  notice  of  occupational

            reference materials). 

                      In   light  of  the  lack  of  convincing  evidence

            suggesting a  contrary result, we  see no error in  the ALJ's

            failure   to  employ   a   vocational   expert  to   describe

            environmental  conditions   at  the   relevant  work   sites.

            Appellant's reliance on Social Security Rulings 85-18 and 86-

            8 ("SSRs") is misplaced.  SSR 86-8 (superseded in part by SSR

            91-7c) provides  that when an  impairment has only  a minimal

            effect   on  a  person's   ability  to  perform   basic  work

            activities,  "in the  absence  of  contrary  evidence"  or  a

            showing  of "unique" work features, the ALJ may "reasonab[ly]

            conclude that  the  claimant  is able  to  perform  her  past

            relevant work."  That is exactly what the ALJ did here.  

                      The  other   regulation,  SSR  85-15,   is  largely

            inapposite  because it  focuses on  a  claimant's ability  to

            engage in the  entire range of occupations (step  five of the

            sequential  process).    That  issue  is  one  on  which  the

            Secretary bears the  burden of proof, but it  is not relevant

            unless the claimant first demonstrates an inability to return

            to her past  relevant work.  In any event, to the extent that

            SSR  85-15  provides  guidance  in  assessing  non-exertional

            impairments, it  does  not require  the use  of a  vocational

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expert to assess  the impact of every medical  restriction on

            exposure to irritants, no matter  how minor.  Rather, SSR 85-

            15 specifically observes that a medical  limitation requiring

            avoidance only  of concentrated  exposures is  not likely  to

            have more  than a minimal  effect in  most job  environments.

            Where there is  a greater restriction, the ruling states, the

            ALJ should either consult occupational reference materials or

            obtain the services of a vocational expert.  

                      This  is  not a  close or  difficult case,  nor one

            beyond the  ken of  the average person  familiar with  office

            environments.   The medical evidence  supported only  minimal

            restrictions and generally those restrictions have little, if

            any, effect  in work environments consistent with appellant's

            past work experience.  If  further support was needed, it was

            forthcoming in the occupational reference materials.  

                      Accordingly, the judgment below is affirmed.
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