Ramos Albelo v. SHHS

Opinion

USCA1 Opinion

November 23, 1992
                                [NOT FOR PUBLICATION]

                            UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT

____________________

No. 92-1650 

                                 ACENET RAMOS-ALBELO,

                                Plaintiff, Appellant,

                                          v.

                        SECRETARY OF HEALTH & HUMAN SERVICES,

                                 Defendant, Appellee.

____________________

                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                           FOR THE DISTRICT OF PUERTO RICO

[Hon. Raymond L. Acosta, U.S. District Judge]
                                             ___________________

                                 ____________________

                                        Before

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

                                 ____________________

            Raymond Rivera Esteves and Juan A.  Hernandez Rivera on brief  for
            ______________________     _________________________
        appellant.
            Daniel  F.  Lopez  Romo,  United  States  Attorney,  Jose  Vazquez
            _______________________                              _____________
        Garcia,  Assistant  United  States  Attorney,  and  Jessie  M.  Klyce,
        ______                                              _________________
        Assistant Regional  Counsel, Department of Health  and Human Services,
        on brief for appellee.

____________________

____________________

Per Curiam.  Claimant, Acenet Ramos-Albelo, appeals
                      __________

            from  the  judgment  of  the  district  court  upholding  the

            decision of the  Secretary of Health and Human  Services that

            she is not eligible for Social Security disability benefits.

                                      BACKGROUND
                                      __________

                      Claimant  filed  an   application  for   disability

            benefits on  January 3, 1990.   She alleged an onset  date of

            March 13,  1983, listing as impairments  epilepsy, a fracture

            and  dislocation  of  her  left  elbow,  a  heart  condition,

            arthritis, high  blood pressure, a  mass in her  right breast

            and a stroke.  Claimant's insured status expired on September

            30, 1983.   Claimant's application was  denied initially  and

            upon reconsideration.  An administrative law judge (ALJ) held

            a  hearing on November 5, 1990.  In a decision dated December

            6, 1990, he  determined that claimant could  perform her past

            work.          The   ALJ   first  evaluated   the  exertional

            impairments  resulting  from  claimant's  degenerative  joint

            disease and from  an accident that occurred in May  1983.  At

            this time, claimant fell, fracturing and dislocating her left

            elbow.    Although claimant's  left arm  had  been in  a cast

            during  part of the insured status period, the ALJ found that

            by   September  30,   1983,   claimant   had  shown   "marked

            improvement" in the upper part of her left arm, with movement

            of the wrist within normal limits.  Also within normal limits

            were left hand pronation (the ability to turn the palm of the

            hand  downward  by  medial  rotation  of  the  forearm)   and

            supination  (the ability to turn  the palm of  hand upward by

            lateral rotation  of the  forearm).   In  addition,  claimant

could,  at this time, make a  fist and pinch; the strength in

            her left  arm was found to be acceptable after 35 sessions of

            physical therapy.

                      The   ALJ   next    determined   that    claimant's

            hypertension was  amenable to treatment and  that the medical

            evidence did not reveal any cardiovascular complications from

            this impairment.   As for  her high blood  pressure, the  ALJ

            noted that during the insured status period, claimant had not

            been complying with the  prescribed treatment.  Claimant does

            not  question  these findings.    In  relation to  claimant's

            history  of epilepsy, the ALJ reviewed the record and pointed

            out that  claimant had not  been followed medically  for this

            condition during the relevant period of time; also, according

            to a medical  note dated September 23,  1983, claimant's last

            seizure  had occurred one year  earlier, in 1982.   The ALJ's

            final  determination was  that claimant's  degenerative joint

            disease did not limit her in any way.1

                      The ALJ made  the following findings:  (1) claimant

            suffered  from  a   combination  of  impairments   (epilepsy,

            hypertension,   vascular   disease  and   degenerative  joint

            disease) which,  although severe, did  not meet or  equal the

____________________

            1.  He  also rejected the claim of a mental impairment on the
            ground that  there was  no evidence  that  claimant was  ever
            treated for such a  condition prior to the expiration  of her
            insured status.  We add that the same is true for the alleged
            thyroid  and stroke conditions, as well as for the mass found
            in claimant's breast.  Again, claimant does not dispute these
            conclusions on appeal.

                                         -3-

Listing of Medical Impairments; (2)  claimant's complaints of

            severe,  disabling pain were credible only to the extent that

            she was limited to the  performance of the exertional demands

            of  light  work; (3)  claimant  had  the residual  functional

            capacity  to engage in such  work except that  she could only

            occasionally  lift and  carry objects  weighing 25  pounds or

            more,  could frequently  carry and  lift objects  weighing 10

            pounds  and could not  be exposed to  unprotected heights and

            moving  machinery;  (4)  claimant's  past work  as  a  sewing

            machine operator and candy store attendant did not expose her

            to  the above restrictions; and (5) claimant was not disabled

            at  step  4 of  the sequential  evaluation  process.   See 20
                                                                   ___

            C.F.R.   404.1520(e).   The ALJ's  decision became the  final

            decision  of the  Secretary when  the Appeals  Council denied

            claimant's request for review.

                                      DISCUSSION
                                      __________

                      A claimant for Social Security  disability benefits

            bears  the initial  burden  of establishing  that she  cannot

            perform  her former type of work.  Goodermote v. Secretary of
                                               __________    ____________

            Health and Human Services, 690 F.2d 5, 7 (1st Cir. 1982).  In
            _________________________

            reviewing  the  Secretary's  conclusion that  claimant  could

            perform such work, our only inquiry is whether this  decision

            is  supported  by  substantial  evidence.    See  Bianchi  v.
                                                         ___  _______

            Secretary  of Health and Human Services, 764 F.2d 44, 45 (1st
            _______________________________________

            Cir. 1985) (per curiam).  We also keep in mind  that "[i]t is

-4-

the responsibility  of the  Secretary to determine  issues of

            credibility and to draw inferences from the record evidence."

            Irlanda Ortiz  v. Secretary of Health and Human Services, 955
            _____________     ______________________________________

            F.2d 765, 769 (1st Cir. 1991) (per curiam).

                      On   appeal,   claimant  essentially   raises  four

            arguments: (1) the ALJ erred in not crediting her allegations

            of  severe pain;  (2) claimant's  epilepsy prevents  her from

            performing her  past  work; (3)  there  is no  evidence  that

            claimant could meet the  exertional demands of her work  as a

            candy  store  assistant;  and  (4)  claimant  did  not  spend

            sufficient  time at any of  the past jobs  the ALJ determined

            she could  perform, thereby  precluding him from  considering

            them as "past relevant work."

                      Before turning to the merits of these arguments, we

            note  that claimant did not object  to the magistrate judge's

            findings concerning  her subjective complaints of  pain.  She

            also did not object to the failure of the magistrate judge to

            address  the question  whether her  former jobs  qualified as

            "past relevant work" as  defined in 20 C.F.R.    404.1565(a).

            "[O]nly  those  issues fairly  raised  by  the objections  to

            magistrate's  report are  subject to  review in  the district

            court and those not preserved by such objection are precluded

            on  appeal."    Keating  v. Secretary  of  Health  and  Human
                            _______     _________________________________

            Services,  848 F.2d 271, 275  (1st Cir. 1988)  (per curiam). 
            ________

            We  do not think that the fact  that the latter claim was not

-5-

addressed by the magistrate  judge absolved claimant from the

            responsibility of objecting to its omission.

                      Nonetheless, we agree with the Secretary's decision

            not to  credit  claimant's  allegations  of  disabling  pain.

            Although the fracture  and dislocation of her  left elbow are

            the kind of injuries  that produce pain, the record  does not

            support  the  conclusion that  the  pain continued  to  be as

            severe as alleged.  In addition to the ALJ's findings, supra,
                                                                   _____

            in  a  medical note  dated June  22,  1983 to  which claimant

            refers  in her  brief, the  examiner specifically  noted that

            claimant  reported  only  "occasional  pain  and discomfort."

            Also,  claimant visited  the  Puerto Rico  Medical Center  on

            September 23, 1983 where she listed many complaints including

            headaches,   blurred  vision,   dizziness  and   chest  pain.

            However, she did  not complain of  pain in her left  elbow or

            any other joint  at this time.  Indeed, the only reference to

            her extremities was a note that claimant presented with edema

            in  one of  her legs.   Finally,  at the  end of  her insured

            status  period,  the only  restriction noted  was a  5 degree

            limitation in extension of her left forearm.

                      Although "complaints of pain  need not be precisely

            corroborated  by  objective  findings  .  .  .  they  must be

            consistent with  medical findings."   Dupuis v.  Secretary of
                                                  ______     ____________

            Health  and Human Services, 869 F.2d 622, 623 (1st Cir. 1989)
            __________________________

            (per  curiam).   As  the ALJ  noted,  there is  a conspicuous

-6-

absence  in  the  record  of medical  findings  --  swelling,
                                         _______

            tenderness, spasm,  muscle  atrophy or  weakness, sensory  or

            motor deficits,  or limits in  claimant's range of  motion --

            associated with  the presence of chronic pain  in the context

            of degenerative  joint disease  or arthritis.   Moreover, the

            ALJ's  credibility  determination  is entitled  to  deference

            where there are  specific findings to support it.  Frustaglia
                                                               __________

            v.  Secretary of Health and Human Services, 829 F.2d 192, 195
                ______________________________________

            (1st Cir.  1987) (per curiam).  Here, the residual functional

            capacity  (RFC) assessments  of two  non-examining physicians

            who reviewed the entire record both indicated that claimant's

            conditions  did  not  impose  any exertional  limits  on  her

            capacity to work.  See Bianchi, 764 F.2d at 45 (Secretary not
                               ___ _______

            required  to  take claimant's  complaints  of  pain "at  face

            value"  especially   where  medical  reviewers   opined  that

            claimant was not physically impaired).

                      Next, claimant contends that her  epilepsy prevents

            her from  doing either of her  past jobs.  She  relies on the

            RFC assessments which determined  that she must avoid hazards

            such as  machinery because of this  nonexertional impairment.

            She argues that operating a  sewing machine falls within this

            prohibition.    Although we  think  that it  would  have been

            preferable had the ALJ elicited more testimony from claimant,

            or even a vocational expert, concerning the specifics  of her

            past  job  duties, we  find that  the  evidence of  record is

-7-

insufficient  to  raise   a  meaningful  question   regarding

            claimant's inability to perform her past type of work.

                      Although it  is not  precisely clear what  sorts of

            "machinery" constitute a  hazard to an  epileptic, we do  not

            agree  with  claimant that  the  prohibition  extends to  all
                                                                      ___

            machinery.  Social Security  Ruling 85-15 addresses, in part,

            the effects of a  nonexertional impairment on an individual's

            occupational   base.      In   relation    to   environmental

            restrictions, the ruling states that "[s]urroundings which an

            individual may need to avoid because  of [such an] impairment

            include  those involving  . .  .  recognized hazards  such as

            unprotected elevations and dangerous moving machinery. . . ."
                                       __________________________

            SSR  85-15, reprinted  in  West's  Social Security  Reporting
                        _____________  __________________________________

            Service 343, 351 (1992) (emphasis added).  Even assuming that
            _______

            a  sewing machine  is such a  machine, we  do not  think that

            claimant is precluded by  this limitation from performing her

            other past work as a candy store assistant.

                      In  a  vocational  report, claimant  described  her

            duties  at  this  job   as  selling  candy,  making  popcorn,

            collecting  money  from  customers   and  filling  the  candy

            display.  In her brief on appeal, she merely asserts that her

            work involved "the use of machines, tools or equipment."  She

            did not provide further details in the brief or  at any stage

            in the  administrative proceedings.   "[I]t is  the claimant,

            not the Secretary  (or ALJ),  who has the  burden of  proving

-8-

inability  to  perform her  former type  of  work."   Gray v.
                                                                  ____

            Heckler,  760 F.2d  369, 372  (1st  Cir. 1985)  (per curiam).
            _______

            This burden  "necessarily includes an  obligation to  produce

            evidence on that  issue."  Id.   As we  pointed out in  Gray,
                                       ___                          ____

            claimant must not  only show  that she cannot  do her  former

            job,  she must  demonstrate  that she  cannot "return  to her

            former type of work."  Id.
                   ____            ___

                      Claimant  had the  opportunity to  present evidence

            concerning the nature of her  past work but failed to do  so.

            Thus,  in  the absence  of  any description  of  the specific

            machinery  claimant  was required  to  operate  at the  candy

            store, we cannot say that  the Secretary erred in determining

            that she could still perform this work.  In any  event, it is

            reasonable to assume  that not all candy  stores have popcorn

            making  machines and that not all  candy store assistants are

            even required to use  any machinery whatsoever.  Thus,  it is

            fair to say that  claimant also failed to establish  that she

            could not engage in her former "type" of work.  See id.
                                                            ___ ___

                      The  same principles apply to claimant's assertions

            that she could not meet the exertional demands  of her job at

            the candy store and that it did not qualify as "relevant past

            work."  As  for the  first argument, claimant  relies on  her

            statement in the  vocational report that she  was required to

            carry boxes  of  popcorn  which  weighed between  10  and  15

            pounds.  She then points out that the ALJ determined that she

-9-

could "frequently" lift and  carry only 10 pounds.   Because,

            she states,  there is  no evidence  in the record  as to  how

            often she  had to  actually lift  and carry  objects weighing

            over  10  pounds, the  ALJ erred  in  finding that  she could

            fulfill the exertional demands of this job.

                      The vocational  report form filled out  by claimant

            specifically  asked her  to indicate  the weight  "frequently

            lifted  and/or  carried."   She  declined,  or neglected,  to

            provide this  information.   Because she  had  the burden  of

            proof on the  question whether  she could  perform her  prior

            work,  she may  not rely  on gaps  in the  record created  by

            herself.   We again note  in this context,  however, that the

            ALJ  also  has  a  responsibility  to  develop  this  kind of

            information.    See SSR  82-62,  reprinted  in West's  Social
                            ___              _____________ ______________

            Security Reporting Service  809, 812  (1983) (Secretary  must
            __________________________

            make "every  effort" to secure evidence  regarding ability to

            do past work).2

                      As  we  stated,  supra,  claimant  has  waived  the
                                       _____

            argument concerning  whether her past job  qualifies as "past

            relevant  work."  Even if the argument had been preserved for

            appeal,  however, we find that it has no merit.  Essentially,

____________________

            2.  We reject  out of  hand claimant's argument  that because
            she "presumably" would need to use and flex her arms, she was
            precluded from performing  the demands of  her job.   Simply,
            the only  evidence of record concerning  such limitations are
            the  two  RFC assessments  and  these  did  not indicate  any
                                                                      ___
            restrictions on such activities. 

                                         -10-

claimant points out that  she had three semi-skilled  jobs in

            the same year.  She then refers  to the fact that there is no

            evidence  in the  record that  shows the  amount of  time she

            spent  at each job.   Thus, although not  entirely clear, she

            apparently  concludes  that she  did  not  work a  sufficient

            amount of time at any of the jobs  to have been able to learn
                              ___

            how to do  them.  See 20 C.F.R.    404.1565(a) (past relevant
                              ___

            work  is work that lasted long enough  for a claimant to have

            learned how  to  do it).    Given  the fact  that  she  never

            introduced any evidence  to suggest that  the length of  time

            she  actually  worked  was  insufficient to  master  the  job

            requirements  of a  candy store  assistant, this  argument is

            specious  at best.   See  Dudley v.  Secretary of  Health and
                                 ___  ______     ________________________

            Human  Services,  816 F.2d  792,  794  (1st Cir.  1987)  (per
            _______________

            curiam).

                      For the  foregoing  reasons, the  judgment  of  the

            district court is affirmed.
                              ________

-11-