
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          November 23, 1992                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                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-
