

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                    [NOT FOR PUBLICATION]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

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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,

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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.

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          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.                                      

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