
USCA1 Opinion

	




          April 21, 1994        [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ___________________          No. 93-2085                                                  ADA BAEZ,                                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. Carmen Consuelo Cerezo, U.S. District Judge]                                                ___________________                                 ___________________                                        Before                                 Breyer, Chief Judge,                                         ___________                            Cyr and Stahl, Circuit Judges.                                           ______________                                 ___________________               Helen E. M. Briganti on brief for appellant.               ____________________               Guillermo Gil, United States Attorney, Maria Hortensia Rios,               _____________                          ____________________          Assistant  United States  Attorney, and  Jan B.  Brown, Assistant                                                   _____________          Regional Counsel, U.S. Dept. of Health & Human Services, on brief          for appellee.                                  __________________                                  __________________                 Per  Curiam.   The  claimant, Ada  Baez, has  appealed a                 ___________            district court judgment affirming a decision of the Secretary            of  Health and  Human Services  (the Secretary)  which denied            Baez's  application for  disability insurance  benefits under            the  Social Security  Act, 42  U.S.C.    401  et  seq..   The                                                          ________            Secretary  concluded   that  Baez  was  not   precluded  from            performing  her  past relevant  work  as  a secretary,  i.e.,                                                                    ____            review was  terminated  at Step  4 of  the sequential  review            process.   See  Goodermote  v. Secretary  of  Health &  Human                       ___  __________     ______________________________            Servs., 690 F.2d 5, 7 (1st Cir. 1982).  We  have reviewed the            ______            parties'  briefs and  the record  on appeal.   We  affirm the            judgment of the  district court, entered on  August 17, 1993,            essentially  for the  reasons stated in  the decision  of the            administrative law judge dated  August 16, 1991.  We  add the            following comments.                 The  issues  raised on  appeal  were not  raised  in the            district court and so are not preserved  for our review.  See                                                                      ___            Gonzalez-Ayala  v. Secretary  of Health  & Human  Servs., 807            ______________     _____________________________________            F.2d 255, 256 (1st Cir. 1986) (per curiam).  In any event, we            would not find them meritorious for the following reasons.                 1.   Step 3  of the sequential evaluation  of disability            provides that the Secretary will find a claimant disabled  if            the  claimant  has an  impairment  which  meets the  duration            requirement and is  listed in  20 C.F.R. Pt.  404, Subpt.  P,            App. 1 ("Appendix 1") or is equal to a listed impairment.  20                                         -2-            C.F.R.   404.1520(d).   Baez argues that (1)  a determination            of  medical equivalency must be  made by a  physician, (2) no            such determination  of medical  equivalency was made  part of            the  record,  and  (3)   the  ALJ's  determination  that  her            condition did not equal a listed impairment, made without the            testimony of a medical  expert at the administrative hearing,            was error.   We do not quibble with  allegation (1), but find            fault with contentions (2) and (3).                 Preliminarily, we note that  it is the claimant's burden            to  show that she has an impairment or impairments that meets            or  equals  a listed  impairment in  Appendix  1.   Torres v.                                                                ______            Secretary  of Health & Human  Servs., 870 F.2d  742, 745 (1st            ____________________________________            Cir. 1989) (per curiam).   Baez does not even state  which of            the more  than 100 medical  listings contained in  Appendix 1            she purportedly  might  equal.    In any  event,  the  record            contains determinations by a psychiatrist and  a psychologist            that,  insofar as  Baez  has an  affective disorder  (Listing            12.04),  it is not severe.  Record Transcript (Tr.) 128; 142.            In other words,  it does  not pass Step  2 in the  sequential                                               _______            analysis, and, a fortiori, it does not meet or equal a listed                           __________            impairment (Step  3).   Thus, contrary to  Baez's contention,            there was  record evidence of a medical  judgment that Baez's                  ___            condition  did  not meet  or equal  a  medical listing.   Her            resulting contention  - that the  lack of record  evidence on            the issue  of  medical  equivalency  required  a  physician's                                         -3-            testimony at  the hearing -  based as it  is on  an erroneous            premise, necessarily falls.                 2.   Contrary to Baez's allegation, the ALJ's evaluation            of her  complaints of  pain  comported with  our decision  in            Avery v. Secretary of Health & Human Servs., 797 F.2d 19 (1st            _____    __________________________________            Cir. 1986).                 3.   Baez  complains that  the ALJ's  decision does  not            address a residual functional capacity  (RFC) assessment from            her  treating physician.   The  document she  references (Tr.            258)  is an RFC form signed by a physician whose signature is            illegible and whose name Baez does  not provide.  It is dated            June 10, 1986 - a date within a previously-adjudicated period            of  nondisability  and  prior   to  any  possible  period  of            disability at issue  here (May 27, 1988  through December 31,            1990).   It  is  unaccompanied by  any report  explaining the            basis  for the RFC limitations  noted thereon.   There was no            error in the ALJ's failure to address this document.                 4.   Baez  contends that, in determining that Baez could            perform her past relevant work as a secretary, the ALJ failed            to consider the restrictions posed by her emotional condition            and  the pain  she  feels in  her  hands and  from  prolonged            sitting.  Baez is wrong.  It is clear from the ALJ's decision            that  he  evaluated  her   allegations  of  pain  and  mental            impairment.   He  concluded,  nonetheless, that  Baez is  not            precluded from performing her past job as a secretary.  There                                         -4-            is  substantial evidence  to support  that conclusion.   See,                                                                     ____            e.g., Tr. 168; 234-40; 241-48.            ____                 Judgment affirmed.                 __________________                                         -5-
