
USCA1 Opinion

	




          July 17, 1992         [NOT FOR PUBLICATION]                                 ___________________          No. 91-2278                                           RAFAEL HERNANDEZ-TORRES,                                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 C. Cerezo, U.S. District Judge]                                             ___________________                                 ___________________                                        Before                                 Breyer, Chief Judge,                                         ___________                           Campbell, Senior Circuit Judge,                                     ____________________                              and Selya, Circuit Judge.                                         _____________                                 ___________________               Luis Vizcarrondo Ortiz on brief for appellant.               ______________________               Daniel F.  Lopez Romo, United States  Attorney, Jose Vazquez               _____________________                           ____________          Garcia,  Assistant United  States Attorney,  and Joseph  E. Dunn,          ______                                           ______     ____          Assistant  Regional  Attorney,  Office  of  the  General Counsel,          Department of Health and Human Services, on brief for appellee.                                  __________________                                 __________________                  Per  Curiam.   Plaintiff appeals  from a  district 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 insurance benefits.  Because            we find substantial evidence to support the denial, we affirm            the district court.                  Appellant's   application   for   disability   insurance            benefits  alleged  an  inability   to  work  due  to  chronic            bronchial asthma  from October 30, 1985  through December 31,            1988  (when  he  last   met  the  disability  insured  status            requirements of the Act). Both his initial application and an            application for  reconsideration were denied.   After an oral            hearing  on February  23, 1990,  an Administrative  Law Judge            ("ALJ") also denied  appellant's application  on the  grounds            that appellant was able to perform several jobs which existed            in significant numbers in the national economy.   The Appeals            Council denied the claim and the district court affirmed.                   Appellant's past relevant work  had been as a  baker and            bakery  supervisor from 1958  to 1982 when,  he testified, he            had to stop working  because of frequent asthma attacks.   He            returned to  work as a baker  for two months in  1985 but was            again  forced to quit by  asthma attacks.   His condition has            been  repeatedly diagnosed  as  bronchial asthma  related  to            flour use  in the bakery  and other  allergens.  He  has also                                          2            been diagnosed as  suffering from  chronic allergic  rhinitis            and mild chronic obstructive lung disease.                 Under  Section  205(g) of  the  Social  Security Act  as            amended, 42 U.S.C.  405(g), our standard of review is whether            the  Secretary's  findings  are  supported   by  "substantial            evidence."    Although the  record may arguably  support more            than  one conclusion,  we must  uphold the  Secretary,  "if a            reasonable  mind, reviewing the  evidence in the  record as a            whole,   could  accept   it  as   adequate  to   support  his            conclusion."  Ortiz  v. Secretary of  Health & Human  Servs.,                          _____     ____________________________________            955 F.2d  765,  769 (1st  Cir.  1991) (quoting  Rodriguez  v.            Secretary  of Health & Human  Servs., 647 F.2d  218, 222 (1st            Cir. 1981)); see also Rodriguez Pagan v. Secretary of  Health                         ________ _______________    ____________________            & Human Servs., 819  F.2d 1,3 (1st Cir. 1987),  cert. denied,            ______________                                  ____________            484 U.S. 1012 (1988).                 The  ALJ considered appellant's testimony, the testimony            of  a vocational  expert,  and appellant's  medical  records.            Using the five-step sequential evaluation process required by            20 C.F.R.    404.1520(a), 416.920, the  ALJ found as follows:            (1) Appellant had not engaged in substantial gainful activity            since the alleged onset  date. (2) Appellant's asthma imposed            significant  non-exertional  limitations on  his  capacity to            perform work-related activities because he must  avoid "dust,            fumes, dies,  ink, marked changes in  temperatures, flour and            other allergents [sic]." (3)  Appellant's impairment does not                                          3            meet or equal  the severity of  any listed impairment  deemed            presumptively  disabling in Part 404, Subpt. P, Appendix 1 of            the Regulations.  (4) Appellant's condition prevents him from            performing  his past  relevant work  of baker.  (5) Appellant            nevertheless has sufficient residual capacity to perform some            substantial gainful activities within the national economy.                 Appellant challenges  the ALJ's findings in  steps three            and five.   As to  step three, appellant  bore the burden  of            proving  that his  condition  met or  equalled  the level  of            severity  required  for  presumptive  disability  status.  20            C.F.R.   404.1512; see Cruz  Rivera v. Secretary  of Health &                               ___ ____________    ______________________            Human  Servs., 818 F.2d 96, 97 (1st Cir. 1986) (claimant must            _____________            prove  that  disability   existed  during  insured   period);            Goodermote  v. Secretary of Health & Human Servs., 690 F.2d 5            __________     __________________________________            (1st  Cir.  1982) (implying  that  claimant  bears burden  of            proving three threshold steps).                 The record  supports the ALJ's  decision that  appellant            did  not prove a condition of the severity level required for            a  step  three  finding in  his  favor.   First,  appellant's            medical  records showed  that  his  pulmonary function  tests            exceeded the  minimum levels  established in  connection with            chronic pulmonary insufficiency under Section 3.02A and 3.03A            of Appendix 1 (T 148, 199, 201).                  Second,   appellant's   doctors'   reports    did   not            substantiate his claim that he met the alternate criteria set                                          4            forth  in   Section  3.03   for  a  finding   of  presumptive            disability: (1) "severe attacks" on an average of six times a            year requiring "intensive treatment such as intravenous  drug            administration   or  inhalation  therapy  in  a  hospital  or            emergency room,"  coupled with (2) "prolonged expiration with            wheezing or rhonchi on physical examination between attacks."            Sections 3.03B and 3.00C of Appendix 1.                  The  medical records reflected  relatively few emergency            visits  during  the  period,1  and  reports   of  intervening            doctors' examinations  did not indicate  the requisite degree            of  severity.  Two  pneumologists, one of  whom had monitored            appellant since 1982,  evaluated appellant's condition within            the "moderate"  range.2   A  third diagnosed  a "moderate  to                                            ____________________            1.  Appellant's brief  points to four or  five visits claimed            to be  emergencies during  the insured period,  October, 1985            through  December,  1988  (App.  Br. at  5-6).  These  visits            occurred over a 12 to 15 month period and are thus too few to            meet  the frequency  required  by the  regulations. (We  have            relied upon appellant's count because the record before us is            partly illegible,  making it difficult to  determine which of            the  hand-written medical notations  were of  emergencies and            which involved evaluative visits. (T 119-123; T 134-139)).             2.  On  May  24,  1988,  Dr.  Ortiz  Vega  diagnosed  chronic            bronchial  asthma, moderate degree, chronic allergic rhinitis            and  "mild" chronic  obstructive  lung disease.  He found  no            rales  or rhonchi  (T 145-46),  although those  symptoms were            reported  on  other occasions.  Dr.  Leon,  who had  followed            appellant since  1982, described  his condition on  April 19,            1989  as showing  "no acute  respiratory distress".  He noted            "expiratory wheezes...only when not speaking." (T 150).                                           5            severe airflow impediment"  and "mild hypoxemia,"3 which  did            not  improve  after  inhalation  of  bronchodilators on  that            occasion, but  apparently did respond to  treatment later. (T            136-139). The  records also show that appellant  has a benign            lung   nodule,   but  it   has   not   caused  any   apparent            complications. (T 197).                 Appellant's own  testimony was  the only  evidence which            directly  supported  appellant's claim  to the  frequency and            severity of attacks required by Sections 3.00C and 3.03B.  He            testified  that he  suffered  debilitating asthma  attacks at            home as often as two  or three times per week lasting  two or            more days each.  Appellant said that he treated these attacks            with  self-administered oral  medication and  inhalants which            afforded only mild relief;  and the slightest exertion caused            him to "asphyxiate." (T  24-33). Appellant reported a similar            history   to  the  examining   doctors,  but  their  recorded            diagnoses did not bolster his claim.                  We have  indicated that  the criteria of  Section 3.00C            may  be  met  by  a  showing  of  frequent  emergency  asthma            treatment, even where the  treatment occurs at home and  in a                                            ____________________            3.  "Hypoxemia" is  defined as "deficient  oxygenation of the            blood,"  Dorland's  Illustrated  Medical  Dictionary  at  717            (1965). Dr. Dexter,  to whom appellant  had been referred  by            the State  Insurance Fund  ("SIF") in March,  1987, reported,            too, that  appellant  suffered "decreased  forced  expiratory            flows at all lung volumes.(T 201).  The SIF awarded appellant            a 15% disability in 1982, and increased it to 35% in 1984. (T            185). Appellant says that the SIF award him a 100% disability            in 1987. The record is murky. (T 183-86, 191-96).                                           6            doctor's office, rather than  in a hospital.   Martinez Nater                                                           ______________            v. Secretary  of Health & Human Servs., 933 F.2d 76 (1st Cir.               ___________________________________            1991).  Here,  however, the  ALJ's decision did  not turn  on            where  appellant's  attacks  occurred,  but  on  whether  the            attacks occurred  with the  frequency and severity  appellant            claimed.   Since the medical  evidence was at  best silent on            that question, resolution of the issue required an assessment            of appellant's credibility.   Conflicts   in   evidence   and            credibility issues  "are for the Secretary -- rather than the            courts -- to resolve."  Evangelista v. Secretary of  Health &                                    ___________    ______________________            Human  Servs.,  826  F.2d  136,  141  (1st  Cir.  1987);  see            _____________                                             ___            Richardson  v. Perales, 402 U.S. 389, 399 (1971). Here, as in            __________     _______            Frustaglia v. Secretary  of Health &  Human Servs., 829  F.2d            __________    ____________________________________            192  (1st  Cir. 1987),  the  ALJ,  who "questioned  appellant            regarding  his daily  activities.... evaluated  his demeanor,            and considered how that testimony fit in with the rest of the            evidence, is entitled to deference, especially when supported            by  specific  findings."  Id.  at  195  (holding  that  ALJ'S                                      ___            findings regarding severity of claimant's pain were supported            by substantial evidence).                 For similar reasons,  we affirm the ALJ'S  finding as to            the  fifth  step.    Since  the  ALJ  found  that appellant's            condition precluded a return to  his past work, the Secretary            bore  the  burden  of  showing that  appellant  retained  the            capacity  to perform a different kind of job available in the                                          7            national   economy.  42   U.S.C.   423(d)(2)(A);   20  C.F.R.             404.1520(f)(1);  Rosado  v.  Secretary  of  Health  &  Human                              ______      _______________________________            Servs., 807 F.2d 292, 294 (1st Cir. 1986).  Holding that this            ______            burden had  been met, the ALJ relied  upon the testimony of a            vocational   expert  and   a  residual   capacity  assessment            performed by Dr. Vincente Sanchez in June, 1989.  Dr. Sanchez            had  found  that appellant  retained  all  sensory and  motor            skills, and the physical capacity to lift  and carry moderate            weights, sit, stand and walk for 6 hours  each day. (T 115).4            The vocational  expert testified that,  assuming the capacity            reported, appellant's age  (46 to 49 years old),  high school            level   education,   work    history,   and    non-exertional            limitations, appellant could  perform sedentary,  non-skilled            jobs in the "cleaner" industries located in Puerto Rico.  The            expert identified  two such  jobs in the  electronic industry            employing a total of  more than 1600 persons in  Puerto Rico,            265 of them in appellant's area. (T 43-46).                    Appellant  urges that  the ALJ  erred in relying  on the            vocational expert's  opinion given  in response to  the ALJ's            hypothetical  question. The  ALJ's hypothetical  assumed that            appellant had a residual capacity  for light work. (T 44-45).            Appellant says that the ALJ should have relied instead on the            expert's  answer to  appellant's hypothetical,  which assumed                                            ____________________            4.  An  earlier residual  capacity assessment  concluded that            appellant had  no  physical limitations,  only  environmental            restrictions. (T110-111).                                           8            that appellant's  asthma attacks were as  frequent and severe            as appellant had  described. (T 52). But this  argument, too,            merely invites  us to redetermine  appellant's credibility, a            matter necessarily  committed to  the ALJ.   Evangelista, 826                                                         ___________            F.2d  at  141.    The   ALJ  gave  express  consideration  to            appellant's  testimony  regarding  shortness  of  breath  and            fatigue.  He  simply found the expert clinical and vocational            evaluations more credible.  (T 11). Compare with  appellant's                                                _______            argument  here, the holding in Rosado, 807 F.2d at 293 (error                                           ______            for ALJ  to disregard only residual  functional capacity test            in  record,  in  effect  substituting his  own  judgment  for            uncontroverted medical  opinion that concluded  that claimant            could not  perform sedentary work). On the  record, there was            substantial evidence  to support  the ALJ's conclusion  as to            step five.                 Finally, appellant  argues for the first  time on appeal            that even if there are jobs available in the economy which he            might hypothetically  perform, appellant does not  "live in a            bubble."    He  urges  that  given  the  existence  of  dust,            allergens and pollutants in  the environment generally, he is            unable to travel to  any job, anywhere.  This  argument seems            to be directed  at the ALJ's finding in step  three, a matter            as to which  appellant bore  the burden of  proof. 20  C.F.R.             404.1512.                                          9            See  Lopez Diaz v. Secretary of Health, Educ.  & Welfare, 585            ___  __________    _____________________________________            F.2d  1137  (1st  Cir.   1978)  (when  claimant  asserts  his            disabilities  make it impossible for him to move from home to            work  his claim  is  not a  statutorily irrelevant  commuting            problem  extrinsic  to issue  of  disability,  but instead  a            direct consequence of disability).                  None of  the medical  evidence before the  ALJ suggested            that appellant was unable to travel to any workplace, nor did            appellant's  counsel   direct  any  questions   about  travel            restrictions to appellant or  the vocational expert.   We see            no  reason to remand for consideration of a travel issue now.            Appellant  points to  no new  evidence, just  a new  argument            based on  the same  evidence.   And he has  offered no  "good            cause"   for  his   failure   to  raise   the  issue   below.            Evangelista, 826 F.2d at 139-43 (remand is indicated  only if            ___________            further evidence is  necessary to develop the facts fully and            there  is  "good  cause"  justifying  appellant's  failure to            present the evidence to the ALJ.)                For  the reasons  stated,  the judgment  of the  district            court is affirmed.                     ________                                          10
