
USCA1 Opinion

	




          November 10, 1994                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                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                                         -3-            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,                                         -4-            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.                                         -5-                      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.                              ________                                         -7-
