
USCA1 Opinion

	




          March 10, 1994        [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ___________________          No. 93-1703                                             NELLY ROMAN GALARZA,                                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                                 Breyer, Chief Judge,                                         ___________                         Torruella and Selya, Circuit Judges.                                              ______________                                 ___________________               Juan A. Hernandez Rivera and Raymond Rivera Esteves on brief               ________________________     ______________________          for appellant.               Guillermo Gil, United States Attorney, Maria Hortensia Rios,               _____________                          ____________________          Assistant United States  Attorney, and Joseph E.  Dunn, Assistant                                                 _______________          Regional  Attorney,  Department of  Health  & 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  benefits.   We affirm  the            judgment below.          Appellant's      application     for            disability benefits alleged an inability to work beginning at            age  47, due  to asthma,  chest pain,  back pain,  high blood            pressure and a  nervous condition.  After a  hearing at which            appellant  was represented by  counsel, an Administrative Law            Judge ("ALJ")  found that appellant  suffered from  bronchial            asthma  and allergic rhinopharyngitis.  The medical evidence,            however,  did  not  indicate that  these  conditions  were as            severe  as appellant claimed,  and the ALJ  found appellant's            testimony on this  point "not credible."   The ALJ  concluded            that  appellant was capable  of performing her  past relevant            work  as  a  photo supply  sales  clerk  or  customer service            representative.    The  Appeals  Council  affirmed  after   a            separate  review, modifying the  record to include  a finding            that evidence of appellant's  alleged mental impairment  also            reflected a lack of the requisite severity, both alone and in            combination with her other medical conditions.                        In sum, the Secretary found that appellant was "not            disabled" at step  four of the familiar  regulatory five-step            sequential analysis, in that she was able to perform her past                                         -2-            relevant work.   See  20 C.F.R.    404.1520.   Appellant then                             ___            appealed  to  the   district  court,  where  the   magistrate            undertook  a  thorough  and detailed  review  of  the record,            concluding that there was substantial evidence to support the            Secretary's  decision.    The  district  judge  accepted  the            magistrate's recommendation and entered judgment accordingly.                      While  appellant  attempts   here  to  reargue  the            substantial evidence issue on the basis of the entire record,            in  the district  court  she  interposed  only  one  specific            objection  to the magistrate's  report.  She  argued that the            ALJ's finding that she could return to her past relevant work            was  error  because  the Secretary  had  not  produced expert            vocational testimony  proving that  her work environment  was            "entirely free of irritants, pollutants and other potentially            damaging conditions."   Since appellant and her  counsel were            notified that a  failure to object would result  in waiver of            any issue  not specifically raised, on appeal we need address            only   the  issue  properly  preserved.    United  States  v.                                                       ______________            Valencia-Copete, 792  F.2d 4  (1st Cir.  1986) (after  proper            _______________            notice,  failure to file a specific objection to magistrate's            report will waive  the right to appeal); P.R.  Loc. R. 510.2;            see  also  Thomas v.  Arn,  474  U.S. 140  (1985)  (upholding            _________  ______     ___            constitutionality of waiver rule).                      Appellant's  objection  misperceives the  burden  of            proof  at the preliminary  stages of the  sequential analytic                                         -3-            process, and assumes a conclusion about her condition that is            not supported by the  evidence.  "It is  well settled that  a            claimant  seeking disability benefits  has the initial burden            of proving that  her impairments prevent her  from performing            her former type of work."  Gray v. Heckler, 760 F.2d 369, 371                                       ____    _______            (1st Cir. 1985); see also Goodermote v. Secretary of HHS, 690                             ________ __________    ________________            F.2d 5,  7 (1st  Cir. 1982) (explaining  burdens at  steps of            sequential  analytic  process).     The  burden  includes  an            obligation  to  present evidence  relating to  the particular            demands of  the  job that  the  claimant alleges  she  cannot            perform.  Dudley v. Secretary of HHS,  816 F.2d 792, 795 (1st                      ______    ________________            Cir. 1987).                        The  medical evidence  produced did  not  require a            finding that  appellant needed  a work  environment "entirely            free" of irritants.  The  evidence showed a history of asthma            dating back  to 1986, but  with at  most only a  few sporadic            episodes that  might be  characterized as  severe.   Overall,            appellant's  treating  allergist  reported  that  her  asthma            attacks were  not frequent,  not severe, and  her lungs  were            clear between episodes.   Pulmonary function studies  and the            remainder  of the  medical evidence  were  consistent with  a            conclusion that appellant suffered  only a mildly restrictive            ventilatory  impairment.     Appellant   had  no   exertional            limitations whatsoever according  to two residual  functional            capacity  assessments.  Although one of the assessments might                                         -4-            be  construed as urging that appellant avoid any contact with            extreme cold, wetness,  humidity or fumes, the  weight of the            medical evidence most strongly corroborated the conclusion in            the  second  assessment,  that  appellant  should  avoid only            "concentrated  exposure"  to  these  irritants.    The  ALJ's            evaluation of  appellant's testimonial  credibility, and  his            resolution of conflicts between her testimony and the medical            evidence  are entitled to deference.  Frustaglia v. Secretary                                                  __________    _________            of HHS, 829 F.2d 192, 195 (1st Cir. 1987).                ______                      Appellant  offered   no  evidence  that   her  past            relevant  work generally  involved  exposure to  concentrated            amounts of irritants, although she did show that at one time,            during a  company move, she  was exposed to large  amounts of            dust. Appellant's  burden, however,  required proof  that she            could not return to her past type of work generally, not just            a  particular  job.    Gray,  760  F.2d  at  372.    Her  own                                   ____            description  of  her  work  experience  as primarily  indoor,            office  work, instead  suggested a  likely  lack of  severely            limiting environmental factors.   As appellee's  brief points            out,   occupational   reference   materials   available   for            administrative   notice   reflect   a   general  absence   of            environmental concerns in  the relevant job categories.   See                                                                      ___            U.S. Dep't of Labor, Selected  Characteristics of Occupations                                 ________________________________________            Defined in  the Dictionary  of Occupational  Titles 227,  243            ___________________________________________________            (1981)   (annotating   general    characteristics   of   work                                         -5-            environments   for  customer   service  representatives   and            photographic supplies salespersons); see also  Gray, 760 F.2d                                                 ________  ____            at  372  (approving  administrative  notice  of  occupational            reference materials).                       In   light  of  the  lack  of  convincing  evidence            suggesting a  contrary result, we  see no error in  the ALJ's            failure   to  employ   a   vocational   expert  to   describe            environmental  conditions   at  the   relevant  work   sites.            Appellant's reliance on Social Security Rulings 85-18 and 86-            8 ("SSRs") is misplaced.  SSR 86-8 (superseded in part by SSR            91-7c) provides  that when an  impairment has only  a minimal            effect   on  a  person's   ability  to  perform   basic  work            activities,  "in the  absence  of  contrary  evidence"  or  a            showing  of "unique" work features, the ALJ may "reasonab[ly]            conclude that  the  claimant  is able  to  perform  her  past            relevant work."  That is exactly what the ALJ did here.                        The  other   regulation,  SSR  85-15,   is  largely            inapposite  because it  focuses on  a  claimant's ability  to            engage in the  entire range of occupations (step  five of the            sequential  process).    That  issue  is  one  on  which  the            Secretary bears the  burden of proof, but it  is not relevant            unless the claimant first demonstrates an inability to return            to her past  relevant work.  In any event, to the extent that            SSR  85-15  provides  guidance  in  assessing  non-exertional            impairments, it  does  not require  the use  of a  vocational                                         -6-            expert to assess  the impact of every medical  restriction on            exposure to irritants, no matter  how minor.  Rather, SSR 85-            15 specifically observes that a medical  limitation requiring            avoidance only  of concentrated  exposures is  not likely  to            have more  than a minimal  effect in  most job  environments.            Where there is  a greater restriction, the ruling states, the            ALJ should either consult occupational reference materials or            obtain the services of a vocational expert.                        This  is  not a  close or  difficult case,  nor one            beyond the  ken of  the average person  familiar with  office            environments.   The medical evidence  supported only  minimal            restrictions and generally those restrictions have little, if            any, effect  in work environments consistent with appellant's            past work experience.  If  further support was needed, it was            forthcoming in the occupational reference materials.                        Accordingly, the judgment below is affirmed.                                                         ________                                         -7-
