
USCA1 Opinion

	




          June 17, 1996                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 95-1943                               HECTOR FIGUEROA-ORTEGA,                                Plaintiff, Appellant,                                          v.                           COMMISSIONER OF SOCIAL SECURITY,                                 Defendant, Appellee.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                    [Hon. Jose Antonio Fuste, U.S. District Judge]                                              ___________________                                 ____________________                                        Before                                 Selya, Cyr and Lynch,                                   Circuit Judges.                                   ______________                                 ____________________            Raymond Rivera Esteves and Juan A.  Hernandez Rivera on brief  for            ______________________     _________________________        appellant.            Guillermo Gil,  United States  Attorney, Rosa E.  Rodriguez-Velez,            _____________                            ________________________        Acting  Chief,  Civil  Division,  and  Donna  C.  McCarthy,  Assistant                                               ___________________        Regional  Counsel,  Social  Security  Administration,  on  brief   for        appellee.                                 ____________________                                 ____________________                      Per Curiam.  Claimant Hector  Figueroa appeals from                      __________            the judgment of the district court  upholding the decision of            the Secretary of  Health and  Human Services that  he is  not            entitled to  Social Security disability  benefits.   Claimant            raises two issues on appeal.  In regard to his alleged mental            impairment, we  essentially agree  with the district  court's            reasoning,  so will not repeat  it here.   However, we decide            the  question  regarding  claimant's  asthma  on  a  slightly            different ground.                      The record  does not support  claimant's contention            that he met the listing for asthma, section 3.03B of Appendix            1.   Specifically, claimant has not shown that he experienced            an  average of  six "severe  attacks" of  asthma per  year as            required  by Section 3.03C.  In 1990, the evidence shows only            that  claimant was  seen  for "emergency"  treatment on  four            occasions.  Even if  the number could be overlooked,  none of                                                                  ____            the asthma  attacks for which claimant  sought this treatment            was  shown  to have  lasted  over  one hour.    As  for 1991,            claimant arguably suffered more  than six "severe attacks" of            asthma  (the  five visits  to  Dr. Campos  and  the three-day            hospitalization).   However, as in 1990, there is no evidence                                                              __            in the record that  these attacks, aside from the  attack for            which claimant was  hospitalized, lasted even  an hour.   The            only  asthma  attack for  which a  time  was reported  is the            February 25 visit to  Dr. Campos and this attack  lasted only                                         -3-            45  minutes.  Finally, in 1992, the record documents only one            emergency treatment for an asthma attack.                      Further,  there is  evidence  in the  record  which            rebuts the existence of an impairment of listed severity.              First,  both Drs.  Rivera and  Campos --  claimant's treating            physicians  -- stated  that  claimant's  asthma responded  to            treatment.    See  Transcript,  at  202  (asthma  "moderately                          ___            controlled" with medicine);  349 (asthma "reversible" with  a            bronchodilator).  Another treating physician, Dr. Marcantoni,            opined  only that claimant could not do his prior heavy work.                                                              _____            Finally,  the  RFC  assessments  from  1990,  1991  and  1992            indicate  that claimant  can work  in areas  which have  good            ventilation  and which  are  free from  odors, dusts,  fumes,            gases, wetness, humidity, and  extremes of temperature.  This            evidence plainly contradicts the opinions of other physicians            that  claimant's  asthma   rendered  him  totally   disabled.            Conflicts in  the  evidence are  for the  Secretary, not  the            courts.   Irlanda  Ortiz  v. Secretary  of  Health and  Human                      ______________     ________________________________            Services, 955 F.2d  765, 769  (1st Cir.  1991) (per  curiam).            ________            Given  that the  ALJ's hypothetical  to  the VE  included the            limitations  outlined in  the RFC  assessments, his  decision            that claimant's asthma does not preclude him from working  is            supported by substantial evidence.  See id.                                                ___ ___                      The judgment of the district court is affirmed.                                                            ________                                         -4-
