USCA1 Opinion
March 10, 1994 [NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 93-1703
NELLY ROMAN GALARZA,
Plaintiff, Appellant,
v.
SECRETARY OF HEALTH AND HUMAN SERVICES,
Defendant, Appellee.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Juan M. Perez-Gimenez, U.S. District Judge]
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Before
Breyer, Chief Judge,
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Torruella and Selya, Circuit Judges.
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Juan A. Hernandez Rivera and Raymond Rivera Esteves on brief
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for appellant.
Guillermo Gil, United States Attorney, Maria Hortensia Rios,
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Assistant United States Attorney, and Joseph E. Dunn, Assistant
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Regional Attorney, Department of Health & Human Services, on
brief for appellee.
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Per Curiam. Plaintiff appeals from a district
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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
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relevant work. See 20 C.F.R. 404.1520. Appellant then
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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.
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Valencia-Copete, 792 F.2d 4 (1st Cir. 1986) (after proper
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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
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constitutionality of waiver rule).
Appellant's objection misperceives the burden of
proof at the preliminary stages of the sequential analytic
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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
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(1st Cir. 1985); see also Goodermote v. Secretary of HHS, 690
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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
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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
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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
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of HHS, 829 F.2d 192, 195 (1st Cir. 1987).
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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
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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
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U.S. Dep't of Labor, Selected Characteristics of Occupations
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Defined in the Dictionary of Occupational Titles 227, 243
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(1981) (annotating general characteristics of work
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environments for customer service representatives and
photographic supplies salespersons); see also Gray, 760 F.2d
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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
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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.
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