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[NOT FOR PUBLICATION]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-
