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[NOT FOR PUBLICATION]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

disability

Services that appellant

requirements

purposes of

of

the

obtaining disability

judgment below.

did not

Social

Security

benefits.

Appellant's

meet the
Act

for

We affirm

the

application

for

disability benefits alleged an inability to work beginning at

age

47, due

pressure and a
appellant

to asthma,

chest pain,

nervous condition.

was represented by

Judge ("ALJ")

back pain,

After a

high blood

hearing at which

counsel, an Administrative Law

found that appellant

suffered from

bronchial

asthma

and allergic rhinopharyngitis.

however,
severe

did

not

indicate that

as appellant claimed,

testimony on this

appellant was capable

work

as

photo supply

representative.
separate

these

conditions

and the ALJ

The

The ALJ

of performing her
sales

Appeals

review, modifying the

that evidence of appellant's

clerk
Council

were as

found appellant's

point "not credible."

that

The medical evidence,

or

concluded

past relevant

customer service

affirmed

record to include

after

a finding

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.
appealed

to

undertook

See
___
the

20 C.F.R.
district

thorough

404.1520.

court,

and detailed

Appellant then

where

the

magistrate

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

objection

court

she

interposed

to the magistrate's

report.

only
She

one

specific

argued that the

ALJ's finding that she could return to her past relevant work
was

error

because

the Secretary

vocational testimony

proving that

had

not

produced expert

her work environment

was

"entirely free of irritants, pollutants and other potentially

damaging conditions."
notified that a
any issue
only

Since appellant and her

counsel were

failure to object would result

in waiver of

not specifically raised, on appeal we need address

the

issue

properly

Valencia-Copete, 792
_______________
notice,

preserved.

F.2d 4

(1st Cir.

United States
______________
1986) (after

v.

proper

failure to file a specific objection to magistrate's

report will waive

see also
_________

the right to appeal); P.R.

Thomas v.
______

Arn,
___

474

U.S. 140

Loc. R. 510.2;

(1985)

(upholding

constitutionality of waiver rule).

Appellant's
proof

objection

at the preliminary

misperceives the

stages of the

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burden

of

sequential analytic

process, and assumes a conclusion about her condition that is

not supported by the
claimant

evidence.

"It is

seeking disability benefits

of proving that

well settled that

has the initial burden

her impairments prevent her

her former type of work."

from performing

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

sequential

analytic

obligation

to

demands of

the

perform.

process).

The

present evidence
job that

the

burdens at
burden

relating to

includes

an

the particular

claimant alleges

Dudley v. Secretary of HHS,

______
________________

steps of

she

cannot

816 F.2d 792, 795 (1st

Cir. 1987).
The
finding that

medical evidence
appellant needed

free" of irritants.
dating back
episodes that
appellant's
attacks were

The

treating

with at

require a

environment "entirely

most only a

characterized as
allergist

not frequent,

clear between episodes.

a work

not

evidence showed a history of asthma

to 1986, but
might be

produced did

few sporadic

severe.

reported

not severe, and

that

Overall,
her

asthma

her lungs

Pulmonary function studies

were

and the

remainder

of the

medical evidence

were

conclusion that appellant suffered

ventilatory

impairment.

capacity

assessments.

only a mildly restrictive

Appellant

limitations whatsoever according

consistent with

had

no

exertional

to two residual

functional

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
to

appellant

"concentrated

exposure"

these

evaluation of

appellant's testimonial

should

irritants.

avoid only
The

credibility, and

ALJ's
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
relevant

offered

work generally

no

involved

evidence

that

exposure to

her

past

concentrated

amounts of irritants, although she did show that at one time,

during a

company move, she

dust. Appellant's

was exposed to large

burden, however,

amounts of

required proof

that she

could not return to her past type of work generally, not just
a

particular

description
office

job.
of

Gray,
____

her

work

work, instead

760

F.2d

experience

suggested a

at

372.

as primarily

likely

lack of

limiting environmental factors.

As appellee's

out,

materials

occupational

administrative

reference

notice

reflect

environmental concerns in

Her

own

indoor,
severely

brief points

available

general

absence

the relevant job categories.

for
of
See
___

U.S. Dep't of Labor, Selected Characteristics of Occupations

________________________________________
Defined in the Dictionary of Occupational Titles 227,
___________________________________________________
(1981)

(annotating

general

characteristics

of

243
work

-5-

environments

for

customer

service

representatives

photographic supplies salespersons); see also

________
at

372

(approving

administrative

notice

and

Gray, 760 F.2d

____
of

occupational

reference materials).
In

light

of

the

lack

suggesting a

contrary result, we

failure

employ

to

environmental

of

convincing

see no error in

vocational

conditions

at

evidence

the

expert

the ALJ's

to

relevant

describe

work

sites.

Appellant's reliance on Social Security Rulings 85-18 and 868 ("SSRs") is misplaced.
91-7c) provides
effect

on

activities,
showing

SSR 86-8 (superseded in part by SSR

that when an
person's

"in the

impairment has only

ability

absence

of

to

perform

contrary

a minimal
basic

evidence"

work
or

of "unique" work features, the ALJ may "reasonab[ly]

conclude that

the

relevant work."
The
inapposite

is able

to

perform

her

past

That is exactly what the ALJ did here.

other

regulation,

because it

focuses on

engage in the
sequential

claimant

SSR
a

85-15,

is

claimant's ability

entire range of occupations (step

process).

Secretary bears the

That

issue

largely

is

one

burden of proof, but it

on

to

five of the
which

the

is not relevant

unless the claimant first demonstrates an inability to return

to her past
SSR

85-15

relevant work.
provides

impairments, it

does

In any event, to the extent that

guidance

in

not require

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assessing
the use

non-exertional
of a

vocational

expert to assess

the impact of every medical

exposure to irritants, no matter

how minor.

15 specifically observes that a medical

avoidance only
have more

of concentrated

than a minimal

Where there is

Rather, SSR 85-

limitation requiring

exposures is

effect in

restriction on

most job

not likely

to

environments.

a greater restriction, the ruling states, the

ALJ should either consult occupational reference materials or

obtain the services of a vocational expert.
This
beyond the

is

ken of

environments.

not a

close or

difficult case,

the average person

The medical evidence

familiar with
supported only

nor one
office
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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