USCA1 Opinion

November 23, 1992

[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 92-1650
ACENET RAMOS-ALBELO,
Plaintiff, Appellant,
v.
SECRETARY OF HEALTH & HUMAN SERVICES,
Defendant, Appellee.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Raymond L. Acosta, U.S. District Judge]
___________________
____________________
Before
Breyer, Chief Judge,
___________
Torruella and Selya, Circuit Judges.
______________
____________________

Raymond Rivera Esteves and Juan A. Hernandez Rivera on brief

______________________
_________________________
appellant.
Daniel F. Lopez Romo, United States Attorney, Jose Vazq
_______________________
__________
Garcia, Assistant United States Attorney, and Jessie M. Kly
______
_______________
Assistant Regional Counsel, Department of Health and Human Servic
on brief for appellee.
____________________
____________________

Per Curiam.
__________
from

the

judgment

decision of the

Claimant, Acenet Ramos-Albelo, appeals

of

the

district

court

upholding

Secretary of Health and Human

the

Services that

she is not eligible for Social Security disability benefits.

BACKGROUND
__________
Claimant
benefits on
March 13,
and

an

January 3, 1990.

application

arthritis, high
and a stroke.

of

her

left

for

disability

She alleged an onset

1983, listing as impairments

dislocation

30, 1983.

filed

elbow,

blood pressure, a

date of

epilepsy, a fracture
a

heart

mass in her

condition,
right breast

Claimant's insured status expired on September

Claimant's application was

upon reconsideration.

denied initially

and

An administrative law judge (ALJ) held

hearing on November 5, 1990.

6, 1990, he

determined that claimant could

work.

The

impairments

In a decision dated December

ALJ

resulting

disease and from

first
from

evaluated

claimant's

perform her past

the

exertional

degenerative

an accident that occurred in May

joint

1983.

At

this time, claimant fell, fracturing and dislocating her left

elbow.

Although claimant's

during
by

left arm

had

been in

a cast

part of the insured status period, the ALJ found that

September

30,

1983,

claimant

had

shown

"marked

improvement" in the upper part of her left arm, with movement

of the wrist within normal limits.

Also within normal limits

were left hand pronation (the ability to turn the palm of the
hand

downward

supination

by

her left

rotation

(the ability to turn

lateral rotation

could,

medial

of the

the

the palm of

forearm).

at this time, make a

of

In

forearm)

and

hand upward by

addition,

claimant

fist and pinch; the strength in

arm was found to be acceptable after 35 sessions of

physical therapy.

The

ALJ

hypertension was

next

determined

that

amenable to treatment and

claimant's

that the medical

evidence did not reveal any cardiovascular complications from

this impairment.

As for

her high blood

pressure, the

ALJ

noted that during the insured status period, claimant had not
been complying with the
not

question

history

prescribed treatment.

these findings.

In

Claimant does

relation to

claimant's

of epilepsy, the ALJ reviewed the record and pointed

out that

claimant had not

been followed medically

for this

condition during the relevant period of time; also, according

to a medical
seizure
final

note dated September 23,

had occurred one year

determination was

1983, claimant's last

earlier, in 1982.

that claimant's

The ALJ's

degenerative joint

disease did not limit her in any way.1

The ALJ made
suffered

from

hypertension,
disease) which,

the following findings:

combination

vascular

of

disease

(1) claimant

impairments
and

although severe, did

(epilepsy,

degenerative
not meet or

joint

equal the

____________________
1. He also rejected the claim of a mental impairment on the
ground that there was no evidence that claimant was ever
treated for such a condition prior to the expiration of her
insured status. We add that the same is true for the alleged
thyroid and stroke conditions, as well as for the mass found
in claimant's breast. Again, claimant does not dispute these
conclusions on appeal.
-3-

Listing of Medical Impairments; (2)

severe,

disabling pain were credible only to the extent that

she was limited to the

of

claimant's complaints of

light

capacity

work; (3)

performance of the exertional demands

claimant

to engage in such

occasionally

lift and

had

the residual

work except that

carry objects

more,

could frequently

carry and

pounds

and could not

be exposed to

moving

machinery;

(4)

she could only

weighing 25

lift objects

claimant's

functional

pounds or
weighing 10

unprotected heights and

past work

as

sewing

machine operator and candy store attendant did not expose her
to

the above restrictions; and (5) claimant was not disabled

at

step

C.F.R.

4 of

the sequential

404.1520(e).

decision

of the

evaluation

The ALJ's

Secretary when

process.

decision became the

the Appeals

See 20
___
final

Council denied

claimant's request for review.

DISCUSSION
__________
A claimant for Social Security
bears

the initial

perform

burden

disability benefits

of establishing

her former type of work.

that she

cannot

Goodermote v. Secretary of
__________
____________

Health and Human Services, 690 F.2d 5, 7 (1st Cir. 1982).

_________________________
reviewing

the

Secretary's

conclusion that

claimant

In

could

perform such work, our only inquiry is whether this

is

supported

by

substantial

evidence.

See
___

decision

Bianchi
_______

v.

Secretary of Health and Human Services, 764 F.2d 44, 45 (1st

_______________________________________
Cir. 1985) (per curiam).

We also keep in mind

that "[i]t is

-4-

the responsibility

of the

Secretary to determine

issues of

credibility and to draw inferences from the record evidence."

Irlanda Ortiz
_____________

v. Secretary of Health and Human Services, 955

______________________________________

F.2d 765, 769 (1st Cir. 1991) (per curiam).

On

appeal,

claimant

essentially

raises

four

arguments: (1) the ALJ erred in not crediting her allegations

of

severe pain;

performing her

(2) claimant's
past

work; (3)

claimant could meet the

candy

store

epilepsy prevents

evidence

that

exertional demands of her work

as a

assistant;

and

sufficient

time at any of

she could

perform, thereby

there

(4)

is no

her from

claimant

the past jobs

did

not

spend

the ALJ determined

precluding him from

considering

them as "past relevant work."

Before turning to the merits of these arguments, we
note

that claimant did not object

findings concerning

to the magistrate judge's

her subjective complaints of

pain.

She

also did not object to the failure of the magistrate judge to

address

the question

whether her

"past relevant work" as

"[O]nly

those

magistrate's

former jobs

defined in 20 C.F.R.

issues fairly
report are

raised

subject to

by

qualified as
404.1565(a).

the objections

review in

to

the district

court and those not preserved by such objection are precluded

on

appeal."

Services,
________
We

Keating
_______

v. Secretary of Health and Human

_________________________________

848 F.2d 271, 275

(1st Cir. 1988)

do not think that the fact

(per curiam).

that the latter claim was not

-5-

addressed by the magistrate

judge absolved claimant from the

responsibility of objecting to its omission.

Nonetheless, we agree with the Secretary's decision
not to

credit

claimant's

allegations

of

disabling

pain.

Although the fracture

the kind of injuries
support

the

in her

claimant
Also,

the

does not

pain continued

to

be as

In addition to the ALJ's findings, supra,

_____

medical note

refers

left elbow are

that produce pain, the record

conclusion that

severe as alleged.
in

and dislocation of her

dated June

brief, the

reported

only

22,

which claimant

examiner specifically
"occasional

claimant visited

1983 to

the

pain

Puerto Rico

noted that

and discomfort."
Medical Center

on

September 23, 1983 where she listed many complaints including

headaches,

blurred

However, she did

any other joint

vision,

dizziness

not complain of
at this time.

and

chest

pain in her left

pain.

elbow or

Indeed, the only reference to

her extremities was a note that claimant presented with edema

in

one of

status

her legs.

period,

Finally,

the only

at the

end of

restriction noted

her insured

was a

5 degree

limitation in extension of her left forearm.

Although "complaints of pain
corroborated

by

consistent with

objective

findings

medical findings."

need not be precisely

.

Dupuis v.
______

they

must be

Secretary of
____________

Health and Human Services, 869 F.2d 622, 623 (1st Cir. 1989)
__________________________
(per

curiam).

As

the ALJ

noted,

-6-

there is

a conspicuous

absence

in

the

record

tenderness, spasm,

of medical
_______

muscle

findings

atrophy or

or limits in

associated with

the presence of chronic pain

of degenerative

joint disease

credibility

where there are

v.

swelling,

weakness, sensory

motor deficits,

ALJ's

--

claimant's range of

or arthritis.

determination

is entitled

or

motion --

in the context
Moreover, the
to

specific findings to support it.

deference
Frustaglia
__________

Secretary of Health and Human Services, 829 F.2d 192, 195

______________________________________

(1st Cir.

1987) (per curiam).

capacity

(RFC) assessments

Here, the residual functional

of two

non-examining physicians

who reviewed the entire record both indicated that claimant's

conditions

did

not

capacity to work.
required
value"

to

impose

any exertional

on

her

See Bianchi, 764 F.2d at 45 (Secretary not

___ _______

take claimant's

especially

limits

where

complaints

medical

of

reviewers

pain "at

face

opined

that

claimant was not physically impaired).

Next, claimant contends that her
her from

doing either of her

past jobs.

RFC assessments which determined

such as

machinery because of this

She argues that operating a

epilepsy prevents
She

relies on the

that she must avoid hazards

nonexertional impairment.

sewing machine falls within this

prohibition.

Although we

think

that it

would

have been

preferable had the ALJ elicited more testimony from claimant,

or even a vocational expert, concerning the specifics
past

job

duties, we

find that

the

of her

evidence of

record is

question

regarding

-7-

insufficient

to

raise

meaningful

claimant's inability to perform her past type of work.

Although it

is not

"machinery" constitute a
agree

with

machinery.

occupational

hazard to an

claimant that

the

Social Security

the effects of a

precisely clear what

sorts of

epileptic, we do

prohibition

extends to

not
all
___

Ruling 85-15 addresses, in part,

nonexertional impairment on an individual's

base.

In

relation

to

environmental

restrictions, the ruling states that "[s]urroundings which an

individual may need to avoid because
include

those involving

. .

of [such an] impairment

recognized hazards

such as

unprotected elevations and dangerous moving machinery. . . ."

__________________________
SSR

85-15, reprinted

in

West's

Social Security

Reporting

_____________

__________________________________

Service 343, 351 (1992) (emphasis added).

_______

Even assuming that

do not

sewing machine

is such a

claimant is precluded by

machine, we

think that

this limitation from performing her

other past work as a candy store assistant.

In
duties

at

vocational

this

collecting
display.

money

job

report, claimant

as

from

selling

candy,

customers

and

described
making

filling

popcorn,
the

candy

In her brief on appeal, she merely asserts that her

work involved "the use of machines, tools or equipment."

did not provide further details in the brief or
in the

her

administrative proceedings.

not the Secretary

(or ALJ),

"[I]t is

who has the

She

at any stage
the claimant,

burden of

proving

work."

Gray v.
____

-8-

inability
Heckler,
_______

to

perform her

760 F.2d

This burden

former type

369, 372

(1st

Cir. 1985)

"necessarily includes an

evidence on that

issue."

Id.

of

As we

(per curiam).

obligation to
pointed out in

produce
Gray,

___
claimant must not
job,

she must

only show

demonstrate

former type of work."

____
Claimant

in

had the

claimant

do her

former

cannot "return

to her

Id.
___

the absence

machinery

that she cannot

that she

opportunity to

concerning the nature of her

Thus,

____

of

past work but failed to do

any description

was required

store, we cannot say that

to

making

fair to say that

the specific
at the

that not all candy

In any

candy

event, it is

stores have popcorn

candy store assistants are

any machinery whatsoever.

Thus,

claimant also failed to establish

could not engage in her former "type" of work.

The

so.

the Secretary erred in determining

machines and that not all

even required to use

of

operate

that she could still perform this work.

reasonable to assume

present evidence

it is

that she

See id.
___ ___

same principles apply to claimant's assertions

that she could not meet the exertional demands

of her job at

the candy store and that it did not qualify as "relevant past
work."

As

for the

statement in the
carry boxes
pounds.

of

first argument, claimant

vocational report that she

popcorn

which

relies on

her

was required to

weighed between

10

and

15

She then points out that the ALJ determined that she

-9-

could "frequently" lift and

she states,
often she
over

10

there is
had to

carry only 10 pounds.

no evidence

actually lift

pounds, the

in the record
and carry

ALJ erred

in

Because,
as to

how

objects weighing

finding that

she could

fulfill the exertional demands of this job.

The vocational
specifically
lifted

asked her

and/or

report form filled out

to indicate

carried."

She

provide this

information.

proof on the

question whether

work,

she may

not rely

herself.

We again note

ALJ

has

also

information.

Because she

had

to
of

prior

record created

in this context,

82-62,

the burden

perform her

in the

to

"frequently

or neglected,

she could

on gaps

Security Reporting Service

__________________________
make "every

declined,

responsibility

See SSR
___

the weight

by claimant

by

however, that the

develop

this

kind of

reprinted in West's Social

_____________ ______________

809, 812

(1983) (Secretary

effort" to secure evidence

must

regarding ability to

do past work).2
As

we

stated,

argument concerning
relevant
appeal,

work."

supra,
_____

claimant

whether her past job

has

waived

the

qualifies as "past

Even if the argument had been preserved for

however, we find that it has no merit.

Essentially,

____________________
2. We reject out of hand claimant's argument that because
she "presumably" would need to use and flex her arms, she was
precluded from performing the demands of her job.
Simply,
the only evidence of record concerning such limitations are
the two RFC assessments and these did not indicate any
___
restrictions on such activities.
-10-

claimant points out that

the same year.
evidence
spent

She then refers

in the

record that

at each job.

apparently

she had three semi-skilled

to the fact that there is no

shows the

Thus, although not

concludes

jobs in

that she

did

amount of

time she

entirely clear, she

not

work a

sufficient

amount of time at any of the jobs

___

to have been able to learn

how to do

404.1565(a) (past relevant

work

them.

See 20 C.F.R.
___

is work that lasted long enough

learned how

to

do it).

introduced any evidence

she

actually

requirements

worked
of a

Given

for a claimant to have

the fact

to suggest that
was

she

the length of

insufficient to

candy store

that

master

assistant, this

the

never
time
job

argument is

specious

at best.

Human Services,
_______________

See
___

Dudley v.
______

816 F.2d

792,

794

Secretary of Health and

________________________
(1st Cir.

1987)

(per

curiam).
For the

foregoing

reasons, the

district court is affirmed.

________

-11-

judgment

of

the