April 21, 1994 [NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 93-2085
ADA BAEZ,
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. Carmen Consuelo Cerezo, U.S. District Judge]
Before
Breyer, Chief Judge,
Cyr and Stahl, Circuit Judges.
Helen E. M. Briganti on brief for appellant.
Guillermo Gil, United States Attorney, Maria Hortensia Rios,
Assistant United States Attorney, and Jan B. Brown, Assistant
Regional Counsel, U.S. Dept. of Health & Human Services, on brief
for appellee.
Per Curiam. The claimant, Ada Baez, has appealed a
district court judgment affirming a decision of the Secretary
of Health and Human Services (the Secretary) which denied
Baez's application for disability insurance benefits under
the Social Security Act, 42 U.S.C. 401 et seq.. The
Secretary concluded that Baez was not precluded from
performing her past relevant work as a secretary, i.e.,
review was terminated at Step 4 of the sequential review
process. See Goodermote v. Secretary of Health & Human
Servs., 690 F.2d 5, 7 (1st Cir. 1982). We have reviewed the
parties' briefs and the record on appeal. We affirm the
judgment of the district court, entered on August 17, 1993,
essentially for the reasons stated in the decision of the
administrative law judge dated August 16, 1991. We add the
following comments.
The issues raised on appeal were not raised in the
district court and so are not preserved for our review. See
Gonzalez-Ayala v. Secretary of Health & Human Servs., 807
F.2d 255, 256 (1st Cir. 1986) (per curiam). In any event, we
would not find them meritorious for the following reasons.
1. Step 3 of the sequential evaluation of disability
provides that the Secretary will find a claimant disabled if
the claimant has an impairment which meets the duration
requirement and is listed in 20 C.F.R. Pt. 404, Subpt. P,
App. 1 ("Appendix 1") or is equal to a listed impairment. 20
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C.F.R. 404.1520(d). Baez argues that (1) a determination
of medical equivalency must be made by a physician, (2) no
such determination of medical equivalency was made part of
the record, and (3) the ALJ's determination that her
condition did not equal a listed impairment, made without the
testimony of a medical expert at the administrative hearing,
was error. We do not quibble with allegation (1), but find
fault with contentions (2) and (3).
Preliminarily, we note that it is the claimant's burden
to show that she has an impairment or impairments that meets
or equals a listed impairment in Appendix 1. Torres v.
Secretary of Health & Human Servs., 870 F.2d 742, 745 (1st
Cir. 1989) (per curiam). Baez does not even state which of
the more than 100 medical listings contained in Appendix 1
she purportedly might equal. In any event, the record
contains determinations by a psychiatrist and a psychologist
that, insofar as Baez has an affective disorder (Listing
12.04), it is not severe. Record Transcript (Tr.) 128; 142.
In other words, it does not pass Step 2 in the sequential
analysis, and, a fortiori, it does not meet or equal a listed
impairment (Step 3). Thus, contrary to Baez's contention,
there was record evidence of a medical judgment that Baez's
condition did not meet or equal a medical listing. Her
resulting contention - that the lack of record evidence on
the issue of medical equivalency required a physician's
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testimony at the hearing - based as it is on an erroneous
premise, necessarily falls.
2. Contrary to Baez's allegation, the ALJ's evaluation
of her complaints of pain comported with our decision in
Avery v. Secretary of Health & Human Servs., 797 F.2d 19 (1st
Cir. 1986).
3. Baez complains that the ALJ's decision does not
address a residual functional capacity (RFC) assessment from
her treating physician. The document she references (Tr.
258) is an RFC form signed by a physician whose signature is
illegible and whose name Baez does not provide. It is dated
June 10, 1986 - a date within a previously-adjudicated period
of nondisability and prior to any possible period of
disability at issue here (May 27, 1988 through December 31,
1990). It is unaccompanied by any report explaining the
basis for the RFC limitations noted thereon. There was no
error in the ALJ's failure to address this document.
4. Baez contends that, in determining that Baez could
perform her past relevant work as a secretary, the ALJ failed
to consider the restrictions posed by her emotional condition
and the pain she feels in her hands and from prolonged
sitting. Baez is wrong. It is clear from the ALJ's decision
that he evaluated her allegations of pain and mental
impairment. He concluded, nonetheless, that Baez is not
precluded from performing her past job as a secretary. There
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is substantial evidence to support that conclusion. See,
e.g., Tr. 168; 234-40; 241-48.
Judgment affirmed.
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