Hernandez-Torres v. SHHS
Hernandez-Torres v. SHHS
Hernandez-Torres v. SHHS
Opinion
USCA1 Opinion
July 17, 1992 [NOT FOR PUBLICATION]
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No. 91-2278
RAFAEL HERNANDEZ-TORRES,
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. Carmen C. Cerezo, U.S. District Judge]
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Before
Breyer, Chief Judge,
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Campbell, Senior Circuit Judge,
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and Selya, Circuit Judge.
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Luis Vizcarrondo Ortiz on brief for appellant.
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Daniel F. Lopez Romo, United States Attorney, Jose Vazquez
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Garcia, Assistant United States Attorney, and Joseph E. Dunn,
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Assistant Regional Attorney, Office of the General Counsel,
Department of Health and Human Services, on brief for appellee.
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Per Curiam. Plaintiff appeals from a district court
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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 insurance benefits. Because
we find substantial evidence to support the denial, we affirm
the district court.
Appellant's application for disability insurance
benefits alleged an inability to work due to chronic
bronchial asthma from October 30, 1985 through December 31,
1988 (when he last met the disability insured status
requirements of the Act). Both his initial application and an
application for reconsideration were denied. After an oral
hearing on February 23, 1990, an Administrative Law Judge
("ALJ") also denied appellant's application on the grounds
that appellant was able to perform several jobs which existed
in significant numbers in the national economy. The Appeals
Council denied the claim and the district court affirmed.
Appellant's past relevant work had been as a baker and
bakery supervisor from 1958 to 1982 when, he testified, he
had to stop working because of frequent asthma attacks. He
returned to work as a baker for two months in 1985 but was
again forced to quit by asthma attacks. His condition has
been repeatedly diagnosed as bronchial asthma related to
flour use in the bakery and other allergens. He has also
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been diagnosed as suffering from chronic allergic rhinitis
and mild chronic obstructive lung disease.
Under Section 205(g) of the Social Security Act as
amended, 42 U.S.C. 405(g), our standard of review is whether
the Secretary's findings are supported by "substantial
evidence." Although the record may arguably support more
than one conclusion, we must uphold the Secretary, "if a
reasonable mind, reviewing the evidence in the record as a
whole, could accept it as adequate to support his
conclusion." Ortiz v. Secretary of Health & Human Servs.,
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955 F.2d 765, 769 (1st Cir. 1991) (quoting Rodriguez v.
Secretary of Health & Human Servs., 647 F.2d 218, 222 (1st
Cir. 1981)); see also Rodriguez Pagan v. Secretary of Health
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& Human Servs., 819 F.2d 1,3 (1st Cir. 1987), cert. denied,
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484 U.S. 1012 (1988).
The ALJ considered appellant's testimony, the testimony
of a vocational expert, and appellant's medical records.
Using the five-step sequential evaluation process required by
20 C.F.R. 404.1520(a), 416.920, the ALJ found as follows:
(1) Appellant had not engaged in substantial gainful activity
since the alleged onset date. (2) Appellant's asthma imposed
significant non-exertional limitations on his capacity to
perform work-related activities because he must avoid "dust,
fumes, dies, ink, marked changes in temperatures, flour and
other allergents [sic]." (3) Appellant's impairment does not
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meet or equal the severity of any listed impairment deemed
presumptively disabling in Part 404, Subpt. P, Appendix 1 of
the Regulations. (4) Appellant's condition prevents him from
performing his past relevant work of baker. (5) Appellant
nevertheless has sufficient residual capacity to perform some
substantial gainful activities within the national economy.
Appellant challenges the ALJ's findings in steps three
and five. As to step three, appellant bore the burden of
proving that his condition met or equalled the level of
severity required for presumptive disability status. 20
C.F.R. 404.1512; see Cruz Rivera v. Secretary of Health &
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Human Servs., 818 F.2d 96, 97 (1st Cir. 1986) (claimant must
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prove that disability existed during insured period);
Goodermote v. Secretary of Health & Human Servs., 690 F.2d 5
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(1st Cir. 1982) (implying that claimant bears burden of
proving three threshold steps).
The record supports the ALJ's decision that appellant
did not prove a condition of the severity level required for
a step three finding in his favor. First, appellant's
medical records showed that his pulmonary function tests
exceeded the minimum levels established in connection with
chronic pulmonary insufficiency under Section 3.02A and 3.03A
of Appendix 1 (T 148, 199, 201).
Second, appellant's doctors' reports did not
substantiate his claim that he met the alternate criteria set
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forth in Section 3.03 for a finding of presumptive
disability: (1) "severe attacks" on an average of six times a
year requiring "intensive treatment such as intravenous drug
administration or inhalation therapy in a hospital or
emergency room," coupled with (2) "prolonged expiration with
wheezing or rhonchi on physical examination between attacks."
Sections 3.03B and 3.00C of Appendix 1.
The medical records reflected relatively few emergency
visits during the period,1 and reports of intervening
doctors' examinations did not indicate the requisite degree
of severity. Two pneumologists, one of whom had monitored
appellant since 1982, evaluated appellant's condition within
the "moderate" range.2 A third diagnosed a "moderate to
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1. Appellant's brief points to four or five visits claimed
to be emergencies during the insured period, October, 1985
through December, 1988 (App. Br. at 5-6). These visits
occurred over a 12 to 15 month period and are thus too few to
meet the frequency required by the regulations. (We have
relied upon appellant's count because the record before us is
partly illegible, making it difficult to determine which of
the hand-written medical notations were of emergencies and
which involved evaluative visits. (T 119-123; T 134-139)).
2. On May 24, 1988, Dr. Ortiz Vega diagnosed chronic
bronchial asthma, moderate degree, chronic allergic rhinitis
and "mild" chronic obstructive lung disease. He found no
rales or rhonchi (T 145-46), although those symptoms were
reported on other occasions. Dr. Leon, who had followed
appellant since 1982, described his condition on April 19,
1989 as showing "no acute respiratory distress". He noted
"expiratory wheezes...only when not speaking." (T 150).
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severe airflow impediment" and "mild hypoxemia,"3 which did
not improve after inhalation of bronchodilators on that
occasion, but apparently did respond to treatment later. (T
136-139). The records also show that appellant has a benign
lung nodule, but it has not caused any apparent
complications. (T 197).
Appellant's own testimony was the only evidence which
directly supported appellant's claim to the frequency and
severity of attacks required by Sections 3.00C and 3.03B. He
testified that he suffered debilitating asthma attacks at
home as often as two or three times per week lasting two or
more days each. Appellant said that he treated these attacks
with self-administered oral medication and inhalants which
afforded only mild relief; and the slightest exertion caused
him to "asphyxiate." (T 24-33). Appellant reported a similar
history to the examining doctors, but their recorded
diagnoses did not bolster his claim.
We have indicated that the criteria of Section 3.00C
may be met by a showing of frequent emergency asthma
treatment, even where the treatment occurs at home and in a
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3. "Hypoxemia" is defined as "deficient oxygenation of the
blood," Dorland's Illustrated Medical Dictionary at 717
(1965). Dr. Dexter, to whom appellant had been referred by
the State Insurance Fund ("SIF") in March, 1987, reported,
too, that appellant suffered "decreased forced expiratory
flows at all lung volumes.(T 201). The SIF awarded appellant
a 15% disability in 1982, and increased it to 35% in 1984. (T
185). Appellant says that the SIF award him a 100% disability
in 1987. The record is murky. (T 183-86, 191-96).
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doctor's office, rather than in a hospital. Martinez Nater
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v. Secretary of Health & Human Servs., 933 F.2d 76 (1st Cir.
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1991). Here, however, the ALJ's decision did not turn on
where appellant's attacks occurred, but on whether the
attacks occurred with the frequency and severity appellant
claimed. Since the medical evidence was at best silent on
that question, resolution of the issue required an assessment
of appellant's credibility. Conflicts in evidence and
credibility issues "are for the Secretary -- rather than the
courts -- to resolve." Evangelista v. Secretary of Health &
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Human Servs., 826 F.2d 136, 141 (1st Cir. 1987); see
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Richardson v. Perales, 402 U.S. 389, 399 (1971). Here, as in
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Frustaglia v. Secretary of Health & Human Servs., 829 F.2d
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192 (1st Cir. 1987), the ALJ, who "questioned appellant
regarding his daily activities.... evaluated his demeanor,
and considered how that testimony fit in with the rest of the
evidence, is entitled to deference, especially when supported
by specific findings." Id. at 195 (holding that ALJ'S
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findings regarding severity of claimant's pain were supported
by substantial evidence).
For similar reasons, we affirm the ALJ'S finding as to
the fifth step. Since the ALJ found that appellant's
condition precluded a return to his past work, the Secretary
bore the burden of showing that appellant retained the
capacity to perform a different kind of job available in the
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national economy. 42 U.S.C. 423(d)(2)(A); 20 C.F.R.
404.1520(f)(1); Rosado v. Secretary of Health & Human
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Servs., 807 F.2d 292, 294 (1st Cir. 1986). Holding that this
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burden had been met, the ALJ relied upon the testimony of a
vocational expert and a residual capacity assessment
performed by Dr. Vincente Sanchez in June, 1989. Dr. Sanchez
had found that appellant retained all sensory and motor
skills, and the physical capacity to lift and carry moderate
weights, sit, stand and walk for 6 hours each day. (T 115).4
The vocational expert testified that, assuming the capacity
reported, appellant's age (46 to 49 years old), high school
level education, work history, and non-exertional
limitations, appellant could perform sedentary, non-skilled
jobs in the "cleaner" industries located in Puerto Rico. The
expert identified two such jobs in the electronic industry
employing a total of more than 1600 persons in Puerto Rico,
265 of them in appellant's area. (T 43-46).
Appellant urges that the ALJ erred in relying on the
vocational expert's opinion given in response to the ALJ's
hypothetical question. The ALJ's hypothetical assumed that
appellant had a residual capacity for light work. (T 44-45).
Appellant says that the ALJ should have relied instead on the
expert's answer to appellant's hypothetical, which assumed
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4. An earlier residual capacity assessment concluded that
appellant had no physical limitations, only environmental
restrictions. (T110-111).
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that appellant's asthma attacks were as frequent and severe
as appellant had described. (T 52). But this argument, too,
merely invites us to redetermine appellant's credibility, a
matter necessarily committed to the ALJ. Evangelista, 826
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F.2d at 141. The ALJ gave express consideration to
appellant's testimony regarding shortness of breath and
fatigue. He simply found the expert clinical and vocational
evaluations more credible. (T 11). Compare with appellant's
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argument here, the holding in Rosado, 807 F.2d at 293 (error
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for ALJ to disregard only residual functional capacity test
in record, in effect substituting his own judgment for
uncontroverted medical opinion that concluded that claimant
could not perform sedentary work). On the record, there was
substantial evidence to support the ALJ's conclusion as to
step five.
Finally, appellant argues for the first time on appeal
that even if there are jobs available in the economy which he
might hypothetically perform, appellant does not "live in a
bubble." He urges that given the existence of dust,
allergens and pollutants in the environment generally, he is
unable to travel to any job, anywhere. This argument seems
to be directed at the ALJ's finding in step three, a matter
as to which appellant bore the burden of proof. 20 C.F.R.
404.1512.
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See Lopez Diaz v. Secretary of Health, Educ. & Welfare, 585
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F.2d 1137 (1st Cir. 1978) (when claimant asserts his
disabilities make it impossible for him to move from home to
work his claim is not a statutorily irrelevant commuting
problem extrinsic to issue of disability, but instead a
direct consequence of disability).
None of the medical evidence before the ALJ suggested
that appellant was unable to travel to any workplace, nor did
appellant's counsel direct any questions about travel
restrictions to appellant or the vocational expert. We see
no reason to remand for consideration of a travel issue now.
Appellant points to no new evidence, just a new argument
based on the same evidence. And he has offered no "good
cause" for his failure to raise the issue below.
Evangelista, 826 F.2d at 139-43 (remand is indicated only if
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further evidence is necessary to develop the facts fully and
there is "good cause" justifying appellant's failure to
present the evidence to the ALJ.)
For the reasons stated, the judgment of the district
court is affirmed.
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