Rivera Velez v. SHHS
U.S. Court of Appeals for the First Circuit
Rivera Velez v. SHHS
Opinion
USCA1 Opinion
September 17, 1992 [NOT FOR PUBLICATION]
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No. 92-1415
SAMUEL RIVERA VELEZ,
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. Juan M. Perez-Gimenez, U.S. District Judge]
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Before
Selya, Cyr and Boudin,
Circuit Judges.
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Raymond Rivera Esteves and Juan A. Hernandez Rivera on brief for
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appellant.
Daniel F. Lopez-Romo, United States Attorney, Jose Vazquez
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Garcia, Assistant United States Attorney, and Jessie M. Klyce,
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Assistant Regional Counsel, Department of Health and Human Services,
on brief for appellee.
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Per Curiam. Claimant contends that he has been
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totally disabled since February 1988 due to asthma. The
Secretary, adopting the ALJ's opinion, disbelieved claimant's
account of severe, daily asthma attacks and concluded
claimant could do various light, unskilled jobs described by
the vocational expert (VE) which are performed in a clean,
temperature controlled environment and allow for change of
position. Claimant's principal argument is that the ALJ
erred in disbelieving claimant's account of severe, daily
attacks and in concluding that claimant's asthma permitted
him to work. We review the evidence.
I
_
Claimant, born in 1950, has had asthma since
childhood. He started working in 1969 and continued for
several years, but then applied for disability. That first
application was denied in 1979. After several years of
unemployment, claimant resumed working in 1984, first as a
cable cutter and later as a forklift operator in
Massachusetts. He claims that his asthma worsened so that he
could no longer work and that a doctor advised him to move to
Arizona. Claimant instead moved to Puerto Rico in February
1988. He has not worked since.
While claimant claims that a doctor advised him to
move to Arizona because of his asthma, claimant furnished no
statement from a doctor to that effect. Rather, the
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Massachusetts records consisted of three hospital admissions
(June 1986 and May 1987 admissions because of asthma attacks
and a July 1987 admission for a back muscle strain) and a
pulmonary questionnaire completed by a doctor who had treated
claimant's asthma in June and July 1986. The doctor noted
that claimant had not returned for follow-up. In other
words, prior to claimant's February 1988 move to Puerto Rico
and at a time when claimant was working, only two asthma
attacks, approximately eleven months apart, were documented.
So far as appears, claimant underwent regular treatment only
for a two-month period following the first attack. The lack
of regular treatment, the infrequency of documented attacks,
and the failure of claimant to produce a statement from the
doctor who allegedly advised claimant to move suggest that
claimant's cessation of work and move to Puerto Rico may not
in fact have been prompted by claimant's asthma.
The next documented hospitalization due to asthma
was for several days in May 1988. Claimant responded to
treatment, and, at discharge, the treating physician checked
off a box reading, "Person can perform moderate work, as his
medical condition does not substantially affect him."
Claimant was treated in hospital emergency rooms
for his asthma twice in 1988 (August and October).
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Claimant applied for disability benefits in late
September 1988. No difficulty or shortness of breath was
observed by the agency personnel.
In November 1988, claimant was evaluated by Dr. Pou
for the purpose of determining eligibility for disability
benefits. Claimant reported daily attacks and continuous
severe respiratory impairment. Dr. Pou noted that at the
beginning of the interview claimant breathed regularly
without distress, but towards the end he had a coughing spell
which terminated in severe respiratory distress with
wheezing. Dr. Pou diagnosed "bronchial asthma with severe
bronchospasm and chronic obstructive pulmonary disease."
Pulmonary function tests showed "markedly diminished" maximum
voluntary ventilation, forced expiratory volume and forced
vital capacity "due to severe bronchial obstructive disease."
A nonexamining doctor, reviewing the record up to
this point, concluded claimant's asthma was not disabling as
claimant had not required frequent emergency treatment or
suffered a severe loss of pulmonary function capacity.
A lung specialist at a hospital evaluated claimant
in December 1988. Claimant reported that he had constant
shortness of breath and frequent attacks. The doctor stated
without explanation or elaboration that the asthma was
totally disabling.
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A pulmonary function test conducted in December
1988 by a nontreating physician, Dr. Reyes, was within normal
limits.
In 1989 there were four emergency room visits
because of asthma attacks. Oxygen and various medications
were administered.
A nonexamining physician reviewing the medical
evidence through April 1989 concluded that claimant's
condition was not disabling.
Vitalograph Spirometry Data compiled by Dr. Rogelio
Gonzalez, claimant's treating physician, in May 1989 showed a
"severe restrictive and moderately-severe obstructive
ventilatory impairment."
In December 1989, claimant was hospitalized eight
days for asthma and bronchitis. At discharge, lungs were
clear and claimant had no cough or respiratory distress.
Prognosis was "fair."
In April 1990, claimant's treating physician, Dr.
Rogelio Gonzalez, submitted a report. He recited claimant's
report of "almost daily acute asthmatic attacks . . . lasting
2-3 hours" which, at least twice a month, did not respond to
home medications and required emergency room treatment. Dr.
Gonzalez noted scattered rhonchi and expiratory wheezes and
conducted a pulmonary function test which was "compatible
with a moderate restrictive and very severe obstructive
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ventilatory impairment." Dr. Gonzalez stated that claimant
had to be treated by him once or twice a month, but did not
submit any records of these office visits. Dr. Gonzalez
opined as early as October 1988 that claimant was disabled
from work.
Hospital records for 1990 (Hospital Dr. Alejandro
Otero Lopez) are difficult to read, but appear to show three
out-patient visits.
Claimant testified as follows. He stopped working
in 1988 because his condition deteriorated necessitating
continuous treatment and medication. The change in climate
to Puerto Rico did not help and attacks continued. Attacks
occur two to three times a week, last from a half hour to an
hour, and leave claimant fatigued for hours. At home,
claimant uses a therapy machine two to three times a week,
sometimes as often as twice a day. His medications make him
nervous, aggressive, and interfere with his sleep.
Claimant, who was educated through sixth grade and
who has worked for years in various jobs including taxi
driving, purported not to know how much one plus one or three
plus three are, answering three and five to these questions
from the ALJ.
The ALJ concluded that claimant's asthma limited
him to light work in clean, temperature controlled
environments, but did not disable him totally from working.
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The ALJ acknowledged that the pulmonary function tests
performed by claimant's treating physician, Dr. Gonzalez, had
shown severe restrictive and moderately severe obstructive
ventilatory impairment, but pointed out that the December
1988 spirometry test performed by a different doctor had been
within normal limits. With respect to claimant's claim of
frequent severe attacks, the ALJ noted the infrequency of
documented hospitalizations and discounted claimant's
account.
II
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The ALJ was not required to accept claimant's
allegation of severe, daily attacks. Claimant's credibility
was suspect, for significant allegations he made were not
borne out by the record. For example, he claimed a doctor in
Massachusetts advised him to move, but produced no such
report from the doctor or even a history of regular treatment
while in Massachusetts. He claimed bi-monthly emergency room
visits, but again, the record did not support the
allegations. And, he, a former taxi driver, denied the
ability to do simple addition, a skill essential to making
change. All in all, the ALJ could supportably conclude that
claimant exaggerated, depicting himself as much less able
than he was.
Claimant contends that the treating physician's
report of total disability is uncontradicted and therefore
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must prevail. In rejecting it, the ALJ substituted his own
medical opinion, claimant maintains. Claimant is wrong.
First, Dr. Gonzalez's report reflects a history recited by
claimant of almost daily attacks and bi-monthly emergency
room treatment, which is not borne out by the record. The
record shows two emergency room visits in 1988 (plus one
hospitalization) and four in 1989, substantially fewer than
claimant claimed. As the information given to Dr. Gonzalez
was significantly inaccurate, the ALJ was not required to
accept his opinion. Second, as the ALJ pointed out, the
evidence was conflicting. For instance, pulmonary function
test results varied, and one was normal.1 The doctor who
discharged claimant from the hospital in May 1988 wrote that
claimant could do moderate work, and nonexamining doctors
concluded the asthma was not disabling. The ALJ could
properly reject Dr. Gonzalez's opinion and conclude on the
record as a whole that claimant retained the ability to do
light work in clean environments.
Claimant's contention that the ALJ did not
adequately consider the side effects of claimant's medication
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1. Claimant asserts that the pulmonary function tests with
adverse results were more complete than the one with normal
results administered by Dr. Reyes. We note that a
nonexamining doctor had the benefit of both Dr. Reyes' normal
findings and the test conducted by Dr. Pou which showed
"markedly diminished M.V.V., FEV-1 and FVC due to severe
bronchial obstructive disease," yet concluded that claimant's
asthma was not disabling.
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is wrong. The ALJ specifically acknowledged claimant's
testimony that his medications make him nervous and agitated.
There was no indication that claimant complained of the side
effects to a doctor, and the ALJ was not required to conclude
that the side effects were so deleterious as to preclude
claimant from performing the light, unskilled jobs the VE
identified.
We have considered all of claimant's arguments and
conclude that none warrant relief.
Affirmed.
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Reference
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