Hernandez-Torres v. SHHS

• Court: Court of Appeals for the First Circuit
• Decided: July 17, 1992
• Docket: 91-2278
• Status: Published

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          July 17, 1992         [NOT FOR PUBLICATION]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]
                                             ___________________

                                 ___________________

                                        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
               _____________________                           ____________
          Garcia,  Assistant United  States Attorney,  and Joseph  E. Dunn,
          ______                                           ______     ____
          Assistant  Regional  Attorney,  Office  of  the  General Counsel,
          Department of Health and Human Services, on brief for appellee.
                                  __________________

                                 __________________ 

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.,
                          _____     ____________________________________

            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
                         ________ _______________    ____________________

            & 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 &
                               ___ ____________    ______________________

            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
            __________     __________________________________

            (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
                                                           ______________

            v. Secretary  of Health & Human Servs., 933 F.2d 76 (1st Cir.
               ___________________________________

            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
            __________     _______

            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
                                      ___

            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
                              ______      _______________________________

            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
                                                         ___________

            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
                                                _______

            argument  here, the holding in Rosado, 807 F.2d at 293 (error
                                           ______

            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
            ___  __________    _____________________________________

            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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