Parrilla-Fuentes v. SHHS

Court of Appeals for the First Circuit·Decided November 15, 1994·No. 94-1269·Published

Opinion

USCA1 Opinion

November 22, 1994 UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

____________________

No. 94-1269

FERNANDO PARRILLA-FUENTES,

Plaintiff, Appellant,

v.

SECRETARY OF HEALTH AND HUMAN SERVICES,

Defendant, Appellee.

____________________

ERRATA SHEET

The opinion of this court issued on November 15, 1994 is amended
as follows:

On cover sheet, change "APPEAL FROM THE UNITED STATES DISTRICT
COURT FOR THE DISTRICT OF RHODE ISLAND" to "APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO".

November 15, 1994 [NOT FOR PUBLICATION]

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

____________________

No. 94-1269

FERNANDO PARRILLA-FUENTES,

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 C. Cerezo, U.S. District Judge] ___________________

____________________

Before

Selya, Cyr and Boudin,

Circuit Judges. ______________

____________________

Raymond Rivera Esteves and Juan A. Hernandez Rivera on brief for ______________________ _________________________
appellant.
Guillermo Gil, United States Attorney, Maria Hortensia Rio, ______________ _____________________
Assistant United States Attorney, and Donna C. McCarthy, Assistant __________________
Regional Counsel, Department of Health & Human Services, on brief for
appellee.

____________________

____________________

Per Curiam. Claimant Fernando Parrilla Fuentes appeals __________

from the district court's judgment upholding the decision of

the Secretary of Health and Human Services denying Parrilla's

claim for social security disability benefits. Parrilla's

application was filed on February 14, 1991 and denied. After

proceedings before an administrative law judge ("ALJ"), the

ALJ found that Parrilla was not disabled on or before

September 30, 1985, when his insurance status expired. The

Appeals Council approved the ALJ's decision and this appeal

followed.

Parrilla, who is in his late 50s, was employed as a

construction worker. In his application he said he had been

unable to work since January 1, 1980, due to a range of

ailments concerning his heart, lungs, back, chest, asthma,

nerves, and severe pain. The medical records are extensive.

Without describing them in detail, they show the following:

Parrilla has had high blood pressure since 1980. He has

been treated with a variety of medications but there have

been continuing episodes of high blood pressure, apparently

in part because Parrilla did not invariably keep medical

appointments or utilize the prescribed drugs. In general,

there were few indications of any symptoms related to either

high blood pressure or the medication for it, although on

occasion Parrilla complained of various symptoms from various

-2- -2-

sources ranging from dizziness to weakness in the joints, to

asthma, to stomach pains.

The most negative report pertinent to his work status

appears in a medical certificate filed in June 1984. The

diagnosis was "hypertensive heart disease-hypertension." The

condition was described as permanent. In relation to work

disability, the "partial" box was checked with the comment:

"This gentleman needs a more heroic treatment for his

hypertension. His hypertension is controllable and he may be

relocated on a lighter job than his present one."

At the administrative hearing in January 1992, Parrilla

said that he had not continued working after 1980 because of

dizzy spells, high blood pressure and swollen knees due to

gout. He said that he did not require help for his personal

needs but did not do any chores or engage in any activities

to entertain himself. He described serious leg swelling

problems but indicated that these attacks could be avoided by

diet.

The ALJ refused to credit Parrilla's subjective

complaints of pain, tension, difficulties in breathing or

other symptoms reported through September 30, 1985; found

that the claims of functional limitation were broad and

vague; said that the admitted history of hypertension was

fairly well controlled with medication; and concluded that

Parrilla did not have any pain that significantly limited his

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ability to perform basic work-related activities through

September 30, 1985, and was therefore not under a disability.

The Appeals Council affirmed without opinion.

On review of social security decisions, the

administrative findings as to "any fact, if supported by

substantial evidence, shall be conclusive . . . ." 42 U.S.C.

405(g). An applicant is disabled for social security

purposes where, over a specified period, a medically

determinable condition makes the applicant unable to "engage

in any substantial gainful activity . . . ." 42 U.S.C.

423(d)(1). The burden is upon the applicant to demonstrate

that he is disabled. Evangelista v. Secretary of Health and ___________ _______________________

Human Services, 826 F.2d 126, 140 n.3 (1st Cir. 1987). ______________

In determining disability, the agency utilizes a five-

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USCA1 Opinion




November 22, 1994 UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT

____________________

        No. 94-1269

                              FERNANDO PARRILLA-FUENTES,

                                Plaintiff, Appellant,

                                          v.

                       SECRETARY OF HEALTH AND HUMAN SERVICES,

                                 Defendant, Appellee.

                                 ____________________

                                     ERRATA SHEET

The opinion  of this court issued on November 15,  1994 is amended
        as follows:

            On cover  sheet, change  "APPEAL FROM  THE UNITED  STATES DISTRICT
        COURT FOR  THE DISTRICT OF  RHODE ISLAND" to  "APPEAL FROM THE  UNITED
        STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO".



November 15, 1994       [NOT FOR PUBLICATION]

                            UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT

____________________

        No. 94-1269

                              FERNANDO PARRILLA-FUENTES,

                                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 C. Cerezo, U.S. District Judge]
                                             ___________________

                                 ____________________

                                        Before

                                Selya, Cyr and Boudin,

                                   Circuit Judges.
                                   ______________

                                 ____________________

            Raymond Rivera Esteves and Juan A.  Hernandez Rivera on brief  for
            ______________________     _________________________
        appellant.
            Guillermo  Gil,  United  States  Attorney,  Maria  Hortensia  Rio,
            ______________                              _____________________
        Assistant  United States  Attorney, and  Donna C.  McCarthy, Assistant
                                                 __________________
        Regional  Counsel, Department of Health & Human Services, on brief for
        appellee.

____________________



____________________



Per Curiam.  Claimant Fernando  Parrilla Fuentes appeals
                 __________

            from the district court's  judgment upholding the decision of

            the Secretary of Health and Human Services denying Parrilla's

            claim  for social  security disability benefits.   Parrilla's

            application was filed on February 14, 1991 and denied.  After

            proceedings before  an administrative law judge  ("ALJ"), the

            ALJ  found  that Parrilla  was  not  disabled  on  or  before

            September 30, 1985, when his  insurance status expired.   The

            Appeals Council  approved the ALJ's decision  and this appeal

            followed.

                 Parrilla,  who is  in his  late 50s,  was employed  as a

            construction  worker.  In his application he said he had been

            unable  to work  since January  1, 1980,  due  to a  range of

            ailments concerning  his heart,  lungs, back,  chest, asthma,

            nerves, and severe pain.  The medical records  are extensive.

            Without describing them in detail, they show the following:

                 Parrilla has had high blood pressure since 1980.  He has

            been  treated with  a variety  of medications but  there have

            been continuing episodes of  high blood pressure,  apparently

            in  part because  Parrilla  did not  invariably keep  medical

            appointments or  utilize the  prescribed drugs.   In general,

            there were few indications of any symptoms related to  either

            high blood  pressure or  the medication  for it,  although on

            occasion Parrilla complained of various symptoms from various

-2-
                                         -2-



sources ranging from dizziness to weakness  in the joints, to

            asthma, to stomach pains.

                 The most  negative report  pertinent to his  work status

            appears in a  medical certificate  filed in June  1984.   The

            diagnosis was "hypertensive heart disease-hypertension."  The

            condition was  described as permanent.   In relation  to work

            disability, the  "partial" box was checked  with the comment:

            "This  gentleman  needs  a  more  heroic  treatment  for  his

            hypertension.  His hypertension is controllable and he may be

            relocated on a lighter job than his present one."

                 At  the administrative hearing in January 1992, Parrilla

            said  that he had not continued working after 1980 because of

            dizzy spells, high  blood pressure and  swollen knees due  to

            gout.   He said that he did not require help for his personal

            needs but  did not do any chores  or engage in any activities

            to  entertain himself.    He described  serious leg  swelling

            problems but indicated that these attacks could be avoided by

            diet.  

                 The   ALJ  refused   to  credit   Parrilla's  subjective

            complaints  of pain,  tension, difficulties  in breathing  or

            other  symptoms reported  through September  30, 1985;  found

            that  the  claims of  functional  limitation  were broad  and

            vague;  said that  the admitted  history of  hypertension was

            fairly well  controlled with medication;  and concluded  that

            Parrilla did not have any pain that significantly limited his

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                                         -3-



ability  to perform  basic  work-related  activities  through

            September 30, 1985, and was therefore not under a disability.

            The Appeals Council affirmed without opinion.

                 On    review   of   social   security   decisions,   the

            administrative  findings as  to  "any fact,  if supported  by

            substantial  evidence, shall be conclusive . . . ." 42 U.S.C.

               405(g).   An  applicant  is disabled  for  social security

            purposes  where,  over   a  specified  period,  a   medically

            determinable condition makes the applicant unable  to "engage

            in  any substantial  gainful activity  . . .  ." 42  U.S.C.  

            423(d)(1).  The  burden is upon the applicant  to demonstrate

            that  he is disabled.  Evangelista v. Secretary of Health and
                                   ___________    _______________________

            Human Services, 826 F.2d 126, 140 n.3 (1st Cir. 1987).  
            ______________

                 In determining  disability, the agency utilizes  a five-

            step process  set forth in HHS regulations.   See 20 C.F.R.  
                                                          ___

            404.1520.  At  step 1, the applicant is not disabled if still

            working, id. (b), but Parrilla was not.  Step 2 requires that
                     ___

            the applicant "must  have a severe  impairment," specifically

            an   "impairment  or   combination   of   impairments   which

            significantly limits  [the  applicant's] physical  or  mental

            ability  to do basic work activities."  Id. (c).  Absent such
                                                    ___

            a severe impairment,  regulations provide that the  applicant

            is  not  disabled.   Id.    The  basic  work activities  here
                                 ___

            pertinent   are  "[p]hysical   functions  such   as  walking,

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                                         -4-



standing,  sitting,  lifting,  pushing,   pulling,  reaching,

            carrying, or handling."  20 C.F.R.   404.1521(b)(1).

                 The  gist of Parrilla's claim on appeal in this court is

            that  it  was not  permissible  for the  ALJ,  without direct

            medical  evidence  to  this  effect, merely  to  assume  that

            arguably severe  high blood  pressure did not  preclude basic

            work  activities.    This,   says  Parrilla,  called  for  an

            independent medical judgment  and not the uninformed  opinion

            of a lay administrative judge.  This is so, Parrilla implies,

            even  if we  assume for  purposes of  argument that  the high

            blood pressure  was not itself accompanied  by other symptoms

            or resultant injuries.

                 High blood  pressure is  a generic condition.   Perhaps,

            even  without  any direct  symptoms,  it  may in  some  cases

            significantly impair work functions; but  it certainly cannot

            be claimed that  it always  does so (nor  does Parrilla  make
                                ______

            such a claim).   In this sense, the diagnosis is  like injury

            to a spinal disk,  depression, asthma, migraines or any  of a

            thousand conditions  that may,  or not, significantly  impair

            one's performance of ordinary work functions.  In such cases,

            the  burden  is  upon  the  applicant  to  offer  affirmative

            evidence to  show that a disorder, "not  always disabling per

            se," is in the particular case sufficiently severe to disable

            the applicant.  Sitar v. Schweiker, 671 F.2d 19, 20 (1st Cir.
                            _____    _________

            1982)(depression).

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                                         -5-



If it were the Secretary's burden to negate the claim of

            disability, we  might agree that the  affirmative evidence in

            the  record   does  not  establish   the  relationship   that

            Parrilla's hypertension bears to  his ability to perform work

            functions; there is only the  barest medical reference to the

            possibility of his doing lighter work and even this reference

            provides conflicting inferences  (i.e., that less  exertional
                                              ____

            work  would be desirable but some type  of work can be done).

            We have no reason to think that the ALJ is any more qualified

            than we are to make this determination.

                 But the burden is upon the  applicant to show that he is

            disabled,  or, in  this instance,  to show  that the  generic

            impairment  "significantly limits" the applicant's ability to

            do basic work  functions.   Here, the applicant  was free  to

            offer direct  medical evidence (e.g., a  doctor's opinion) to
                                            ____

            show  that  he  met   the  requirements.    The  "substantial

            evidence" test that applies  to Secretarial findings does not

            mean  that the  Secretary  must affirmatively  show that  the

            applicant is not disabled.
                         ___

                 It is true that if the applicant's testimony about joint

            pain, swelling and the  like had been credited in  full, that

            testimony would  certainly have gone a long  way to establish

            the  kind of severe impairment required  at step 2.  But this

            testimony had  very little basis  in the medical  records and

            the ALJ, who  heard the applicant testify, declined to credit

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                                         -6-



the  testimony.   Nothing  in Parrilla's  brief gives  us any

            reason  why  we should  disturb  the  ALJ's  appraisal of  an

            interested witness.      Affirmed.
                                     ________

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                                         -7-

Parrilla-Fuentes v. SHHS, (1st Cir. 1994).

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