Riestra Arroyo v. SHHS

• Court: Court of Appeals for the First Circuit
• Decided: June 30, 1992
• Docket: 91-2255
• Status: Published

Opinion

USCA1 Opinion

        June 30, 1992           [NOT FOR PUBLICATION]

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No. 91-2255 

                              MYRTELINA RIESTRA ARROYO,

                                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 Consuelo Cerezo, U.S. District Judge]
                                                ___________________

                                 ____________________

                                        Before

                                 Breyer, Chief Judge,
                                         ___________
                            Selya and Cyr, Circuit Judges.
                                           ______________

                                 ____________________

            Raymond Rivera Esteves and Juan A.  Hernandez Rivera on brief  for
            ______________________     _________________________
        appellant.
            Daniel  F.  Lopez  Romo,  United  States  Attorney,  Jose  Vazquez
            _______________________                              _____________
        Garcia,  Assistant  United  States   Attorney,  and  Paul  Germanotta,
        ______                                               ________________
        Assistant Regional  Counsel, Department of Health  and Human Services,
        on brief for appellee.

____________________

____________________

Per Curiam.   This is  an appeal from  a district  court
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            order affirming  a decision  of the Secretary  of Health  and

            Human  Services ("the  Secretary")  to deny  social  security

            disability benefits.

                                          I
                                          I
                                          _

                 In May  1980, claimant Myrtelina Riestra-Arroyo,  at age

            35,  was injured on  the job.   Since then, she  has asserted

            this onset date in  two applications for disability benefits.

            The  first claim,  denied  in August  1982,  was not  pursued

            beyond the administrative level.1  Claimant's insured  status

            subsequently expired on  June 30, 1984.  This  appeal centers

            on claimant's second application filed in November 1988, over

            four  years later; it alleges  "nerves", and a  back and arms

            condition.   

                 After  a hearing  at  which the  claimant testified,  an

            Administrative Law Judge ("ALJ")  decided to reopen the first

            denial of  benefits because of claimant's  new allegations of

            an  "emotional  component".   His  August  28, 1989  decision

            concluded, however, that there  was no "emotional  component"

            to review: "[T]he claimant  has filed an application alleging

            a condition of which there is no indication that she has been

            followed or  treated."  On examination of  the entire record,

            we agree  that there  is no  evidence that  claimant suffered
                                     __

            from  or was treated for any mental or emotional condition in

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            1.  Those records are not before us.

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the  relevant  period, or  after, for  that  matter.   As the

            appellant  does not  press the  issue on  appeal, we  deem it

            waived,  and reiterate  the  ALJ's caution  against filing  a

            disability  claim  premised  upon  a  completely  unsupported

            condition, particularly when the alleged disability is, as is

            apparently the  case here, the  basis for  reopening a  prior

            adverse decision.   

                 As to the claimant's  physical conditions, the ALJ found

            that, as of June 30, 1984, the date  her insurance ended, the

            claimant had  mild carpal tunnel  syndrome and  cervicodorsal

            myositis,  and concluded,  at  step four  of the  Secretary's

            sequential evaluation  process, 20 C.F.R.   404.1520(e), that

            she  could still  perform her past  work as a  secretary or a

            machine  operator, and,  thus,  was not  disabled within  the

            meaning  of the Social Security Act.  On appeal the appellant

            argues that  the  ALJ improperly  discounted  her  subjective

            complaints of pain, and that  a vocational expert was  needed

            to assess how her impairments would affect the performance of

            her  past relevant  work.   For the  reasons that  follow, we

            affirm the judgment of the district court.

                                          II
                                          II
                                          __

                 First, it  was incumbent upon the  claimant to initially

            establish that  her impairments had reached  such a disabling

            level of severity as of June  30, 1984 that she was unable at

            that time to perform her prior work.  Deblois v. Secretary of
                                                  _______    ____________

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Health & Human  Services, 686  F.2d 76, 79  (1st Cir.  1982).
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            The  ALJ  found  objective  medical  evidence  in  the  State

            Insurance Fund ("SIF") records submitted by the claimant that

            she   suffered   from  mild   carpal   tunnel  syndrome   and

            cervicodorsal myositis (a swelling  of the voluntary  muscles

            in  the  neck-shoulder  blade   area)  while  insured.    The

            appellant  does  not expressly  contest  this  finding.   The

            medical  evidence  reveals  only  sporadic  and  conservative

            treatment  for  these  conditions.   There  is  little  or no

            objective   record  evidence   tending  to   corroborate  the

            allegations of  attendant disabling pain prior  to July 1984:

            all of the SIF's x-rays and EMGs of the  claimant's upper and

            lower extremities  were negative; the only  positive lab test

            of record was  the January 1984 nerve  conduction study which

            revealed  mild bilateral carpel tunnel syndrome.   As the ALJ

            noted,  the  record contains  virtually  no  evidence of  the

            indicia typically associated with  severe pain such as muscle

            atrophy,  spasm, marked  limitation of motion,  swelling, and

            other  sensory  and motor  deficits.   The ALJ  also elicited

            testimony about  the  claimant's subjective  symptoms,  daily

            activities, functional limitations, prior work and medication

            in  conformity  with  the  guidelines  set  out  in  Avery v.
                                                                 _____

            Secretary  of Health & Human  Services, 797 F.2d  19, 22 (1st
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            Cir.  1986).    The  record  adequately  supports  the  ALJ's

            conclusion  that the  claimant's physical conditions,  in the

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relevant period, could not  reasonably be expected to produce

            severe or disabling pain.

                 Second, the  ALJ had an  adequate basis to  discount, to

            some   degree,  the   claimant's   credibility.      Numerous

            inconsistent testimonial and/or written record  statements by

            the claimant  include: varying versions of  the precipitating

            work  accident itself,  notations by  two SIF  consultants of

            claimant's   "voluntary  resistance"  during   parts  of  the

            clinical  examination, statements that  her last job involved

            both no sitting  and that  she worked  sitting and  standing,
                             ___

            statements that she  did no housework,  testimony enumerating

            certain household tasks that she did perform, statements that
                                             ___

            she  had never  worked after  the accident  and that  she had
                                                        ___

            worked   for  a   while  afterwards,   and  conflicting   and

            contradictory record statements as to  frequency and duration

            of undocumented treatment by private physicians.  

                 Third, there  is substantial evidence  that the claimant

            did  not meet  her  initial burden  of  proving inability  to

            perform her former  work.   To claim  disability benefits,  a

            claimant  must satisfy  the  initial  and relatively  minimal

            burden of "putting into  issue functional loss that precludes

            performance of pertinent prior work activities."  Santiago v.
                                                              ________

            Secretary of Health & Human Services, 944 F.2d 1, 7 (1st Cir.
            ____________________________________

            1991).    This  means  producing  information  describing the

            demands  of  claimant's  past   work,  and  showing  how  her

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limitations in the insured  period compromised her ability to

            perform that work. Id. at 5. 
                               ___

                 The  disability report  that  claimant filed  with  this

            application contained only the barest description of what her

            last job as a machine operator  entailed.  She had held  that

            job for two years.   It contained no descriptions of  the two

            secretarial/office clerk  positions that she had  held during

            the ten  years prior to that.  At the hearing, in response to

            questions by  the ALJ, the claimant's  somewhat more detailed

            description of the machine operator job focused mainly on the

            lifting requirements  of the  job, and contradicted,  in some

            respects, her earlier written statement.  See supra p.5.  The
                                                      ___

            claimant also testified, again  in minimalist terms, that her

            prior  office  jobs  involved "fill[ing]  out  paperwork  for

            people that came  into the  office and tak[ing]  care of  the

            office and  file."  Asked by  the ALJ why she  could not work

            after the accident, the claimant  only stated "I couldn't  do

            the work I used to do."  The claimant's attorney elicited  no

            testimony along  these lines.   Thus, although  the claimant,

            primarily  in response to questioning by the ALJ, did provide

            some, albeit  sparse, information  as to  the demands  of her

            former jobs, she "failed to go  on to show how her particular

            former work duties  were compromised  by her physical  . .  .

            condition."  Santiago, 944 F.2d at 6.  
                         ________

                 It  is  not  sufficient  to  assert  some  general,
                 functional  disability  and then  leave  it  to the

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government to present evidence as to the disability
                 in  terms  of  the requirements  of  the claimant's
                 prior work.  This is the claimant's responsibility.

            Gonzalez Perez  v. Secretary of Health,  Education & Welfare,
            ______________     _________________________________________

            572 F.2d  886, 888  (1st  Cir. 1978).   Given  the dearth  of

            information as to how she  was functionally unable to perform

            her former work, so  as to put inability to resume  that work

            into  issue for step four  purposes, the ALJ could reasonably

            conclude that  the claimant  retained the ability  to perform

            her  former  work  during the  insured  period,  and  was not

            disabled.

                 The judgment of the district court is affirmed.
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