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        September 17, 1992      [NOT FOR PUBLICATION]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]
                                               ___________________

                                 ____________________

                                        Before

                                Selya, Cyr and Boudin,
                                   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  Jessie  M.  Klyce,
        ______                                              _________________
        Assistant Regional  Counsel, Department of Health  and Human Services,
        on brief for appellee.

____________________

____________________

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
                                          __

                      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.

                                         -8-

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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