
USCA1 Opinion

	




        June 30, 1992           [NOT FOR PUBLICATION]                                 ____________________        No. 91-2255                               MYRTELINA RIESTRA ARROYO,                                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 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                 __________            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                                            ____________________            1.  Those records are not before us.                                         -2-            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                                                  _______    ____________                                         -3-            Health & Human  Services, 686  F.2d 76, 79  (1st Cir.  1982).            ________________________            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            ______________________________________            Cir.  1986).    The  record  adequately  supports  the  ALJ's            conclusion  that the  claimant's physical conditions,  in the                                         -4-            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                                         -5-            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                                         -6-                 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.                                                       ________                                         -7-
