
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        November 15, 1994       [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                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                                         -3-                                         -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,                                         -4-                                         -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).                                         -5-                                         -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                                         -6-                                         -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.                                     ________                                         -7-                                         -7-
