USCA1 Opinion
November 22, 1994 UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 94-1269
FERNANDO PARRILLA-FUENTES,
Plaintiff, Appellant,
v.
SECRETARY OF HEALTH AND HUMAN SERVICES,
Defendant, Appellee.
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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November 15, 1994 [NOT FOR PUBLICATION]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.
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Raymond Rivera Esteves and Juan A. Hernandez Rivera on brief for
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appellant.
Guillermo Gil, United States Attorney, Maria Hortensia Rio,
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Assistant United States Attorney, and Donna C. McCarthy, Assistant
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Regional Counsel, Department of Health & Human Services, on brief for
appellee.
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Per Curiam. Claimant Fernando Parrilla Fuentes appeals
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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
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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
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Human Services, 826 F.2d 126, 140 n.3 (1st Cir. 1987).
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In determining disability, the agency utilizes a five-
step process set forth in HHS regulations. See 20 C.F.R.
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404.1520. At step 1, the applicant is not disabled if still
working, id. (b), but Parrilla was not. Step 2 requires that
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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
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a severe impairment, regulations provide that the applicant
is not disabled. Id. The basic work activities here
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pertinent are "[p]hysical functions such as walking,
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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
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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.
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1982)(depression).
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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
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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
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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.
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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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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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