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June 30, 1992 [NOT FOR PUBLICATION]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]
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Before
Breyer, Chief Judge,
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Selya and Cyr, Circuit Judges.
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Raymond Rivera Esteves and Juan A. Hernandez Rivera on brief for
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appellant.
Daniel F. Lopez Romo, United States Attorney, Jose Vazquez
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Garcia, Assistant United States Attorney, and Paul Germanotta,
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Assistant Regional Counsel, Department of Health and Human Services,
on brief for appellee.
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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
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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
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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
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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.
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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,
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statements that she did no housework, testimony enumerating
certain household tasks that she did perform, statements that
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she had never worked after the accident and that she had
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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.
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Secretary of Health & Human Services, 944 F.2d 1, 7 (1st Cir.
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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.
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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
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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.
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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,
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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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