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
as follows:

of this court issued on November 15,

1994 is amen

On cover sheet, change "APPEAL FROM THE UNITED STATES DISTR

COURT FOR THE DISTRICT OF RHODE ISLAND" to "APPEAL FROM THE UNI
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[NOT FOR PUBLICATION]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

______________________
_________________________
appellant.
Guillermo Gil, United States Attorney, Maria Hortensia R
______________
___________________
Assistant United States Attorney, and Donna C. McCarthy, Assist
__________________
Regional Counsel, Department of Health & Human Services, on brief
appellee.
____________________

____________________

Per Curiam.
__________

Claimant Fernando

from the district court's

Parrilla Fuentes appeals

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.

proceedings before
ALJ

found

an administrative law judge

that Parrilla

was

September 30, 1985, when his

Appeals Council

not

disabled

After

("ALJ"), the
on

or

before

insurance status expired.

approved the ALJ's decision

The

and this appeal

followed.
Parrilla,
construction
unable

who is
worker.

to work

in his

late 50s,

as a

In his application he said he had been

since January

ailments concerning

was employed

1, 1980,

his heart,

nerves, and severe pain.

due

to a

range of

lungs, back,

chest, asthma,

The medical records

are extensive.

Without describing them in detail, they show the following:

Parrilla has had high blood pressure since 1980.
been

treated with

a variety

been continuing episodes of

in

part because

appointments or

Parrilla
utilize the

He has

of medications but

there have

high blood pressure,

apparently

did not

invariably keep

prescribed drugs.

medical

In general,

there were few indications of any symptoms related to

high blood

pressure or

the medication

for it,

either

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
appears in a

negative report

pertinent to his

medical certificate

filed in June

work status
1984.

diagnosis was "hypertensive heart disease-hypertension."

condition was

described as permanent.

disability, the
"This

"partial" box was checked

gentleman

hypertension.

In relation

needs

more

heroic

The
The

to work

with the comment:

treatment

for

his

His hypertension is controllable and he may be

relocated on a lighter job than his present one."

At
said

the administrative hearing in January 1992, Parrilla

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
to

did not do any chores

entertain himself.

or engage in any activities

He described

serious leg

swelling

problems but indicated that these attacks could be avoided by

diet.
The

ALJ

complaints
other

refused

of pain,

to

the

vague;

claims of

said that

fairly well

Parrilla's

tension, difficulties

symptoms reported

that

credit

through September

functional

the admitted

limitation
history of

controlled with medication;

subjective

in breathing
30, 1985;

or

found

were broad

and

hypertension was

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
substantial

to

"any fact,

if supported

by

evidence, shall be conclusive . . . ." 42 U.S.C.

405(g).
purposes

findings as

An

applicant

determinable condition makes the applicant unable

to "engage

any substantial

423(d)(1).

The

specified

social security
medically

that

over

for

in

where,

is disabled

period,

gainful activity

. . .

burden is upon the applicant

he is disabled.

." 42

U.S.C.

to demonstrate

Evangelista v. Secretary of Health and

___________
_______________________

Human Services, 826 F.2d 126, 140 n.3 (1st Cir. 1987).
______________
In determining
step process
404.1520.

disability, the agency utilizes

set forth in HHS regulations.

At

the applicant "must

"impairment

or

significantly limits
ability

not

pertinent

have a severe
combination
[the

disabled.
are

Step 2 requires that

impairment," specifically
of

impairments

applicant's] physical

to do basic work activities."

a severe impairment,
is

See 20 C.F.R.
___

step 1, the applicant is not disabled if still

working, id. (b), but Parrilla was not.

___

an

a five-

or

Id. (c).
___

"[p]hysical

The

basic
functions

-4-4-

mental

Absent such

regulations provide that the

Id.
___

which

applicant

work activities
such

as

here

walking,

standing,

sitting,

lifting,

carrying, or handling."
The
that

it

medical

20 C.F.R.

was not

permissible

evidence

to

this

reaching,

404.1521(b)(1).

high blood

activities.

This,

assume for

blood pressure

ALJ,

says

Parrilla,

without direct
to

pressure did not

assume

that

preclude basic
called

for

and not the uninformed

of a lay administrative judge.

if we

for the

effect, merely

independent medical judgment

even

pulling,

gist of Parrilla's claim on appeal in this court is

arguably severe
work

pushing,

an

opinion

This is so, Parrilla implies,

purposes of

argument that

was not itself accompanied

the high

by other symptoms

or resultant injuries.
High blood
even

without

pressure is
any direct

a generic condition.

symptoms,

it

may in

Perhaps,
some

cases

significantly impair work functions; but

it certainly cannot

be claimed that

it always
______

does Parrilla

such a claim).

In this sense, the diagnosis is

to a spinal disk,
thousand conditions

does so (nor

like injury

depression, asthma, migraines or any

that may,

make

or not, significantly

of a
impair

one's performance of ordinary work functions.

the

burden

evidence to

is

upon

the

applicant

to

show that a disorder, "not

In such cases,

offer

affirmative

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
the

record

might agree that the

does

not

establish

Parrilla's hypertension bears to

functions; there is only the

affirmative evidence in
the

relationship

that

his ability to perform work

barest medical reference to the

possibility of his doing lighter work and even this reference

provides conflicting inferences
work

(i.e., that less

____

would be desirable but some type

exertional

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

disabled,

or, in

impairment

offer direct
that

functions.

that the

Here, the applicant

medical evidence (e.g., a

____
he

met

the

evidence" test that applies

mean

to show

generic

"significantly limits" the applicant's ability to

do basic work

show

this instance,

applicant to show that he is

that the

Secretary

was free

to

doctor's opinion) to

requirements.

The

"substantial

to Secretarial findings does not

must affirmatively

show that

the

applicant is not disabled.

___
It is true that if the applicant's testimony about joint
pain, swelling and the
testimony would
the

like had been credited in

certainly have gone a long

kind of severe impairment required

testimony had
the ALJ, who

very little basis

full, that

way to establish

at step 2.

in the medical

But this

records and

heard the applicant testify, declined to credit

-6-6-

the

testimony.

reason

why

Nothing

we should

interested witness.

in Parrilla's

disturb

the

Affirmed.
________

-7-

brief gives

ALJ's

us any

appraisal of

an

-7-