USCA1 Opinion

September 17, 1992

[NOT FOR PUBLICATION]

____________________
No. 92-1415
SAMUEL RIVERA VELEZ,
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. Juan M. Perez-Gimenez, U.S. District Judge]
___________________
____________________
Before
Selya, Cyr and Boudin,
Circuit Judges.
______________
____________________

Raymond Rivera Esteves and Juan A. Hernandez Rivera on brief

______________________
_________________________
appellant.
Daniel F. Lopez-Romo, United States Attorney, Jose
Vazq
______________________
___________

Garcia, Assistant United States Attorney, and Jessie M. Kly

______
_______________
Assistant Regional Counsel, Department of Health and Human Servic
on brief for appellee.
____________________
____________________

Per Curiam.
___________
totally

Claimant contends

disabled since

February 1988

that he

due

has been

to asthma.

The

Secretary, adopting the ALJ's opinion, disbelieved claimant's

account

of

severe,

daily

claimant could do various

the vocational

asthma

attacks

are performed in

temperature controlled

environment and

position.

principal

erred in

disbelieving

attacks and
him to work.

concluded

light, unskilled jobs described by

expert (VE) which

Claimant's

and

allow for

argument is

claimant's account

in concluding that

change of

that the

of severe,

claimant's asthma

We review the evidence.

a clean,

ALJ
daily

permitted

I
_
Claimant,
childhood.
several

He

born

in

1950,

started working

was

denied in

unemployment, claimant
cable

cutter

Massachusetts.

and

1979.

as

and continued

After

asthma

disability.

resumed working
later

had

in 1969

years, but then applied for

application

has

for

That first

several

years of

in 1984, first

forklift

since

operator

as a
in

He claims that his asthma worsened so that he

could no longer work and that a doctor advised him to move to

Arizona.
1988.

Claimant

instead moved to Puerto

Rico in February

He has not worked since.

While claimant claims that

a doctor advised him to

move to Arizona because of his asthma, claimant

furnished no

statement

Rather,

from

doctor

to

that

effect.

the

-2-

Massachusetts

records consisted of three hospital admissions

(June

1986 and May 1987 admissions because of asthma attacks

and a

July 1987 admission

for a

back muscle strain)

and a

pulmonary questionnaire completed by a doctor who had treated

claimant's
that

asthma in June and

claimant had

words, prior to
and

at a

not

returned for

The doctor noted

follow-up.

In

time when

So far as appears,

claimant was

working, only

two asthma

months apart, were documented.

claimant underwent regular treatment only

a two-month period following the first attack.

of regular

other

claimant's February 1988 move to Puerto Rico

attacks, approximately eleven

for

July 1986.

The lack

treatment, the infrequency of documented attacks,

and the failure of

claimant to produce a statement

claimant to move

from the

doctor who

allegedly advised

suggest that

claimant's

cessation of work and move to Puerto Rico may not

in fact have been prompted by claimant's asthma.

The
was

for several

treatment, and,
off

next documented hospitalization

days in

May 1988.

due to asthma

Claimant

responded to

at discharge, the treating physician checked

a box reading, "Person can perform moderate work, as his

medical condition does not substantially affect him."

Claimant

was treated

in hospital

emergency rooms

for his asthma twice in 1988 (August and October).

-3-

Claimant
September 1988.

applied for
No

disability benefits

difficulty or shortness

in late

of breath

was

observed by the agency personnel.

In November 1988, claimant was evaluated by Dr. Pou
for

the purpose

benefits.

of determining

Claimant

reported daily

severe respiratory

impairment.

beginning

interview

of

the

eligibility

for disability

attacks and

Dr. Pou
claimant

continuous

noted that at
breathed

the

regularly

without distress, but towards the end he had a coughing spell

which

terminated

wheezing.

in

Dr. Pou

bronchospasm

and

severe

respiratory

distress

diagnosed "bronchial asthma

chronic

obstructive

with

with severe

pulmonary

disease."

Pulmonary function tests showed "markedly diminished" maximum

voluntary

ventilation, forced

expiratory volume

and forced

vital capacity "due to severe bronchial obstructive disease."

A

nonexamining doctor, reviewing

this point, concluded claimant's

claimant had

not required

the record up to

asthma was not disabling as

frequent

emergency treatment

or

suffered a severe loss of pulmonary function capacity.

A lung specialist at
in December

1988.

a hospital evaluated claimant

Claimant reported

that he

shortness of breath and frequent attacks.

without

explanation

totally disabling.

or

elaboration

that

had constant

The doctor
the

stated

asthma

was

-4-

pulmonary

function test

conducted

in December

1988 by a nontreating physician, Dr. Reyes, was within normal

limits.
In 1989
because of

there

were

asthma attacks.

four

emergency

Oxygen and

room

visits

various medications

were administered.
A
evidence

nonexamining
through

physician

April

1989

reviewing

concluded

the

that

medical

claimant's

condition was not disabling.

Vitalograph Spirometry Data compiled by Dr. Rogelio
Gonzalez, claimant's treating physician, in May 1989 showed a
"severe

restrictive

and

moderately-severe

obstructive

ventilatory impairment."
In
days for
clear

December 1989, claimant

asthma and bronchitis.

and claimant

Prognosis was "fair."

had

no cough

At

was hospitalized eight

discharge, lungs

or respiratory

were

distress.

In April

1990, claimant's treating

Rogelio Gonzalez, submitted a

report.

physician, Dr.

He recited claimant's

report of "almost daily acute asthmatic attacks . . . lasting

2-3

hours" which, at least twice a month, did not respond to

home medications and required

Gonzalez

noted scattered rhonchi

conducted
with a

emergency room treatment.

a pulmonary

moderate

function

restrictive

and

Dr.

and expiratory wheezes and

test which
very

was "compatible

severe

obstructive

-5-

ventilatory impairment."
had to be treated
submit

by him once or twice a

any records

opined as early

Dr. Gonzalez stated that

of these

month, but did not

office visits.

as October 1988

claimant

Dr.

Gonzalez

that claimant was

disabled

from work.
Hospital records
Otero

for 1990 (Hospital

Dr. Alejandro

Lopez) are difficult to read, but appear to show three

out-patient visits.
Claimant testified as follows.
in

1988 because

his

condition

He

deteriorated

stopped working
necessitating

continuous treatment
to Puerto Rico did

and medication.

The

change in climate

not help and attacks continued.

Attacks

occur two to three times a week, last from a half hour to

hour,

and

claimant

leave claimant

fatigued

uses a therapy machine

sometimes as often

for

hours.

two to three

as twice a day.

At

an

home,

times a week,

His medications make him

nervous, aggressive, and interfere with his sleep.

Claimant,
who

has

who was educated through sixth grade and

worked for

years

in various

jobs

including taxi

driving, purported not to know how much one plus one or three
plus three are,

answering three and five

to these questions

from the ALJ.

The
him

to

ALJ concluded

light

environments, but

work

in

that claimant's
clean,

asthma limited

temperature

did not disable him

controlled

totally from working.

-6-

The

ALJ

acknowledged

that

the

pulmonary

function

tests

performed by claimant's treating physician, Dr. Gonzalez, had

shown

severe restrictive

and moderately

severe obstructive

ventilatory impairment,

but pointed

out

that the

December

1988 spirometry test performed by a different doctor had been

within normal
frequent

limits.

With

severe attacks,

documented

respect to claimant's

the ALJ

hospitalizations

noted the

and

claim of

infrequency of

discounted

claimant's

account.
II
__
The ALJ
allegation of
was

was

not

severe, daily attacks.

suspect, for

to

advised

accept

claimant's

Claimant's credibility

significant allegations

borne out by the record.

Massachusetts

required

he made

were not

For example, he claimed a doctor in

him to

move,

but

produced no

such

report from the doctor or even a history of regular treatment

while in Massachusetts.
visits,

but

again,

allegations.
ability

He claimed bi-monthly emergency room

the

And, he,

to do simple

record

did

former taxi

addition, a skill

not

support

driver,

the

denied the

essential to making

change.

All in all, the ALJ could supportably conclude that

claimant

exaggerated,

depicting himself

as much

less able

than he was.
Claimant
report

of total

contends

that

the treating

disability is uncontradicted

-7-

physician's
and therefore

must prevail.

In

rejecting it, the ALJ substituted

medical opinion,
First, Dr.

claimant

Gonzalez's report

claimant of

almost daily

room treatment, which

record

shows two

claimant claimed.

is

emergency

by the record.

room visits

in 1988

his opinion.

Second,

evidence was conflicting.

test results varied,

fewer than

information given to Dr.

the ALJ
as the

was not

and one

Gonzalez

required to

ALJ pointed

For instance,

The

(plus one

four in 1989, substantially

As the

wrong.

recited by

and bi-monthly

is not borne out

significantly inaccurate,

accept

Claimant

reflects a history

attacks

emergency

hospitalization) and

was

maintains.

his own

out, the

pulmonary function

was normal.1

The doctor

discharged claimant from the hospital in May 1988 wrote

claimant

could do

concluded the
properly reject
record

moderate work,

asthma

was

not

Dr. Gonzalez's

as a whole that

and nonexamining

disabling.

The

claimant retained the

that

doctors

ALJ

opinion and conclude

who

could
on the

ability to do

light work in clean environments.

Claimant's

contention

that

the

ALJ

did

not

adequately consider the side effects of claimant's medication

____________________

1. Claimant asserts that the pulmonary function tests with

adverse results were more complete than the one with normal
results administered by Dr.
Reyes.
We note that
a
nonexamining doctor had the benefit of both Dr. Reyes' normal
findings and the test conducted by Dr. Pou which showed
"markedly diminished M.V.V., FEV-1 and FVC due to severe
bronchial obstructive disease," yet concluded that claimant's
asthma was not disabling.
-8-

is

wrong.

The

ALJ specifically

acknowledged

claimant's

testimony that his medications make him nervous and agitated.

There was no indication that

claimant complained of the side

effects to a doctor, and the ALJ was not required to conclude

that

the side

claimant

effects were

from performing

so deleterious

the light,

as to

unskilled jobs

preclude
the VE

identified.
We have considered all of
conclude that none warrant relief.
Affirmed.
________

claimant's arguments and

-9-