Padilla Perez v. SHHS ( 1993 )

February 2, 1993 [NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 92-1701
RICARDO PADILLA PEREZ,
Plaintiff, Appellant,
v.
SECRETARY OF HEALTH & 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
Breyer, Chief Judge,
Torruella and Selya, Circuit Judges.
Raymond Rivera Esteves and Juan A. Hernandez Rivera on brief
for appellant.
Daniel F. Lopez Romo, United States Attorney, Jose Vazquez
Garcia, Assistant United States Attorney, and Amy S. Knopf,
Assistant Regional Counsel, Department of Health and Human
Services, on brief for appellee.
Per Curiam. Claimant Ricardo Padilla Perez appeals
a district court judgment affirming a decision of the
Secretary of Health and Human Services denying his third
claim for Social Security disability benefits. We affirm.
I.
Claimant was born in Puerto Rico on February 7, 1940.
He completed the first grade and is illiterate. As an adult,
claimant resided and worked in the mainland United States and
Puerto Rico. He speaks some English. Claimant worked as a
bookbinder in the New York City area, a job that largely
required that he stand and pack cartons with books and
occasionally use a power press. In Puerto Rico, claimant
worked as a road laborer for the Department of Natural
Resources performing maintenance and cleaning work.
Claimant filed three applications for disability
benefits based on an alleged mental impairment. The first
was filed in Puerto Rico on September 2, 1982 and alleged
that claimant had been unable to work since September 11,
1981 due to a nervous condition. The Social Security
Administration (SSA) denied that claim after initial review
and reconsideration. The decision on reconsideration took
place in May 1983 and claimant did not seek further review.
Two years later, he filed his second application in New York,
again alleging September 11, 1981 as his date of onset.1
1. This second application was filed during the grace period
created by the 1984 Social Security Disability Reform Act,
Pub. L. 98-460, and entitled claimant to a redetermination of
That claim also was denied upon initial review and
reconsideration. This time, claimant sought review by an
administrative law judge (ALJ). After a full hearing at
which claimant and medical advisor Rafael Nogueras (a
psychiatrist) testified, the ALJ ruled that claimant was not
disabled on March 27, 1986. The Appeals Council declined
further review, thus rendering the ALJ's decision final.
Claimant did not seek judicial review. He immediately filed
his third application, which is the subject of this appeal.2
In contrast to his first two applications, claimant
amended his third application to allege February 25, 1978 as
his date of onset. (Tr. 272).3 The SSA determined that some
of the earnings that had been attributed to claimant when his
previous applications were processed were not, in fact,
claimant's earnings. (Tr. 292, 296). Consequently, the SSA
redetermined claimant's insured status and found that it
the whole period presented by his earlier claim. (Tr. 497).
2. Although claimant's third application alleged a back
impairment, he indicated that his primary ailment was mental.
The sole issue presented in this appeal is whether claimant
was disabled by his mental impairment.
3. Claimant filed a statement in connection with his third
application wherein he alleged that he lost his Social
Security card in New York and that the earnings that appeared
in his record after 1978 did not belong to him. (Tr. 294).
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expired on June 30, 1983. (Tr. 298).4 The SSA denied
claimant's third application on the ground of res judicata on
initial review, reconsideration, and following a limited
hearing by an ALJ.5 The Appeals Council vacated this
decision, finding that the ALJ's March 1986 decision did not
address certain consultative evaluations from the pre-June
1983 period. The Appeals Council directed the ALJ's
attention to these reports and instructed him to issue a new
decision after considering "all pertinent evidence of
record." (Tr. 504). A supplemental hearing was held.
Once again, claimant and Dr. Nogueras testified. Although
claimant maintained that he had not worked since 1978, the
ALJ found that he had earnings in 1980 and 1981 and that the
question was whether claimant was disabled between September
11, 1981 (his previously alleged date of onset) and June 30,
1983 (when his insured status expired). The ALJ found that
during this period, claimant suffered from an anxiety related
disorder and from alcohol abuse in remission. This finding
was based largely on the testimony of Dr. Nogueras. (Tr. 27,
29). This condition resulted in only moderate restrictions
on claimant's activities of daily living and social
4. The SSA's prior denial assumed that claimant was insured
through September 30, 1987. (Tr. 250).
5. We note that the ALJ who adjudicated claimant's third
application was not the same ALJ who denied his second
application.
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functioning during the relevant period, and seldom resulted
in deficiencies of persistence, concentration or pace. The
ALJ further found that claimant never suffered from episodes
of deterioration or decompensation in work or work-like
settings. (Tr. 20). Where the evidence in the record
indicated that claimant's past jobs were unskilled, simple to
perform, and required no complex mental functions, the ALJ
concluded that claimant's anxiety disorder did not preclude
him from performing his past work before June 30, 1983. The
Appeals Council declined claimant's request for review, thus
rendering this second ALJ's decision final. (Tr. 5-6).
Claimant sought judicial review under 42 U.S.C. 405(g). The
district court adopted the report of a magistrate judge and
found that claimant had failed to prove that he was disabled
before June 30, 1983. This appeal followed.
II.
In evaluating any disability claim based on an alleged
mental impairment, the SSA must follow the sequential
evaluation process outlined in 20 C.F.R. 404.1520 and
404.1520a. See Goodermote v. Secretary of Health and Human
Services, 690 F. 2d 5, 6-7 (1st Cir. 1982). Bearing in mind
that Social Security proceedings are not, strictly speaking,
adversarial, Deblois v. Secretary of Health and Human
Services, 686 F.2d 76, 80 (1st Cir. 1982), it remains the
claimant's burden to prove that his mental impairment
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disabled him from performing his past relevant work before
his insured status expired. See, e.g., Santiago v. Secretary
of Health and Human Services, 944 F.2d 1, 5 (1st Cir. 1991);
Gray v. Heckler, 760 F.2d 369, 371 (1st Cir. 1985); Deblois,
686 F.2d at 77. Our review is limited to determining whether
the findings of the Secretary are supported by substantial
evidence on the record as a whole. Ortiz v. Secretary of
Health and Human Services, 955 F.2d 765, 769 (1st Cir.
1991)(per curiam).
As it is undisputed that claimant's insured status
expired on June 30, 1983, the issue here is whether
substantial evidence supports the Secretary's nondisabled
finding for the period before this date. It is not enough for
the claimant to establish that an impairment which disabled
him from working after his insured status expired had its
roots before then. Deblois, 686 F.2d at 79. While there is
evidence indicating that claimant's condition may have
reached disabling severity after 1986, on balance, we are
compelled to agree that claimant has not shown that he was
disabled before June 30, 1983. We review the record.
III.
The earliest medical records indicate that claimant
reported experiencing nervous problems and daily alcohol
consumption in 1976 while securing treatment for trauma to
his left knee. He did not seek treatment for his nerves
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then. (Tr. 358-59). He sought outpatient treatment at the
Clinica Externas de Adultos on August 20, 1979. He was then
thirty-nine years old. He reported that he had quit his job
with the Department of Natural Resources because his "nerves
betray[ed]" him and he claimed to have been unemployed for
over a year. (Tr. 171). Mental examination found claimant
tense and anxious but approachable, in contact with reality,
and with "very acceptable" judgment. (Tr. 167). An anxiety
reaction was diagnosed and claimant was placed on Vistaril (a
tranquilizer). (Tr. 167). No further treatment is reported
for approximately two years.6 Claimant consulted Dr.
Ferdinand Berrios in August 1981 complaining of chest pain
and shortness of breath associated with states of marked
anxiety. (Tr. 417-27). Dr. Berrios diagnosed a severe
anxiety neurosis with depressive traits. He prescribed
antianxiety medications (Adapin and Vistaril) and Mellaril
(an antipsychotic) and recommended that claimant obtain
psychiatric treatment. Claimant sought such treatment at the
outpatient clinic of the Bayamon Regional Hospital, again
complaining of problems with his nerves. At this time it
6. As noted above, the SSA's earnings records indicate that
claimant worked during this two year period. (Tr. 296).
Apart from his own statements, claimant submitted no evidence
to rebut the SSA's earnings record. We think it a relatively
simple matter for claimant's counsel to secure verification
of claimant's alleged dates of employment and departure
therefrom. Absent such evidence, we have no cause to second-
guess the SSA's findings.
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was reported that claimant made excessive use of alcohol. In
September 1981 claimant was diagnosed to be suffering from an
anxiety reaction with dissociative features of hysterical
origin. Mellaril and Adapin were continued and counselling
was prescribed. (Tr. 170). In follow-up visits over the
next seven months claimant reported that the medications were
not helping and that he experienced hallucinations. Yet in
May 1982 he was relevant, coherent and oriented in all
spheres. (Tr. 175). Mellaril was discontinued and Vistaril
restarted. (Tr. 176).
A consulting psychiatrist, Dr. Miguel Bravo, evaluated
claimant for the SSA on October 15, 1982. (Tr. 411-13). Dr.
Bravo interviewed claimant with one of his cousins, who
reported that claimant heard voices and knocking sounds and
disappeared from home for days at a time during which he
wandered the neighborhood and became disoriented. Claimant
reported that he spent his days walking around the
neighborhood, occasionally helping with the housework,
watching T.V. or listening to the radio. He related well to
family and neighbors who visited him. Personal hygiene was
adequate. Dr. Bravo reported that claimant appeared
anguished during his mental examination and that he cried,
with thought content centered around his difficulty keeping a
job. He expressed himself with difficulty, exhibiting
thought blocking, flight of ideas and occasional incoherence.
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His intellect appeared below average and he was easily
distracted. He was disoriented in time and place while
oriented in person. Memory was deteriorated for all events
and his affect was depressed. Judgment and insight were
null. Dr. Bravo diagnosed a chronic undifferentiated
schizophrenia and found that claimant was not able to handle
funds.7 Shortly after Dr. Bravo's evaluation claimant's
internist (Dr. Berrios) opined that claimant was disabled.
(Tr. 418, 439).
Claimant was evaluated for the SSA again in March 1983
by another psychiatrist, Dr. Mojica Sandoz.8 Mental
examination found claimant unshaven though clean, exhibiting
slight psychomotor retardation. He was slightly anxious and
tense, but accessible, cooperative and frank. He did not
show a significant impairment in his capacity for
7. Another consultant, Dr. Ramon Freese Suarez, (an
internist and cardiologist), evaluated claimant in November
1982. He found a neuropsychiatric condition, severe lower
leg varicosities and gastritis. (Tr. 429). Dr. Freese's
report indicates that claimant reported that he had worked in
several factories in New York but was thrown out of jobs due
to his nervous condition. (Tr. 426). In contrast to other
medical records, Dr. Freese's report indicates that claimant
was last employed in 1981 by the city of Corazol. (Tr. 426).
8. Claimant told Dr. Mojica that he had not worked since
1977 or 1978, his last job being with the Puerto Rico
Department of Natural Resources. He also reported that he
wounded himself with a machete while he was so employed, and
that he had to quit because his superior did not want him
working anymore. He claimed to have been fired from another
job as a janitor. (Tr. 444-45).
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establishing interpersonal relations. (Tr. 445). Though not
spontaneous, claimant was logical, coherent and relevant. He
exhibited no suicidal or homicidal tendencies nor evidence of
hallucinations. He also did not show personality
deterioration. There was no evidence of blocking,
disorganization, nor difficulty in the formulation and
elaboration of ideas. Remote memory was spotty, but recent
and intermediate memory were adequate. Noting that
claimant's intellectual functioning appeared to be below
average, Dr. Mojica diagnosed an unspecified mental
retardation and dependent personality disorder. He found
claimant able to handle funds. (Tr. 445-46).
Claimant returned to the outpatient clinic in Puerto
Rico again on May 5, 1983, at which time he reported that the
medications were helping him and that he was more calm. (Tr.
177). No medical treatment is reported for more than a year
after claimant's insured status expired. Claimant returned
to the outpatient clinic on October 15, 1984, claiming he had
been absent during the interim because he was caring for his
sick mother. He appeared clean, anxious and oriented in all
spheres. (Tr. 179). His memory and intellect were adequate,
although judgment and insight were poor. A mild to moderate
anxiety disorder was diagnosed and Vistaril was again
prescribed. (Tr. 179-80). An individualized treatment plan
dated November 28, 1984 described claimant's anxiety disorder
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as chronic and mild, while indicating that claimant had
exhibited good adaptation over the last year. (Tr. 181-184).
A February 15, 1985 treatment summary from the Mental Health
Center indicated that claimant then had a mild to moderate
anxiety disorder and was partially limited in his ability to
do his usual work. (Tr. 190-91).
The medical evidence following claimant's return to New
York in March 1985 suggests that his condition periodically
became more dire. After filing his second application for
disability benefits, claimant allegedly began suffering from
hallucinations and tried to kill himself. He was
hospitalized at the South Beach Psychiatric Center between
May 17-25 and diagnosed with an atypical psychosis. A long
history of alcohol abuse was identified, including blackouts,
delirium tremens and one prior suicide attempt.9 Claimant
was treated with Haldol (an antipsychotic) and psychotherapy
and referred to Alcoholics Anonymous. (Tr. 199-206).
Shortly after his discharge from the South Beach Psychiatric
Center claimant was evaluated for the SSA by Dr. J. Fiks.
Claimant appeared manipulative, demanding, and vague,
exhibiting a tendency to overreact and exaggerate. He was
able to provide information to suit his needs but otherwise
noncommittal. His reliability was poor. Dr. Fiks diagnosed
9. Claimant reported that he had stopped drinking one month
before his admission. (Tr. 199).
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a passive-aggressive personality disorder and questioned
claimant's ability to handle funds. (Tr. 207-08).
Claimant secured further treatment from the New York
Office of Mental Health.10 He appeared to improve in the
fall of 1985 and remained asymptomatic despite decreased
medications. At that time, claimant again was caring for his
mother, who had had surgery. Another psychiatric evaluation
from November 1985 indicated that claimant could not tolerate
the pressure of a competitive work setting due to the
likleihood of decompensating under stress. (Tr. 212).
The SSA obtained two assessments of claimant's mental
residual functional capacity (RFC) from two nonexamining
consultants. On July 17, 1985, Dr. Alan Kaye reported that
claimant was limited only in his capacity to understand,
remember and carry out technical job instructions. He opined
that claimant was capable of work. (Tr. 143, 146). On
December 16, 1985, Dr. A. Stockton reported that claimant was
moderately limited in his abilities to understand, remember
and carry out detailed instructions, interact with the
general public, accept instructions and criticism, and to
respond to changes in the work setting and set realistic
goals. (Tr. 148-50). No other significant limitations were
noted.
10. Claimant also had surgery for varicose veins in his legs
in June 1985. (Tr. 233).
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Claimant returned to Puerto Rico in January 1986, where
his second application was denied. On August 2, 1986,
claimant was evaluated by Dr. Cordero Alonso, a psychiatrist,
in connection with his third application (Tr. 458-63). Dr.
Cordero diagnosed a schizophrenic syndrome with histrionic
features. He found claimant unable to handle funds. Another
psychiatrist, Dr. Lopez Flores, evaluated claimant on March
7, 1987. He diagnosed a moderate severe dysthymic disorder
with agitation and psychotic traits. (Tr. 467-68).11 Two
nonexamining consultants made RFC assessments. On May 15,
1987, psychologist Orlando Reboredo found that claimant
suffered from recurrent major depression with anxiety and
psychotic episodes. He found claimant was not capable of
work and that his condition met listing 12.04. (Tr. 335-
43).12 However, Dr. Reboredo was not asked to focus on the
11. In this interview, claimant reported that he had not
worked since 1977 and that he had always had mental problems
but that these were exacerbated after a sister died in 1985.
Claimant was then being treated with Halcion (a sleeping
pill) and Mellaril. Claimant denied using alcohol and
reported that his mother was insane. Mental examination
found claimant to be logical, coherent and relevant,
perception unstable, affect sad, and his mood was anxious and
depressed. His concentration and attention span were below
par. He was oriented only in person, and exhibited
significant memory defects. Judgment lacked insight. (Tr.
468).
12. Dr. Reboredo indicated that claimant suffered from
marked restrictions of his activities of daily living and
difficulties maintaining social functioning, with frequent
deficiencies of concentration, persistence and pace, and one
or two episodes of deterioration or decompensation in work or
work-like settings.
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period between 1978 and 1983. Another psychologist, Dr.
Pedro Ivan Garcia, reviewed the evidence with a specific eye
to evaluating claimant's condition before his insured status
expired on June 30, 1983. He indicated that that evidence
pointed to a nonsevere anxiety disorder that did not meet or
equal a listing. (Tr. 344, 346).13
IV.
On appeal, claimant argues that the SSA's decision is
not supported by substantial evidence on the record as a
whole because the Secretary relied on isolated statements
supporting a non-disabled finding while ignoring what
claimant says is "overwhelming evidence" to the contrary.
The argument overlooks the fact that most of the evidence
that might support a disabled finding was from the period
after claimant's insured status expired. Medical evidence
generated after a claimant's insured status expires may be
considered for what light (if any) it sheds on the question
whether claimant's impairment reached disabling severity
before his insured status expired. See, e.g., Deblois, 686
F.2d at 81 (holding ALJ should have asked consulting experts
whether pro se claimant's mental impairment reached disabling
13. Dr. Ivan Garcia noted only slight restriction of
claimant's activities of daily living and difficulties
maintaining social functioning. He reported that claimant
seldom experienced deficiencies of persistence, concentration
or pace, and that he never suffered from episodes of
deterioration in work or work-like settings. (Tr. 352).
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14
severity before his insured status expired); Alcaide v.
Secretary of Health and Human Services, 601 F. Supp. 669,
672-73 (D.P.R. 1985)(applying Deblois where claimant had
counsel). See also Basinger v. Heckler, 725 F.2d 1166, 1169
(8th Cir. 1984)(collecting cases). Here, the ALJ did not
specifically mention evidence from the post-1984 period,
finding that "no consideration must be given to the
impairment as it existed at a time too far removed from the
date when claimant's insured status expired." (Tr. 20). We
cannot fault the ALJ for this ruling. The Appeals Council's
remand order specifically directed the ALJ to consider the
1983 reports of Drs. Mojica and Freese in issuing a new
decision. With the exception of Dr. Garcia's PRTF - which
found that claimant's anxiety disorder was not even severe
during the insured period - the evidence generated after
claimant's insured status expired did not address claimant's
condition before June 1983. Rather, the medical evidence and
SSA evaluations addressed claimant's condition as of the time
he was examined. Thus, the ALJ did not err in declining to
review evidence too remote in time from the insured period to
be probative of claimant's condition before June 1983. Cf.
Tremblay v. Secretary of Health and Human Services, 676 F.2d
11, 13 (1st Cir. 1982)(ALJ had no obligation to refer medical
records from period after claimant's insured status expired
to medical advisor).
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Substantial evidence supports the ALJ's conclusion that
claimant was not disabled from his past work before his
insured status expired. The medical evidence through 1984
disclosed a mild to moderate anxiety disorder that was
managed by medications.14 There is a significant gap in
treatment between 1979 and 1981, during which time claimant
worked. After filing for benefits and securing further
treatment in 1982, claimant again stopped treatment between
May 1983 and October 1984 to care for his sick mother. Such
activity tends to support the conclusion that claimant
retained the capacity to work. Dr. Nogueras had previously
testified that claimant remained capable of performing simple
repetitive tasks even when the more dire evidence from 1985
onward was taken into account. (Tr. 67-68). The ALJ could
reasonably conclude that claimant retained this capacity
before June 1983.
Claimant argues that a vocational expert was required to
explain how his severe mental impairment affected his ability
to sustain gainful employment. While this might be true had
14. The ALJ relied on Dr. Nogueras' testimony in rejecting
Dr. Bravo's schizophrenia diagnosis. Dr. Nogueras discounted
schizophrenia because the mental health clinic then treating
claimant did not make this diagnosis and because the medical
records did not reveal persistent psychotic symptoms. (Tr.
62, 104). Dr. Nogueras opined that claimant's alleged
hallucinations were more likely due to alcohol withdrawal.
Such conflicts in the evidence are for the Secretary to
resolve. Lizotte v. Secretary of Health and Human Services,
654 F.2d 127, 128 (1st Cir. 1981)(citation omitted).
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the ALJ determined that claimant could no longer perform his
past work, see, e.g., Ortiz v. Secretary of Health and Human
Services, 890 F.2d 520, 524 (1st Cir. 1989)(noting that
vocational expert typically required where nonexertional
impairment significantly limits claimant's ability to perform
jobs he is otherwise exertionally capable of performing),
that is not the case here. The record supports the ALJ's
view that claimant retained the capacity to perform his past
unskilled work before June 1983. Further evidence was not
necessary.
Finally, claimant says that the fact that he was fired
from his past jobs undermines the ALJ's conclusion that
claimant remained capable of performing his past work and the
ALJ's subsidiary finding that claimant never suffered
episodes of deterioration or decompensation in work or work-
like settings. The sole evidence that claimant was fired
came from the claimant himself, as he reported this to
various medical providers and SSA representatives. However,
claimant proved to be an unreliable and inconsistent source
of information. He identified various dates of employment
for his past work, and alternately reported that he had been
fired or quit his job with the Department of Natural
Resources. Claimant's contention that he was fired by the
Department of Natural Resources in 1978 is contradicted by
the SSA's earnings record, which indicated that he worked
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17
until September 11, 1981. (Tr. 298). The ALJ did not find
claimant wholly credible. Absent evidence corroborating
claimant's assertions from the relevant time, we think the
ALJ's finding may stand.
Judgment affirmed.
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