USCA1 Opinion

June 30, 1992

[NOT FOR PUBLICATION]

____________________

No. 91-2255
MYRTELINA RIESTRA ARROYO,
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 Consuelo Cerezo, U.S. District Judge]
___________________
____________________
Before
Breyer, Chief Judge,
___________
Selya and Cyr, 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 Paul Germanot
______
______________
Assistant Regional Counsel, Department of Health and Human Servic
on brief for appellee.
____________________
____________________

Per Curiam.
__________
order affirming
Human

This is

an appeal from

a decision

Services ("the

a district

of the Secretary

Secretary")

to deny

court

of Health
social

and

security

disability benefits.
I
I
_
In May
35,

1980, claimant Myrtelina Riestra-Arroyo,

was injured on

this onset date in

The

first claim,

the job.

Since then, she

at age

has asserted

two applications for disability benefits.

denied

in August

beyond the administrative level.1

1982,

was not

Claimant's insured

pursued
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

Administrative Law Judge ("ALJ")

denial of
an

claimant testified,

decided to reopen the first

benefits because of claimant's

"emotional

component".

His

concluded, however, that there

to review: "[T]he claimant

an

new allegations of

August

28, 1989

was no "emotional

decision
component"

has filed an application alleging

a condition of which there is no indication that she has been

followed or
we agree
from

treated."

that there

On examination of
is no
__

the entire record,

evidence that

claimant suffered

or was treated for any mental or emotional condition in

____________________
1.

Those records are not before us.

-2-

the

relevant

appellant

period, or

does not

after, for

press the

that

issue on

matter.

As the

appeal, we

deem it

waived,

and reiterate

disability

claim

the

ALJ's caution

premised

upon

against filing

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

claimant had
myositis,

mild carpal tunnel

and concluded,

sequential evaluation
she

could still

at

syndrome and

step four

perform her past

meaning

of the Social Security Act.

the

thus,

was not

ALJ improperly

complaints of pain, and that

Secretary's

404.1520(e), that

work as a

operator, and,

cervicodorsal

of the

process, 20 C.F.R.

machine

argues that

her insurance ended, the

secretary or a

disabled within

the

On appeal the appellant

discounted

her

subjective

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
__
First, it
establish that

was incumbent upon the

claimant to initially

her impairments had reached

level of severity as of June

such a disabling

30, 1984 that she was unable at

that time to perform her prior work.

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Deblois v. Secretary of
_______
____________

Health & Human Services, 686

________________________
The

ALJ

found

objective

F.2d 76, 79

medical

(1st Cir.

evidence

in

1982).

the

State

Insurance Fund ("SIF") records submitted by the claimant that

she

suffered

from

mild

carpal

cervicodorsal myositis (a swelling

in

the

neck-shoulder

appellant
medical

does

for

objective

reveals

these

record

allegations of

There

tending

lower extremities

revealed
noted,

record contains

virtually

indicia typically associated with

other

spasm, marked

sensory

testimony about

and motor
the

The

little

or no
the

to July 1984:

claimant's upper and

were negative; the only

the January 1984 nerve

The

conservative

corroborate

positive lab test

conduction study which

mild bilateral carpel tunnel syndrome.

the

atrophy,

is

attendant disabling pain prior

all of the SIF's x-rays and EMGs of the

of record was

to

finding.

and

and

muscles

insured.

this

sporadic

conditions.

evidence

while

contest

only

syndrome

of the voluntary

area)

not expressly

evidence

treatment

blade

tunnel

no

As the ALJ

evidence of

the

severe pain such as muscle

limitation of motion,
deficits.

The ALJ

claimant's subjective

swelling, and
also elicited

symptoms,

daily

activities, functional limitations, prior work and medication

in

conformity

with

the

guidelines

set

out

in

Secretary of Health & Human Services, 797 F.2d

______________________________________
Cir.

1986).

conclusion

The

record

that the

adequately

Avery v.
_____

19, 22 (1st

supports

the

claimant's physical conditions,

ALJ's
in the

-4-

relevant period, could not

reasonably be expected to produce

severe or disabling pain.

Second, the
some

degree,

ALJ had an
the

adequate basis to

claimant's

credibility.

inconsistent testimonial and/or written record

the claimant
work

include: varying versions of

accident itself,

claimant's
clinical

statements by

the precipitating

two SIF

consultants of

resistance"

during

parts

examination, statements that

and that
___

statements that she

Numerous

notations by

"voluntary

both no sitting

discount, to

she worked

did no housework,

of

the

her last job involved

sitting and

standing,

testimony enumerating

certain household tasks that she did perform, statements that

___
she

had never

worked

for

worked after
a

while

the accident

afterwards,

and

contradictory record statements as to

and that
___

she had

conflicting

and

frequency and duration

of undocumented treatment by private physicians.

Third, there
did

not meet

her

perform her former

claimant

is substantial evidence
initial burden
work.

must satisfy

burden of "putting into

of

To claim

the

initial

that the claimant

proving inability

to

disability benefits,

and relatively

minimal

issue functional loss that precludes

performance of pertinent prior work activities."

Santiago v.
________

Secretary of Health & Human Services, 944 F.2d 1, 7 (1st Cir.

____________________________________
1991).
demands

This
of

means

producing

claimant's

past

information
work,

and

describing the

showing

how

her

-5-

limitations in the insured

perform that work. Id. at 5.
___

period compromised her ability to

The

disability report

that

claimant filed

with

this

application contained only the barest description of what her

last job as a machine operator
job for two years.

positions that she had

years prior to that.

questions by

She had held

It contained no descriptions of

secretarial/office clerk
the ten

entailed.

that

the two

held during

At the hearing, in response to

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,

respects, her earlier written statement.

claimant also testified, again
prior

office

jobs

people that came

office and

file."

the ALJ why she

after the accident, the claimant

testimony along
primarily

The

paperwork

for

care of

the

could not work

only stated "I couldn't

do

The claimant's attorney elicited

no

these lines.

Thus, although

the claimant,

in response to questioning by the ALJ, did provide

some, albeit

sparse, information

former jobs, she "failed to go

former work duties
condition."

out

office and tak[ing]

Asked by

the work I used to do."

See supra p.5.

___

in minimalist terms, that her

involved "fill[ing]

into the

in some

as to

the demands

of her

on to show how her particular

were compromised

by her physical

. .

Santiago, 944 F.2d at 6.

________

It is not sufficient to assert some general,

functional disability and then leave it to the
-6-

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
______________
572 F.2d

v. Secretary of Health, Education & Welfare,

_________________________________________

886, 888

(1st

Cir. 1978).

information as to how she

her former work, so
into

her

former

of

was functionally unable to perform

that work

purposes, the ALJ could reasonably

the claimant
work

the dearth

as to put inability to resume

issue for step four

conclude that

Given

during the

retained the ability

insured

period,

to perform
and

disabled.
The judgment of the district court is affirmed.
________

was not

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