Martinez Nater v. Secretary of Health and Human Services, 90-2043

• Decision Date: 15 May 1991
• Docket Number: No. 90-2043,90-2043
• Citation: 933 F.2d 76
• Parties: , Unempl.Ins.Rep. CCH 16042A Josefina MARTINEZ NATER, Plaintiff, Appellant, v. SECRETARY OF HEALTH AND HUMAN SERVICES, Defendant, Appellee.
• Court: U.S. Court of Appeals — First Circuit

Page 76

933 F.2d 76

33 Soc.Sec.Rep.Ser. 403, Unempl.Ins.Rep. CCH 16042A

Josefina MARTINEZ NATER, Plaintiff, Appellant, v. SECRETARY OF HEALTH AND HUMAN SERVICES, Defendant, Appellee.

No. 90-2043.

United States Court of Appeals, First Circuit.

Submitted Jan. 25, 1991.

Decided May 15, 1991.

Raymond Rivera Esteves and Juan A. Hernandez Rivera on brief for plaintiff, appellant.

Daniel F. Lopez Romo, U.S. Atty., Hato Rey, P.R., Jose Vazquez Garcia, Asst. U.S. Atty., and Paul Germanotta, Asst. Regional Counsel, Dept. of Health and Human Services, on brief for defendant, appellee.

Before TORRUELLA, SELYA and CYR, Circuit Judges.

PER CURIAM.

The appellant, Josefina Martinez Nater, applied for and was granted Social Security disability benefits in 1984. Mrs. Martinez continued to receive benefits until July 1987, when the Secretary of Health and Human Services (the "Secretary") notified her that her disability had ended and that payments would cease come September. Mrs. Martinez challenged this determination administratively, and in January and March 1989 appeared at hearings conducted by an Administrative Law Judge (ALJ). After hearing testimony from Mrs. Martinez, a medical advisor and a vocational expert, the ALJ determined that Mrs. Martinez' disability had indeed ended in July 1987, and that she was no longer entitled to benefits. The district court affirmed the ALJ's decision, and this appeal followed.

I

At the time of her termination hearing Mrs. Martinez was 49 years old. She had a high school education. Before she became disabled, she had worked as a supervisor in a hotel room-service department. The Secretary had declared her disabled in 1984 because at the time she suffered from asthma that was serious enough to "meet or equal" the severity of the listing for asthma contained in Part 404, Subpart P, Appendix 1, Section 3.03 of the Secretary's regulations.

Mrs. Martinez had been hospitalized several times in 1984 for treatment of her asthma. The doctors who examined and cared for her described a significant respiratory problem. Dr. Luina, her treating pneumologist, for example, reported in August and September 1984 that Mrs. Martinez' lungs displayed the presence of sibilances, rhonchi and chronic wheezes, all indications of a serious asthmatic condition. Similarly, Dr. Leon, a pneumologist who examined Mrs. Martinez in September 1984, reported that she suffered from asthma attacks on an almost-daily basis, and was living in a "continuous state of dyspnea [shortness of breath], with marked cough, chest wheezes, and chest tightness on minimal effort," and Dr. Pagan, who also examined Mrs. Martinez in September 1984, found wheezing, rhonchi and rales in both lungs.

Mrs. Martinez continued to suffer through 1985 and 1986, requiring hospitalization at least five times during those two years. Between July 1987 and her hearing in 1989 she was hospitalized only twice, in August 1987 for asthma and in January 1989 for successful treatment of a bout of pneumonia. Dr. Luina, however, reported in 1988 that Mrs. Martinez still suffered from asthma attacks on an almost-daily basis, with wheezes and rhonchi between attacks.

Other doctors who examined Mrs. Martinez during 1987 and 1988 painted a somewhat less gloomy clinical picture. Dr. Pou, a consulting physician who examined Mrs. Martinez in June 1987, related her complaints of daily asthma attacks, but observed that while she had a dry cough she displayed no shortness of breath, and no rales, wheezes or rhonchi. Dr. Sole Massana, who examined Mrs. Martinez in March 1988, found a dry cough but no shortness of breath (and concluded that she could "perform minimal exertion in allergen-free environments"), and Dr. Blanco Ramos reported in January 1988 that Mrs. Martinez suffered asthma attacks on only a monthly basis.

II

The Secretary's regulations prescribe, and the ALJ here executed, a sequential analysis for cases involving the termination of disability benefits. 20 C.F.R. Sec. 404.1594. Our analysis focuses on the second step: whether the claimant has an impairment, or combination of impairments, that "meets or equals" the severity of an impairment listed in Part 404, Subpart P, Appendix 1 of the Secretary's regulations. 20 C.F.R. Sec. 404.1594(f)(2).

An impairment "meets" the listings only when it "manifests the specific findings described in the set of medical criteria" for a particular listed impairment. Social Security Ruling (SSR) 83-19, West's Social Security Reporting Service (Rulings Supp.Pamph.1988) 90, 91-92. An impairment "equals" a listed impairment when the set of symptoms, signs and laboratory findings in the medical evidence supporting the claimant "are at least equivalent in severity to the set of medical findings for the listed impairment." Id. at 92. Such equivalency may occur where the claimant suffers from an impairment for which a listing exists and, while "one or more of the specified medical findings is missing from the evidence[,] ... other medical findings of equal or greater clinical significance and relating to the same impairment are present in the medical evidence." Id. ¹

The relevant listing in this case is contained in Section 3.03 of Appendix I. Under it, a person suffering from asthma is disabled if she "meets or equals" either of two criteria. First, the claimant is disabled if the results of her ventilatory function studies show a forced expiratory volume (FEV) of 1.1 liter or less, and a maximum voluntary ventilation (MVV) of 44 liters/minute or less. ² Section 3.03 A. Clinical tests of Mrs. Martinez' respiratory capacity in mid-1987 showed that she had an FEV of 1.64 liters, and an MVV of 68.5 liters/minute--below normal but above the regulatory ceiling.

A claimant also "meets" the listing for asthma if (1) in spite of prescribed treatment, she suffers "severe attacks" at least once every two months, or on average six times a year, and (2) she has episodes of "prolonged expiration with wheezing or rhonchi on physical examination between attacks." Section 3.03 B. "Severe attacks," in this context, are defined as "prolonged episodes lasting at least several hours, requiring intensive treatment such as intravenous drug administration or inhalation therapy in a hospital or emergency room." Section 3.00 C.

The ALJ noted that Mrs. Martinez had been hospitalized during the relevant period (July 1987-March 1989) only twice, in August 1987 and January 1989, and so "did not require this type of treatment"--that is, intensive treatment such as intravenous drug administration or inhalation therapy in a hospital or emergency room--with the frequency required by the listings. The ALJ thus found that Mrs. Martinez did not "meet" the listing for asthma.

The evidence portrays a more complicated scene. Mrs. Martinez may have been hospitalized only twice between July 1987 and March 1989, but she visited her pneumologist's office for something like the sort of treatment described in ...