Perez v. Secretary of Health, Education and Welfare, 79-1208

• Decision Date: 16 May 1980
• Docket Number: No. 79-1208,79-1208
• Citation: 622 F.2d 1
• Parties: Oscar PEREZ, Plaintiff, Appellant, v. SECRETARY OF HEALTH, EDUCATION AND WELFARE, Defendant, Appellee.
• Court: U.S. Court of Appeals — First Circuit

Page 1

622 F.2d 1

Oscar PEREZ, Plaintiff, Appellant, v. SECRETARY OF HEALTH, EDUCATION AND WELFARE, Defendant, Appellee.

No. 79-1208.

United States Court of Appeals First Circuit.

Submitted Feb. 7, 1980.

Decided May 16, 1980.

Luis M. Chaves Ghigliotty, Arecibo, P. R., on brief, for plaintiff, appellant.

Jose A. Quiles, U. S. Atty., San Juan, P. R., William Kanter, Atty., Dept. of Justice, Frank V. Smith, III, Acting Atty. and Barry J. Reiber, Asst. Regional Atty., Dept. of Health, Ed. and Welfare, Washington, D. C., on brief, for defendant, appellee.

Before COFFIN, Chief Judge, CAMPBELL and BOWNES, Circuit Judges.

COFFIN, Chief Judge.

After working for many years as a plumber and then as a construction supervisor, Oscar Perez applied for Social Security disability benefits in 1977, at age 47. An administrative law judge (ALJ) agreed that Perez's back, hernia, and possible heart conditions prevented him from returning to his former employment, but nevertheless found that Perez was able to perform certain light and sedentary jobs enumerated by a vocational expert. Adopting the ALJ's decision, the Secretary of Health, Education and Welfare denied benefits. The question on appeal is whether the Secretary's decision was supported by substantial evidence. 42 U.S.C. § 405(g).

Perez attacks the Secretary's decision primarily on the ground that it was "based exclusively on the evaluation of one non-treating physician designated by the Secretary, who examined (him) only once, to the disregard of overwhelming medical and clinical evidence of various treating physicians." It is true that several doctors who treated Perez at the Veterans Administration Hospital and the Dr. Susoni Hospital diagnosed angina, a back ailment that affected his right leg, ¹ and an inguinal hernia, and prescribed exercises, a corset, and medication including nitroglycerin and pain killers. ² Furthermore, the two doctors from Dr. Susoni Hospital opined that Perez could not work. Nevertheless, we think it was within the Secretary's province to accord greater weight to the report received from Dr. Melvyn Acosta Ruiz, an internist designated by the Secretary. See Richardson v. Perales, 402 U.S. 389, 399, 91 S.Ct. 1420, 1426, 38 L.Ed.2d 842 (1971).

First of all, Dr. Acosta's findings were substantiated. His finding that there was "(n)o clinical evidence of classical angina pectoris or heart failure" was made on the basis of a physical examination and an electrocardiogram; he also noted the results of a Master's test taken at the Veterans Administration Hospital. His comment that Perez's hernia was correctible by surgery apparently followed from his judgment that Perez had no serious heart condition that would preclude surgery. ³ His conclusion that, even with chronic paravertebral lumbar fibromyositis, Perez had a full although painful range of motion in his back, was premised on the results of a physical examination during which he noted no muscle spasm, swelling, tenderness, or deformity of the back, and no atrophy, swelling, tenderness, or deformity of the extremities, and on x-ray results showing only mild osteoarthritis of the lumbar spine. Second, unlike the conclusory statements of disability made by the two Dr. Susoni Hospital doctors, Dr. Acosta's evaluation of Perez's residual functional capacity was detailed and accompanied by specific clinical and laboratory findings. See 20 C.F.R. § 404.1526 (1979). Although Dr. Acosta's evaluation strikes us as a bit sanguine, considering his acknowledgement that Perez's back condition is painful, we cannot say that the evaluation was baseless and that the Secretary was obliged to disregard it. Finally, Dr. Acosta's opinion is consistent with some of the other evidence of record, e. g., electrocardiograms that were taken at the Veterans Hospital and appear to have been read there as "within normal limits," and observations by agency interviewers that Perez appeared to be in no distress although he looked older than his years. ⁴

In short, while there was medical evidence and testimony from Perez and his daughter (a nurse) upon which a finding of disability could have been premised, we do not agree with Perez that the evidence supporting his claim was "overwhelming" and virtually compelled a finding of disability. In other words, we think that Dr. Acosta's report and other information of record amounted to substantial evidence, i. e., "such relevant evidence as a reasonable mind might accept to support a conclusion," that he was not disabled. Richardson v. Perales, supra, at 401, quoting from Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 216, 83 L.Ed. 126 (1938). This case strikes us as different from others, cited by Perez, in which a single doctor's report in conflict with considerable other evidence was found insufficient to sustain the denial of benefits. Hayes v. Gardner, 376 F.2d 517, 520-21 (4th Cir. 1967) (report by doctor who had never examined claimant); Miracle v. Celebrezze, 351 F.2d 361, 372-73 (6th Cir. 1965) (report by doctor...