Rivera v. SHHS ( 1996 )


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  • USCA1 Opinion








    July 5, 1996
    [NOT FOR PUBLICATION]

    UNITED STATES COURT OF APPEALS
    FOR THE FIRST CIRCUIT
    ____________________


    No. 95-2185

    CARMEN H. RIVERA,

    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

    Torruella, Chief Judge, ___________
    Cyr and Stahl, Circuit Judges. ______________

    ____________________

    Paul Ramos Morales on brief for appellant. __________________
    Guillermo Gil, United States Attorney, Rosa E. Rodriguez-Velez, ______________ ________________________
    Acting Chief Civil Division, and Robert M. Peckrill, Assistant ____________________
    Regional Counsel, Social Security Administration, on brief for
    appellee.


    ____________________


    ____________________


















    Per Curiam. Claimant Carmen Rivera filed an ___________

    application for Social Security disability benefits on March

    28, 1991, alleging an onset date of November 28, 1988. The

    application was denied on August 8, 1991 and claimant did not

    seek reconsideration. Instead, she filed a new application

    on January 21, 1993, alleging the same onset date and listing

    as impairments a herniated disc and nerves. Claimant's

    insured status expired on December 31, 1993. An

    administrative law judge (ALJ) held a hearing in October 1993

    at which claimant and a vocational expert (VE) testified.

    The ALJ first determined not to reopen claimant's

    initial application with the result that he did not consider

    evidence from the time period prior to August 8, 1991. The

    ALJ then decided that claimant suffered from severe

    uncontrolled arterial hypertension, a small herniated disc,

    costochondritis, and an affective disorder. These

    conditions, the ALJ opined, prevented her from performing her

    past work as a meat packager, a job requiring medium

    exertion. Further, the ALJ stated that claimant was

    prohibited from performing complex or detailed tasks and

    engaging in work in which she could not change position.

    Using the grid as a framework and the testimony of the VE,

    the ALJ nonetheless concluded that there were other, light-

    duty jobs which claimant could perform. The Appeals Council





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    denied claimant's request for review and the district court

    affirmed this decision.



    Claimant argues on appeal that the ALJ's decision

    not to reopen her first application for disability benefits

    is reviewable. "Absent a colorable constitutional claim . .

    . a district court does not have jurisdiction to review the

    Secretary's discretionary decision not to reopen an earlier

    adjudication." Torres v. Secretary of Health and Human ______ ________________________________

    Services, 845 F.2d 1136, 1138 (1st Cir. 1988) (per curiam) ________

    (citing cases). To come within this exception, claimant

    asserts that the determination not to reopen violated her due

    process rights because the ALJ never had held a hearing on

    her first request for benefits. However, claimant does not

    assert that she was denied the opportunity for a hearing and

    it does not appear that she requested one. We have held, in

    similar circumstances, that such a claim is not colorable.

    See Matos v. Secretary of HEW, 581 F.2d 282, 284-86 (1st Cir. ___ _____ ________________

    1978). Thus, we consider, as did the ALJ, only the evidence

    for the period after August 8, 1991 through December 31,

    1993.

    1. Back Condition. Although claimant received ______________

    treatment for her back at the State Insurance Fund during

    1988 and 1989, there are no records of any treatment for the

    period 1990 through 1993. The other evidence for the



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    relevant time -- consultative examinations, two RFC

    assessments, and a report from claimant's treating physician

    -- is conflicting.

    For example, Dr. Roberto Leon Perez, an internist

    and rheumatologist, performed a consultative examination in

    July 1991. He reported that claimant could walk on her toes,

    but that her flexion/extension was somewhat limited (70

    degrees). An x-ray showed (1) narrowing of the L4-L5

    intervertebral space, (2) narrowing of the L5-S1

    intervertebral space associated with posterior spondylosis

    (fusion of a vertebral joint), (3) facet joint degenerative

    disease at L5-S1, and (4) reversal of normal lordosis. The

    diagnosis was herniated disc by history.

    The other consultative examination was performed in

    March 1993 by Dr. Phillip Bonneaux. At this time, claimant

    had normal muscle tone and strength. Her gait also was

    normal and she had full range of motion of her back. There

    were moderate spasms of the paravertebral muscles. An x-ray

    showed slight scoliosis and minimal spondylosis. The

    diagnosis was moderate paravertebral muscle spasm. Dr.

    Bonneaux concluded that claimant could sit, stand, walk, lift

    and carry without limitation.

    The two non-examining physicians who completed

    residual functional capacity (RFC) assessments in 1993 agreed

    that claimant retained the weight-lifting capacity consistent



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    with light work. They also agreed that claimant could sit,

    stand and walk for up to six hours each per day. She could

    occasionally climb, stoop, crouch and crawl, and could

    frequently kneel.

    Although claimant's treating physician, Dr.

    Francisco Sanchez, gave a significantly more restrictive view

    of claimant's RFC, the ALJ was not required to credit it.

    See 20 C.F.R. 404.1527(d)(2) (if a treating physician's ___

    opinion is inconsistent with the other substantial evidence

    in the record, controlling weight need not be given to that

    opinion). Thus, the medical findings outlined above

    sufficiently support the ALJ's conclusion that claimant could

    perform light work. See Rodriguez v. Secretary of Health and ___ _________ _______________________

    Human Services, 647 F.2d 218, 222 (1st Cir. 1981) (conflicts ______________

    are for the Secretary to resolve).

    2. High Blood Pressure. There are only two pieces ___________________

    of evidence relating to claimant's high blood pressure for

    the relevant period. First, claimant's treating physician,

    Dr. Sanchez, reported that he began seeing claimant in 1985

    for high blood pressure. During the course of treatment,

    claimant experienced dizzy spells and chest pain. Dr.

    Sanchez opined that claimant's prognosis was guarded.

    However, he did not specify any limits on the activities in

    which claimant could engage. Second, Dr. Bonneaux, in a

    chest pain questionnaire, stated that the origin of



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    claimant's chest pain was musculoskeletal. Although he

    opined that claimant's blood pressure should be controlled,

    he also did not list any limitations on the kinds of

    activities in which she could engage. Given the complete

    dearth of evidence that this condition limited the kinds of

    work-related activities in which claimant could engage, the

    record is more than adequate to support the Secretary's

    decision. See id. ___ ___

    3. Emotional Condition. As with claimant's back ___________________

    condition, the evidence concerning the effect of claimant's

    mental impairment is conflicting. Dr. Luis Toro, a

    psychiatrist, conducted three evaluations of claimant's

    mental status. In the first two reports, Dr. Toro described

    claimant as being in contact with reality, with appropriate

    affect. She was oriented and coherent, but her capacities

    for attention, concentration, and retention were somewhat

    diminished. Her memory was good and she exhibited good

    insight. Dr. Toro noted that claimant could handle funds and

    engage in normal interpersonal relationships. At the final

    examination, claimant appeared slightly depressed, but was

    spontaneous, logical, and oriented. Her concentration,

    attention, retention and memory were normal. Dr. Toro

    diagnosed a mild dysthymic disorder and stated that

    claimant's prognosis was fair.





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    A non-examining doctor, in 1993, found claimant's

    condition severe and diagnosed an affective disorder. As for

    work-related activities, the only areas in which claimant was

    rated as moderately limited were in dealing with detailed

    instructions and accepting instruction from others. Claimant

    was not significantly limited in all other areas.

    In contrast to the above, claimant's treating

    physician opined that claimant had marked restrictions in the

    activities of daily living and was seriously impaired in

    relating to others. Dr. Sanchez also noted that claimant had

    hallucinations, autistic or regressive behavior, and suicidal

    ideation. He rated claimant as severely impaired in almost

    all areas relating to work. Dr. Sanchez concluded that

    claimant could not work.

    The ALJ's decision essentially incorporates the

    assessments of the non-examining physician and Dr. Toro.

    Given the conflict between these assessments and the report

    of Dr. Sanchez, the ALJ did not err in not giving controlling

    weight to the latter's opinion. See Rodriguez Pagan v. ___ ________________

    Secretary of Health and Human Services, 819 F.2d 1, 3 (1st ________________________________________

    Cir. 1987) (per curiam), cert. denied, 484 U.S. 1012 (1988). ____________

    4. Pain. Claimant alleges that the ALJ did not ____

    properly credit her allegations of totally disabling pain.

    See Avery v. Secretary of Health and Human Services, 797 F.2d ___ _____ ______________________________________

    19 (1st Cir. 1986). Even assuming that the record from



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    August 1991 through 1993 provided objective medical evidence

    of a back impairment that reasonably could be expected to

    cause pain, the dearth of evidence relating to sensory,

    motor, or strength deficits conflicts with the level of pain

    claimant asserts. Further, claimant told one examiner that

    she performed household chores and claimant generally

    reported a fairly active social life. Because the ALJ

    correctly considered the Avery factors, his decision _____

    regarding claimant's pain is supported by substantial

    evidence.

    For the foregoing reasons, the judgment of the

    district court is affirmed. ________





























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