Cruz Gonzalez v. SHHS

Opinion

USCA1 Opinion

May 12, 1994          [NOT FOR PUBLICATION]

                            UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT
                                 ___________________

No. 93-2297

FELIX CRUZ-GONZALEZ,

                                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. Jose Antonio Fuste, U.S. District Judge]
                                              ___________________

___________________

                                        Before

                                 Breyer, Chief Judge,
                                         ___________
                          Selya and Boudin, Circuit Judges.
                                            ______________

                                 ___________________

               Paul Ramos Morales, on brief for appellant.
               __________________
               Guillermo Gil, United States Attorney, Maria Hortensia Rios,
               _____________                          ____________________
          Assistant  United States  Attorney, and  Amy S.  Knopf, Assistant
                                                   _____________
          Regional  Counsel, Department  of Health  and Human  Services, on
          brief for appellee.

__________________

                                  __________________

Per   Curiam.      Claimant,  Felix  Cruz-Gonzalez,
                      ____________

            appeals from a district court opinion affirming a decision by

            the Secretary of Health  and Human Services (the "Secretary")

            denying  benefits   for  part   of  the  claimed   period  of

            disability.  We affirm.

                                          I.

                 Claimant  filed his  first  application  for  disability

            insurance benefits on August  21, 1989, alleging an inability

            to  work  since December  13, 1987  on  account of  a nervous

            condition, asthma  and headaches.   The Secretary  denied the

            application  initially   and,   on   March   29,   1990,   on

            reconsideration.   Claimant did  not request  a hearing.   On

            December 18,  1990, claimant  filed a second  application for

            benefits, again alleging an  inability to work since December

            13, 1987 on account of a nervous condition, asthma, headaches

            and  occasional   back  pain.    The   Secretary  denied  the

            application initially and on reconsideration.  Claimant, with

            the  assistance of  counsel,  requested a  hearing before  an

            Administrative Law Judge.   The hearing was held  on November

            26, 1991.

                 At  the time  of  the hearing,  claimant was  fifty-five

            years of age and had a fifth grade education.   He had worked

            in a cigar factory and as a gas station  attendant.  Claimant

            testified that he sufferred  from bronchial asthma, for which

            he received  respiratory therapy.  He  further testified that

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he  had a  nervous condition  which caused  him to  cry every

            night and for which he took medication and received treatment

            at  the Mental  Health  Center in  Cayey.   Claimant  alleged

            almost constant pain in his right arm and back, for  which he

            took  aspirin.  Claimant testified that he could only sit for

            fifteen to twenty minutes at a time because of his back pain.

            He further stated that  he could not  push and pull with  his

            arms, could not use his legs to operate any type of machinery

            and could  "barely" squat or bend.  Claimant reportedly spent

            most of his time sleeping or watching television.

                 The ALJ  presented the  Vocational Expert ("VE")  with a

            hypothetical that described  a person who could  only work in

            clean,  well-ventilated environments,  free of  strong odors,

            dust and gas.  The hypothetical  also noted the need to avoid

            extreme temperatures and  places of  high relative  humidity.

            The  ALJ   described   a  person   with   "moderate"   mental

            limitations, moderate  limitations in his  ability to perform

            daily activities and  capable of performing  only non-skilled

            work.   The ALJ further described  this hypothetical person's

            deficiency in concentrating as "quite frequent."

                 The VE testified that this hypothetical person could not

            perform the work that claimant had performed in the past as a

            gas station attendant,  but that he could  perform other jobs

            of  a non-skilled  nature.  The  ALJ asked the  VE to further

            assume that the person could not push and pull with his right

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(skillful)  hand,  that he  could lift  only light  weight (a

            maximum of  ten  pounds), and  that  he needed  to  alternate

            positions.   The VE  testified that, taking  these additional

            limitations  into  account,  there  were jobs  in  the  local

            economy that a person with the hypothesized limitations could

            perform.  Examples were wire cutter, stamper and wire worker.

                 The   ALJ   referred  to   an   independent  psychiatric

            evaluation  of  claimant  performed  by   Dr.  Rafael  Miguez

            Balseiro in February, 1991.  Taking Dr. Miguez' diagnosis and

            description of  claimant's limitations into  account, the  VE

            testified  that  claimant  could  perform  the  jobs  he  had

            identified.   If claimant's own description  of his condition

            and symptoms as expressed at the hearing were true,  however,

            the VE testified that  claimant would not be able  to perform

            the identified jobs or any others in the national economy.

                 On December 17,  1991, the ALJ  issued a decision  which

            divided claimant's disability claim into three distinct  time

            periods: 1)  from the claimed onset date (12/13/87) until the

            date  of  the  Secretary's  denial  upon  reconsideration  of

            claimant's initial  application  for benefits  (3/29/90);  2)

            from  the date of the  denial of the  first application until

            claimant's  fifty-fifth  birthday  (11/21/91);  and  3)  from

            claimant's fifty-fifth birthday until December 31,  1991 (the

            date through which claimant was insured).

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With respect  to the  first period, the  ALJ interpreted

            claimant's present  application  for benefits  (alleging  the

            same  onset  date  and  similar  disabilities  as  his  first

            application)  as  "an   implied  request  for   revision  and

            reopening of the March 29, 1990 determination."  Finding that

            there  was neither good cause  nor any other  basis under the

            relevant regulations  for reopening  the prior case,  the ALJ

            held that  the March,  1990 determination "remains  final and

            binding."     Therefore,  he   considered  only  evidence  of

            claimant's condition in the period after March 29, 1990.  

                 Focusing  on  the  period  after March,  1990,  the  ALJ

            determined that claimant had a combination of lung and mental

            conditions,  but that  he  did  not  have "an  impairment  or

            combination of  impairments listed in, or  medically equal to

            the  one listed in Appendix 1, Subpart P, Regulations No. 4."

            Although unable  to perform his past  relevant work, claimant

            was  capable of  light, clean,  unskilled work.   Considering

            claimant's  age, education,  work  experience and  exertional

            capacity as well as  his nonexertional limitations, and using

            Rule 202.11  of the Medical-Vocational Guidelines,  20 C.F.R.

            Part   404,  Subpt.   P,   App.  2,   as   a  framework   for

            decisionmaking, the ALJ found that "claimant was not disabled

            under the  Social Security Act  prior to November  21, 1991."

            Although the ALJ found claimant to be incapable of performing

            the  full  range  of light  work,  he  relied  upon the  VE's

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testimony  that "light  unskilled clean  jobs that  allow the

            claimant  to  alternate  positions  when  needed" existed  in

            significant numbers in the national economy.  

                 On  November 21,  1991, claimant turned  fifty-five, and

            therefore  was  classified as  of  "advanced  age" under  the

            relevant Social  Security regulations.  Using Rule  202.02 of

            the  Medical-Vocational Guidelines  as a  framework, the  ALJ

            concluded that after claimant  reached age 55, his functional

            limitations, together with  other adverse vocational factors,

            "preclude[d]  a  vocational  adjustment  to  other  work that

            exists in  significant  numbers  in  the  national  economy."

            Therefore, the ALJ found claimant  to be "disabled" under the

            Social Security Act since November 21, 1991.

                 Following the  Appeals Council's  denial of  his request

            for review  of the ALJ's  decision, claimant appealed  to the

            district  court.  In an  opinion and order  dated October 13,

            1993, the  district court affirmed  the Secretary's decision.

            The district  court found that since  claimant never appealed

            the March 29, 1990 decision denying his first application for

            benefits,  "it  became a  final  decision  with res  judicata

            effect."  The Secretary's determination that there was no new

            and material evidence warranting a reopening of the case  was

            not a reviewable decision. See  Califano v. Sanders, 430 U.S.
                                       ___  ________    _______

            99 (1977).  Therefore, the district court confined its review

            to the period between March 29, 1990 and November 21, 1991.

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The  district  court accurately  summarized  the medical

            records.   It found no support for claimant's contention that

            the ALJ  had failed to  properly consider the  seriousness of

            his condition or  that the hypothetical  presented to the  VE

            failed   to   accurately   reflect  claimant's   impairments.

            Therefore, the district court affirmed the Secretary's denial

            of benefits for the period before November 21, 1991.

                                         II.

                 On appeal, claimant argues that the  Secretary's refusal

            to reopen its  March 29,  1990 decision  denying benefits  is

            reviewable by the  district court.  He further  contends that

            the  ALJ's  determination  that claimant  was  not "disabled"

            under the Social  Security Act before  November 21, 1991,  is

            not   supported  by  substantial   evidence.    Specifically,

            claimant contends that the ALJ did not give sufficient weight

            to his subjective allegations  and to the limitations imposed

            by claimant's environmental intolerances.

                 "Absent  a colorable  constitutional  claim not  present

            here, 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).   See
            ______________                                            ___

            Califano v. Sanders,  430 U.S. at 107-09;  Colon v. Secretary
            ________    _______                        _____    _________

            of Health and  Human Services,  877 F.2d 148,  153 (1st  Cir.
            _____________________________

            1989); Dudley v.  Secretary of Health and Human Services, 816
                   ______     ______________________________________

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F.2d  792,  795 (1st  Cir. 1987);  Dvareckas v.  Secretary of
                                               _________     ____________

            Health and Human Services, 804 F.2d 770, 771 (1st Cir. 1986);
            _________________________

            Matos v.  Secretary of  Health and  Human Services,  581 F.2d
            _____     ________________________________________

            282, 286 (1st Cir. 1978).

                 Claimant's attempt to present a colorable constitutional

            claim  is unavailing.  He contends that the failure to reopen

            his case violates  due process because  there was no  hearing

            held  on his first request  for benefits.   Claimant does not

            contend that he was denied an opportunity for a hearing.  The

            record indicates, instead, that in the  denial of his request

            for reconsideration,  claimant was  informed of his  right to

            request a hearing before  an ALJ.  Caimant failed  to request

            such  a  hearing and  the decision  became  final.   Matos v.
                                                                 _____

            Secretary  of Health,  Education  and Welfare,  581 F.2d  282
            _____________________________________________

            presented  similar  facts.    There, we  applied  Sanders  as
                                                              _______

            follows:

                 Prior  to a  final  determination in  the  original
                 claim, appellant  could have secured a  hearing and
                 judicial   review,  if  she  had  pursued  all  her
                 remedies.    The holding  in  Sanders  provides, in
                                               _______
                 essence, that  a claimant is not  given a guarantee
                 of  a second hearing and court  review if he waives
                 the first opportunity.

            Matos, 581 F.2d at 285.
            _____

                 Claimant's reliance upon Shrader v. Harris, 631 F.2d 297
                                          _______    ______

            (4th Cir.  1980), is  misplaced.   There, the  Fourth Circuit

            held that  it would  be a  denial of due  process to  dismiss

            claimant's   application  on   res  judicata   grounds  where

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claimant's initial  claims were denied without  a hearing and
                                                                      ___

            "mental  illness prevented [claimant]  from understanding the

            procedure necessary  to obtain an  evidentiary hearing  after

            the  denial of his prior pro se claim." Id. at 302.  There is
                                                    ___

            no support in the record for a finding that claimant's mental

            impairment  rendered  him   incapable  of  understanding  the

            procedure for  obtaining an evidentiary hearing  after denial

            of  his   initial  claim.     We  conclude   that  claimant's

            constitutional  claim is not  colorable and  that, therefore,

            the  district  court  correctly  determined  that  it  lacked

            jurisdiction to review the  Secretary's failure to reopen its

            March 29, 1990 decision.

                  Claimant also argues that the Secretary's decision that

            he was not disabled  between March 30, 1990 and  November 21,

            1991 was  unsupported by  substantial evidence.   We disagree

            for  the reasons articulated by  the district court.   We add

            only the following comments.

                 The VE testified that "if we took into consideration the

            claimant's subjective  allegations, he would not be qualified

            to  perform in  a sustained  manner the  job examples  I have

            indicated  and  or  any  others  in  our  national  economy."

            Therefore, in determining that claimant was not disabled, the

            ALJ implicitly discredited claimant's subjective allegations.

            "The credibility  determination by  the ALJ who  observed the

            claimant, evaluated  his demeanor,  and  considered how  that

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testimony fit in with the rest of the evidence is entitled to

            deference,.  . ." Frustaglia v. Secretary of Health and Human
                              __________    _____________________________

            Services, 829 F.2d 192, 195 (1st Cir. 1987). 
            ________

                 At  his hearing,  claimant  described his  arm and  back

            pain, including  the location and  frequency of the  pain, in

            the  following  terms.    He testified  that  he  experienced

            "strong"  pains in  his back  and right  arm "almost  all the

            time."  The pain, allegedly,  prevented him from pushing  and

            pulling with his arms and from using his  legs to operate any

            type  of machinery and rendered him "barely" able to squat or

            bend.   He alleged that he  spent most of his  time sleeping.

            Claimant  also  testified  that  he  suffered  from  constant

            asthma,  requiring  medication  that  left  him  anxious  and

            nervous.  The ALJ  credited claimant's subjective allegations

            of pain  to the extent that he  found him to have "exertional

            limitations with his skillful  hand to push and pull"  and to

            require a job that allowed him to alternate positions. 

                 There is  substantial evidence in the  record to support

            the  ALJ's  determination  that  claimant  was  not  rendered

            "disabled"  by his  pain or  other  afflictions.   In August,

            1991,  Dr.  A.M.  Marxauch   completed  a  Residual  Physical

            Functional Capacity Assessment  ("physical RFC") in which  he

            concluded  that  claimant  had  no  exertional,  postural  or

            manipulative limitations.  Another physical RFC, prepared  by

            Dr.  Gilberto   Fragoso  in  May,  1991,   reached  the  same

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conclusions.   Notes from claimant's out-patient  visits to a

            local  mental  health center  indicate  that  he reported  in

            January,  1990  that  he  was  "functioning  adequately  with

            medications"  and was keeping himself entertained by spending

            his days at a home for senior citizens. 

                 Dr.  Miguez examined  claimant  in  February, 1991,  and

            reported that claimant's posture  was "unremarkable" and that

            "no movement disorders are observed."  He also concluded that

            claimant,  although  depressed,  was  "in  good contact  with

            reality," coherent,  relevant and functioning  at "a  regular

            intellectual  level."  An examining pulmonologist, Dr. Harold

            Pola,  reported in  April,  1991 that  claimant's asthma  was

            "well  controlled" by his medication  and that, by  use of an

            inhaler, he  could avoid visits  to the local  health center.

            Based  upon the  above  evidence, we  conclude that  there is

            substantial  support in the record  for the ALJ's decision to

            discredit claimant's subjective allegations of  the disabling

            extent of his medical conditions.

                 Claimant  argues  on   appeal  that  the   environmental

            restrictions  that his asthma  placed on his  ability to work

            should  have resulted in a finding that he was disabled prior

            to  November 21,  1991.  Claimant  relies upon  the following

            comment in Social Security Ruling No. 85-15:

                 Where an individual can tolerate very little noise,
                 dust, etc., the impact on the ability to work would
                 be considerable because  very few job  environments

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are  entirely  free of  irritants,  pollutants, and
                 other potentially damaging conditions.

The  physical  RFC prepared  by  Dr.  Fragoso concluded  that

            claimant should "avoid all exposure [to] fumes, odors, dusts,

            gases  poor  ventilation, etc."    The RFC  completed  by Dr.

            Marxauch, however, was less stringent, finding that  claimant

            should "avoid  even moderate  exposure"  to those  irritants.

            Dr. Pola reported that claimant complained that his asthmatic

            episodes  were worsened  by  exposure to  fuel, fumes,  dust,

            smoke  and cold  temperature.   The  doctor recommended  that

            claimant "avoid exposure" to those substances.

                 At  the  hearing,  the  ALJ  presented  the  VE  with  a

            hypothetical  that  included   the  following   environmental

            restrictions:

                 this  person can only work at places where there is
                 a  clean environment, free  of strong  odors, dust,
                 gas and in places  where ventilation is adequate, .
                 . . should avoid  extreme temperatures, cold or hot
                 and  in  addition  the person  should  avoid  humid
                 places  and places  where the relative  humidity is
                 high.

            Considering these and  other non-environmental  restrictions,

            the VE testified that there were at least three jobs existing

            in the local economy that claimant could  perform, all within

            the electronic and  electric products manufacturing industry:

            wire cutter, stamper and wire worker.  The VE's testimony was

            based upon a hypothetical  that "correspond[s] to conclusions

            supported by . . .  medical authorities," Arocho v. Secretary
                                                      ______    _________

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of Health and  Human Services,  670 F.2d 374,  375 (1st  Cir.
            _____________________________

            1982).   Therefore, his testimony was  relevant and supported

            the Secretary's finding that  claimant was not disabled prior

            to November 21, 1991.

                 Accordingly, we  affirm  the district  court's  judgment

            affirming the  Secretary's denial of benefits  for the period

            prior to November 21, 1991. 

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