Rivera v. SHHS

Opinion

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                                [NOT FOR PUBLICATION]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
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            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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