USCA1 Opinion
July 5, 1996
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 95-2185
CARMEN H. RIVERA,
Plaintiff, Appellant,
v.
SECRETARY OF HEALTH AND HUMAN SERVICES,
Defendant, Appellee.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Carmen Consuelo Cerezo, U.S. District Judge]
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Before
Torruella, Chief Judge,
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Cyr and Stahl, Circuit Judges.
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Paul Ramos Morales on brief for appellant.
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Guillermo Gil, United States Attorney, Rosa E. Rodriguez-Velez,
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Acting Chief Civil Division, and Robert M. Peckrill, Assistant
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Regional Counsel, Social Security Administration, on brief for
appellee.
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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
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Services, 845 F.2d 1136, 1138 (1st Cir. 1988) (per curiam)
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(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.
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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
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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
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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
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Human Services, 647 F.2d 218, 222 (1st Cir. 1981) (conflicts
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are for the Secretary to resolve).
2. High Blood Pressure. There are only two pieces
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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.
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3. Emotional Condition. As with claimant's back
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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.
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Secretary of Health and Human Services, 819 F.2d 1, 3 (1st
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Cir. 1987) (per curiam), cert. denied, 484 U.S. 1012 (1988).
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4. Pain. Claimant alleges that the ALJ did not
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properly credit her allegations of totally disabling pain.
See Avery v. Secretary of Health and Human Services, 797 F.2d
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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
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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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