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[NOT FOR PUBLICATION]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
______________
Acting

Chief

Regional
appellee.

Civil

Counsel,

States Attorney, Rosa E. Rodriguez-Vel

______________________

Division,
Social

and

Security

Robert M. Peckrill,
____________________
Administration,

on

Assist
brief

____________________

____________________

Per Curiam.
___________

Claimant

Carmen

Rivera

filed

an

application for Social Security disability benefits

28, 1991, alleging

an onset date of November 28,

on March

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

insured

status

a herniated

expired

disc

on

and

nerves.

December

31,

Claimant's

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

initial application with the result

evidence from the time period

ALJ

then

decided

uncontrolled arterial

that

reopen claimant's

that he did not consider

prior to August 8, 1991.

claimant

suffered

hypertension, a small

from

The

severe

herniated disc,

costochondritis,

and

an

affective

disorder.

These

conditions, the ALJ opined, prevented her from performing her

past

work

exertion.

Using the

the ALJ

meat

Further,

prohibited

engaging

as

packager,

the

from performing

in work

in which

ALJ

job

stated

complex

grid as a framework

that

or

she could

was

detailed tasks

and

and the testimony of

duty jobs which claimant could perform.

medium

claimant

not change

nonetheless concluded that there

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requiring

position.

the VE,

were other, light-

The

Appeals Council

denied claimant's

request for review and

the district court

affirmed this decision.

Claimant argues on

not to

appeal that the

reopen her first application

is reviewable.

ALJ's decision

for disability benefits

"Absent a colorable constitutional claim

. a district court

does not have jurisdiction to

Secretary's discretionary decision

. .

review the

not to reopen an

earlier

adjudication."

Torres v.
______

Services, 845 F.2d

________

(citing

cases).

Secretary of Health and Human

________________________________

1136, 1138 (1st

To

come within

Cir. 1988) (per

this exception,

curiam)

claimant

asserts that the determination not to reopen violated her due

process

rights because the ALJ

her first request

assert

never had held

for benefits.

However,

a hearing on

claimant does not

that she was denied the opportunity for a hearing and

it does not appear that she requested one.

similar circumstances,

that such

We

a claim is

have held, in

not colorable.

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

1978).

for

1993.

Thus, we

the period

consider, as did the ALJ, only the evidence

after August

8,

1991 through

December 31,

1.

Back Condition.
______________

treatment for

1988 and

period

her back

Although

at the

claimant received

State Insurance

Fund during

1989, there are no records of any treatment for the

1990

through 1993.

The

other

evidence

for

the

two

RFC

-3-

relevant

time

--

consultative

examinations,

assessments, and a report from claimant's

treating physician

-- is conflicting.

For example, Dr.

and

rheumatologist, performed a

July 1991.

but

Roberto Leon Perez,

that

degrees).

consultative examination in

He reported that claimant could walk on her toes,

her

An

intervertebral

intervertebral

(fusion of

an internist

flexion/extension was

x-ray

showed

space,

(2)

space

(1)

limited

narrowing of

the

narrowing

associated with

a vertebral joint), (3)

disease at L5-S1, and

somewhat

of

the

(70

L4-L5

L5-S1

posterior spondylosis

facet joint degenerative

(4) reversal of normal lordosis.

The

diagnosis was herniated disc by history.

The other consultative examination was performed in

March 1993 by Dr.

had

normal

Phillip Bonneaux.

muscle tone

normal and she had full

were moderate

showed

slight

diagnosis

was

At this

and strength.

time, claimant

Her gait

range of motion of her back.

spasms of the paravertebral muscles.

scoliosis

moderate

also was

and

minimal

There

An x-ray

spondylosis.

paravertebral muscle

spasm.

The

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

stand and walk for

occasionally

up to six hours each per

climb,

stoop,

crouch

and

day.

crawl,

could sit,

She could

and

could

frequently kneel.

Although

claimant's

treating

physician,

Dr.

Francisco Sanchez, gave a significantly more restrictive view

of claimant's RFC,

See

20 C.F.R.

the ALJ

was not required

404.1527(d)(2)

(if a

to credit

it.

treating physician's

___

opinion

is inconsistent with

in the record, controlling

opinion).

Thus,

the

the other substantial evidence

weight need not be given

medical

findings

outlined

to that

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.

of evidence

High Blood Pressure.

___________________

relating to

the relevant period.

There are only two pieces

claimant's high blood

First, claimant's

pressure for

treating physician,

Dr. Sanchez, reported that

he began seeing claimant

for high

During the

blood pressure.

course of

in 1985

treatment,

claimant

Sanchez

experienced

opined

that

However, he did not

which

chest

claimant could

pain

dizzy

spells

claimant's

and chest

prognosis

pain.

was

specify any limits on the

engage.

questionnaire,

Second,

stated

-5-

guarded.

activities in

Dr. Bonneaux,

that

the

Dr.

origin

in a

of

claimant's

opined

he

chest

pain

was

that claimant's blood

also did

activities

not

list

in which

dearth of evidence

any

is

decision.

limitations

on

the

kinds

of

the complete

that this condition limited

the kinds of

in which claimant could

adequate

to

support the

engage, the

Secretary's

See id.
___ ___

condition, the

Emotional Condition.
___________________

As

with claimant's back

evidence concerning the

effect of claimant's

impairment

psychiatrist,

mental

he

Given

more than

3.

mental

Although

pressure should be controlled,

she could engage.

work-related activities

record

musculoskeletal.

status.

is

conducted

conflicting.

three

Dr.

evaluations

Luis

of

Toro,

claimant's

In the first two reports, Dr. Toro described

claimant as

affect.

for

being in contact with

She was oriented

attention,

diminished.

insight.

engage in

and coherent, but

concentration, and

Her

reality, with appropriate

memory was

good

her capacities

retention

and she

were somewhat

exhibited

good

Dr. Toro noted that claimant could handle funds and

normal interpersonal relationships.

examination,

claimant appeared

spontaneous,

logical,

attention,

retention

diagnosed

mild

and

and

slightly depressed,

oriented.

memory

dysthymic

claimant's prognosis was fair.

-6-

At the final

Her

concentration,

were normal.

disorder

and

but was

Dr.

Toro

stated

that

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

relating to others.

living

and was

seriously impaired

in

Dr. Sanchez also noted that claimant had

hallucinations, autistic or regressive behavior, and suicidal

ideation.

all

areas

He

rated claimant as severely

relating to

work.

Dr.

impaired in almost

Sanchez

concluded that

claimant could not work.

The

assessments of

Given the

ALJ's

the

decision

essentially incorporates

non-examining physician

conflict between these assessments

and

Dr.

the

Toro.

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.

properly

Pain.
____

Claimant

alleges that the

credit her allegations

of totally

ALJ did not

disabling pain.

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

___ _____
______________________________________

19

(1st

Cir. 1986).

Even

assuming

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that the

record from

August 1991 through 1993 provided

of a

cause

back impairment

pain,

objective medical evidence

that reasonably could

the dearth

of

evidence

be expected

relating to

sensory,

motor, or strength deficits conflicts with the level of

claimant asserts.

she

performed

Further, claimant told

household

reported a

fairly

correctly

considered

regarding

active

claimant's

chores

and

Avery
_____

pain

is

pain

one examiner that

claimant

social life.

the

to

generally

Because

factors,

supported

his

by

the

ALJ

decision

substantial

evidence.

For

the

foregoing reasons,

district court is affirmed.

________

the

judgment of

the

-8-