
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          May 12, 1994          [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                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                                         -2-            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                                         -3-            (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).                                         -4-                 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                                         -5-            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.                                         -6-                 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                   ______     ______________________________________                                         -7-            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                                         -8-            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                                         -9-            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                                         -10-            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                                         -11-                 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                                                      ______    _________                                         -12-            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.                                          -13-
