May 12, 1994 [NOT FOR PUBLICATION]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-