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    Rivera v. SHHS, 89 F.3d 823, 1st Cir. (1996)

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    The court upheld the denial of benefits, finding that while the claimant suffered from severe medical conditions, the medical evidence did not support a finding that these conditions prevented her from performing light work during the relevant time period from August 1991 through December 1993. In particular, the court found that the ALJ properly weighed the conflicting medical evidence and did not err in declining to give controlling weight to the opinion of the claimant's treating physician.

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    Rivera v. SHHS, 89 F.3d 823, 1st Cir. (1996)

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    The court upheld the denial of benefits, finding that while the claimant suffered from severe medical conditions, the medical evidence did not support a finding that these conditions prevented her from performing light work during the relevant time period from August 1991 through December 1993. In particular, the court found that the ALJ properly weighed the conflicting medical evidence and did not err in declining to give controlling weight to the opinion of the claimant's treating physician.

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    Filed: 1996-07-05 Precedential Status: Non-Precedential Citations: 89 F.3d 823 Docket: 95-2185

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    The court upheld the denial of benefits, finding that while the claimant suffered from severe medical conditions, the medical evidence did not support a finding that these conditions prevented her from performing light work during the relevant time period from August 1991 through December 1993. In particular, the court found that the ALJ properly weighed the conflicting medical evidence and did not err in declining to give controlling weight to the opinion of the claimant's treating physician.

    Copyright:

    Public Domain
    Download as PDF or read online from Scribd
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    18 views4 pages

    Rivera v. SHHS, 89 F.3d 823, 1st Cir. (1996)

    Uploaded by

    Scribd Government Docs
    The court upheld the denial of benefits, finding that while the claimant suffered from severe medical conditions, the medical evidence did not support a finding that these conditions prevented her from performing light work during the relevant time period from August 1991 through December 1993. In particular, the court found that the ALJ properly weighed the conflicting medical evidence and did not err in declining to give controlling weight to the opinion of the claimant's treating physician.

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    89 F.

    3d 823

    NOTICE: First Circuit Local Rule 36.2(b)6 states unpublished


    opinions may be cited only in related cases.
    Carmen H. RIVERA, Plaintiff, Appellant,
    v.
    SECRETARY OF HEALTH AND HUMAN SERVICES,
    Defendant, Appellee.
    No. 95-2185.

    United States Court of Appeals, First Circuit.


    July 5, 1996.

    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.
    Before Before TORRUELLA, Chief Judge, CYR and STAHL, Circuit
    Judges.
    PER CURIAM.

    Claimant Carmen Rivera filed an 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 denied claimant's request for review and the district court
    affirmed this decision.
    3

    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 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.
    7

    The two non-examining physicians who completed residual functional capacity


    (RFC) assessments in 1993 agreed that claimant retained the weight-lifting
    capacity consistent 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 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 workrelated activities in which claimant could engage, the record is more than
    adequate to support the Secretary's decision. See id.

    10

    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.
    11

    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.

    12

    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.

    13

    The ALJ's decision essentially incorporates the assessments of the nonexamining 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).

    14

    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 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.

    15

    For the foregoing reasons, the judgment of the district court is affirmed.

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