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[NOT FOR PUBLICATION]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

part

benefits

disability.

for

of

the

claimed

period

of

We affirm.
I.

Claimant

filed his

first

insurance benefits on August

to

work

since December

condition, asthma
application

application

13, 1987

and,

disability

21, 1989, alleging an inability

and headaches.

initially

for

on

on

account of

The Secretary
March

29,

a nervous
denied the
1990,

on

reconsideration.
December 18,

Claimant did

1990, claimant

not request

a hearing.

filed a second

benefits, again alleging an

On

application for

inability to work since December

13, 1987 on account of a nervous condition, asthma, headaches

and

occasional

back

pain.

The

Secretary

application initially and on reconsideration.

the

assistance of

counsel,

Administrative Law Judge.

requested a

denied

the

Claimant, with

hearing before

The hearing was held

an

on November

26, 1991.
At

the time

of

the hearing,

claimant was

years of age and had a fifth grade education.

in a cigar factory and as a gas station
testified that he sufferred
he received

fifty-five

He had worked

attendant.

Claimant

from bronchial asthma, for which

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

almost constant pain in his right arm and back, for

alleged
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

hypothetical that described

clean,

Vocational Expert ("VE")

a person who could

well-ventilated environments,

dust and gas.

The hypothetical

places of

The

person

described

with

"moderate"

limitations in his

daily activities and

capable of performing

The ALJ further described

strong odors,

high relative

limitations, moderate

work.

only work in

also noted the need to avoid

extreme temperatures and

ALJ

free of

with a

humidity.
mental

ability to perform
only non-skilled

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,
of

a non-skilled

but that he could

nature.

The

perform other jobs

ALJ asked the

VE to further

assume that the person could not push and pull with his right

-3-

(skillful)

hand,

maximum of

ten

that he

could lift

pounds), and

positions.

The VE

limitations

into

that

only light

he needed

testified that, taking

account,

there

weight (a

to

alternate

these additional

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

evaluation

referred

of

to

claimant

testified

by

Dr.

claimant

psychiatric

Rafael

could

perform

account, the
the

If claimant's own description

jobs

VE

he

had

of his condition

and symptoms as expressed at the hearing were true,

the VE testified that

Miguez

Taking Dr. Miguez' diagnosis and

claimant's limitations into

that

identified.

independent

performed

Balseiro in February, 1991.

description of

an

claimant would not be able

however,
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

periods: 1)
date

of

from the claimed onset date (12/13/87) until the

the

Secretary's

claimant's initial
from

denial

application

the date of the

claimant's

time

fifty-fifth

upon

reconsideration

for benefits

(3/29/90);

of
2)

denial of the

first application until

birthday

and

(11/21/91);

claimant's fifty-fifth birthday until December 31,

date through which claimant was insured).

3)

from

1991 (the

-4-

With respect

to the

claimant's present
same

onset

date

application)

as

first period, the

application
and
"an

ALJ interpreted

for benefits

(alleging

similar

disabilities

as

implied

request

for

was neither good cause

relevant regulations
held that

the March,

binding."

nor any other

for reopening

he

basis under the

the prior case,

considered

and

Finding that

1990 determination "remains

Therefore,

first

revision

reopening of the March 29, 1990 determination."

there

his

the

only

the ALJ
final and

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

combination of
the

he

did

not

have "an

impairments listed in, or

impairment

or

medically equal to

one listed in Appendix 1, Subpart P, Regulations No. 4."

Although unable

to perform his past

was

light, clean,

capable of

relevant work, claimant

unskilled work.

Considering

claimant's

age, education,

capacity as well as

work

experience and

his nonexertional limitations, and using

Rule 202.11

of the Medical-Vocational Guidelines,

Part

Subpt.

404,

exertional

P,

App.

2,

as

20 C.F.R.

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
claimant

that "light
to

alternate

unskilled clean
positions

when

jobs that

allow the

needed" existed

in

significant numbers in the national economy.

On
therefore

November 21,
was

classified as

relevant Social
the

1991, claimant turned

of

Security regulations.

Medical-Vocational Guidelines

concluded that after claimant

limitations, together with
"preclude[d]

"advanced

vocational

as a

fifty-five, and
age" under

Using Rule

the

202.02 of

framework, the

ALJ

reached age 55, his functional

other adverse vocational factors,

adjustment

to

other

work that

exists in

significant

numbers

in

Therefore, the ALJ found claimant

the

national

economy."

to be "disabled" under the

Social Security Act since November 21, 1991.

Following the
for review
district
1993, the

Appeals Council's

of the ALJ's
court.

In an

his request

decision, claimant appealed

opinion and order

district court affirmed

The district

denial of

court found that since

to the

dated October 13,

the Secretary's decision.

claimant never appealed

the March 29, 1990 decision denying his first application for
benefits,
effect."

"it

became a

final

decision

with res

judicata

The Secretary's determination that there was no new

and material evidence warranting a reopening of the case

not a reviewable decision. See
___
99 (1977).

was

Califano v. Sanders, 430 U.S.

________
_______

Therefore, the district court confined its review

to the period between March 29, 1990 and November 21, 1991.

-6-

The
records.

district

court accurately

summarized

the medical

It found no support for claimant's contention that

the ALJ

had failed to

his condition or
failed

to

properly consider the

that the hypothetical

accurately

reflect

seriousness of

presented to the

claimant's

VE

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
to reopen its

March 29,

reviewable by the
the

ALJ's

district court.

determination

under the Social

not

1990 decision

supported

denying benefits

He further

that claimant

Security Act before

by

substantial

Secretary's refusal

was

contends that
not "disabled"

November 21, 1991,

evidence.

is

is

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

here, a district court

the

Secretary's

earlier

constitutional

does not have jurisdiction

discretionary

adjudication." Torres
______

Human Services, 845

______________
Califano v. Sanders,
________
_______

F.2d 1136,

decision not
v.

to

present
to review

reopen

an

Secretary of Health and

_________________________

1138 (1st Cir.

430 U.S. at 107-09;

of Health and Human Services,

_____________________________
1989); Dudley v.
______

claim not

1988).

See
___

Colon v. Secretary
_____
_________

877 F.2d 148,

153 (1st

Cir.

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.

his case violates

held

He contends that the failure to reopen

due process because

on his first request

there was no

for benefits.

hearing

Claimant does not

contend that he was denied an opportunity for a hearing.

record indicates, instead, that in the
for reconsideration,

claimant was

request a hearing before

such

hearing and

an ALJ.

the decision

denial of his request

informed of his
Caimant failed
became

final.

Secretary of Health, Education and Welfare,

_____________________________________________
presented

similar

facts.

There, we

applied

right to
to request
Matos v.
_____

581 F.2d
Sanders
_______

follows:
Prior

to a

final

The

determination in

the

original

282
as

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

held that

it would

claimant's

misplaced.
be a

application

There, the

denial of due
on

res

Fourth Circuit

process to

judicata

dismiss

grounds

where

-8-

claimant's initial
"mental

illness prevented [claimant]

procedure necessary
the

claims were denied without

to obtain an

a hearing and
___

from understanding the

evidentiary hearing

denial of his prior pro se claim." Id. at 302.

___

after

There is

no support in the record for a finding that claimant's mental

impairment

rendered

procedure for

him

incapable

of

understanding

obtaining an evidentiary hearing

the

after denial

of

his

initial

constitutional
the

district

claim.

We

claim is not
court

that

colorable and

correctly

jurisdiction to review the

conclude

determined

claimant's

that, therefore,
that

it

lacked

Secretary's failure to reopen its

March 29, 1990 decision.

Claimant also argues that the Secretary's decision that
he was not disabled
1991 was
for

between March 30, 1990 and

unsupported by

November 21,

substantial evidence.

the reasons articulated by

We disagree

the district court.

We add

only the following comments.

The VE testified that "if we took into consideration the
claimant's subjective
to

perform in

indicated

and

allegations, he would not be qualified

a sustained
or

any

manner the

others

in

our

job examples
national

I have

economy."

Therefore, in determining that claimant was not disabled, the

ALJ implicitly discredited claimant's subjective allegations.
"The credibility

determination by

claimant, evaluated

his demeanor,

-9-

the ALJ who

and

observed the

considered how

that

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,

pain, including
the

time."

described his

the location and

following

"strong"

claimant

terms.

pains in

frequency of the

He testified

his back

that

and right

The pain, allegedly,

he

back

pain, in

experienced

arm "almost

all the

prevented him from pushing

pulling with his arms and from using his

type

arm and

and

legs to operate any

of machinery and rendered him "barely" able to squat or

bend.

He alleged that he

Claimant

also

testified

asthma,

requiring

nervous.

The ALJ

of pain

spent most of his

that

medication

he

suffered

that

left

time sleeping.
from

him

constant

anxious

and

credited claimant's subjective allegations

to the extent that he

limitations with his skillful

found him to have "exertional

hand to push and pull"

and to

require a job that allowed him to alternate positions.

There is
the

ALJ's

substantial evidence in the

determination

"disabled"

by his

1991,

A.M.

Dr.

that

pain or
Marxauch

claimant

other

record to support
was

not

afflictions.

completed

rendered
In August,

Residual

Physical

Functional Capacity Assessment

("physical RFC") in which

he

concluded

no

postural

or

Another physical RFC, prepared

by

that

claimant

had

manipulative limitations.
Dr.

Gilberto

Fragoso

in

May,

exertional,

1991,

reached

the

same

-10-

conclusions.

Notes from claimant's out-patient

local

health center

mental

January,

1990

medications"

that

he

indicate

was

that

"functioning

visits to a

he reported
adequately

in
with

and was keeping himself entertained by spending

his days at a home for senior citizens.

Dr.

Miguez examined

claimant

reported that claimant's posture

in

although

depressed,

reality," coherent,
intellectual

was

reported in

"well

controlled" by his medication

Based

substantial

April,

1991 that

could avoid visits

upon the

"in

good contact

above

at "a

with

regular

An examining pulmonologist, Dr. Harold

Pola,

inhaler, he

He also concluded that

relevant and functioning

level."

and

was "unremarkable" and that

"no movement disorders are observed."

claimant,

February, 1991,

claimant's asthma
and that, by

to the local

evidence, we

support in the record

was

use of an

health center.

conclude that

there is

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
should
to

that his asthma

placed on his

ability to work

have resulted in a finding that he was disabled prior

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

Marxauch, however, was less stringent, finding that

should "avoid

even moderate

exposure"

to those

by Dr.
claimant

irritants.

Dr. Pola reported that claimant complained that his asthmatic

episodes
smoke

were worsened

and cold

by

exposure to

temperature.

The

fuel, fumes,

dust,

doctor recommended

that

claimant "avoid exposure" to those substances.

At

the

hearing,

the

ALJ

presented

the

VE

with

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
the electronic and

electric products manufacturing industry:

wire cutter, stamper and wire worker.

based upon a hypothetical
supported by . . .

perform, all within

The VE's testimony was

that "correspond[s] to conclusions

medical authorities," Arocho v. Secretary

______
_________
-12-

of Health and Human Services,

_____________________________
1982).

670 F.2d 374,

Therefore, his testimony was

the Secretary's finding that

to November 21, 1991.

375 (1st

Cir.

relevant and supported

claimant was not disabled prior

Accordingly, we
affirming the

affirm

the district

court's

Secretary's denial of benefits

prior to November 21, 1991.

-13-

judgment

for the period