Bermudez v. SHHS ( 1997 )

[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 96-2318
NICANOR BERMUDEZ,
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
Torruella, Chief Judge,
Stahl and Lynch, Circuit Judges.
Juan Jose Rosario on brief for appellant.
Guillermo Gil, United States Attorney, Edna C. Rosario-
Munoz, Assistant United States Attorney, and Wayne G. Lewis,
Assistant Regional Counsel, Social Security Administration, on
brief for appellee.
October 24, 1997
Per Curiam. This is an appeal from a district
court judgment affirming a decision of the Secretary of
Health and Human Services denying appellant's claim for
disability benefits. The claim was filed more than twenty-
one years after the alleged onset of appellant's disability
due to injuries sustained in an automobile accident shortly
before the expiration of his insured status. Appellant
alleged a continuous disability from the date of the
accident, September 6, 1967 through February 3, 1989, the
date of his first application for benefits. The application
was initially denied by an Administrative Law Judge ("ALJ")
whose decision was affirmed by the Appeals Council. The case
was remanded to the Secretary by the district court, however,
with instructions to secure an expert cardiologist's
assessment of the extent and duration of appellant's injuries
and functional limitations.
On remand, after considering expert medical
evidence and testimony, and reviewing the entire record, the
ALJ1 concluded that appellant's occupational impairment did
1
not meet the durational requirement of the statute. See 42
1The ALJ to whom the remanded case was initially assigned
1
passed away after the hearing. A second ALJ reviewed the
hearing tape, and the entire record, before issuing a lengthy
and detailed decision. Appellant, who has been vigorously
represented by counsel throughout, has filed an
"informational motion" objecting to this decisional sequence
for the first time on this appeal. Construed as a motion to
supplement appellant's brief and the issues on appeal, it is
denied.
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U.S.C. 423(d)(1)(A). Appellant had to establish the onset
of a disability before the expiration of his insured status,
which precluded all substantial gainful activity for a
continuous period of not less than twelve months. Id. An
expert cardiologist testified, however, that although
appellant's injuries initially were disabling, the average
recuperative period from the ensuing heart surgery, which was
performed in February, 1968, was six months. After six
months, an average patient would have been able to engage in
sedentary work. Whether appellant had needed a longer or
shorter than average recuperative period could not be
determined without contemporaneous medical evaluations. There
were no contemporaneous evaluations, however, because
appellant did not seek any medical treatment after he was
discharged from the hospital, on or about June 28, 1968,
until shortly before he filed his application, nearly twenty-
one years later. Medical tests at the time of the
application, the expert opined, revealed a lingering heart
condition which, nonetheless, did not preclude sedentary
work.
A review of the record by this court reveals
substantial evidence to support the Secretary's decision.
Appellant argues that since his injuries prevented him from
resuming his past relevant work, the regulatory burden of
going forward with the evidence shifted to the Secretary to
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show that appellant could perform other jobs available in the
national economy. The rules regarding the burden of proof in
Social Security cases, however, "resist translation into
absolutes." Pelletier v. Secretary, 525 F.2d 158, 161 (1st
Cir. 1975) (observing that flexibility is required because
Social Security cases are not strictly adversarial). Here,
the Secretary produced the best available evidence given the
twenty-one year divide between appellant's relevant physical
condition and the Secretary's first opportunity to assess
it.2 The expert's testimony, coupled with the negative
2
inference that arose from claimant's failure to seek any
medical treatment in the interim, see Irlanda Ortiz v.
Secretary of HHS, 955 F.2d 765, 767 (1st Cir. 1991), and the
more current assessments of appellant's heart condition and
physical capacity, constitutes substantial evidence. In
these circumstances, although a different inference may be
possible, the ALJ's choice among the competing inferences was
a reasonable one. See Rodriguez Pagan v. Secretary of HHS,
2Although appellant said that once, in 1968, he inquired
2
about applying for Social Security benefits and was dissuaded
by an unidentified employee, this one inquiry, if it occurred
at all, would not have alerted the Secretary to the existence
of appellant's claim. See Schweiker v. Hansen, 450 U.S. 785
(1981) (affirming then prevailing rule that Secretary is not
estopped in such circumstances from insisting on a written
application "essential to the honest and effective
administration of the Social Security laws"); cf. 20 C.F.R.
404.633 (1994) (requiring detailed proof to establish a
retroactive, "deemed," filing date based on misinformation
allegedly provided by an employee after 1982).
-4-
819 F.2d 1, 3 (1st Cir. 1987), cert. denied, 484 U.S. 1012
(1988); Lizotte v. Secretary of HHS, 654 F.2d 127, 128 (1st
Cir. 1981). There also was no error in the finding that
appellant failed to establish a medically determinable mental
impairment prior to the expiration of his insured status.
See Cruz Rivera v. Secretary of HHS, 818 F.2d 96, 97 (1st
Cir. 1986), cert. denied, 479 U.S. 1042 (1987); Deblois v.
Secretary of HHS, 686 F.2d 76, 78 (1st Cir. 1982).
Accordingly, the judgment below is affirmed.
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