
USCA1 Opinion

	




          January 23, 1995                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 94-1887                              LOURDES CHAULIZANT NIEVES,                                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. Raymond L. Acosta, U.S. District Judge]                                             ___________________                                 ____________________                                        Before                                Torruella, Chief Judge,                                           ___________                          Boudin and Stahl, Circuit Judges.                                            ______________                                 ____________________            Fabio  A. Roman  Garcia  and  Cordero, Gonzalez,  Roman,  Souto  &            _______________________       ____________________________________        Rodriguez on brief for appellant.        _________            Guillermo Gil,  United  States  Attorney,  Maria  Hortensia  Rios,            _____________                              ______________________        Assistant  United  States Attorney,  and  Robert  J. Triba,  Assistant                                                  ________________        Regional Counsel, Department  of Health and  Human Services, on  brief        for appellee.                                 ____________________                                 ____________________                 Per Curiam.  Appellant Lourdes Chaulizant Nieves appeals                 __________            the order  of  the  United  States  District  Court  for  the            District of  Puerto Rico affirming the  Secretary's denial of            appellant's application  for disability  benefits.   We  have            reviewed  carefully the record in this case and the briefs of            the parties.    Essentially  for  the reasons  given  by  the            administrative law judge [ALJ] in his decision dated November            20,  1991,  and by  the magistrate  judge  in his  report and            recommendation dated  May 17,  1994, we find  the Secretary's            decision to be  supported by  substantial evidence.   We  add            only the following.                 The  only issue  raised by  appellant to  the magistrate            judge's report,  and hence the only  issue properly preserved            for appeal, Keating v. Secretary  of Health & Human Services,                        _______    _____________________________________            848 F.2d 271, 274-75  (1st Cir. 1988), is that  the Secretary            failed  to develop  fully  the facts  related to  appellant's            claim of mental retardation and  therefore that a remand  was            appropriate.   See 42  U.S.C.   405(g).   This court  has not                           ___            hesitated to insist that  the Secretary bear a responsibility            for adequate development of  the record in appropriate cases.            See,  e.g.,  Evangelista  v.  Secretary  of  Health  &  Human            ___   ___    ___________      _______________________________            Services, 826 F.2d 136, 142 (1st Cir. 1987).            ________                 Among the  factors which  this court has  found increase            the  Secretary's responsibility  to  develop the  record  are            appellant's  being  unrepresented  at  the  hearing  and  the            presentation of a claim which "itself seems on its face to be            substantial."  See Currier  v. Secretary of Health, Education                           ___ _______     ______________________________            & Welfare, 612 F.2d 594, 598  (1st Cir. 1980).  In this case,            _________            appellant was  represented by  counsel at the  hearing before            the ALJ.   Moreover, appellant presented  no medical evidence            of a mental impairment nor did she  or her counsel ever claim            that a mental impairment had prevented her from being able to            work.  Finally, neither  appellant nor counsel ever requested            the ALJ to schedule a consultative examination on appellant's            mental condition.  In  these circumstances, the Secretary was            under no obligation sua sponte to develop the record.                                ___ ______                 Affirmed.                 ________                                         -3-
