
USCA1 Opinion

	




        March 11, 1992          [NOT FOR PUBLICATION]                                 ____________________        No. 91-2221                                JOSE A. BURGOS-SANTIAGO,                                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. Carmen Consuelo Cerezo, U.S. District Judge]                                                ___________________                                 ____________________                                        Before                               Torruella, Circuit Judge,                                          _____________                           Campbell, Senior Circuit Judge,                                     ____________________                              and Selya, Circuit Judge.                                         _____________                                 ____________________            Raymond Rivera Esteves and Juan A.  Hernandez Rivera on brief  for            ______________________     _________________________        appellant.            Daniel  F.  Lopez-Romo,   United  States  Attorney,  Jose  Vazquez            ______________________                               _____________        Garcia,  Assistant  United  States  Attorney,  and  Jessie  M.  Klyce,        ______                                              _________________        Assistant Regional  Counsel, Department of Health  and Human Services,        on brief for appellee.                                 ____________________                                 ____________________                      Per  Curiam.   Claimant,  Jose  A. Burgos-Santiago,                      ___________            appeals from the judgment of the United States District Court            for the District of Puerto Rico affirming the decision of the            Secretary of  Health and Human Services that  claimant is not            entitled to Social Security Disability benefits.                      Claimant  received  disability  benefits from  1962            until May 1982  for tuberculosis  of the spine.   Instead  of            challenging the termination, claimant filed a new application            for  disability  benefits  on  November  3,   1982,  alleging            February  1962 as an onset date.  That application was denied            initially and on reconsideration.  Because claimant failed to            appear at  the hearing,  his application  was dismissed.   No            further appeal occurred.                      Claimant filed  a  second application,  alleging  a            spinal   cord  condition,   kidney  condition   and  diabetes            mellitus;  he again claimed February  1962 as the onset date.            The application was denied initially and on  reconsideration.            After a hearing, an  Administrative Law Judge (ALJ) concluded            that  claimant was  not under  a disability  due to  the non-            severity of his conditions.  No further appeal was taken.                      Appellant   filed   the   present  application   on            September  22, 1988.    He still  alleged  an onset  date  of            February 13, 1962 with  disability due to diabetes, abscesses            of the back requiring surgeries, a disc condition, high blood            pressure and nerves.   After  a hearing, an  ALJ again  found                                         -2-            that claimant did not have a severe impairment or combination            of impairments for the  unadjudicated period December 1, 1984            to June  30, 1986 (when claimant's  insured status expired).1            The Appeals Council denied claimant's request for review.                      Despite  the  bulk  of  the  administrative record,            there is little evidence concerning the relevant time period.            Notes from the  Diagnostic and Treatment  Center in San  Juan            are largely illegible.  Nonetheless, it appears that in March            1985, claimant  had uncontrolled diabetes mellitus.   At this            time,  a diet was prescribed.  In 1985, claimant cut a finger            on his left hand.  The remainder of the notes, from September            1984  through   1986  indicate  only  that  claimant's  blood            pressure was  as high  as 190/110  and he weighed  up to  199            pounds.                      Notes  from  the Puerto  Rico Medical  Center, also            largely  illegible, reveal that  in September  1985, claimant            was seen  for an abscess on  his lower spine.   It is unclear            what was  done for  this condition at  this time.   In  March            1986, claimant underwent what appears to  have been a one-day                                            ____________________            1.  The ALJ denied claimant's  implied request to re-open the            prior   application  because  claimant  alleged  no  new  and            material  evidence  which   could  have  changed  the   prior            decision.   See 20 C.F.R.    404.957(c)(1).   The decision in                        ___            the prior application  thus became  final and  binding.   The            period through November 30, 1984, therefore, is res judicata.                                                            ___ ________            See Torres  v. Secretary  of Health and  Human Services,  845            ___ ______     ________________________________________            F.2d 1136, 1138 (1st Cir. 1988).                                           -3-            surgical  procedure  for a  sebaceous  cyst  also located  on            claimant's spine.                      Claimant was  treated at a  Veterans Administration            hospital  primarily  in  1988.   However,  in  January  1986,            claimant was seen  for back pain.  The legible portion of the            medical   report    indicates   that   the    diagnosis   was            musculoskeletal  pain  and  myositis  (muscle  inflammation).            Medication and weight reduction were prescribed.                      Although this case is  not entirely free from doubt            because it involves a  step 2 determination, we  believe that            the record contains substantial evidence to support the ALJ's            conclusion that claimant did not  carry his burden of showing            that his impairments limited his functioning in a manner that            would interfere with work-related  activities.  See Gonzalez-                                                            ___ _________            Ayala v.  Secretary of Health  and Human  Services, 807  F.2d            _____     ________________________________________            255, 256 (1st  Cir. 1986) (per curiam).  First, it seems that            claimant's  diabetes  is  controlled  with  insulin  and  the            abscesses  on claimant's  back  appear to  have responded  to            treatment.   Second, there is no evidence of a disc condition            during  the  insured  status  period save  the  diagnosis  of            myositis and claimant's subjective complaints.  There also is            an  absence of  any  records concerning  a mental  impairment            until the year 1988.   Finally, as for claimant's  high blood            pressure, there is no indication in the medical evidence that                                         -4-            the physicians treating claimant believed that this condition            restricted him in any way.                      The judgment of the district court is affirmed.                                                            ________                                         -5-
