
USCA1 Opinion

	




                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                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.             ______                                         -2-            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                                         -3-            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.                                                         ________                                         -5-
