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[NOT FOR PUBLICATION]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
______________
Munoz,
_____

Assistant United

Assistant Regional
brief for appellee.

States

Attorney,

States Attorney,

Counsel, Social

and

Edna C. Rosario_________________

Wayne G. Lewis,
_______________

Security Administration,

on

____________________

October 24, 1997

____________________

Per Curiam.
___________

This is

an

appeal from

a district

court

judgment

Health

and

affirming

Human

Services

disability benefits.

a decision

denying

of

the

appellant's claim

The claim was filed

the alleged onset of

due to injuries

sustained in an automobile

alleged

the

expiration

of his

continuous

disability

accident, September

date of his first

6, 1967

appellant's disability

insured

from

accident shortly

status.

the

through February

application for benefits.

was initially denied

for

more than twenty-

one years after

before

Secretary of

by an Administrative Law

date

Appellant

of

the

3, 1989,

the

The application

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

evidence

remand,

after

considering

expert

medical

and testimony, and reviewing the entire record, the

ALJ1 concluded
1

not meet the

that appellant's occupational

impairment did

durational requirement of the statute.

See 42
___

____________________

1The ALJ to whom the remanded case was initially

1
passed away

after the

hearing.

second ALJ

assigned

reviewed the

hearing tape, and the entire record, before issuing a lengthy

and

detailed decision.

represented

by

Appellant, who has

counsel

throughout,

"informational motion" objecting

supplement appellant's brief and the

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has

filed

an

to this decisional sequence

for the first time on this appeal.

denied.
______

been vigorously

Construed as a motion to
issues on appeal, it is

U.S.C.

423(d)(1)(A).

Appellant had to establish the onset

of a disability before the

which

precluded

continuous

expert

all

expiration of his insured status,

substantial

period of not less

cardiologist

appellant's injuries

gainful

activity

than twelve months.

testified,

initially were

however,

that

disabling, the

for

Id.
__

An

although

average

recuperative period from the ensuing heart surgery, which was

performed

in February,

1968,

was six

months, an average patient would

sedentary work.

shorter

than

Whether

average

months.

After

six

have been able to engage in

appellant had needed

recuperative

period

a longer

could

not

or

be

determined without contemporaneous medical evaluations. There

were

no

contemporaneous

appellant did

discharged

not seek any

from the

evaluations,

however,

medical treatment

hospital, on

or about

because

after he

June

was

28, 1968,

until shortly before he filed his application, nearly twenty-

one

years

later.

application, the

condition

work.

which,

Medical

tests

at

expert opined, revealed

nonetheless,

did not

the

time

of

a lingering

preclude

the

heart

sedentary

A review

substantial

evidence to

Appellant argues that

resuming his

of the

record by

support

this court

the Secretary's

since his injuries prevented

past relevant

work, the

going forward with the evidence

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reveals

decision.

him from

regulatory burden

of

shifted to the Secretary

to

show that appellant could perform other jobs available in the

national economy.

Social

Security

absolutes."

Cir.

The rules regarding the burden of proof in

cases,

Pelletier
_________

1975) (observing

Social Security cases

the

however,

"resist translation

v. Secretary, 525 F.2d

_________

that flexibility is

into

158, 161 (1st

required because

are not strictly adversarial).

Here,

Secretary produced the best available evidence given the

twenty-one year divide between appellant's relevant

condition

it.2
2

The

inference

medical

and

the Secretary's

expert's testimony,

that arose

treatment in

Secretary of HHS, 955

first opportunity

coupled

from claimant's

the

interim,

with

failure

see
___

physical

to assess

the negative

to seek

Irlanda Ortiz
______________

any

v.

F.2d 765, 767 (1st Cir. 1991), and the

________________

more current

physical

assessments of appellant's heart

capacity,

constitutes

these circumstances, although

condition and

substantial

a different

evidence.

inference may

In

be

possible, the ALJ's choice among the competing inferences was

a reasonable one.

See Rodriguez Pagan v.

___ _______________

Secretary of HHS,
________________

____________________

2Although appellant said

2

that once, in 1968,

he inquired

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.
(1981)
estopped

See
___

Schweiker v. Hansen, 450 U.S. 785

_________
______

(affirming then prevailing rule that Secretary is not

in such circumstances

application

"essential

to

from insisting on
the

honest

and

a written
effective

administration of the Social Security laws"); cf. 20 C.F.R.

___
404.633

(1994) (requiring

detailed

proof

to

establish

retroactive, "deemed,"

filing date

based on

misinformation

allegedly provided by an employee after 1982).

-4-

819 F.2d 1, 3

(1st Cir. 1987),

(1988); Lizotte v.
_______

Cir.

1981).

There

cert. denied, 484 U.S.

____________

Secretary of HHS, 654 F.2d

________________

also was

no error

in the

1012

127, 128 (1st

finding that

appellant failed to establish a medically determinable mental

impairment prior

to the

expiration of

his insured

See Cruz Rivera v. Secretary of HHS, 818

___ ____________
_________________

Cir.

1986), cert. denied,

____________

479 U.S. 1042

F.2d 96,

status.

97 (1st

(1987); Deblois v.
_______

Secretary of HHS, 686 F.2d 76, 78 (1st Cir. 1982).

________________

Accordingly, the judgment below is affirmed.

________

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