Burgos-Santiago v. Sec. of HHS ( 1992 )

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        March 11, 1992          [NOT FOR PUBLICATION]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,
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                           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



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            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).  

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            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





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            the physicians treating claimant believed that this condition

            restricted him in any way.

                      The judgment of the district court is affirmed.
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