Santa-Rios v. Secretary of Health and Human Services

1991 | Cited 0 times | First Circuit | December 30, 1991

Per Curiam. Claimant seeks review of the Secretary's denial of disability benefits. The disputed issues are (1) when did claimant's mental impairment (a) impose significant limitations and (b) reach a disabling level and (2) when did insured status expire. We review the background.

I

Claimant was born in 1954 and is grammar school educated. He has worked on and off in various capacities such as security guard, gas attendant, TV repair, and lawn maintenance. He claimed on his application that he had been unable to work since June 1984 due to nervousness.

The ALJ agreed and determined that claimant had been totally disabled since June 30, 1984 due to paranoid schizophrenia and personality disorder. The Appeals Council, on its own motion, reviewed the ALJ decision. It concluded that the record did not document the severity of claimant's condition on or before September 30, 1984, the date the Appeals Council said claimant was last insured. The Appeals Council then gave claimant twenty days in which to submit additional evidence or comment. Claimant, although represented by an attorney (Miguel A. Rivera), did not respond. A month and a half later, the Appeals Council issued a decision concluding that claimant had not established any severe impairment prior to September 30, 1984, the last date of insured status.

Claimant, represented by a new attorney (Carlos Sotomayor Rodriguez), filed a motion for reconsideration and submitted new evidence, including a November 1987 psychiatric evaluation and an appointment card listing medical visits from December 1986 to September 1987. No challenge to September 30, 1984 as the last date of insured status was made. The Appeals Council denied the motion for reconsideration because the 1986 and 1987 evidence did not shed any light on claimant's condition in 1984. Thus, the final agency decision of which claimant seeks review is that claimant had no severe impairment prior to the expiration of insured status.

II

To qualify for disability benefits, a claimant must establish that his condition is totally disabling prior to the expiration of his insured status. Evangelista v. Secretary of Health and Human Services, 826 F.2d 136, 138 (1st Cir. 1987); Deblois v. Secretary, 686 F.2d 76 (1st Cir. 1982). Below, claimant did not challenge the agency's determination that insured status expired on September 30, 1984. He now argues that we should consider new evidence and determine that insured status extended through the middle of 1986. He also contends, however, that the Appeals Council's decision that he had no severe impairment prior to September 30, 1984 is not supported by substantial evidence. We will start with the latter argument -- that the agency decision is not supported by substantial evidence on the existing record -- before turning to claimant's argument that he should be allowed to present new evidence.

A

The medical evidence concerning claimant's condition prior to September 30, 1984 was extremely sparse. Two very cryptic reports were presented, one from Dr. Silva-Monge and the other from Dr. Mas. Both doctors are general practitioners. Dr. Silva-Monge saw claimant in August 1983, at which time claimant complained of abdominal pain over the past month and vomiting. Claimant reported that he had taken "[illegible] and improved," but now he was "weak [and] nervous." Dr. Silva made no diagnosis. Claimant did not see Dr. Silva again until April 1985 (seven months after the September 30, 1984 expiration date), when claimant again complained of stomach problems and nervousness. Dr. Silva diagnosed anxiety reaction and prescribed tranxene (for anxiety) and Halcion (for insomnia). The next month, although claimant was "feeling better of his nerves," he was referred to a mental health center.

Dr. Silva's report, showing an August 1983 complaint of stomach ache and nervousness followed by no further entries until over six months after the September 30, 1984 expiration date, is inadequate to establish any severe impairment. It suggests at most a transitory problem imposing no significant long-term functional limitation. To be sure, Dr. Silva's report was not the only evidence, but, as we will explain, the additional shreds did not compel a finding of a severe impairment.

The only other medical report describing claimant's condition prior to September 30, 1984 was a "psychiatric questionnaire" filled out by Dr. Mas in October 1985. He stated that he had first seen claimant in November 1978 at which time claimant complained of nervousness, difficulty breathing, and loss of appetite. Thereafter, Dr. Mas saw claimant twice in 1979, three times in 1982 (April 6, April 20, June 7), once in 1983 (several days before claimant's August 1983 visit to Dr. Silva), and then not again until October 1985. In response to the question when had claimant's condition first imposed limitations, Dr. Mas replied April 1982, as claimant had complained of nervousness, insomnia, and visual disturbances. Noting the fourteen month hiatus between the last 1982 visit and the one 1983 visit, Dr. Mas did not know whether the absence of visits was due to remission, and he did not describe claimant's condition at the 1983 visit.

Thus, again, the picture is one of rather minimal complaints, few findings, and widely-spaced visits suggestive of transient problems, rather than any significant enduring condition. Claimant contends he was totally disabled as of June 1984, but there are no documented doctor's visits for a twenty-month period surrounding that date, the latest prior visit having been August 1983 and the next one, April 1985.

Not until July 1985 did claimant start visiting a mental health clinic, but even then only two visits are recorded (July and August). In September 1985, the Secretary's consulting physician, who saw claimant but once, said claimant's signs and symptoms were compatible with paranoid schizophrenia disorder. No further regular treatment is documented until the end of 1986 when, according to an appointment card, claimant began going to Fajardo Mental Health Center. It may be that the 1985 and subsequent medical evidence demonstrate a significant mental impairment, but the medical evidence fails to show that any significant condition existed prior to the September 30, 1984 expiration date.

Nor was the Secretary required to find that the gaps in the medical reports were filled through the testimony of claimant and his brother. Claimant testified generally that he had experienced nervousness and aggressiveness since childhood and could no longer work because of it. When pressed further, claimant vaguely suggested that because of his aggressiveness he was unable to get along with people and consequently was fired from his jobs. His supervisor at his last job (lawn maintenance at a hotel) had been his brother, but they had quarrelled (as they had on and off since childhood) and the boss had required that claimant be discharged. And, claimant's security job had also ended in termination after claimant had attacked another guard, who had insulted claimant's wife, claimant testified.

Claimant apparently attributes the acts of aggression to a mental illness which he claims existed prior to September 30, 1984 and rendered him unable to perform his normal jobs. Regardless whether the inferences claimant suggests were permissible ones, they certainly were not the only permissible ones requiring the Secretary to adopt them. For example, despite claimant's claim of inability to get along with people, he was employed for significant periods of time. According to forms he completed, claimant worked from 1972 to 1975 as a gas attendant, and from 1980 to 1982 as a security guard. These long stretches of employment belie claimant's claim of inability to control his emotions and actions. While claimant contends that his mental condition worsened in 1984, the long interval of no documented visits to doctors undermines that contention.1

In sum, we conclude that if the Secretary's September 30, 1984 date of last insured status is accepted, then the Secretary's decision that no severe mental impairment existed prior to that date is adequately supported.

B

Although claimant did not challenge the September 30, 1984 expiration of insured status date at any time during the agency proceedings, he wishes to do so now. He claims that the correct date of last insured status is June 30, 1986. In support, he points to forms in the administrative record he filled out in which he said that he had been employed for five months in 1983 at $150 per week and six months in 1984 at $212 per week. His testimony and that of his brother also referred to the 1983 and 1984 employment. Yet, the Secretary did not credit him with any "quarters of coverage" for those years. If his earnings for those years were as claimed, then, petitioner contends, his insured status would be extended to June 30, 1986, a date well after the Secretary's consulting doctor said claimant's signs and symptoms were compatible with schizophrenia.

Relatively early on in the administrative proceedings, the discrepancy between claimant's employment as described in the forms he filled out and that documented on his official earnings record (which recorded no sufficient earnings to accrue any quarters of coverage after 1982) was noted by the agency. A January 23, 1986 entry in the administrative record by an agency employee stated that the matter was not being pursued as claimant had not submitted any proof of his 1983 earnings. Thereafter, each of the four decisionmakers in the four level agency review process recited September 30, 1984 as the last date of insured status. Claimant, although represented by two separate attorneys and advised by the January 23, 1986 entry that he had failed adequately to document his 1983 and 1984 employment, failed to challenge the expiration date or seek to have his earnings record corrected to reflect additional quarters of coverage. Now, represented by different counsel, claimant tenders, for the first time, documentation of the 1983 and 1984 employment. The "documentation" consists of form wage stubs bearing claimant's name -- but no employer's name -- for 17 weeks during the period May 2, 1984 through September 1984 and a pay slip for 1983. The Secretary objects to this late challenge and questions the authenticity and reliability of the generic forms.

The general rule is that an issue not developed before the administrative agency is waived. Blackstone Valley Nat. Bank v. Board of Governors, 537 F.2d 1146, 1148 n.* (1st Cir. 1976). The present dispute over quarters of coverage and last date of insured status is precisely the type of issue which should not be resolved by a court in the first instance, for the rules governing these calculations, see 20 C.F.R. §§ 404.130 et seq, are not simple and the type of proof adequate to document employment is obviously a matter of concern to the agency which must administer these rules.

To the extent claimant is contending that the ALJ or Appeals Council on its own should have done more to determine claimant's employment status in 1983 and 1984 and the possibility of further quarters of coverage, we disagree. The issue had been delineated by the January 23, 1986 entry, yet two separate counsel failed to pursue it. We have said that an ALJ has a duty to develop the record, see, e.g., Carillo Marin v. Secretary, 758 F.2d 14, 17 (1st Cir. 1985); Deblois v. Secretary, 686 F.2d 76, 80 (1st Cir. 1982), but we do not think the duty extends to leading counsel by the hand on an issue which has been identified, but which counsel has not chosen to pursue.

To the extent claimant is arguing that we should remand under 42 U.S.C. § 405(g) for the taking of further evidence, we similarly disagree. Section 405(g) provides in material part as follows:

The court . . . may at any time order additional evidence to be taken before the Secretary, but only upon a showing that there is new evidence which is material and that there is good cause for the failure to incorporate such evidence into the record in a prior proceeding.

In addition to the questionable nature of the tendered evidence, we simply see no good cause for claimant's failure to present it earlier. Claimant attempts to invoke his mental condition as an excuse, but claimant, who lives with his family and was represented by counsel during the administrative proceedings, has not explained why the wage slips he recently supplied to present counsel could not have been supplied to earlier counsel. We have concluded before that remands for good cause were intended to be sparingly granted. Evangelista v. Secretary, 826 F.2d 136, 141 (1st Cir. 1987). That new counsel has thought of a new argument which could have been -- but was not -- developed earlier and has tendered some evidence of dubious quality in support of it does not amount to good cause for remand.

Affirmed; motion to remand denied.

Disposition

Affirmed; motion to remand denied.

1. To be sure, claimant did say that after he stopped working, he went to a dispensary, whose records have since been destroyed by fire. He failed to say when or how often he went to the dispensary or what was done for him there. These are details which claimant or his family should have supplied.

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