

                    [NOT FOR PUBLICATION]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-

