January 23, 1995
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 94-1887
LOURDES CHAULIZANT NIEVES,
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. Raymond L. Acosta, U.S. District Judge]
Before
Torruella, Chief Judge,
Boudin and Stahl, Circuit Judges.
Fabio A. Roman Garcia and Cordero, Gonzalez, Roman, Souto &
Rodriguez on brief for appellant.
Guillermo Gil, United States Attorney, Maria Hortensia Rios,
Assistant United States Attorney, and Robert J. Triba, Assistant
Regional Counsel, Department of Health and Human Services, on brief
for appellee.
Per Curiam. Appellant Lourdes Chaulizant Nieves appeals
the order of the United States District Court for the
District of Puerto Rico affirming the Secretary's denial of
appellant's application for disability benefits. We have
reviewed carefully the record in this case and the briefs of
the parties. Essentially for the reasons given by the
administrative law judge [ALJ] in his decision dated November
20, 1991, and by the magistrate judge in his report and
recommendation dated May 17, 1994, we find the Secretary's
decision to be supported by substantial evidence. We add
only the following.
The only issue raised by appellant to the magistrate
judge's report, and hence the only issue properly preserved
for appeal, Keating v. Secretary of Health & Human Services,
848 F.2d 271, 274-75 (1st Cir. 1988), is that the Secretary
failed to develop fully the facts related to appellant's
claim of mental retardation and therefore that a remand was
appropriate. See 42 U.S.C. 405(g). This court has not
hesitated to insist that the Secretary bear a responsibility
for adequate development of the record in appropriate cases.
See, e.g., Evangelista v. Secretary of Health & Human
Services, 826 F.2d 136, 142 (1st Cir. 1987).
Among the factors which this court has found increase
the Secretary's responsibility to develop the record are
appellant's being unrepresented at the hearing and the
presentation of a claim which "itself seems on its face to be
substantial." See Currier v. Secretary of Health, Education
& Welfare, 612 F.2d 594, 598 (1st Cir. 1980). In this case,
appellant was represented by counsel at the hearing before
the ALJ. Moreover, appellant presented no medical evidence
of a mental impairment nor did she or her counsel ever claim
that a mental impairment had prevented her from being able to
work. Finally, neither appellant nor counsel ever requested
the ALJ to schedule a consultative examination on appellant's
mental condition. In these circumstances, the Secretary was
under no obligation sua sponte to develop the record.
Affirmed.
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