Delgado v. SHHS
Opinion
USCA1 Opinion
December 28, 1994 [NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 94-1609
JAIME DELGADO,
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 C. Cerezo, U.S. District Judge] ___________________
____________________
Before
Cyr, Circuit Judge, _____________
Bownes, Senior Circuit Judge, and ____________________
Stahl, Circuit Judge. _____________
____________________
Fabio A. Roman Garcia on brief for appellant. _____________________
Guillermo Gil, United States Attorney, Maria Hortensia Rios, _____________ ______________________
Assistant United States Attorney, and Robert M. Peckrill, Assistant ___________________
Regional Counsel, Department of Health & Human Services, on brief for
appellee.
____________________
____________________
Per Curiam. Plaintiff-appellant Jamie Delgado appeals __________
from a district court judgment affirming the decision of the
Secretary of Health and Human Services denying his
application for disability insurance benefits. For the
reasons that follow, we vacate the judgment below and remand
the case.
I.
Delgado was born on June 13, 1944. He completed
approximately three years of school, but cannot read or
write. For approximately twenty-five years, Delgado worked
at La Estrella bakery, gradually progressing to the jobs of
baker and confectioner. In 1986, he stopped working when the
owner of the bakery died and the bakery shut down.
Thereafter, he worked for a few weeks at another bakery, but
was dismissed because his "[right] foot got swollen, and [he]
missed work . . . " He has not worked since then, and he
alleges a disability onset date of December 30, 1986.
Delgado was insured through December 31, 1991.
On September 21, 1989, Delgado filed an application for
benefits alleging that he is disabled due to a right leg
injury. In a subsequently filed disability report, Delgado
alleged that after breaking his ankle on February 2, 1984, he
could no longer work full days at the bakery. He complained
that eventually he had to stop working entirely because his
leg swells when he stands up for long periods of time. He
-3-
also complained that since the accident, he has experienced
pain and numbness in his right hand.
The Social Security Administration denied Delgado's
application initially and on reconsideration. On October 5,
1990, Delgado obtained a hearing before an Administrative Law
Judge (ALJ). Delgado and a medical expert testified. On
October 24, 1990, the ALJ determined that Delgado is not
disabled. The Appeals Council, however, accepted review and
remanded the case to the ALJ for further proceedings. A
second hearing, held on October 22, 1991, included the
testimony of a vocational expert. Delgado was represented
by counsel at both hearings.
The medical record before the ALJ is well-summarized in
his reports. Briefly, Delgado suffered a crush injury to his
right hand, in 1969, which resulted in some loss of motion.
On February 9, 1984, Delgado slipped at work, suffered an
undisplaced spiral fracture in his right ankle, and was
treated at El Buen Hospital under the auspices of the State
Insurance Fund. Records from the Fund disclose that on
January 19, 1990, Delgado was examined by a peripherovascular
surgeon in connection with complaints of pain and swelling in
his right ankle. The examination revealed a well-oriented,
middle-aged man, in no acute distress, and without
significant edema.
-4-
On November 13, 1989, Delgado was seen by Dr. Paul
Kindy, a consultative orthopedic physician. He noted that
Delgado complained of pain and swelling in the right ankle,
pain in both knees, and weakness and pain in the right hand.
The examination revealed some loss of motion in the right
wrist and thumb, as well as in the right ankle. Both knees
had a full range of motion and good strength. Delgado's
ability to squat, however, was limited to fifty percent of
normal due to ankle and knee pain. The consulting physician
diagnosed a crush injury deformity of the right hand with
partial wrist and thumb motion loss; a healed fracture in the
right ankle with partial loss of motion and weakness; and
paint and crepitus (a crackling sound) in both knees.1
Delgado testified that if he stands up for a few hours,
he experiences pain and swelling in his right ankle and leg,
as well as in both knees. The swelling is alleviated if he
lies down. Although the pain in his leg is "terrible," he
obtains some relief when he lies down. He also takes Tylenol
or Panadol to relieve the pain. He can walk for up to one-
half hour and can sit for up to an hour and a half. During
the day, he walks to the park, talks to neighbors, and
____________________
1. The record also contains two assessments of Delgado's
residual functional capacity prepared by non-examining
medical consultants. These consultants concluded that
Delgado has manipulative and postural limitations, but can
lift or carry fifty pounds occasionally and twenty-five
pounds frequently, can stand or walk about six hours in a
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