20 CFR 404.115

SSR 74-8c

Florencio Alicea Diaz v. Secretary, Civil No. 972-70, U.S.D.C., D.P.R. (12/15/72)

Where claimant for disability insurance benefits alleged onset of disability beginning in 1959, but failed to produce any medical evidence hearing on his condition prior to September 30, 1962, when he last met the insured status requirement, held, evidence of impairment which came into existence or reached disabling severity after expiration of claimant's insure status cannot be basis for finding of disability; therefore, Secretary's finding as to lack of disability at pertinent point of time is reasonable and supported by substantial evidence.

CANCIO, District Judge: The plaintiff, who was born in 1931, alleged disability beginning in 1959, when he was 28 years old, due to stomach trouble. He had worked as a laborer, as a mason, and as a welder's helper. Plaintiff last met the insured status requirement of the Act on September 30,1962.

A report by Dr. Romero, a general practitioner, indicates that he first saw plaintiff in January 1965 for complaints of pain in the epigastrium and chest, and that plaintiff's first signs of illness were in January 1964.

The doctor said that x-rays taken in 1964 were negative. Diagnosis included: diaphragmatic hernia, pancreatitis chronic; anemia secondary, malnutrition, and gastroenteritis.

A report from Presbyterian Hospital reveals that plaintiff was admitted for treatment in December 1965 after developing colicky abdominal pain with vomiting after meals.

X-rays studies revealed a normal esophagus and the stomach was normal but showed evidence of hypersecretion. The diagnosis was duodenal ulcer disease without demonstrable ulcer crater.

Following x-ray of the stomach in December 1967 which revealed marked deformity of the duodenal bulb from previous peptic ulcer disease with difficulty emptying the stomach through this deformed area, plaintiff was admitted to Puerto Rico Medical Center in April 1968 for treatment of his condition. Plaintiff underwent surgery for partial removal of the stomach in June 1968 (antrectomy, vagotomy, gastrostomy, gastrojejunostomy). Following the operation and after plaintiff complained of postprandial pain, a fluoroscopic examination was performed July 31, 1968, which showed the partial removal of his stomach (gastrectomy)and revealed a well functioning juncture of the remaining stomach and intestine (gastrojejunostomy).

Dr. Berio, a specialist in internal medicine with subspecialty in gastroenterology reported n March 1969 that plaintiff complained of upper abdominal bloating after meals, followed by vomiting or diarrhea. The doctor said plaintiff had a moderately sever postgastrectomy syndrome, and that should follow a diet and avoid strenuous activity until he regained his lost weight.

In order to establish entitlement to a period of disability and disability insurance benefits, plaintiff has the burden of establishing that his is unable to engage in substantial gainful activity by reasons of physical or mental impairment Act 223(d); 42 U.S.C.A. 423(d); Reyes Robles v. Finch 409 F.2d 84 (1 Cir. 1969); Henley v. Celebrezze 394 F.2d 507 (3 Cir. 1960); Franklin v. Secretary of HEW 393 F.2d 640 (2d Cir. 1968).

Evidence of an impairment which came into existence or reached disabling severity after the expiration of plaintiff's inured status cannot be the basis for a finding of disability. Henry v. Gardner 381 F.2d 191 (6 Cir. 1967), cert. den. 389 U.S. 993 (1967), rehearing den.389 U.S. 1060 (1968), Seals v. Gardner 356 F.2d 508 (5 Cir. 1966).

In the instant case it is clear that the Secretary's determination that the evidence did not establish that plaintiff was incapable of engaging in may substantial gainful activity is supported by substantial evidence and is therefore entitled to affirmance. Levine v. Gardner, supra; Kernerv. Celebrezze 340 F.2d 736 (2d Cir. 1965);cert. den. 382 U.S. 861 (1965).

There has been no medical testimony or records produced herein which have any bearing on plaintiff's condition prior to September 30, 1962 when he last met the earnings requirement of the law. All that exists is plaintiff's statement that in 1957 "they told me I had stomach ulcers, trouble with my pancreas, I couldn't digest." On the basis of the evidence of record, the Secretary found that the evidence did not establish that plaintiff was under a disability at any time when he last met the insured status requirements of the Act. This finding is reasonable in the light of the evidence of record and is therefore entitled to affirmance as supported by substantial evidence.

The present action must be and hereby DISMISSED.

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