Faria v. Commissioner of

USCA1 Opinion [NOT FOR PUBLICATION--NOT TO BE CITED AS PRECEDENT] United States Court of Appeals For the First Circuit No. 97-2421 JORGE FARIA, Plaintiff, Appellant, v. COMMISSIONER OF SOCIAL SECURITY, 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, Coffin, Senior Circuit Judge, Stahl, Circuit Judge. Fabio A. Roman Garcia on brief for appellant. Guillermo Gil, United States Attorney, Lilliam Mendoza-Torro, Assistant U.S. Attorney, and Wayne G. Lewis, Assistant Regional Counsel, on brief for appellee. October 2, 1998 Per Curiam. Claimant Jorge Faria appeals a district court order that upheld the denial of his claim for Social Security disability benefits. Claimant maintains that he suffers from a schizoaffective disorder that disabled him before his insured status expired in 1992. Having thoroughly reviewed the record and the parties' briefs on appeal, we conclude that the Commissioner's decision should be affirmed. We reject claimant's contention that the administrative law judge (ALJ) breached his duty to develop the record. Claimant was represented by counsel. When a claimant is represented, the ALJ, "should ordinarily be entitled to rely on claimant's counsel to structure and present the claimant's case in a way that claimant's claims are adequately explored." See Hawkins v. Chater, 113 F.3d 1162, 1167 (10th Cir. 1997). See also Sears v. Bowen, 840 F.2d 394, 402 (7th Cir. 1988)("an ALJ is entitled to presume that claimant represented by counsel in the administrative hearings has made his best case"). We will not fault the ALJ for failing to secure Dr. Jimenez's treatment notes or ask further questions, particularly where claimant has not shown how he was prejudiced by the ALJ's alleged shortcomings. See, e.g., Nelson v. Apfel, 131 F.3d 1228, 1234 (7th Cir. 1998)("'Mere conjecture or speculation that additional evidence may be obtained ... is insufficient to warrant a remand.'"(citation omitted)); Shannon v. Chater, 54 F.3d 484, 488 (8th Cir. 1995)("Reversal due to [an ALJ's alleged] failure to develop the record is only warranted where such failure is unfair or prejudicial."). Claimant's remaining contentions are equally unavailing. Given the dearth of evidence, medical and otherwise, in the record, the ALJ's conclusion that claimant retained the ability to perform his past work was adequately supported. See Jones v. Chater, 65 F.3d 102, 104 (8th Cir. 1995)(retrospective medical opinions are usually insufficient to establish disability absent corroboration of claimant's condition during insured period by lay witnesses, such as family members); Irlanda Ortiz v. Secretary of Health and Human Services, 955 F.2d 765, 770 (1st Cir. 1991)(per curiam)(absence of evidence of sustained mental health treatment bolstered nondisability finding). Claimant plainly errs insofar as he contends that he was not required to prove his impairment with objective medical evidence. See, e.g., 42 U.S.C. 423(d)(3)(defining physical or mental impairments as those which result from abnormalities demonstrable by medically acceptable clinical and laboratory diagnostic techniques); 20 C.F.R. 404.1529, 404.1527(a)(1)(similar); 20 C.F.R. 404.1508 (physical and mental impairments must be established by medical evidence consisting of signs, symptoms, and laboratory findings). In view of the foregoing, the judgment of the district court is affirmed.