Santos Isaac v. SHHS

Opinion

USCA1 Opinion

September 11, 1995    [NOT FOR PUBLICATION]


UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT


____________________


No. 95-1227 



                                WILFREDO SANTOS ISAAC,



                                Plaintiff, Appellant,



                                          v.



                       SECRETARY OF HEALTH AND HUMAN SERVICES,



                                 Defendant, Appellee.


____________________


ERRATA SHEET


The  opinion of this court  issued on September 6, 1995 is amended

        as follows:



            On  cover sheet:   Change  "WILFREDO  SANTOS ISAAC"  to  "WILFREDO

        SANTOS-  ISAAC".



            On page  2:  First line.  Change "Claimant, Wilfredo Santos Isaac"

        to "Claimant, Wilfredo Santos-Isaac".



September 6, 1995

                                [NOT FOR PUBLICATION]



                            UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT


____________________


No. 95-1227 



                                WILFREDO SANTOS-ISAAC,



                                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,
                                           ___________

                           Selya and Lynch, Circuit Judges.
                                            ______________



                                 ____________________



            Luis Vizcarrondo-Ortiz  and Salvador  Medina De  La Cruz on  brief
            ______________________      ____________________________

        for appellant.

            Guillermo  Gil,  United  States Attorney,  Maria  Hortensia  Rios-
            ______________                             _______________________

        Gandara, Assistant United States Attorney, and Robert J. Triba, Acting
        _______                                        _______________

        Chief Counsel, Social Security Administration, on brief for appellee.



____________________


____________________



Per  Curiam.    Claimant,   Wilfredo  Santos-Isaac,
                      ___________



            appeals  from the affirmance of the decision of the Secretary



            of  Health  and Human  Services that  he  is not  entitled to



            Social   Security   disability  benefits.      The  Secretary



            determined that,  although claimant  could not return  to his



            past  work, his  high  blood pressure  and  epilepsy did  not



            prevent him from  performing light work.  Claimant objects to



            this conclusion on essentially three grounds which we address



            in turn.



                      1.  Claimant argues  that the Secretary ignored the



            residual functional capacity (RFC) assessment completed by an



            examining neurologist.  In  this form, the neurologist stated



            that due to claimant's epilepsy, he "is limited in lifting or



            carrying any  weight since he  can drop object[s]  and damage



            them  or get hurt."  Claimant contends that because he cannot



            lift anything, he is precluded from working at any job.



                      What claimant fails to mention is the neurologist's



            specific  finding   that  claimant   has   the  capacity   to



            occasionally lift 10 pounds and frequently  lift less than 10



            pounds.   Contrary to  claimant's assertion, then,  he is not



            completely precluded from lifting and claimant does not point



            to any  other evidence to  back his  position.  We  also note



            that although light work involves the ability to occasionally



            lift  20 pounds,  there  is record  evidence  to support  the



            Secretary's conclusion that claimant  can lift and carry this


-2-



much weight.   Specifically, there  are two  other RFC  forms



            which  indicate  that  claimant  has no  limitations  on  his
                                                 __



            ability to lift and carry.  Because these RFC assessments are



            the  only  data  in  the  record  concerning  the  impact  of



            claimant's  impairments  on  his  exertional  limitations, we



            cannot say  that there  was insufficient evidence  to support



            the Secretary's decision  in this regard.   See Rodriguez  v.
                                                        ___ _________



            Secretary  of Health and  Human Services,  647 F.2d  218, 222
            ________________________________________



            (1st  Cir.  1981)  (conflicts in  the  evidence  are  for the



            Secretary).1



                      2.   Claimant next contends that the administrative



            law judge (ALJ) did not fully consider the combined effect of



            all claimant's subjective complaints  -- shortness of breath,



            muscle aches, chest pain,  somnolence, fatigue, dizziness and



            difficulty  with balance.  In his  decision, the ALJ credited



            these  complaints but found that  they were not  as severe or



            disabling  as  claimant  alleged.   In  particular,  the  ALJ



            reasoned that  if claimant  took his medicine  as prescribed,



            most  of  the  symptoms   about  which  he  complained  would



            disappear.   As for  the somnolence and  balance problems  --


____________________



            1.  A determination that an individual has the  ability to do

            light work encompasses a finding that that person also can do

            sedentary work, 20 C.F.R.   404.1567(b), and the record fully

            supports the conclusion that  claimant can perform such work.

            That  is,  even  the  examining  neurologist  indicated  that

            claimant could lift objects weighing no more than  10 pounds;

            further,  claimant, by his own admission, has the capacity to

            sit for extended periods of time.



                                         -3-



side effects of claimant's medications -- the ALJ stated that



            changes  in the  dosage or  type  of medicine  probably could



            reduce these symptoms.



                      "[S]ubjective symptoms must  be evaluated with  due



            consideration   for   credibility,  motivation   and  medical



            evidence  of impairment."  Gray v. Heckler, 760 F.2d 369, 374
                                       ____    _______



            (1st  Cir.  1985)   (per  curiam).    The  ALJ  here  doubted



            claimant's  credibility,  pointing out,  as an  example, that



            claimant gave conflicting accounts  of the number of seizures



            he had experienced.   Specifically, claimant had informed the



            examining  neurologist that  he had  been free  from seizures



            during the period from mid-January to mid-July in 1992.  Yet,



            at  the   1993  hearing,   claimant  submitted   a  statement



            signifying that  he had  experienced over 40  seizures during



            this time.   We note  that claimant's credibility  is further



            diminished in this  regard by the complete dearth of evidence



            in the medical record that claimant ever complained about his



            subjective complaints to those treating him.



                      Thus, while  the record shows that claimant suffers



            from  epilepsy and high  blood pressure, it  does not support



            his allegations of disabling symptomatology.  Given this, the



            Secretary  was  not  required  to obtain  a  medical  opinion



            directed  at evaluating these  complaints.   Finally, because



            the  ALJ  decided to  discredit  the  severity of  claimant's



            subjective symptoms, he did not err in similarly discrediting


-4-



the  response  of the  vocational  expert that  a  person who



            actually experienced these severe complaints could not work.



                      3.  Claimant's last  argument is that the Secretary



            was  precluded   from  relying  on  his   failure  to  follow



            prescribed  treatment  in  concluding that  claimant  was not



            disabled.    To support  this  argument,  claimant points  to



            Social Security Ruling 82-59.  This Ruling states:



                      An  individual  who  would  otherwise  be

                      found to be under  a disability, but  who

                      fails without justifiable cause to follow

                      treatment prescribed by a treating source

                      which   the   Social  .   .   .  Security

                      Administration  . .  . determines  can be

                      expected  to   restore  the  individual's

                      ability to work, cannot by virtue of such

                      "failure"   be  found   to  be   under  a

                      disability.



            Claimant asserts  that his  failure to follow  the prescribed



            treatment was "justifiable" and should not preclude a finding



            of  disability.    Specifically,  claimant  argues  that  the



            medical personnel who treated him had failed to inform him of



            the importance of taking the medication as prescribed.



                      We need not reach the question whether claimant was



            justified in his actions, however, because he is not a person



            who is  "otherwise . . .  under a disability."   That is, the



            Secretary did  not determine  that claimant was  disabled but



            that his failure to  observe medical directions precluded him



            from receiving  disability benefits.   Rather,  the Secretary



            found that  claimant was not disabled  because his condition,



            as  reflected in the medical record, did not prevent him from


-5-



engaging  in light work.   The reference by  the Secretary to



            claimant's failure  to take his medication  as prescribed was



            made  in  the  course  of  discussing  claimant's  subjective



            complaints.   This is not the same  as relying on this factor



            to establish that claimant is not under a disability.



                      For  the foregoing  reasons,  the  judgment of  the



            district court is affirmed.
                              ________


-6-