
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          September 11, 1995    [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                        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        September 6, 1995                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                          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-
