Cushman v. Apfel ( 2000 )

USCA1 Opinion

       [NOT FOR PUBLICATION–NOT TO BE CITED AS PRECEDENT]

                 United States Court of Appeals

                     For the First Circuit











No. 99-1514



                      JACQUELINE P. CUSHMAN,



                      Plaintiff, Appellant,



                                v.



                 KENNETH S. APFEL, COMMISSIONER,

                 SOCIAL SECURITY ADMINISTRATION,



                       Defendant, Appellee.







           APPEAL FROM THE UNITED STATES DISTRICT COURT



                 FOR THE DISTRICT OF RHODE ISLAND



        [Hon. Robert W. Lovegreen, U.S. Magistrate Judge]







                              Before



                     Torruella, Chief Judge,

                Stahl and Lipez, Circuit Judges.











     Kelly McKenna Cournoyer and Green and Greenberg on brief for

appellant.

     Margaret E. Curran, United States Attorney, Robin E. Feder,

Assistant United States Attorney, and Richard Fox, Assistant

Regional Counsel, on brief for appellee.











February 18, 2000









            Per Curiam. Claimant Jacqueline P. Cushman appeals

  from the judgment of the district court upholding a

  determination of the Commissioner of Social Security that she

  is not entitled to disability insurance benefits or

  supplemental security income benefits.  Before an

  Administrative Law Judge ("ALJ"), Cushman alleged disability

  due to Hepatitis C and "depressive or emotional conditions."

  The ALJ denied disability at step four of the sequential

  analysis, concluding that she is capable of returning to her

  past work as a telemarketer or cashier.

            The issues raised on appeal were not raised in the

  district court and, thus, are not preserved for our review.

  See Gonzalez-Ayala v. Secretary of Health & Human Servs., 807

  F.2d 255, 256 (1st Cir. 1986).  In all events, we would not find

  them meritorious.  We briefly explain why.

            First, there was ample evidence based upon which the

  ALJ could reject claimant's allegation of disabling fatigue.

  The medical expert testified that Hepatitis C sometimes has no

  symptoms or else "low grade symptomatology."  Claimant

  completed an "Activities of Daily Living" form indicating that

  she leads a fairly active lifestyle.  Although there are

  various references in the medical records to claimant reporting

  fatigue, there are also indications that the fatigue is

  "tolerable" and that claimant "operates with above average

  energy level each day[]."

            Second, as for claimant's complaint that the ALJ

  failed to elicit vocational expert testimony concerning the

  impact of her non-exertional limitations on her ability to

  perform past work, the short answer is that at step four of the

  sequential analysis the claimant is the primary source for

  vocational documentation.  Santiago v. Secretary of Health &

  Human Servs., 944 F.2d 1, 5 (1st Cir. 1991) (per curiam).  The

  claimant must describe those impairments which she says she has

  "so as to 'raise the point to the [Commissioner]'" how the

  impairments preclude the performance of her prior jobs.  Id.

  (internal citations omitted).

            In the instant case, claimant's explanation as to why

  she couldn't return to her former work was that she was "always

  tired."  However, for the reasons already stated, the ALJ was

  justified in rejecting this statement.  As for claimant's

  mental limitations, the ALJ concluded that claimant retains the

  residual functional capacity to perform work-related activities

  except for work involving high pressure or highly complex

  tasks.  This conclusion was supported by substantial evidence.

  Nothing raised by claimant indicates that her previous work was

  high pressure or complex.

            Affirmed.