Mulero v. Commissioner of ( 2004 )

Not for Publication in West's Federal Reporter
Citation Limited Pursuant to 1st Cir. Loc. R. 32.3
United States Court of Appeals
For the First Circuit
No. 04-1132
DANIEL MULERO,
Plaintiff, Appellant,
v.
COMMISSIONER OF SOCIAL SECURITY,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Daniel R. Domínguez, U.S. District Judge]
[Hon. Justo Arenas, U.S. Magistrate Judge]
Before
Boudin, Chief Judge,
Torruella and Lynch, Circuit Judges.
Melba N. Rivera-Camacho on brief for the appellant.
H.S. Garcia, United States Attorney, Camille L. Velez-Rive,
Assistant United States Attorney, and Christopher A. Michaels,
Assistant Regional Counsel, Social Security Administration, on
brief for appellee.
September 2, 2004
Per Curiam. This social security disability appeal
focuses on whether the claimant's residual functional capacity,
combined with his age, education, and past work experience, enables
him to do work other than what he did in the past. The
administrative law judge (ALJ) answered this question in the
affirmative, and the magistrate judge1 affirmed. We have carefully
reviewed the record and the parties' briefs and affirm the district
court's judgment for essentially the reasons stated in the
magistrate judge's Opinion and Order. We add only the following
comments.
On appeal, the claimant makes the following arguments:
(1) that the expert neurologist and psychiatrist called
by the Commissioner did not give sufficient weight to the opinions
of the claimant's treating neurologist and psychiatrist;
(2) that the expert psychiatrist did not consider that
"mental disorders have their ups and downs";
(3) that the expert psychiatrist improperly drew an
adverse inference from the fact that the claimant had not been
prescribed anti-depressant medication; and
(4) that the ALJ incorrectly categorized the claimant as
a "younger individual" for purposes of determining his ability to
do other work.
1
By consent of the parties, this case was decided by a
magistrate judge.
-2-
The first three arguments reflect a misunderstanding of
the applicable locus and standard of judicial review. This court
reviews the decisions of the Commissioner, not the opinions of
individual expert witnesses. 42 U.S.C. § 405(g). Even construing
the claimant's first three arguments as challenging the weighing of
the evidence by the ALJ, rather than by the Commissioner's experts,
those arguments are unavailing as grounds for reversing the
Commissioner's decision for the reasons discussed by the magistrate
judge.
Additionally, claimant's second argument, that the "up
and down" nature of mental illness must be taken into account, is
inapt here. This is not a case where the ALJ inferred from
symptom-free intervals that the claimant's mental illness was of
insufficient duration to be disabling. Cf. Lebus v. Harris, 526 F.
Supp. 56, 61-62 (N.D. Cal. 1981). Here, although there was
conflicting evidence as to the diagnosis of claimant's mental
impairment, there was no evidence of symptom-free intervals during
the period in question. Nor was there any dispute that claimant's
impairments had lasted or were expected to last for the requisite
continuous period of not less than twelve months. See 20 C.F.R. §§
404.1520(a)(4)(ii), 404.1509 (to be "severe," impairment must
satisfy durational requirement).
As to claimant's third argument, the ALJ properly
considered the medications that claimant had been prescribed in
-3-
concluding that "[t]he claimant's statements concerning his
impairments and their impact on his ability to work were not
entirely credible." See 20 C.F.R. § 404.1529(c)(3)(iv) (requiring
consideration of "[t]he type, dosage, effectiveness, and side
effects of any medication [claimant] take[s] or ha[s] taken" in
evaluating subjective symptoms); see also Social Security Ruling
96-7p, Evaluation of Symptoms in Disability Claims: Assessing the
Credibility of an Individual's Statements, 1996 WL 374186 *3, *7
(S.S.A. July 2, 1996) (same). Claimant's suggestion that his
doctors' failure to prescribe antidepressant medication may have
been due to their improper treatment or to his inability to afford
such medication lacks any evidentiary basis in the record.
Moreover, because this argument was not raised in the lower court,
it may not be raised here. Keating v. Sec'y of Health and Human
Servs., 848 F.2d 271, 273 (1st Cir. 1988).
Claimant's fourth argument, concerning his age, also was
not raised below and therefore need not be considered here. Id.Affirmed.
-4-