Not for Publication in West's Federal Reporter Citation Limited Pursuant to 1st Cir. Loc.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.

(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,

(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

(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

(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,

*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.,

(1st Cir. 1988).

Claimant's fourth argument, concerning his age, also was

not raised below and therefore need not be considered here.

Affirmed.

-4-