Griswold v. SHHS ( 1995 )

USCA1 Opinion

          June 13, 1995

                                [NOT FOR PUBLICATION]



                            UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT





                                 ____________________





        No. 94-2168



                                  LORRAINE GRISWOLD,



                                Plaintiff, Appellant,



                                          v.



                       SECRETARY OF HEALTH AND HUMAN SERVICES,



                                 Defendant, Appellee.





                                 ____________________



                     APPEAL FROM THE UNITED STATES DISTRICT COURT



                          FOR THE DISTRICT OF MASSACHUSETTS



                 [Hon. Frank H. Freedman, Senior U.S. District Judge]
__________________________



                                 ____________________



                                        Before



                                Cyr, Boudin and Stahl,

                                   Circuit Judges.
______________



                                 ____________________



            Sandra Susse on brief for appellant.
____________

            Donald  K.  Stern,  United  States  Attorney,  Karen  L.  Goodwin,
_________________                              __________________

        Assistant  United  States Attorney,  and  Jessie  M. Klyce,  Assistant
________________

        Regional Counsel,  Department of Health  and Human Services,  on brief

        for appellee.





                                 ____________________





                                 ____________________

























                      Per Curiam.  We have carefully reviewed the  record
__________



            and the briefs of the parties and agree with the  decision of



            the district court  for essentially the reasons stated in its



            Memorandum and Order, dated  September 8, 1994.  We  add only



            the following comment.



                      Aside from taking Pamelor, claimant did not undergo



            any treatment for her depression.  She maintains that she had



            limited insight into her condition and, thus, did not realize



            the need for psychotherapy.  The record indicates  otherwise.



            In December  1988, claimant informed  Dr. J. Stephen  Fink, a



            consulting  neurologist,  that she  was  scheduled  to see  a



            psychological  counselor.  When she next saw Dr. Fink in July



            1989, she stated that she never had pursued treatment for her



            depression.   This reveals an awareness on claimant's part of



            the appropriateness of counseling.



                      Further, personnel at Baystate Medical Center twice



            recommended that claimant undergo  psychotherapy.  The  first



            occasion  was  in  November  1990  after  claimant  expressed



            suicidal ideation.  The second was in July 1991, but claimant



            refused  the referral.  Finally, Dr.  Michael Bohnert, one of



            the examining consultants,  indicated that  psychotherapeutic



            intervention might significantly improve claimant's prognosis



            and,  in  a  related vein,  Dr.  Elizabeth  P.  Hess, another



            examiner,  opined that  claimant  needed  a  more  aggressive



            course of medication.











































                      As we noted in Tsarelka v.  Secretary of Health and
________     _______________________



            Human  Services, 842 F.2d  529 (1st Cir.  1988) (per curiam),
_______________



            the Social Security regulations  require a claimant to follow



            restorative treatment  prescribed by  her physician.   Id. at
___



            534 (citing 20 C.F.R.   404.1530(a)).  The failure to observe



            prescribed treatment without good cause can lead to a finding



            of  not  disabled.   Id.  (citing 20  C.F.R.    404.1530(b)).
___



            Indeed, gaps in the  medical record which indicate a  lack of



            treatment  are  "evidence"  for  purposes  of the  disability



            determination.   Irlanda-Ortiz  v.  Secretary of  Health  and
_____________      _________________________



            Human  Services,  955 F.2d  765,  769  (1st  Cir. 1991)  (per
_______________



            curiam).



                      Thus,   claimant's   disregard   of  the   specific



            referrals to psychotherapy,  as well as the  lack of evidence



            to indicate  that her  medication ever was  re-evaluated, are



            proper considerations.  Based on this record, then, we cannot



            say  that the Secretary of Health and Human Services erred in



            citing the lack of  treatment as one  of the reasons for  the



            determination  that  claimant  was  not disabled.    See  id.
___  ___



            (conflicts in the evidence  are for the Secretary).   In this



            case, we think, the absence of treatment is dispositive.



                      The judgment of the district court is affirmed.
________



















                                         -3-