Brim v. Chater, Commissioner ( 1996 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
GLENDA J. BRIM,
Plaintiff-Appellant,
v.
No. 95-2178
SHIRLEY S. CHATER, COMMISSIONER OF
SOCIAL SECURITY,
Defendant-Appellee.
Appeal from the United States District Court
for the Middle District of North Carolina, at Greensboro.
N. Carlton Tilley, Jr., District Judge.
(CA-94-62-2)
Submitted: December 19, 1995
Decided: January 9, 1996
Before WILKINS, HAMILTON, and WILLIAMS, Circuit Judges.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
Marilyn L. Allen, Greensboro, North Carolina, for Appellant.
Frank W. Hunger, Assistant Attorney General, Walter C. Holton, Jr.,
United States Attorney, Mack A. Davis, Mary Ann Sloan, Haila N.
Kleinman, Cheryl Nikonovich-Kahn, SOCIAL SECURITY ADMIN-
ISTRATION, Atlanta, Georgia, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Glenda J. Brim appeals the district court's order granting summary
judgment to the Appellee in her Social Security disability benefits
action. Finding no reversible error, we affirm.
Brim filed an application for a period of disability and disability
insurance benefits on July 6, 1992, alleging November 30, 1981, as
her onset date. Brim later amended her onset date to April 8, 1983.
Brim's application was denied initially and upon reconsideration. On
February 19, 1993, Administrative Law Judge ("ALJ") Emanuel C.
Edwards conducted a hearing. Judge Edwards denied Brim's claim on
September 1, 1993. On December 8, 1993, the Appeals Council
denied Brim's request for review, making Judge Edwards' decision
the final decision of the Commissioner.
Brim filed a complaint for review of the Commissioner's decision
in the United States District Court for the Middle District of North
Carolina on February 8, 1994. The magistrate judge issued a recom-
mendation affirming the Commissioner on January 20, 1995. Brim
objected to the recommendation. Upon de novo review of Brim's
objections, the district court adopted the recommendation granting
summary judgment to the Commissioner. Brim timely appealed.
Brim was born on August 17, 1944, and was forty-two years old
on December 31, 1986, when her insured status expired. Brim alleges
disability due to bronchial asthma and fatigue. Brim has a tenth grade
education. Brim's past relevant work was as a material handler for
General Electric from either 1972, 1973, or 1974 until 1981. Before
1972, Brim was a working supervisor in the finishing department of
a sportswear company.
Brim sought treatment for asthma and general respiratory problems
for a number of years. Between the alleged onset date of disability
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(April 8, 1983) and the date her insured status expired (December 31,
1986), Brim sought treatment from Dr. Eugene LeBauer. Brim com-
plained to Dr. LeBauer of respiratory problems such as shortness of
breath, wheezing, asthma, and a cough; numbness and tingling in her
arms and hands; chest soreness; a pain between her shoulder blades;
nervousness; and a head cold. Although Dr. LeBauer prescribed vari-
ous medications for Brim's respiratory problems, he also noted sev-
eral times that Brim was "feeling much better," "feeling real good,"
and "doing well." Brim was also hospitalized for six nights in 1983
and diagnosed with chronic obstructive pulmonary disease with
bronchospasm.
Between September 24, 1986, and December 10, 1986, Brim saw
Dr. James J. Williams for respiratory problems. During that time, Dr.
Williams noted that Brim was "feeling much better," that her asthma
was "slowly improving," that Brim was "feeling fairly well," and that
her asthma had done "relatively well during the past several months."
Brim was hospitalized for two days in August 1986 for an acute exac-
erbation of chronic asthma. Brim was "feeling fairly well" when she
was discharged.
Brim testified at the hearing that she engaged in activities such as
cooking one meal per day, loading and unloading the dishwasher,
making the beds, grocery shopping once a week, taking out the gar-
bage, volunteering as a driver for Meals on Wheels once a month,
going to church about twice a month, serving as president of a
woman's club that met once a month, and engaging in exercise that
included walking around her house, walking around her pool in waist-
deep water, and swimming a lap or two. Brim also attended a ball
game and was planning a trip to Hawaii. Brim's medical records also
revealed that she returned to work in February 1987 and was still
working for an insurance company in November 1988. The transcript
does not document that Brim ever reported this work activity.
Upon reviewing the entire record, including Brim's subjective
complaints, the ALJ concluded that the medical evidence established
that although Brim suffered from a severe combination of impair-
ments, she retained the functional capacity to perform medium level
work activities, and was therefore able to return to her former work
as a supervisor in a sportswear manufacturing company.
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We must determine whether the findings of the Commissioner are
supported by substantial evidence, Richardson v. Perales, 402 U.S.
389, 390, 401 (1971), and whether the correct legal standards were
applied. Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990). We
will affirm the Commissioner's findings if they are supported by sub-
stantial evidence. Smith v. Schweiker, 795 F.2d 343, 345 (4th Cir.
1986). Substantial evidence is that evidence which"a reasonable
mind might accept as adequate to support a conclusion." Perales, 402
U.S. at 401 (internal quotation marks omitted). The ALJ bears the
ultimate responsibility for weighing the evidence and resolving its
conflicts. Hays, 907 F.2d at 1456.
To establish entitlement to disability insurance benefits, Brim must
be found to have been disabled prior to the date her insured status
expired. 42 U.S.C.A. §§ 423(a), (c) (West Supp. 1995); 20 C.F.R.
§§ 404.101, 404.130, 404.131(a) (1995). Any impairment that began
or became disabling after the "critical date" cannot be the basis for a
favorable finding of disability. See Roberts v. Schweiker, 667 F.2d
1143, 1144-45 (4th Cir. 1981). Brim's insured status expired on
December 31, 1986. Thus, she must prove that she was disabled
before that date. In addition, Brim's disability must be found to have
continued unabated to within fourteen months of the date she filed her
application for benefits. 20 C.F.R. §§ 404.315, 404.320(b)(3), and
404.621(d) (1995). Brim concedes in her brief that she has not alleged
that the severity of her respiratory impairments during the period at
issue met or equaled the applicable Listing of Impairments.
The ALJ found that Brim had a residual functional capacity to per-
form work that did not involve lifting and carrying more than fifty
pounds, exposure to excessive dust or fumes, extreme temperatures,
or work around dangerous machinery. Thus, Brim's respiratory
impairment does impose some limitations on her ability to work.
However, her impairment is not disabling. Brim retains the ability to
engage in medium work, which requires lifting no more than fifty
pounds at a time with frequent lifting or carrying of objects weighing
up to twenty-five pounds. If a person can do medium work, she can
also do sedentary and light work. 20 C.F.R. § 404.1567(c) (1995).
Brim testified that her former job as a working supervisor in the fin-
ishing department of a sportswear company involved lifting less than
ten pounds, allowed for alternate sitting and standing, and was per-
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formed in an air-conditioned environment that was not dusty. The
ALJ found that Brim could return to this work.
The ALJ correctly found that the fact that Brim sought medical
attention on a frequent basis does not mean that she was disabled. In
fact, at some of the office visits with Dr. LeBauer, he noted that Brim
was "feeling much better," "feeling real good," and "doing well." Dr.
Williams noted at times that Brim was "feeling much better," "slowly
improving," and "feeling fairly well." In December 1986, the last
month of the relevant time period, Dr. Williams wrote that Brim's
asthma had done "relatively well during the past several months."
None of Brim's treating physicians stated that she was disabled.
Brim challenges the ALJ's finding that her work activity at the
sportswear company qualifies as past relevant work because confu-
sion exists as to when she worked at this company. If her work was
not within the fifteen-year period prior to the expiration of her insured
status, it would not qualify as "past relevant work" under the regula-
tions. See 20 C.F.R. § 404.1565 (1995). Brim has raised this issue for
the first time on appeal. Generally, we will not consider an issue
which was not raised at the administrative or district court level.
Heckler v. Campbell, 461 U.S. 458, 469 n.12 (1983); Artrip v.
Califano, 569 F.2d 1298, 1300 n.5 (4th Cir. 1978). Brim failed to
demonstrate exceptional circumstances warranting consideration of
the issue; thus, this issue is not properly before us.
We find that the ALJ properly evaluated Brim's daily activities and
her credibility. We have recognized that daily activities may support
the Commissioner's determination that a plaintiff is not disabled. See
Gross v. Heckler, 785 F.2d 1163, 1166 (4th Cir. 1986). "The only fair
manner to weigh a subjective complaint of pain is to examine how the
pain affects the routine of life." Mickles v. Shalala, 29 F.3d 918, 921
(4th Cir. 1994) (Hall, Circuit Judge, concurring). In this case, the ALJ
noted Brim's daily activities and found them to be inconsistent with
the extent of the pain and symptoms alleged.
Brim asserts that her daily activities were very limited and that the
ALJ unfairly focused on several isolated activities to undermine her
credibility. However, the ALJ relied on the various reports of Brim's
activities in reaching his overall conclusion that Brim's activities
5
were "illustrative of an individual who was able to carry on a normal
lifestyle." Although the ALJ discussed particular activities such as
Brim's ability to maintain a household pet and the ability to attend a
sports event, these activities were only two of many the ALJ cited in
reaching his conclusion that Brim's overall activities were not consis-
tent with an individual who is totally disabled. When the ALJ's deci-
sion is read in its entirety, it is clear that the ALJ completely and
accurately discussed Brim's activities. The ALJ properly found that
Brim's activities, when considered as a whole, are not consistent with
the activities of an individual who is totally disabled.
Moreover, two medical reports note that Brim had returned to work
as a computer operator for an insurance company two months after
her insured status expired. Brim did not volunteer this information to
the ALJ, and the record does not reflect that Brim reported this infor-
mation to any other Social Security Administration employee.
Brim correctly noted in her brief that the ALJ misstated her smok-
ing history and also misstated that there was a lack of testimony
regarding side-effects of her medication. However, as the magistrate
judge correctly noted, "any errors or omissions that may be contained
in the ALJ's decision do not sufficiently infect his decision to call for
a remand and reconsideration." The ALJ must make credibility deter-
minations, and these determinations should refer specifically to the
evidence supporting them. Hatcher v. Secretary, HHS, 898 F.2d 21,
23 (4th Cir. 1989) (quoting Hammond v. Heckler , 765 F.2d 424, 426
(4th Cir. 1985)). In this case, the ALJ gave sufficient reasons, particu-
larly Brim's daily activities, for refusing to credit fully all of her alle-
gations. Because the ALJ had the opportunity to observe demeanor
and determine credibility, we give great weight to his observations on
these matters. Shively v. Heckler, 739 F.2d 987, 989 (4th Cir. 1984).
Brim's allegations of total disability are not supported by the medi-
cal evidence of record. The Commissioner's decision thoroughly
explains the rationale by which she determined that Brim could return
to her former work and is supported by substantial evidence. Accord-
ingly, we affirm the district court's order granting summary judgment
to the Commissioner. We dispense with oral argument because the
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facts and legal contentions are adequately presented in the materials
before the court and argument would not aid the decisional process.
AFFIRMED
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