Barrier v. Shalala, Sec ( 1998 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
ANITA BARRIER,
Plaintiff-Appellant,
v.
No. 96-2748
DONNA E. SHALALA, SECRETARY OF
HEALTH AND HUMAN SERVICES,
Defendant-Appellee.
Appeal from the United States District Court
for the Western District of North Carolina, at Statesville.
Richard L. Voorhees, Chief District Judge.
(CA-94-53-5-V)
Submitted: January 13, 1998
Decided: January 27, 1998
Before HAMILTON, WILLIAMS, and MICHAEL, Circuit Judges.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
M. Alan LeCroy, DANIEL & LECROY, P.A., Morganton, North
Carolina, for Appellant. Mark T. Calloway, United States Attorney,
James M. Sullivan, Assistant United States Attorney, Charlotte, North
Carolina, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Anita Barrier appeals from the district court order granting the Sec-
retary's motion for summary judgment and dismissing her action, and
affirming the Secretary's decision denying social security benefits.
On appeal, Barrier alleges that the district court failed to give proper
weight to her treating physicians' opinions and that her asthma attacks
equaled the severity contemplated in the medical listing. Finding no
error, we affirm.
Barrier is a forty-five year old woman with a two-year associate
degree in early childhood education. At the time of the alleged dis-
ability, she was employed as a weaver with Rospatch Labels. She
filed an application for disability insurance benefits on January 17,
1992, alleging that she became disabled on July 18, 1991. The alleged
cause of her disability is a severe asthmatic condition. The adminis-
trative law judge (ALJ) found that Barrier suffered from severe
asthma, but that her impairment did not meet or equal the listing level
for presumptive disability; that she was capable of performing light
work with the restriction that she not be exposed to irritants which
could exacerbate her asthma; that she was capable of returning to her
previous occupation as a teacher's aide, and therefore was not dis-
abled within the meaning of the law to receive disability benefits.
Barrier requested review of the ALJ's decision by the Appeals Coun-
cil. The Appeals Council denied Barrier's request for review. The
ALJ's decision then became the Secretary's final decision.
Barrier filed a complaint in the district court challenging the final
decision of the Secretary. The parties filed cross motions for summary
judgment. The district court granted the Secretary's motion and
affirmed the decision of the Secretary. This appeal followed.
We review the Secretary's final decision to determine whether it is
supported by substantial evidence and whether the correct law was
2
applied. See 42 U.S.C.A. § 405(g) (West Supp. 1997); Hays v.
Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990). Substantial evidence
is "``such relevant evidence as a reasonable mind might accept as ade-
quate to support a conclusion.'" Richardson v. Perales, 402 U.S. 389,
401 (1971) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197,
229 (1938)). We do not re-weigh conflicting evidence, make credibil-
ity determinations, or substitute our judgment for that of the Secre-
tary. See Hays, 907 F.2d at 1456.
Barrier first argues that her asthmatic condition meets the listing
for asthma in the Listing of Impairments, 20 C.F.R. Part 404, Subpt.
P, App. 1, § 3.03B (1993). Thus, Barrier contends that she should
have been found disabled at step three of the sequential analysis. The
evidence is to the contrary. To meet the requisite level of severity
under § 3.03B, the claimant must experience:"[e]pisodes of severe
attacks (See 3.00C), in spite of prescribed treatment, occurring at least
once every 2 months or on an average of at least six times a year, and
prolonged expiration with wheezing or rhonchi on physical examina-
tion between attacks."
Under § 3.00C, when a respiratory impairment is episodic in
nature, as may occur in complications of asthma, the frequency and
intensity of severe episodes, despite prescribed treatment, are impor-
tant criteria for determining the level of impairment. Documentation
for episodic asthma should include the hospital or emergency room
records indicating the dates of treatment, clinical findings on presen-
tation, what treatment was given and for what period of time, results
of spirometry and arterial blood gas studies (ABGS), and clinical
results. Severe attacks of episodic asthma, as those listed in section
3.03B, are defined as prolonged episodes lasting at least several
hours, and requiring intensive treatment such as intravenous drug
administration or prolonged inhalation therapy in a hospital or emer-
gency room. See 20 C.F.R. Part 404, Subpt. P, App. 1, § 3.00C
(1993).
Barrier argues that the district court failed to give proper weight to
the opinions of her treating physicians and that the record did not con-
tain persuasive contradictory evidence to discount the treating physi-
cians' opinions. The ALJ properly accorded great weight to Barrier's
treating physicians, Drs. Schneider and Inglefield, regarding their
3
assessment of Barrier's physical limitations. See Coffman v. Bowen,
829 F.2d 514, 517 (4th Cir. 1987). Although Drs. Schneider and
Inglefield treated Barrier, the ALJ was entitled to disregard their opin-
ions in the face of persuasive contradictory evidence. See Smith v.
Schweiker, 795 F.2d 343, 345-46 (4th Cir. 1986).
Dr. Schneider had the most extensive role in Barrier's treatment.
The medical records generally showed that Barrier experienced recur-
rent episodes of asthmatic bronchitis which was occasionally exacer-
bated by immunotherapy. Barrier showed general improvement and
responded well to medications. Dr. Schneider noted an onset date of
July 18, 1991. Several doctors examined Barrier in the next few years
and the record reflects that the asthmatic episodes were related to
environmental factors and were reversible. The doctors noted that
Barrier responded well to medications and that she could withdraw
from using them.
In November 1991, Dr. Schneider referred Barrier to Dr. Inglefield
for allergy injections. Dr. Schneider continued to follow Barrier and
noted that her lungs were fairly clear. Also during that time Dr. Har-
ris, a pulmonary specialist, examined Barrier at the request of Barri-
er's employer. Dr. Harris found that Barrier's total lung capacity was
normal, and after bronchodilator therapy, there was only mild abnor-
mality. Dr. Harris concluded that there was no permanent impairment.
In March 1992, Dr. Schneider noted that Barrier was doing "fairly
well" and that her lungs were "fairly clear," although Barrier suffered
from a sinus infection.
In April 1992, Dr. Inglefield examined Barrier for immunotherapy
treatment and found her chest to be clear and pulmonary functions
normal. Dr. Inglefield began immunotherapy treatment. In June 1992,
Dr. Schneider again examined Barrier for asthmatic bronchitis which
was exacerbated by an allergy shot administered the day before by Dr.
Inglefield. Dr. Schneider gave Barrier an injection of Depo-Medrol,
a steroid used primarily for its anti-inflammatory effect, for her reac-
tion to the allergy shot. In June 1992, Barrier again experienced an
asthmatic episode with wheezing, caused by an anaphylactic reaction
to an allergy shot. After the use of a bronchodilator used for relief
from acute attacks of bronchospasm, Barrier's wheezing improved.
Approximately one week later, Dr. Schneider noted that Barrier still
4
developed sudden onsets of shortness of breath which were relieved
by expectorating mucus. Dr. Schneider also noted, however, that Bar-
rier's lungs were clear with the exception of a few scattered wheezes
and rhonchi.
On December 9, 1992, the ALJ held a hearing with both parties
represented. The above medical records were entered into evidence.
The only doctor to testify at the hearing was Dr. Fitz, a medical exam-
iner called by the Secretary. Dr. Fitz testified that he had reviewed the
exhibit file, listened to Barrier's testimony at the hearing, and was
familiar with the disability regulations.* Dr. Fitz opined that Barrier's
symptoms and conditions did not meet the requisite level of severity
under the asthma listing.
During the hearing, Dr. Fitz explained to Barrier's attorney that
§ 3.03B incorporates § 3.00C into it and therefore to be found dis-
abled at this step in the sequential process, the asthma attacks must
meet the level of severity specified in § 3.00C. Barrier's attorney was
not cognizant of the inter-relation between the two sections, and the
ALJ allowed the record to remain open at the conclusion of the hear-
ing so this issue could be addressed.
Drs. Schneider and Inglefield wrote letters after the hearing to be
submitted as evidence for Barrier's application. Dr. Schneider opined
that Barrier was "severely disabled due to her asthma." In support of
her finding, Dr. Schneider stated that she administered injectable ste-
roids at her office on several occasions. She also stated that the treat-
ments administered in her office and Barrier's use of a hand-held
inhaler at home constitute similar treatment as that administered in an
emergency room, and therefore Barrier should be found disabled
according to the listing. She also noted that Barrier's attacks may
have warranted an emergency room visit, but that Barrier chose to
manage these episodes at home. The medical records entered into evi-
dence reflect, however, that Dr. Schneider only administered inject-
_________________________________________________________________
*In its memorandum and order, the district court incorrectly stated that
Dr. Fitz examined Barrier. Although Dr. Fitz did not conduct a physical
examination, his statements are based upon the medical records submit-
ted by Barrier as exhibits.
5
able steroids once, during an episode precipitated by an anaphylactic
reaction to an allergy shot.
Dr. Inglefield's letter, also written after the hearing, criticized the
Social Security disability regulations but stated that Barrier's asth-
matic episodes met the requisite level of severity. Dr. Inglefield
acknowledged, however, that he had never seen Barrier during a full-
blown asthma attack. He also noted that Barrier's use of an in-home
nebulizer constituted the same type of treatment that she would
receive in an emergency room setting.
The medical records reflect that Barrier did not receive intravenous
drug administration or inhalation therapy in an emergency room or
hospital setting. While Dr. Schneider administered one intravenous
steroid treatment, her records do not show that"on several occasions
[Barrier] had been given injectable steroid in the office," as her letter
assessing disability states. Dr. Schneider's assessment in the letter
generally is not consistent with her treatment notes.
Dr. Fitz testified that Barrier's self-administered treatment would
not be sufficient to treat an attack of the severity contemplated by the
Act to qualify as disabling. In Dr. Fitz's opinion, the home use of a
nebulizer does not constitute the kind of intensive treatment required
by the Act. A medical examiner's testimony may provide substantial
support for an ALJ's finding that a claimant is not impaired. See
Atterberry v. Secretary of HHS, 871 F.2d 567, 570 (6th Cir. 1989).
Dr. Fitz's testimony may therefore constitute substantial evidence
supporting the ALJ's ruling.
Barrier relies upon Martinez Nater v. Secretary of HHS, 933 F.2d
76, 78-79 (1st Cir. 1991), in arguing that a severe attack, as required
by § 3.03B, may not require documentation of emergency room or
hospital treatment if the claimant can demonstrate that the attacks
were equivalent in severity to an attack that required emergency room
or hospital treatment. See Martinez Nater, 933 F.2d at 78-79.
Martinez Nater is distinguishable from this case. The claimant in
Martinez Nater had two prior hospitalizations and fourteen emer-
gency office visits to manage asthma attacks. Intravenous drug ther-
apy was required to restore normal breathing. Barrier's case does not
demonstrate an equivalent severity, frequency, duration or treatment.
6
The Secretary also relied upon the results of four other physicians
in determining that Barrier did not meet the requirements of the list-
ing. The non-treating physicians made fact-based statements and gave
supported opinions in determining that Barrier's asthma is not of a
severely disabling nature. Dr. Schneider's office notes consistently
refer to Barrier's condition as reversible and exacerbated by her work
environment and other factors. The other physicians also noted a cor-
relation between Barrier's work environment and her condition.
We find that the ALJ properly relied upon the medical results and
opinion of non-treating physicians. Dr. Schneider and Dr. Inglefield
made conclusory opinions that Barrier was disabled under the mean-
ing of the law. Because their opinions are not supported by the medi-
cal evidence in the record, their opinions were properly discredited.
In these circumstances, we find that the ALJ was entitled to credit a
contradictory assessment of Barrier's physical abilities and that sub-
stantial evidence supported the ALJ's finding of no disability.
We dispense with oral argument because the facts and legal conten-
tions are adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED
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