Rose v. Commissioner, Soc ( 1999 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
ANNA M. ROSE,
Plaintiff-Appellant,
v. No. 98-2169
COMMISSIONER OF SOCIAL SECURITY,
Defendant-Appellee.
Appeal from the United States District Court
for the Western District of Virginia, at Big Stone Gap.
James P. Jones, District Judge.
(CA-97-5-B)
Submitted: February 23, 1999
Decided: March 18, 1999
Before WILLIAMS and KING, Circuit Judges, and
PHILLIPS, Senior Circuit Judge.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
Roger W. Rutherford, WOLFE & FARMER, Norton, Virginia, for
Appellant. James A. Winn, Chief Counsel, Patricia M. Smith, Deputy
Chief Counsel, Joyce M. J. Gordon, Assistant Regional Counsel,
Office of General Counsel, SOCIAL SECURITY ADMINISTRA-
TION, Philadelphia, Pennsylvania; Robert P. Crouch, Jr., United
States Attorney, Julie C. Dudley, Assistant United States Attorney,
Roanoke, Virginia, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Anna M. Rose appeals from the district court's order accepting the
magistrate judge's report and recommendation granting the Commis-
sioner's motion for summary judgment. Finding that substantial evi-
dence supports the Commissioner's decision, we affirm.
Rose, born in February 1937, has a tenth grade education and voca-
tional experience as an executive secretary, which required no more
than sedentary physical exertion. She filed a claim in December 1993
for Social Security disability benefits, alleging that she had been dis-
abled since November 1988 due to a stroke, hysterectomy, blood
clots, head pain, bladder disease, chronic cough and lung infections,
and the residuals of a right foot fracture. Rose's application was
denied initially and upon reconsideration. She then requested an
administrative hearing. After a hearing, the Administrative Law Judge
(ALJ) denied her application, finding that Rose had the residual func-
tional capacity to do her past relevant work. Thereafter, Rose
appealed to the Social Security Appeals Council, which denied her
request for review. The ALJ's decision then became the Commission-
er's final decision.
Rose filed a complaint in the district court challenging the final
decision of the Commissioner. The Commissioner filed a motion for
summary judgment. Finding the ALJ's decision to be supported by
substantial evidence in the record, the magistrate judge recommended
granting the Commissioner's motion for summary judgment and dis-
missing Rose's complaint. The district court accepted the magistrate
judge's report and granted summary judgment against Rose. This
appeal ensued.
We review the Commissioner's final decision to determine whether
it is supported by substantial evidence and whether the correct law
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was 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 Commis-
sioner. See Hays, 907 F.2d at 1456. It is the duty of the ALJ, not the
courts, to make findings of fact and to resolve conflicts in the evi-
dence. See id.In reaching his decision, the ALJ applied the sequential five step
analysis found at 20 C.F.R. § 404.1520 (1997). Under this process,
the ALJ considers sequentially: (1) whether Rose is currently engaged
in substantial gainful activity; (2) if not, whether she has a severe
impairment; (3) if so, whether that impairment meets or equals medi-
cal criteria warranting a finding of disability without considering
vocational factors; (4) if not, whether the impairment prevents her
from performing her past relevant work; and (5) if so, the burden
shifts to the Commissioner to show that she can perform other work.
See Hall v. Harris, 658 F.2d 260, 264-65 (4th Cir. 1981).
Initially, the ALJ found that Rose met disability insured status
requirements between November 3, 1988, and December 31, 1992,
but not thereafter. At step one, the ALJ first found that Rose had not
engaged in substantial gainful activity since the date of the alleged
onset of disability, November 3, 1988. The ALJ further found, at step
two, that Rose had severe impairments in combination, i.e., status
post hysterectomy, status post fractured ankle and subsequent pulmo-
nary embolus, and a history of intermittent bladder infections. The
ALJ concluded, however, that Rose's secondary dysthymia was not
present when she was insured for benefits. The ALJ determined at
step three that the evidence did not demonstrate that Rose's impair-
ments, considered individually or in combination, were of sufficient
severity to meet any of the Listed Impairments set forth in 20 C.F.R.
pt. 404, subpt. P., app. 1. At the fourth step, the ALJ found that Rose
had the residual capacity to perform work-related activities except for
work involving medium or heavy jobs. The ALJ concluded that
Rose's impairments did not prevent her from performing her past rel-
evant work as an executive secretary at any time prior to December
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31, 1992 (the date Rose was last insured) and therefore that she was
not "disabled."
On appeal, Rose first contends that the ALJ disregarded the uncon-
tradicted evidence of Dr. Lanthorn, who maintained that Rose suf-
fered from a severe mental impairment. Lanthorn diagnosed Rose
with dysthymia, late onset, which caused Rose's deficiencies of con-
centration, persistence, and pace. The ALJ disregarded the report
because it did not relate back to a period on or before December 1992.
Rose acknowledges that to establish entitlement to benefits under
Title II of the Social Security Act, a claimant must show that she was
disabled prior to the date of the expiration of her insured status. See
42 U.S.C. §§ 423(a), (c) (West 1994 & Supp. 1998); see also Roberts
v. Schweiker, 667 F.2d 1143, 1144 (4th Cir. 1981). Rose claims, how-
ever, that it is presumable, based on Lanthorn's findings, that she suf-
fered this impairment before 1992 and that it was therefore incumbent
on the ALJ to develop the record.
We agree with the magistrate judge that even assuming Dr. Lant-
horn's report presents an accurate reflection of Rose's mental condi-
tion from 1988 to 1992, there is substantial evidence in the record to
support the ALJ's rejection of the report. First, because Dr. Lanthorn
served only as a consultative examiner, the ALJ was not required to
accord Dr. Lanthorn's report the weight accorded a report prepared by
a treating physician. Furthermore, the ALJ's conclusion that Dr. Lant-
horn's assessment of Rose's mental condition was not supported by
his own narrative report was permissible. The ALJ was entitled to
conclude that the one-time consultation with Dr. Lanthorn did not
substantiate his opinion that Rose suffered from decreased energy,
feelings of guilt or worthlessness, and repeated episodes of deteriora-
tion in work-like settings. Additionally, Rose's own statements of her
daily activities such as going to church, socializing with friends and
family, and shopping, contradict Lanthorn's opinions that Rose had
difficulty maintaining social relations. Our review of the record
reflects that the ALJ considered all the relevant evidence and Rose
fails to indicate what evidence the ALJ failed to seek. In light of the
above, we find sufficient evidence to support the ALJ's rejection of
the report.
Last, Rose claims that the ALJ did not adequately consider the
effect of her bladder problem on her ability to work. Although the
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record reflects that Rose has suffered bladder problems for years, we
find sufficient evidence to support the ALJ's finding that this problem
did not significantly interfere with her ability to perform past relevant
work. The record is well-documented that her bladder problem con-
sisted of irritations, bouts of infections, and occasional incontinence.
There is, however, no evidence that the irritations significantly ham-
pered her ability to perform her past relevant work, and the record
makes clear that her infections were successfully treated with medica-
tion. Her problem with incontinence is not documented in the medical
records until March 1994, well after expiration of her insured status.
Furthermore, we accord deference to the ALJ's finding that Rose was
not credible. See Shively v. Heckler, 739 F.2d 987, 989 (4th Cir.
1984).
Accordingly, we affirm the district court's decision. We dispense
with oral argument because the facts and legal contentions are ade-
quately presented in the materials before the court and argument
would not aid the decisional process.
AFFIRMED
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