Koonce v. Apfel, Commissioner ( 1999 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
ANNIE L. KOONCE,
Plaintiff-Appellant,
v.
No. 98-1144
KENNETH S. APFEL, COMMISSIONER OF
SOCIAL SECURITY,
Defendant-Appellee.
Appeal from the United States District Court
for the Middle District of North Carolina, at Greensboro.
William L. Osteen, Sr., District Judge.
(CA-96-300-2)
Submitted: November 30, 1998
Decided: January 11, 1999
Before MURNAGHAN and NIEMEYER, Circuit Judges, and
PHILLIPS, Senior Circuit Judge.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
Tomi W. Bryan, Lisa W. Bullard, BRYAN, BULLARD & HOUG-
LAN, P.C., Greensboro, North Carolina, for Appellant. Frank W.
Hunger, Assistant Attorney General, Walter C. Holton, Jr., United
States Attorney, Mary Ann Sloan, Chief Counsel, Region IV, Haila
Naomi Kleinman, Acting Branch Chief, J. Patrick Powers, Assistant
Regional Counsel, Office of General Counsel, SOCIAL SECURITY
ADMINISTRATION, Atlanta, Georgia, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Annie L. Koonce appeals from the district court's order affirming
the Commissioner of Social Security's (Commissioner) finding that
she is not disabled and therefore not entitled to Disability Insurance
Benefits ("DIB"). Finding no error, we affirm.
On February 3, 1994, Koonce filed an application for benefits,
alleging that she has been disabled since December 17, 1991, the day
she was diagnosed with breast cancer. Koonce has had a left breast
lumpectomy with left axilla lymphadenectomy. Koonce's application
was denied initially and upon reconsideration. An administrative law
judge ("ALJ") conducted a de novo review, including a hearing on
August 27, 1992, and a favorable decision was issued on September
24, 1992. On February 10, 1993, the Appeals Council remanded the
case back to the same ALJ on its own motion. A second hearing was
held on April 29, 1993, resulting in an unfavorable decision on March
18, 1994. Koonce filed a request for review, and the Appeals Council
remanded the case to a different ALJ. On August 23, 1994, a third
hearing was conducted, but it was suspended to gather more evidence.
A fourth hearing before the second ALJ was conducted on January 5,
1995; however, the second ALJ recused herself because she was
treated for the same condition as Koonce. Finally, on March 21, 1995,
another hearing was conducted by a third ALJ, resulting in an unfa-
vorable decision on November 1, 1995. Koonce was present, testified,
and was represented by counsel at every hearing.
Koonce testified at the last hearing that she had a left breast lump-
ectomy on January 2, 1993. She testified that since the surgery, she
suffers from pain and edema of the left arm, requiring her to wear a
Jobst pressure stocking to reduce the swelling, and she suffers from
stiffness in her left hand. She testified that she takes medication for
the pain and swelling in her arm, but she really does not use her arm
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at all. She testified that she has trouble remembering things and pay-
ing attention. She stated that she feels frustrated, suffers from daily
crying spells, and experiences feelings of worthlessness. She testified
that she saw a mental health professional in 1993, but she stopped
going after only two or three sessions. She continues, however, to
take medication for depression. Koonce testified that she also suffers
from coccydynia, which restricts the amount of time she is able to sit
pain-free. She occasionally experiences dizziness and shortness of
breath. Lastly, Koonce testified that she suffers from "frozen shoul-
der" and takes medication for the pain.
The ALJ found that Koonce met the disability insured status
requirements of the Act on December 17, 1991, the onset date of her
disability, and continued to meet the requirements through September
30, 1995. The ALJ found that Koonce has not engaged in substantial
gainful activity since the alleged onset of the disability. The ALJ fur-
ther found that Koonce suffered from severe impairments consisting
of a lumpectomy of the left breast carcinoma and lymphadenectomy
(left axilla), followed by radiation therapy and chemotherapy, with no
evidence of reoccurrence, a dysthymic disorder since November
1993, and coccydynia. The ALJ determined that these impairments
did not, either individually or in combination, meet or equal a listed
impairment. The ALJ further found that Koonce had the residual
functional capacity to perform the physical exertional and nonexer-
tional requirements of work except work requiring lifting/carrying
weights above the light exertional level, overhead reaching with either
arm, using the left arm or hand for anything other than assisting the
right, dominant upper extremity, or other than unskilled work that did
not involve more than a low level of job-related stress. Although
Koonce's residual functional capacity would not permit her to per-
form her past relevant work, the ALJ found that there were a signifi-
cant number of jobs in the national economy that Koonce could
perform. The ALJ concluded that Koonce was not disabled. The
Appeals Council declined to review the ALJ's decision, rendering it
the final decision of the Commissioner. Koonce then filed a civil
action in the district court. The district court granted the Commission-
er's motion for summary judgment, and Koonce now appeals.
We must uphold the Commissioner's decision denying disability so
long as the decision is supported by substantial evidence and in reach-
3
ing the ultimate conclusions, the correct law was applied. See 42
U.S.C.A. § 405(g) (West Supp. 1998); Hays v. Sullivan, 907 F.2d
1453, 1456 (4th Cir. 1990). Substantial evidence has been defined by
the Supreme Court as "``such relevant evidence as a reasonable mind
might accept as adequate 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)). Substantial evidence "consists
of more than a mere scintilla of evidence but may be somewhat less
than a preponderance. If there is evidence to justify a refusal to direct
a verdict were the case before a jury, then there is``substantial evi-
dence.'" Hays, 907 F.2d at 1456 (quoting Laws v. Celebrezze, 368
F.2d 640, 642 (4th Cir. 1966)). We will not reweigh the evidence or
substitute our judgment for that of the Commissioner. See Hays, 907
F.2d at 1456.
First, Koonce argues that the ALJ erred in not giving controlling
weight to Koonce's own treating physicians, Dr. Murinson and Nurse
Ballen. Specifically, Koonce contends that: (1) Nurse Ballen noted in
August 1992, that Koonce would be disabled indefinitely because her
treatments for cancer are physically and emotionally debilitating and
that she would be unable to work until the treatments were completed;
(2) in September 1993, Dr. Murinson noted that legitimate grounds
for full disability exist; and (3) in January 1995, Dr. Murinson stated
that Koonce had lymphedema of the left arm and that she continues
to be incapacitated by her left upper extremity problems. Further,
Koonce asserts that the ALJ failed to accept the opinion of Dr. Clon-
inger, a consultative examining physician, expressed during the first
administrative hearing.
An ALJ's determination as to the weight to be assigned to a medi-
cal opinion will generally not be disturbed absent some indication that
the ALJ has dredged up "specious inconsistencies," see Scivally v.
Sullivan, 966 F.2d 1070, 1076-77 (7th Cir. 1992), or has not given
good reason for the weight afforded a particular opinion. See 20
C.F.R. § 404.1527(d) (1998). Circuit precedent does not require that
a treating physician's testimony "be given controlling weight."
Hunter v. Sullivan, 993 F.2d 31, 35 (4th Cir. 1992). While 20 C.F.R.
§§ 404.1527(d)(2) & 416.927(d)(2) both provide that a treating
source's opinion on issues of the nature and severity of the impair-
ments will be given controlling weight if it is well supported by medi-
4
cally acceptable clinical and laboratory diagnostic techniques and is
not inconsistent with the other substantial evidence in the record,
"[b]y negative implication, if a physician's opinion is not supported
by clinical evidence or if it is inconsistent with other substantial evi-
dence, it should be accorded significantly less weight." Craig v.
Chater, 76 F.3d 585, 590 (4th Cir. 1996). A medical expert's opinion
as to the ultimate conclusion of disability is not dispositive; opinions
as to disability are reserved for the Commissioner. See 20 C.F.R.
§ 404.1527(e)(1) (1998). Generally, such opinions are given more
weight the more the medical source presents relevant evidence to sup-
port it and the better the source explains the opinion. See 20 C.F.R.
§ 404.1527(d)(3) (1998). In addition, the more consistent the opinion
is with the record as a whole, the more weight it will be given. See
20 C.F.R. § 404.1527(d)(4) (1998). Medical findings must also be
supported by "medically acceptable clinical and laboratory diagnostic
techniques." See 20 C.F.R. § 404.1526(b) (1998).
Dr. Murinson was Koonce's oncologist and internist from 1992
until 1995. His treatment of her consisted of approximately nine vis-
its. During one of the visits, Dr. Murinson stated, inter alia, that "le-
gitimate grounds for disability exists." We find that Koonce's
contention that Dr. Murinson's opinion should be given controlling
weight to be without merit because Dr. Murinson's statement regard-
ing whether Koonce was disabled is a determination reserved for the
Commissioner. See 20 C.F.R. § 404.1527(e)(1) (1998).
Further, Dr. Murinson's opinion that Koonce has lymphedema and
continues to be incapacitated by her left upper extremity problems is
also not entitled to controlling weight because the opinion was not
supported by any objective medical evidence. Moreover, the record
as a whole is inconsistent with Dr. Murinson's opinion that Koonce
is incapacitated by her edema. Just months before Dr. Murinson gave
this opinion, he observed that Koonce was no longer receiving any
physical therapy, for reasons that were unclear to him, and that she
seemed indifferent to her problems with her left upper extremity.
Moreover, an assessment by Dr. Rowe, a rheumatologist, suggested
that Koonce's "frozen shoulder" could improve considerably if not be
totally eliminated with medication and physical therapy. As a result,
we find that the ALJ did not err in refusing to give controlling weight
to Dr. Murinson's opinions. See Craig, 76 F.3d at 589-90.
5
Nurse Ballen attributed Koonce's disability only to the side effects
of the chemotherapy and radiation treatments and, as the ALJ found,
Koonce's treatments ended in August 1992. Therefore, there was no
continuing basis for Nurse Ballen's opinion of disability. Further,
under the regulations, a nurse is not considered an"acceptable medi-
cal source" for providing opinions on what a claimant can do despite
her impairments. See 20 C.F.R. § 404.1513(a) (1998). Although
Koonce asserts that Nurse Ballen should be given the status of an "ac-
ceptable medical source" because she was part of a treatment team,
the record reflects that Nurse Ballen alone made the assessment that
Koonce was disabled. In any event, the determination of whether a
claimant is disabled is one reserved for the Commissioner. See 20
C.F.R. § 404.1527(e)(1) (1998).
Koonce's contention that the ALJ erred in failing to accept the
opinion of Dr. Cloninger, a consultative examining physician who
testified at the first hearing, is without merit. Dr. Cloninger reported
that Koonce was "unable to do any substantial work at all on a sus-
tained basis" because of the swelling in her left upper extremity, but
he could not say how long that condition would continue in the future.
Dr. Cloninger was a consulting physician rather than a treating physi-
cian; therefore, under the regulations, his opinion cannot be given
controlling weight. See 20 C.F.R. §§ 404.1502; 404.1527(d)(2)
(1998). Further, aside from Dr. Cloninger's reluctance to predict the
future course of Koonce's impairments, his statement that he thought
her impairments would last up to August 1992, fell short of the
twelve-month durational requirement for disability under the regula-
tions. See 20 C.F.R. § 404.1505(a) (1998). The ALJ did not err in
declining to accord significant weight to Dr. Cloninger's opinion.
Next, Koonce contends that the ALJ erred in finding that her
impairments did not meet or equal the criteria for any listed impair-
ment in listing 12.04 in Appendix 1, Subpart P, Regulations Number
4.* The ALJ found that Koonce had an affective disorder since
_________________________________________________________________
*Listing 12.04 provides that an affective disorder meets the required
severity when: (a) there is medically documented persistence of either
depressive syndrome, manic syndrome or bipolar syndrome; and
(b) which result in at least two of four behavioral deficiencies. See
Appendix 1, Subpart P, Regulations Number 4.
6
November 1993, but that it was not severe enough to meet or equal
listing 12.04. The ALJ found that Koonce was not documented as
having the required four signs and symptoms under§ 12.04A(1) nec-
essary to establish the ongoing presence of a medically determinable
mental impairment from November 1993 through September 1995.
The ALJ discounted the opinion of Dr. Morcos, a consultative psychi-
atric examiner, because it was supported only by Koonce's self-
serving allegations during her pursuit of disability benefits. The
record reveals that, although Koonce sought help for her symptoms
of depression at a mental health center in November 1993, she
stopped seeking counseling after a few sessions and never returned
for future scheduled treatments. Rather, three days after going to the
mental health center, Koonce obtained samples of an antidepressant
from Dr. Murinson. She reported to Dr. Murinson in February 1994
that her depression was better and received more antidepressants.
However, when she was sent to Dr. Morcos for a consultative psychi-
atric examination, she described the same depressive symptoms that
she had in 1993 when she attended the mental health center. The ALJ,
giving Koonce the "benefit of the doubt," noted that it is reasonable
to conclude that from "time to time" Koonce's mood might be "lower
than at other times" and that this mood might interfere minimally with
her ability to tolerate work-related stress. In order to qualify as dis-
abled, however, Section 12.04 mandates that two criteria be met. The
ALJ's review of Koonce's reported activities provides substantial evi-
dence for his conclusion that Koonce did not satisfy the listing.
Koonce also contends that the ALJ's determination that she had the
residual functional capacity ("RFC") to perform light work with no
overhead reaching, using the left arm as an assistive device only, and
only light level stress was not supported by substantial evidence. Spe-
cifically, she asserts that this determination failed to take into account
the problems associated with her dysthymic disorder and her coccy-
dynia. Our review of the ALJ's opinion reveals that both of these fac-
tors were taken into account.
The determination of a claimant's RFC and the application of voca-
tional factors are reserved to the ALJ, who is not bound by medical
opinion on these subjects. See 20 C.F.R.§ 404.1527(e)(2) (1998). As
mentioned previously, Dr. Morcos' opinion regarding Koonce's
alleged mental impairments was discounted by the ALJ because it
7
was not supported by any medical testing and was not supported by
the record as a whole. Moreover, the ALJ specifically considered
Koonce's coccydynia in determining her RFC. The ALJ, however,
found that based on the evidence, Koonce obtained"satisfactory relief
of pain and discomfort" with the prescribed medication and with the
aide of a donut cushion. Accordingly, the ALJ specifically considered
both of these impairments but found that Koonce was not affected by
the impairments as she alleged.
Additionally, Koonce contends that the hypothetical question posed
to the vocational expert was faulty because it did not incorporate Dr.
Morcos' findings from his consultative examination of Koonce's sit-
ting limitations caused by the coccydynia. For a vocational expert's
opinion to be relevant, it must be in response to a proper hypothetical
question that sets forth all of the claimant's impairments. See Walker
v. Bowen, 889 F.2d 47, 50-51 (4th Cir. 1989). The ALJ, however, has
great latitude in posing hypothetical questions and is free to accept or
reject suggested restrictions so long as there is substantial evidence to
support the ultimate question. See Martinez v. Heckler, 807 F.2d 771,
774 (9th Cir. 1986). As previously noted, the ALJ properly found that
Dr. Morcos' opinion was not entitled to controlling weight, and there-
fore, the ALJ did not err in excluding Koonce's alleged mental
impairments from the hypothetical. Moreover, the ALJ did include
nonexertional limitations in the hypothetical that were supported by
the record. Additionally, the ALJ properly excluded evidence of
Koonce's coccydynia because the record demonstrated that the pain
was "tolerable" and adequately managed with pain medication. We
find that the ALJ's hypothetical fairly accounted for Koonce's impair-
ments. See Walker, 889 F.2d at 50.
Koonce also contends that the number of jobs the vocational expert
testified existed that she was able to perform was inflated, and there-
fore, the ALJ erred in relying on the information. As support for her
assertion that the vocational expert's testimony was inflated and
unsubstantiated, Koonce relies on jobs listed in the Unskilled
Employment Quarterly as the only source for the number of jobs
available. Koonce's assertion that the vocational expert's testimony
lacked credibility presumes that the vocational expert relied on the
Unskilled Employment Quarterly. Rather, the regulations specifically
provide that the vocational expert is entitled to rely on any one of a
8
number of sources. See 20 C.F.R. § 1566(d) (1998). Further, even
assuming the Vocational examiner overestimated the number of jobs
available, Koonce concedes that there are still hundreds of jobs avail-
able. See Hicks v. Califano, 600 F.2d 1048, 1051 n.2 (4th Cir. 1979)
(noting that as few as 110 jobs constitute a significant number). We
find that Koonce's contention is without merit.
Finally, Koonce asserts that the ALJ did not give proper weight to
her complaints of pain and did not properly assess her credibility.
Once medical evidence is produced supporting the existence of a con-
dition that could reasonably produce pain, the Commissioner must
assess the effect of pain on the claimant's residual functional capac-
ity. See Foster v. Heckler, 780 F.2d 1125, 1129-30 (4th Cir. 1986).
Evidence of a claimant's activities as affected by the pain is relevant
to the severity of the impairment. See Craig, 76 F.3d at 595. An
ALJ's assessment of a claimant's credibility regarding the severity of
pain is entitled to great weight when it is supported by the record. See
Shively v. Heckler, 739 F.2d 987, 989-90 (4th Cir. 1984).
The ALJ's report clearly demonstrates that he considered the opin-
ion of Koonce's physicians, her medical history, her treatments and
medications, and her own subjective claims regarding her pain in con-
cluding that her pain was not as disabling as Koonce alleged. The
ALJ gave numerous reasons for discounting Koonce's testimony and
credibility. We therefore find no merit to Koonce's contention that the
ALJ did not give proper consideration to her pain and did not properly
assess her credibility.
We therefore affirm. We dispense with oral argument because the
facts and legal contentions are adequately presented in the materials
before the court and argument would not aid in the decisional process.
AFFIRMED
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