Slayton v. Apfel ( 1999 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
BETTY SLAYTON,
Plaintiff-Appellant,
v.
No. 98-1885
KENNETH S. APFEL, Commissioner of
Social Security,
Defendant-Appellee.
Appeal from the United States District Court
for the Eastern District of Virginia, at Norfolk.
Rebecca B. Smith, District Judge.
(CA-97-477-2)
Submitted: February 23, 1999
Decided: March 22, 1999
Before HAMILTON, LUTTIG, and MOTZ, Circuit Judges.
_________________________________________________________________
Vacated and remanded by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
Bruce Knight Billman, Fredericksburg, Virginia, for Appellant. James
A. Winn, Chief Counsel, Region III, Patricia M. Smith, Deputy Chief
Counsel, Allyson S. Jozwik, Assistant Regional Counsel, Office of
Chief Counsel, SOCIAL SECURITY ADMINISTRATION, Philadel-
phia, Pennsylvania; Helen F. Fahey, United States Attorney, Anita K.
Henry, Assistant United States Attorney, Richmond, Virginia, for
Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Betty Slayton appeals the district court's final order adopting the
recommendation of a magistrate judge, granting summary judgment
to the Commissioner, denying Slayton's motion for summary judg-
ment, and affirming the Commissioner's decision denying her appli-
cation for disability insurance benefits. Slayton contends that
substantial evidence does not support the findings that work exists in
significant numbers in the regional or national economy which she is
capable of performing and that her testimony was not credible. She
also contends that the administrative law judge ("ALJ") failed to
explain the weight given to the findings and conclusions of the treat-
ing physician. The Commissioner contends that the case should be
remanded to the Commissioner for the purpose of having the ALJ
make specific findings of fact regarding alleged unresolved conflicts
in the evidence and, if warranted, take further testimony from the
vocational expert ("VE"). Because we agree with the Commissioner,
the judgment of the district court is vacated and the case remanded
with instructions to return it to the Commissioner for further proceed-
ings in accordance with this opinion.
Slayton was born in March 1942. She received a G.E.D. in 1971.
Prior to the onset of her disability, she assisted her electrician-
husband and worked as a sewing machine operator. Slayton applied
for disability insurance benefits and supplemental security income on
October 10, 1993, alleging that she became unable to work because
of chronic swelling in her nondominant left hand and arm following
surgery for breast cancer.
Following a modified radical mastectomy, Slayton underwent
implantation of a skin tissue expander by Dr. Gerald Truesdale.
Truesdale saw Slayton on several occasions from May 1986 through
September 1990. In August 1990, Truesdale reported that Slayton had
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chronic lymphedema of the left arm resulting in increased swelling
and decreased functional use of the left arm whenever Slayton
attempted to use or increase the usage of the arm.* Truesdale recom-
mended physical therapy for the left arm to prevent loss of all func-
tional ability. He noted that therapy helped Slayton, but the condition
was chronic. In this report, Truesdale described the condition as dis-
abling. Truesdale saw Slayton again in 1995. In a report prepared in
1996, Truesdale reiterated his conclusion that Slayton was disabled.
He also reported that Slayton was required to elevate her left arm sev-
eral times during the day for lengthy periods of time in order to
reduce swelling in the arm and hand.
Slayton was also under the care of a surgeon, Dr. William Bow-
man. In April 1989, Bowman observed that Slayton had swelling of
her left arm; he noted that the swelling was not disabling and that it
went down every night. Based on a May 1991 examination, Bowman
stated in August 1991 that Slayton was able to work because her con-
dition was stable. He noted, however, that she was restricted from
engaging in continuous or heavy work with her left arm and hand, and
she could not perform any occupation likely to injure the left hand.
In 1992, Slayton began seeking treatment from Dr. Randolph J.
Gould, a surgeon. In October 1992, Gould noted that Slayton had
chronic lymphedema that was unresponsive to therapies. He observed
that Slayton was often unable to close her left hand and could not
raise her arm above her shoulder. In June 1993, Gould noted that
Slayton's left arm edema was stable. In a report prepared in October
1993 for the Virginia Department of Social Services, Gould opined
that Slayton was unable to work because of "inadequate use of her left
arm." He also offered that Slayton could possibly engage in employ-
ment that required only the use of her right arm. (Administrative
Record at 180).
In March 1994, Dr. Ramnath Nayak, a specialist in internal medi-
cine, performed a consultative examination of Slayton. He observed
_________________________________________________________________
*Lymphedema is swelling as a result of obstruction of lymphatic ves-
sels or lymph nodes and the accumulation of large amounts of lymph in
the affected region. See STEDMAN'S MEDICAL DICTIONARY 1004 (26th ed.
1995).
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that Slayton's left arm and hand were swollen to twice the normal
size. He also observed that Slayton's left hand grip strength was three
out of five and she could only raise her left arm 90 degrees. He fur-
ther noted that her finger dexterity was good. He opined that Slayton
could lift no more than ten pounds with her left hand, but could carry
and handle objects without difficulty.
At the hearing before the ALJ, Slayton stated that she was unable
to do more than a little housework. She also stated that she could cro-
chet for no more than fifteen or twenty minutes due to arthritis in her
fingers and increased swelling in her arm. According to Slayton, any
movement caused her left hand and arm and chest to swell. She also
described painful throbbing that increased with the swelling, for
which she took Advil. To reduce the swelling, she would elevate her
arm for about an hour from either a prone or sitting position. She
stated that she needed to elevate her arm three or four times a day.
At the hearing, the ALJ asked the vocational expert to assume that
Slayton was capable of light and sedentary work with the restriction
that she is limited in the use of her nondominant, upper extremity to
the point where she can use it only to support activities of her domi-
nant right hand and could not use the left hand for repetitive grasping,
lifting, or reaching above the shoulder level. The VE stated that Slay-
ton could perform as a cashier, parking lot attendant, interviewer, or
information clerk.
The ALJ then asked the VE to assume the same limitations with
the addition that Slayton was required to lie down and elevate her left
arm several times a day for up to an hour at a time. The VE stated
that under that assumption, Slayton could not perform any type of
substantial gainful activity. The VE also stated that under the original
hypothesis, Slayton would not be precluded from performing those
jobs even with mild pain that did not interfere with her ability to con-
centrate. Moderate or severe pain resulting in loss of concentration
and problems with attendance would not make her eligible for any of
the jobs identified.
The ALJ applied the sequential five step analysis found at 20
C.F.R. § 404.1520 (1998). Under this process, the ALJ concluded that
Slayton: (1) was not currently engaged in substantial gainful activity;
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(2) had a severe impairment; (3) did not have an impairment that met
or equaled medical criteria warranting a finding of disability without
considering vocational factors; (4) was prevented from performing
her past relevant work; and (5) could perform light work with some
limitations.
With regard to step five, the ALJ concluded that Slayton had the
residual functional capacity to perform work at the light level of exer-
tion in which Slayton could use her left upper extremity only to assist
the right arm. The ALJ found that Slayton was precluded from work
that required more than limited use of her left arm or required repeti-
tive grasping, lifting, or reaching above should level.
The ALJ reviewed all the medical evidence and, with the exception
of Truesdale's opinion regarding disability, did not explicitly reject
any of it. The ALJ noted that Gould and Bowman indicated that Slay-
ton was precluded from work that used the left arm and work that
required more than very limited use of the left arm. He noted specifi-
cally that Gould opined that Slayton could perform only jobs that
required just the use of her right arm. He also noted that Truesdale
found chronic swelling that could only be relieved by elevation and
Advil. The ALJ considered Truesdale's opinion that Slayton was dis-
abled and found the opinion unsupported by the record.
The ALJ concluded that Slayton's testimony was not fully credible.
He agreed that she experienced significant swelling in her left arm
and was unable to use the arm on a sustained basis. However, he
found that she could use the arm for short periods of time. He also
found Slayton's testimony regarding pain was not credible because
she did not take any prescription medications or receive ongoing
treatment.
We review the Commissioner's final decision to determine whether
it is supported by substantial evidence and whether 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
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 reweigh conflicting evidence, make credibil-
5
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.The Commissioner contends that remand is appropriate because an
unresolved conflict remains concerning whether the ALJ found that
Slayton had limited use of her left arm or no use of her left arm. We
agree. Because the ALJ did not explicitly indicate the weight given
to all of the relevant evidence, we cannot determine if the findings are
supported by substantial evidence. See Gordon v. Schweiker, 725 F.2d
231, 235 (4th Cir. 1984). Specifically, the ALJ did not indicate the
weight given to the findings of each of the treating physicians. Gener-
ally, evidence from treating physicians should be accorded controlling
weight unless it is not supported by clinical evidence and if it is
inconsistent with other substantial evidence. See 20 C.F.R.
§ 404.1527(d)(2) (1998). Thus, we find that remand to the Commis-
sioner is appropriate.
In addition to determining the extent to which Slayton can use her
left arm, the ALJ must make a finding regarding the assertion that
Slayton needs to periodically elevate the arm. If this testimony is
credited, the ALJ must also evaluate the effect of the need for eleva-
tion on Slayton's ability to work. According to the VE, if Slayton
must lie down and elevate her arm, she is precluded from all work.
However, the evidence is unclear as to whether Slayton must always
lie down when elevating the arm. Furthermore, there is no evidence
of the effect upon her ability to work if she can elevate her arm from
a seated or standing position.
Because we find unresolved factual issues with regard to Slayton's
residual functional capacity, we do not reach Slayton's contention that
the Commissioner failed to meet his burden of proof that work exists
for Slayton in significant numbers in the regional or national econ-
omy. After the ALJ resolves the factual issues regarding Slayton's
residual functional capacity, further testimony from a VE may be nec-
essary to determine whether there are jobs for Slayton.
Accordingly, the judgment of the district court is vacated and the
case is remanded with instructions to return it to the Commissioner
6
for further proceedings in accordance with this opinion. 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.
VACATED AND REMANDED
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