Stewart v. Apfel, Commissioner ( 1999 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
CHARLOTTE J. STEWART,
Plaintiff-Appellant,
v.
No. 98-1785
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, District Judge.
(CA-96-653-2)
Argued: May 4, 1999
Decided: July 12, 1999
Before WIDENER, MURNAGHAN, and NIEMEYER,
Circuit Judges.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
ARGUED: Jimmy Alan Pettus, Charlotte, North Carolina, for Appel-
lant. John Carl Stoner, Office of the General Counsel, SOCIAL
SECURITY ADMINISTRATION, Atlanta, Georgia, for Appellee.
ON BRIEF: Frank W. Hunger, Assistant Attorney General, Walter
C. Holton, Jr., United States Attorney, Gill Beck, Assistant United
States Attorney, Mary Ann Sloan, Chief Counsel, Region IV, Dennis
R. Williams, Deputy Chief Counsel, Elyse Sharfman, Acting Branch
Chief, Sonia G. Burnett, Assistant Regional Counsel, Office of the
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Unpublished opinions are not binding precedent in this circuit.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:
Seeking social security disability benefits Charlotte Stewart, the
plaintiff, brought a proceeding which led to a decision by an adminis-
trative law judge (ALJ) denying such benefits. It is contended on
Stewart's behalf that the ALJ failed to review medical testimony from
two doctors. In fact, it appears that the ALJ did consider such evi-
dence. Further, the ALJ's decision that the headaches, overall physi-
cal pain throughout the plaintiff's body, and mental health problems
were insufficient to render the plaintiff incapable of useful light work
is supported by substantial evidence. We therefore affirm.
I.
Stewart was 51 years old at the time of the ALJ's decision on
December 20, 1994. She has a high school education and past rele-
vant work as a sewing machine operator and waitress. Stewart testi-
fied that her last full-time job was as a sewing machine operator in
1987. The work was not complicated, and was performed in a seated
position. According to Stewart's testimony, she was not required to
interact with others, but was allowed to talk to coworkers as long as
the work was done.
The ALJ found that Stewart had not engaged in substantial gainful
activity since November 20, 1987, her alleged onset date of disability.
The ALJ further found that she met the disability insured status
2
requirement of the Social Security Act on that date. However, the
ALJ determined that Stewart was insured only through December 31,
1992.
The record shows that Dr. Barry Barker was Stewart's primary
physician throughout all times relevant to the present appeal. Stew-
art's complaints to Dr. Barker were primarily for pain and swelling.
In April 1988, Stewart complained to Dr. Barker about increased pain
in her neck and shoulders. In April 1989, Stewart related that she
woke up with a feeling of stiffness in her back. Dr. Barker noted ten-
derness on palpation of the low back and assessed Stewart's condition
as lower back strain. In August and September 1989, Stewart visited
Dr. Barker with complaints of dizziness. In February 1990, Stewart
visited Dr. Barker with a complaint that her body ached all over. She
related that she felt tired and had been sleeping more than usual. Dr.
Barker noted that Stewart appeared "somewhat depressed" and he pre-
scribed Prozac.1
Dr. Barker is not the only doctor who has evaluated Stewart. She
underwent examinations by, inter alia, Dr. Meredith Hall and Dr.
Thomas Gresalfi. R. Meredith Hall, Ph.D. gave Stewart a consultative
psychological evaluation on October 4, 1989. This examination was
conducted pursuant to Stewart's application for services through the
Division of Vocational Rehabilitation, not for purposes of determin-
ing her eligibility for Social Security benefits. Dr. Hall diagnosed
Stewart with "anxiety, mixed with depression, severe." Dr. Hall
described Stewart as agitated and anxious. She noted that Stewart had
a family history of suicide and that she became tearful when discuss-
ing the deaths of family members, but generally retained control of
her emotions.2 Dr. Hall noted that Stewart could execute most average
work movements adequately and her response speed was still ade-
_________________________________________________________________
1 Although none of his contemporaneous evaluations contained this
diagnosis, as of 1995, Dr. Barker "assumed" that Stewart was "most
likely disabled" due to multiple polyarthralgias and polymalgias in
December 1992. Such an opinion is not binding on the Social Security
Administration. See 20 C.F.R. § 404.1527(e)(1) (1998).
2 In the two years prior to the claimed onset of her disability, Stewart's
father killed himself, her mother died of cancer, and her son committed
suicide.
3
quate for most production demands. Importantly, Dr. Hall commented
that Stewart could benefit from working in a low stress environment.
On November 22, 1993, Stewart was evaluated by Dr. Thomas
Gresalfi. Stewart related complaints about physical symptoms and she
told Dr. Gresalfi that she felt depressed following her son's death in
January 1987. Dr. Gresalfi opined that Stewart had"poor or no[ ]"
ability to function in the following areas: follow work rules, interact
with supervisors, deal with work stresses, maintain attention and con-
centration, understand, remember, and carry out complex job instruc-
tions, and demonstrate reliability. Dr. Gresalfi indicated that Stewart's
ability to function in the following areas was "fair": deal with the pub-
lic, use judgment, function independently, understand, remember and
carry out simple job instructions, behave in an emotionally stable
manner, and relate predictably in social situations. Stewart's ability
was limited but satisfactory in the following areas: relate to co-
workers and maintain personal appearance.
Dr. Gresalfi diagnosed Stewart with major depression, single epi-
sode, non-psychotic, psychological factors affecting physical condi-
tion; fibrocytis, hypertension and headaches. Dr. Gresalfi noted that
Stewart's prognosis for returning to work would depend upon her
response to psychiatric treatment.
Stewart testified before the ALJ to having limited activities and
sleep disruption due to physical pain. She testified that her pain was
constant and was only moderately relieved by prescription medica-
tion. Stewart stated that she had difficulty climbing hills. Stewart did
housework and grocery shopping, but she testified that she often
needed help removing items from the shelves at the grocery store.
Stewart was still able to take care of her personal needs, including
dressing herself, bathing and shampooing her hair. She also visited
with her granddaughter and a close friend weekly.
Stewart related that she had been given Prozac by Dr. Barry
Barker, her family physician, following her son's death in 1987 or
1988, but that she stopped taking it after hearing adverse publicity
about it. She also stated that she contacted a mental health center in
early 1988, but did not follow up after the long waiting period
because she felt that she was not in need of psychological counseling.
4
The ALJ found that although the medical evidence of record estab-
lished that Stewart had severe myalgias, degenerative disc disease,
depression, and non-severe hypertension, she retained the residual
functional capacity to perform light work, including her past job as
a sewing machine operator.3
The Appeals Council denied Stewart's request for review, making
the ALJ's decision the final decision of the Commissioner. See 20
C.F.R. § 404.955 and 404.981 (1998). On appeal, the district court
referred the matter to a magistrate for review. The magistrate judge
found that the ALJ's decision was supported by substantial evidence.
After de novo review, the district court adopted the magistrate judge's
recommendation. Stewart now appeals contending that the ALJ com-
mitted an error of law in failing to consider all of the medical evi-
dence, in particular the evidence from two doctors, and in failing
adequately to state the weight accorded to the evidence.4
II.
The Social Security Act defines "disability" as the inability to
engage in any substantial gainful activity due to physical or mental
impairments which can be expected either to result in death or to last
for a continuous period of not less than 12 months. See 42 U.S.C.A.
§ 416(i) (West Supp. 1999). The Social Security regulations provide
a sequence of questions to evaluate whether a claimant is disabled.
See 20 C.F.R. § 404.1520 (1998). Because Stewart's admittedly
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3 It is worth noting that the ALJ found that Stewart's allegations of
physical discomfort lacked credibility, in part because he believed that
she had admitted lying in the past in order to receive unemployment ben-
efits.
4 Stewart abandoned on appeal a number of assertions, including the
arguments that (1) the ALJ failed to consider her mental condition as a
contributing factor to pain; (2) the ALJ improperly evaluated her credi-
bility; (3) the ALJ improperly evaluated her mental impairment; (4) the
ALJ failed to consider a determination of disability by the North Caro-
lina Division of Vocational Rehabilitation; and (5) the ALJ failed to con-
sider her inability to afford medical treatment. Stewart now argues only
that the ALJ failed to consider and explicitly weigh all medical evidence
of record.
5
severe impairments were not in the Listing of Impairments in Subpart
P, Appendix 1, the ALJ was required to ask whether Stewart retained
the functional capacity to return to her past relevant work, and, if not,
whether she could perform other work. See id. The burden was on
Stewart to show that she could not perform her past relevant work.
See Hunter v. Sullivan, 993 F.2d 31, 35 (4th Cir. 1992). The ALJ
found that Stewart's residual functional capacities were not inconsis-
tent with her past relevant work as a sewing machine operator, and
thus, that she was not "disabled" at any time during her period of cov-
erage.
Under 42 U.S.C.A. § 405(g) (West 1991 & Supp. 1999), the scope
of our judicial review is narrow. We may only examine whether the
Commissioner's factual findings are "supported by substantial evi-
dence" and whether the Commissioner's legal conclusions are a cor-
rect application of controlling law. See Craig v. Chater, 76 F.3d 585,
589 (4th Cir. 1996); Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir.
1990). The phrase "supported by substantial evidence" means "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)); Craig, 76 F.3d at 589, "`[i]t consists of more than a mere
scintilla of evidence but may be somewhat less than a preponderance.
If there is evidence to satisfy a refusal to direct a verdict were the case
before a jury, then there is `substantial evidence.'" Shively v. Heckler,
739 F.2d 987, 989 (4th Cir. 1984) (quoting Laws v. Celebrezze, 368
F.2d 640, 642 (4th Cir. 1966)).
To assist the reviewing courts in determining whether his findings
are supported by substantial evidence, the ALJ must"explicitly indi-
cate[ ] the weight given to all of the relevant evidence." Gordon v.
Schweiker, 725 F.2d 231, 235 (4th Cir. 1984). Thus, "`[u]nless the
[ALJ] has analyzed all evidence and has sufficiently explained the
weight he has given to obviously probative exhibits, to say that his
decision is supported by substantial evidence approaches an abdica-
tion of the court's duty to scrutinize the record as a whole to deter-
mine whether the conclusions reached are rational.'" Id. at 236(internal quotation marks omitted) (quoting Arnold v. Secretary of
Health, Ed. & Welfare, 567 F.2d 258, 259 (4th Cir. 1977)). See also
20 C.F.R. § 404.1527(b)-(d).
6
Stewart has alleged that the ALJ committed reversible error by not
considering all of the evidence. Specifically, she asserts that the ALJ
violated the command of Gordon v. Schweiker, 725 F.2d at 235-36,
by failing to explicitly indicate the weight he accorded to the reports
from Drs. Thomas Gresalfi and R. Meredith Hall.
We find no reversible error in the ALJ's treatment of Dr. Gresalfi's
evaluation. The ALJ specifically mentioned Stewart's visit to Dr.
Gresalfi in his opinion, but only in passing. Still, the ALJ's findings
were generally in accord with Dr. Gresalfi's evaluation. The ALJ con-
sidered Stewart's alleged depression and gave her"the benefit of the
doubt," finding that her mental impairment caused some degree of
functional limitation to her ability to perform basic work-related
activities. The ALJ noted, however, that Dr. Barker, Stewart's pri-
mary physician, had not been concerned enough about her mental
health, even considering her family history of problems, to refer her
to the care of a mental health specialist. See Coffman v. Bowen, 829
F.2d 514, 517 (4th Cir. 1987) (opinion of treating physician generally
must be given great weight); 20 C.F.R. § 404.1527(d)(2) (1998) (stat-
ing that ALJ should give greater, and in some cases controlling,
weight to opinions of treating professionals). Further, the ALJ noted
that Stewart on her own volition ceased taking Prozac, and did not
pursue any treatment for her mental impairment. Cf. 20 C.F.R.
§ 404.1530 (1998) (stating that the Secretary may deny benefits if a
person unjustifiably refuses to follow prescribed treatment); Gordon
v. Schweiker, 725 F.3d at 236 (same). Finally, the ALJ noted various
aspects of Stewart's daily life which indicated that she could function
in a limited manner. See Gross v. Heckler, 785 F.2d 1163, 1166 (4th
Cir. 1986) (considering pattern of daily activities in disability evalua-
tion).
In addition to the above, the most important point regarding Dr.
Gresalfi's report is that the consultation occurred almost one year
after Stewart's insured status had lapsed. Because Stewart's disability
insured status ended on December 31, 1992, she had to show that she
in fact became disabled prior to that date. It would not have been suf-
ficient for her to show that before December 31, 1992 she suffered
from impairments that subsequently became disabling. See Milam v.
Bowen, 782 F.2d 1284, 1286 (5th Cir. 1986) (An impairment that
became disabling after a claimant's insured status expired cannot be
7
the basis for a favorable finding on a disability claim); Owens v.
Heckler, 770 F.2d 1276, 1280 (5th Cir. 1985) (same). The psychiatric
evaluation by Dr. Gresalfi was performed on November 11, 1993,
eleven months after Stewart's insured status expired. Dr. Gresalfi's
report was therefore largely irrelevant to proving that she became dis-
abled between November 20, 1987, her alleged onset date, and
December 31, 1992, the date she was last insured. Therefore, even if
this report was not considered by the ALJ (and the record's reference
to the report belies such a statement), the information in the report
was of minimal relevance for determining the state of Stewart's health
during the insured period. The command in Gordon v. Schweiker,
supra, only applies when the evidence is relevant.
Potentially more troubling, however, the ALJ's report completely
fails to mention the evaluation by Dr. Hall, which did occur during
the insured period. Dr. Hall's evaluation indicated that Stewart
appeared to be in "desperate need of a mental health clinic relation-
ship." Dr. Hall opined Stewart had severe anxiety, mixed with depres-
sion and that Stewart was a suicide risk.
The magistrate judge that reviewed the ALJ's decision found that
Dr. Hall's report was not material to the instant case because, inter
alia, it adds nothing to the opinions of Drs. Gresalfi and Barker that
plaintiff suffered from severe depression, and it did not speak to the
fact, noted by the ALJ, that Stewart refused treatment for her mental
impairment. Further, the magistrate judge noted that Stewart visited
with Dr. Hall only once, and thus the information from Dr. Barker,
her primary physician, was much more probative. See Coffman v.
Bowen, 829 F.2d at 517; 20 C.F.R. § 404.1527(d)(2). Finally, Dr.
Hall's evaluation actually assumed that Stewart was able to work
because it included a statement indicating that work"that is not totally
taxing to her" could be beneficial. Overall, Dr. Hall's opinion was
consistent with the ALJ's decision that Stewart was not so impaired
that she was unable to perform her past relevant work.
We recognize the continuing requirement that ALJs must be thor-
ough in discussing the weight given to all of the evidence. Although
the ALJ in this case was not as thorough as he could have been, we
affirm the district court. Both the magistrate judge and the district
court evaluated the record as a whole and entered summary judgment
8
against Stewart because there is substantial evidence in the record to
support the ALJ's decision to deny benefits. In 1987 and 1988, Stew-
art declined anti-depressant medication and psychological counseling,
and from 1989 through March 1991 she sought employment assis-
tance with the vocational rehabilitation center. The record indicated
that Stewart was able to carry on, albeit with some difficulty, various
daily activities, and that she was capable of interacting with people
on a limited basis. Further, the medical information received from
Stewart's primary physician, with whom she was in contact through-
out the relevant period, did not indicate a disabling condition. See
Coffman v. Bowen, 829 F.2d at 517; 20 C.F.R.§ 404.1527(d)(2). The
ALJ noted that, given Stewart's family history of suicide, if Dr.
Barker had considered her mental problems to be severe he would
have referred her to a mental health care professional, which he did
not.
Ultimately, Stewart's reliance upon Gordon v. Schweiker is mis-
placed. In that case, we reversed and remanded so that the ALJ could
explain the weight given to a variety of medical evidence. However,
the medical evidence in that case was in conflict and the ALJ never
explained why he chose to end up on one side of the divide rather
than the other. See Gordon v. Schweiker, 725 F.2d at 235. In the case
at bar the medical diagnoses were not inconsistent. To the extent that
some of the diagnoses described Stewart's condition as being more
severe than the others, the ALJ explained why he came to the conclu-
sion that he did.
Therefore, the district court is
AFFIRMED.
9