Hoke v. HHS

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
ERNEST L. HOKE, JR.,
Plaintiff-Appellant,
v.
No. 95-1340
SHIRLEY S. CHATER, COMMISSIONER OF
SOCIAL SECURITY,
Defendant-Appellee.
Appeal from the United States District Court
for the Middle District of North Carolina, at Greensboro.
James A. Beaty, Jr., District Judge.
(CA-93-616-2)
Submitted: October 17, 1995
Decided: January 16, 1996
Before ERVIN, Chief Judge, and HALL and WILKINSON,
Circuit Judges.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
Tomi W. Bryan, TOMI BRYAN & ASSOCIATES, Greensboro,
North Carolina, for Appellant. Walter C. Holton, Jr., United States
Attorney, Benjamin H. White, Jr., Assistant United States Attorney,
Arthur J. Fried, General Counsel, Randolph W. Gaines, Acting Princi-
pal Deputy General Counsel, A. George Lowe, Acting Associate Gen-
eral Counsel, T. David Hu, Office of the General Counsel, SOCIAL
SECURITY ADMINISTRATION, Baltimore, Maryland, for Appel-
lee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Ernest L. Hoke appeals from a district court order, adopting the
report and recommendation of a magistrate judge and upholding the
determination of the Secretary of Health and Human Services* that
he was no longer entitled to disability benefits. Because we find that
substantial evidence supported the Secretary's decision, we affirm.
In 1983, Hoke was found to be disabled due to injuries sustained
to his back and to his right hip, knee and ankle in a motorcycle acci-
dent. On June 1, 1990, Hoke received a Notice of Disability Cessa-
tion, stating that he was no longer disabled. The cessation of benefits
was found appropriate upon reconsideration, and Hoke requested a
hearing before an Administrative Law Judge ("ALJ"). The ALJ deter-
mined that, although Hoke's condition precluded him from perform-
ing his past work, he was not disabled because he could still perform
sedentary work. The Appeals Council denied Hoke's request for
review, and the ALJ's decision therefore became the final decision of
the Secretary. Hoke then filed a civil action in the district court, and
the court affirmed the Secretary's decision, which Hoke appealed to
this court.
Hoke contends that the ALJ erred by affording too little weight to
the opinion of one of his treating physicians. He also asserts that the
_________________________________________________________________
*By order dated April 18, 1995, the Court substituted Shirley S.
Chater, Commissioner of Social Security as party appellee for Donna E.
Shalala, Secretary of Health and Human Services.
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ALJ erred in determining that his impairments did not equal 20 C.F.R.
Pt. 404, Subpt. P, App. 1 § 1.03 (1995). Finally, Hoke claims that the
ALJ incorrectly found that he could perform sedentary work.
Hoke asserts that the ALJ erred in rejecting the opinion of Dr.
James P. Aplington that Hoke was disabled. Dr. Aplington briefly
opined that Hoke was disabled on a Housing Authority form. The
form involved no more than circling a paragraph that stated Hoke was
disabled. However, Dr. Aplington's treatment notes indicate that
Hoke's right knee exhibited a good range of motion and that he dem-
onstrated unrestricted hip motion without any pain. Neither Dr.
Aplington's notes nor the Housing Authority form show how or to
what extent Hoke's abilities and activities are curtailed. In addition,
no other treating physician opined that Hoke was disabled, and in
fact, another doctor released Hoke to work without any limitation.
Although a treating physician's diagnosis is normally entitled to
deference, Dr. Aplington's conclusory, and contradictory, opinion is
not significant enough to be reasonably expected to carry substantial
weight. See Scott v. Heckler, 770 F.2d 482, 485 (5th Cir. 1985) (less
weight may be given to opinion of treating physician when the dis-
ability diagnosis is brief and conclusory); Houston v. Secretary of
Health & Human Servs., 736 F.2d 365, 367 (6th Cir. 1984) (determi-
nation of disability is the prerogative of the Secretary, not the treating
physician, and a brief, conclusory letter by a treating physician is not
dispositive). Stating that Hoke is "disabled" does not assist a finder
of fact in developing an informed opinion or a full understanding of
Hoke's limitations. Therefore, the ALJ properly discounted the con-
clusion of disability submitted by Dr. Aplington.
Hoke contends that the ALJ's determination that he no longer had
a listed impairment under 20 C.F.R. § 404.1594(f)(2) (1995) was not
supported by substantial evidence. Specifically, Hoke alleges that his
impairment met Listing 1.03.
Substantial evidence is defined 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)). Sub-
stantial evidence "consists of more than a mere scintilla of evidence
3
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 evidence.'" Hays v. Sullivan, 907 F.2d 1453, 1456
(4th Cir. 1990) (quoting Laws v. Celebrezze, 368 F.2d 640, 642 (4th
Cir. 1966)).
As the presiding officer at the administrative hearing, the ALJ
makes factual determinations and resolves evidentiary conflicts,
including inconsistencies in the medical evidence. Reviewing courts
do not weigh evidence anew or substitute their judgment for that of
the Secretary, provided substantial evidence supports the Secretary's
decision. Hays, 907 F.2d at 1456.
Listing 1.03 directs a finding of disability when there is:
[a]rthritis of a major weight-bearing joint (due to any
cause):
With history of persistent joint pain and stiffness with
signs of marked limitation of motion or abnormal motion of
the affected joint on current physical examination. With:
A. Gross anatomical deformity of hip or knee
(e.g. subluxation, contracture, bony or fibrous
ankylosis, instability) supported by X-ray evidence
of either significant joint space narrowing or sig-
nificant bony destruction and markedly limiting
ability to walk and stand; or
B. Reconstructive surgery or surgical arthro-
desis of a major weight-bearing joint and return to
full weight-bearing status did not occur, or is not
expected to occur, within 12 months of onset.
The only evidence of arthritis is a medical report from Dr. James
M. Marlowe, M.D., an orthopedic surgeon, which stated that Hoke
had mild to moderate arthritis in his right knee. However, Dr. Mar-
lowe did not report marked limitation of motion in the right knee and
noted no instability. Although another doctor did note limitation in
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the motion of the right knee, this does not change the conclusion that
the ALJ's decision is supported by substantial evidence.
In order to accept Hoke's contentions, the diagnoses and reports of
the doctors involved would have to be accepted in only a piecemeal
fashion--one statement of one doctor and one statement of another,
while rejecting the unfavorable statements of the doctors contained in
the same reports. In short, no doctor reported arthritis and marked
limitation in movement as required by Listing 1.03. Because the med-
ical evidence supported a finding that Hoke showed few signs of
arthritis, suffered no extreme limitations of movement, and was able
to ambulate without any assistance, the ALJ's decision that Listing
1.03 is inapplicable must be upheld.
Finally, Hoke asserts that the ALJ's reliance on the Medical-
Vocational Guidelines (the "Grids") to direct a conclusion that he
retains the residual functional capacity to perform a full range of sed-
entary work was in error. See 20 C.F.R. Pt. 404, Subpt. P, App. 2
§ 200 (1995). Specifically, Hoke argues that the medical evidence
supports the conclusion that he cannot sit for any amount of time
without pain. In addition, Hoke contends that the ALJ improperly
found him to not be credible.
Use of the Grids is proper if the ALJ finds a petitioner's residual
functional capacity is not limited by nonexertional factors, such as
pain. See Gory v. Schweiker, 712 F.2d 929 (4th Cir. 1983). Hoke's
own subjective allegation that he is unable to work is insufficient, by
itself, to establish disability. See Gross v. Heckler, 785 F.2d 1163,
1166 (4th Cir. 1986). However, if a physical condition that could
"reasonably be expected to cause pain" is revealed by objective medi-
cal evidence, the ALJ must evaluate the disabling effects of the claim-
ant's pain, as demonstrated through subjective evidence. Hyatt v.
Sullivan, 899 F.2d 329, 337 (4th Cir. 1990).
The ALJ is required to make credibility determinations about alle-
gations of pain or other nonexertional disabilities. Hammond v.
Heckler, 765 F.2d 424, 426 (4th Cir. 1985). However, such decisions
must refer specifically to the evidence informing the ALJ's conclu-
sion. Id. In this case, the ALJ conducted the proper analysis in a com-
5
prehensive fashion and cited substantial evidence to support his find-
ing.
The ALJ noted that Hoke's daily activities, infrequent and conser-
vative treatment methods, and prescribed treatment for relief of pain
did not support Hoke's claims of disabling pain. For instance, Hoke
sought medical treatment very infrequently until just prior to his ini-
tial hearing for cessation of benefits. In addition, Hoke received only
conservative treatment with mild pain medication. He did not require
hospitalization, physical therapy, surgery, or other treatment.
Furthermore, Hoke himself rated the intensity of pain in his right
knee and hip at a "1" on a scale of 1 to 5, with 5 being the most
intense pain. Additionally, Hoke's complaints were inconsistent. At
the hearing, he testified that he was unable to work due solely to back
pain, but no medical evidence supported a finding of a back impair-
ment. Finally, Hoke testified that Escogesic and Flexeril completely
alleviated his pain. Because the ALJ listed a specific evidentiary basis
for the determination that Hoke was not credible, the ALJ was justi-
fied in discounting Hoke's complaints of nonexertional limitations.
The ALJ further made specific findings regarding Hoke's residual
functional capacity. Evidence before the ALJ demonstrated that while
there are limitations on Hoke's ability to engage in employment, no
treating physician placed any specific restrictions upon Hoke's daily
activities which would prevent him from working. Further, no physi-
cian found limitations in Hoke's upper extremities or noted any sig-
nificant sitting impairment. Simply stated, there was no testimony or
evidence that Hoke's condition would significantly hinder his
employment in a sedentary job. In fact, Dr. Marlowe released Hoke
to return to all activities and work.
While there is differing and contradictory testimony, substantial
evidence supported the ALJ's finding that Hoke was not credible and
suffered from no nonexertional disabilities. Therefore, the ALJ prop-
erly resorted to the Grids. Considering Hoke's age, education, past
relevant work experience, and residual functional capacity for seden-
tary work, the Grids direct a conclusion that Hoke is not "disabled"
within the meaning of the Social Security Act.
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Because we find that substantial evidence supports the Secretary's
decision that Hoke is no longer disabled, we 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 the decisional process.
AFFIRMED
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