Nelson v. Apfel, Commissioner

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
JAMES I. NELSON,
Plaintiff-Appellant,
v.
No. 98-1234
KENNETH S. APFEL, COMMISSIONER OF
SOCIAL SECURITY,
Defendant-Appellee.
Appeal from the United States District Court
for the District of Maryland, at Greenbelt.
Charles B. Day, Magistrate Judge.
(CA-96-3981-PJM)
Submitted: June 23, 1998
Decided: August 3, 1998
Before WIDENER, HAMILTON, and MOTZ, Circuit Judges.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
Stephen F. Shea, WILLONER, CALABRESE & ROSEN, P.A., Col-
lege Park, Maryland, for Appellant. James A. Winn, Chief Counsel,
Region III, Patricia M. Smith, Deputy Chief Counsel, Joyce M.J. Gor-
don, Assistant Regional Counsel, Office of the General Counsel,
SOCIAL SECURITY ADMINISTRATION, Philadelphia, Pennsylva-
nia; Lynne A. Battaglia, United States Attorney, Allen F. Loucks,
Assistant United States Attorney, Baltimore, Maryland, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
James I. Nelson appeals the order of a magistrate judge granting
summary judgment to the Appellee, denying Nelson's motion for
summary judgment, and affirming the Commissioner's decision deny-
ing his application for disability insurance benefits.* Nelson, a former
sales representative, raises several issues regarding the administrative
law judge's ("ALJ") decision. Finding no reversible error, we affirm.
In December 1992, Nelson was diagnosed with a detached retina
in his right eye which caused redness and irritation. He was pre-
scribed medication for the inflammation and pain. In July 1993, Nel-
son was diagnosed with a blind and painful right eye. It was
recommended that he continue using the prescribed medications
which had provided some relief for the pain. In July 1994, an exami-
nation of Nelson's left eye by Dr. Miller disclosed that he had uncor-
rected vision of 20/30 for distance and 20/1200 for reading. With
contact lenses and glasses his vision for reading improved to 20/60.
The condition in his right eye was diagnosed as stable so long as he
continued the medication.
Meanwhile, Nelson was also being treated for discomfort in his left
hand due to a knife cut occurring in 1990. Nelson reported pain and
numbness in the hand. In January 1994, an orthopaedic physician con-
ducting a consultative exam reported that Nelson had weakness of
grip in his left hand and limitation of motion in his left little finger.
Other than those limitations, the physician reported Nelson had nor-
mal range of motion throughout the rest of his body.
Nelson also complained of periodic lower back and neck spasms.
_________________________________________________________________
*The parties consented to the jurisdiction of the magistrate judge pur-
suant to 28 U.S.C. § 636(c)(2) (1994).
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The spasms were treated with Nuprin and hot compress. In February
1994, Nelson's treating physician found that Nelson had no physical
limitations (with the exception of the right eye blindness) regarding
walking, sitting, standing, moving, lifting, carrying, handling objects,
hearing, speaking, seeing and traveling and, specifically noted that
Nelson's grip strength and finger movements in his left hand were
normal.
Nelson last worked in April 1992. He collected unemployment
insurance benefits until April 1993. In October 1993, Nelson applied
for disability benefits contending that he became unable to work due
to his disabling condition in April 1993. His claim was denied ini-
tially and upon reconsideration. Upon Nelson's request, a hearing was
held in June 1994. Despite having notice of the hearing, Nelson did
not attend. However, his attorney was present, and the ALJ deter-
mined that Nelson's presence was not necessary. A vocational expert
was asked to consider whether there were jobs for someone of Nel-
son's age and educational background who was blind in one eye and
had minor use of the non-dominant hand. The vocational expert
opined that light exertional positions were available, such as security
worker, laundry worker, and meter reader.
The ALJ found that Nelson had not engaged in substantial gainful
activity since the onset date of disability. The ALJ also found that
Nelson had a severe visual impairment in his right eye preventing him
from performing jobs requiring binocular vision and severe impair-
ment to his left hand. The impairments did not meet or equal any
impairment listed in 20 C.F.R. pt. 404, subpt. P, app. 1. After review-
ing Nelson's medical history and course of treatment and receiving
testimony from a vocational expert, the ALJ concluded that Nelson
was not disabled because he was still capable of performing his past
relevant work as a sales representative and he had the residual func-
tional capacity to engage in light work. The Appeals Council denied
Nelson's request for review.
We review the Secretary'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). Nelson contends that
the ALJ's finding that he was able to perform his past relevant work
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was not supported by substantial evidence. Specifically, Nelson
asserts that the ALJ did not consider the impairment to Nelson's left
eye as diagnosed by Dr. Miller. There was no medical evidence from
Dr. Miller or any other ophthalmologist or optometrist that Nelson
could not read with corrected lenses. In fact, Dr. Miller stated that
Nelson was not legally blind, that his left eye was"healthy," and that
he could safely use his eyes for close vision "with a reading RX over
his contact lenses."
Nelson also contends that the vocational expert's failure to identify
"sales representative" as one of the jobs Nelson could perform under-
mines the ALJ's finding that Nelson could perform that job. There
was nothing in the vocational expert's testimony which indicated that
Nelson could not perform his past job. Furthermore, no one asked the
vocational expert whether Nelson could engage in his past relevant
work experience. In addition, the ALJ is not permitted to rely on the
vocational expert's testimony in determining whether the claimant
can return to his past job. See Smith v. Bowen , 837 F.2d 635, 637 (4th
Cir. 1987).
Nelson also contends that the ALJ's finding that Nelson could per-
form light work is not supported by the evidence due to the impair-
ment in his left hand. Light work may require some pushing and
pulling of arm or leg controls. See 20 C.F.R. 404.1567(b) (1997).
However, there was no evidence that Nelson's past work as a sales
representative required such activity. In sum, we conclude that none
of Nelson's challenges to the ALJ's finding that he could perform his
past work have merit and substantial evidence is present to support
the ALJ's finding.
Next, Nelson contends that the ALJ did not properly evaluate Nel-
son's subjective complaints regarding migraine headaches, back pain,
muscle spasms, and pain to his right eye and left hand. In Craig v.
Chater, 76 F.3d 585, 596 (4th Cir. 1996), we held that the proper
method for evaluating subjective complaints of pain involved the
threshold question of whether the claimant "demonstrated by objec-
tive medical evidence an impairment capable of causing the degree
and type of pain" alleged. Only after the claimant makes this showing
is the ALJ permitted to assess the credibility of the claimant's subjec-
tive complaints of pain. We recognized in Chater that "the intensity,
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persistence, or functionally limiting effects" of pain caused by an
impairment could render the claimant disabled independent of any
physical limitations caused by the impairment. Id. at 592, 594. Dis-
abling pain, we noted, could not always be confirmed with objective
medical evidence. Thus, claims of disabling pain could not be rejected
solely because there was no objective medical evidence substantiating
the claimant's allegations regarding the pain's severity or persistence.
Id. at 595.
Nelson argues that the ALJ erred by finding his complaints not
credible without first addressing the threshold question of whether
there were any impairments capable of causing the complaints. We
find the ALJ considered all the impairments Nelson claimed to have
and, if relevant, the pain allegedly associated with the impairment. He
gave full credibility to any pain associated with Nelson's injured
hand. He also reviewed the record concerning the pain caused by the
impairment to his right eye and found that it was manageable with
medication. The complaint regarding migraine headaches was
rejected by the ALJ as an impairment, rather than a subjective com-
plaint of pain. The ALJ correctly found that there was no objective
medical evidence of migraine headaches. Thus, the ALJ did in fact
address the threshold question in this instance. Furthermore, there was
no evidence from Nelson regarding the severity or persistence of pain
caused by the migraine headaches. Similarly, the muscle spasms in
the lower back were found not to be an impairment because the medi-
cal evidence indicated that the spasms were of limited duration. The
accompanying allegation of back pain did not include any indication
from Nelson of its severity, persistence or limiting effects. For
instance, there is no indication that Nelson cannot sit or stand for long
periods of time because of back pain. Thus, even if the ALJ had found
the spasms to be an impairment which could have caused the pain,
there was no evidence of its disabling effects.
Finally, Nelson contends the ALJ improperly found him not credi-
ble by not referring specifically to the evidence supporting the conclu-
sion. We find this contention without merit. The ALJ made numerous
references to medical records and Nelson's own conduct, including
references to Nelson's decision to continue working after injury to his
hand and his decision to apply for disability benefits only after his
unemployment insurance terminated, and his habits, which include
5
household chores and driving. Thus, the ALJ's finding was not
merely conclusory, but rather supported by references to the record.
We therefore affirm the order of the magistrate judge. We dispense
with oral argument because the facts and legal contentions are ade-
quately presented in the material before the court and argument would
not aid the decisional process.
AFFIRMED
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