Montgomery v. Chater, Commissioner

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
BETTY MONTGOMERY,
Plaintiff-Appellant,
v.
No. 95-2851
SHIRLEY S. CHATER, COMMISSIONER OF
SOCIAL SECURITY,
Defendant-Appellee.
Appeal from the United States District Court
for the District of South Carolina, at Columbia.
David C. Norton, District Judge.
(CA-93-357-3-18BC)
Argued: January 27, 1997
Decided: February 25, 1997
Before RUSSELL and WILKINS, Circuit Judges, and
OSTEEN, United States District Judge for the
Middle District of North Carolina, sitting by designation.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
ARGUED: Paul Townsend McChesney, FRALEY, MCCHESNEY
& MCCHESNEY, Spartanburg, South Carolina, for Appellant. Ron-
ald Lamar Paxton, Assistant Regional Counsel, SOCIAL SECURITY
ADMINISTRATION, Atlanta, Georgia, for Appellee. ON BRIEF:
Frank W. Hunger, Assistant Attorney General, Margaret B. Seymour,
Interim United States Attorney, Mary Ann Sloan, Acting Chief Coun-
sel, Region IV, Mack A. Davis, Acting Deputy Chief Counsel, Haila
Naomi Kleinman, Supervisory Assistant Regional Counsel, SOCIAL
SECURITY ADMINISTRATION, Atlanta, Georgia, for Appellee.
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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
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OPINION
PER CURIAM:
Betty Montgomery filed a claim with the Social Security Adminis-
tration in June 1991 for a period of disability and disability insurance
benefits.1 She alleged disability commencing on December 31, 1985,
as a result of blood clots in her left leg, edema, shortness of breath,
and nerves. After denial of her claim initially and on reconsideration,
Montgomery requested a hearing before an Administrative Law Judge
("ALJ"). After considering her claim de novo, the ALJ concluded that
Montgomery was not entitled to disability insurance because she was
not disabled at any time through September 30, 1986-- the date she
last qualified to receive disability insurance. The ALJ further con-
cluded that Montgomery had a residual capacity for a full range of
sedentary unskilled work in the national economy. The ALJ's find-
ings became the final decision of the Commissioner of Social Security
(the "Commissioner") after being approved by the Appeals Council in
April 1993.
Montgomery then filed a complaint in the district court challenging
the Commissioner's final decision was unsupported by substantial
evidence. The magistrate judge's Report and Recommendation rec-
ommended affirming the Commissioner's decision denying benefits.
After conducting a de novo review of those portions of the magistrate
judge's report to which Montgomery objected, the district court
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1 42 U.S.C. §§ 416(i)(1), 423.
2
adopted the magistrate judge's report and affirmed the Commission-
er's decision. This appeal followed.
The ALJ reviewing the case bears the responsibility of making
findings of fact and resolving evidentiary conflicts.2 We review the
Commissioner's final decision only to determine whether it is sup-
ported by substantial evidence and whether the correct law was applied.3
Section 405(g) precludes our reviewing the evidence de novo and
requires that we uphold the commissioner's finding of no disability,
even if we disagree, as long as it is supported by substantial evidence.4
Montgomery contends that substantial evidence does not support
the ALJ's findings because the ALJ failed to accord great weight to
her treating physician's opinion that she was disabled prior to or on
September 30, 1986, and to consider the vocational evidence she pres-
ented. She maintains that when evaluated together, this evidence
proves that she suffered from impairments that prohibited her from
engaging in her old occupations5 and in any other substantial gainful
activity.
Before considering vocational evidence, the ALJ must examine and
weigh the opinions and reports of the claimant's treating physician.
The ALJ must give a treating physician's opinion great weight unless
persuasive contradictory evidence exists.6 When contradictory evi-
dence exists, then the ALJ may disregard the opinion. Similarly, the
ALJ may only reject a treating physician's retrospective opinion con-
cerning the extent of past impairment in the presence of persuasive
contradictory evidence.7
After thoroughly evaluating the evidence before him, the ALJ
found that the treating physician's contemporaneous records docu-
menting Montgomery's condition at the time of treatment failed to
corroborate his retrospective opinions. Although Montgomery's treat-
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2 Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996).
3 42 U.S.C.A. § 405(g) (West Supp. 1996).
4 Id; Smith v. Schweiker , 795 F.2d 343, 345 (4th Cir. 1986).
5 Prior to September 30, 1986, Montgomery worked as a spool operator
and cafe worker.
6 Chater, 76 F.3d at 589.
7 Wilkins v. Secretary, DHHS, 953 F.2d 93 (4th Cir. 1991).
3
ing physician opined in 1992 that Montgomery was disabled "proba-
bly since 1983, but certainly since 1986," his contemporaneous
treatment records do not support that conclusion. Instead his notes
reveal that Montgomery experienced sporadic feet and leg problems
between 1985 and 1987 and that she received treatment for those
problems on only two occasions in 1985 and once in 1986.8 At those
times, mild to moderate pain medication alleviated her discomfort.
These three treatments alone do not clearly show that she was dis-
abled prior to the date she was last insured. Furthermore, her treating
physician did not refer Montgomery to a specialist until 1989, well
after her insured status expired. In sum, the treating physician's con-
temporaneous treatment records lack any clinical findings of a
disability which prevented Montgomery from performing non-
exertional, sedentary work. Additionally, the ALJ properly discounted
Montgomery's other alleged physical limitations of anxiety, depres-
sion, shortness of breath, and nerves, because none of her medical
records indicate she was treated for any of these maladies before she
no longer qualified for special disability benefits.
In light of this persuasive contradictory evidence, the ALJ properly
discredited the treating physician's opinion pursuant to the requisite
social securities regulations and case law. We conclude therefore that
the Commissioner's decision is supported by substantial evidence and
was based on the correct legal standards. Accordingly we will not dis-
turb the ALJ's findings.
Having carefully reviewed the record, briefs, and contentions of the
parties at oral argument, we find no error in the district court's order
adopting the magistrate judge's Report and Recommendation. We
therefore affirm the decision of the district court on the opinion of that
court.
AFFIRMED
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8 Montgomery was treated for fibrositis or bursitis of the lower extrem-
ity on two consecutive visits, September 23, and October 1, 1985, more
than a year before her insured status expired. Then she visited the emer-
gency room in July 1986 for swelling in both legs and feet. Following
that visit, it was not until August 1987, almost one year after the expira-
tion of her insured status that she was hospitalized for severe leg prob-
lems.
4