Hammond v. Apfel, Commissioner

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
WILLIAM HAMMOND, 
Plaintiff-Appellant,
v.
 No. 00-1067
KENNETH S. APFEL, COMMISSIONER OF
SOCIAL SECURITY,
Defendant-Appellee.

Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Marvin J. Garbis, District Judge.
(CA-99-855-MJG)
Argued: December 8, 2000
Decided: February 1, 2001
Before NIEMEYER and MOTZ, Circuit Judges, and
James C. CACHERIS, Senior United States District Judge
for the Eastern District of Virginia, sitting by designation.
Affirmed by unpublished per curiam opinion.
COUNSEL
ARGUED: Stephan F. Shea, WILLONER, CALABRESE &
ROSEN, P.A., College Park, Maryland, for Appellant. Mark Jacob
Goldberg, Office of the General Counsel, SOCIAL SECURITY
ADMINISTRATION, Baltimore, Maryland, for Appellee. ON
BRIEF: Lynne A. Battaglia, United States Attorney, Allen F. Loucks,
2 HAMMOND v. APFEL
Assistant United States Attorney, Baltimore, Maryland; Arthur J.
Fried, General Counsel, Charlotte J. Hardnett, Principal Deputy Gen-
eral Counsel, John M. Sacchetti, Associate General Counsel, Litiga-
tion Division, Frieda Schleymeyer Colfelt, Litigation Attorney, Office
of the General Counsel, SOCIAL SECURITY ADMINISTRATION,
Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
William Hammond appeals from a judgment of the district court
denying a remand to the Secretary of Health and Human Services for
consideration of additional evidence and upholding the determination
of the Commissioner of Social Security that he was ineligible for dis-
ability insurance benefits. For the following reasons, we affirm.
I.
Hammond injured his back in a work-related accident on April 5,
1990. He traces the onset of his disability to that accident. Hammond
was treated by Dr. Phillip L. Schneider, an orthopedist, from April 12,
1990 until November 1993. He was also examined and treated by sev-
eral other doctors between 1993 and 1995 for his back condition. He
underwent back surgery in February 1992, but his symptoms of pain
persisted. He has been diagnosed with severe spinal stenosis, chronic
degenerative disc disease, and disc bulging. Hammond also com-
plained of urinary retention and frequency problems to Dr. Schneider
and Dr. Allan H. Macht. The physicians recorded his subjective com-
plaints in their reports and recommended that he visit a urologist.
According to the reports, Hammond informed the doctors that he
could not afford to see a urologist because he did not have insurance.
HAMMOND v. APFEL 3
Hammond applied for disability insurance benefits pursuant to
Title II of the Social Security Act, claiming he was totally disabled
due to back pain, lumbar surgery, depression and obesity. He was ini-
tially denied benefits. After he requested reconsideration and his
claim was again denied, he requested a hearing before an Administra-
tive Law Judge (ALJ).
At the hearing, Hammond testified about his urinary frequency and
back-related problems. After considering Hammond’s subjective evi-
dence and medical evidence from several physicians covering the
period from the accident to the date last insured, December, 31, 1995,
the ALJ determined that Hammond was not disabled. The ALJ con-
cluded that Hammond had severe back and leg pain, obesity, and sta-
tus post-laminectomy, but he did not have an impairment listed in the
regulations. He also concluded that Hammond’s urinary frequency
was not a severe impairment. The ALJ reviewed Hammond’s subjec-
tive pain complaints and determined that the degree of pain alleged
was not supported by the medical evidence and his complaints were
not fully credible. The ALJ also determined that Hammond could per-
form the full range of sedentary work reduced by limitations to sit or
stand at his option and lift or carry up to 10 pounds. Finally, the ALJ
concluded that Hammond could not perform his past relevant work,
but that he was capable of performing certain sedentary, unskilled
occupations suggested by the vocational expert. On June 7, 1997,
Hammond filed a request for review of the decision with the Appeals
Council. The request was denied on January 26, 1999. The decision
of the ALJ became the final decision of the Commissioner. While the
request for review was pending before the Appeals Council, Ham-
mond began treatment with Dr. Ronald F. Tutrone, a board certified
urologist. The treatment covered the period from September 29, 1997
to April 21, 1999. Dr. Tutrone reported that Hammond had a small
capacity, neurogenic bladder, which caused his urge incontinence and
frequency. Dr. Tutrone further reported that his condition did not
improve with medication, and that Mr. Hammond was a candidate for
a sacral nerve stimulation. In addition, Dr. Daniel D. Dietrick, a urol-
ogist who evaluated Hammond once in 1998 and once in 1999,
reported that the urinary condition was entirely related to Hammond’s
back injury.
Hammond filed a civil action in district court. In addition to chal-
lenging the final administrative decision, he requested a remand for
4 HAMMOND v. APFEL
a new hearing to consider the recently obtained urologist reports. The
district court denied the request for a remand and held that substantial
evidence supported the ALJ’s findings. This appeal followed.
Hammond claims that the district court erred in denying a remand
because the additional evidence meets the prerequisites for remand.
He claims further that the ALJ’s finding that his urinary frequency
was not a severe impairment is not supported by substantial evidence.
He also claims that the ALJ failed to consider all of the testimony of
the vocational expert. Finally, he claims that the ALJ improperly
assessed his credibility.
II.
Hammond claims that the additional evidence he submitted to the
magistrate judge warranted a remand to the Secretary of Health and
Human Services for a new hearing. In an action to review denial of
social security disability benefits, a reviewing court may remand a
case to the Secretary if three prerequisites are met: (1) the evidence
must be new; (2) it must be material; and (3) there must be "good
cause for the failure to incorporate such evidence into the record in
a prior proceeding." 42 U.S.C. § 405(g); Borders v. Heckler, 777 F.2d
954, 955 (4th Cir. 1985). We are satisfied that the evidence is new
and material but unpersuaded that "good cause" has been shown.
Hammond complained of urinary retention and frequency to at
least two physicians who treated and examined him after his accident
and before the date last insured. He also asserted severe urinary fre-
quency during the administrative hearing in February 1997. Despite
recommendations from his doctors, he did not visit a urologist until
September 1997. Hammond claims that he was unable to afford to see
a urologist earlier because he was not insured until then. While we
agree that an inability to afford treatment may not be held against a
claimant, see Gordon v. Schweiker, 725 F.2d 231, 237 (4th Cir. 1984),
Hammond has not explained, and the record is void of any reason,
why he could suddenly afford treatment in September 1997 but not
earlier. At oral argument, Hammond’s counsel stated that workman’s
compensation insurance covered the urologist visits. Nevertheless, he
could not explain why, if the work-related accident occurred in 1990,
the workman’s compensation insurance did not begin until 1997.
HAMMOND v. APFEL 5
Hammond bore the burden of demonstrating objective evidence of his
disability. Pass v. Chater, 65 F.3d 1200, 1203 (4th Cir. 1995). Despite
the fact that he was aware of his urinary problems as early as Novem-
ber 1993, he did not pursue the seemingly available insurance until
at least four years after his urinary problems began. Without any
explanation as to why his workman’s compensation would not cover
treatment earlier, we find that Hammond has failed to demonstrate
"good cause" to excuse his failure to submit the urologists’ reports.
III.
Having determined that the additional evidence may not be consid-
ered, we must determine whether substantial evidence supports the
findings of the ALJ. Under the Social Security Act, we must uphold
the factual findings of the ALJ if they are supported by substantial
evidence in the record and were reached through application of the
correct legal standard. Coffman v. Bowen, 829 F.2d 514, 517 (4th Cir.
1987). In reviewing for substantial evidence, we do not undertake to
re-weigh conflicting evidence, make credibility determinations, or
substitute our judgment for that of the ALJ. Hays v. Sullivan, 907
F.2d 1453, 1456 (4th Cir. 1990). "Where conflicting evidence allows
reasonable minds to differ as to whether a claimant is disabled, the
responsibility for that decision falls on the Secretary (or the ALJ)."
Walker v. Bowen, 834 F.2d 635, 640 (7th Cir. 1987). The issue before
the Court, therefore, is not whether Hammond is disabled, but
whether the ALJ’s findings are supported by substantial evidence and
were reached based upon a correct application of the relevant law. See
Coffman, 829 F.2d at 517.
Hammond first claims that the ALJ’s determination that his urinary
frequency was not a severe impairment was not based on substantial
evidence. The evidence from the urologists may not be considered for
purposes of review. See Smith v. Chater, 99 F.3d 635, 638 n.5 (4th
Cir. 1996). Therefore, the only supporting evidence before the ALJ
was Hammond’s testimony at the administrative hearing about his
urinary frequency and the statements by Dr. Macht and Dr. Schneider.
Those statements, however, merely documented Hammond’s subjec-
tive complaints and recommended that he see a urologist. They were
not supported by objective medical evidence. Moreover, Dr.
Mondino’s report of December 14, 1995, which was well after Ham-
6 HAMMOND v. APFEL
mond’s last visits with Dr. Schneider and Dr. Macht, did not mention
any urinary problems. Accordingly, we find that there was substantial
evidence to support the determination that Hammond’s urinary fre-
quency problem did not significantly limit his physical or mental abil-
ity to do basic work activity.
Hammond next claims that the ALJ improperly disregarded state-
ments made by the Vocational Expert (VE). Once the ALJ determined
that Hammond could not perform his past relevant work as a bus
driver, transit police officer and medical courier, the ALJ bore the
burden of establishing that a significant number of jobs are available
in the national economy that he could perform. See 20 C.F.R.
§ 404.1520(f). The ALJ asked the VE what jobs an individual with
Hammond’s conditions and limitations could perform. The VE identi-
fied several sedentary jobs including security monitor guard, cashier
in a self-service gas station, and vehicle dispatcher. Hammond’s attor-
ney then asked if a person who had to urinate 20-25 times a day could
adequately perform those jobs. The VE responded that the additional
restriction would have a significant impact or even preclude the avail-
able employment. Hammond claims that the ALJ erred in disregard-
ing the VE’s response to his attorney’s question. We disagree.
The restrictive hypothetical was based on medical evidence that
was not before the ALJ. With no objective evidence to support allega-
tions of such frequent urination, the ALJ did not need to consider it.
See Copeland v. Bowen, 861 F.2d 536, 540-41 (9th Cir. 1988). Based
on an evaluation of the evidence, the ALJ was free to accept or reject
restrictive hypothetical questions. Martinez v. Heckler, 807 F.2d 771,
773 (9th Cir. 1987). We find that the ALJ did not err in disregarding
the VE’s response to counsel’s hypothetical and that substantial evi-
dence supported the ALJ’s conclusion that Hammond was qualified
for the sedentary work described by the VE.
Finally, Hammond contends that the ALJ improperly assessed his
credibility and incorrectly evaluated his subjective complaints of pain.
An ALJ evaluates the "intensity and persistence of the claimant’s
pain, and the extent to which it affects [his] ability to work." See
Craig v. Chater, 76 F.3d 585, 595 (4th Cir. 1996). The ALJ should
consider the objective medical evidence of pain, medical treatments
taken to alleviate the pain, specific descriptions of pain, and the
HAMMOND v. APFEL 7
claimant’s daily activities. See 20 C.F.R. §§ 404.1529(c) and
416.929(c). Here, the ALJ found that Hammond "does suffer from
some discomfort, but that his symptoms are not credible to the extent
that they would be inconsistent with his ability to perform a wide
range of sedentary work described." Several physicians reported that
Hammond had residual function capacity. Moreover, Hammond testi-
fied that he could perform certain work if permitted to stand or sit and
that he could perform some household chores. We find that the ALJ’s
conclusion was supported by substantial evidence.
We also reject Hammond’s contention that the ALJ’s method of
evaluating his credibility was erroneous as a matter of law. The ALJ
applied the correct legal standards in determining that Hammond’s
subjective complaints were inconsistent with his ability to perform a
wide range of sedentary jobs.
AFFIRMED