Nance v. Apfel, Commissioner

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
SHIRLEY NANCE,
Plaintiff-Appellant,
v.
No. 97-1782
KENNETH S. APFEL, COMMISSIONER OF
SOCIAL SECURITY,
Defendant-Appellee.
Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Daniel E. Klein, Jr., Chief Magistrate Judge.
(CA-96-1690-CCB)
Submitted: November 18, 1997
Decided: December 8, 1997
Before ERVIN and MICHAEL, Circuit Judges, and
PHILLIPS, Senior Circuit Judge.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
Debra Gardner, Nina Shore, LEGAL AID BUREAU, INC., Freder-
ick, Maryland, for Appellant. James A. Winn, Chief Counsel,
Region III, Robert S. Drum, Assistant Regional Counsel, Office of the
General Counsel, SOCIAL SECURITY ADMINISTRATION, Phila-
delphia, Pennsylvania; Lynn A. Battaglia, United States Attorney,
Allen F. Loucks, Assistant United States Attorney, Baltimore, Mary-
land, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Shirley Nance appeals from the magistrate judge's order upholding
the determination of the Commissioner of Social Security
("Commissioner") that she was no longer entitled to social security
disability benefits. Because substantial evidence supports the Com-
missioner's decision, we affirm.
The Commissioner first found Nance disabled in 1988. At that
time, Nance's diagnosed psychiatric condition resulted in appetite dis-
turbance, sleep disturbance, decreased energy, and feelings of guilt
and worthlessness. The Commissioner determined that Nance experi-
enced a marked difficulty in social functioning and concentration,
persistence, or pace resulting in frequent failure to complete tasks in
a timely manner. Therefore, Nance's impairments met or equaled a
listed impairment in the listing of impairments in the Social Security
Regulations, 20 C.F.R. Pt. 404, Subpt. P, App. 1§ 12.04 (1997), and
she was found to be disabled.
In 1994, Nance's eligibility for social security disability benefits
was reviewed. The Commissioner determined that Nance's condition
had improved, and that she had only moderate difficulty in social
functioning and infrequent difficulty with concentration resulting in
a failure to complete tasks in a timely manner. Thus, Nance no longer
had functional limitations of the severity necessary to satisfy the
criteria of Listing § 12.04, and the Commissioner determined that she
was no longer disabled.
Nance's request for reconsideration of cessation of her benefits was
denied, and she requested a hearing before an Administrative Law
Judge ("ALJ"). At the hearing, Nance and a Vocational Expert ("VE")
testified. The ALJ considered the opinions of each of Nance's psychi-
atrists, Nance's testimony, and the opinion of the VE. Based on the
2
evidence presented, the ALJ issued a written decision finding Nance
no longer disabled because she was capable of performing various
low stress jobs identified by the VE.
In reaching this decision, the ALJ applied the sequential analysis
found at 20 C.F.R. § 404.1594(f) (1997). The ALJ first determined
that Nance had not engaged in substantial gainful activity since the
date of her initial award of benefits. The ALJ concluded that although
Nance continued to suffer from an organic mental disorder and affec-
tive disorder, these two diagnosed conditions together did not exacer-
bate her condition to the point that it met or equaled the severity of
an impairment in Listing § 12.04, as it had when Nance first began
receiving disability benefits. The ALJ then found that Nance had
shown significant medical improvement which resulted in increased
residual functional capacity to do basic work activities.
Despite the medical improvement, the ALJ found that Nance still
had nonexertional limitations on her ability to work, including moder-
ate difficulty concentrating, handling stress, and dealing with supervi-
sors, co-workers, and the general public. Based on this finding, the
ALJ posed a hypothetical question to the VE, who had already
reviewed Nance's record. The ALJ asked the VE whether there were
any simple low stress jobs which Nance could perform in the local
economy. The VE determined that there were thousands of jobs
which Nance could perform.
Based on the VE's assessment, the ALJ then determined that
although Nance's impairments were severe, given her residual func-
tional capacity, her age, education, and past work experience, she
could perform jobs that were available in the local economy. Thus,
the ALJ concluded that Nance was no longer disabled, and that her
disability insurance benefits were appropriately terminated.
The Appeals Council denied Nance's request for review, and the
ALJ's decision became the final decision of the Commissioner. Nance
then filed a civil action in the district court. The Commissioner filed
a motion for summary judgment, which the magistrate judge granted,
finding that substantial evidence supported the Commissioner's deci-
sion. Nance appealed to this court.
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We must uphold the finding of the Commissioner that Nance was
no longer eligible for benefits, if such a finding is supported by sub-
stantial evidence. See Smith v. Schweiker, 795 F.2d 343, 345 (4th Cir.
1986). Substantial evidence is that evidence which"``a reasonable
mind might accept as adequate to support a conclusion.'" See
Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consol-
idated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). Substantial
evidence consists of "``more than a mere scintilla of evidence but may
be somewhat less than a preponderance.'" 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 Commissioner, provided substantial evidence supports the Com-
missioner's decision. See Hays, 907 F.2d at 1456.
Nance contends first that the ALJ erred in finding that her school
attendance and activities of daily living showed that her mental condi-
tion had improved from the time of the initial award of disability ben-
efits. In determining that Nance's medical condition had improved
such that she no longer met the listed requirements of § 12.04, the
ALJ took into consideration that Nance had a normal appetite, was
able to drive or take the bus to class, and could care for her personal
needs; was able to cook, shop, and take care of her home without
help; was able to concentrate sufficiently to watch television, read
books and newspapers; and significantly, that she was one semester
short of attaining her associate degree, and that her ability to pursue
this degree over the course of several years reflected her ability to
concentrate and to get along at least minimally well with others. The
ALJ also considered Nance's own testimony of her daily activities,
such as her attendance at plays and dances, her testimony that she
studied about ten hours per week plus her time in class, and her testi-
mony that she kept up with her studies. The ALJ considered the psy-
chiatric evaluations indicating that Nance had only moderate
difficulties with social functioning and concentration. Given the cur-
rent psychological evaluations of Nance, and her ability to perform
daily chores and attend school regularly, substantial evidence sup-
4
ports the ALJ's finding that Nance's impairments no longer met
listing-level severity, and that her medical condition had improved.
See Gross v. Heckler, 785 F.2d 1163, 1166 (4th Cir. 1986) (noting
that pattern of claimant's daily activities, including cooking, taking
care of house, and shopping, showed that he was not disabled).
Nance next contends that the ALJ improperly evaluated the medi-
cal evidence. Specifically, Nance asserts that the ALJ failed to give
the proper weight to the opinions of Nance's nurse and Nance's treat-
ing physician, Dr. Sahandy. The opinion of a treating physician is
entitled to great weight unless it is unsupported by the clinical evi-
dence or it is inconsistent with other substantial evidence. See 20
C.F.R. § 416.927(d)(2) (1997). The ALJ's opinion should reveal the
weight given to all the evidence; if the ALJ chooses to discredit the
report of the treating physician, he must articulate the reasons for
doing so. See Gordon v. Schweiker, 725 F.2d 231, 235-36 (4th Cir.
1984); DeLoatche v. Heckler, 715 F.2d 148, 150 (4th Cir. 1983).
However, the opinions of those other than trained medical doctors,
such as nurses, are not afforded the same weight as the opinions of
physicians. See 20 C.F.R. §§ 404.1513, 416.913 (1997); see also
Craig v. Chater, 76 F.3d 585, 590 (4th Cir. 1996); Lee v. Sullivan,
945 F.2d 687, 691 (4th Cir. 1991).
The ALJ noted that because Nurse Butkovich's report was submit-
ted by a nurse, it did not carry the same weight as though it were sub-
mitted by a physician or psychiatrist. Moreover, the ALJ also noted
that the limitations outlined in the nurse's evaluation were inconsis-
tent with the other evidence presented. Thus, the ALJ did not err in
according little weight to this report. See 20 C.F.R. §§ 404.1513,
416.927(d)(2).
To the extent that Nance asserts the ALJ failed to give sufficient
weight to Dr. Sahandy's evaluations, this assertion is unsupported by
the record. The ALJ considered all of Dr. Sahandy's submissions,
which were not inconsistent with the other reports all reflecting that
Nance no longer experienced marked difficulties in maintaining social
functioning, and that her condition did not result in marked restriction
of activities of daily living or inability to function in work or work-
like settings.
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Nance's final argument is that the ALJ lacked substantial evidence
to support his finding that there were jobs in the economy which
Nance could perform despite her functional limitations. Once the ALJ
found that Nance could no longer perform her past work, the burden
shifted to the Commissioner to establish that other work existed in
significant numbers in the local economy that an individual of
Nance's age, education, experience, and residual functional capacity
could perform. See Hall v. Harris, 658 F.2d 260, 264 (4th Cir. 1981).
Here, the ALJ solicited the testimony of the VE regarding whether
there were jobs available which Nance could perform based on
Nance's functional limitations, which were supported by the record.
The ALJ's question involved a person who needed to work in a low
stress environment with reduced contact with co-workers, supervi-
sors, and the general public, and who would have moderate difficulty
with concentration and accepting instructions and criticism from
supervisors. Based on the question as well as his own review of the
medical evidence in the record, the VE testified that there were
approximately 9000 low-stress jobs in the local economy which
Nance could perform.
Because substantial evidence supports the ALJ's decision, we
affirm the magistrate judge's order. 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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