Russell v. Barnhart, Comm

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
WENDELL K. RUSSELL, 
Plaintiff-Appellant,
v.
 No. 02-1201
JO ANNE B. BARNHART,
COMMISSIONER OF SOCIAL SECURITY,
Defendant-Appellee.

Appeal from the United States District Court
for the Southern District of West Virginia, at Bluefield.
Mary Elizabeth Stanley, Magistrate Judge.
(CA-00-361-1)
Argued: December 3, 2002
Decided: February 7, 2003
Before MICHAEL and GREGORY, Circuit Judges, and
James H. MICHAEL, Jr., Senior United States District Judge for
the Western District of Virginia, sitting by designation.
Affirmed by unpublished per curiam opinion.
COUNSEL
ARGUED: Deborah Kay Garton, HENSLEY, MUTH, GARTON &
HAYES, Bluefield, West Virginia, for Appellant. Dina Tialoria White
Griffin, Assistant Regional Counsel, Office of the General Counsel,
SOCIAL SECURITY ADMINISTRATION, Philadephia, Pennsylva-
nia, for Appellee. ON BRIEF: Frank V. Smith, III, Acting Regional
2 RUSSELL v. BARNHART
Chief Counsel, Office of the General Counsel, SOCIAL SECURITY
ADMINISTRATION, Philadephia, Pennsylvania; Kasey Warner,
United States Attorney, Stephen M. Horn, Assistant United States
Attorney, Charleston, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Plaintiff-Appellant Wendell K. Russell appeals from the Magistrate
Judge’s order1 granting the Commissioner of Social Security Admin-
istration’s motion for judgment on the pleadings on his claims for dis-
ability insurance benefits. Jurisdiction in this court is invoked
pursuant to 28 U.S.C. § 1291. After carefully considering the record,
the briefs, and the parties’ argument, this court affirms the Magistrate
Judge’s ruling.
I.
Appellant Russell filed a claim for disability insurance benefits on
August 15, 1995, alleging disability as of September 27, 1994, due to
neck and back injuries and "bad nerves." (A.R. 22-25, 39). The claim
was denied initially and upon reconsideration. (A.R. 26-28, 31-33).
Russell requested a hearing before an administrative law judge
("ALJ"), which was held on July 14, 1998. (A.R. 10). The ALJ ren-
dered a decision on April 30, 1999, finding that, on the date his
insured status expired (December 31, 1997), Russell was able to per-
form the mild exertional requirements of light work, reduced by sev-
eral nonexertional limitations. (A.R. 10-20). The ALJ, accordingly,
1
The parties consented to the jurisdiction of the Magistrate Judge pur-
suant to 28 U.S.C. § 636(c) (West 1993 & Supp. 2002).
RUSSELL v. BARNHART 3
held that Russell was "capable of making an adjustment to work
which exists in significant numbers in the national economy" (A.R.
19), and thus denied Russell’s application for benefits. The Appeals
Counsel denied Russell’s application for review.2 (A.R. 4-5).
Russell filed a civil action in the district court, seeking review of
the Commissioner’s decision. (J.A. 2). Russell and the Commissioner
filed cross-motions for judgment on the pleadings. (J.A. 3-4). On Sep-
tember 28, 2001, the Magistrate Judge granted the Commissioner’s
motion for judgment on the pleadings and affirmed the Commission-
er’s denial of benefits. (J.A. 6-28). The Magistrate Judge denied Rus-
sell’s subsequent motion for reconsideration. (J.A. 29). Russell filed
a timely notice of appeal. (J.A. 30).
So long as the correct law was applied and substantial evidence
supported the Secretary’s decision, we must affirm. 42 U.S.C.
§ 405(g) (West Supp. 2002); Hays v. Sullivan, 907 F.2d 1453, 1456
(4th Cir. 1990); Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996).
The Supreme Court has defined substantial evidence 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) (cita-
tion omitted). Substantial evidence "consists of more than a mere
scintilla of evidence but may be somewhat less than a preponder-
ance." Laws v. Celebrezze, 368 F.2d 640, 642 (4th Cir. 1966). "In
reviewing for substantial evidence, [the court should not] undertake
to re-weigh conflicting evidence, make credibility determinations, or
substitute [its] judgment for that of the Secretary." Craig, 76 F.3d at
589. The record before the ALJ was comprehensive, and his review
thorough. The ALJ was in the best position to assess whether the gra-
vamen of the evidence supported the appellant’s account of his dis-
abilities, and substantial evidence supported his finding that it did not.
Therefore, finding no legal error, we affirm the Magistrate’s holding.
2
When, as here, the Appeals Counsel declines to overturn the decision
of the ALJ, the ALJ’s determination becomes the final decision of the
Commissioner. Hunter v. Sullivan, 993 F.2d 31, 34 (4th Cir. 1992).
4 RUSSELL v. BARNHART
II.
The Social Security Regulations establish a "sequential evaluation"
for the adjudication of disability claims. 20 C.F.R. § 404.1520 (2000).
If an individual is found "not disabled" at any step, further inquiry is
unnecessary.3 Id. at § 404.1520(a). The first inquiry under the
sequence is whether a claimant is currently engaged in substantial
gainful employment. Id. at § 404.1520(b). If the claimant is not, the
second inquiry is whether the claimant suffers from a severe impair-
ment. Id. at § 404.1520(c). If a severe impairment is present, the third
inquiry is whether such impairment meets or equals any of the impair-
ments listed in Appendix 1 to Subpart P of the Administrative Regu-
lations No. 4. Id. at § 404.1520(d). If it does, the claimant is found
disabled and awarded benefits. Id. If it does not, the fourth inquiry is
whether the claimant’s impairments prevent the performance of past
relevant work. Id. at § 404.1520(e). By satisfying inquiry four, the
claimant establishes a prima facie case of disability. Hall v. Harris,
658 F.2d 260, 264 (4th Cir. 1981). The burden then shifts to the Com-
missioner, McLain v. Schweiker, 715 F.2d 866, 868-69 (4th Cir.
1983), and leads to the fifth and final inquiry: whether the claimant
is able to perform other forms of substantial gainful activity, consider-
ing the claimant’s remaining physical and mental capacities and the
claimant’s age, education and prior work experience. 20 C.F.R.
§ 404.1520(f) (2000). The Commissioner must establish two things:
(1) that the claimant, considering his or her age, education, work
experience, skills and physical shortcomings, has the capacity to per-
form an alternative job, and (2) that this specific job exists in the
national economy. McLamore v. Weinberger, 538 F.2d 572, 574 (4th
Cir. 1976).
Although the ALJ found that appellant Russell suffered from
severe impairments, he concluded that the impairments failed to meet
or equal a listed impairment in Appendix 1. Instead, the ALJ found
that Russell has a residual functional capacity for light work, reduced
by nonexertional limitations. The ALJ ultimately concluded that
3
A disability is defined as the "inability to engage in any substantial
gainful activity by reason of any medically determinable impairment
which can be expected to last for a continuous period of not less than 12
months . . . ." 42 U.S.C. § 423(d)(1)(A).
RUSSELL v. BARNHART 5
although Russell was unable to return to his former employment as
a coal miner, he was still able to make an adjustment to other work
that exists in significant numbers in the national economy.4 In reach-
ing this decision, the ALJ considered the appellant’s age,5 education
level,6 work experience, and residual functional capacity. (A.R. 11).
III.
On appeal, Russell first contends that the ALJ failed to properly
credit the psychiatric evidence submitted by his treating psychiatrist,
Dr. Philp B. Robertson, and Dr. Riaz Uddin Riaz, who conducted a
one-time consultative examination on May 21, 1996. In particular,
Russell argues that the evidence of record from his treating and exam-
ining sources is uncontradicted and supports a finding that he meets
listing 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.04. The Commis-
sioner, however, contends that the ALJ properly weighed the opinions
of Russell’s treating and examining mental health providers of record.
The record reveals that Russell sought treatment at Springhaven,
Inc. under the care of Dr. Robertson and two licensed psychologists,
Elizabeth A. O’Hare, Ph.D., and John Terry, M.S. (A.R. 87-92, 156-
224). The Commissioner argues that the treatment notes from
Springhaven primarily reflect the appellant’s subjective complaints,
and are significant for consistent reports of a stable, calm, and con-
stricted affect, without evidence of suicidal ideation. (A.R. 165-224).
Specifically, on a mental assessment form dated February 4, 1996,
Dr. Robertson indicated that Russell had a good ability to follow work
rules, relate to co-workers, and maintain personal appearance. (A.R.
113-14.) Additionally, Dr. Robertson noted that, while Russell had
poor ability to deal with work stresses and carry out detailed and com-
plex job instructions, he had fair ability to deal with the public; use
judgment; interact with supervisors; understand, remember, and carry
out simple job instructions; behave in an emotionally stable manner;
4
According to the ALJ, for example, Russell could perform jobs such
as office clerk and surveillance monitor.
5
Russell was 36 years old when his insured status expired.
6
Russell has a ninth grade education. (A.R. 11, 19).
6 RUSSELL v. BARNHART
relate predictably in social situations; and demonstrate reliability. Id.
Then, on a second mental assessment form dated July 15, 1998, Dr.
Robertson reached nearly identical conclusions as on the previous
evaluation. (A.R. 261). Specifically, Dr. Robertson opined that Rus-
sell’s functional abilities were essentially unchanged, with the excep-
tion of a poor ability to demonstrate reliability. Id.
Russell argued before the ALJ and the Magistrate Judge, and
argues again now, that the responses on these forms confirm that he
lacks certain skills and abilities that are necessary in maintaining
gainful employment. The ALJ, however, rejected Dr. Robertson’s
assessment on the ground that it was "unsupported by the treatment
records." (A.R. 13). The Magistrate Judge agreed, concluding that "a
review of the treatment notes from Drs. Robertson and O’Hare and
Mr. Terry reveals an individual who typically responded to treatment
and whose mental conditions were well managed by his mental health
providers." (J.A. 15).
The treatment notes from Springhaven support the Magistrate’s
conclusion. For instance, treatment notes dated December 10, 1997,
less than one month before the appellant’s insured status expired,
indicate that he was "doing pretty well at this time, at least from a
psychiatric standpoint." (A.R. 161). Certainly then the ALJ did not err
in rejecting Dr. Robertson’s assessment as being inconsistent with the
medical evidence of record. See 20 C.F.R. § 404.1527(d)(2).
Similarly, the ALJ rejected the opinion of Dr. Riaz, who conducted
a one-time evaluation of Russell. Dr. Riaz concluded that the appel-
lant was "incapable of gainful employment," "unable to interact
appropriately with his co-workers and supervisors," and "not a suit-
able candidate for vocational rehabilitation." (A.R. 154). The ALJ,
however, was justified in rejecting the opinion of Dr. Riaz that Rus-
sell was totally disabled. Dr. Riaz conducted a one-time consultative
examination and, as the ALJ observed, his findings of total disability
are inconsistent with the remaining evidence of record, particularly
that evidence from Drs. Robertson and O’Hare and Mr. Terry.
Appellant Russell’s primary complaint on appeal is that the ALJ
improperly "supplanted" the opinions of Drs. Robertson and Riaz
with his own "inexpert analysis." (Appellant’s Brief at 8, 10). As the
RUSSELL v. BARNHART 7
Magistrate Judge held, however, it is clear that the "ALJ based his
finding[s] . . . on Claimant’s testimony, Claimant’s statements in the
hearing file and the assessments of various mental treating sources."
(J.A. 16). The ALJ also noted that Russell is able to perform in coun-
seling and work well with his counselor. (A.R. 14). Even more, the
ALJ found the appellant to be coherent and able to answer questions
at the hearing. Id.Additionally, as the Magistrate Judge explained, the ALJ’s hypo-
thetical question included the limitation that Russell was moderately
limited in the ability to maintain attention and concentration for
extended time periods. In response, the vocational expert identified a
significant number of jobs the appellant could perform. (A.R. 274-
75). Even if Russell is more severely limited in this area, this does not
amount to the listing level severity, as the appellant must show
marked impairment in at least two areas. 20 C.F.R. Pt. 404, Subpt. P,
App. 1, § 12.04(B) (2000).7
To that end, the ALJ did not err in discrediting the psychiatric evi-
dence submitted by Drs. Robertson and Riaz. The aforementioned
evidence from Russell’s treating health sources is largely silent as to
any significant problems with concentration, persistence and pace.
The ALJ’s findings are supported by substantial evidence and, there-
fore, the Magistrate Judge’s dismissal of this claim shall be affirmed.
7
Section 12.04(B) requires at least two of the following:
1. Marked restriction of activities of daily living; or
2. Marked difficulties in maintaining social functioning; or
3. Deficiencies of concentration, persistence or pace resulting
in frequent failure to complete tasks in a timely manner (in work
settings or elsewhere); or
4. Repeated episodes of deterioration or decompensation in
work or work-like settings which cause the individual to with-
draw from that situation or to experience exacerbation of signs
and symptoms (which may include deterioration or adaptive
behaviors).
20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.04(B) (2000).
8 RUSSELL v. BARNHART
IV.
Russell’s second contention on appeal is that the ALJ erred by not
including all of Russell’s impairments in posing his hypothetical
question to the vocational expert. Specifically, the appellant argues
that the question inaccurately assumed that Russell was able to func-
tion at a ninth grade level and failed to adequately consider restric-
tions faced by Russell due to pain.
It is well established that for a vocational expert’s opinion to be rel-
evant, it must be in response to a proper hypothetical question that
sets forth all of the claimant’s impairments. Walker v. Bowen, 889
F.2d 47, 50-51 (4th Cir. 1989). "[I]t is difficult to see how a voca-
tional expert can be of any assistance if he is not familiar with the par-
ticular Claimant’s impairments and abilities — presumably, he must
study the evidence of record to reach the necessary level of familiar-
ity." Id. at 51. While questions posed to the vocational expert must
fairly set out all of the claimant’s impairments, the question need only
reflect those impairments supported by the record. See Chrupcala v.
Heckler, 829 F.2d 1269, 1276 (3d Cir. 1987). Finally, the hypothetical
question may omit non-severe impairments, but must include those
that the ALJ finds to be severe. Benenate v. Schweiker, 719 F.2d 291,
292 (8th Cir. 1983).
First, Russell argues that the ALJ impermissibly rejected the find-
ings of Phyllis C. Shapero, a vocational expert who opined that Rus-
sell was disabled. According to the ALJ, Shapero’s assessment was
rejected on the grounds that she was not a medical source and her
findings were based on Russell’s subjective complaints alone. (A.R.
17). Shapero declined to complete a form entitled, "Ability to Do
Work-Related Activities," stating that she is not a medical doctor and
simply "relayed Mr. Russell’s functional abilities as he related them
to me." (A.R. 292). The ALJ acted well within his sound discretion
in rejecting Shapero’s assessment on that basis.
Additionally, the ALJ’s hypothetical question submitted to the
vocational expert adequately contemplated all of Russell’s impair-
ments and resulting limitations, including any limitations caused by
pain and a diminished level of intellectual functioning. In that regard,
the question posed to the vocational expert reasonably set out Rus-
RUSSELL v. BARNHART 9
sell’s impairments as found by the ALJ. See Walker, 889 F.2d at 50-
51. The ALJ included the physical impairments identified by the med-
ical evidence, particularly the limitations set forth by Dr. Gobunsuy
in his "Medical Assessment of Ability to Do Work-Related Activi-
ties" report. (A.R. 262-270). The inclusion of these impairments in
the ALJ’s hypothetical question adequately contemplated the limita-
tions faced by Russell due to pain.
Moreover, the Magistrate Judge correctly found that the ALJ ade-
quately reflected Russell’s diminished level of intellectual functioning
in his hypothetical question by including limitations as to Russell’s
education level, ability to maintain attention and concentration, per-
form at a consistent pace, and to complete a work day or work week
free from psychologically based symptoms. Accordingly, the ALJ
properly included all of appellant Russell’s impairments supported by
the evidence of record in posing the hypothetical question to the voca-
tional expert.
AFFIRMED