McCants v. Chater, Comm

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
MARSHELLA A. MCCANTS,
Plaintiff-Appellant,
v.
No. 96-1045
SHIRLEY S. CHATER, COMMISSIONER OF
SOCIAL SECURITY,
Defendant-Appellee.
Appeal from the United States District Court
for the District of South Carolina, at Charleston.
Charles E. Simons, Jr., Senior District Judge.
(CA-94-425-2-6AJ)
Submitted: March 18, 1997
Decided: May 14, 1997
Before WIDENER and WILKINS, Circuit Judges, and
BUTZNER, Senior Circuit Judge.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
Susan Jean Firimonte, WUKELA LAW FIRM, Florence, South Caro-
lina, for Appellant. J. Preston Strom, Jr., United States Attorney, John
B. Grimball, Assistant United States Attorney, Arthur J. Fried, Gen-
eral Counsel, Randolph W. Gaines, Acting Principal Deputy General
Counsel, A. George Lowe, Acting Associate General Counsel, Litiga-
tion Division, Deborah Feustle Blair, Office of 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Unpublished opinions are not binding precedent in this circuit.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:
Marshella McCants appeals the district court's order upholding the
determination by the Secretary of Health and Human Services (Secre-
tary) that McCants is not eligible for social security disability benefits
or supplemental security income. Because substantial evidence sup-
ports the Secretary's decision, we affirm.
I
McCants, who has a ninth-grade education and past relevant work
experience as a textile machine operator, alleged in her application for
benefits that she became disabled due to bronchitis and asthma on
May 8, 1992. Her application was denied initially and on reconsidera-
tion. An administrative law judge (ALJ) conducted a hearing on
McCants' application. McCants was thirty-nine at the time of the
hearing, at which both she and a vocational expert testified. After the
hearing, the ALJ issued a decision finding that McCants was not dis-
abled and therefore not entitled to benefits.
In reaching this decision, the ALJ applied the sequential five-step
analysis found at 20 C.F.R. § 416.920 (1993). The ALJ found that
McCants suffered from chronic asthma and asthmatic bronchitis, sco-
liosis of the thoracic spine, and impaired memory and concentration.
At the third step of the analysis, the ALJ determined that none of
these impairments, singly or in combination, was severe enough to
meet or equal any listed impairment at 20 C.F.R. Pt. 404, Subpt. P,
2
App. 1. The ALJ therefore moved to the fourth step and determined
that McCants was unable to perform her past work.
At the fifth step of the sequential analysis, the ALJ had to deter-
mine whether there existed any other work that McCants could per-
form, taking into account her age, education, past work experience,
and residual functional capacity. With regard to residual functional
capacity, the ALJ concluded that she retained the ability to perform
sedentary work that required frequent lifting of no more than five
pounds at a time, or ten pounds occasionally. Further, McCants could
not perform work that required repetitive bending, stooping, or climb-
ing. Moreover, McCants could not be exposed to dust, fumes, odors,
and chemicals, could not follow complicated instructions, and could
not sit for prolonged periods unless she could change positions.
The ALJ noted that the medical-vocational guidelines would dic-
tate a finding of not disabled for an individual such as McCants.
However, because of McCants' nonexertional impairments, the grids
could serve only as a guide, and vocational testimony was necessary.
A vocational expert testified that someone fitting McCants' voca-
tional profile was capable of performing certain jobs that existed in
significant numbers in South Carolina. The ALJ accordingly found
that McCants was not disabled.
The Appeals Council upheld this decision, which became the final
decision of the Secretary. The district court found that substantial evi-
dence supported the Secretary's decision and entered summary judg-
ment for the Secretary. McCants now appeals.
We must uphold the Secretary's decision if substantial evidence
supports it and the correct law was applied. Hays v. Sullivan, 907 F.2d
1453, 1456 (4th Cir. 1990). Substantial evidence is"such relevant evi-
dence as a reasonable mind might accept as adequate to support a
conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971). We do
not re-weigh conflicting evidence, make credibility determinations, or
substitute our judgment for that of the Secretary. Hays, 907 F.2d at
1456.
II
McCants first argues that her asthmatic condition meets the listing
for asthma in the Listing of Impairments, 20 C.F.R. Part 404, Subpt.
3
P, App. 1, § 3.03(B) (1993). Thus, McCants contends that she should
have been found disabled at step three of the sequential analysis. The
evidence is to the contrary.
Section 3.03 defines asthma of the requisite severity:
B. Episodes of severe attacks (See 3.00C), in spite of pre-
scribed treatment, occurring at least once every 2 months or
on an average of at least six times a year, and prolonged
expiration with wheezing or rhonchi on physical examina-
tion between attacks.
Section 3.03C states:
When a respiratory impairment is episodic in nature, as may
occur in complications of bronchiectasis and asthmatic
bronchitis, the frequency of severe episodes despite pre-
scribed treatment is the criterion for determining the level of
impairment. Documentation for episodic asthma should
include the hospital or emergency room records indicating
the dates of treatment, clinical findings on presentation,
what treatment was given and for what period of time, and
the clinical response. Severe attacks of episodic asthma, as
listed in section 3.03B, are defined as prolonged episodes
lasting at least several hours, requiring intensive treatment
such as intravenous drug administration or inhalation ther-
apy in a hospital or emergency room.
The criterion for determining the level of McCants' asthmatic bron-
chitis therefore is the frequency of severe attacks occurring "in spite
of prescribed treatment."
Medical records admitted into evidence do not reveal the frequency
or severity required by the regulations. We note additionally that
diagnostic tests revealed that McCants' theophylline level was often
below therapeutic range when she had asthmatic attacks. Such results
comport with physicians' reports that McCants had a history of non-
compliance with her drug regimen to control asthma. McCants did not
meet her burden of establishing that her asthmatic condition met or
4
equalled a listed impairment so as to disqualify her at step three of the
sequential process.
III
McCants also asserts that the Secretary did not give proper weight
to her complaints of pain. Once medical evidence is produced sup-
porting the existence of a condition that could reasonably produce
pain, the Secretary must assess the effect of pain on the claimant's
residual functional capacity. Foster v. Heckler , 780 F.2d 1125, 1129
(4th Cir. 1986). Evidence of a claimant's activities as affected by the
pain is relevant to the severity of the impairment. Craig v. Chater, 76
F.3d 585, 595 (4th Cir. 1996).
McCants complained of chest pain, but clinical examinations and
chest x-rays revealed no active cardiopulmonary disease, and she
never was in acute distress from this pain. She testified that her head-
aches occur infrequently and are somewhat relieved with Tylenol.
While she has dextroscoliosis of the spine, there is no significant limi-
tation of range of motion with muscle spasm, significant weakness,
or sensory deficit. She requires no assistance in walking. No prescrip-
tion painkillers were prescribed for her back pain; instead, McCants
was instructed to lose weight, take Motrin, use a heating pad, and rest
in bed for two days.
McCants lives alone and cleans her three rooms and a bath. She
sweeps and vacuums once a month and attends church often. Given
the objective medical evidence and McCants' relatively active life,
substantial evidence supports the Secretary's finding that her pain was
not so severe as to preclude a wide range of sedentary work.
IV
Finally, McCants contends that the ALJ erred when he found that
she was capable of performing bench work assembly jobs. This argu-
ment is without merit. Once the ALJ found that McCants could no
longer perform her past work, the burden shifted to the Secretary to
establish that other work existed in significant numbers that an indi-
vidual of McCants' age, education, experience, and residual func-
5
tional capacity could perform. Hall v. Harris , 658 F.2d 260, 264 (4th
Cir. 1981).
Because McCants has both exertional and nonexertional limita-
tions, the ALJ properly solicited the testimony of a vocational expert
(VE) as to whether work existed in significant numbers in the
regional economy that an individual with McCants' vocational profile
could perform. The VE identified bench assembly work as such a job.
Substantial evidence therefore supports the finding that McCants was
capable of performing alternative work and was therefore not dis-
abled. See Walker v. Bowen, 889 F.2d 47, 50 (4th Cir. 1989).
V
We accordingly affirm the district court's decision. We dispense
with oral argument because the facts and legal contentions are ade-
quately presented in the materials before the court and argument
would not significantly aid the decisional process.
AFFIRMED
6