Cook v. Chater, Commissioner

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
BETTY COOK,
Plaintiff-Appellant,
v.
No. 95-2432
SHIRLEY S. CHATER, COMMISSIONER OF
SOCIAL SECURITY,
Defendant-Appellee.
Appeal from the United States District Court
for the District of South Carolina, at Aiken.
Cameron McGowan Currie, District Judge.
(CA-92-466-1-22-AJ)
Submitted: September 19, 1997
Decided: October 14, 1997
Before MURNAGHAN, NIEMEYER, and MOTZ, Circuit Judges.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
Mary J. Wiesen-Kosinski, Aiken, South Carolina, for Appellant.
Frank W. Hunger, Assistant Attorney General, J. Preston Strom, Jr.,
United States Attorney, Mack A. Davis, Acting Chief Counsel,
Rebion IV, Mary Ann Sloan, Principal Regional Counsel, Social
Security Disability Litigation, Haila Naomi Kleinman, Supervisory
Assistant Regional Counsel, Renata Turner, Assistant Regional Coun-
sel, Office of the General Counsel, Region IV, SOCIAL SECURITY
ADMINISTRATION, Atlanta, Georgia, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Betty Cook appeals the district court's order upholding the deter-
mination by the Commissioner of Social Security (Commissioner)
that she is not eligible for social security disability benefits. Because
substantial evidence supports the Commissioner's decision, we
affirm.
Cook, who has a third-grade education and past relevant work
experience as a nurse's aide, alleged in her application for benefits
that she became disabled due to back pain on January 1, 1979.*
Cook's insured status expired on December 31, 1980. Her application
was denied initially and on reconsideration. An administrative law
judge (ALJ) conducted a hearing on Cook's application. Cook was
fifty-three years old at the time of her hearing, at which both she and
her step-daughter testified. After the hearing, the ALJ issued a deci-
sion finding that Cook was able to perform her past relevant work as
a nurse's aide and, therefore, was not entitled to benefits.
Cook injured her back in a work-related injury in June 1974 and
received worker's compensation for a sixty percent impairment.
Cook's medical records show that she was treated for back pain
between June 1974 and July 1975 and was diagnosed with low back
derangement, low back sprain, sciatica, and L5-S1 nerve root pain.
Although a herniated disc was suspected, x-rays showed no evidence
of disc disease. Cook's principal treating physician in 1974 and 1975,
Dr. Manning, found "no objective findings of an impairment" to
account for Cook's disabling back pain.
Cook submitted no medical records relating to her back condition
_________________________________________________________________
*Cook filed an application for disability insurance benefits in 1977
which was denied. Cook did not pursue an appeal from that decision.
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between July 1975 and February 1980, when she was hospitalized for
two weeks with severe back pain. An x-ray, myelogram, and veno-
gram showed no evidence of nerve root impingement or disc disease.
Cook's treating physician, Dr. Zeide, noted that there was "no evi-
dence of neurological or surgically treatable condition," nor did he
restrict her activities in any way. From March 1980 through January
1990, Cook received no medical treatment for her back pain. In Janu-
ary 1990, Cook underwent a myelogram, laminectomy and diskec-
tomy.
The ALJ considered the opinions of each of Cook's treating physi-
cians, Cook's testimony, including her claims of pain and limited
mobility, and her step-daughter's testimony. Based on the evidence
presented, the ALJ concluded that Cook's back pain, as of December
31, 1980, did not "interfere with [her] ability to perform sustained
medium work," including her past relevant work as a nurse's aide.
We must uphold the Commissioner's decision if substantial evi-
dence supports it and the correct law was applied. Hays v. Sullivan,
907 F.2d 1453, 1456 (4th Cir. 1990); see also 42 U.S.C. § 405(g)
(1994). Substantial evidence is "such relevant evidence as a reason-
able 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 Commissioner. Hays , 907 F.2d at 1456.
Cook first asserts that the medical evidence establishes that she was
disabled prior to December 31, 1980. Specifically, Cook points to a
1990 CT scan (ten years after the expiration of her insured status),
which showed "minimal degenerative change with intervertebral disc
space narrowing involving L5-S1," as evidence of a prior disabling
condition. However, the physician's report failed to establish a date
of onset with any degree of medical certainty. Rather, he spoke in
terms of possibilities, e.g., that Cook's condition"could reflect a long
standing fragment which has migrated somewhat more posteriorly
than usually expected." (emphasis added). Cook also relies on a letter
written by Dr. Holford in 1991 in which he stated that Cook had not
been able to work since 1974. A treating physician's opinion is usu-
ally entitled to great weight but can be disregarded if there is persua-
sive contradictory evidence. See Coffman v. Bowen, 829 F.2d 514,
3
517 (4th Cir. 1987). Moreover, the regulations provide that a treating
physician's opinion is controlling only if it is consistent with other
substantial evidence and well supported by medically acceptable clin-
ical and laboratory diagnostic techniques. 20 C.F.R.§ 404.1527(d)(2)
(1997). Because Dr. Holford's opinion is inconsistent with other sub-
stantial evidence (i.e., the absence in 1974 and 1980 of objective evi-
dence of a disabling condition), it is not entitled to controlling weight.
Next, Cook claims that the ALJ improperly evaluated a workers'
compensation disability rating she received in 1975 which assigned
a sixty percent permanent disability. The ALJ did take into account
Cook's disability award but disregarded it because"[n]o records have
been presented which would show on what that award was based or
which would indicate persisting functional limitations for a consecu-
tive 12-month period." Although the disability determination of a
state agency is entitled to consideration by the Secretary, see
DeLoatche v. Heckler, 715 F.2d 148, 150 n.1 (4th Cir. 1983), that
determination is not binding. See 20 C.F.R.§ 404.1504 (1997).
Finally, Cook maintains that the ALJ improperly found her testi-
mony not credible and failed to properly evaluate her subjective com-
plaint of pain. In cases where the claimant alleges a nonexertional
impairment, including pain, the claimant must present medical evi-
dence of a condition that could reasonably be expected to produce
pain. See Craig v. Chater, 76 F.3d 585, 594-96 (4th Cir. 1996).
Objective evidence of pain or its magnitude is not required. Id.; see
also Foster v. Heckler, 780 F.2d 1125, 1129 (4th Cir. 1986). Once a
claimant has met the threshold burden of showing by objective medi-
cal evidence a medical impairment reasonably likely to cause the pain
claimed, the extent to which the pain affects the claimant's ability to
work must be evaluated.
Under the regulations, this evaluation must take into account
not only the claimant's statements about her pain, but also
"all the available evidence," including the claimant's medi-
cal history, medical signs, and laboratory findings . . . and
any other evidence relevant to the severity of the impair-
ment, such as evidence of the claimant's daily activities,
specific descriptions of the pain, and any medical treatment
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taken to alleviate it, see 20 C.F.R. §§ 416.929(c)(3) &
404.1529(c)(3).
Craig, 76 F.3d at 595. Our review of the ALJ's decision reveals that
he properly evaluated Cook's condition under the foregoing criteria.
Accordingly, we find that the Commissioner's decision was sup-
ported by substantial evidence and we, therefore, affirm the district
court's decision. We dispense with oral argument on motion of the
parties and 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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