UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

RONDA F. BURCH,
Plaintiff-Appellant,

v.
                                                                No. 00-1402
KENNETH S. APFEL, COMMISSIONER OF
SOCIAL SECURITY,
Defendant-Appellee.

Appeal from the United States District Court
for the District of South Carolina, at Charleston.
Margaret B. Seymour, District Judge.
(CA-98-2891-2-24AJ)

Argued: April 6, 2001

Decided: May 29, 2001

Before WILLIAMS, TRAXLER, and KING, Circuit Judges.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

ARGUED: John Max Leiter, LEITER & SNOOK, P.A., Myrtle
Beach, South Carolina, for Appellant. Yvette G. Keesee, Assistant
Regional Counsel, Office of the General Counsel, SOCIAL SECUR-
ITY ADMINISTRATION, Denver, Colorado, for Appellee. ON
BRIEF: Frank W. Hunger, Assistant Attorney General, J. Rene
Josey, United States Attorney, James D. McCoy, III, Assistant United
States Attorney, Deana R. Ertl-Lombardi, Chief Counsel,
Region VIII, Office of the General Counsel, SOCIAL SECURITY
ADMINISTRATION, Denver, Colorado, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Ronda F. Burch appeals the district court's order affirming the
Commissioner of Social Security's ("the Commissioner") denial of
Burch's claim for disability insurance benefits. We affirm.

I.

On September 10, 1992, Burch was admitted to Coastal Carolina
Hospital "for evaluation and treatment of anxiety, marital discord
with resentment toward [her] husband and decreased ability to sleep
and concentrate." A.R. 112. Burch was treated by Dr. Dawn Murphy
and diagnosed with "[m]ajor depression, recurrent." A.R. 111. After
five days of treatment, Burch was discharged and prescribed Prozac
and Trazodone. Burch remained under Dr. Murphy's care on an out-
patient basis from September 1992 through February 1998.

Approximately one year prior to her admission to Coastal Carolina
Hospital, Burch quit her job as an insurance secretary because of
depression. Burch attempted to return to a similar position in Septem-
ber 1994 but worked for only three months. She stated she left this
position because she "almost had a nervous breakdown." A.R. 304.
On April 11, 1995, Burch filed an application for disability insurance
benefits, alleging that her disabling condition, i.e., depression, began
in January 1992. Her application was denied at both the initial and
reconsideration stages. At Burch's request, a hearing was held before
an Administrative Law Judge ("ALJ") on May 3, 1996. After examin-
ing the relevant records and hearing from Burch and Dr. Murphy, the

                   2
ALJ held that Burch was not entitled to disability benefits under the
Social Security Act. The Appeals Council denied Burch's request for
a review of the ALJ's decision, thus making that the ALJ's ruling
final for purposes of judicial review. See 20 C.F.R. § 404.981 (2000);
see also Sims v. Apfel, 120 S. Ct. 2080, 2083 (2000). Burch then filed
suit in the district court pursuant to 42 U.S.C.A.§ 405(g) (West Supp.
2000), challenging the denial of benefits. In an order dated January
31, 2000, the district court found that the denial of benefits was sup-
ported by substantial evidence and affirmed. Burch now appeals to
this court.

II.

We review the ALJ's denial of disability insurance benefits to
determine whether the decision is supported by substantial evidence.
See Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996). "Substantial
evidence is such relevant evidence as a reasonable mind might accept
as adequate to support a conclusion." NLRB v. Peninsula Gen. Hosp.
Med. Ctr., 36 F.3d 1262, 1269 (4th Cir. 1994) (internal quotation
marks omitted). Though substantial evidence must certainly amount
to more than a scintilla, it may also be less than a preponderance. See
AT&T Wireless PCS, Inc. v. City Council, 155 F.3d 423, 430 (4th Cir.
1998). In assessing whether the findings are supported by substantial
evidence, we must ascertain whether the ALJ has examined all rele-
vant evidence and offered a sufficient "rationale in crediting certain
evidence." Milburn Colliery Co. v. Hicks, 138 F.3d 524, 528 (4th Cir.
1998). The legal conclusions of the ALJ are reviewed"de novo to
determine whether they are rational and consistent with applicable
law." Id.

A claimant seeking disability benefits must establish the existence
of a medically determinable physical or mental impairment lasting at
least twelve months that prevents her from engaging in substantial
gainful activity. See 42 U.S.C.A. § 423(d)(1)(A) (West Supp. 2000).
The regulations define substantial gainful activity as work activity
involving significant physical or mental abilities for pay or profit. See
20 C.F.R. § 404.1572(a), (b) (2000). In evaluating whether a claimant
is entitled to disability insurance benefits, an ALJ must follow the
five-step sequential evaluation of disability set forth in the Social
Security regulations. See 20 C.F.R. § 404.1520 (2000). An ALJ must

                   3
consider whether a claimant (1) is working, (2) has a severe impair-
ment, (3) has an impairment that meets or equals the requirements of
a listed impairment, (4) can return to her past work, and (5) if not,
whether the claimant retains the capacity to perform specific jobs that
exist in significant numbers in the national economy. See id. The bur-
den of proof and production rests on the claimant during the first four
steps, but shifts to the Commissioner on the fifth step. See Pass v.
Chater, 65 F.3d 1200, 1203 (4th Cir. 1995).

The ALJ found that Burch was not working and that Burch suf-
fered from "situational depression related to her marital status and
other family relationships." A.R. 25. However, the ALJ found that
Burch's impairment did not meet or equal the requirements of a listed
impairment and that Burch could return to her past work as an insur-
ance secretary. The parties agree that the relevant listed impairment
is found in 20 C.F.R. Pt. 404, Subpart P, App. 1,§ 12.04. According
to this regulation, a claimant suffering from an affective disorder must
first prove depressive syndrome characterized by four of the follow-
ing:

       a. Anhedonia or pervasive loss of interest in almost all
       activities; or

       b. Appetite disturbance with change in weight; or

       c. Sleep disturbance; or

       d. Psychomotor agitation or retardation; or

       e. Decreased energy; or

       f. Feelings of guilt or worthlessness; or

       g. Difficulty concentrating or thinking; or

       h. Thoughts of suicide; or

       i. Hallucinations, delusions or paranoid thinking.

                  4
20 C.F.R. Pt. 404, Subpart P, App. 1, § 12.04(A). If the claimant can
establish four of the nine symptoms, the claimant must then establish
that the symptoms result in 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 withdraw from that situation or to experience exacer-
        bation of signs and symptoms (which may include dete-
        rioration of adaptive behaviors).

20 C.F.R. Pt. 404, Subpart P, App. 1, § 12.04(B).

At the hearing, Burch testified that her activities were severely lim-
ited. She stated that she is able to drive an automobile, but on occa-
sion has to pull to the side of the road to "get myself back together
and go do what I was going to do." A.R. 306. Burch testified that she
had never been sociable and no longer attends church regularly
because she "just can't face it." A.R. 307. When she does attend she
sits on the balcony to avoid contact with others. Burch is able to sleep
only four hours per night and rises when she "can get it together
enough to get up and maybe get a cup of coffee." A.R. 310. Burch
testified that she spends most of her day resting due to fatigue, but
that when she can summon her energy she tries to take care of the
household chores. Other than performing the occasional chore, Burch
testified that during the day she talks with her sister on the phone, fol-
lows soap operas and game shows on televison, and keeps watch over
her grandchild from time to time. Burch also keeps track of bills and
writes checks, but testified that her daughter usually reviews the
records to make sure Burch made no errors.

Dr. Murphy took the stand at the conclusion of Burch's testimony.
Dr. Murphy testified that Burch suffers from major depression and

                    5
that "[h]er condition is significantly worse today than it was" when
she was first admitted to the hospital. A.R. 352. In Dr. Murphy's
view, Burch is unable to work due to irritability, paranoia, trouble
concentrating, and lack of long-term memory. Dr. Murphy also testi-
fied that she was considering electroconvulsive therapy, but was hesi-
tant to begin therapy because of a mild stroke Burch had suffered.

In the course of Dr. Murphy's testimony, the ALJ observed that
there were discrepancies between the doctor's medical notes and her
opinion given at the hearing. For example, at the hearing Dr. Murphy
twice stated that Burch entered Coastal Carolina Hospital in 1992 "as
an emergency for suicidal ideation." A.R. 338, 340. The records from
Coastal Carolina Hospital mention nothing about suicidal ideation,
and on the discharge form Dr. Murphy observed that"[t]he patient's
condition is stable and she is not [considered] to be potentially harm-
ful to herself and/or others." A.R. 111. Explaining Burch's response
to medication, Dr. Murphy testified that Burch "has had a very poor
response to medication, and that's not her fault, it's her body." A.R.
348. However, Dr. Murphy's progress notes are replete with refer-
ences to Burch, of her own volition, discontinuing medication. For
example, in August 1995, an exasperated Dr. Murphy observed that
"[a]s usual she has not given the medication adequate time to reach
some degree of remission." A.R. 151. In the same vein, Dr. Murphy
testified that alcohol consumption did not contribute to Burch's fail-
ure to recover. But Dr. Murphy's progress notes tell a different story.
In December 1995, Dr. Murphy observed that Burch"is once again
consuming some degree of alcohol and I have encouraged her to
desist from alcohol intake as it is certainly not very beneficial for her
level of depression and psychiatric functioning." A.R. 145. Answer-
ing a direct question from the ALJ, Dr. Murphy stated that "depres-
sion is causing the marital problems," rather than the marital discord
causing the depression. A.R. 353. However, in notes written less than
one year before the hearing, Dr. Murphy observed that Burch "feels
that her primary problem is her relationship with her husband and I
concur with her opinion." A.R. 148. In other notes, Dr. Murphy
observed that the marital problems were "not really a medication
issue but rather an issue of stress and power and control." A.R. 155.
Interestingly, Dr. Murphy avers in her progress notes from January
1994 that there was "no evidence of biochemical depression" and that
most of Burch's problems were "situational." A.R. 162.

                  6
In light of these and other discrepancies, the ALJ"attribute[d] very
little credibility to Dr. Murphy's opinions with regard to the claim-
ant's psychiatric impairments or limitations. She did concentrate
almost solely on depression and she showed that the claimant's
depression was situational in nature regarding her relationship to her
family, predominantly her husband." A.R. 21-22. Normally, the treat-
ing physician's opinion is accorded controlling weight if "well-
supported by medically acceptable clinical and laboratory diagnostic
techniques and is not inconsistent with the other substantial evidence
in [the] case record." 20 C.F.R. § 404.1527(d)(2) (2000); see also
Giving Controlling Weight to Treating Source Medical Opinions, 61
Fed. Reg. 34490, 34491-92 (1996). If not entitled to controlling
weight, the value of the opinion must be weighed and the ALJ must
consider:

       (1) the physician's length of treatment of the claimant,

       (2) the physician's frequency of examination,

       (3) the nature and extent of the treatment relationship,

       (4) the support of the physician's opinion afforded by the
       medical evidence of record,

       (5) the consistency of the opinion with the record as a
       whole; and

       (6) the specialization of the treating physician.

20 C.F.R. § 404.1527(d)(2). The ALJ's order indicates consideration
of all the pertinent factors. First, the ALJ observed that Dr. Murphy
began treating Burch in 1992 and that Burch was still under her care
at the time of the hearing. Second, the ALJ made frequent reference
to Dr. Murphy's progress notes which indicate Dr. Murphy saw Burch
on a frequent basis. Third, ALJ noted "Dr. Murphy had a closer rela-
tionship with the claimant and the claimant's family than one would
expect of a professional treating source." A.R. 21. Fourth, the ALJ
observed that Dr. Murphy's opinion given at the hearing was not con-
sistent with the medical records and especially her own progress

                  7
notes. Fifth, the ALJ documented and discussed at length the numer-
ous inconsistencies between Dr. Murphy's opinion given at the hear-
ing and her progress notes. Finally, the ALJ noted that Dr. Murphy's
specialization was psychiatry.

We find no error in the ALJ's decision to accord Dr. Murphy's tes-
timony little weight. The ALJ considered the relevant factors and
found that the numerous inconsistencies rendered Dr. Murphy's testi-
mony of little assistance. Indeed, in light of the material discrepancies
between the records and testimony, there was no other realistic course
for the ALJ to take. Moreover, the ALJ clearly stated why Dr. Mur-
phy's opinion was entitled to little weight, and the ALJ exhaustively
discussed the numerous inconsistencies that called Dr. Murphy's tes-
timony into doubt. Accordingly, the ALJ's treatment of Dr. Murphy's
opinion is in accord with the regulations and supported by substantial
evidence in the record.

As stated earlier, a claimant has the burden of proving that she has
a medically determinable mental or physical impairment that prevents
her from engaging in substantial gainful activity. Burch called no
other medical expert to testify, and the remaining evidence failed to
make out a case for disability during the relevant time frame. Dr.
Murphy's progress notes reveal that Burch frequently discontinued
prescribed medication and that she continued to use alcohol despite
Dr. Murphy's clear instructions. The regulations make clear that dis-
ability benefits are unavailable to a claimant who does not follow the
prescribed treatment. See 20 C.F.R. § 404.1530(b) (2000) (stating that
"[i]f you do not follow the prescribed treatment without a good rea-
son, we will not find you disabled"). Moreover, the ALJ found that
Burch's testimony established that she was able to care for her grand-
child, drive on occasion, attend church, and engage in other activities.
Based on our review of the record, we conclude that substantial evi-
dence supports the ALJ's decision. With her treating physician's testi-
mony properly accorded little weight, Burch failed to meet her burden
and therefore the ALJ correctly denied disability benefits.

In attacking the ALJ's decision, Burch argues that the Commis-
sioner failed to carry his burden on the fifth element of the sequential
analysis to produce evidence that other jobs exist in the national econ-
omy that Burch can perform. We disagree. In this case, the fifth ele-

                  8
ment was never reached because Burch carried her burden on only the
first two elements. Hence, the burden never shifted to the Commis-
sioner.

Next, Burch contends that the ALJ ignored evidence indicating that
she also suffers from neurological problems causing severe physical
or exertional impairments in addition to depression. When first apply-
ing for benefits, Burch listed "depression" as her only disabling con-
dition. Until now, Burch has consistently pursued benefits based on
her depression. As a general rule, we will not consider issues raised
for the first time on appeal. See, e.g., Karpel v. Inova Health Sys.
Servs., 134 F.3d 1222, 1227 (4th Cir. 1998); Muth v. United States,
1 F.3d 246, 250 (4th Cir. 1993). Because Burch's claim for benefits
has always been based on her depression, we decline to consider this
latest argument which was not raised below.

Finally, Burch alleges that the ALJ relied on the psychiatric report
of a post-hearing medical examiner and that the ALJ refused to hold
a supplemental hearing so that Burch's counsel could cross-examine
the examiner. The examiner's report is not cited in the ALJ's opinion
and the ALJ was careful to note that the report"is not being consid-
ered . . . in making this decision." A.R. 22. Accordingly, Burch's
argument is without merit.

III.

For the foregoing reasons, we conclude that the denial of benefits
in this case is supported by substantial evidence. Accordingly, the
decision of the district court is hereby affirmed.

AFFIRMED

                  9
