UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

RANDALL A. HOLLER,
Plaintiff-Appellant,

v.
                                                                      No. 95-2605
SHIRLEY S. CHATER,
COMMISSIONER OF SOCIAL SECURITY,
Defendant-Appellee.

Appeal from the United States District Court
for the Middle District of North Carolina, at Winston-Salem.
Frank W. Bullock, Jr., Chief District Judge.
(CA-94-137-6)

Submitted: April 16, 1996

Decided: May 9, 1996

Before HALL, ERVIN, and WILKINS, Circuit Judges.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

H. Russell Vick, Greensboro, North Carolina, for Appellant. Wal-
ter C. Holton, Jr., United States Attorney, Gill P. Beck, Assistant
United States Attorney, Arthur J. Fried, General Counsel, Ran-
dolph W. Gaines, Acting Principal Deputy General Counsel,
A. George Lowe, Acting Associate General Counsel, Litigation Divi-
sion, Eileen A. Farmer, Office of the General Counsel, SOCIAL
SECURITY ADMINISTRATION, Baltimore, Maryland, for Appel-
lee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Randall A. Holler, age 49, applied for disability insurance benefits
in April 1992, for a period of disability commencing May 18, 1991.
After an initial denial, the Social Security Commission held a hearing
and the Administrative Law Judge (ALJ) denied benefits. The
Appeals Council declined to review the decision of the ALJ and the
decision became final on January 28, 1994. Holler then filed a com-
plaint in the district court seeking review of the Commission's find-
ings. The district court adopted the recommendation of the magistrate
judge and denied relief. Holler contends that the ALJ improperly dis-
counted the opinion of Holler's treating physician, that the ALJ's
findings of residual functional capacity and credibility of Holler's
complaints of pain were not supported by substantial evidence, and
that the district court did not conduct a de novo review after Holler
filed objections to the magistrate judge's report and recommendation.
We affirm.

I

Holler has a history of a partial hemilaminectomy 1 with removal of
a herniated disc in March 1986 and a partial hemilaminectomy with
removal of a herniated disc with foraminotomy2 and decompression
of nerve roots. Holler's work history includes work as a letter carrier
before he stopped work due to back pain and an inability to walk or
lift in May 1991. Holler sought treatment from Dr. Russell Amundson
for lower back and leg pain in May 1991.
_________________________________________________________________

1 Surgical removal of a vertebral lamina on one side only. Dorland's
Illustrated Medical Dictionary, 745 (28th ed. 1994).

2 The operation of removing the roof of intervertebral foramina, done
for the relief of nerve root compression. Dorland's, 650-51.

                    2
In October 1991, Holler sought treatment from Dr. William Brown,
a neurosurgeon. Dr. Brown's examination revealed a straight leg rais-
ing test slightly positive due to spasm and pain on forward flexion of
the spine. Dr. Brown referred Holler to Dr. Taft, an orthopedic sur-
geon. After Dr. Taft examined Holler, he and Dr. Brown agreed that
Holler needed surgical intervention and a lumbar fusion should be
performed.

In November 1991, Drs. Brown and Taft operated on Holler. Dr.
Brown performed a bilateral lumbar hemilaminectomy and medial
facetectomy3 at L4-5, and Dr. Taft performed a spinal fusion. The dis-
charge summary reflects that Holler no longer had leg pain and was
moving without difficulty. Drs. Taft and Brown followed up with
Holler and remarked on Holler's improvement through February
1992. In February, Dr. Brown noted that Holler's improvements still
did not allow him to do any heavy lifting, repetitive bending, or pro-
longed walking. He also noted that while Holler would likely experi-
ence intermittent low back pain in the future, it should not be
incapacitating.

In late March and April 1992, Holler returned to Drs. Taft and
Brown complaining of lower back and bilateral leg pain. During Hol-
ler's April and March visits to Drs. Taft and Brown he continued to
complain of leg and back pain, but his doctors did not make any
objective findings of the cause of the pain. In April, Dr. Brown
assessed that Holler suffered from a lumbosacral sprain. By the end
of April, Dr. Brown noted that Holler's leg pain improved fifty to
seventy-five percent.

In an office note dated July 10, 1992, Dr. Brown recorded that Hol-
ler was found ineligible for Social Security benefits because he could
perform a job where he could sit. The note reflects that Holler said
his back and leg pains were worse and that standing or sitting aggra-
vated the pain. Dr. Brown noted that according to Dr. Taft, Holler's
x-rays looked good. He also noted that Holler was able to drive or
walk for up to an hour, but could only sit for fifteen to twenty minutes
before pain developed, could lift up to ten pounds, and was not able
to squat. Dr. Brown's disposition states, "I talked with the patient
_________________________________________________________________
3 Excision of the articular facet of a vertebra. Dorland's, 600.

                    3
about the possibility of his working. It is my strong opinion that this
patient is totally disabled and is not even able to perform a sedentary
job." Follow up visits with Dr. Brown revealed restriction of the lum-
bar range of motion, but did not reveal pain on the range of motion
Holler was able to achieve. Dr. Brown performed a myelogram in
September 1992 and Holler reported that Dr. Brown told him that the
myelogram did not show any nerve damage.

At the hearing before the ALJ, Holler testified that his daily activi-
ties included driving to the grocery store, post office, and bank. He
also testified that he is unable to lift items, but can place items into
a grocery cart if someone else takes them out of the cart. He attempts
to help with housework, but can only clean the bathroom or occasion-
ally cook. He said he was able to sit for twenty to thirty minutes and
stand for thirty minutes at a time, but after that must change positions
to gain relief from the pain.

At the administrative hearing, the parties agreed that the ALJ
would submit questions to a vocational expert (VE). The ALJ submit-
ted questions with the physical restrictions reflected in Drs. Taft and
Brown's medical notes. Specifically, the questions included a restric-
tion that lifting is limited to ten pounds, and that after fifteen to
twenty minutes of sitting, the position would need to be changed. The
VE responded that considering the person's past work history and
physical limitations, he could perform the following jobs: general led-
ger bookkeeper, accounting clerk, and night auditor. The VE stated
that these occupations would be appropriate if the individual could sit
for approximately six to seven hours each day.

The ALJ found that Holler was not disabled within the meaning of
the Social Security Act. The ALJ found that Holler suffered from
severe post lumbar laminectomy syndrome, but that he did not have
an impairment, or combination of impairments, equal to a presump-
tive disabling impairment. He also found that Holler's complaints of
pain were not credible to the degree of disabling pain alleged, such
that he would be prevented from performing light duty work. Consid-
ering the medical evidence and testimony, the ALJ found that Holler
had the residual functional capacity to perform the requirements of
light duty work with the restrictions that no squatting, repeated bend-
ing, or prolonged sitting or standing (for more than an hour at a time)

                    4
was required. Finally, the ALJ found that, based upon the conclusions
of the VE and the Medical-Vocational Guidelines, jobs existed in the
national economy in the light work category with the appropriate
restrictions.

II

This court, like the district court, will uphold the Commissioner's
disability determination if it is supported by substantial evidence. 42
U.S.C. § 405(g) (1988). The Supreme Court defined substantial evi-
dence 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) (quoting Consolidated 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 prepon-
derance. If there is evidence to justify a refusal to direct a verdict
were the case before a jury, then there is `substantial evidence.'" Hays
v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990) (quoting Laws v.
Celebrezze, 368 F.2d 640, 642 (4th Cir. 1962)).

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 that substantial evidence supports the
Commissioner's decision. Hays, 907 F.2d at 1456. Because substan-
tial evidence supports the ALJ's findings here, there is no reason to
disturb the decision of the Commissioner.

III

Holler claims that the district court erred by allowing the ALJ to
discount the opinion of his treating physician, Dr. Brown. He alleges
that the ALJ relied upon evidence from physicians who were no lon-
ger treating him and were not in a position to know of all his physical
restrictions.

The ALJ must consider objective medical facts and opinions and
the diagnoses of treating and examining doctors, which constitute a

                    5
major part of the proof in disability cases. McLain v. Schweiker, 715
F.2d 866, 869 (4th Cir. 1983). Pursuant to 20 C.F.R.§ 404.1527(d)(2)
(1995), the Commissioner must generally give more weight to the
opinion of a treating physician because the physician is often most
able to provide "a detailed, longitudinal picture" of a claimant's
alleged disability. The opinion of a treating physician must be
weighed against the record as a whole when determining eligibility
for disability insurance benefits. 20 C.F.R. § 404.1527(d)(4) (1995).
The Commissioner is ultimately responsible for determining whether
the claimant is disabled under the Act, and a treating physician's
opinion that the claimant is disabled does not necessarily mean that
the claimant will be found disabled. 20 C.F.R. § 1527(e) (1995).

The ALJ's rejection of Dr. Brown's finding of total disability is
supported by substantial evidence. Dr. Brown's statement that it was
his opinion that Holler is totally disabled and unable to perform even
a sedentary job, due to his limited range of motion and chronic pain,
came in July 1992. In November 1991, Drs. Taft and Brown operated
on Holler to relieve his initial complaints of back and leg pain. After
surgery Holler improved, and upon his discharge from the hospital
reported no pain. Both Dr. Taft and Dr. Brown participated in Hol-
ler's post-surgical treatment. From November to March both noted
Holler's improvement; however, the doctors noted that Holler was
still restricted in his ability to perform heavy lifting, prolonged walk-
ing, or repetitive bending.

In March 1992 Holler began to complain of a return of back and
leg pain. At this time Dr. Taft examined Holler and did not record any
medical reason for the pain and instead noted that x-rays showed
excellent position of internal fixation devices and a good strong lat-
eral fusion. On April 9, 1992, Holler again saw Dr. Taft. Dr. Taft
recorded that Holler had improved. At the end of April, Holler saw
Dr. Brown. Dr. Brown observed that Holler's leg pain had improved
fifty to seventy-five percent. The next office note from Dr. Brown
does not come until July 10, 1992. In this report Dr. Brown notes that
the Social Security Administration found Holler to be ineligible for
disability benefits. He states that Holler reports his back and leg pain
had worsened. The note states that Dr. Taft says that Holler's x-rays
look good. He also lists Holler's activities as being able to drive and
walk for up to an hour and sit for twenty minutes before developing

                     6
pain. He notes as restrictions an inability to lift over ten pounds and
an inability to squat. Dr. Brown's disposition on that date was to con-
tinue the present treatment. He opined that Holler was totally dis-
abled.

Dr. Brown's abrupt opinion of "total disability" is based upon Hol-
ler's subjective complaints of pain and his limited range of motion.
Dr. Brown's conclusory finding of total disability is not supported by
x-rays or any other objective medical evidence. 4 In addition, Dr. Taft,
who had also recently treated Holler, did not draw the same conclu-
sion. Less weight may be given to the opinion of a treating physician
when the diagnosis of disability is brief and conclusory. See Scott v.
Heckler, 770 F.2d 482, 485 (5th Cir. 1985). A determination of dis-
ability is the prerogative of the Commissioner, not the treating physi-
cian, and a brief, conclusory letter by a treating physician is not
dispositive. Houston v. Secretary of Health & Human Servs., 736
F.2d 365, 367 (6th Cir. 1984).

In light of the contradictory opinions of Dr. Taft and Dr. Brown,
the two most recent treating physicians, and Dr. Brown's brief and
objectively unsupported statement of disability, we find that the
weight given to Dr. Brown's opinion of disability was not improper.

IV

Holler alleges that the ALJ's assessment of his residual functional
capacity is without substantial evidence because the medical evidence
and the VE's responses do not demonstrate that he can perform the
full range of light work, specifically, that he would be able to stand
for a significant amount of time. An individual's residual functional
capacity is what that person can still do despite physical and mental
impairments. 20 C.F.R. § 404.1545(a) (1995). What the ALJ actually
found was that Holler could perform the requirements of light work
with the limitations of no squatting or repeated bending and no pro-
longed walking or sitting for more than an hour at a time. Without
_________________________________________________________________
4 Dr. Brown's opinion regarding Holler's physical limitation was not
discounted. Rather, it was used as the basis for the questions posed to the
VE.

                    7
these restrictions, the ALJ found, a finding of not disabled would be
directed. See 20 C.F.R. Part 404 Subpart P, App. 2 § 202.22 (1995).

Given Holler's nonexertional impairments, however, the grids
could only serve as a guide as to whether Holler was disabled, and

the testimony of the vocational expert was necessary. See Walker v.
Bowen, 889 F.2d 47, 49-50 (4th Cir. 1989). The questions posed to
the VE accurately described Holler's limitations as found by the ALJ.5
The VE identified three jobs which Holler was capable of performing
despite his limitations, and testified that these jobs existed in signifi-
cant numbers in the national economy. Under these circumstances, we
find that substantial evidence supports the decision to deny benefits.

V

Holler claims that the ALJ erred in finding that his claims of sub-
jective symptoms were not credible to the extent that he would not be
able to perform light work with the found restrictions. On appeal,
Holler argues first that the credibility rulings are error because an
inconsistency regarding the value of Feldene is not enough to dis-
credit his complaint of pain. Second, Holler contends that the daily
activities cited by the ALJ and the magistrate judge do not detract
from his credibility because these activities did not require greater
effort than Holler testified he was capable of. Finally, he argues that
the medical evidence supported his complaints of pain.
_________________________________________________________________

5 Holler disputes that he could sit for one hour, as found by the ALJ.
The questions posed to the VE, however, included the restriction that
Holler could only sit for fifteen to twenty minutes at one time. The VE
stated that jobs existed with this restriction. Holler next argues that he
could not sit for the six to seven hours required by the jobs the VE found
to fit Holler's requirements. He states that they would require prolonged
sitting, which the ALJ found he could not do. The VE did not state that
the hours of sitting would be for one period of time and, in fact, stated
that these jobs would allow Holler to stand and change positions from
time to time, so that prolonged sitting would not be required.

                     8
In the case of allegations of pain, the rule of this court is:

          Once an underlying physical or mental impairment that
          could reasonably be expected to cause pain is shown by
          medically acceptable objective evidence, such as clinical or
          laboratory diagnostic techniques, the adjudicator must eval-
          uate the disabling effects of a disability claimant's pain,
          even though its intensity or severity is shown only by sub-
          jective evidence. If an underlying impairment capable of
          causing pain is shown, subjective evidence of the pain, its
          intensity or degree can, by itself, support a finding of dis-
          ability. Objective medical evidence of pain, its intensity or
          degree . . . , if available, should be obtained and considered.
          Because pain is not readily susceptible of objective proof,
          however, the absence of objective medical evidence of the
          intensity, severity, degree or effect of pain is not determina-
          tive.

SSR 90-1p; see Hyatt v. Sullivan, 899 F.2d 329, 337 (4th Cir. 1990).
The ALJ must make a credibility determination based upon all the
evidence in the record. This court will not disturb such a properly
supported credibility determination. Hammond v. Heckler, 765 F.2d
424, 426 (4th Cir. 1985).

The ALJ noted that all x-rays and a myelogram taken after the
November 1991 surgery showed good results. He also noted that from
March to April 1991 Holler's straight leg raising percentages
increased despite his complaints of increased pain. The ALJ consid-
ered that Dr. Brown stated that Holler would have limited intermittent
low back pain, but that it should not be incapacitating.

The ALJ evaluated Holler's testimony regarding his daily activities
and compared it to his testimony regarding his pain and restrictions.
This court has recognized that daily activities may support the Com-
missioner's determination that a plaintiff is not disabled. Gross v.
Heckler, 785 F.2d 1163, 1165 (4th Cir. 1986)."The only fair manner
to weigh a subjective complaint of pain is to examine how the pain
affects the routine of life." Mickles v. Shalala, 29 F.3d 918, 921 (4th
Cir. 1994). The ALJ cited Holler's testimony that he drove on short
trips, cleaned, cooked, and washed dishes occasionally, that he went

                     9
grocery shopping alone, and that he made short trips to get his hair
cut and visit relatives. The ALJ found that these activities tended to
show that Holler's claims of inability to sit or lift were exaggerated.
In addition he noted that Holler's demeanor while testifying was lack-
ing in candor; he gave conclusory and evasive answers. We find that
in light of the ALJ's thorough examination of the medical and testi-
monial evidence that his determination of credibility was proper.

VI

After receiving the magistrate judge's recommendation denying
relief on Holler's claim, Holler filed timely objections to the report.
Holler claims that he could not have received a de novo review from
the district court judge because the judge presided over a jury trial on
the same day that he signed the order. Holler admits, however, "that
he is not in a position to state with absolute certainty that he did not
receive a de novo review." While a de novo review is the proper stan-
dard when a party has filed objections to the magistrate judge's rec-
ommendation under Fed. R. Civ. P. 72(b), there is no evidence that
the district court judge did not use the proper standard of review. We
therefore find that this claim is without merit.

VII

Finding no error with the district court judgment, we affirm. We
dispense with oral argument because the facts and legal contentions
are adequately presented in the materials before the court and argu-
ment would not aid the decisional process.

AFFIRMED

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