UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

LILLIAN L. BARKES,
Plaintiff-Appellant,

v.
                                                                     No. 97-1216
KENNETH S. APFEL, COMMISSIONER OF
SOCIAL SECURITY,
Defendant-Appellee.

Appeal from the United States District Court
for the Northern District of West Virginia, at Wheeling.
Frederick P. Stamp, Jr., Chief District Judge.
(CA-95-165-5)

Argued: March 5, 1998

Decided: June 9, 1998

Before LUTTIG and WILLIAMS, Circuit Judges, and
CLARKE, Senior United States District Judge for the
Eastern District of Virginia, sitting by designation.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

ARGUED: Karl E. Osterhout, ROBERT PEIRCE & ASSOCIATES,
Pittsburgh, Pennsylvania, for Appellant. Victor J. Pane, Assistant
Regional Counsel, Office of the General Counsel, SOCIAL SECUR-
ITY ADMINISTRATION, Philadelphia, Pennsylvania, for Appellee.
ON BRIEF: James A. Winn, Chief Counsel, Region III, Office of the
General Counsel, SOCIAL SECURITY ADMINISTRATION, Phila-
delphia, Pennsylvania; William D. Wilmoth, United States Attorney,
Helen Campbell Altmeyer, Assistant United States Attorney, North-
ern District of West Virginia, Wheeling, West Virginia, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit.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

_________________________________________________________________

OPINION

PER CURIAM:

Lillian Barkes appeals from a judgment of the district court uphold-
ing the determination of the Commissioner of Social Security that she
is ineligible for disability insurance benefits ("DIB") under the Social
Security Act. For the reasons that follow, we affirm the district court.

I

Barkes was 49 years old on February 23, 1990, the date she alleges
that she became disabled. She has a ninth-grade education and
obtained her high school Graduate Equivalency Diploma. J.A. at 31.

Barkes worked as an aide at a center for the mentally retarded from
August 1986 until February 23, 1990. J.A. at 32-33, 75. Her job clas-
sification was "very heavy"1 since it entailed frequent, heavy lifting
of over 100 pounds, and frequent lifting of over 50 pounds. J.A. at 76.
She attributes her alleged disability to a 1988 accident at work which
damaged the nerves and muscles in her neck, back, and left arm. J.A.
at 40-41, 59.
_________________________________________________________________
1 The Commissioner's regulations define "very heavy" work as involv-
ing lifting of more than 100 pounds at a time with frequent lifting or car-
rying of objects weighing up to 50 pounds. 20 C.F.R.§ 404.1567(d)
(1997).

                    2
Barkes filed for DIB on June 19, 1990, alleging disability as of
February 23, 1990. J.A. at 54-55. The Commissioner maintains that
she last met the disability insured status requirements for purposes of
entitlement to benefits of the Act on December 31, 1990, although
Barkes erroneously argues that she last met that status on December
31, 1995.2

A.

An administrative hearing was held on July 9, 1991. At the hearing,
Barkes testified that she quit working because of headaches and pain
in her neck, back, and left arm. J.A. at 33. She claimed that she took
Extra Strength Tylenol, Tylenol P.M., and Sominex for the pain and
to help her sleep. J.A. at 34. Concerning her activity, Barkes testified
that she did some cooking daily, and shopping bi-weekly. J.A. at 148.
In addition, she cleaned her mobile home once a week with her
daughter's help, washed dishes once a day, and did laundry once a
week. J.A. at 148.

The following medical evidence was also presented at the adminis-
trative hearing: physicians' evaluations from Jack S. Koay, M.D., an
orthopedic surgeon and Workers' Compensation Fund physician who
evaluated Barkes for her Workers' Compensation claim; C.L. Mar-
quart, M.D., a neurosurgeon and a treating physician of Barkes'; and
Bradley K. Miller, D.O., an internist and another of Barkes' treating
physicians.

Dr. Koay evaluated Barkes on February 1, 1989 and recommended
that no percentage of impairment rating should be granted to her. J.A.
_________________________________________________________________
2 Barkes' belief can be attributed to the Administrative Law Judge's
("ALJ") finding that she continued to meet the disability insured status
through December 1995. J.A. at 183. However, the ALJ issued his find-
ings on February 7, 1995, and thus could not have found that Barkes met
requirements through December 1995, a date 10 months in the future.
Moreover, the Appeals Council and the Magistrate Judge also stated that
December 31, 1990 was the relevant date. Despite this discrepancy, there
is substantial evidence in the record for the Commissioner to conclude
that Barkes was not disabled through December 1995; thus, the discrep-
ancy is irrelevant.

                    3
at 119. In August 1990, Dr. Koay found that Barkes was not tempo-
rarily totally disabled. J.A. at 126.

Dr. Miller examined Barkes in May, June, and October 1990, and
noted that she complained of chronic pain in her neck, left shoulder,
and left arm. J.A. 141, 269-72. Dr. Miller did not identify any func-
tional limitations for Barkes as a result of her alleged pain, and indi-
cated that her prognosis was fair. J.A. at 141.

Dr. Marquart reported on June 27, 1990, that he found no physical
evidence to explain the pain Barkes complained of, and that she was
"extremely sensitive," and that it "was difficult to assess her strength
as I felt that she was giving less than a full capable effort." J.A. at
111. While Barkes presented possible carpal tunnel syndrome, Dr.
Marquart found no evidence of any cervical radiculopathy, which is
pain in the neck, shoulder, and arm caused by pressure on the roots
of the spinal nerves originating in the neck region. Id.; see Attorney's
Dictionary of Medicine C-140 (31st ed. 1998). On October 9, 1990,
Dr. Marquart found no surgical problems with the Magnetic Reso-
nance Imaging ("MRI") that he requested for Barkes J.A. at 131. In
response to interrogatories concerning Barkes' Workers' Compensa-
tion Claim, Dr. Marquart indicated that Barkes was temporarily
totally disabled from the period beginning February 23, 1990 through
December 28, 1990. J.A. at 143.

The Commissioner denied Barkes' applications at all levels of
administrative review and found on November 12, 1991 that she was
capable of performing a full range of light work. J.A. at 17-18.

Barkes filed a civil action in district court seeking judicial review
of the Commissioner's final decision. J.A. at 234. The court remanded
her case for further administrative action, finding that the ALJ had
erred by applying an inapplicable Social Security Ruling to her case.
J.A. at 234-49.

B.

A new administrative hearing was held on July 27, 1994, at which
Barkes and the following experts testified: Michael Ginsburg, M.D.,

                     4
a medical expert, and Charles Cohen, Ph.D., a vocational expert.
Additional evidence covering Barkes' medical history since the first
administrative hearing was also presented.

At this administrative hearing, Barkes testified that she was in
constant pain, J.A. at 207, and took aspirin and Tylenol to treat it. J.A.
at 205. Barkes alleged that the pain made it difficult for her to sleep
and restricted her ability to lift and carry things. J.A. at 209-210.

Michael Ginsberg, M.D., a medical expert, gave opinion testimony
and opined that Barkes did not have a medical condition either meet-
ing or equaling any of the specifically listed impairments in Appendix
1 to 20 C.F.R.3 J.A. at 214. He testified that there were no neurologi-
cal findings confirming that Barkes had a neurologic injury or impair-
ment. Id. While he agreed that Barkes had carpal tunnel syndrome, he
concluded that it would affect only some fine movement of her hands.
J.A. at 218. He also identified the C-5, C-6 level bulge in her neck
with cord impingement on the left, J.A. at 214, as radiologic evidence
that would explain pain in Barkes' left arm. At most, this condition
would affect her ability to do manual related activities with that arm.
J.A. at 221. He concluded that Barkes was restricted only from per-
forming fine movement involving motor coordination such as turning
a screw or picking up a small object by feel rather than vision. J.A.
at 222.

Charles M. Cohen, Ph.D., gave expert opinion testimony on voca-
tional issues. The ALJ asked Dr. Cohen to consider a hypothetical
individual with the following restrictions on her ability to work: first,
the inability to perform work above the light level, 4 and second, the
_________________________________________________________________
3 To be considered disabled under the Commissioner's regulations, a
claimant must have an impairment that is listed in 20 C.F.R. part 404,
Appendix 1, in which case the claimant is disabled, or their impairment
must prevent them from performing their previous work and also prevent
them from engaging in any other work.
4 Light work involves lifting no more than 20 pounds at a time with fre-
quent lifting or carrying of objects weighing up to 10 pounds. Even
though the weight lifted may be very little, a job is in this category when
it requires a good deal of walking or standing, or when it involves sitting
most of the time with some pushing and pulling of arm or leg controls.
20 C.F.R. § 404.1567(b) (1997).

                     5
inability to perform work requiring fine manipulation with her hands.
Dr. Cohen testified that given Barkes' age and educational and voca-
tional history, the hypothetical individual could perform several jobs
existing in significant numbers in the local and national economy.
J.A. at 224. These included the job classifications of light cleaning
and light packing. Id. The jobs that he suggested required either mod-
erate or gross movement of the arms and hands, but not fine manipu-
lation. J.A. at 225.

Medical reports showed that Dr. Marquart performed carpal tunnel
release surgery on Barkes on February 2, 1994 for her left wrist, and
March 16, 1994, for her right wrist. J.A. at 307, 310, 313. Dr. Mar-
quart found that as of September 19, 1994, Barkes exhibited no sig-
nificant neurological problems. J.A. at 187.

Barkes submitted the report of a consultative physician, Thomas J.
Schmitt, M.D., who evaluated her for arthritis on March 30, 1994, at
her attorney's request. J.A. at 287. Dr. Schmitt concluded that Barkes
possessed a full range of motion in all joints, with the exception of
her right and left shoulders, and that her grip strength was diminished.
Id. He also noted that "[t]here is abnormality of fine manipulations
and simple grasping movements in both hands." Id.

The ALJ issued a new decision on February 7, 1995, again denying
benefits to Barkes and finding her capable of performing a wide range
of light work. J.A. at 172-84. Barkes requested a review of this deci-
sion by the Appeals Council, and on September 27, 1995, it denied
that request. J.A. at 15-16.

Barkes, once again appealed her denial of benefits to district court.
On July 11, 1996, Magistrate Judge John W. Fisher, III, issued a
Report and Recommendation ("R & R") recommending that the Com-
missioner's decision be affirmed and that the Commissioner's Motion
for Summary Judgment be granted. Appellant's Appendix at 4-5.
Barkes appealed and on December 27, 1996, the district court adopted
the Magistrate's R & R in whole and entered judgment in favor of the
Commissioner.

                    6
II

A.

Under the Social Security Act, we must uphold the factual findings
of the Commissioner if they are supported by substantial evidence and
were reached through application of the correct legal standard. 42
U.S.C.A. §§ 405(g), 1383(c)(3) (West Supp. 1997); Coffman v.
Bowen, 829 F.2d 514, 517 (4th Cir. 1987); Myers v. Califano, 611
F.2d 980, 982 (4th Cir. 1980). Substantial evidence is "such relevant
evidence as a reasonable mind might accept as adequate to support a
conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971) (quot-
ing Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). "It
consists of more than a mere scintilla of evidence but may be some-
what less than a preponderance." Laws v. Celebrezze, 368 F.2d 640,
642 (4th Cir. 1966). In reviewing for substantial evidence, we do not
undertake to re-weigh conflicting evidence, make credibility determi-
nations, or substitute our judgment for that of the[Commissioner].
Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990). Where con-
flicting evidence allows reasonable minds to differ as to whether a
claimant is disabled, the responsibility for that decision falls on the
[Commissioner] (or the Commissioner's designate, the ALJ). Walker
v. Bowen, 834 F.2d 635, 640 (7th Cir. 1987). Accordingly, the issue
before us is not whether Barkes is disabled, but whether the ALJ's
finding that she is not disabled is supported by substantial evidence
and was reached based upon a correct application of the relevant law.
See Coffman, 829 F.2d at 517.

B.

Barkes challenges whether substantial evidence supports the ALJ's
conclusion that she retains the residual functional capacity to engage
in substantial gainful activity and is not disabled within the meaning
of the Social Security Act. Barkes claims that, in determining she
could do light work, with nonexertional limitations on performing
fine movements and motor coordination of her hands, the ALJ disre-
garded her testimony concerning pain and the testimony of a medical
expert. To support her claim of disability, Barkes cites the severe pain
she experiences in her neck, back, and left arm which allegedly pre-
vents her from working. Barkes also relies upon Dr. Ginsberg's testi-

                    7
mony that the C-5, C-6 level bulge in her neck impinging on her
spinal cord is medical evidence that would explain the alleged pain
in her upper left arm. Barkes argues that Dr. Ginsberg's testimony
proves that she had a medical condition which could be "reasonably
expected to cause the pain alleged." 20 C.F.R.§§ 416.929(a) &
404.1529(a) (1997).

Social Security Administration regulations promulgated in 1991
provide the authoritative standard for the evaluation of pain in disabil-
ity determinations, see Pope v. Shalala, 998 F.2d 473, 485-486 (7th
Cir. 1993), and control all determinations made since their effective
date. Craig v. Chater, 76 F.3d 585, 593 (4th Cir. 1996); Mickles v.
Shalala, 29 F.3d 918, 925 (4th Cir. 1994). These regulations set up
a two-step process for making the determination of whether a claim-
ant is disabled by pain. Under the first step, sections 416.929 and
404.1529 emphasize the importance of objective evidence in the eval-
uation of pain:

          In determining whether you are disabled, we consider all
          your symptoms, including pain, and the extent to which
          your symptoms can reasonably be accepted as consistent
          with the objective medical evidence, and other evidence
          . . . . However, statements about your pain or other symp-
          toms will not alone establish that you are disabled; there
          must be medical signs and laboratory findings which estab-
          lish that you have a medical impairment(s) which could rea-
          sonably be expected to produce the pain or other symptoms
          alleged and which, when considered with all of the other
          evidence (including statements about the intensity and per-
          sistence of your pain or other symptoms which may reason-
          ably be accepted as consistent with the medical signs and
          laboratory findings), would lead to a conclusion that you are
          disabled.

20 C.F.R. §§ 416.929(a) & 404.1529(a) (1997).

In the second step of the disability determination, the regulations
focus on evaluating the quality of the pain alleged:

          We will consider your statements about the intensity, persis-
          tence, and limiting effects of your symptoms, and we will

                    8
          evaluate your statements in relation to the objective medical
          evidence and other evidence, in reaching a conclusion as to
          whether you are disabled. We will consider whether there
          are any inconsistencies in the evidence and the extent to
          which there are any conflicts between your statements and
          the rest of the evidence, including your medical history, the
          medical signs and laboratory findings, and statements by
          your treating or examining physician or psychologist or
          other persons about how your symptoms affect you. Your
          symptoms, including pain, will be determined to diminish
          your capacity for basic work activities to the extent that your
          alleged functional limitations and restrictions due to symp-
          toms, such as pain, can reasonably be accepted as consistent
          with the objective medical evidence and other evidence.

20 C.F.R. § 416.929(c)(4) & 404.1529(c)(4) (1997).

Under these regulations, Barkes must first show objective medical
evidence of "the existence of a medical impairment(s) which results
from anatomical, physiological, or psychological abnormalities and
which could reasonably be expected to produce the pain or other
symptoms alleged." 20 C.F.R. §§ 416.929(b) & 404.1529(b) (1997).
In other words, she must show a medically determinable impairment
which could reasonably be expected to cause not just pain, or some
pain, or pain of some kind or severity, but the pain the claimant
alleges she suffers. Craig, 76 F.3d at 594. At this threshold level of
inquiry, the "intensity, persistence, or functionally limiting effects" of
the claimant's asserted pain are not directly at issue. See 20 C.F.R.
§§ 416.929(b) & 404.1529(b). The focus at this point is instead on
establishing a determinative underlying impairment-- a statutory
requirement for entitlement to benefits, see 42 U.S.C.A.
§ 1382c(a)(3)(A) -- which could reasonably be expected to be the
cause of the disabling pain asserted by the claimant. Craig, 76 F.3d
at 594.

To support her claims of disabling pain, Barkes points to her testi-
mony concerning pain and the testimony of Dr. Ginsberg, the medical
expert who testified that the "C-5, C-6 bulge, reported impingement,"
J.A. at 221, was radiologic evidence that would explain Barkes' pain
in her left arm. Barkes argues that this evidence of a medical condi-

                     9
tion which could reasonably be expected to cause her pain, required
the ALJ to determine, as a matter of law and fact, that Barkes was
entitled to DIB. To the contrary, the analysis of pain for a disability
determination does not end when a claimant has met her threshold
obligation of showing a medical impairment reasonably likely to
cause the pain claimed. The intensity and persistence of the claim-
ant's pain, and the extent to which it affects her ability to work, must
also be evaluated. See 20 C.F.R. §§ 416.929(c)(1) & 404.1529(c)(1)
(1997). Consequently, the ALJ continued his analysis of Barkes'
claim and proceeded to evaluate the quality of her pain.

Under the second step in the analysis of Barkes' disability claim,
the Commissioner must take into account not only her statements
about her pain, but also "all the available evidence," including: testi-
mony of all the medical experts, her medical history, medical signs,
and laboratory findings, see id.; any objective medial evidence of pain
(such as evidence of reduced joint motion, muscle spasm, deteriorat-
ing tissues, sensory deficit, or motor disruption), see 20 C.F.R.
§§ 416.929(c)(2) & 404.1529(c)(2) (1997); and any other evidence
relevant to the severity of the impairment, such as evidence of her
daily activities, specific descriptions of the pain, and any medical
treatment taken to alleviate it, see 20 C.F.R. §§ 416.929(c)(3) &
404.1529(c)(3) (1997).

The medical evidence in the record did not support a conclusion
that Barkes' pain was totally disabling. Barkes' treating physician, Dr.
Marquart, found no neurological evidence that would explain her
complaints of pain. On the other hand, Dr. Ginsberg, the testifying
medical expert, opined that Barkes presented radiologic evidence
accounting for her pain. This Circuit follows the attending physicians
rule which requires that the opinion of a claimant's treating physician
be given great weight and may be disregarded only if there is persua-
sive contradictory evidence. Coffman, 829 F.2d at 517 (quoting
Foster v. Heckler, 780 F.2d 1125, 1130 (4th Cir. 1986)). The ALJ
correctly credited the opinion of Dr. Marquart and found that Barkes'
pain did not incapacitate her since there was no persuasive contradic-
tory evidence to support a finding of disability.

There was substantial evidence in the record to support the ALJ's
conclusion that Barkes could engage in substantial gainful activity

                     10
and was not disabled within the meaning of the Social Security Act.
Besides the medical testimony which indicated that Barkes could per-
form light work with limitations on performance of fine movements
and motor coordination of her hands, the vocational expert testified
that there were a significant number of jobs in the national and local
economy that an individual with Barkes' work-related limitations
could perform. Therefore, there was substantial evidence in the record
for the ALJ to conclude that Barkes was not disabled under the Social
Security Act before either December 31, 1990, the last date she met
the disability insured status, or December 31, 1995, the date Barkes
relies upon.

III

Based on the foregoing reasons, we conclude that the Commission-
er's decision is supported by substantial evidence in the record.
Accordingly, the district court's judgment is hereby

AFFIRMED.

                    11
