UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

TIMOTHY FLOWERS,
Plaintiff-Appellant,

v.
                                                                     No. 98-2112
KENNETH S. APFEL, COMMISSIONER OF
SOCIAL SECURITY,
Defendant-Appellee.

Appeal from the United States District Court
for the District of South Carolina, at Florence.
Charles E. Simons, Jr., Senior District Judge.
(CA-96-2724-5-6JI)

Submitted: February 16, 1999

Decided: March 19, 1999

Before WIDENER, ERVIN, and LUTTIG, Circuit Judges.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

B. Henderson Johnson, Jr., Todd James Johnson, JOHNSON, JOHN-
SON, WHITTLE & SNELGROVE, Aiken, South Carolina, for
Appellant. Frank W. Hunger, Assistant Attorney General, J. Rene
Josey, United States Attorney, John Berkley Grimball, Assistant
United States Attorney, Deana R. Ertl-Lombardi, Chief Counsel,
Region III, Thomas H. Kraus, Assistant Regional Counsel, 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Unpublished opinions are not binding precedent in this circuit.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:

Timothy Flowers filed an application for disability insurance and
Supplemental Security Income in May 1995, alleging disability as of
May 1992. Both applications were denied initially and upon reconsid-
eration. A hearing was held in May 1995, and the Administrative Law
Judge ("ALJ") denied the application; the Appeals Council affirmed.
The ALJ's decision then became the Commissioner's final decision.
Flowers then filed a complaint in the district court challenging the
final decision of the Commissioner. The magistrate judge recom-
mended affirming the Commissioner's decision, and the district court
affirmed. Flowers noted a timely appeal.

We review the Commissioner's final decision to determine whether
it is supported by substantial evidence and whether the correct law
was applied. See 42 U.S.C.A. § 405(g) (West Supp. 1998); Hays v.
Sullivan, 907 F.2d. 1453, 1456 (4th Cir. 1990). Flowers asserts that
substantial evidence does not support the ALJ's finding of no disabil-
ity and that the Appeals Council failed to accord controlling weight
to the opinion of Flowers' treating physician.

The evidence establishes that Flowers suffers from ongoing partial
complex seizures and grand mal seizures. In 1987, Flowers was
involved in an experimental medication study to control seizures but
was removed from the study because of his use of cocaine and other
substances. At that time, Dr. Gallagher, a neurologist, prescribed
Dilantin and noted that Flowers' seizures had been well controlled
with the anticonvulsant medication. In 1988, Dr. Gallagher noted that
Flowers suffered from seizures due to noncompliance with his pre-
scribed medication. In 1990, Flowers reported no seizure activity for
the past two years.

In May 1994, Flowers was evaluated by Dr. Richard A. Eisenberg,
a neurologist, who increased Flowers' medication. In December 1994,

                    2
Flowers reported that he continued to have seizures but had not lost
consciousness in two months. In January 1995, Flowers reported
increased seizure activity and it was noted that his blood Dilantin
level was below normal.

At the hearing, Flowers testified he continued to have seizures in
which he went unconscious but his typical seizure lasted from fifteen
seconds to a minute during which he remained conscious. Flowers
had these seizures two to three times per week. Flowers also stated
that during a typical day, he got up in the morning to take his medica-
tion and then went back to sleep for a while. When he woke up again,
he did household chores, read, carved wood, and visited friends. A
vocational expert ("VE") also testified after examining the evidence
and responded to a hypothetical question that included a profile of
Flowers' functional capacity. The VE stated that there were a signifi-
cant number of jobs in the national economy which Flowers could
perform. From the evidence presented at the hearing, the ALJ deter-
mined that Flowers was not disabled within the meaning of the Social
Security Act. Four months following the ALJ's decision, Flowers was
hospitalized for a seizure. Flowers submitted a letter to the Appeals
Council from Dr. Eisenberg stating that Flowers was unable to engage
"in any substantial employment." The Appeals Council affirmed the
ALJ's decision.

Flowers asserts that the ALJ's finding of no disability is not sup-
ported by substantial evidence. A five step sequential test is used to
evaluate a claim of disability. See 20 C.F.R. § 404.1520 (1998). The
ALJ must first determine whether the claimant is engaged in substan-
tial gainful activity. See 20 C.F.R. §§ 404.1510(a), 404.1520(a). If the
claimant is not engaged in substantial gainful activity, the next
inquiry is whether the claimant is severely impaired for the period
required by the regulations. See 20 C.F.R.§§ 404.1509, 404.1520(c).
If the claimant is severely impaired, then the next inquiry is whether
the impairment meets or equals one listed in 20 C.F.R. § 404, Sub-
part. P, App. 1. If the impairment is not equivalent to a listed impair-
ment, the ALJ must then determine whether the impairment prevents
the claimant from performing past relevant work. 20 C.F.R.
§ 404.1520(e). At the final step of the inquiry, "the burden shifts to
the [Commissioner] to produce evidence that other jobs exist in the
national economy that the claimant can perform given his age, educa-

                    3
tion, and work experience." Hunter v. Sullivan, 993 F.2d. 31, 35 (4th
Cir. 1992).

The record discloses that Flowers had not engaged in substantial
gainful activity since February 1994 and did not have a severe impair-
ment or any impairment equivalent to those listed in the regulations
during the period of disability. Though Flowers could not perform his
past relevant work,1 the ALJ properly determined that Flowers did
have the residual functional capacity to perform light work activity in
which he would not be exposed to heights or hazards. 2 The evidence
established that Flowers responded well to anticonvulsant medication.
"If a symptom can be reasonably controlled by medication or treat-
ment, it is not disabling." Gross v. Heckler , 785 F.2d. 1163, 1166 (4th
Cir. 1986). Also, Flowers' subjective allegations as to the severity of
his seizures were not supported by the record. Flowers claimed that
he had to lie down for one to three hours following a seizure but never
reported this to his treating physician. The evidence also established
that Flowers skipped medication doses. Further, the VE testified as to
jobs available in the national economy that Flowers could perform.

Flowers also asserts that the Appeals Council failed to accord con-
trolling weight to the medical opinion of his treating physician, Dr.
Eisenberg. Under the Social Security regulations, a treating physi-
cian's opinion need not be given controlling weight unless: (1) it is
well supported by medically acceptable clinical and laboratory diag-
nostic techniques and (2) it is not inconsistent with the other substan-
tial evidence of record. See 20 C.F.R. § 404.1527(d). Dr. Eisenberg's
letter failed to provide any explanation as to why Flowers' impair-
ments prevented him from working. Also, prior to Flowers' hospital-
ization, Dr. Eisenberg had not restricted Flowers' activities. Further,
the record discloses that the attending physician in the emergency
room concluded that Flowers had been noncompliant with his medi-
cation and told Flowers not to skip doses of Dilantin. Thus, the opin-
ion of Dr. Eisenberg did not overcome the substantial evidence
_________________________________________________________________
1 Flowers worked as a grass layer, carpenter's helper, forklift driver,
stock attendant, and janitorial worker.
2 Light work involves lifting no more than twenty pounds at a time with
frequent lifting or carrying of objects weighing up to ten pounds. See 20
C.F.R. §§ 404.1567(b), 416.967(b).

                    4
supporting the ALJ's decision. We therefore find the Secretary's deci-
sion supported by substantial evidence and based on correct legal
standards.

Accordingly, we affirm the district court's judgment. 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 aid the decisional process.

AFFIRMED

                    5
