UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

JIMMY D. JUSTUS,
Plaintiff-Appellant,

v.
                                                                       No. 97-2711
KENNETH S. APFEL, COMMISSIONER OF
SOCIAL SECURITY,
Defendant-Appellee.

Appeal from the United States District Court
for the Southern District of West Virginia, at Bluefield.
Mary S. Feinberg, Magistrate Judge.
(CA-96-1947)

Submitted: August 11, 1998

Decided: October 23, 1998

Before WILLIAMS and LUTTIG, Circuit Judges, and
BUTZNER, Senior Circuit Judge.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

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COUNSEL

C. Randall Lowe, TATE, LOWE & ROWLETT, P.C., Abingdon,
Virginia, for Appellant. James A. Winn, Chief Counsel, Region III,
Patricia M. Smith, Deputy Chief Counsel, Lori R. Karimoto, Assistant
Regional Counsel, Office of the General Counsel, SOCIAL SECUR-
ITY ADMINISTRATION, Philadelphia, Pennsylvania; Rebecca A.
Betts, United States Attorney, Kelly R. Rixner, Assistant United
States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Charleston, West Virginia, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit.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

_________________________________________________________________

OPINION

PER CURIAM:

Jimmy D. Justus seeks review of the Commissioner of Social
Security's decision affirming an administrative law judge's denial of
disability insurance benefits and supplemental security income
("SSI"). Specifically, Justus contends that the ALJ improperly dis-
counted the opinion of his treating physician in determining that
Justus did not have a severe mental impairment which affected his
ability to perform light or sedentary work. Because substantial evi-
dence supports the ALJ's decision, we affirm.

I.

Justus alleges a disability stemming from an October 1989 automo-
bile accident. As a result of that accident, Justus sought treatment for
neck and back discomfort. In addition, six weeks after the accident,
a psychiatrist diagnosed Justus as suffering from post-traumatic stress
disorder.

In March 1990, Justus filed applications for disability insurance
benefits and SSI, alleging disability due to physical injuries suffered
in the automobile accident.1 These applications were denied initially
and upon reconsideration. In April 1991, an ALJ conducted a hearing
on Justus's claims. In an opinion issued several months later, the ALJ
found that, although Justus could not perform his past relevant work,2
_________________________________________________________________
1 During the administrative process, Justus presented evidence of men-
tal impairment.
2 Justus previously worked as a laborer, coal miner, sawyer, and
machine operator.

                    2
he had the residual functional capacity to perform light work. There-
fore, the ALJ determined that Justus had not met the Social Security
Act's standard for disability.

After the Appeals Council denied Justus's request for review in
April 1992, Justus filed suit in the United States District Court for the
Western District of Virginia. The district court affirmed the Commis-
sioner's decision. On appeal, we held that the ALJ may have improp-
erly discredited the opinion of Justus's treating physician, and
remanded the case for further consideration of Justus's mental
condition.3 Thereafter, the district court remanded the case to the
Appeals Council, which in turn remanded to an ALJ for further pro-
ceedings.

On remand, an ALJ re-opened the record for receipt of additional
evidence and, in July 1995, conducted another administrative hearing.
In a decision dated September 20, 1995, the ALJ determined that,
although Justus was unable to perform his past relevant work, "there
are a significant number of jobs in the national economy which he
could perform." Further, the ALJ found that Justus's mental status
was not so severe as to create any limitations on his ability to work.
Therefore, the ALJ determined that Justus was not entitled to disabil-
ity insurance and SSI benefits. This decision became final in Septem-
ber 1996 when the Appeals Council denied Justus's request for
review. Justus filed a new complaint in the United States District
Court for the Southern District of West Virginia seeking judicial
review of the Commissioner's final decision. In December 1997, the
magistrate judge granted the Commissioner's motion for summary
judgment. This appeal followed.

II.

In determining whether Justus satisfied the Social Security Act's
standard for disability, the ALJ analyzed the reports and opinions of
several individuals who had examined Justus after the accident. First,
six weeks after the automobile accident, Dr. James Eden, a psychia-
trist and Justus's treating physician, diagnosed Justus with post-
_________________________________________________________________
3 See Justus v. Shalala, 41 F.3d 1504 (4th Cir. 1994) (unpublished) (per
curiam).

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traumatic stress disorder. Dr. Eden continued to examine Justus on a
monthly basis until July 1991, during which time he treated Justus for
major affective disorder and gave him anti-depressant medications. In
April 1991, Dr. Eden completed a Medical Assessment of Ability to
do Work-Related Activities (Mental) in which he stated that Justus
was severely impaired in his ability to make occupational, perfor-
mance, and personal-social adjustments. After July 1991, Dr. Eden
did not evaluate Justus again until December 1994, when he com-
pleted another Medical Assessment of Ability to do Work-Related
Activities (Mental). In addition to that Assessment, which indicated
no improvement in Justus's condition, Dr. Eden opined that Justus
continued to meet the diagnostic criteria for major affective disorder,
that Justus's condition seemed more severe than it had in 1991, and
that Justus was unable to sustain any type of gainful activity.

In addition to Dr. Eden, Bede Pantaze, a licensed psychologist,
examined Justus one year after the accident at the direction of the
Social Security Administration. Ms. Pantaze found no clinical signs
of depression, mania, apprehension, anxiety or panic attacks. In her
opinion, Justus suffered from "mild" emotional problems.

Finally, in March 1995, at the ALJ's request, Steve Savage, Ph.D.,
a licensed clinical psychologist, examined Justus. Dr. Savage also
completed a Medical Assessment of Ability to do Work-Related
Activities (Mental), in which he indicated that Justus's ability to make
occupational, performance, and personal-social adjustments was in
the "good" to "very good" categories. While he believed that Justus
was a chronic alcoholic and an individual with borderline intelligence,
Dr. Savage attached no psychiatric significance to any of Justus's
complaints. Specifically, Dr. Savage noted that at no time during the
examination did Justus offer any complaints which would be consis-
tent with a diagnosis of traumatic stress disorder.

The ALJ evaluated the opinions of the treating and other examining
sources and considered the testimony of a vocational expert. The
vocational expert stated that if Dr. Eden's limitations were applied,
then Justus was disabled, but if Dr. Eden's report was discounted, and
the reports of Ms. Pantaze and Dr. Savage were accepted, then Justus
was not disabled. The vocational expert also testified that Justus could
perform a significant number of jobs in the national economy.

                    4
Based on his consideration of their opinions, the ALJ determined
that Justus failed to satisfy the Social Security Act's standard for dis-
ability. While the ALJ noted that, as a treating source, Dr. Eden's
assessment was entitled to a certain amount of deference, he rejected
Dr. Eden's opinion that Justus was unable to perform the jobs which
the vocational expert enumerated. In reaching this conclusion, the
ALJ stated that: (1) Dr. Eden's findings of chronic post traumatic
stress disorder and severe affective disorder were not corroborated by
other physicians or examiners; (2) Dr. Eden failed to submit detailed,
longitudinal treatment notes; and (3) Dr. Eden's medical assessment
forms indicated an impairment so severe that Justus would be unable
to function outside of a mental institution.

III.

This court, like the district court, will uphold the Commissioner's
disability determination if it is supported by substantial evidence.4
Substantial evidence is "`such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion.'"5 Substantial evi-
dence is "`more than a mere scintilla of evidence but may be some-
what less than a preponderance.'"6 We do not weigh the evidence
anew or substitute our judgment for that of the Commissioner, pro-
vided that substantial evidence supports the Commissioner's decision.7

Justus contends that the ALJ improperly discounted the opinion of
Dr. Eden, his treating physician, in determining that he did not have
a severe mental impairment which affected his ability to perform light
or sedentary work. Citing Coffman v. Bowen, 8 Justus asserts that his
treating physician's testimony is entitled to great weight and may be
disregarded only if persuasive contradictory evidence exists.9
_________________________________________________________________
4 See 42 U.S.C. § 405(g) (1994).
5 Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting
Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)).
6 Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990) (quoting Laws
v. Celebrezze, 368 F.2d 640, 642 (4th Cir. 1966)).
7 See id.
8 829 F.2d 514 (4th Cir. 1987).
9 See Appellant's Br. at 11 (citing Coffman v. Bowen, 829 F.2d 514,
517-18 (4th Cir. 1987)).

                     5
The ALJ is not required to give the treating physician's testimony
controlling weight.10 Rather, the Social Security Regulations provide
that:

          If we find that a treating source's opinion on the issue(s) of
          the nature and severity of [the] impairment(s) is well sup-
          ported by medically acceptable clinical and laboratory diag-
          nostic techniques and is not inconsistent with the other
          substantial evidence in [the] case record, we will give it con-
          trolling weight.11

If a treating physician's opinion "is not supported by clinical evidence
or if it is inconsistent with other substantial evidence, it should be
accorded significantly less weight."12

With regard to the first requirement, that the treating source's opin-
ion be supported by clinical and laboratory diagnostic techniques, we
find no evidence in the record that Dr. Eden utilized such techniques.
While his December 1994 report refers to a psychological evaluation
conducted in June 1990, that evaluation is not contained in the record.
Therefore, we turn to whether Dr. Eden's opinion was inconsistent
with other substantial evidence in the record.

Dr. Eden's diagnoses included post-traumatic stress disorder, major
affective disorder, and severe impairment in Justus's ability to make
occupational, performance, and personal-social adjustments. On the
other hand, both Ms. Pantaze and Dr. Savage found no significant
impairment. Ms. Pantaze believed Justus suffered from "mild" emo-
tional problems and Dr. Savage found no evidence of affective disor-
der. Further, Dr. Eden opined that Justus's mental state was such that
he could not function outside of an institutional environment. How-
ever, Justus has been functioning without any treatment by a medical
specialist or any medication since 1991. Finally, Justus admitted that
he continues to drive and to shop for cigarettes. He told Ms. Pantaze
_________________________________________________________________
10 See Craig v. Chater, 76 F.3d 585, 590 (4th Cir. 1996) (quoting
Hunter v. Sullivan, 993 F.2d 31, 35 (4th Cir. 1992)).
11 20 C.F.R. §§ 404.1527(d)(2) & 416.927(d)(2) (1997).

12 Craig, 76 F.3d at 590.

                    6
that he occasionally mows the lawn and walks for exercise, and Dr.
Savage found him reasonably articulate and communicative. Thus, the
ALJ properly discounted Dr. Eden's opinion because it was inconsis-
tent with the record as a whole.13

We will not re-weigh this conflicting evidence, nor will we make
credibility determinations. Because Dr. Eden's opinion was properly
discounted, and because Ms. Pantaze's and Dr. Savage's opinions
constitute evidence sufficient to justify the ALJ's finding that Justus
was not disabled, we affirm the denial of relief.

We dispense with oral argument because the facts and legal conten-
tions are adequately presented before the court and argument would
not aid in decisional process.

AFFIRMED
_________________________________________________________________
13 See 20 C.F.R. § 404.1527(d) (1997).

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