UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

BETTY SLAYTON,

Plaintiff-Appellant,

v.

No. 98-1885

KENNETH S. APFEL, Commissioner of

Social Security,

Defendant-Appellee.

Appeal from the United States District Court

for the Eastern District of Virginia, at Norfolk.

Rebecca B. Smith, District Judge.

(CA-97-477-2)

Submitted: February 23, 1999

Decided: March 22, 1999

Before HAMILTON, LUTTIG, and MOTZ, Circuit Judges.

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Vacated and remanded by unpublished per curiam opinion.

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COUNSEL

Bruce Knight Billman, Fredericksburg, Virginia, for Appellant. James

A. Winn, Chief Counsel, Region III, Patricia M. Smith, Deputy Chief

Counsel, Allyson S. Jozwik, Assistant Regional Counsel, Office of

Chief Counsel, SOCIAL SECURITY ADMINISTRATION, Philadelphia, Pennsylvania; Helen F. Fahey, United States Attorney, Anita K.

Henry, Assistant United States Attorney, Richmond, Virginia, for

Appellee.

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Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

Betty Slayton appeals the district court's final order adopting the

recommendation of a magistrate judge, granting summary judgment

to the Commissioner, denying Slayton's motion for summary judgment, and affirming the Commissioner's decision denying her application for disability insurance benefits. Slayton contends that

substantial evidence does not support the findings that work exists in

significant numbers in the regional or national economy which she is

capable of performing and that her testimony was not credible. She

also contends that the administrative law judge ("ALJ") failed to

explain the weight given to the findings and conclusions of the treating physician. The Commissioner contends that the case should be

remanded to the Commissioner for the purpose of having the ALJ

make specific findings of fact regarding alleged unresolved conflicts

in the evidence and, if warranted, take further testimony from the

vocational expert ("VE"). Because we agree with the Commissioner,

the judgment of the district court is vacated and the case remanded

with instructions to return it to the Commissioner for further proceedings in accordance with this opinion.

Slayton was born in March 1942. She received a G.E.D. in 1971.

Prior to the onset of her disability, she assisted her electricianhusband and worked as a sewing machine operator. Slayton applied

for disability insurance benefits and supplemental security income on

October 10, 1993, alleging that she became unable to work because

of chronic swelling in her nondominant left hand and arm following

surgery for breast cancer.

Following a modified radical mastectomy, Slayton underwent

implantation of a skin tissue expander by Dr. Gerald Truesdale.

Truesdale saw Slayton on several occasions from May 1986 through

September 1990. In August 1990, Truesdale reported that Slayton had

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chronic lymphedema of the left arm resulting in increased swelling

and decreased functional use of the left arm whenever Slayton

attempted to use or increase the usage of the arm.* Truesdale recommended physical therapy for the left arm to prevent loss of all functional ability. He noted that therapy helped Slayton, but the condition

was chronic. In this report, Truesdale described the condition as disabling. Truesdale saw Slayton again in 1995. In a report prepared in

1996, Truesdale reiterated his conclusion that Slayton was disabled.

He also reported that Slayton was required to elevate her left arm several times during the day for lengthy periods of time in order to

reduce swelling in the arm and hand.

Slayton was also under the care of a surgeon, Dr. William Bowman. In April 1989, Bowman observed that Slayton had swelling of

her left arm; he noted that the swelling was not disabling and that it

went down every night. Based on a May 1991 examination, Bowman

stated in August 1991 that Slayton was able to work because her condition was stable. He noted, however, that she was restricted from

engaging in continuous or heavy work with her left arm and hand, and

she could not perform any occupation likely to injure the left hand.

In 1992, Slayton began seeking treatment from Dr. Randolph J.

Gould, a surgeon. In October 1992, Gould noted that Slayton had

chronic lymphedema that was unresponsive to therapies. He observed

that Slayton was often unable to close her left hand and could not

raise her arm above her shoulder. In June 1993, Gould noted that

Slayton's left arm edema was stable. In a report prepared in October

1993 for the Virginia Department of Social Services, Gould opined

that Slayton was unable to work because of "inadequate use of her left

arm." He also offered that Slayton could possibly engage in employment that required only the use of her right arm. (Administrative

Record at 180).

In March 1994, Dr. Ramnath Nayak, a specialist in internal medicine, performed a consultative examination of Slayton. He observed

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*Lymphedema is swelling as a result of obstruction of lymphatic vessels or lymph nodes and the accumulation of large amounts of lymph in

the affected region. See STEDMAN'S MEDICAL DICTIONARY 1004 (26th ed.

1995).

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that Slayton's left arm and hand were swollen to twice the normal

size. He also observed that Slayton's left hand grip strength was three

out of five and she could only raise her left arm 90 degrees. He further noted that her finger dexterity was good. He opined that Slayton

could lift no more than ten pounds with her left hand, but could carry

and handle objects without difficulty.

At the hearing before the ALJ, Slayton stated that she was unable

to do more than a little housework. She also stated that she could crochet for no more than fifteen or twenty minutes due to arthritis in her

fingers and increased swelling in her arm. According to Slayton, any

movement caused her left hand and arm and chest to swell. She also

described painful throbbing that increased with the swelling, for

which she took Advil. To reduce the swelling, she would elevate her

arm for about an hour from either a prone or sitting position. She

stated that she needed to elevate her arm three or four times a day.

At the hearing, the ALJ asked the vocational expert to assume that

Slayton was capable of light and sedentary work with the restriction

that she is limited in the use of her nondominant, upper extremity to

the point where she can use it only to support activities of her dominant right hand and could not use the left hand for repetitive grasping,

lifting, or reaching above the shoulder level. The VE stated that Slayton could perform as a cashier, parking lot attendant, interviewer, or

information clerk.

The ALJ then asked the VE to assume the same limitations with

the addition that Slayton was required to lie down and elevate her left

arm several times a day for up to an hour at a time. The VE stated

that under that assumption, Slayton could not perform any type of

substantial gainful activity. The VE also stated that under the original

hypothesis, Slayton would not be precluded from performing those

jobs even with mild pain that did not interfere with her ability to concentrate. Moderate or severe pain resulting in loss of concentration

and problems with attendance would not make her eligible for any of

the jobs identified.

The ALJ applied the sequential five step analysis found at 20

C.F.R. § 404.1520 (1998). Under this process, the ALJ concluded that

Slayton: (1) was not currently engaged in substantial gainful activity;

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(2) had a severe impairment; (3) did not have an impairment that met

or equaled medical criteria warranting a finding of disability without

considering vocational factors; (4) was prevented from performing

her past relevant work; and (5) could perform light work with some

limitations.

With regard to step five, the ALJ concluded that Slayton had the

residual functional capacity to perform work at the light level of exertion in which Slayton could use her left upper extremity only to assist

the right arm. The ALJ found that Slayton was precluded from work

that required more than limited use of her left arm or required repetitive grasping, lifting, or reaching above should level.

The ALJ reviewed all the medical evidence and, with the exception

of Truesdale's opinion regarding disability, did not explicitly reject

any of it. The ALJ noted that Gould and Bowman indicated that Slayton was precluded from work that used the left arm and work that

required more than very limited use of the left arm. He noted specifically that Gould opined that Slayton could perform only jobs that

required just the use of her right arm. He also noted that Truesdale

found chronic swelling that could only be relieved by elevation and

Advil. The ALJ considered Truesdale's opinion that Slayton was disabled and found the opinion unsupported by the record.

The ALJ concluded that Slayton's testimony was not fully credible.

He agreed that she experienced significant swelling in her left arm

and was unable to use the arm on a sustained basis. However, he

found that she could use the arm for short periods of time. He also

found Slayton's testimony regarding pain was not credible because

she did not take any prescription medications or receive ongoing

treatment.

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). 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) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197,

229 (1938)). We do not reweigh conflicting evidence, make credibil-

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ity determinations, or substitute our judgment for that of the Commissioner. See Hays, 907 F.2d at 1456. It is the duty of the ALJ, not the

courts, to make findings of fact and to resolve conflicts in the evidence. See id.

The Commissioner contends that remand is appropriate because an

unresolved conflict remains concerning whether the ALJ found that

Slayton had limited use of her left arm or no use of her left arm. We

agree. Because the ALJ did not explicitly indicate the weight given

to all of the relevant evidence, we cannot determine if the findings are

supported by substantial evidence. See Gordon v. Schweiker, 725 F.2d

231, 235 (4th Cir. 1984). Specifically, the ALJ did not indicate the

weight given to the findings of each of the treating physicians. Generally, evidence from treating physicians should be accorded controlling

weight unless it is not supported by clinical evidence and if it is

inconsistent with other substantial evidence. See 20 C.F.R.

§ 404.1527(d)(2) (1998). Thus, we find that remand to the Commissioner is appropriate.

In addition to determining the extent to which Slayton can use her

left arm, the ALJ must make a finding regarding the assertion that

Slayton needs to periodically elevate the arm. If this testimony is

credited, the ALJ must also evaluate the effect of the need for elevation on Slayton's ability to work. According to the VE, if Slayton

must lie down and elevate her arm, she is precluded from all work.

However, the evidence is unclear as to whether Slayton must always

lie down when elevating the arm. Furthermore, there is no evidence

of the effect upon her ability to work if she can elevate her arm from

a seated or standing position.

Because we find unresolved factual issues with regard to Slayton's

residual functional capacity, we do not reach Slayton's contention that

the Commissioner failed to meet his burden of proof that work exists

for Slayton in significant numbers in the regional or national economy. After the ALJ resolves the factual issues regarding Slayton's

residual functional capacity, further testimony from a VE may be necessary to determine whether there are jobs for Slayton.

Accordingly, the judgment of the district court is vacated and the

case is remanded with instructions to return it to the Commissioner

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for further proceedings in accordance with this opinion. We dispense

with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument

would not aid the decisional process.

VACATED AND REMANDED

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