UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

ANITA BARRIER,

Plaintiff-Appellant,

v.

No. 96-2748

DONNA E. SHALALA, SECRETARY OF

HEALTH AND HUMAN SERVICES,

Defendant-Appellee.

Appeal from the United States District Court

for the Western District of North Carolina, at Statesville.

Richard L. Voorhees, Chief District Judge.

(CA-94-53-5-V)

Submitted: January 13, 1998

Decided: January 27, 1998

Before HAMILTON, WILLIAMS, and MICHAEL, Circuit Judges.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

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COUNSEL

M. Alan LeCroy, DANIEL & LECROY, P.A., Morganton, North

Carolina, for Appellant. Mark T. Calloway, United States Attorney,

James M. Sullivan, Assistant United States Attorney, Charlotte, North

Carolina, for Appellee.

_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

Anita Barrier appeals from the district court order granting the Secretary's motion for summary judgment and dismissing her action, and

affirming the Secretary's decision denying social security benefits.

On appeal, Barrier alleges that the district court failed to give proper

weight to her treating physicians' opinions and that her asthma attacks

equaled the severity contemplated in the medical listing. Finding no

error, we affirm.

Barrier is a forty-five year old woman with a two-year associate

degree in early childhood education. At the time of the alleged disability, she was employed as a weaver with Rospatch Labels. She

filed an application for disability insurance benefits on January 17,

1992, alleging that she became disabled on July 18, 1991. The alleged

cause of her disability is a severe asthmatic condition. The administrative law judge (ALJ) found that Barrier suffered from severe

asthma, but that her impairment did not meet or equal the listing level

for presumptive disability; that she was capable of performing light

work with the restriction that she not be exposed to irritants which

could exacerbate her asthma; that she was capable of returning to her

previous occupation as a teacher's aide, and therefore was not disabled within the meaning of the law to receive disability benefits.

Barrier requested review of the ALJ's decision by the Appeals Council. The Appeals Council denied Barrier's request for review. The

ALJ's decision then became the Secretary's final decision.

Barrier filed a complaint in the district court challenging the final

decision of the Secretary. The parties filed cross motions for summary

judgment. The district court granted the Secretary's motion and

affirmed the decision of the Secretary. This appeal followed.

We review the Secretary's final decision to determine whether it is

supported by substantial evidence and whether the correct law was

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applied. See 42 U.S.C.A. § 405(g) (West Supp. 1997); 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 re-weigh conflicting evidence, make credibility determinations, or substitute our judgment for that of the Secretary. See Hays, 907 F.2d at 1456.

Barrier first argues that her asthmatic condition meets the listing

for asthma in the Listing of Impairments, 20 C.F.R. Part 404, Subpt.

P, App. 1, § 3.03B (1993). Thus, Barrier contends that she should

have been found disabled at step three of the sequential analysis. The

evidence is to the contrary. To meet the requisite level of severity

under § 3.03B, the claimant must experience:"[e]pisodes of severe

attacks (See 3.00C), in spite of prescribed treatment, occurring at least

once every 2 months or on an average of at least six times a year, and

prolonged expiration with wheezing or rhonchi on physical examination between attacks."

Under § 3.00C, when a respiratory impairment is episodic in

nature, as may occur in complications of asthma, the frequency and

intensity of severe episodes, despite prescribed treatment, are important criteria for determining the level of impairment. Documentation

for episodic asthma should include the hospital or emergency room

records indicating the dates of treatment, clinical findings on presentation, what treatment was given and for what period of time, results

of spirometry and arterial blood gas studies (ABGS), and clinical

results. Severe attacks of episodic asthma, as those listed in section

3.03B, are defined as prolonged episodes lasting at least several

hours, and requiring intensive treatment such as intravenous drug

administration or prolonged inhalation therapy in a hospital or emergency room. See 20 C.F.R. Part 404, Subpt. P, App. 1, § 3.00C

(1993).

Barrier argues that the district court failed to give proper weight to

the opinions of her treating physicians and that the record did not contain persuasive contradictory evidence to discount the treating physicians' opinions. The ALJ properly accorded great weight to Barrier's

treating physicians, Drs. Schneider and Inglefield, regarding their

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assessment of Barrier's physical limitations. See Coffman v. Bowen,

829 F.2d 514, 517 (4th Cir. 1987). Although Drs. Schneider and

Inglefield treated Barrier, the ALJ was entitled to disregard their opinions in the face of persuasive contradictory evidence. See Smith v.

Schweiker, 795 F.2d 343, 345-46 (4th Cir. 1986).

Dr. Schneider had the most extensive role in Barrier's treatment.

The medical records generally showed that Barrier experienced recurrent episodes of asthmatic bronchitis which was occasionally exacerbated by immunotherapy. Barrier showed general improvement and

responded well to medications. Dr. Schneider noted an onset date of

July 18, 1991. Several doctors examined Barrier in the next few years

and the record reflects that the asthmatic episodes were related to

environmental factors and were reversible. The doctors noted that

Barrier responded well to medications and that she could withdraw

from using them.

In November 1991, Dr. Schneider referred Barrier to Dr. Inglefield

for allergy injections. Dr. Schneider continued to follow Barrier and

noted that her lungs were fairly clear. Also during that time Dr. Harris, a pulmonary specialist, examined Barrier at the request of Barrier's employer. Dr. Harris found that Barrier's total lung capacity was

normal, and after bronchodilator therapy, there was only mild abnormality. Dr. Harris concluded that there was no permanent impairment.

In March 1992, Dr. Schneider noted that Barrier was doing "fairly

well" and that her lungs were "fairly clear," although Barrier suffered

from a sinus infection.

In April 1992, Dr. Inglefield examined Barrier for immunotherapy

treatment and found her chest to be clear and pulmonary functions

normal. Dr. Inglefield began immunotherapy treatment. In June 1992,

Dr. Schneider again examined Barrier for asthmatic bronchitis which

was exacerbated by an allergy shot administered the day before by Dr.

Inglefield. Dr. Schneider gave Barrier an injection of Depo-Medrol,

a steroid used primarily for its anti-inflammatory effect, for her reaction to the allergy shot. In June 1992, Barrier again experienced an

asthmatic episode with wheezing, caused by an anaphylactic reaction

to an allergy shot. After the use of a bronchodilator used for relief

from acute attacks of bronchospasm, Barrier's wheezing improved.

Approximately one week later, Dr. Schneider noted that Barrier still

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developed sudden onsets of shortness of breath which were relieved

by expectorating mucus. Dr. Schneider also noted, however, that Barrier's lungs were clear with the exception of a few scattered wheezes

and rhonchi.

On December 9, 1992, the ALJ held a hearing with both parties

represented. The above medical records were entered into evidence.

The only doctor to testify at the hearing was Dr. Fitz, a medical examiner called by the Secretary. Dr. Fitz testified that he had reviewed the

exhibit file, listened to Barrier's testimony at the hearing, and was

familiar with the disability regulations.* Dr. Fitz opined that Barrier's

symptoms and conditions did not meet the requisite level of severity

under the asthma listing.

During the hearing, Dr. Fitz explained to Barrier's attorney that

§ 3.03B incorporates § 3.00C into it and therefore to be found disabled at this step in the sequential process, the asthma attacks must

meet the level of severity specified in § 3.00C. Barrier's attorney was

not cognizant of the inter-relation between the two sections, and the

ALJ allowed the record to remain open at the conclusion of the hearing so this issue could be addressed.

Drs. Schneider and Inglefield wrote letters after the hearing to be

submitted as evidence for Barrier's application. Dr. Schneider opined

that Barrier was "severely disabled due to her asthma." In support of

her finding, Dr. Schneider stated that she administered injectable steroids at her office on several occasions. She also stated that the treatments administered in her office and Barrier's use of a hand-held

inhaler at home constitute similar treatment as that administered in an

emergency room, and therefore Barrier should be found disabled

according to the listing. She also noted that Barrier's attacks may

have warranted an emergency room visit, but that Barrier chose to

manage these episodes at home. The medical records entered into evidence reflect, however, that Dr. Schneider only administered inject-

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*In its memorandum and order, the district court incorrectly stated that

Dr. Fitz examined Barrier. Although Dr. Fitz did not conduct a physical

examination, his statements are based upon the medical records submitted by Barrier as exhibits.

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able steroids once, during an episode precipitated by an anaphylactic

reaction to an allergy shot.

Dr. Inglefield's letter, also written after the hearing, criticized the

Social Security disability regulations but stated that Barrier's asthmatic episodes met the requisite level of severity. Dr. Inglefield

acknowledged, however, that he had never seen Barrier during a fullblown asthma attack. He also noted that Barrier's use of an in-home

nebulizer constituted the same type of treatment that she would

receive in an emergency room setting.

The medical records reflect that Barrier did not receive intravenous

drug administration or inhalation therapy in an emergency room or

hospital setting. While Dr. Schneider administered one intravenous

steroid treatment, her records do not show that"on several occasions

[Barrier] had been given injectable steroid in the office," as her letter

assessing disability states. Dr. Schneider's assessment in the letter

generally is not consistent with her treatment notes.

Dr. Fitz testified that Barrier's self-administered treatment would

not be sufficient to treat an attack of the severity contemplated by the

Act to qualify as disabling. In Dr. Fitz's opinion, the home use of a

nebulizer does not constitute the kind of intensive treatment required

by the Act. A medical examiner's testimony may provide substantial

support for an ALJ's finding that a claimant is not impaired. See

Atterberry v. Secretary of HHS, 871 F.2d 567, 570 (6th Cir. 1989).

Dr. Fitz's testimony may therefore constitute substantial evidence

supporting the ALJ's ruling.

Barrier relies upon Martinez Nater v. Secretary of HHS, 933 F.2d

76, 78-79 (1st Cir. 1991), in arguing that a severe attack, as required

by § 3.03B, may not require documentation of emergency room or

hospital treatment if the claimant can demonstrate that the attacks

were equivalent in severity to an attack that required emergency room

or hospital treatment. See Martinez Nater, 933 F.2d at 78-79.

Martinez Nater is distinguishable from this case. The claimant in

Martinez Nater had two prior hospitalizations and fourteen emergency office visits to manage asthma attacks. Intravenous drug therapy was required to restore normal breathing. Barrier's case does not

demonstrate an equivalent severity, frequency, duration or treatment.

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The Secretary also relied upon the results of four other physicians

in determining that Barrier did not meet the requirements of the listing. The non-treating physicians made fact-based statements and gave

supported opinions in determining that Barrier's asthma is not of a

severely disabling nature. Dr. Schneider's office notes consistently

refer to Barrier's condition as reversible and exacerbated by her work

environment and other factors. The other physicians also noted a correlation between Barrier's work environment and her condition.

We find that the ALJ properly relied upon the medical results and

opinion of non-treating physicians. Dr. Schneider and Dr. Inglefield

made conclusory opinions that Barrier was disabled under the meaning of the law. Because their opinions are not supported by the medical evidence in the record, their opinions were properly discredited.

In these circumstances, we find that the ALJ was entitled to credit a

contradictory assessment of Barrier's physical abilities and that substantial evidence supported the ALJ's finding of no disability.

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.

AFFIRMED

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