UNPUBLISHED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.

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Affirmed by unpublished per curiam opinion.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 SECURITY 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.

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Unpublished opinions are not binding precedent in this circuit.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:

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 discounted 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 evidence supports the ALJ's decision, we affirm.

I.

Justus alleges a disability stemming from an October 1989 automobile 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

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1 During the administrative process, Justus presented evidence of mental impairment.

2 Justus previously worked as a laborer, coal miner, sawyer, and

machine operator.

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he had the residual functional capacity to perform light work. Therefore, 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 Commissioner's decision. On appeal, we held that the ALJ may have improperly 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 proceedings.

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 disability insurance and SSI benefits. This decision became final in September 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 psychiatrist and Justus's treating physician, diagnosed Justus with post-

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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, performance, and personal-social adjustments. After July 1991, Dr. Eden

did not evaluate Justus again until December 1994, when he completed 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 consistent 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.

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Based on his consideration of their opinions, the ALJ determined

that Justus failed to satisfy the Social Security Act's standard for disability. 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 evidence is "`more than a mere scintilla of evidence but may be somewhat less than a preponderance.'"6 We do not weigh the evidence

anew or substitute our judgment for that of the Commissioner, provided 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

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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)).

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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 supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other

substantial evidence in [the] case record, we will give it controlling 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 opinion 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" emotional problems and Dr. Savage found no evidence of affective disorder. Further, Dr. Eden opined that Justus's mental state was such that

he could not function outside of an institutional environment. However, 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

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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.

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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 inconsistent 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 contentions are adequately presented before the court and argument would

not aid in decisional process.

AFFIRMED

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

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