Bishop v. Barnhart , 78 F. App'x 265 ( 2003 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
MARK N. BISHOP, 
Plaintiff-Appellant,
v.
 No. 03-1657
JO ANNE BARNHART, Commissioner
of Social Security,
Defendant-Appellee.

Appeal from the United States District Court
for the Western District of Virginia, at Charlottesville.
James H. Michael, Jr., Senior District Judge.
(CA-01-87)
Submitted: September 29, 2003
Decided: October 20, 2003
Before WILKINSON, LUTTIG, and MOTZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
Mark N. Bishop, Appellant Pro Se. Michelle Dawn Scotese, SOCIAL
SECURITY ADMINISTRATION, Philadelphia, Pennsylvania; Julie
C. Dudley, Assistant United States Attorney, Roanoke, Virginia, for
Appellee.
2 BISHOP v. BARNHART
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Mark N. Bishop appeals the district court’s order accepting the
magistrate judge’s recommendation to affirm the Commissioner’s
denial of social security disability and supplemental security income
benefits. We affirm.
Bishop makes the following arguments on appeal: (1) the adminis-
trative law judge (ALJ) failed to consider all relevant evidence; (2)
the ALJ erred in his weighing of the medical evidence; (3) the ALJ
erred in his credibility determination; and (4) the ALJ violated Bish-
op’s Fourteenth Amendment right to equal protection.
We must uphold the district court’s disability determination if it is
supported by substantial evidence. See 42 U.S.C. § 405(g) (2000);
Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990). Contrary to
Bishop’s argument, the ALJ’s opinion and the hearing transcript
reveal that the ALJ considered all relevant evidence of record with
regard to Bishop’s physical and mental impairments. In fact, the
ALJ’s opinion reveals a thorough examination of both physical and
mental impairments, as well as their combined effect on Bishop’s
ability to work. Likewise, the ALJ’s hypotheticals to the vocational
expert incorporated both physical and mental limitations that are sup-
ported by the record.
Bishop also raises the following arguments with regard to his con-
tention that the ALJ did not consider all relevant medical evidence,
all of which are without merit: (1) counsel failed to explain a ten-
month lack of medical treatment; (2) counsel incorrectly informed the
ALJ that he had advised Bishop of the hearing procedures and his
rights; (3) counsel referenced an incorrect date with regard to one of
Bishop’s medical records; (4) counsel should not have asked Bishop
whether he wished to make the ALJ aware of anything that was not
BISHOP v. BARNHART 3
revealed through the testimony; and (5) the ALJ erred by refusing to
order a consultative psychological evaluation.
Contrary to Bishop’s contention, counsel did not err by failing to
explain a ten-month lapse in medical treatment. In fact, Bishop him-
self was afforded the opportunity at the hearing to explain such lapse.
His only explanation, however, was that he had to be with his children
following the death of his ex-wife. Next, counsel did not err by advis-
ing the ALJ that Bishop had been informed of the hearing procedures
and his rights. Bishop did not object to his counsel’s statement to the
ALJ. Furthermore, even assuming that counsel had not so advised
Bishop, the ALJ informed Bishop of his right to ask questions at any
time necessary during the hearing. Bishop never asked counsel or the
ALJ for clarification at any point during the proceedings.
Bishop’s argument that counsel erred by referencing an incorrect
date with regard to one of his medical records likewise fails. Even if
such a mistake occurred, the medical record at issue, which reflected
the correct date, became part of the administrative record that the ALJ
reviewed in reaching his finding of non-disability. Thus, any such
error was harmless. Additionally, we find Bishop’s argument that he
should not have been asked to provide the ALJ with information not
revealed through the testimony to be meritless. In particular, Bishop
contends that, given his mental impairments, he was unable to intelli-
gently respond to such a question. The record reveals that Bishop’s
primary mental impairments include difficulty maintaining attention
and concentration for extended periods and difficulty following
detailed or complex instructions. However, the question posed by
counsel calls for neither of these abilities. Thus, the argument fails.
Finally, Bishop’s argument that the ALJ erred by refusing to order
a consultative psychological evaluation lacks merit. First, the regula-
tions state that the ALJ has discretion in deciding whether to order a
consultative examination. See 20 C.F.R. §§ 404.1519a, 416.919a
(2002). The regulations further provide that a consultative examina-
tion is required when the evidence as a whole is insufficient to sup-
port a decision. See id. That simply is not the case here. The ALJ had
before him the opinions of Bishop’s treating physician, a licensed
clinical psychologist, state agency psychologists, and notes from
Region Ten Community Services Board ("Region Ten"). Moreover,
4 BISHOP v. BARNHART
the ALJ explained that his refusal to order a consultative evaluation
was based partially on Bishop’s ability to obtain an evaluation on his
own from Region Ten, which he did. Thus, Bishop’s argument is
baseless.
Next, Bishop contends that the ALJ improperly weighed the medi-
cal evidence by granting controlling weight to the opinion of his treat-
ing physician ("Pugh") over that of a psychologist ("May") with
regard to his mental impairment. The regulations provide that a treat-
ing physician’s opinion should be granted controlling weight if it is
consistent with other substantial evidence of record. See 20 C.F.R.
§§ 404.1527(d), 416.927(d) (2002). We find that Pugh’s opinion is
well-supported and is consistent with substantial evidence of record.
All of the medical sources, including Pugh, found that Bishop’s abil-
ity to maintain attention and concentration, as well as his ability to
follow detailed or complex instructions, were diminished. In no other
areas was Bishop deemed significantly limited. Both Pugh and May
opined that Bishop would benefit from treatment for his depression.
However, no medical source placed any other restrictions on Bishop.
Thus, we find that the ALJ did not err by granting controlling weight
to Pugh’s opinion regarding Bishop’s mental impairment.
Bishop next argues that the ALJ made an improper credibility
determination. We disagree. Bishop alleges that the ALJ improperly
discredited him based on his failure to testify regarding a job he
briefly held as a vacuum salesman, especially given his mental
impairment, as evidenced by psychological evaluations from Region
Ten. Bishop contends that if the ALJ had reviewed these evaluations,
the outcome would have been different. We disagree for two reasons.
First, we cannot review any evidence not contained in the record
as reviewed by the ALJ in determining whether substantial evidence
supports the ALJ’s findings. See Huckabee v. Richardson, 468 F.2d
1380, 1381 (4th Cir. 1972) (holding that reviewing courts are
restricted to administrative record in determining whether Commis-
sioner’s decision is supported by substantial evidence). Thus, the first
inquiry is whether the Appeals Council properly denied Bishop’s
request for review, which included the records from Region Ten he
relies on in making this argument. For the following reasons, we find
BISHOP v. BARNHART 5
that the Appeals Council did not err in denying Bishop’s request for
review.
The Appeals Council must consider evidence submitted with a
request for review if the evidence is new, material, and relates to the
period on or before the date of the ALJ’s decision. See Wilkins v. Sec-
retary of Dep’t of Health & Human Servs., 953 F.2d 93, 96 (4th Cir.
1991). We find that the evidence is not new because Bishop could
have submitted it to the ALJ for consideration. The ALJ’s decision
was issued on December 3, 1999, but the letter from Region Ten indi-
cates that Bishop began treatment on October 28, 1999, more than a
month prior to the decision. Bishop provides no reason to show cause
why he failed to submit such evidence to the ALJ. Moreover, the
additional information is not material because it would not have
changed the ALJ’s decision. The letter from Region Ten merely states
that Bishop was receiving treatment for major depression and panic
attacks. It does not contain any limitations placed on him as a result
of his depression, nor does it contain any sort of prognosis. Bishop
also attached additional medical records from Region Ten to his infor-
mal brief. However, for the same reasons, we cannot consider this
information in determining whether substantial evidence supports the
ALJ’s findings.
Second, contrary to Bishop’s contention, we find that the ALJ did
not discredit him based on his failure to testify regarding his work
attempt as a vacuum salesman. Instead, the ALJ merely used this
work attempt to demonstrate Bishop’s belief that he was able to work.
Moreover, in addition to this work attempt, the ALJ also found that
the medical evidence of record did not support Bishop’s subjective
allegations regarding the severity of his impairment. The ALJ con-
cluded that, at most, Bishop suffered from muscle spasms, a conclu-
sion supported by the medical evidence of record.
Lastly, we find that the ALJ did not violate Bishop’s Fourteenth
Amendment right to equal protection. In a supplemental brief, Bishop
argues that the ALJ refused to order a consultative psychological
evaluation based on his status as an African-American. First, Bishop
raises this issue for the first time in this Court. See Muth v. United
States, 1 F.3d 246, 250 (4th Cir. 1993) (holding that issues raised for
the first time on appeal are waived absent exceptional circumstances).
6 BISHOP v. BARNHART
Because he fails to show the requisite exceptional circumstances for
appellate review, this issue has been waived. In any event, we find
that such an argument lacks merit. Bishop bases his argument on the
ALJ’s response to the request for the consultative evaluation. In par-
ticular, the ALJ stated as follows: "All right. Now, I’m going to deny
the request for another psychological examination. We, we had one
in ‘98 and we can’t keep sending these folks — he, he can go to
Chapter 10 or — and he goes to see his family doctor." Bishop con-
tends that the ALJ’s use of the term "these folks" refers to African-
Americans, thereby exhibiting discrimination as the basis for the
refusal. However, this is nothing more than conjecture and specula-
tion by Bishop. As previously discussed, the ALJ has discretion to
order a consultative examination and, for the reasons discussed above,
that discretion was not abused.
Accordingly, we affirm the district court’s order denying benefits.
We dispense with oral argument because the facts and legal conten-
tions are adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED