UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-1924
DONALD R. BURKE, II,
Plaintiff - Appellant,
versus
JO ANNE B. BARNHART, Commissioner of Social
Security,
Defendant - Appellee.
Appeal from the United States District Court for the Western
District of Virginia, at Big Stone Gap. James P. Jones, Chief
District Judge. (CA-04-5-2)
Submitted: April 3, 2006 Decided: April 12, 2006
Before WILKINSON, NIEMEYER, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Donald R. Burke, II, Appellant Pro Se. Reesha Kang Trznadel,
SOCIAL SECURITY ADMINISTRATION, Philadelphia, Pennsylvania; Julie
C. Dudley, Assistant United States Attorney, Roanoke, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Donald R. Burke, II, appeals the district court’s order
affirming the Commissioner’s denial of disability insurance
benefits. We must uphold the decision to deny benefits if the
decision is supported by substantial evidence and the correct law
was applied. See 42 U.S.C. § 405(g) (2000); Craig v. Chater, 76
F.3d 585, 589 (4th Cir. 1996).
In challenging the sufficiency of the evidence on appeal,
Burke claims that the Administrative Law Judge failed to fully
consider the testimony of the vocational expert. Because this
claim was not raised in the district court, and because no
extraordinary circumstances exist, Burke may not raise it on
appeal. See Muth v. United States, 1 F.3d 246, 250 (4th Cir. 1993)
(holding that issues raised for the first time on appeal are
generally waived absent exceptional circumstances).
Burke also argues that the Administrative Law Judge
failed to give controlling weight to the testimony of his treating
physician, Dr. Russell D. McKnight. However, as we stated in
Hunter v. Sullivan, “[a]lthough the treating physician rule
generally requires a court to accord greater weight to the
testimony of the treating physician, the rule does not require that
the testimony be given controlling weight.” 993 F.2d 31, 35 (4th
Cir. 1992). Rather, “if a physician’s opinion is not supported by
clinical evidence or if it is inconsistent with other substantial
- 2 -
evidence, it should be accorded significantly less weight.” Craig,
76 F.3d at 590. Here, Dr. McKnight’s assessment of Burke’s
psychological condition as sufficient for a finding of disability
conflicts with the findings of other psychologists with whom Burke
consulted. In such a case, “[wh]ere conflicting evidence allows
reasonable minds to differ as to whether a claimant is disabled,
the responsibility for that decision falls on the [Administrative
Law Judge].” Johnson v. Barnhart, 434 F.3d 650, 653 (4th Cir.
2005) (quoting Craig, 76 F.3d at 589). Accordingly, we conclude
that the record contains substantial evidence that Burke is not
disabled.
We affirm the judgment of the district court. 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
- 3 -