Coleman v. Apfel, Commissioner , 2 F. App'x 259 ( 2001 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
ELMER J. COLEMAN, 
Plaintiff-Appellant,
v.
 No. 99-2327
KENNETH S. APFEL, COMMISSIONER OF
SOCIAL SECURITY,
Defendant-Appellee.

Appeal from the United States District Court
for the Southern District of West Virginia, at Beckley.
Charles H. Haden II, Chief District Judge.
(CA-98-712-5)
Argued: October 30, 2000
Decided: January 19, 2001
Before WIDENER, WILLIAMS, and MOTZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
ARGUED: Jason Eskwith Huber, FORMAN & CRANE, L.C.,
Charleston, West Virginia, for Appellant. Kenneth DiVito, Assistant
Regional Counsel, Office of the General Counsel, SOCIAL SECUR-
ITY ADMINISTRATION, Philadelphia, Pennsylvania, for Appellee.
ON BRIEF: Michael R. Crane, FORMAN & CRANE, L.C., Charles-
ton, West Virginia, for Appellant. James A. Winn, Regional Chief
Counsel, Office of the General Counsel, SOCIAL SECURITY
2 COLEMAN v. APFEL
ADMINISTRATION, Philadelphia, Pennsylvania; Rebecca A. Betts,
United States Attorney, Kelly R. Curry, Assistant United States Attor-
ney, Charleston, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Elmer J. Coleman appeals the district court’s order affirming the
Commissioner’s denial of disability insurance benefits and supple-
mentary security income. See Coleman v. Apfel, No. CA-98-712-5
(S.D.W. Va. Sept. 3, 1999). We have reviewed the record and the dis-
trict court’s order accepting the report and recommendation of the
magistrate judge and find no reversible error. We conclude that the
Commissioner’s decision is supported by substantial evidence and
that the hypothetical question posed by the administrative law judge
(ALJ) was not in error.1 See 42 U.S.C. § 405(g), 1383(c)(3); Richard-
son v. Perales, 402 U.S. 389, 401 (1971); Walker v. Bowen, 889 F.2d
47, 50 (4th Cir. 1989) (stating that the vocational expert’s testimony
1
A question in the case is whether the ALJ properly credited the
restriction of Coleman’s treating pulmonary physician, Dr. Juan M.
D’Brot, of lifting up to 10 pounds occasionally and never carrying over
5 pounds (sedentary work) in the hypothetical question posed to the
vocational expert. See 20 C.F.R. § 404.1567 (defining levels of work).
Review of the record indicates that there was conflicting evidence. The
State Agency medical consultant recommended that Coleman could
occasionally lift 50 pounds and frequently lift 25 pounds (medium work).
Because the question posed asked whether Coleman could lift no more
than 20 pounds and frequently lift or carry 10 pounds (light work), the
ALJ must be taken to have resolved the conflicting recommendations.
See Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990) (holding that
ALJ makes findings of fact and resolves conflicts in the evidence). Such
resolution was not erroneous.
COLEMAN v. APFEL 3
"must be in response to proper hypothetical questions which fairly set
out all of the claimant’s impairments").
The judgment of the district court is accordingly
AFFIRMED.