Kirkendoll v. Apfel ( 1998 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
JAMES KIRKENDOLL,
Plaintiff-Appellant,
v.
No. 97-1147
KENNETH S. APFEL, COMMISSIONER OF
SOCIAL SECURITY,
Defendant-Appellee.
Appeal from the United States District Court
for the Southern District of West Virginia, at Charleston.
Charles H. Haden II, Chief District Judge.
(CA-96-493-2)
Submitted: April 21, 1998
Decided: August 25, 1998
Before WILKINS and NIEMEYER, Circuit Judges, and
PHILLIPS, Senior Circuit Judge.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
Rose A. Cyrus, ROBINSON & RICE, L.C., Huntington, West Vir-
ginia, for Appellant. James A. Winn, Chief Counsel, Region III,
Adam Trevor Ackerman, Assistant Regional Counsel, Office of the
General Counsel, SOCIAL SECURITY ADMINISTRATION, Phila-
delphia, Pennsylvania; Rebecca A. Betts, United States Attorney,
Carol A. Casto, Assistant United States Attorney, Charleston, West
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
James L. Kirkendoll appeals from the district court's order adopt-
ing the report and recommendation of a magistrate judge and granting
summary judgment in favor of the Commissioner in his appeal from
the ALJ's decision denying social security benefits. We affirm.
This Court reviews a decision regarding social security benefits to
determine whether it is supported by substantial evidence and whether
the correct law was applied. See 42 U.S.C.A.§ 405(g) (West Supp.
1997); Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990). Sub-
stantial 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)).
Addressing Kirkendoll's claims, we turn first to his assertion that
the ALJ did not properly consider a doctor's notation that she
observed Kirkendoll lie down for thirty minutes every two to three
hours due to pain. As the Commissioner noted, this statement was
made by a psychiatrist observing and treating Kirkendoll's mental
symptoms. Additionally, the statement is inconsistent with the evalua-
tion of several other doctors who were specifically treating and exam-
ining Kirkendoll's physical, orthopedic symptoms. Accordingly, we
conclude that this statement was properly afforded less weight. See 20
C.F.R. § 404.1527(d)(4), (5) (1996).
Kirkendoll next argues that the ALJ dismissed a finding that he had
diminished grip and grasp in his left hand. Our review discloses that
the ALJ noted this impairment in her report and also noted that the
same physician who diagnosed this mild impairment concluded that
no other problems existed, finding no impairment of reaching, han-
dling, feeling, pushing, or pulling. Because the ALJ's opinion accu-
rately reflects the doctor's report, we find no error.
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Next, Kirkendoll asserts that the ALJ did not comply with SSR 86-
82. Specifically, he argues that at step four of the benefits review pro-
cess, if the ALJ chooses to refer to the claimant's past work as it is
performed in the national economy she must analyze the specific
demands of the job and may not rely on the exertional category
denoted in the Dictionary of Occupational Titles (DOT). We disagree.
Although specific reference to individual job demands is required to
determine whether the claimant can return to his actual past job, when
the ALJ analyzes past relevant work as it is performed in the national
economy, she is entitled to rely on the exertional categories found in
the DOT. See DeLoatche v. Heckler, 715 F.2d 148, 151 (4th Cir.
1983); see also SSR 86-81.
In relation to his prior argument, Kirkendoll asserts that the ALJ
erred in failing to examine the mental requirements of his past rele-
vant work as it is performed in the national economy. We note that
although not listing the specific mental requirements, the ALJ stated
that a psychiatrist rated Kirkendoll as at least satisfactory in all psy-
chological categories. Based upon this evaluation, the ALJ concluded
that any psychological impairments Kirkendoll suffered would not
prevent him from returning to his past work. Our review of the record
and the DOT leads us to conclude that this determination is supported
by substantial evidence and we therefore find no error.
Finally, Kirkendoll takes issue with the fact that a vocational expert
was not solicited to testify in his case. He argues that he suffers from
both exertional and nonexertional impairments, and therefore asserts
that if the ALJ erred at step four and progression to step five was nec-
essary, a vocational expert would be required to determine what, if
any, jobs he could perform. The ALJ did not err at step four, however,
and accordingly this issue is without merit.
We therefore affirm the district court's order granting summary
judgment in favor of the Commission. We dispense with oral argu-
ment based on our prior order granting the Appellant's motion to sub-
mit the case on briefs.
AFFIRMED
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