Sayre v. Chater

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
ROBIN A. SAYRE,
Plaintiff-Appellant,
v.
No. 95-3080
SHIRLEY S. CHATER, COMMISSIONER OF
SOCIAL SECURITY,
Defendant-Appellee.
Appeal from the United States District Court
for the Northern District of West Virginia, at Clarksburg.
David L. Core, Magistrate Judge.
(CA-94-44-CV-1)
Submitted: March 31, 1997
Decided: May 8, 1997
Before WILKINS, HAMILTON, and MOTZ, Circuit Judges.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
Mary V. Rehmann, Morgantown, West Virginia, for Appellant. Char-
lotte Hardnett, Chief Counsel, Region III, Robert S. Drum, Assistant
Regional Counsel, Office of General Counsel, DEPARTMENT OF
HEALTH AND HUMAN SERVICES, Philadelphia, Pennsylvania;
William D. Wilmoth, United States Attorney, Helen Campbell Alt-
meyer, Assistant United States Attorney, Wheeling, West Virginia,
for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Robin A. Sayre appeals the magistrate judge's order affirming the
Commissioner's determination that he was not entitled to either Sup-
plemental Security Income or Disability Insurance Benefits. In sup-
port of his appeal, Sayre attacks the administrative law judge's (ALJ)
determination on several fronts. First, Sayre claims the ALJ failed to
apply the proper standards in evaluating Sayre's complaints of pain
stemming from the on-the-job back injury which has kept him out of
work since 1990 and erred in determining that Sayre was not entirely
credible concerning the severity of his pain. Sayre also suggests that
the ALJ misapplied the Listing of Impairments regarding affective
disorders. 20 C.F.R. § 404 subpart P, app.1, 12.04 (1995). Finally,
Sayre claims not only that the ALJ's hypothetical to the vocational
expert was insufficient, but also that the expert's testimony was in
error and the ALJ should not have credited the conclusions the expert
reached. Because we conclude that Sayre's assignments of error are
either meritless or waived, we affirm the magistrate judge's order
affirming the Commissioner's determination.
Initially, Sayre claims that the ALJ failed to apply the "proper stan-
dards" in evaluating his subjective complaints of pain. Although
Sayre fails to develop this argument fully, we are satisfied that the
ALJ properly evaluated Sayre's condition in light of S.S.R. 90-1p
(Cum. Ed. 1990-91) (current version at S.S.R. 95-5p (Cum. Ed.
1995)). Using Sayre's own testimony, the ALJ adequately considered
each of the criteria Sayre quotes in his brief. In cases where the claim-
ant alleges a nonexertional impairment, including pain, the claimant
must present medical evidence of a condition that could reasonably
be expected to produce pain. Objective evidence of pain or its magni-
tude is not required. Foster v. Heckler, 780 F.2d 1125, 1129 (4th Cir.
1986). If an ALJ finds complaints of pain or the magnitude of pain
to be incredible, the ALJ must give specific reasons for the finding.
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Hammond v. Heckler, 765 F.2d 424, 426 (4th Cir. 1985). Here, Sayre
presented considerable medical evidence regarding his back injury, a
condition that could reasonably be considered to produce some mea-
sure of pain. This is not in dispute.
To discount Sayre's reports of pain, the ALJ relied on the consider-
able uncertainty in the medical records regarding the source of
Sayre's continued pain and instances where treating physicians ques-
tioned Sayre's credibility. The ALJ also noted that Sayre's own
description of his daily activities to some doctors varied considerably
from his testimony at the hearing. We afford the ALJ's finding
regarding Sayre's credibility substantial deference and find no reason
to disturb them on this record. See Barker v. Shalala, 40 F.3d 789,
795 (6th Cir. 1994). There are sufficiently specific reasons for the
ALJ's finding that Sayre's reports of pain were properly characterized
as slight impairments. Sayre's assignment of error on this front is
meritless.
Similarly, Sayre suggests that the ALJ failed to"properly assess"
Sayre's mental capacity and then asks this court to reweigh the evi-
dence. Presumably, Sayre is dissatisfied with the ALJ's application of
the Listing of Impairments regarding affective disorders. 20 C.F.R.
§ 404, subpart P, app. 1, 12.04 (1995); see 20 C.F.R. § 416.969(1995). As with the conclusion regarding Sayre's physical limitations,
ALJ's decision regarding Sayre's mental capacity was amply sup-
ported by substantial evidence.
After observing that the evidence showed that Sayre had been diag-
nosed with depression secondary to his physical problem, the ALJ
correctly concluded that Sayre met the "A" requirement of Section
12.04. The ALJ noted, however, that based on the evidence of record,
Sayre at best satisfied one of the criteria. In order to qualify as dis-
abled, Section 12.04 mandates that two criteria be met. The ALJ's
exhaustive review of Sayre's reported activities provides substantial
evidence for his conclusion that Sayre did not satisfy the Listing.
Sayre next contends that the ALJ's hypothetical to the Vocational
Expert failed to describe Sayre's condition with sufficient specificity.
Sayre has waived this issue because the record before us reflects that
he did not present this claim to the magistrate judge in any form. See
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United States v. One 1971 Mercedes Benz, 542 F.2d 912, 915 (4th
Cir. 1976). Similarly, Sayre has waived this court's review of his
broadside attack on the vocational expert's testimony. As a general
matter, "[i]t is inappropriate for courts reviewing appeals of agency
decisions to consider arguments not raised before the administrative
agency involved." Pleasant Valley Hosp., Inc. v. Shalala, 32 F.3d 67,
69 (4th Cir. 1994). There is nothing in the record to suggest that Sayre
provided either the ALJ or the Appeals Council with the opportunity
to consider his challenges to the Vocational Expert's testimony. Con-
sequently, this assignment of error is also waived.
Because Sayre has waived his last two assignments of error, and
because the ALJ properly evaluated the evidence and based his deci-
sion on substantial evidence, the magistrate judge did not err in
declining to disturb the Commissioner's determination. We therefore
affirm the magistrate judge's order. 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
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