Kearse v. Massanari

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
IRA B. KEARSE, 
Plaintiff-Appellant,
v.
 No. 03-1009
LARRY G. MASSANARI, Acting
Commissioner of Social Security,
Defendant-Appellee.

Appeal from the United States District Court
for the District of South Carolina, at Columbia.
Patrick Michael Duffy, District Judge.
(CA-01-2521-3-23)
Submitted: June 17, 2003
Decided: August 26, 2003
Before WIDENER and LUTTIG, Circuit Judges,
and HAMILTON, Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
COUNSEL
Ronald A. Hightower, HIGHTOWER LAW FIRM, Lexington, South
Carolina, for Appellant. Robert D. McCallum, Jr., Assistant Attorney
General, J. Strom Thurmond, Jr., United States Attorney, John B.
Grimball, Assistant United States Attorney, Yvette G. Keesee,
Regional Chief Counsel, Region VIII, Bonnie E. Sims, Assistant
Regional Counsel, Office of the General Counsel, SOCIAL SECUR-
ITY ADMINISTRATION, Denver, Colorado, for Appellee.
2 KEARSE v. MASSANARI
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Ira B. Kearse appeals the district court’s order rejecting the magis-
trate judge’s recommendation to reverse the Commissioner’s decision
and remand, instead affirming the Commissioner’s denial of social
security disability and supplemental security income benefits. We
affirm.
Kearse makes the following arguments: (1) the ALJ erred in his
weighing of the medical evidence; (2) the ALJ erred in his credibility
determination; and (3) the ALJ presented an inaccurate and/or incom-
plete hypothetical to the vocational expert.
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
Kearse’s argument, the ALJ properly discredited the disability deter-
mination of Carey A. Washington, Ph.D. The medical source opinion
regulations indicate that the more consistent an opinion is with the
record as a whole, the more weight the Commissioner will give it. See
20 C.F.R. §§ 404.1527(d), 416.927(d) (2000). The record reveals that
the other medical sources opined that, although Kearse experienced
various limitations, he still was able to perform various functions,
including, inter alia, understanding, remembering, and carrying out
simple instructions. Moreover, Kearse’s activities of daily living con-
tradict Washington’s disability determination. In particular, Kearse
testified that he was able to cut wood, mow grass, and occasionally
shop. Likewise, Franklin J. Klohn, Jr., Ph.D., a state agency psycholo-
gist, found that Kearse could take care of personal tasks such as mak-
ing a bed, sweeping, mopping, mixing, cooking, straightening his
room, and cleaning house. Thus, we find that the ALJ did not err by
discrediting Washington’s disability determination.
KEARSE v. MASSANARI 3
Next, Kearse argues that the ALJ made an improper credibility
determination regarding his allegations of pain. Again, we find that
this argument fails. In evaluating a claim of pain, the ALJ should
determine whether the claimant has produced evidence of a condition
that could be expected to produce the pain alleged. See Craig v.
Chater, 76 F.3d 585, 594-96 (4th Cir. 1996). Once medical evidence
is produced supporting the existence of a condition that could reason-
ably produce pain, the Commissioner must assess the effect of pain
on the claimant’s residual functional capacity. See Foster v. Heckler,
780 F.2d 1125, 1129 (4th Cir. 1986). Evidence of a claimant’s activi-
ties as affected by the pain is relevant to the severity of the impair-
ment. See Craig, 76 F.3d at 595. An ALJ’s assessment of a claimant’s
credibility regarding the severity of pain is entitled to great weight
when it is supported by the record. See Shively v. Heckler, 739 F.2d
987, 989-90 (4th Cir. 1984).
In reaching his credibility determination, The ALJ found that
although Kearse suffered from impairments that could cause some of
the alleged symptoms, the objective medical evidence did not support
the alleged severity. An extensive analysis of the objective medical
evidence revealed that Kearse did not begin to complain of headaches
until after filing his disability applications. Furthermore, there is no
objective evidence in the record to support such complaints. More-
over, although Kearse testified that he had to be hospitalized approxi-
mately twice a year for such headaches, there is no such supporting
documentation contained in the record. Kearse noted several times
that he either took no prescription medication, or only samples that
he received from the hospital. Instead, the record reveals that he took
only Tylenol and Motrin for pain. See Shively, 739 F.2d at 989-90(upholding the ALJ’s finding that claimant’s pain was not as severe
as he alleged based partly on the prescribed medications of record).
Additionally, several inconsistent statements by Kearse are con-
tained in the record, including statements regarding his education,
hospitalizations due to severe headaches, and the reason he stopped
working in 1989. Moreover, Kearse’s activities of daily living, as pre-
viously described, do not support his subjective allegations. Thus, we
find that the ALJ properly evaluated Kearse’s credibility.
Lastly, Kearse argues that the ALJ erred by posing an incomplete
and/or inaccurate hypothetical to the vocational expert. We disagree.
4 KEARSE v. MASSANARI
This court held in Walker v. Bowen, 889 F.2d 47, 50 (4th Cir. 1989),
that in order for a vocational expert’s opinion to be relevant or help-
ful, it must be based upon a consideration of all the evidence of
record, and it must be in response to proper hypothetical questions
that fairly set out all the claimant’s impairments. The ALJ’s decision
reveals that he considered all relevant evidence, including Kearse’s
testimony, the objective medical evidence of record, and the findings
of the state agency physicians and psychologists. Moreover, the
ALJ’s hypothetical encompassed all of Kearse’s impairments.
Although the record reveals that Kearse clearly suffers from defi-
ciencies of concentration as a result of a gunshot wound, substantial
evidence supports a finding that these deficiencies do not significantly
limit his ability to work. For instance, two state agency psychologists,
Martha Westrope, Ph.D., and Larry Clanton, Ph.D., agree that
although Kearse "often" suffers from deficiencies of concentration,
persistence, or pace, he, nonetheless, is not significantly limited in his
ability to perform work-related tasks. Likewise, both Westrope and
Clanton agree that Kearse retains the ability to carry out short, simple
instructions. Moreover, Klohn evaluated Kearse’s motivation, con-
centration, and ability to remain on task, finding it to be "adequate."
Finally, while Washington noted that Kearse had difficulty maintain-
ing concentration and alertness, he did not elaborate on the degree to
which these problems would limit Kearse’s ability to work. More-
over, Washington’s opinion was properly rejected by the ALJ. Thus,
we find that the ALJ’s hypothetical, which asked the vocational
expert to assume an individual "who can maintain attention and con-
centration and work at an adequate pace," is supported by substantial
evidence of record.
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