Carlin v. Chater, Commissioner

UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

MARION F. CARLIN,
Plaintiff-Appellant,

v.
No. 95-2392
SHIRLEY S. CHATER, COMMISSIONER OF
SOCIAL SECURITY,
Defendant-Appellee.

Appeal from the United States District Court
for the District of South Carolina, at Aiken.
Henry M. Herlong, Jr., District Judge.
(CA-92-1918-1-20AJ)

Argued: April 4, 1996

Decided: May 23, 1996

Before NIEMEYER, HAMILTON, and MICHAEL, Circuit Judges.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

ARGUED: Mary J. Wiesen-Kosinski, Aiken, South Carolina, for
Appellant. Sharon M. Saffron, Office of the General Counsel,
SOCIAL SECURITY ADMINISTRATION, Baltimore, Maryland,
for Appellee. ON BRIEF: J. Preston Strom, Jr., United States Attor-
ney, John B. Grimball, Assistant United States Attorney, Arthur J.
Fried, General Counsel, Randolph W. Gaines, Acting Principal Dep-
uty General Counsel, A. George Lowe, Acting Associate General
Counsel, Litigation Division, Office of the General Counsel, SOCIAL
SECURITY ADMINISTRATION, Baltimore, Maryland, for Appel-
lee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

We must decide whether substantial evidence supports the decision
of the Commissioner of Social Security that Marion F. Carlin's period
of disability began on October 1, 1989. Contending that his disability
began on September 23, 1988, Carlin assigns error to the Commis-
sioner's (1) evaluation of his subjective complaints of pain and (2)
vocational assessment. Having reviewed the record and considered
Carlin's arguments, we affirm the district court's decision upholding
the Commissioner's disability determination.

I

Carlin applied for disability insurance benefits and supplemental
security income on December 21, 1988, alleging disability since Janu-
ary 15, 1987, due to right shoulder pain and dizzy spells. His applica-
tions were denied initially and on reconsideration.

Carlin thereafter requested a hearing before an Administrative Law
Judge (ALJ). The ALJ vacated the denial of Carlin's applications and
remanded his case to the State Agency of South Carolina for a mental
assessment. The State Agency determined that Carlin was disabled
from a combination of mental and physical impairments beginning
October 1, 1989, the date that medical records first showed that Carlin
suffered from a condition that "would restrict[his] ability to concen-
trate and to understand, remember, and carry out detailed job instruc-
tions." Before that date, the State Agency explained, Carlin's physical

2
condition "would not have prevented [him] from performing other
kinds of work available within the national economy."

Dissatisfied with the October 1, 1989, onset date established by the
State Agency, Carlin requested another hearing before an ALJ and, at
the hearing, amended his alleged onset date to September 23, 1988.
After holding a hearing on the matter, the ALJ rejected Carlin's
claim. Based on an October 4, 1989, psychological evaluation show-
ing "depression and impairment of concentration to such a degree that
[Carlin] was unable to work in view of his additional physical impair-
ments," the ALJ found that Carlin was currently disabled. While not-
ing that before October 1, 1989, Carlin had a right rotator cuff tear,
restrictive lung disease, and mild depression that precluded him from
performing his past relevant heavy work as a construction worker, the
ALJ determined that those ailments did not prevent Carlin from per-
forming medium work1 not requiring lifting the right arm above
shoulder level. From his evaluation of the medical evidence, Carlin's
subjective complaints of pain, and testimony presented at the hearing
by a vocational expert who took into account Carlin's "age, educa-
tion, and work background,"2 the ALJ concluded that Carlin was not
disabled within the meaning of the Social Security Act at any time
before October 1, 1989.

After the Appeals Council denied his request for review, Carlin
brought this action under § 205(g) of the Social Security Act, 42
U.S.C. § 405(g), to obtain judicial review of the Commissioner's
"final decision." From the district court's judgment affirming the
Commissioner, Carlin noted this appeal.

II

On appeal, Carlin contends that the ALJ improperly evaluated his
subjective complaints of pain, refusing to credit Carlin's testimony on
_________________________________________________________________

1 20 C.F.R. §§ 404.1567(c) provides that "[m]edium work involves lift-
ing no more than 50 pounds at a time with frequent lifting or carrying
of objects weighing up to 25 pounds."

2 As of October 1, 1989, Carlin was 53 years old, had a seventh grade
education, and had worked in the relevant past on construction jobs as
a pipe fitter, millwright, and helper.

3
the extent of his pain. While the ALJ did consider Carlin's pain, he
concluded that it did not preclude Carlin from performing a medium
level of work activity. To the extent that Carlin alleged more dis-
abling pain, the ALJ found the evidence incredible. First, the ALJ
noted that Carlin's testimony at two hearings did not refer to any spe-
cific subjective limitations before October 1, 1989, and that Carlin did
not take any strong medication for relief of his pain before October
1, 1989. Second, the ALJ found that the medical evidence -- which
Carlin does not now dispute -- showed that despite his complaints,
Carlin had demonstrated a full range of motion of his right shoulder
with no impairment in the use of his hand or arm before October 1,
1989. Accordingly, we conclude that the ALJ properly considered
Carlin's pain and that his findings about the effect of Carlin's pain
before October 1, 1989, are supported by substantial evidence.

Carlin also contends that the ALJ conducted an improper voca-
tional assessment by failing to take into account his disabling pain.
Carlin's vocational assessment argument, therefore, is dependent
upon -- and falls with -- his contention that the ALJ erroneously
evaluated his subjective complaints of pain. At the hearing, the ALJ
asked the vocational expert whether there were any jobs in the econ-
omy that Carlin should have been able to perform before October 1,
1989, taking into account "his age, education, and work background"
and assuming "that during that period of time he retained the residual
functional capacity to perform work at the medium exertional level as
defined in the regulation provided he was not required to lift weight
of that degree above shoulder level with his right hand and arm, and
. . . that during that period of time he did not have a mental impair-
ment or combination of mental impairments which had imposed any
significant limitation on his ability to do work-related mental activi-
ties." The expert testified affirmatively, identifying such semi-skilled
jobs as welder and assembler and unskilled jobs as hand packager,
machine tender, and store laborer. We are satisfied that this testimony
provided substantial evidence to support the ALJ's decision that Car-
lin was not disabled within the meaning of the Social Security Act
before October 1, 1989.

Accordingly, the district court's judgment affirming the Commis-
sioner is

AFFIRMED.

4