                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 07-1362



WAYNE HAILEY,

                Plaintiff - Appellant,

           v.


COMMISSIONER OF SOCIAL SECURITY,

                Defendant - Appellee.



Appeal from the United States District Court for the Western
District of Virginia, at Danville.   Jackson L. Kiser, Senior
District Judge. (4:06-cv-00039-jlk)


Argued:   May 15, 2008                    Decided:   July 17, 2008


Before NIEMEYER and DUNCAN, Circuit Judges, and Claude M. HILTON,
Senior United States District Judge for the Eastern District of
Virginia, sitting by designation.


Affirmed by unpublished per curiam opinion.


ARGUED: Joel Cawthon Cunningham, Jr., Halifax, Virginia, for
Appellant.    Roxanne Andrews, SOCIAL SECURITY ADMINISTRATION,
Philadelphia, Pennsylvania, for Appellee.      ON BRIEF: Michael
McGaughran, Regional Chief Counsel, Region III, William B. Reeser,
Supervisory Attorney, Office of the General Counsel, SOCIAL
SECURITY ADMINISTRATION, Philadelphia, Pennsylvania; John L.
Brownlee, United States Attorney, Sara Bugbee Winn, Assistant
United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Roanoke, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.




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PER CURIAM:

     In 2003, Wayne E. Hailey filed for Social Security disability

benefits.     After two hearings before an administrative law judge

(ALJ), the Social Security Commission adopted a final decision

denying Hailey’s request for disability benefits.                      Hailey filed

suit in United States District Court for the Western District of

Virginia.     Both parties filed motions for summary judgment and

Judge Jackson L. Kiser referred the matter to the magistrate judge

for a report and recommendation.           The magistrate judge recommended

that Hailey’s motion be granted, holding that the Commission’s

decision    to    deny    benefits   was    not    supported      by    substantial

evidence.        The district court rejected the magistrate judge’s

recommendation      and   entered    summary      judgment   in    favor    of   the

Commissioner, affirming the Commission’s final decision. We affirm

the district court’s ruling.



                                       I.

     Hailey’s childhood was a difficult one. He witnessed the rape

and murder of his mother and was sexually abused by a foster

father.     He enlisted in the Navy in 1972, but left shortly

thereafter because he was unable to adjust to the lifestyle.                      He

spent a large portion of the years between 1981 and 2000 in prison

for armed robbery and second degree murder.             While not in prison,

Hailey worked as a tobacco farmer.                In July, 2003, Hailey quit


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working    and   shortly   thereafter     applied    for   Social    Security

disability benefits.

       In his initial application for disability benefits, Hailey

cited myriad physical ailments, such as high blood pressure,

arthritis, the inability to stay in heat, a slipped back disc, and

a “busted leg” as reasons why he was unable to work.                     After a

hearing, the ALJ determined that Hailey’s physical ailments did not

render him disabled because he was able to perform light work.

Hailey appealed this decision to the Commission’s Appeals Council,

who remanded the case for the ALJ to consider evidence of mental

impairment.

       At the time of the second hearing, Hailey was 50 years old and

had approximately a ninth grade education.           He was a part-owner of

his residence and rented out a portion of his space for storage

use.      He   lived   without   electricity   and    subsisted     on    public

assistance and food stamps.        He lived with approximately 40 cats

that he cared for by donation.

       Hailey spends much of his time at a convenience store located

about six miles from his residence. At the store, Hailey converses

with the store’s owners, who help him read his mail.                      Hailey

performs custodial duties around the store in exchange for food

from the owners.

       On remand, the ALJ considered two psychologists’ reports. Dr.

Samuel Fletcher examined Hailey on May 26, 2005, at the request of


                                      4
Hailey’s attorney.            After administering an IQ test, Dr. Fletcher

found Hailey to have a verbal IQ of 71, a performance IQ of 70, and

a full-scale IQ of 68.           Dr. Fletcher found that while Hailey would

be able to attend work regularly, he could not perform detailed or

complex        tasks    and    would    find       simple   and    repetitive    tasks

challenging.           He diagnosed Hailey with a cognitive disorder that

approached mild mental retardation and stated that Hailey suffered

from depression, alcohol and nicotine dependence, and an anti-

social personality disorder.                 He concluded that “[t]he stresses

encountered        in     competitive    work       frequently     will     result    in

confusing” Hailey.

         Dr. Karen Russell examined Hailey on January 12, 2006.                  After

administering an IQ test, Dr. Russell found Hailey to have a verbal

IQ of 85, a performance IQ of 75, and a full-scale IQ of 78.                         She

found that Hailey had an anxiety disorder, a history of alcohol

abuse, and an anti-social personality disorder.                     Ultimately, Dr.

Russell concluded that Hailey could work regularly.



                                             II.

         The   Social     Security     Act    provides      that   findings     of   the

Commissioner are conclusive if they are supported by substantial

evidence.        42 U.S.C. § 405(g); see Craig v. Chater, 76 F.3d 585,

589 (4th Cir. 1996)(“Substantial evidence is such relevant evidence

as   a    reasonable      mind   might   accept       as    adequate   to   support    a


                                              5
conclusion”)(internal citations and quotation marks omitted).                 In

reviewing whether substantial evidence supports the findings of the

Commissioner, “we do not undertake to reweigh conflicting evidence,

make credibility determinations, or substitute our judgment for

that of [the Commissioner].”     Johnson v. Barnhart, 434 F.3d 650,

653 (2005)(internal citations and quotation marks omitted); see

also Craig, 76 F.3d at 589(“Where conflicting evidence allows

reasonable minds to differ as to whether a claimant . . . is

disabled, the responsibility for that decision falls on [the

Commissioner]”).

     The Act defines disability as “the inability to engage in any

substantial   gainful   activity       by       reason   of    any    medically

determinable physical or mental impairment which can be expected to

result in death or which has lasted or can be expected to last for

a continuous period of not less than 12 months.”               42 U.S.C. § 423

(d)(1)(A).    To   determine   whether      a    claimant     is   eligible   for

disability benefits, the Social Security Administration established

a five-step process.    See 20 C.F.R. § 416.920; see also Walls v.

Barnhart, 296 F.3d 287, 290 (4th Cir. 2002).             After finding that

Hailey satisfied the requirements of the first four steps,* the ALJ


     *
      The first step requires the Commission to determine whether
the claimant is currently working. The second step requires the
Commission to consider whether the claimant has a severe mental or
physical impairment. The third step requires the Commission to
determine whether the claimants impairment is medically severe.
The fourth step requires the Commission to consider whether the
claimant has the residual functional capacity to engage in his

                                   6
denied Hailey’s claim for benefits at the fifth step.            The fifth

step requires that the Commissioner prove that Hailey had the

functional capacity to do any job that exists in significant

numbers in the national economy.       20 C.F.R. § 416.960 (c)(2).       The

ALJ found that while Hailey’s impairments were severe and he did

not have the capacity to engage in his past work as a tobacco

farmer, he did have the functional capacity to perform light

custodial work.

     In recommending that Hailey be granted summary judgment, the

magistrate   judge   concluded   that    the   ALJ   committed   error   by

discounting the opinions of Dr. Fletcher and Dr. Russell.                 A

relevant passage from Dr. Fletcher’s report states that:

     Hailey would not be able to perform detailed and complex
     tasks, and in fact often would be challenged by simple
     and repetitive tasks.    He might be able to maintain
     regular attendance in the workplace or perform work
     activities on a consistent basis, but he clearly would
     need special or additional supervision.       His normal
     workday or workweek would not be interrupted by such
     things as auditory hallucinations or paranoia. He also
     would likely be able to accept instruction from
     supervisors, but again requiring considerable help.
     While he might be able to interact with some coworkers,
     he should not be expected to be able to interact
     adequately with the public. The stresses encountered in
     competitive work frequently will result in confusing him.

A relevant passage from Dr. Russell’s report states that:

     [Hailey] is not likely able to tolerate the usual
     stressors encountered in competitive work. If work was
     not interpersonally based and he was left alone to
     perform simple repetitive tasks, he would quite possibly


past relevant work.    See 20 C.F.R. § 416.920 (a)(4).

                                   7
      perform independently without too much difficulty;
      however, if there were interruptions in the work and he
      was asked to be doing additional activities, he would
      likely have increasing episodes of anxiety that would
      then lead to him becoming possibly violent and/or walk
      off the job.

      At the second hearing, the ALJ heard opinion testimony from a

vocational expert (VE) about whether there were jobs available for

a person who had the limitations identified in Dr. Fletcher’s and

Dr.   Russell’s   reports.     The    VE    testified   a   person    with    the

limitations described in Dr. Russell’s report could perform light

custodial work, but that a person with the limitations described in

Dr. Fletcher’s report could not.           When asked by Hailey’s counsel,

quoting    from   Dr.   Russell’s    report,    whether     there    were    jobs

available for a person who “is not likely able to tolerate the

usual stressors encountered in competitive work,” the VE replied

that there were not.      The magistrate judge reasoned that the VE’s

answer to this second question meant that Hailey’s mental condition

as described by both Dr. Fletcher and Dr. Russell meant that Hailey

could not find gainful employment and was therefore disabled under

the Act.

      We agree with the district court that the Commissioner’s view

better comports with the two doctors’ findings when each report is

examined in total.      In addition to the paragraph quoted above, Dr.

Russell’s report stated that Hailey is “likely to be able to

perform work activities on a consistent basis,” “is likely able to

maintain regular attendance in a workplace,” “would likely benefit

                                      8
from work duties that are simple and repetitive and of a rote-task

nature,” and had only a moderate limitation in his ability to

“respond appropriately to work pressures in a usual work setting.”

Moreover, while Dr. Fletcher’s report is more skeptical of Hailey’s

ability to function in a competitive work environment, he does

observe that Hailey “might be able to maintain regular attendance

in the workplace or perform work activities on a consistent basis,

but he clearly would need special or additional supervision.”

     When weighing the two doctors’ opinions, the ALJ deemed Dr.

Russell’s report to be more credible.         In her report, Dr. Russell

noted   that   Hailey   had   suffered   a   foot   injury   prior   to   his

examination by Dr. Fletcher and that this injury likely contributed

to Hailey’s lower IQ scores on Dr. Fletcher’s test.           Furthermore,

Hailey’s IQ as measured by Dr. Fletcher was below the level

typically accepted by the Navy for enlistment purposes, thus

suggesting that Hailey might have been distracted during Dr.

Fletcher’s examination. As the ALJ has the responsibility to weigh

conflicting evidence and determine witness credibility, Johnson,

434 F.3d at 653, we find that the ALJ’s decision to give Dr.

Russell’s report more weight than Dr. Fletcher’s is supported by

substantial evidence.

     The Fourth Circuit has stated that “for a vocational expert’s

opinion to be relevant or helpful, it must be based upon a

consideration of all other evidence in the record and it must be in


                                    9
response to proper hypothetical questions which fairly set out all

of claimant’s impairments.”   Walker v. Brown, 889 F.2d 47, 50 (4th

Cir. 1989).   When the VE was asked whether an individual with all

the characteristics described in Dr. Russell’s report could find

work, the VE concluded that such an individual could find gainful

employment doing light janitorial work.    It was only when the VE

was asked to analyze one paragraph from Dr. Russell’s report in

isolation that he opined that such an individual would be unable to

function in a work environment.    Thus, the ALJ and the Commission

were faced with a situation where one doctor’s findings led to the

conclusion that Hailey was disabled and another doctor’s findings

led to the conclusion that he was not.      The ALJ identified the

reasons why he deemed Dr. Russell’s report more credible than Dr.

Fletcher’s and we believe that finding is supported by substantial

evidence.   Consequently, we find that the Commissioner’s decision

to deny benefits under the Social Security Act is supported by

substantial evidence.



                               III.

     For the foregoing reasons, the judgment of the district court

is

                                                          AFFIRMED.




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