UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

ALTON L. GOODMAN,
Plaintiff-Appellant,

v.
                                                                      No. 97-1361
KENNETH S. APFEL, COMMISSIONER OF
SOCIAL SECURITY,
Defendant-Appellee.

Appeal from the United States District Court
for the Eastern District of North Carolina, at Elizabeth City.
Terrence W. Boyle, Chief District Judge.
(CA-95-45-2-BO)

Submitted: February 24, 1998

Decided: March 18, 1998

Before MURNAGHAN and MICHAEL, Circuit Judges, and
PHILLIPS, Senior Circuit Judge.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

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COUNSEL

Branch W. Vincent, III, TWIFORD, MORRISON, O'NEAL, VIN-
CENT & WILLIAMS, L.L.P., Elizabeth City, North Carolina, for
Appellant. Janice McKenzie Cole, United States Attorney, Anne M.
Hayes, Assistant United States Attorney, Barbara D. Kocher, Assis-
tant United States Attorney, Raleigh, North Carolina, for Appellee.

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Unpublished opinions are not binding precedent in this circuit.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

_________________________________________________________________

OPINION

PER CURIAM:

Alton L. Goodman, age 53, applied for disability insurance benefits
in June 1993, for a period of disability commencing April 24, 1993.
After an initial denial, the Social Security Commission held a hearing
and the Administrative Law Judge (ALJ) denied benefits. The
Appeals Council reviewed the ALJ's decision and adopted the ALJ's
findings and conclusions on disability, but attached a properly com-
pleted "Psychiatric Review Technique" form. Goodman then filed a
complaint in the district court seeking review of the Commission's
findings. The parties filed cross-motions for judgment on the plead-
ings and for summary judgment. The motions were referred to a mag-
istrate judge for a report and recommendation. The magistrate judge
recommended that Goodman's motion for judgment on the pleadings
be granted, the Commissioner's motion be denied, and that the case
be remanded to the Commissioner for an award of benefits. After
reviewing objections to the report filed by the Commissioner, the dis-
trict court affirmed the denial of benefits and granted the Commis-
sioner's motion for judgment on the pleadings. On appeal, Goodman
argues that substantial evidence did not support the Commissioner's
decision that Goodman's impairment does not prevent him from
engaging in any substantial employment. Finding no error, we affirm.

Goodman's alleged disability consisted of back pain, high blood
pressure and diabetes that he suffered following a back injury sus-
tained in the course of his employment as an equipment operator. A
medical examination confirmed the presence of degenerative disc dis-
ease with a herniated disc at L4-5. An orthopedic specialist referred
Goodman to Dr. Thomas Markham, an orthopedic surgeon. Dr. Mark-
ham's course of treatment involved prescription anti-inflammatory
and pain medications, exercise, and weight loss. Dr. Markham dis-
cussed surgery with Goodman, but decided that he was not a surgical
candidate.

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Goodman completed a one-month rehabilitation program and was
released by the rehabilitation clinic to return to work. The records
show that the clinic released Goodman to full-time work with medium
physical demands requiring up to forty pounds overhead lifting and
twenty pounds squat lifting. Goodman's prior duties of roller opera-
tion and asphalt spreader operation (paver) met the medium physical
restrictions. Goodman returned to work and continued to work inter-
mittently throughout 1994 as a paver.

Dr. Markham continued to treat Goodman on the same course of
treatment. In an April 6, 1994, office note, Dr. Markham stated that
Goodman could return to his light duty job as a paver. He determined
that Goodman would need to get off the paver and take breaks to
stretch and walk, as necessary. Dr. Markham suggested up to a fifteen
minute break every two hours.

At the hearing before the ALJ, Goodman testified as to his physical
limitations. He stated that he could stand for fifteen to twenty minutes
while changing positions before he needed to sit down. He could sit
for thirty-five to forty minutes before pain caused him to stand up and
move around. He also testified that he sometimes had difficulty lifting
things.

A vocational expert, Dr. E. Davis Martin, also testified at the hear-
ing. Dr. Martin stated that Goodman's past work was heavy, semi or
low-skilled, and that Goodman had no transferable work skills from
his past employment. The ALJ posed hypothetical questions to Dr.
Martin regarding a forty-nine year old individual with a fourth grade
education who is functionally illiterate with Goodman's past work
experiences. The ALJ questioned Dr. Martin whether light duty sed-
entary jobs existed for an individual with these characteristics. Dr.
Martin testified that jobs existed in this category for the individual.
The ALJ then asked Dr. Martin if jobs existed for a person with the
same characteristics, but with additional restrictions of needing to
move from a seated to a standing position from time to time, and tak-
ing fifteen minute breaks as needed. Dr. Martin replied that there
would not be any jobs that the individual could perform because
unskilled jobs leave the worker with little discretion in how to con-
duct the work.

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The Commissioner's disability determination will be upheld if it is
supported by substantial evidence. See 42 U.S.C. § 405(g) (1994).
Substantial 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)). Substantial evidence "consists
of more than a mere scintilla of evidence but may be somewhat less
than a preponderance. If there is evidence to justify a refusal to direct
a verdict were the case before a jury, then there is`substantial evi-
dence.'" Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990) (quot-
ing Laws v. Celebrezze, 368 F.2d 640, 642 (4th Cir. 1962)).

As the presiding officer at the administrative hearing, the ALJ
makes factual determinations and resolves evidentiary conflicts,
including inconsistencies in the medical evidence. Reviewing courts
do not weigh evidence anew or substitute their judgment for that of
the Commissioner, provided that substantial evidence supports the
Commissioner's decision. See Hays, 907 F.2d at 1456. Because sub-
stantial evidence supports the ALJ's findings here, there is no reason
to disturb the decision of the Commissioner.

Goodman claims that the district court erred by upholding the
ALJ's decision to discount the opinion of his treating physician, Dr.
Markham, that he could only participate in light duty work with
restrictions that allowed him to rest periodically.

The ALJ must consider objective medical facts and the opinions
and diagnoses of treating and examining doctors, which constitute a
major part of the proof in disability cases. See McLain v. Schweiker,
715 F.2d 866, 869 (4th Cir. 1983). Pursuant to 20 C.F.R.
§ 404.1527(d)(2) (1997), the Commissioner must generally give more
weight to the opinion of a treating physician because the physician is
often most able to provide "a detailed, longitudinal picture" of a
claimant's alleged disability. The opinion of a treating physician must
be weighed in light of the record as a whole when determining eligi-
bility for disability insurance benefits. See 20 C.F.R. § 404.1527(d)(4)
(1997).

In this case, the ALJ did not specifically reject Dr. Markham's
opinion. Dr. Markham opined that Goodman could return to light duty

                     4
work as a paver. The rehabilitation clinic's recommendation was for
return to medium work activity. The two recommendations appear to
be in conflict. However, the clinic intended to train Goodman to
return to his job as a paver, a job which is defined in the Dictionary
of Occupational Titles as medium. The ALJ did not discredit Dr.
Markham's recommendation or restrictions. Instead, the ALJ relied,
almost exclusively, on Dr. Markham's treatment notes to establish
that Goodman had a severe impairment. It appears from the record
that Dr. Markham believed Goodman's previous paver job involved
light duty work.

Goodman contends that the ALJ's assessment of his residual func-
tional capacity was not supported by substantial evidence because the
medical evidence and the vocational expert's responses do not dem-
onstrate that he can perform medium work, or any work at all. An
individual's residual functional capacity is what that person can still
do despite physical and mental impairments. See 20 C.F.R.
404.1545(a) (1997).* The ALJ found Goodman's testimony that he is
totally unable to perform any work activity not fully credible.

In the case of allegations of pain, the rule of this court for claims
filed before October 1, 1995, is:

           Once an underlying physical or mental impairment that
           could reasonably be expected to cause pain is shown by
           medically acceptable objective evidence, such as clinical or
           laboratory diagnostic techniques, the adjudicator must eval-
           uate the disabling effects of a disability claimant's pain,
           even though its intensity or severity is shown only by sub-
           jective evidence. If an underlying impairment capable of
           causing pain is shown, subjective evidence of the pain, its
           intensity or degree can, by itself, support a finding of dis-
           ability. Objective medical evidence of pain, its intensity or
           degree . . ., if available, should be obtained and considered.
           Because pain is not readily susceptible of objective proof,
_________________________________________________________________
*In his disability claim, Goodman also alleged that part of disability
results from high blood pressure and diabetes. On appeal, Goodman does
not dispute that these conditions did not disable him nor discuss their
cumulative effect.

                     5
          however, the absence of objective medical evidence of the
          intensity, severity, degree or functional effect of pain is not
          determinative.

SSR 90-1p (current versions at SSR-95-5p); see Hyatt v. Sullivan, 899
F.2d 329, 337 (4th Cir. 1990). The ALJ must make credibility deter-
minations based upon all the evidence in the record, and properly sup-
ported credibility determinations will be upheld. See Hammond v.
Heckler, 765 F.2d 424, 426 (4th Cir. 1985). The ALJ's determination
that Goodman's testimony of total inability to perform any work was
not credible is so supported.

First, the ALJ noted that Goodman reported back pain to each of
his treatment sources. He noted that Goodman reported a constant
ache in his lower back, but could not identify any movement that
aggravated the pain. Goodman had a steroid injection for pain in July
1994, but on the day before that treatment reported only mild low
back pain. While Goodman does take medication for diabetes and
hypertension, he takes no prescription medication for pain or over-
the-counter pain relievers.

The ALJ also noted that Goodman's pain decreased and his flexi-
bility improved while he was participating in the rehabilitation pro-
gram. Goodman was able to participate in almost a half-hour of
aerobic activity and reportedly played volleyball for over three hours
on a daily basis, as part of his treatment in the program. Upon his
release from the program, it was recommended that Goodman con-
tinue regular exercise, which he did not pursue. Goodman also stated
that he limited other daily activities. The ALJ found that without fol-
lowing this recommended course of treatment, Goodman should
expect that his back would cause him discomfort.

Thus, the ALJ found Goodman's complaints of pain to be not fully
credible. Because of this determination, the ALJ found that there were
no nonexertional limitations and the grids could be used to determine
disability. See Walker v. Bowen, 889 F.2d 47, 49-50 (4th Cir. 1989).
Although vocational expert testimony was solicited and given regard-
ing limited employment possibilities under certain assumed restric-
tions, the ALJ was not bound to accept the restrictions and did not err
in rejecting as incredible those assumed in the hypothetical posed to

                    6
the vocational expert. An ALJ has great latitude in posing hypotheti-
cal questions and is free to accept or reject conditions assumed in
such questions so long as there is substantial evidence to support his
ultimate determination. See Martinez v. Heckler , 807 F.2d 771, 774
(9th Cir. 1986).

The ALJ found that under 20 C.F.R. Part 404 Subpart P, App. 2
§§ 203.19, 203.26 (1997), Goodman was not disabled. Because this
determination is supported by substantial evidence we affirm the dis-
trict court order affirming the denial of benefits. 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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