UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

JOHN BLACKBURN,

Plaintiff-Appellant,

v.

No. 98-1530

KENNETH S. APFEL, Commissioner of

Social Security,

Defendant-Appellee.

Appeal from the United States District Court

for the Southern District of West Virginia, at Huntington.

Joseph Robert Goodwin, District Judge.

(CA-96-2039-3)

Submitted: January 29, 1999

Decided: February 18, 1999

Before ERVIN and MICHAEL, Circuit Judges, and

HALL, Senior Circuit Judge.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

Rose A. Cyrus, ROBINSON, RICE & LEVY, L.C., Huntington, West

Virginia, for Appellant. James A. Winn, Chief Counsel, Region III,

Nora Koch, Assistant Regional Counsel, Office of the General Counsel, SOCIAL SECURITY ADMINISTRATION, Philadelphia, Pennsylvania; Rebecca Betts, Unites States Attorney, Ray M. Shepard,

Assistant United States Attorney, Charleston, West Virginia, for

Appellee.
Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

John Blackburn appeals the district court's order adopting the recommendation of the magistrate judge and granting summary judgment to the Commissioner in this action challenging the denial of

disability insurance benefits. Because we find that substantial evidence supports the denial of benefits and that the correct law was

applied, see Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990),

and because Blackburn has waived appellate review as to one of his

claims, we affirm the district court's order.

Blackburn filed his application for benefits in March 1993, alleging

disability beginning in February 1993 as a result of a heart condition

and pneumoconiosis. On appeal from an initial and reconsidered

denial, an administrative law judge (ALJ) conducted a hearing and

concluded that although Blackburn suffered from severe impairments

and was unable to perform his past work as a heavy equipment operator at a strip mine, he had the residual functional capacity for a limited

range of medium level work. The ALJ thus found Blackburn not disabled.

Blackburn first contends that the ALJ improperly relied on an inadequate report by Dr. McWhorter, a specialist in cardiovascular diseases and internal medicine. The record discloses that because the

only evaluation of Blackburn's residual functional capacity in the

record was completed in 1993 and because it concluded there were no

limitations on Blackburn's ability to work, the ALJ asked McWhorter

to review the entirety of the evidence and to provide an expert medical opinion as to Blackburn's impairments, their severity, and their

impact on his ability to engage in employment. See 20 C.F.R.

§ 404.1527(f)(2) (1998).

Blackburn insists that McWhorter's assessment was inconsistent

with the evidence from examining physicians in several respects. He

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first points out that McWhorter stated in his report that Blackburn had

"mild to moderate" sensorineural hearing loss greater on the right than

the left when examining otolaryngologist Dr. Joseph B. Touma

reported he had "moderate to severe" hearing loss and advised he

should wear hearing protection anytime he is around noise. While the

record confirms the diagnosis was moderate to severe hearing loss

rather than mild to moderate hearing loss, we find the limitations

resulting from the hearing impairment at either level adequately

accounted for by McWhorter in his residual functional capacity

assessment limiting Blackburn's exposure to noise.

Blackburn next claims that McWhorter's statement that Blackburn

could stand or walk for four to six hours per day at one hour intervals

is inconsistent with the medical evidence. The record belies this contention. In a June 1993 report, examining neurologist Dr. LaRouche

indicated that although Blackburn had arthritis, he noted no arthritic

changes in the right arm and shoulder and stated that there appeared

to be a full range of motion. Pursuant to another evaluation, Dr.

Orphanos, an orthopaedic surgeon, reported that Blackburn had normal gait, bulk, tone and power in all of his extremities. Although

Blackburn had diffuse tenderness and limited range of motion in his

back, he walked without any limp or difficulty, had no atrophy in his

lower extremities, and demonstrated no significant difference in

strength in his right foot compared to his left.

This evidence supports McWhorter's assessment that Blackburn

could stand or walk on the job and thus supports the ALJ's finding

that McWhorter's report was not inconsistent with the evidence. The

ALJ noted that while McWhorter failed to list pneumoconiosis as one

of Blackburn's impairments, he did note restrictions in his assessment

that took the condition into account. In any event, as the ALJ

observed, Blackburn's pulmonary function studies were normal, indicating that he had no impairment of pulmonary function. Most significant, none of the examining physicians found Blackburn to be

disabled or unable to work, and the ALJ found Blackburn's subjective

complaints not entirely credible because they were somewhat inconsistent with the medical evidence. While there is evidence in the

record that Blackburn suffers a variety of health problems, we conclude that substantial evidence supports the ALJ's finding, appropri-

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ately based on McWhorter's report, that Blackburn is not disabled.

See Hays, 907 F.2d at 1456.

Finally, Blackburn contends that the ALJ's hypothetical question

to the vocational expert was defective. A review of the record discloses that Blackburn failed to timely object to the magistrate judge's

finding on this issue despite a warning that such failure would waive

appellate review. See Thomas v. Arn, 474 U.S. 140, 155 (1985);

United States v. Schronce, 727 F.2d 91, 93-94 (4th Cir. 1984).

Accordingly, we find Blackburn has waived review of his challenge

to the ALJ's questioning of the vocational expert.

We therefore affirm the district court's order granting summary

judgment to the Commissioner. 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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