Stephen A. KELLEY, Jr., Plaintiff-Appellant,

v. Kenneth S. APFEL, Commissioner of the Social Security Administration, Defendant-Appellee.
No. 98-2763 Non-Argument Calendar. United States Court of Appeals, Eleventh Circuit. April 22, 1999. Appeal from the United States District Court for the Northern District of Florida. (No. 1:96-cv197 MMP), Maurice M. Paul, Judge. Before ANDERSON, CARNES and HULL, Circuit Judges.
PER CURIAM: Stephen A. Kelley, Jr. appeals the district c ourt's order affirming the Commissioner of Social Security's ("Commissioner") denial of his application for disability benefits under the Social Security Act. On appeal, Kelley asserts that the administrative law judge ("ALJ") erred in finding him not disabled. He contends that the ALJ incorrectly (i) assumed that part -time employment could constitute substantial gainful work; (ii) discredited his subjective complaints of pain ; and (iii) used the testimony of a vocational expert, in lieu of the Medical-Vocational Guidelines, 20 C.F.R. pt. 404, subpt. P, app. 2 (also known as the "Grids"), to determine his ability to engage in substantial gainful activity. This Court affirms the Commissioner's decision on a disability benefits application if it is supported by substantial evidence and the correct legal standards were applied. Graham v. Apfel, 129 F.3d 1420, 1422 (11th Cir.1997). The record reflects that Kelley su ffers from degenerative joint disease of the left knee, asbestosis, obesity, progressi ve arthritic disease, rheumatoid arthritis, and osteoarthritis. The controlling issue with respect to the instant application is whether those impairments caused Kelley to be disabled within the1 On September 25, 1991, a previous application for disability benefits was denied by an ALJ. That denial was affirmed by the district court and is res judicata as to Kelley's entitlement to benefits on and before that date. On December 31, 1991, Kelley ceased to have disability insured status under the Social Security Act.

2 The ALJ did not expressly refer to part-time work ve rsus full-time work in his decision. However, he did find that Kelley had the ability to sit for only 6 hour s in an 8-hour workday, and to stand or walk for only 2 hours in an 8-hour workday. ALJ Decision at8. These acknowledged restrictions can reasonably be interpreted as limiting Kelley to part-time work inthe jobs the ALJ mentioned. On appeal, the government does not directly concede that Kelley could not work a full day, but does not offer any argument to the contrary. 

### 2 meaning of the Social Security Act during a narrow window of time between September 26, 1991, and December 31, 1991. 1 42 U.S.C. § 423(d)(1)(A) defines disability as "inability to engage in any substantial gainful activity by reason of any medically determinable physical or me ntal 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)(2)(A) further provides that "[a]n indivi dual shall be determined to be under a disability only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot considering his age, educati on, and work experience, engage in any other kind of substantial gainful work which exists in the national economy." The ALJ found that although Kelley was unable to c ontinue in his prior occupation as a welder, he retained the capacity to perform sed entary work, in jobs such as disp atcher, solderer, or assembler, between September 26, 1991, and December 31, 1991. ALJ Decision at 9. Kelley, however, contends that because the medical evidence reflects th at he was unable to perform full-timesedentary work, he was disabled. 2 The Social Security Administration has a regulation directly on point that states: "Substantial work activity is work activity that involves doing significant physical or me ntal activities. Your work may be substantial even if it is done on a part-time basis...." 20 C.F.R. § 404. 1572(a). We hold that this regulation is reasonable under the Social Security Act. Because this regulation must be given effect, we reject Kelley's argument for3 In Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir.1981) (en banc ), this court adopted as binding precedent all of the decisions of the former Fifth Circuit handed down prior to the close of business on September 30, 1981. Id. at 1209. Kelley's brief also cites an unpublished El eventh Circuit slip opinion from 1986 without attaching a copy thereof. Eleventh Circuit Rule 36-2 provides that an unpublished opinion is not binding precedent, and is persuasive precedent only if a copy thereof is attached to the brief in which it is cited. 

### 3 a per se rule that part-time employment cannot be substantial and thereby disqualify a claimant from receiving benefits. We hold that part-time work may constitute substantial gainful work. In support of his plea for a per se rule, Kelley cites Johnson v. Harris, 612 F.2d 993, 998 (5th Cir.1980); Tucker v. Schweiker, 650 F.2d 62, 63 (5th Cir. July 6, 1981); and Smith v. Schweiker, 646 F.2d 1075, 1081 (5th Cir. June 4, 1981), superseded by statute on other grounds as stated in Hand v. Heckler, 761 F.2d 1545, 1548 (11th Cir.1985). 3 The holding in Tucker is not inconsistent with our ruling today. Tucker held merely that "[t]wo or three hours per month of sedentary paperwork is not substantial gainful activity." 650 F.2d at 63. In Johnson, the pre-split Fifth Circuit noted that "[i] t has been held that a physical limitation which prevents a claimant from working a full workday, minus a reasonable time for lunch and breaks, constitutes a disability within the meaning of the [Social Security] Act." 612 F.2d at 998 (citing Cornett v. Califano, 590 F.2d 91 (4th Cir.1978)). To the extent that the statement quoted above from Johnson can be construed as a per se rule that part-time employment can never be substantial (thus disqualifying a claimant from receiving benefits), we agree with the government that the statement is dicta. The holding in Johnson was merely that new evidence consisting of an opinion by a physician that the claimant's condition limited his productive activity to four hours per day should be considered by the ALJ on remand and constituted good cause for remanding the matter. See id. at 998-99. Moreover, there is nothing in the Johnson opinion to suggest that it considered the regulation providing that "[y]our work may be substantial even if it is done on a part-time basis." 20 C.F.R. § 404.1572(a). Thus, the Johnson decision is not precedent for us to disregard a reasonable regulation, as Kelley urges us to do. Finally, although Smith does refer to the quoted language4 We note also that the loose, categorical statements in Johnson v. Harris and its progeny to the effect that part-time work cannot constitute substantial gainful employment have been roundly criticized. See Conn v. Secretary of Health & Human Services, 51 F.3d 607, 609 (6th Cir.1995); Wright v. Sullivan, 900 F.2d 675, 678-79 (3d Cir.1990); Burkhalter v. Schweiker, 711 F.2d 841, 844-45 (8th Cir.1983); Wood v. Callahan, 977 F.Supp. 1447, 1449-50 (N.D.Fla.1997). 

### 4 in Johnson as a holding, that reference is clearly dicta in Smith, and, as we have demonstrated, is simply wrong. There was no holding in Smith that there is a per se rule that work can never be substantial if it is part-time. Rather, in Smith, a vocational expert testified that a person in Smith's physical condition who needed to rest several times during the day w ould be unemployable. The extent of the Smith holding in this regard was that such testimony of the vocational expert should be considered by the ALJ on remand along with the totality of the evidence in the reco rd and the other reasons for remanding that case. 4 Here, the ALJ found, based on testimony from a vo cational expert, that during the relevant time period Kelley retained the capacity to perform sedentary work in various fields and that the skills he had developed as a welder were transferable to those fi elds. The ALJ's findings in this respect will not be disturbed by this court because theyare supported by substantial eviden ce. Even if Kelley could not have worked a full workday, he was not incapable of being gainfully employed. See42 U.S.C. § 423(d)(2)(A). Kelley also claims that the ALJ improperly discr edited his subjective complaints of disabling pain. In order for a claimant's testimony about the pain he experienced to be taken into account, he must show "evidence of an underlying medical condition and (1) objective medical evidence that confirms the severity of the alleged pain arising from that condition or (2) that the objectively determined medical condition is of such severity that it can reasonably be expect ed to give rise to the alleged pain." Landry v. Heckler, 782 F.2d 1551, 1553 (11th Cir.1986). The ALJ's determination th at Kelley made neither of the two alternative showings with respect to the specific period betw een September 26, 1991, and December 31, 1991 is amply supported by substantial evidence. We do not reach Kelley's third argument, that the ALJ s hould not have relied on the testimony of a vocational expert, because he did not raise it before the administrative agency or the district court. See

### 5 Wheeler v. Heckler, 784 F.2d 1073, 1077 (11th Cir.1986). Therefore, the judgment of the district court affirming the ALJ's decision to deny Kelley benefits under the Social Security Act is
AFFIRMED.