UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

HENRY TANNER,

Plaintiff-Appellant,

v.

No. 95-3058

SHIRLEY S. CHATER, COMMISSIONER OF

SOCIAL SECURITY,

Defendant-Appellee.

Appeal from the United States District Court

for the Southern District of West Virginia, at Charleston.

Jerry D. Hogg, Magistrate Judge.

(CA-95-242-2)

Submitted: September 20, 1996

Decided: October 3, 1996

Before NIEMEYER, HAMILTON, and MOTZ, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Belinda S. Morton, Fayetteville, West Virginia, for Appellant.

Charlotte Hardnett, Chief Counsel, Region III, Shawn Carver, Assistant Regional Counsel, Office of General Counsel, SOCIAL SECURITY ADMINISTRATION, Philadelphia, Pennsylvania; Rebecca A.

Betts, United States Attorney, Stephen M. Horn, Assistant United

States Attorney, Charleston, West Virginia, for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

Henry Tanner appeals the magistrate judge's refusal to disturb the

Secretary's determination that he was not entitled to supplemental

security income benefits.* In support of his appeal, Tanner contends

that the Secretary's decision was not supported by substantial evidence. Tanner also objects to the weight the administrative law judge

(ALJ) assigned to his own testimony denying any mental disability.

This court, like the district court, will uphold the Secretary's disability

determination if it is supported by substantial evidence. 42 U.S.C.

§ 405(g) (1994); Coffman v. Bowen, 829 F.2d 514, 517 (4th Cir.

1987); see Richardson v. Perales, 402 U.S. 389, 401 (1971). 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 evidence.'" Hays v. Sullivan, 907 F.2d 1453, 1456

(4th Cir. 1990) (quoting Laws v. Celebrese, 368 F.2d 640, 642 (4th

Cir. 1962)). Because substantial evidence supports the ALJ's findings

here, there is no reason to disturb the decision of the Secretary.

Accordingly, we affirm the magistrate judge's order.

In a disability case, the ALJ must consider objective medical facts

and opinions and the diagnoses of treating and examining doctors,

which constitute a major part of the proof in disability cases. McLain

v. Schweiker, 715 F.2d 866, 869 (4th Cir. 1983). Here, the medical

evidence of record was divided, but sufficiently supported the ALJ's

conclusion that Tanner was not mentally disabled. Tanner's own testimony denying any mental disability notwithstanding, the evidence of

record supports the ALJ's finding.

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*The parties consented to the jurisdiction of the magistrate judge pursuant to 28 U.S.C. § 636(c) (1994).

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After a protracted evaluation at Huntington State Hospital, Dr. Galvez concluded that Tanner exhibited no psychiatric symptoms, nor

was there any evidence to substantiate a previous diagnosis of psychiatric disorders. A psychologist also evaluated Tanner and reported

that he was an appropriate candidate for rehabilitation services without recommending specific psychiatric treatment. Since his stay at the

state hospital, Tanner has not undergone any psychiatric treatment or

taken medication to treat any mental or emotional problem. Although

Tanner's anti-social behavior following the initial denial of benefits

is some evidence of instability, there is substantial evidence to support the ALJ's conclusion that Tanner was not mentally disabled.

Consequently, we decline to disturb the Secretary's decision denying

Tanner's 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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