UNPUBLISHED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Affirmed by unpublished per curiam opinion.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 Coun-
sel, SOCIAL SECURITY ADMINISTRATION, Philadelphia, Penn-
sylvania; 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Unpublished opinions are not binding precedent in this circuit.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 rec-
ommendation of the magistrate judge and granting summary judg-
ment to the Commissioner in this action challenging the denial of
disability insurance benefits. Because we find that substantial evi-
dence supports the denial of benefits and that the correct law was
applied, see Hays v. Sullivan, 

, 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 opera-
tor at a strip mine, he had the residual functional capacity for a limited
range of medium level work. The ALJ thus found Blackburn not dis-
abled.

Blackburn first contends that the ALJ improperly relied on an inad-
equate report by Dr. McWhorter, a specialist in cardiovascular dis-
eases 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 medi-
cal 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 con-
tention. 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 nor-
mal 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, indi-
cating that he had no impairment of pulmonary function. Most signifi-
cant, 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 incon-
sistent with the medical evidence. While there is evidence in the
record that Blackburn suffers a variety of health problems, we con-
clude that substantial evidence supports the ALJ's finding, appropri-

                    3
ately based on McWhorter's report, that Blackburn is not disabled.
See 

.

Finally, Blackburn contends that the ALJ's hypothetical question
to the vocational expert was defective. A review of the record dis-
closes 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, 

, 155 (1985);
United States v. Schronce, 

, 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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