United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS May 28, 2003
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 02-30011
Summary Calendar
LEROY COLE,
Plaintiff-Appellant,
versus
JO ANNE B. BARNHART, COMMISSIONER OF SOCIAL SECURITY,
Defendant-Appellee.
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Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 01-CV-32
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Before DAVIS, WIENER and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*
Leroy Cole appeals the district court’s judgment that
affirmed the Commissioner of Social Security’s final decision
denying his application for disability insurance benefits.
The motion to attach an appendix to the reply brief is GRANTED.
We review the denial of disability insurance benefits to
determine whether the Commissioner applied the proper legal
standards and whether the Commissioner’s decision is supported
*
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
No. 02-30011
-2-
by substantial evidence on the record as a whole. Anthony
v. Sullivan, 954 F.2d 289, 292 (5th Cir. 1992). Substantial
evidence is more than a scintilla, but less than a preponderance.
It is such relevant evidence as a reasonable mind might accept
as adequate to support a conclusion Villa v. Sullivan, 895 F.2d
1019, 1021-22 (5th Cir. 1990). We do not reweigh the evidence
or try the issues de novo. Id. at 1022.
Cole first contends that the administrative law judge
(“ALJ”) did not evaluate the severity of his IQ impairment,
did not include the IQ impairment in the decision, and did
not consider the IQ impairment in conjunction with his other
impairments. Cole states that he “could have possessed a per se
disabling impairment.”
The record shows that the ALJ used the proper standard to
determine whether Cole’s alleged impairments were of a severity
to impose significant restrictions on Cole’s ability to perform
basic work activities. See 20 C.F.R. § 404.1520(c); Leidler
v. Sullivan, 885 F.2d 291, 292 (5th Cir. 1989). The ALJ
considered Cole’s intellectual ability in conjunction with his
other impairments and rejected, in light of Cole’s work history,
the IQ score as indicative of mental retardation. See Johnson
v. Bowen, 864 F.2d 340, 347-48 (5th Cir. 1988). Cole did not
demonstrate that he met a listed impairment. See 20 C.F.R. 404,
Subpt. P, App. 1, § 12.05. Substantial record evidence supports
the ALJ’s decision. Villa, 895 F.2d at 1021-22.
No. 02-30011
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Cole next contends that the ALJ erroneously relied on VE
testimony based on a defective hypothetical in determining that
he could perform other work existing in the national economy.
In the alternative, Cole asserts that the ALJ erroneously relied
solely on the medical vocational guidelines (“Guidelines”).
The ALJ’s decision does not demonstrate reliance on
vocational expert testimony. The ALJ may rely exclusively on the
Guidelines in determining whether there is other work available
that the claimant can perform when the claimant suffers only from
exertional impairments or his non-exertional impairments do not
significantly affect his residual functional capacity. Selders
v. Sullivan, 914 F.2d 614, 618 (5th Cir. 1990). Sufficient
evidence in the record supports the ALJ’s decision that Cole’s
non-exertional impairments of low verbal IQ and assertions of
illiteracy did not have a significant effect on his residual
functional capacity. Villa, 895 F.2d at 1021-22. Because Cole’s
exertional impairments and his IQ and literacy non-exertional
impairments were determined not to significantly affect his
residual functional capacity, the ALJ did not err by relying
exclusively on the Guidelines. See Selders, 914 F.2d at 618.
Finally, Cole contends that his case must be remanded
under Watson v. Barnhart, 288 F.3d 212 (5th cir. 2002), for a
determination whether he is capable not only of obtaining
employment but also of maintaining employment. We have rejected
the notion that the ALJ must, in every case, make a determination
No. 02-30011
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on the claimant’s ability to maintain employment. Frank
v. Barnhart, ___ F.3d ___, 2003 WL 1534379 (5th Cir. Mar. 25,
2003). Cole has not established the factual predicate required
by Watson to necessitate a separate finding on his ability to
maintain employment. Frank, 2003 WL 1534379 at *1.
AFFIRMED; MOTION GRANTED.