United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
December 21, 2005
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 04-51079
Summary Calendar
Porfirio Guzman
Plaintiff-Appellant,
versus
Jo Anne B. Barnhart, Commissioner of Social Security,
Defendant-Appellee.
Appeal from the United States District Court
For the Western District of Texas
(03-CV-169)
Before HIGGINBOTHAM, BENAVIDES, and DENNIS, Circuit Judges.
PER CURIAM:*
Porfiro S. Guzman appeals an order of the United States
District Court for the Western District of Texas affirming the
final decision of the Commissioner of Social Security Benefits, Jo
Anne B. Barnhart, that Guzman was not entitled to disability
benefits under Title II of the Social Security Act. Finding the
Commissioner’s decision supported by substantial evidence, we
affirm.
*
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should not be published and is not precedent except under the limited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.
I
Porfiro S. Guzman filed for disability insurance benefits
under Title II of the Social Security Act on July 11, 2002,
alleging disability due to back pain, knee pain, and diabetes. At
the time of his hearing, Guzman was 47-years old. Although he only
attended school through the third grade, he is English literate and
is able to speak conversational English. Guzman worked as a
forklift operator for 24 years at a rubber plan in Odessa, Texas
until the plant closed in May 2002. Because he worked successfully
at the same job for over 24 years, the ALJ described him as an
“ideal employee.”
A hearing was held on April 15, 2003 in front of an
administrative law judge (“ALJ”). After Guzman testified to the
above facts, the ALJ remarked that the case looked more like an
unemployment case than a disability case. The ALJ then requested
that Guzman undergo a consultative evaluation, which he did. Dr.
Pandya found that Guzman’s knee and back pain forced him to retire.
In addition, Dr. Padya found that Guzman was unable to lift weight
or stay in one position. Dr. Pandya’s handwritten notes indicate
that Guzman “can sit in one place for upto 2 hours.” On the
assessment form, Dr. Pandya checked a box indicating that Guzman
can sit “less than 6 hours in an 8 hour workday.”
Subsequently, the ALJ sent a letter and Dr. Padya’s assessment
to Guzman and his nonlawyer representative. The letter stated that
2
Guzman could submit additional statements, records, law, or written
questions, as well as request a supplemental hearing. The letter
indicated that if the ALJ did not receive a response within ten
days of the date Guzman received notice, the ALJ would assume that
Guzman did not wish to submit additional materials or request a
supplemental hearing. Guzman did not submit a response to the
ALJ’s letter.
On August 20, 2003, the ALJ found that Guzman was not disabled
within the meaning of the Social Security Act. The ALJ concluded
that Guzman was not entitled to disability insurance benefits.
Guzman’s timely appeal to the Appeals Council was denied, and he
subsequently petitioned for judicial review. The magistrate judge
held that the ALJ followed the proper legal standards and used
legally sufficient evidence in the record to support his finding
that Guzman retained the ability to perform a full range of
sedentary work. Guzman timely appealed to this Court. We have
jurisdiction under 28 U.S.C. § 1291.
II
Our review of the Commissioner’s denial of disability benefits
is limited to determining whether there is substantial evidence in
the record to support the decision and whether proper legal
standard were used in evaluating the evidence.1 Substantial
evidence is more than a scintilla, but less than a preponderance,
1
See Richardson v. Perales, 402 U.S. 389, 401 (1971); Falco v. Shalala, 27
F.3d 160, 162 (5th Cir. 1994).
3
and is such relevant evidence as a reasonable mind might accept as
adequate to support the conclusion.2 We do not reweigh the
evidence; rather, we only scrutinize the entire record to determine
whether it contains substantial evidence to support the
Commissioner’s decision.3 A finding of no substantial evidence is
appropriate only if no credible evidentiary choices or medical
findings exist to support the decision.4 Conflicts in the evidence
are for the Commission, and not this Court, to resolve.5
An individual is disabled if he is “unable to engage in any
substantial gainful activity by reason of any medically
determinable physical or mental 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 twelve months.”6 At step five
of the evaluation process, the Commissioner’s burden may be
satisfied by the use of the Medical-Vocational Guidelines if there
are no nonexertional limitations that significantly affect the
claimant’s residual functional capacity.7 The term “residual
functional capacity” is defined as the claimant’s maximum remaining
2
Richardson, 402 U.S. at 401.
3
Leggett v. Chater, 67 F.3d 558, 564 (5th Cir. 1995).
4
See Johnson v. Bowen, 864 F.2d 340, 343-44 (5th Cir. 1988).
5
See Selders v. Sullivan, 914 F.2d 614, 617 (5th Cir. 1990).
6
42 U.S.C. § 423(d)(1)(A).
7
See Selders, 914 F.2d at 618; Fraga v. Bowen, 810 F.2d 1296, 1304-05 (5th
Cir. 1987).
4
ability to do sustained work activity in an ordinary work setting
“on a regular and continuing basis.”8
Guzman contends that the record does not contain substantial
evidence that he can do a full range of sedentary work. Although
we note some inconsistencies in the record, we conclude that the
ALJ’s decision is supported by substantial evidence. Although
sedentary work “involves sitting, a certain amount of walking and
standing is often necessary in carrying out job duties. Jobs are
sedentary if walking and standing are required occasionally and
other sedentary criteria are met.”9 The Social Security
Administration further elaborated,
In order to perform a full range of sedentary work, an
individual must be able to remain in a seated position
for approximately 6 hours of an 8-hour workday, with a
morning break, a lunch period, and an afternoon break at
approximately 2-hour intervals. If an individual is
unable to sit for a total of 6 hours in an 8-hour work
day, the unskilled sedentary occupational base will be
eroded.10
Here, there is evidence in the record that Guzman could sit for two
hours at a time and for a total of six hours in a work day. First,
Dr. Naidu, Guzman’s treating physician, indicated that Guzman could
sit for two-to-three hours before his legs went numb. Second, Dr.
Pandya’s notes from the consultative examination ordered by the ALJ
indicate that Guzman can sit for up to two hours at a time. Third,
8
20 C.F.R. § 404.1545(b), (c) (2004).
9
20 C.F.R. § 404.1567(a) (2004).
10
Social Security Ruling 96-9p, 1996 WL 374185, at *6 (July 2, 1996).
5
although Guzman complained of greater pain, Dr. Pandya indicated
that Guzman “does not appear to be in . . . as much [pain] as he
alleges.” Finally, Dr. Pandya checked a box indicating that Guzman
can sit for less than six hours in an eight-hour day. Although
this somewhat contradicts the handwritten notes on Dr. Pandya’s
assessment form, it is for the ALJ, not this Court, to resolve such
inconsistencies.11 Based on the substantial evidence supporting a
finding that Guzman could perform a full range of sedentary work,
the ALJ resolved the inconsistency in favor of the Commissioner,
and neither the record nor the law requires reversal.
III
For the foregoing reasons, the Commissioner’s final decision
denying Guzman’s claim for benefits under the Social Security Act
is AFFIRMED.
11
Newton v. Apfel, 209 F.3d 448, 454 (5th Cir. 2000).
6