UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT
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No. 95-50059
(Summary Calendar)
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REGINALD SWIST, JR.,
Plaintiff-Appellant,
versus
SHIRLEY S. CHATER, COMMISSIONER,
SOCIAL SECURITY ADMINISTRATION
Defendant-Appellee.
_______________________________________________
Appeal from the United States District Court
For the Western District of Texas
(94 CV 79)
_______________________________________________
August 25, 1995
Before HIGGINBOTHAM, DUHÉ, and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*
Reginald Swist, Jr., applied for disability insurance benefits
and supplemental security income under Titles II and XVI,
respectively, of the Social Security Act.1 He appeals the district
court's affirmance of the final decision of the Commissioner of
*
Local Rule 47.5.1 provides: "The publication of opinions that have
no precedential value and merely decide particular cases on the basis of well-
settled principles of law imposes needless expense on the public and burdens on
the legal profession." Pursuant to that Rule, the Court has determined that this
opinion should not be published.
1
42 U.S.C. §§ 401-433, 1381-1383c (1988).
Social Security ("Commissioner")2 to accept the determination of an
administrative law judge ("ALJ") that Swist was not disabled. We
affirm.
I
Swist applied for supplemental security income based on
disability, alleging diabetes, a bad ankle, and eye problems. The
Social Security Administration ("SSA") denied Swist's application
on the grounds that medication could sufficiently control his
disorders and allow him to engage in substantial gainful activity.
The SSA also denied his application on reconsideration. Swist then
requested a hearing before an ALJ.
Swist's medical records at the time of the hearing indicated
that he had arthritis in his foot, ankle, and knee, which required
him to use crutches outdoors and a cane indoors. He also suffered
from glaucoma, heart pain, sinus problems, and had a ten-year
history of treatable diabetes. At the hearing, Swist complained of
frequent blackouts, an inability to sleep throughout the night,
exhaustion during the day, and lack of strength in both hands. A
neurological examination by Dr. Cain3 revealed that: Swist's
triglyceride level was very elevated, he could not walk on the toes
and heel of his right foot, he had a limping gait on his right
2
Effective March 31, 1995, the Secretary of Health and Human Services
transferred to the Commissioner of Social Security "all functions . . . with
respect to or in support of the programs and activities the administration of
which is vested in the Social Security Administration." Social Security
Independence and Program Improvements Act of 1994, Pub. L. No. 103-296, § 105(a),
108 Stat. 1464 (1994).
3
Swist obtained the neurological examination from Dr. Cain, a
disinterested physician, at the direction of the ALJ.
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side, he lacked reflexes in the right quadriceps and both Achilles
tendons, he had a positive Tinel's sign over the right median nerve
at the wrist,4 and he had some decrease in his right grip. Dr.
Cain concluded that Swist suffered from diabetes mellitus, obesity,
hypertension, status post fracture of the right ankle, and
recurrent headaches. Dr. Cain also suggested that Swist should
have a CAT scan to evaluate his headaches and a nerve conduction
study to rule out carpal tunnel syndrome. The records do not show
whether Swist ever pursued the testing. Based on his diagnosis,
Dr. Cain limited Swist to lifting no more than fifty pounds for not
more than two-thirds of the time during a normal work day. He also
limited Swist to standing and walking no more than one hour without
interruption and six hours maximum during a normal work day.
Lastly, he limited climbing, balancing, stooping, crouching,
kneeling and crawling, and working at heights due to ankle
instability. He found no other impairment of physical functions.
Following the hearing, the ALJ made several findings. First,
the ALJ found that Swist was forty-one years old, six feet tall,
and weighed 304 pounds. Second, the ALJ found that Swist had a
high school education and had worked as a diesel mechanic all his
working life, but that he had not engaged in substantial gainful
activity for two years and was unable to perform his past relevant
work as a mechanic. Third, the ALJ also found that Swist's
impairments failed to equal medically those impairments that the
4
Tinel's sign indicates a partial lesion or the beginning regeneration
of the nerve. Dorland's Illustrated Med. Dictionary 1526 (27th ed. 1988).
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applicable regulations consider severe enough to prevent a person
from doing any substantial gainful activity.5 Finally, the ALJ
found that Swist's complaints of right ankle pain were credible
only to the extent that Swist could not perform light, medium, or
heavy work, and that he was therefore capable of the full range of
sedentary work as described in the regulations.6 The ALJ applied
the "medical-vocational guidelines"7 and concluded that Swist was
not disabled. The Appeals Council, which reviews ALJ decisions,
denied Swist's request for review, and the decision of the ALJ
became the final decision of the Commissioner.
5
20 C.F.R. § 404.1525 (1994); id. Pt. 404, Subpt. P, app. 1. The
Secretary evaluates the claimant's medical evidence to determine if the claimant
has such an impairment or a condition equivalent to those listed in the appendix.
20 C.F.R. § 404.1526. If the Secretary determines that a claimant does not have
a severe impairment that would warrant a finding of disability, the Secretary may
consider the impact of other related symptoms, such as pain. Id. § 404.1529.
6
The regulations define "sedentary work" as follows:
Sedentary work involves lifting no more than 10 pounds at a time and
occasionally lifting or carrying articles like docket files,
ledgers, and small tools. although a sedentary job is defined as one
which 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.
20 C.F.R. § 416.967(a).
7
The medical-vocational guidelines, 20 C.F.R. Pt. 404, Subpt. P, app.
2, assist the Secretary in making a determination on a claim of disability by
providing tables that compare various vocational factors (i.e., age, education,
and work experience) against an individual's capability for work (i.e.,
sedentary, light, medium, heavy, or very heavy work) to determine if a claimant
is able to engage in substantial gainful work other than that work in which the
claimant has previously engaged. The guidelines direct a finding of "disabled"
or "not disabled." Id.
The regulations define Swist as a "younger person," See 20 C.F.R.
§ 416.963(b) (defining "younger person" as anyone under the age of 50), and as
having a high school education, id. § 416.964(b)(4). Rules 201.27 and 201.28 of
the guidelines table, 20 C.F.R. Pt. 404, Subpt. P, app. 2, tbl. 1, address
younger individuals with a high school education or better and a residual
functional capacity to do sedentary work. Rule 201.27 covers individuals who
have no work skills, while Rule 201.28 covers individuals who have non-
transferable work skills. Id. Because both rules direct the same finding of
"not disabled," id., the ALJ found that the existence and transferability of
Swift's work skills was not material.
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Swist then filed a civil action in the district court. A
magistrate judge reviewed the Commissioner's decision and
recommended that the district court vacate and remand it for
further proceedings. The district court declined to adopt the
magistrate judge's recommendation, affirmed the Commissioner's
decision, and dismissed the case.
Swist now appeals, arguing that (1) the Commissioner failed
to recognize Swist's lack of right grip strength, his visual
problems, and a diagnosis that he might possibly have carpal tunnel
syndrome, (2) the Commissioner's determination that Swist could
perform the full range of sedentary work was therefore in error,
and (3) her final decision that Swist is not disabled is not
supported by substantial evidence on the record as a whole.
II
Judicial review of a disability claim under 42 U.S.C. § 405(g)
focuses on whether the whole record contains substantial evidence
that supports the Commissioner's findings. Muse v. Sullivan, 925
F.2d 785, 789 (5th Cir. 1991). Substantial evidence "means such
relevant evidence as a reasonable mind might accept as adequate to
support a conclusion." Richardson v. Perales, 402 U.S. 389, 401,
91 S. Ct. 1420, 1427, 28 L. Ed. 2d 842 (1971) (quoting Consolidated
Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S. Ct. 206, 217, 83 L.
Ed. 126 (1938)); see also Anthony v. Sullivan, 954 F.2d 289, 295
(5th Cir. 1992) (applying Richardson). Substantial evidence "must
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be more than a scintilla, but it need not be a preponderance."
Anthony, 954 F.2d at 295; accord Muse, 925 F.2d at 789.
A person is disabled if he is unable "`to engage in any
substantial gainful activity by reason of any medically
determinable physical or mental impairment . . . which has lasted
or can be expected to last for a continuous period of not less than
12 months.'" Muse, 925 F.2d at 789 (quoting 42 U.S.C.
§ 423(d)(1)(A)). In evaluating evidence of disability, the
Commissioner properly used a five-step sequential evaluation
process. See Anthony, 954 F.2d at 293 (noting that the
promulgation of the five-step test was "pursuant to the express
authorization of Congress"). Under that test:
(1) A claimant who is working, engaging in a substantial
gainful activity, will not be found to be disabled no
matter what the medical findings are; (2) a claimant will
not be found to be disabled unless he has a "severe
impairment"; (3) a claimant whose impairment meets or is
equivalent to an impairment listed in Appendix 1 of the
regulations will be considered disabled without the need
to consider vocational factors; (4) a claimant who is
capable of performing work that he has done in the past
must be found "not disabled"; and (5) if the claimant is
unable to perform his previous work as a result of his
impairment, then factors such as his age, education, past
work experience, and residual functional capacity must be
considered to determine whether he can do other work.
Bowling v. Shalala, 36 F.3d 431, 435 (5th Cir. 1994). If at any
stage of the evaluation, the Commissioner finds the claimant to be
either disabled or not disabled, the inquiry is complete. Id.;
accord Anthony, 954 F.2d at 293.
This case reached the fifth step. The ALJ first found that
Swist "has not engaged in substantial gainful activity since May
15, 1991." The ALJ also found that Swist "has severe post
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traumatic arthritis of the right ankle and obesity, and non-severe
diabetes mellitus, hypertension and glaucoma, but that he does not
have an impairment or combination of impairments listed in, or
medically equal to one listed in Appendix 1, Subpart P, Regulations
No. 4." The ALJ further found that Swist "is unable to perform his
past relevant work as a mechanic." Swist does not challenge the
ALJ's findings on these first four steps. Because of these
findings, Swist established a prima facie case of disability, and
the burden of proof shifted to the Commissioner to show that Swist
can perform other work. Bowling, 36 F.3d at 435; Muse, 925 F.2d at
789.
Swist challenges the ALJ's finding at step five that he "has
the residual functional capacity to perform the full range of
sedentary work," and, therefore, considering Swist's "residual
functional capacity, age, education, and work experience, he is not
disabled." Swist argues specifically that in accepting the ALJ's
finding, the Commissioner failed to consider his weak right grip
strength and his visual problems and therefore erred in determining
that he could perform the full range of sedentary work.
The record establishes that Swist has some decreased strength
in his right grip and might suffer from carpal tunnel syndrome.
However, according to Dr. Cain, Swist's impairments do not affect
his abilities to reach, handle, finger, feel, push, or pull. The
Commissioner weighed the evidence in Dr. Cain's report and
determined that Swist was capable of the full range of sedentary
work. Here, Swist is simply asking us to reweigh the evidence to
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determine which of the two allegedly conflicting diagnoses to
accept. However, "[t]he [Commissioner], not the courts, has the
duty to weigh the evidence, resolve material conflicts in the
evidence, and decide the case." Chapparo v. Bowen, 815 F.2d 1008,
1011 (5th Cir. 1987); accord Johnson v. Bowen, 864 F.2d 340, 346
(5th Cir. 1988); see also Anthony, 954 F.2d at 295 ("[C]onflicts in
the evidence are for the [Commissioner] to resolve."). To make a
finding of "no substantial evidence," we must conclude that there
is a "conspicuous absence of credible choices" or "no contrary
medical evidence." Dellolio v. Heckler, 705 F.2d 123, 125 (5th Cir.
1983) (citation omitted); accord Johnson, 864 F.2d at 346. The
Commissioner may rely on the opinion of the examining physician.
Bradley v. Bowen, 809 F.2d 1054, 1057 (5th Cir. 1987) (holding that
ALJ may properly rely on only one physician's conclusions).
Accordingly, we hold that there is substantial evidence to support
the Commissioner's finding that Swist's decrease in grip strength
and possible carpal tunnel syndrome do not impair his ability to
perform the full range of sedentary work.
Similarly, Swist's claim that the Commissioner failed to
consider his eye problems lacks merit. The ALJ specifically noted
that Swist suffered from glaucoma, but further noted that Swist's
glaucoma had improved greatly with treatment. Swist's medical
records support this finding.8 Moreover, the evidence indicates
that Swist's glaucoma had never significantly affected his vision.
8
Swist's physicians at Brackenridge Hospital considered his glaucoma
"much improved" after treatment.
-8-
Indeed, Swist did not wear glasses to the hearing and acknowledged
never having worn glasses. Objective medical facts support the
Commissioner's finding that Swist's impairment did not affect his
capacity to perform sedentary work; the district court therefore
did not err in affirming the Commissioner's determination.
Swist also challenges the Commissioner's acceptance of the
ALJ's use of the medical-vocational guidelines to decide that he is
not disabled. He asserts that the Commissioner should not have
used the vocational-medical guidelines,9 and that the Commissioner
should have called a vocational expert to testify about Swist's
ability to perform jobs available in the economy in substantial
numbers.10
Because the Commissioner correctly found that Swist's
impairments do not significantly affect his residual functional
capacity to perform the full range of sedentary work, she was
entitled to rely exclusively on the guidelines. "When the claimant
suffers only from exertional impairments or his nonexertional
impairments do not significantly affect his residual functional
capacity, the ALJ [and, consequently, the Commissioner] may rely
exclusively on the [Medical-Vocational] Guidelines in determining
whether there is other work available that the claimant can
9
The Commissioner will not apply the vocational-medical guidelines if
a person's relevant characteristics do not match the criteria of a guidelines
rule. 20 C.F.R. § 416.969; accord Bowling, 36 F.3d at 435. None of the rules
in the vocational-medical guidelines are applicable to an individual who cannot
perform the full range of sedentary work. 20 C.F.R., Pt. 404, Subpt. P, App. 2,
§ 200(h).
10
Where there is a complex issue as to how an applicant's skills and
restrictions relate to specific occupations, the Secretary may use the services
of a vocational expert or other specialist. 20 C.F.R. § 404.1566(e).
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perform." Selders v. Sullivan, 914 F.2d 614, 618 (5th Cir. 1990).11
Considering Swist's "age, education, past work experience, and
residual functional capacity," the medical-vocational guidelines
directed a finding of "not disabled,"12 and the Commissioner
properly found that Swist was not disabled. Accordingly, the
district court did not err in upholding the Commissioner's
decision.
III
For the foregoing reasons, we AFFIRM the judgment of the
district court.
11
"Limitations or restrictions which affect your ability to meet the
demands of jobs other than the strength demands, that is, demands other than
sitting, standing, walking, lifting, carrying, pushing or pulling, are considered
nonexertional." 20 C.F.R. § 416.969a(a). Nonexertional limitations include, in
relevant part, "difficulty in seeing or hearing" and "difficulty performing the
manipulative or postural functions of some work such as reaching, crawling, or
crouching." Id. § 416.969a(c)(1)(iv),(vi). Because we hold that the Secretary
correctly found that Swist's impairments do not significantly affect his residual
functional capacity, we need not decide whether those impairments are exertional
or non-exertional.
12
20 C.F.R., Pt. 404, Subpt. P, app. 2, rules 201.27-201.28; see also
supra note 6.
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