UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT
No. 95-30459
Summary Calendar
ROGER S. OLIVER, SR.,
Plaintiff-Appellant,
versus
SHIRLEY S. CHATER, Commissioner
of Social Security,
Defendant-Appellee.
Appeal from the United States District Court
for the Western District of Louisiana
(CA-94-0778)
December 14, 1995
Before GARWOOD, WIENER, and PARKER, Circuit Judges.
PER CURIAM:*
Oliver filed a complaint in the district court to set aside
the Commissioner's decision that he was not disabled within the
meaning of the Social Security Act (SSA). The district court
granted defendant's motion for summary judgment, finding that there
was substantial evidence to support the Commissioner's decision and
that the decision comported with all relevant legal standards.
Finding no error, we affirm.
*
Local Rule 47.5 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should not be published.
I. FACTS
Roger S. Oliver, Sr. filed an application for disability
insurance benefits and supplemental social security income alleging
that he was disabled from December 13, 1991, as a result of a heart
attack, high cholesterol, and arthritis in his upper back and arms.
The application was denied originally and upon reconsideration.
Following a de novo hearing an Administrative Law Judge (ALJ)
determined that Oliver was not disabled within the meaning of the
SSA because he could perform a full range of medium work. The
Appeals Council denied his request for review of the ALJ's decision
and that decision became the final decision of the Commissioner.
Oliver filed a complaint in the district court to set aside
the Commissioner's decision. The district court granted the
Commissioner's motion for summary judgment because it determined
that there was substantial evidence in the record to support the
Commissioner's decision that Oliver is not disabled.
II. DISCUSSION
This court reviews the Commissioner's decision to determine
whether there is substantial evidence in the record to support the
Commissioner's decision and whether the Commissioner applied the
proper legal standards. Spellman v. Shalala, 1 F.3d 357, 360 (5th
Cir. 1993). Substantial evidence is that evidence which is
relevant and sufficient for a reasonable mind to accept as adequate
to support a conclusion. Id. "[N]o substantial evidence will be
found only where there is a conspicuous absence of credible choices
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or no contrary medical evidence." Harrell v. Bowen, 862 F.2d 471,
475 (5th Cir. 1988) (internal quotations and citation omitted).
The ALJ must apply the five-step sequential process outlined
in Social Security Regulation No. 16 to determine whether an
individual is disabled. See 20 C.F.R. §§ 404.1520(b)-(f),
416.920(b)-(f). A finding that a claimant is not disabled at any
point within the five-step analysis is conclusive and terminates
the inquiry. Lovelace v. Bowen, 813 F.2d 55, 58 (5th Cir. 1987).
The ALJ determined at step five that Oliver had the residual
functional capacity to perform the full range of medium work and,
therefore, the Medical-Vocational Guidelines indicated that he was
not disabled within the meaning of the SSA. See Anderson v.
Sullivan, 887 F.2d 630,632-34 (5th Cir. 1989).
Medical-Vocational Guidelines
Oliver argues that the ALJ improperly relied on the Medical-
Vocational Guidelines to determine that he was not disabled because
he suffers from nonexertional limitations, including pain, fatigue,
and shortness of breath, which prevent him from doing the full
range of medium work. He contends that, as a result of his
nonexertional limitations, the ALJ was required to obtain the
testimony of a vocational expert to determine whether he was
disabled.1
1. The Commissioner contends that Oliver argues for the
first time on appeal that the ALJ should have received testimony
from a vocational expert. Oliver made this argument in his
motion for summary judgment filed in the district court.
3
The ALJ may rely exclusively on the guidelines to determine
whether there is other work available that a claimant can perform
if the claimant's characteristics correspond to the criteria in the
guidelines and the claimant's nonexertional impairments do not
significantly affect his residual functional capacity. Selders v.
Sullivan, 914 F.2d 614, 618 (5th Cir. 1990). The ALJ found that
Oliver had no nonexertional limitations because his testimony
regarding the extent of his pain, fatigue, and shortness of breath
was not credible. The record supports the ALJ's determination.
The medical records indicate that on December 14, 1991, Oliver
sought medical treatment at Allen Parish Hospital for a myocardial
infarction. The x-rays revealed that he had borderline
cardiomegaly. His heart was within the upper limits of normal and
his lungs were essentially clear. He was transferred to St.
Patrick Hospital and a Bruce Protocol stress test revealed mild
chest tightness with exercise, no arrhythmias, and decreased
functional capacity. A successful angioplasty was performed, and
Oliver was diagnosed with triple vessel coronary artery disease
with moderate impairment of left ventricular function consisting of
posterior akinesis.
Oliver had another Bruce Protocol stress test administered on
March 24, 1992. The test was negative for coronary ischemia and
indicated no dysrhythmia. Oliver did not experience any chest
discomfort and maintained average functional capacity. A
subsequent stress test administered on May 6, 1992 revealed no
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significant changes in the EKG or angina, no arrhythmias, and good
functional aerobic capacity.
Dr. Stagg, a consulting physician, examined Oliver on January
18, 1993. Dr. Stagg indicated that as a result of his examination
and review of a stress test administered the previous month, he
could not explain Oliver's symptomatology. A final stress test
administered on October 4, 1993, revealed no exercise induced chest
pain or arrhythmias and no diagnostic EKG changes with exercise.
The two residual physical functional capacity assessments completed
in February and April 1993 indicated that Oliver had the capacity
to do the full range of medium work.
At the administrative hearing Oliver testified that his
doctors had placed no significant restrictions on his activities.
Although he stated that he gets tired more quickly than he should,
he also testified that he walks three miles per day or uses the
stairstepper when the weather is bad. He also stated that he could
go fishing and deer hunting. He currently rests for two hours a
day, but probably could get by on less rest.
This evidence is sufficient to support the ALJ's determination
that Oliver's subjective complaints of pain, fatigue, and shortness
of breath were not credible. See Moore v. Sullivan, 919 F.2d 901,
904 (5th Cir. 1990) (the ALJ is entitled to determine the
credibility of witnesses). The ALJ properly relied on the Medical-
Vocational Guidelines.
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Past Relevant Work
Oliver also argues that the ALJ failed to consider the
physical and mental demands of his past relevant work as a semi-
skilled construction worker.2 The ALJ found that Oliver was unable
to perform his past relevant work, and, therefore, even if the ALJ
failed to make particular findings, any error would be harmless.
See Mays v. Bowen, 837 F.2d 1362, 1364 (5th Cir. 1988) (this court
will not vacate a judgment unless the substantial rights of a party
have been affected).
Semi-skilled versus Unskilled Work
Finally, Oliver argues that the ALJ applied the incorrect
guideline because he classified his past-relevant work as unskilled
but his previous work was semi-skilled. The ALJ applied Rule
203.03 to determine that Oliver was not disabled. See 20 C.F.R.
Pt. 404, Subpt. P, App. 2, table no. 3. This rule identifies past
relevant work as unskilled. Assuming Oliver's contention that his
past relevant work was semi-skilled is correct, Rules 203.04 and
203.05 would mandate the same finding. See id. Therefore, any
error in the ALJ's use of Rule 203.03 was harmless, and a remand
would be an unnecessary use of judicial resources. See Mays, 837
F.2d at 1364.
2 The Commissioner again contends that Oliver failed to
present this issue in the district court. This argument was
presented to the district court in Oliver's supplemental reply
memo.
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III. CONCLUSION
For the reasons discussed above, the judgment of the district
court is AFFIRMED.
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