* 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this opinion should not be published and is not precedent except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.

United States Court of Appeals

Fifth Circuit

FILED

June 2, 2005

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 04-50772

Summary Calendar

 

STARLENE J. SARABIA,

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

USDC No. 4:03-CV-108

--------------------

Before REAVLEY, JOLLY, and HIGGINBOTHAM, Circuit Judges.

PER CURIAM:*

Starlene Sarabia appeals the judgment affirming the denial

of her application for social security disability benefits. We

review the denial of disability benefits “only to ascertain

whether (1) the final decision is supported by substantial

evidence and (2) whether the Commissioner used the proper legal

standards to evaluate the evidence.” Newton v. Apfel, 209 F.3d

448, 452 (5th Cir. 2000). “Substantial evidence is such relevant

evidence as a reasonable mind might accept to support a
No. 04-50772

-2-

conclusion. It is more than a mere scintilla and less than a

preponderance.” Id. (internal quotations and citation omitted). 

Sarabia argues that the administrative law judge’s

assessment of her residual functional capacity is not supported

by substantial evidence because the administrative law judge 

mis-characterized the degree of the mental limitations indicated

in the psychological consultative report. She argues that

because the psychologist reported that she had only a “fair”

ability with respect to certain assessments, and because the term

“fair” is defined in the report as meaning that “the ability to

function in this area is seriously limited but not precluded,”

the administrative law judge could not determine that her mental

impairments were not severe without obtaining testimony from a

vocational expert. 

The use of a vocational expert is discretionary. See

20 C.F.R. § 404.1566(e). However, if the claimant suffers from

nonexertional impairments, or a combination of exertional and

nonexertional impairments which significantly affect his RFC, the

Commissioner must rely on a vocational expert to establish that

suitable jobs exist in the economy. Newton, 209 F.3d at 458;

Loza v. Apfel, 219 F.3d 378, 399 (5th Cir. 2000). 

Research reveals no authority supporting Sarabia’s assertion

that the psychologist’s “seriously limited” findings mandated a

finding that her RFC was “significantly affected” by

nonexertional impairments, thus requiring the testimony of a
No. 04-50772

-3-

vocational expert. Moreover, the ALJ properly considered other

evidence in the record that conflicted with Sarabia’s

interpretation of the “fair” notations made on the medicalassessment form. “Conflicts in the evidence are for the

[Commissioner] and not the courts to resolve.” Newton, 209 F.3d

at 452. Finally, we note that Sarabia asserts that her argument

is not that she “was disabled, per se,” but rather that the ALJ

erred in finding no disability without obtaining the testimony of

a vocational expert. “This [c]ourt will not reverse the decision

of the ALJ for failure to fully and fairly develop the record

unless the claimant shows that he or she was prejudiced by the

ALJ’s failure.” Carey, 230 F.3d at 142. The judgment affirming

the denial of disability benefits is AFFIRMED.