IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 95-50042

(Summary Calendar)

ARTURO S. MARTINEZ,

Plaintiff-Appellant,

versus

SHIRLEY S. CHATER,

Commissioner of Health

and Human Services,

Defendant-Appellee.

Appeal from the United States District Court

for the Western District of Texas

(July 10, 1995)

Before DUHÉ, WIENER and STEWART, Circuit Judges.

PER CURIAM:

Plaintiff-Appellant Arturo S. Martinez appeals from the

district court's affirmance of the Commissioner's affirma nce of

denial of Social Security ben efits to Martinez pursuant to

42 U.S.C. § 405(g). On appeal Martinez insists that a remand to

the district court for an evidentiary hearing is necessary and that

the Commissioner's determinat ion is not supported by substantial2

evidence. Finding frivolous the suggestion that a remand for

adducing additional evidence is necessary, and finding substantial

evidence in the record to support the Commissioner's decision, we

affirm the rulings of the district court.

I

FACTS AND PROCEEDINGS

Martinez applied for disability benefits and Supplemental

Security Income in January 1992, alleging that he had been disabled

since November 7, 1991, due to diabetes, a hernia, and kidney and

stomach problems. The Commissioner concluded that Martinez was not

disabled and denied relief. The Commissioner also denied Martinez'

request for reconsideration.

A hearing was held before an administrative law judge (ALJ) on

March 6, 1993, at which Martinez was represented by counsel, and at

which Martinez, his daughter, a medical expert, a nd a vocational

expert testified. At the conclusion of the hearing, the ALJ

referred Martinez to an internist for a consultative examination.

After reviewing the additiona l evidence, the ALJ determined that

Martinez was not disabled within the meaning of the Social Security

Act (the Act). The Appeals Council denied Martinez' request for

review, a nd the decision of the ALJ became the final decision of

the Commissioner under 42 U.S.C. § 405(g).

Martinez filed suit in the district court seeking judicial

review of the Commissioner's decision. The Commissioner answered

the complaint and both parties filed briefs. The magistrate judge

recommended that the complaint be dismissed, finding substant ial3

evidence to support the Commissioner's determination that Martinez

w as not disabled. After a de novo review, the district court

adopted the magistrate judge's fact ual findings and legal

conclusions, overruled Martinez' objections to the recommendation,

and dismissed the complaint. This appeal ensued.

II

ANALYSIS

A. Legal Background

Appellate review of the Commissioner's denial of disability

benefits is limited to determining whether (1) the decision is

supported by substantial evidence and (2) proper legal standards

were used to evaluate the evidence. V illa v. Sullivan

, 895 F.2d

1019, 1021 (5th Cir. 1990). If the Commissioner's findings are

supported by substantial evidence, then the findings are conclusive

and the Commissioner's decision must be affirmed. 42 U.S.C.

§ 405(g); Richardson v. Perales

, 402 U.S. 389 , 390 (1971).

"Substantial evidence is more than a scintilla, less than a

preponderance, and is such relevant evidence as a reasonable mind

might accept as adequate to support a conclusion." V illa

, 895 F.2d

at 1021-22 (internal quotations and citations omitted).

In evaluating a disability claim, the Commissioner must follow

a five-step sequent ial process to determine whether (1) the

claimant is presently working; (2) the claimant's ability to work

is significantly limited by a physical or mental impa irment;

(3) the claimant's impairment meets or equals an impairment listed

in the appendix to the regulations; (4) the impairment prevents the1 Dr. Daily also recommended follow-up psychological or

psychiatric testing if the medical evaluation revealed no problems.

Although th is testing apparently never took place, Martinez does

not suggest that the failure to evaluate his mental condition was

error. Accordingly, this issue is waived. B rinkmann v. Abner

,

4 claimant from doing past relevant work; and (5) the claimant cannot

presently perform relevant work. S ee Muse v. Sullivan

, 925 F.2d

785, 789 (5th Cir. 1991); 20 C.F.R. § 404.1520. In this case, at

the fourth step of the sequential evaluation process, the ALJ found

that Martinez could perform his past relevant work.

We weigh four elements of proof when determining whether there

is substantial evidence of disability: (1) objective medical

facts; (2) diagnoses and opinions o f treating and examining

physici ans; (3) the claimant's subjective evidence of pain and

disability; and (4) his age, education, and work history.

Wren v. Sullivan , 925 F.2d 123, 126 (5th Cir. 1991). We may not,

however, reweigh the evidence or try the issues de novo. Cook v.

Heckler

, 750 F.2d 391, 392 (5th Cir. 1985). The Commissioner,

rather than the courts, must resolve confli cts in the evidence.

See Patton v. Schweiker , 697 F.2d 590, 592 (5th Cir. 1983).

B. Necessity of Remand

Martinez suggests that a remand i s required because the

consultative medical examination ordered by the ALJ failed to

include blood tests and x-rays suggested by the medical expert. At

the hearing, medical expert Dr. William Daily recomme nded that

Martinez have a follow-up examination which should in clude a

complete blood count, SMA-20 blood chemistry tests, and chest xr ays. 1 Dr. Gregory Moore's subsequent consultative medical813 F.2d 744, 748 (5th Cir. 1987); see Fed. R. App. P. 28(a)(5).

5 examination included these tests; therefore, Martinez' argument is

frivolous.

Martinez also suggest s that the case should be remanded so

that he can have a stress test and arteriogram. The suggestion is

frivolous too. Dr. Daily did not state that these tests were

necessary to evaluate Martinez' condition.

C. Evidence of Disability

Age, Education, and Work History

Martinez was 52 years old when the hearing was held. He has

only a first-grade ed ucation and is not fluent in English. His

past employment experience includes work as a machine sander and a

fruit picker. Both occupations are considered medium work.

Subjective Evidence

Martinez testified that he is always very tired and his back

and legs hurt; that his legs are numb when he fir st wakes in the

morning; that his sho ulders hurt; and that he frequently becomes

dizzy and drowsy from his diabetes. According to Martinez, his

doctor has told him that if his "sugar does not go down," he will

have to take insulin shots. He stated that he has to get up to go

to the bathroom approximately eight tim es a night; that he

sometimes has blurry vision and problems breathing ; and that he

takes pills for chest pain and has problems with his bladder

leaking.

Martinez grocery shops while his grandson pushes the cart. It

hurts his back to bend and his hands are stiff, but he can perform6

small motor tasks. He stated that he washes dishes, mops and

sweeps, cleans the bathroom, and cooks. He spends most of his days

watching TV and resting.

Martinez' daughter, Rose Mary Pantoja, testified that Martinez

used to b e a hard worker who maintained his yard and car, but he

can no longer do this because of his back. Ms. Pantoja and other

members of her family do her parents' heavy housework and yard work

because Mr. and Mrs. Martinez are unable to do it themselves.

Objective Medical Facts

It is undisputed that Martinez suffers from non- insulin

dependent diabetes and arthritis of the spine. The extent of his

impairment from these conditions is disputed.

Physicians' Opinions

At the hearing, Martinez introduced a report dated September

1, 1992, from Dr. Yeung Chan, his treating physician, which stated

that Martinez was unable to perform any type of work b ecause he

suffered from severe arthritis of the spine. Dr. Chan's records

cited a December 9, 1991, x-ray indicat ing degenerative spinal

arthritis, but the x-ray was not submitted with his report.

D r. Chan's notes also indicated that Martinez suffered from

diabetes melitis.

Martinez also introduced a rep ort of a consultative

examination performed on March 16, 1992, by Dr. Kenneth L. Long,

which stated that Martinez suffered from:

1. Alleged diabetes without documentation. No

laboratory data requested. The patient is on

no medication for this problem.7 2. Alleged low back problems without

physical or x-ray findings of

significance.

3. Alleged stomach problems (mainly

abdominal bloating and bowel gas)

without documentation.

Dr. Long noted that x-ray s revealed "normal (spinal) alignment,

normal disc spaces, and

. . . joints

. . . wi thin normal limits.

Processes are intact. There are . . . small anterior marginal

osteophytes at L3 and L4 but the lumbar spine is otherwise within

normal limits."

B efore Martinez testified, the medical expert, Dr. Daily,

expressed his opinion that, altho ugh there was "some conflict in

the medical evidence," Martinez' medical records indicated that he

could perform medium work. After Martinez testified, Dr. Daily

qualified his opinion by stating that, considering Martinez'

testimony as credible, additional medical tests would be required

to determine whether Martinez was capable of medium work.

Dr. Daily stated that Martinez' medical records w ere

sufficient for him to express a confide nt opinion as to all of

Martinez' claimed impairments except hi s complaints of fatigue.

Dr. Daily opi ned that Martinez' diabetes could not cause the

extreme symptoms of chronic fatigue that Martinez des cribed.

Dr. Daily suggested that Martinez be referred for a consultative

examination to determine whether he suffered from chronic fatigue

syndrome. Dr. Daily found no musculoskeletal disability or

indication of a coronary problem. In response to questions by

Martinez' attorney, Dr. Daily qua lified his prior testimony by8

agreeing that Martinez' diabetes could be partially responsible for

his complaint s of fatigue and poor bladder control; however,

Dr. Daily indicated that further testing would be required to

resolve the issue.

Dr. Moore performed a consultative medical exam which included

the tests recommended by Dr. Daily. Dr. Moore reported that

Martinez suffered from arthritis of the spine but that he had

"no significant physical abnormalities nor evidence of functional

limitations . . . ." He further reported that, although Martinez

had a history of non-insulin dependent diabetes with a history of

poor control, Dr. Moore found no evidence of end organ damage due

to the diabetes.

Based on his examination, Dr. Moore determined that Martinez

had no impediments to his ability to lift, carry, stand, walk, or

sit; that he could climb, crouch, kneel, and craw l occasionally;

and that he had no other limitations on his work-related

activities. This determination supports the ALJ's finding that

Martinez could perform his past relevant work as a sander or fruit

picker.

Without discussing the results of the follow-up consultative

medical e xamination, Martinez cites Dr. Daily's statement at the

hearing that he would not "send [Martinez] out today to do medium

work," arguing that there is "no evidence" to show that Martinez

can perform mediumwork. Martinez misses the point and

misconstrues Dr. Daily's statement. Dr. Daily did not state that

Martinez was incapable of medium work; he stated that without9

further testing he could not determine whether Martinez was capable

of medium work. Thus, Martinez' argument that there is no evidence

to support the finding of no disability is incorrect.

Martinez also i nsists that the district court erred by

disregarding the evidence of his treating physician, Dr. Yeung

Chan. Although not conclusive, an evaluation by the claimant's

treating physician should be accorded great weight. Greenspan v.

Shalala

, 38 F.3d 232, 237 (5th Cir. 1994), cert. deni ed , No. 94-

8717, 1995 WL 156211 (U.S. May 15, 1995). A treating physician's

opinion on the nature and severity of a patient's impairment will

be given controlling weight if it is "well-supported by medically

acceptable clinical and laboratory diagnostic techniques and is not

inconsistent with

. . . other substantial evidence." 20 C.F.R.

§ 404.1527(d)(2). Even though the opinion and diagnosis of a

treating physician should be afforded considerable we ight in

determining disability, "the ALJ has sole responsibility for

determining a claimant's disability status." M oore v. Su llivan

,

919 F.2d 901, 905 (5th Cir. 1990). "`[T]he ALJ is free to reject

the opinion of any physician when the evidence supports a contrary

conclusion.'" B radley v. Bowen

, 809 F.2d 1054, 1057 (5th Cir.

1987) (citation omitted).

Dr. Chan's opinion that Martinez is totally disabled is not

entitled to controlling weight because Dr. Chan failed to provide

a med ical explanation for his opinion, and because Dr. Chan's

opinion is inconsistent with the opinions of Drs. Long and Moore,

which were based on clinical test results.10

As substantial evidence supports the determination that

Martinez is not disabled, the Commissioner's decision must stand.

42 U.S.C. § 405(g); Richardson

, 402 U.S. at 390; Villa

, 895 F.2d at

1021-22.

AFFIRMED.