*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 R. 47.5, the Court has determined that this opinion should not be published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

For the Fifth Circuit

No. 96-11350

DOROTHY J. HAMBRICK,

Plaintiff-Appellant,

VERSUS

KENNETH S. APFEL, Commissioner of Social Security,

Defendant-Appellee.

Appeal from the United States District Court

For the Northern District of Texas

(4:95-CV-435-A)

November 6, 1997

Before WISDOM, SMITH, and DEMOSS, Circuit Judges.

PER CURIAM:*

Dorothy J. Hambrick appeals from the district court decision affirming the Commissioner of

Social Security’s (the Commissioner) denial of her application for social security disability benefits.

We find that the Commissioner’s decision is not supported by substantial evidence. Therefore, we

reverse the district court’s decision and remand for additional proceedings.

I.

Hambrick filed her application in July of 1991, alleging that she was disabled and unable to
 

2 Ripley v. Chater, 67 F.3d 552, 555 (5th Cir. 1995).

 

3

See 20 C.F.R. § 404.1520.

 

4

20 C.F.R. § 404.1520; Leggett v. Chater, 67 F.3d 558, 563-4 n.3 (5th Cir. 1995).

2

performher job as a grocery store meat packer due to bilateral carpal tunnelsyndrome, bilateral ulnar

nerve compression, and arthritis and pain in both feet. The Commissioner denied Hambrick’s

application initially and upon reconsideration. The case was referred to an administrative law judge

(ALJ) who also found Hambrick not disabled. Hambrick appealed to the district court.

Hambrick’s case was referred to the magistrate judge for review. The magistrate found that

the ALJ’s denial of benefits was not supported by substantial evidence. There was insufficient

evidence to conclude that there were a significant number of jobs in the national economy that

Hambrick could perform. The magistrate recommended that the case be remanded for further

consideration. The district court disagreed with the magistrate and found the ALJ’s decision

supported by substantial evidence. Hambrick appeals. We review the denial of disability benefits to

determine whether the ALJ’s decision is supported by substantial evidence and whether the ALJ

employed the correct legal standards.2 

II.

To determine whether a claimant is disabled, the Commissioner employs a five step analysis.3

The Commissioner must determine: (1) whether the claimant is currently working, (2) whether the

claimant has a severe impairment, (3) whether the impairment islisted or equivalent to an impairment

listed in appendix 1 of the socialsecurity disability regulations, (4) whether the impairment prevents

the claimant from performing past relevant work, and (5) whether the impairment prevents the

claimant from performing any other substantial gainful activity.4 The claimant bears the burden of
 

5 Leggett, 67 F.3d at 564.

 

6

Id.

 

7

20 C.F.R. § 404.1561.

 

8 Hambrick argues that the ALJ erred in rejecting the opinion of Dr. Roybal, her treating

physician, who stated that Hambrick was unable to performany substantial gainful activity. The ALJ

may reject the opinion of a treating physician if it is not adequately supported by the record as a

whole. Spellman v. Shalala, 1 F.3d 357, 364-5 (5th Cir. 1993). Dr. Roybal’s statements

contradicted both his earlier and subsequent evaluations of Hambrick’s condition as well as the

evaluations of other treating physicians. The ALJ was justified in rejecting this inconsistent

statement.

Hambrick also argues that the ALJ erred in finding Hambrick’ssubjective complaints of pain

to be exaggerated. Subjective complaints of pain must be supported by objective medical evidence.

Anthony v. Sullivan, 954 F.2d 289, 295-6 (5th Cir. 1992). Although the medical evidence showed

3

proof to show a disability through the first four steps of the inquiry.5 The Commissioner bears the

burden of proof at the fifth step.6 

In the present case, the ALJ found that Hambrick neither is nor was capable of performing

her past position as a grocery store meat packer due to a severe impairment. The ALJ also found that

Hambrick did not suffer from a “listed disability”. The ALJ denied Hambrick’s application for

disability benefits, however, because the ALJ found that there is a significant number of jobs in the

national economy that Hambrick could perform. Only the finding at step five of the inquiry is at issue

in this appeal.

At step five, the Commissioner must assess the claimant’s residual functional capacity to do

work as well as the jobs available for someone with that functional capacity.7 First, based upon the

reports of Dr. Zehr, Dr. Luedke, and Dr. Roybal, the ALJfound that Hambrick’s ability to work was

restricted by the necessity of a sit / stand work option, limited bimanual dexterity, and an inability to

perform repetitive arm and hand movements. These findings are supported by substantial evidence.8
that Hambrick suffered from a condition that limited her ability to work, the ALJ did not err by

rejecting Hambrick’s subjective complaints because those complaints went beyond this medical

evidence accepted by the ALJ.

 

9

Smith v. Schweiker, 646 F.2d 1075, 1081 (5t h Cir., Unit A 1981). The vocational expert

agreed that such an individual would be unemployable.

 

10 Fields v. Bowen, 805 F.2d 1168, 1170 (5th Cir. 1986).

 

11 Id.

4

 Next, the ALJ found that Hambrick retained the residual functional capacity to perform

sedentarywork limited bythe previously-mentioned impairments. Hambrick’s physicians agreed that

she was capable of performing certain non-repetitive tasks. But, a claimant is unable to perform even

sedentary work if she is unable to work an entire day without taki ng frequent breaks.9 Hambrick

argues that she cannot work a full day without taking an exceptional number of rest periods. The

ALJmade no finding on this point. Without such a finding, we conclude that the ALJ’s determination

that Hambrick can perform sedentary work is not supported by substantial evidence.

The ALJ also found that Hambrick was capable of obtaining gainful employment. To meet

his burden on this point, the ALJ must produce expert vocational testimony to show that the claimant

is capable of performing a significant number of jobs in the national economy.10 The testimony of a

vocational expert is important because the expert is familiar with the specific requirements of

particular occupations and can compare the claimant’s condition with the demands of those jobs.11

The vocational expert testified that a younger person with Hambrick’s physical impairments could

perform approximately 30% of the 200 unskilled sedentary jobsidentified by the Secretary of Health

and Human Services. Among these jobs were some cashier and clerk positions. The vocational

expert did not testify asto all the positions Hambrick could perform or the number of those positions
 

12 The vo cational expert gave a few examples of jobs that Hambrick could perform. These

included cashier, phone order clerk, charge account clerk, and information clerk.

 

13 The district court erroneously found that there were 321,700 people employed in positions

that Hambrick could perform. The document upon which the district court relied actually referred

to “a wide range of light work”, not sedentary work meeting the limitations under which Hambrick

suffered. Furthermore, the specific jobs listed were different than the ones that the vocational expert

found Hambrick could perform.

 

14

See 42 U.S.C. § 405(g); Campbell v. Shalala, 988 F.2d 741, 745 (7th Cir. 1993) (finding that

it is appropriate for the Commissioner to consider additional evidence in a case remanded pursuant

to sentence four of 42 U.S.C. 405(g)).

5

available.12 There is insufficient evidence of the number of jobs available that Hambrick could

perform.13 Therefore, the ALJ’s finding that there are a significant number of jobs in the economy

that Hambrick could perform is not supported by substantial evidence.

III.

We REVERSE the decision of the district court and REMAND this case for further

proceedings consistent with this opinion, including the presentation of additional evidence where

necessary.14