* Pursuant to 5 TH C IR

. 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should not be published and is not precedent except under the limited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 5 TH C IR . R. 47.5.4. United States Court of Appeals

Fifth Circuit



## FILED

August 9, 2004

Charles R. Fulbruge III

Clerk UNITED STATES COURT OF APPEALS

for the Fifth Circuit

No. 03-30873

BILLIE J. HARPER,

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 Louisiana

02-CV-869

Before HIGGINBOTHAM, DAVIS and EMILIO M. GARZA, Circuit Judges,

PER CURIAM: *

On October 26, 1998, Billie J. Harper (“Harper”) filed an

application for disability b enefits. Harper requested benefits

relating back to the date a knee injury and heart condition forced

him to quit his work as a self-employed, drilling a nd work over

consultant. He was 57. The Commissioner of Social Security2

(“Commissioner”) denied his application initially and upon

reconsideration. Harper requested and was granted a hearing before

an administrative l aw judge (“ALJ”) to appeal the Commissioner’s

ruling. The hearing was held on January 12, 2000.

On May 19, 2000, the ALJ issued an opinion finding that Harper

was not disabled. The ALJ found that 1) Harper had not engaged in

gainful activity since September 22, 1997, 2) Harper was of

advanced age, 3) Harper had no transferrable skills, 3) Harper was

able to lift 50 pounds occasionally and 25 pounds frequently, 4)

Harper was unable to climb, kneel, squat, and could not push or

pull using his left leg, 5) Harper could sit for eight hours in an

eight hour da y but could stand for only thirty minutes at a time

for up to two hours in an eight hour day, and 6) Harper had a high

school education and vocational training. At step five of the

disability analysis, the ALJ determined that Harper could perform

medium work and was therefore able to perform work found in

significant numbers in the nati onal economy, i.e. Harper was not

disabled. Harper appealed that decision to the district court.

The district court affirmed the ALJ’s judgment based upon a report

and rec ommendation from the magistrate. Harper now appeals the

district court judgment to this court.

Harper complains that the ALJ erred in finding that he was

capable of medium work and thus able to perform work available in

significant numbers in the national economy. He asserts that his

advanced age, lack of transferrable skills, and limited education1 On April 6, 2000 the regulations were changed slightly to be more specific

about when those of advanced age are still able to work despite impairments. 20

C.F.R. § 404.1568(d)(4) (2004). We do not comment on these current regulations

since both parties are in agreement that the prior regulations should be applied.

3 should dictate a finding of disability.

Under federal regulations in place at the time Harper applied

for social security benefits, severely impaired individuals over

the age of 55 are considered disabled unle ss they are able to

perform medium work or hav e skills that could be used in less

demanding jobs:

Person of Advanced Age. We consider that advanced age

(55 or over) is the point where age significantly affects

a person’s ability to do substantial gainful activity.

If you are severely impaired and of advanced age and you

cannot do medium work . . . you may not be able to work

unless you have skills that can be used in (transferred

to) less demanding jobs which exist in signifi cant

numbers in the national economy.

20 C.F.R. § 404.1563 (1999). 1

The ALJ’s conclusion of “not disabled” was bas ed upon a

finding that Harper was capable of performing medium work:

The claimant can lift and carry 50 pounds occasionally

and 25 pounds frequently. The claimant can sit for eight

hours in an eight-hour day. The claimant can also stand

and walk for thirty minutes at a time for a total of two

hours in an eight-hour day. The claimant, however,

cannot climb, kneel or squat. In addition, the claimant

cannot push or pull using his left lower extremity.

* * *

Based on an exertional capacity for work, and the

claimant’s age, education, and work experience, medicalvocational rule 203.15, used as a framework for decision

making, justifies a conclusion of “not disabled.”2 “The Social Security Administration's rulings are not binding on this court,

but they may be consulted when the statute at issue provides little guidance

. The Fif th Circuit has frequently relied upon the rulings in evaluating ALJs'

decisions.” M

yers v. Apfel

, 238 F.3d 617, 620 (5 t h Cir. 2001) (citations

omitted).

4 ALJ Opinion , at 10, 11.

The ALJ’s conclusion is flawed, however, because the ALJ’s

evaluation of Harper’s residual functional capacities do not allow

a finding that he i s capable of medium work. While federal

regulations define the ability to do medium work as simply the

ability to lift 50 pounds occasionally and 25 pounds frequently, 20

C.F.R. § 404.1567(c), social security rulings interpreting that

r egulation dictate that “[a] full range of medium work requires

standing or walking, off and on, for a total of approximately 6

hours in an 8-hour workd ay in order to meet the requirements of

freq uent lifting or carrying objects weighing up to 25 pounds.”

Social Securit y Ruling 83-10, T itles II and XVI: Determining

Capabi lity to do Other Work--The Medical-Vocational Rules of

Appendix 2. 2 The ALJ’s determination that Harper cannot walk or

stand more than two hours in an eight-hour workday mandates the

conclusion that he is not capable of the full range of medium work.

As such the ALJ’s finding of “not disabled” based upon 20

C.F.R. § 404.1563(d) and 20 C.F.R. Pt. 404, Subpt. P, App. 2, §

203.15 is not appropriate. Accordingly we reverse and remand for

a more specific evaluation of Harper’s level of exertional capacity

and ability to perform work present in significant numbers in the5

national economy given his skills and education.

REVERSE and REMAND.