* Local Rule 47.5.1 provides: "The publication of opinions that have

no precedential value and merely decide particular cases on the basis of wellsettled 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opinion should not be published.

 

1 42 U.S.C. §§ 401-433, 1381-1383c (1988).

UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

_______________

No. 95-50059

(Summary Calendar)

_______________

REGINALD SWIST, JR.,

Plaintiff-Appellant,

versus

SHIRLEY S. CHATER, COMMISSIONER,

SOCIAL SECURITY ADMINISTRATION

Defendant-Appellee.

_______________________________________________

Appeal from the United States District Court

For the Western District of Texas

(94 CV 79)

_______________________________________________

August 25, 1995

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

PER CURIAM:*

Reginald Swist, Jr., applied for disability insurance benefits

and supplemental security income under Titles II and XVI,

respectively, of the Social Security Act.1 He appeals the district

court's affirmance of the final decision of the Commissioner of
 

2 Effective March 31, 1995, the Secretary of Health and Human Services

transferred to the Commissioner of Social Security "all functions . . . with

respect to or in support of the programs and activities the administration of

which is vested in the Social Security Administration." Social Security

Independence and Program Improvements Act of 1994, Pub. L. No. 103-296, § 105(a),

108 Stat. 1464 (1994).

 

3 Swist obtained the neurological examination from Dr. Cain, a

disinterested physician, at the direction of the ALJ.

-2-

Social Security ("Commissioner")2 to accept the determination of an

administrative law judge ("ALJ") that Swist was not disabled. We

affirm.

I

Swist applied for supplemental security income based on

disability, alleging diabetes, a bad ankle, and eye problems. The

Social Security Administration ("SSA") denied Swist's application

on the grounds that medication could sufficiently control his

disorders and allow him to engage in substantial gainful activity.

The SSA also denied his application on reconsideration. Swist then

requested a hearing before an ALJ.

Swist's medical records at the time of the hearing indicated

that he had arthritis in his foot, ankle, and knee, which required

him to use crutches outdoors and a cane indoors. He also suffered

from glaucoma, heart pain, sinus problems, and had a ten-year

history of treatable diabetes. At the hearing, Swist complained of

frequent blackouts, an inability to sleep throughout the night,

exhaustion during the day, and lack of strength in both hands. A

neurological examination by Dr. Cain3 revealed that: Swist's

triglyceride level was very elevated, he could not walk on the toes

and heel of his right foot, he had a limping gait on his right
 

4 Tinel's sign indicates a partial lesion or the beginning regeneration

of the nerve. Dorland's Illustrated Med. Dictionary 1526 (27th ed. 1988).

-3-

side, he lacked reflexes in the right quadriceps and both Achilles

tendons, he had a positive Tinel's sign over the right median nerve

at the wrist,4 and he had some decrease in his right grip. Dr.

Cain concluded that Swist suffered from diabetes mellitus, obesity,

hypertension, status post fracture of the right ankle, and

recurrent headaches. Dr. Cain also suggested that Swist should

have a CAT scan to evaluate his headaches and a nerve conduction

study to rule out carpal tunnel syndrome. The records do not show

whether Swist ever pursued the testing. Based on his diagnosis,

Dr. Cain limited Swist to lifting no more than fifty pounds for not

more than two-thirds of the time during a normal work day. He also

limited Swist to standing and walking no more than one hour without

interruption and six hours maximum during a normal work day.

Lastly, he limited climbing, balancing, stooping, crouching,

kneeling and crawling, and working at heights due to ankle

instability. He found no other impairment of physical functions.

Following the hearing, the ALJ made several findings. First,

the ALJ found that Swist was forty-one years old, six feet tall,

and weighed 304 pounds. Second, the ALJ found that Swist had a

high school education and had worked as a diesel mechanic all his

working life, but that he had not engaged in substantial gainful

activity for two years and was unable to perform his past relevant

work as a mechanic. Third, the ALJ also found that Swist's

impairments failed to equal medically those impairments that the
 

5 20 C.F.R. § 404.1525 (1994); id. Pt. 404, Subpt. P, app. 1. The

Secretary evaluates the claimant's medical evidence to determine if the claimant

has such an impairment or a condition equivalent to those listed in the appendix.

20 C.F.R. § 404.1526. If the Secretary determines that a claimant does not have

a severe impairment that would warrant a finding of disability, the Secretary may

consider the impact of other related symptoms, such as pain. Id. § 404.1529.

 

6 The regulations define "sedentary work" as follows: 

Sedentary work involves lifting no more than 10 pounds at a time and

occasionally lifting or carrying articles like docket files,

ledgers, and small tools. although a sedentary job is defined as one

which involves sitting, a certain amount of walking and standing is

often necessary in carrying out job duties. Jobs are sedentary if

walking and standing are required occasionally and other sedentary

criteria are met.

20 C.F.R. § 416.967(a).

 

7 The medical-vocational guidelines, 20 C.F.R. Pt. 404, Subpt. P, app.

2, assist the Secretary in making a determination on a claim of disability by

providing tables that compare various vocational factors (i.e., age, education,

and work experience) against an individual's capability for work (i.e.,

sedentary, light, medium, heavy, or very heavy work) to determine if a claimant

is able to engage in substantial gainful work other than that work in which the

claimant has previously engaged. The guidelines direct a finding of "disabled"

or "not disabled." Id.

The regulations define Swist as a "younger person," See 20 C.F.R.

§ 416.963(b) (defining "younger person" as anyone under the age of 50), and as

having a high school education, id. § 416.964(b)(4). Rules 201.27 and 201.28 of

the guidelines table, 20 C.F.R. Pt. 404, Subpt. P, app. 2, tbl. 1, address

younger individuals with a high school education or better and a residual

functional capacity to do sedentary work. Rule 201.27 covers individuals who

have no work skills, while Rule 201.28 covers individuals who have nontransferable work skills. Id. Because both rules direct the same finding of

"not disabled," id., the ALJ found that the existence and transferability of

Swift's work skills was not material. 

-4-

applicable regulations consider severe enough to prevent a person

from doing any substantial gainful activity.5 Finally, the ALJ

found that Swist's complaints of right ankle pain were credible

only to the extent that Swist could not perform light, medium, or

heavy work, and that he was therefore capable of the full range of

sedentary work as described in the regulations.6 The ALJ applied

the "medical-vocational guidelines"7 and concluded that Swist was

not disabled. The Appeals Council, which reviews ALJ decisions,

denied Swist's request for review, and the decision of the ALJ

became the final decision of the Commissioner.
-5-

Swist then filed a civil action in the district court. A

magistrate judge reviewed the Commissioner's decision and

recommended that the district court vacate and remand it for

further proceedings. The district court declined to adopt the

magistrate judge's recommendation, affirmed the Commissioner's

decision, and dismissed the case. 

 Swist now appeals, arguing that (1) the Commissioner failed

to recognize Swist's lack of right grip strength, his visual

problems, and a diagnosis that he might possibly have carpal tunnel

syndrome, (2) the Commissioner's determination that Swist could

perform the full range of sedentary work was therefore in error,

and (3) her final decision that Swist is not disabled is not

supported by substantial evidence on the record as a whole.

II

Judicial review of a disability claim under 42 U.S.C. § 405(g)

focuses on whether the whole record contains substantial evidence

that supports the Commissioner's findings. Muse v. Sullivan, 925

F.2d 785, 789 (5th Cir. 1991). Substantial evidence "means such

relevant evidence as a reasonable mind might accept as adequate to

support a conclusion." Richardson v. Perales, 402 U.S. 389, 401,

91 S. Ct. 1420, 1427, 28 L. Ed. 2d 842 (1971) (quoting Consolidated

Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S. Ct. 206, 217, 83 L.

Ed. 126 (1938)); see also Anthony v. Sullivan, 954 F.2d 289, 295

(5th Cir. 1992) (applying Richardson). Substantial evidence "must
-6-

be more than a scintilla, but it need not be a preponderance."

Anthony, 954 F.2d at 295; accord Muse, 925 F.2d at 789.

A person is disabled if he is unable "`to engage in any

substantial gainful activity by reason of any medically

determinable physical or mental impairment . . . which has lasted

or can be expected to last for a continuous period of not less than

12 months.'" Muse, 925 F.2d at 789 (quoting 42 U.S.C.

§ 423(d)(1)(A)). In evaluating evidence of disability, the

Commissioner properly used a five-step sequential evaluation

process. See Anthony, 954 F.2d at 293 (noting that the

promulgation of the five-step test was "pursuant to the express

authorization of Congress"). Under that test:

(1) A claimant who is working, engaging in a substantial

gainful activity, will not be found to be disabled no

matter what the medical findings are; (2) a claimant will

not be found to be disabled unless he has a "severe

impairment"; (3) a claimant whose impairment meets or is

equivalent to an impairment listed in Appendix 1 of the

regulations will be considered disabled without the need

to consider vocational factors; (4) a claimant who is

capable of performing work that he has done in the past

must be found "not disabled"; and (5) if the claimant is

unable to perform his previous work as a result of his

impairment, then factors such as his age, education, past

work experience, and residual functional capacity must be

considered to determine whether he can do other work.

Bowling v. Shalala, 36 F.3d 431, 435 (5th Cir. 1994). If at any

stage of the evaluation, the Commissioner finds the claimant to be

either disabled or not disabled, the inquiry is complete. Id.;

accord Anthony, 954 F.2d at 293. 

This case reached the fifth step. The ALJ first found that

Swist "has not engaged in substantial gainful activity since May

15, 1991." The ALJ also found that Swist "has severe post
-7-

traumatic arthritis of the right ankle and obesity, and non-severe

diabetes mellitus, hypertension and glaucoma, but that he does not

have an impairment or combination of impairments listed in, or

medically equal to one listed in Appendix 1, Subpart P, Regulations

No. 4." The ALJ further found that Swist "is unable to perform his

past relevant work as a mechanic." Swist does not challenge the

ALJ's findings on these first four steps. Because of these

findings, Swist established a prima facie case of disability, and

the burden of proof shifted to the Commissioner to show that Swist

can perform other work. Bowling, 36 F.3d at 435; Muse, 925 F.2d at

789.

Swist challenges the ALJ's finding at step five that he "has

the residual functional capacity to perform the full range of

sedentary work," and, therefore, considering Swist's "residual

functional capacity, age, education, and work experience, he is not

disabled." Swist argues specifically that in accepting the ALJ's

finding, the Commissioner failed to consider his weak right grip

strength and his visual problems and therefore erred in determining

that he could perform the full range of sedentary work. 

The record establishes that Swist has some decreased strength

in his right grip and might suffer from carpal tunnel syndrome.

However, according to Dr. Cain, Swist's impairments do not affect

his abilities to reach, handle, finger, feel, push, or pull. The

Commissioner weighed the evidence in Dr. Cain's report and

determined that Swist was capable of the full range of sedentary

work. Here, Swist is simply asking us to reweigh the evidence to
 

8 Swist's physicians at Brackenridge Hospital considered his glaucoma

"much improved" after treatment.

-8-

determine which of the two allegedly conflicting diagnoses to

accept. However, "[t]he [Commissioner], not the courts, has the

duty to weigh the evidence, resolve material conflicts in the

evidence, and decide the case." Chapparo v. Bowen, 815 F.2d 1008,

1011 (5th Cir. 1987); accord Johnson v. Bowen, 864 F.2d 340, 346

(5th Cir. 1988); see also Anthony, 954 F.2d at 295 ("[C]onflicts in

the evidence are for the [Commissioner] to resolve."). To make a

finding of "no substantial evidence," we must conclude that there

is a "conspicuous absence of credible choices" or "no contrary

medical evidence." Dellolio v. Heckler, 705 F.2d 123, 125 (5th Cir.

1983) (citation omitted); accord Johnson, 864 F.2d at 346. The

Commissioner may rely on the opinion of the examining physician.

Bradley v. Bowen, 809 F.2d 1054, 1057 (5th Cir. 1987) (holding that

ALJ may properly rely on only one physician's conclusions).

Accordingly, we hold that there is substantial evidence to support

the Commissioner's finding that Swist's decrease in grip strength

and possible carpal tunnel syndrome do not impair his ability to

perform the full range of sedentary work.

Similarly, Swist's claim that the Commissioner failed to

consider his eye problems lacks merit. The ALJ specifically noted

that Swist suffered from glaucoma, but further noted that Swist's

glaucoma had improved greatly with treatment. Swist's medical

records support this finding.8 Moreover, the evidence indicates

that Swist's glaucoma had never significantly affected his vision.
 

9 The Commissioner will not apply the vocational-medical guidelines if

a person's relevant characteristics do not match the criteria of a guidelines

rule. 20 C.F.R. § 416.969; accord Bowling, 36 F.3d at 435. None of the rules

in the vocational-medical guidelines are applicable to an individual who cannot

perform the full range of sedentary work. 20 C.F.R., Pt. 404, Subpt. P, App. 2,

§ 200(h).

 

10 Where there is a complex issue as to how an applicant's skills and

restrictions relate to specific occupations, the Secretary may use the services

of a vocational expert or other specialist. 20 C.F.R. § 404.1566(e). 

-9-

Indeed, Swist did not wear glasses to the hearing and acknowledged

never having worn glasses. Objective medical facts support the

Commissioner's finding that Swist's impairment did not affect his

capacity to perform sedentary work; the district court therefore

did not err in affirming the Commissioner's determination.

Swist also challenges the Commissioner's acceptance of the

ALJ's use of the medical-vocational guidelines to decide that he is

not disabled. He asserts that the Commissioner should not have

used the vocational-medical guidelines,9 and that the Commissioner

should have called a vocational expert to testify about Swist's

ability to perform jobs available in the economy in substantial

numbers.10

Because the Commissioner correctly found that Swist's

impairments do not significantly affect his residual functional

capacity to perform the full range of sedentary work, she was

entitled to rely exclusively on the guidelines. "When the claimant

suffers only from exertional impairments or his nonexertional

impairments do not significantly affect his residual functional

capacity, the ALJ [and, consequently, the Commissioner] may rely

exclusively on the [Medical-Vocational] Guidelines in determining

whether there is other work available that the claimant can
 

11 "Limitations or restrictions which affect your ability to meet the

demands of jobs other than the strength demands, that is, demands other than

sitting, standing, walking, lifting, carrying, pushing or pulling, are considered

nonexertional." 20 C.F.R. § 416.969a(a). Nonexertional limitations include, in

relevant part, "difficulty in seeing or hearing" and "difficulty performing the

manipulative or postural functions of some work such as reaching, crawling, or

crouching." Id. § 416.969a(c)(1)(iv),(vi). Because we hold that the Secretary

correctly found that Swist's impairments do not significantly affect his residual

functional capacity, we need not decide whether those impairments are exertional

or non-exertional.

 

12 20 C.F.R., Pt. 404, Subpt. P, app. 2, rules 201.27-201.28; see also

supra note 6.

-10-

perform." Selders v. Sullivan, 914 F.2d 614, 618 (5th Cir. 1990).11

Considering Swist's "age, education, past work experience, and

residual functional capacity," the medical-vocational guidelines

directed a finding of "not disabled,"12 and the Commissioner

properly found that Swist was not disabled. Accordingly, the

district court did not err in upholding the Commissioner's

decision.

III

For the foregoing reasons, we AFFIRM the judgment of the

district court.