*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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 99-11096

Summary Calendar

 

BOBBY M. EAVES,

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

USDC No. 1:98-CV-264-C

__________________________________________

January 2, 2001

Before POLITZ, JOLLY, and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:*

Bobby M. Eaves contends that the Commissioner’s decision to deny him disability

insurance benefits is not supported by substantial evidence because: 1) the ALJ failed to

give appropriate credit to the opinion of his treating physician; 2) the ALJ did not

properly weigh his credibility; 3) the ALJ erred in not determining that his impairment

met the criteria of the listing in Appendix 1, Subpt. P. Reg. 4 § 11.10; and 4) the ALJ
1Greenspan v. Shalala, 38 F.3d 232 (5th Cir. 1994).

2Harrell v. Bowen, 862 F.2d 471 (5th Cir. 1988); Rodriguez v. Bowen, 857 F.2d 275 (5th

Cir. 1988). 

2

erred by relying on the testimony of the vocational expert as to jobs he was capable of

performing.

Our review of the record persuades that the ALJ did not err in determining that the

treating physician’s finding of total disability was not supported by the objective findings

in the record. Although the record supports a finding that appellant’s condition is slowly

deteriorating and may worsen, the objective medical evidence establishes that he retained

muscle strength in his upper and lower extremities, except for a decrease thereof in his

hands and fingers. The ALJ was entitled, indeed obliged, to weigh the treating

physician’s testimony in light of contrary medical evidence in the record.1

Nor did the ALJ err by making a credibility determination respecting Eaves’

subjective complaints. Evaluating such is within the province of the ALJ, who had the

opportunity to observe the claimant. Such credibility determinations are to be treated

with deference by the court.2 The record reflects that the ALJ considered Eaves’

subjective complaints of pain and disability in conjunction with the objective medical

findings in assessing his residual functional capacity. The ultimate determination that

Eaves was not totally disabled by his pain is supported by substantial evidence.

Further, the ALJ did not err in determining that Eaves’ impairment did not meet

the criteria required in listing § 11.10 of Appendix 1. The medical evidence did not show

that Eaves suffered a “[s]ignificant and persistent disorganization of motor functions in

two extremities, resulting in sustained disturbances of gross and dexterous movements, or

gait and station.” Appendix 1, Subpart P, Regulation No. 4, § 11.04(B). Accordingly,
3Carey v. Apfel, 230 F.3d 131 (5th Cir. 2000). 

4

Id.

3

the record does not contain substantial evidence in support of a finding that Eaves’

impairment met the criteria for the listed impairment in § 11.10.

With respect to Eaves’ contention that the ALJ erred in relying on the vocational

expert’s testimony which was in conflict with the statements in the Dictionary of

Occupational Titles regarding the physical demands of the jobs the expert testified that

Eaves was capable of performing, we have determined that if there is any implied or

indirect conflict between the expert’s testimony and the information contained in the said

Dictionary, the ALJ may rely on the expert’s testimony if the record provides an adequate

basis to do so.3 However, we have also determined that in the case of a direct conflict

between the vocational expert’s characterization of the exertional level or skills required

to perform a particular job and the Dictionary’s statement of the necessary physical

requirements for the job, a remand may be required to further explore the issue.4

 The vocational expert testified that the jobs that he listed as available to Eaves did

not involve fine manipulation, handling, reaching, feeling, pushing, or pulling. The

expert testified that some of the jobs required only minimal writing skills. The

Dictionary notes that the listed jobs required handling and the use of fine motor skills, or

the ability to keep legible written records. The ALJ relied on the vocational expert’s

testimony regarding the jobs available that Eaves was capable of performing in

determining that there are a significant number of jobs in the economy that Eaves could

perform. 
4

In light of the direct conflict between the two authorities with respect to the

physical demands of the jobs, the absence of an explanation in the record by the

vocational expert as to why he deviated from the job descriptions contained in the

Dictionary of Occupational Titles, and the ALJ’s reliance on the vocational expert’s

testimony, the matter appealed is REMANDED to the ALJ for an appropriate exploration

of the conflict between these two sources and an ultimate resolution consistent therewith. 

The rulings of the Commissioner on the other claims raised by Eaves are AFFIRMED.

AFFIRMED IN PART; VACATED IN PART AND REMANDED.