* 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opinion should not be published and is not precedent except under the limited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. 98-60278

STEPHEN M. GRAY;

Plaintiff-Appellant,

v.

KENNETH S. APFEL,

COMMISSIONER OF SOCIAL SECURITY;

Defendant-Appellee,

Appeal from the United States District Court

for the Southern District of Mississippi

(1:97-CV-224-GR)

May 6, 1999

Before JONES, DUHÉ, and BARKSDALE, Circuit Judges.

PER CURIAM:*

Throughout his life, Stephen Gray has held several jobs:

carpenter, laborer, stock clerk, gas station attendant, delivery

and maintenance employee, school bus driver, and substitute

teacher. He has a high school education. On February 21, 1991,

while employed as a carpenter for SCI Construction, Gray injured

his back lifting a drain cover. He received sundry treatments for

his ailment, including chiropracty, drug therapy, and surgery.

Most significantly, Gray has endured two surgical fusions of his

spine -- the first in April 1992, the second in July 1993.
 

1 If the ALJ applied the appropriate legal standard and the decision

is supported by substantial record evidence, we must affirm. See Ripley v.

Chater, 67 F.3d 552, 555 (5th Cir. 1995). When conducting our review, we will

neither reweigh the evidence nor substitute our judgment for that of the

Secretary. See id.

2

On February 24, 1993, Gray applied for disability

insurance benefits and Supplemental Security Income under the

Social Security Act. Before an Administrative Law Judge (“ALJ”),

the parties agreed that Gray was disabled from February 21, 1991 to

April 1, 1994. The ALJ refused to grant benefits beyond April 1,

1994, however -- finding no disabling impairment prevented Gray

from returning to his past work as a gas station attendant. The

district court affirmed the ALJ, and Gray timely appealed. Finding

the ALJ’s decision was supported by substantial evidence,1 we

affirm.

The parties agree that Gray suffered from a disabling

impairment through April 1, 1994. Indeed, Gray’s counsel

characterized the disability as a “closed situation” consistent

with the treating physician’s, Dr. M.F. Longernecker’s,

identification of April 1994 as the date of maximum medical

improvement. Now, Gray asks this court to ignore the statements of

his counsel and treating physician and remand this case to the

Secretary based on the ALJ’s failure to employ the assistance of a

vocational expert when gauging Gray’s residual functional capacity

and the alleged failure to account for Gray’s pain and use of

prescription medication when making the disability determination.

Citing Simpson v. Schweiker, Gray maintains -- vaguely --

that this case should be governed by the standard of review
 

2 This distinction in the review process is set forth in the Code of

Federal Regulations. Compare 20 C.F.R. § 404.1520(a) (“When you file a claim for

a period of disability . . . , we use the following evaluation process.”

(emphasis added)), with 20 C.F.R. § 404.1594(a) (“[I]f you are entitled to

disability benefits, your continued entitlement . . . must be reviewed

periodically.”).

3

applicable to benefit termination decisions and the corresponding

presumption of disability. See 691 F.2d 966, 969 (11th Cir.

1992).2 This case does not involve the reexamination of a benefits

decision previously entered; instead, the ALJ’s decision involves

an initial determination of benefit eligibility and the period over

which the claimant was affected by the disability. Accordingly,

the ALJ properly applied the five-step sequential process for

determining Gray’s eligibility for benefits and correctly placed

the burden of proving disability on Gray.

Under the five-step sequential process, an ALJ must

consider several factors to determine a claimant’s eligibility for

benefits. See Bowen v. Yuckert, 482 U.S. 137, 140-42, 107 S. Ct.

2287, 2291 (1987). An unfavorable answer to any one factor results

in a denial of benefits. See id. After considering all of the

evidence, including the report of Dr. Longernecker and other

physicians, the ALJ ruled against Gray on two factors. First, the

ALJ determined that Gray’s disability was not the equivalent of an

impairment presumed sufficient to preclude substantial gainful

activity (step 3). Second, while acknowledging Gray’s complaints

of pain, the ALJ found that Gray’s residual functional capacity

permitted the performance of light work activity, including the

past relevant work of a gas station attendant (step 4). 
 

3 See Falco v. Shalala, 27 F.3d 160, 164 n.18 (5th Cir. 1994).

4

Contrary to Gray’s argument, the ALJ clearly considered

Gray’s subjective complaints of pain when making his disability

determination; however, he only found the complaints credible to

the extent the described pain limited Gray to activities requiring

greater exertion than light work. This finding not only

constitutes a credibility determination this court will not

review,3 but it is also consistent with the law regarding the

debilitating nature of pain. See Wren v. Sullivan, 925 F.2d 123,

128-29 (5th Cir. 1991) (“The ALJ must consider subjective evidence

of pain, but it is within his discretion to determine the pain’s

disabling nature.” (internal citations omitted)). Subjective

complaints of pain will only support a disability finding when the

pain is “constant, unremitting, and wholly unresponsive to

therapeutic treatment.” See id. at 128 (citing Haywood v.

Sullivan, 888 F.2d 1463, 1470 (5th Cir. 1989)). According to the

record reports, Gray’s back condition continued to improve and his

complaints of pain, while real, did not rise to the level of a

disabling impairment. Cf. Falco, 27 F.3d at 163 (upholding ALJ

determination that pain associated with claimant’s back injury was

not disabling).

Gray also challenges the sufficiency of the record

evidence with respect to the finding that he retained a residual

functional capacity to perform light work. In support of his

argument, Gray cites the December 1993 report of Dr. Longernecker

estimating a 30% total body loss and recognizing a potential
5

limitation to sedentary work. While the opinion of the treating

physician is entitled to considerable weight, Dr. Longernecker’s

opinion is not conclusive. See Floyd v. Bowen, 833 F.2d 529, 531

(5th Cir. 1987). The December 1993 report merely speculates

regarding Gray’s residual functional capacity, and both the

December 1993 letter and a January 1994 follow-up letter suggest

that a functional capacity evaluation should be performed once Gray

achieves maximum medical improvement. No such evaluation was

entered in the record.

Left with no evidence regarding Gray’s limitations after

April 1, 1994, Dr. Longernecker’s report that the results of the

fusion were satisfactory, and Gray’s continued improvement since

December 1993, we cannot say that the ALJ’s opinion was not based

on substantial record evidence. The ALJ considered all the medical

reports and the testimony of Gray when setting a residual

functional capacity. Gray, originally characterizing his claim as

a “closed situation” after April 1, 1994, failed to present any

evidence that indicated a limitation to sedentary work only. The

record as whole thus supports the ALJ’s residual functional

capacity finding. Moreover, because the ALJ properly found that

Gray was able to perform his past relevant work -- an element of

Gray’s prima facie disability claim -- no resort to the testimony

of a vocational expert was necessary. See Green v. Schweiker, 694

F.2d 108, 112 (5th Cir. 1982) (ALJ not required to call vocational

expert when claimant fails to support prima facie case of

disability).
 

4 See Paul v. Shalala, 29 F.3d 208, 210 (5th Cir. 1994) (appellate

court lacks jurisdiction to consider argument not asserted in administrative

proceedings).

6

Gray also contends that his use of prescription drugs,

such as Merpergan Fortis and Valium, limits his ability to return

to work. Essentially, Gray argues that he experiences so much

anxiety as a side effect of the Valium that he would be unable to

perform his past job as a gas station attendant. Not only did Gray

fail to assert and, thus, waived this argument,4 but the ALJ

specifically considered “the type, dosage, effectiveness and sideeffect[s] of any medication to alleviate pain or other symptoms”

when rendering his decision regarding Gray’s residual functional

capacity. As we have previously found, the ALJ’s holding with

respect to Gray’s residual functional capacity was supported by

substantial evidence.

AFFIRMED.