* Local Rule 47.5 provides:

"The publication of opinions that have no precedential value and

merely decide particular cases on the basis of well-settled

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should not be published.

UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

 

No. 95-30459

Summary Calendar

 

ROGER S. OLIVER, SR.,

Plaintiff-Appellant,

versus

SHIRLEY S. CHATER, Commissioner

of Social Security,

Defendant-Appellee.

 

Appeal from the United States District Court

for the Western District of Louisiana

(CA-94-0778)

December 14, 1995

Before GARWOOD, WIENER, and PARKER, Circuit Judges.

PER CURIAM:*

Oliver filed a complaint in the district court to set aside

the Commissioner's decision that he was not disabled within the

meaning of the Social Security Act (SSA). The district court

granted defendant's motion for summary judgment, finding that there

was substantial evidence to support the Commissioner's decision and

that the decision comported with all relevant legal standards.

Finding no error, we affirm.
2

I. FACTS

Roger S. Oliver, Sr. filed an application for disability

insurance benefits and supplemental social security income alleging

that he was disabled from December 13, 1991, as a result of a heart

attack, high cholesterol, and arthritis in his upper back and arms.

The application was denied originally and upon reconsideration.

Following a de novo hearing an Administrative Law Judge (ALJ)

determined that Oliver was not disabled within the meaning of the

SSA because he could perform a full range of medium work. The

Appeals Council denied his request for review of the ALJ's decision

and that decision became the final decision of the Commissioner.

Oliver filed a complaint in the district court to set aside

the Commissioner's decision. The district court granted the

Commissioner's motion for summary judgment because it determined

that there was substantial evidence in the record to support the

Commissioner's decision that Oliver is not disabled.

II. DISCUSSION

This court reviews the Commissioner's decision to determine

whether there is substantial evidence in the record to support the

Commissioner's decision and whether the Commissioner applied the

proper legal standards. Spellman v. Shalala, 1 F.3d 357, 360 (5th

Cir. 1993). Substantial evidence is that evidence which is

relevant and sufficient for a reasonable mind to accept as adequate

to support a conclusion. Id. "[N]o substantial evidence will be

found only where there is a conspicuous absence of credible choices
 1. The Commissioner contends that Oliver argues for the

first time on appeal that the ALJ should have received testimony

from a vocational expert. Oliver made this argument in his

motion for summary judgment filed in the district court.

3

or no contrary medical evidence." Harrell v. Bowen, 862 F.2d 471,

475 (5th Cir. 1988) (internal quotations and citation omitted).

The ALJ must apply the five-step sequential process outlined

in Social Security Regulation No. 16 to determine whether an

individual is disabled. See 20 C.F.R. §§ 404.1520(b)-(f),

416.920(b)-(f). A finding that a claimant is not disabled at any

point within the five-step analysis is conclusive and terminates

the inquiry. Lovelace v. Bowen, 813 F.2d 55, 58 (5th Cir. 1987).

The ALJ determined at step five that Oliver had the residual

functional capacity to perform the full range of medium work and,

therefore, the Medical-Vocational Guidelines indicated that he was

not disabled within the meaning of the SSA. See Anderson v.

Sullivan, 887 F.2d 630,632-34 (5th Cir. 1989).

Medical-Vocational Guidelines

Oliver argues that the ALJ improperly relied on the MedicalVocational Guidelines to determine that he was not disabled because

he suffers from nonexertional limitations, including pain, fatigue,

and shortness of breath, which prevent him from doing the full

range of medium work. He contends that, as a result of his

nonexertional limitations, the ALJ was required to obtain the

testimony of a vocational expert to determine whether he was

disabled.1
4

The ALJ may rely exclusively on the guidelines to determine

whether there is other work available that a claimant can perform

if the claimant's characteristics correspond to the criteria in the

guidelines and the claimant's nonexertional impairments do not

significantly affect his residual functional capacity. Selders v.

Sullivan, 914 F.2d 614, 618 (5th Cir. 1990). The ALJ found that

Oliver had no nonexertional limitations because his testimony

regarding the extent of his pain, fatigue, and shortness of breath

was not credible. The record supports the ALJ's determination.

The medical records indicate that on December 14, 1991, Oliver

sought medical treatment at Allen Parish Hospital for a myocardial

infarction. The x-rays revealed that he had borderline

cardiomegaly. His heart was within the upper limits of normal and

his lungs were essentially clear. He was transferred to St.

Patrick Hospital and a Bruce Protocol stress test revealed mild

chest tightness with exercise, no arrhythmias, and decreased

functional capacity. A successful angioplasty was performed, and

Oliver was diagnosed with triple vessel coronary artery disease

with moderate impairment of left ventricular function consisting of

posterior akinesis.

Oliver had another Bruce Protocol stress test administered on

March 24, 1992. The test was negative for coronary ischemia and

indicated no dysrhythmia. Oliver did not experience any chest

discomfort and maintained average functional capacity. A

subsequent stress test administered on May 6, 1992 revealed no
5

significant changes in the EKG or angina, no arrhythmias, and good

functional aerobic capacity.

Dr. Stagg, a consulting physician, examined Oliver on January

18, 1993. Dr. Stagg indicated that as a result of his examination

and review of a stress test administered the previous month, he

could not explain Oliver's symptomatology. A final stress test

administered on October 4, 1993, revealed no exercise induced chest

pain or arrhythmias and no diagnostic EKG changes with exercise.

The two residual physical functional capacity assessments completed

in February and April 1993 indicated that Oliver had the capacity

to do the full range of medium work.

At the administrative hearing Oliver testified that his

doctors had placed no significant restrictions on his activities.

Although he stated that he gets tired more quickly than he should,

he also testified that he walks three miles per day or uses the

stairstepper when the weather is bad. He also stated that he could

go fishing and deer hunting. He currently rests for two hours a

day, but probably could get by on less rest.

This evidence is sufficient to support the ALJ's determination

that Oliver's subjective complaints of pain, fatigue, and shortness

of breath were not credible. See Moore v. Sullivan, 919 F.2d 901,

904 (5th Cir. 1990) (the ALJ is entitled to determine the

credibility of witnesses). The ALJ properly relied on the MedicalVocational Guidelines.
 2 The Commissioner again contends that Oliver failed to

present this issue in the district court. This argument was

presented to the district court in Oliver's supplemental reply

memo.

6

Past Relevant Work

Oliver also argues that the ALJ failed to consider the

physical and mental demands of his past relevant work as a semiskilled construction worker.2 The ALJ found that Oliver was unable

to perform his past relevant work, and, therefore, even if the ALJ

failed to make particular findings, any error would be harmless.

See Mays v. Bowen, 837 F.2d 1362, 1364 (5th Cir. 1988) (this court

will not vacate a judgment unless the substantial rights of a party

have been affected).

Semi-skilled versus Unskilled Work

Finally, Oliver argues that the ALJ applied the incorrect

guideline because he classified his past-relevant work as unskilled

but his previous work was semi-skilled. The ALJ applied Rule

203.03 to determine that Oliver was not disabled. See 20 C.F.R.

Pt. 404, Subpt. P, App. 2, table no. 3. This rule identifies past

relevant work as unskilled. Assuming Oliver's contention that his

past relevant work was semi-skilled is correct, Rules 203.04 and

203.05 would mandate the same finding. See id. Therefore, any

error in the ALJ's use of Rule 203.03 was harmless, and a remand

would be an unnecessary use of judicial resources. See Mays, 837

F.2d at 1364.
7

III. CONCLUSION

For the reasons discussed above, the judgment of the district

court is AFFIRMED.