1 Pursuant to 5 T H 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this opinion should not be published and is not precedent except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

May 22, 2003

Charles R. Fulbruge III

Clerk UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

02-11248

Summary Calendar

CARLOS DIAZ,

Plaintiff-Appellant,

VERSUS

JO ANNE B. BARNHART, COMMISSIONER OF SOCIAL SECURITY,

Defendant-Appellee.

Appeal from the United States District Court

For the Northern District of Texas

(2:99-CV-136)

Before JONES, DUHÉ, and CLEMENT, Circuit Judges.

PER CURIAM: 1

This socia l security appeal presents the question whether

substantial evidence supports the Commissioner’s final decision

denying Plaintiff disability benefits. Finding substantial

evidence to support the finding of no disability, we affirm.

Plaintiff was injured while working as an industrial mechanic.2

The Administrative Law Judge found the claimant was unable to

perform the kind of work he had customarily performed before the

o nset of his disability. The Commissioner thereupon bore the

burden of showing that the claimant’s age, education, work history,

a nd functional capacity permit a successful adaptation to a

significant number of other jobs existing in the national economy.

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

The Administr ative Law Judge found that plaintiff has the

residual functional capacity to perform sedentary work. Because a

vocational expert identified two sedentary jobs the claimant could

perform considering his age, education, and exp erience, the

Admin istrative Law Judge concluded that the claimant was not

disabled at step five of the sequential evaluation process. S ee 20

C.F.R. § 404.1520(b-f).

Plaintiff identifies two issues in this appeal: first, whether

the Commissioner carried her burden of showing a significant number

of jobs the claimant could perform consistent with his age,

education and experience; and second, whether jobs which require

additional training can properly be considered jobs which the

claimant can perform.

We review the record to determine whether substantial evidence

supports the findings and whether any errors of law were made.

Anderson v. Sullivan

, 887 F.2d 630, 633 (5 th Cir. 1989); 42 U.S.C.

§ 405(g).

The vocational expert testified that a person of the3

claimant’s age, education, experience, and functional capacity

could work as an information clerk (e.g., answering questions in a

retail establishment or hotel about merchandise or services) or an

identification clerk (e.g., compiling personal data about

personnel, preparing identification car ds). Further, the expert

noted that there are hundreds of thousands of such jobs nationally.

This testimony constitutes “substantial evidence” to suppor t the

Administrative Law Judge’s finding that other substantial gainful

employment was available.

Plaintiff next argues that both the jobs identified require

additional education and experience and cannot therefore constitute

jobs existing in significant numbers that he can presently perform.

The expert considered the plaintiff’s education and experience,

however, before identifying the two j obs. Tr. 57. Once the

Secretary pointed out potential alternative employment, the burden

then shifted to the claimant to prove that he is unable to perform

the alternate work. S elders

, 914 F.2d at 618; Haywood v. Sullivan

,

888 F.2d 1463, 1467 (5 th Cir. 1989).

Plaintiff failed to produce evidence that he is incapable of

performing the jobs identified by the vocational expert. The only

record reference plaintiff offers to support his claim of

intellectual deficiency is the ambiguity about whether the

statement that he “[went] back to school to get a GED” meant that

he actually received a GED or simply tried to get a GED.

Regardless whether he attained his goal, we note that the4

Administrative Law Judge’s opinion was based on the premise that

plaintiff completed only eleventh grade and his education was

“limited.” Tr. 20. “Limited education” generally means 7 t h through

the 11 th grade and not high school graduate or equivalent. S ee 20

C .F.R. § 404.1564(b)3). Plaintiff did not cross-examine or

challenge the vocational expert on the testimony that plaintiff

could perform either of the jobs. Accordingly, the testimony of

the vocational expert provides a suff icient evidentiary basis to

support the finding of no disability.

AFFIRMED.