                   UNITED STATES COURT OF APPEALS
                        FOR THE FIFTH CIRCUIT United States Court of Appeals
                                                       Fifth Circuit

                                                                                          FILED
                                                                                        March 13, 2008
                                           No. 07-30816
                                         Summary Calendar                          Charles R. Fulbruge III
                                                                                           Clerk


SALVADOR GONZALEZ HERNANDEZ,

                                                           Plaintiff-Appellant,

v.

MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY,

                                                           Defendant-Appellee.



                      Appeal from the United States District Court
                   for the Eastern District of Louisiana, New Orleans
                                USDC No. 2:06-CV-01143


Before HIGGINBOTHAM, STEWART, and ELROD, Circuit Judges.
PER CURIAM:*
        Salvador Gonzalez Hernandez applied for disability insurance benefits and
supplemental security income payments under Titles II and XVI of the Social
Security Act (the “Act”).1                  After the Commissioner of Social Security
(“Commissioner”) denied Hernandez’s applications, the district court found the
final administrative decision was supported by substantial evidence and


        *
          Pursuant to Fifth Circuit Rule 47.5, the court has determined that this order should not be published
and is not precedent except under the limited circumstances set forth in Rule 47.5.4.
        1
            See 42 U.S.C. §§ 423, 1382c(a)(3).
                                  No. 07-30816

dismissed Hernandez’s case with prejudice. For the reasons discussed below, we
AFFIRM.
                    I. Factual and Procedural History
      On February 18, 2004, Hernandez filed applications for disability
insurance benefits and supplemental security income payments due to a
ruptured disc in his back. After the Commissioner denied the applications, an
administrative law judge (“ALJ”) held a hearing on July 13, 2005, pursuant to
Hernandez’s request.
      Hernandez and a vocational expert (“VE”) appeared and testified.
Hernandez, who was represented by counsel, answered questions regarding his
formal education, his lack of vocational or miliary training, and his previous jobs
as a sandblaster and a deck hand and their corresponding physical
requirements. He also discussed his daily routine and activities as well as his
lower back pain and related work limitations.
      The VE testified regarding the level and skill of Hernandez’s past work
experiences and stated that they all involved non-transferable skills.          In
addition, the VE answered several hypothetical questions from the ALJ. The
first hypothetical involved an individual with the same age, educational
background, and past work experience as Hernandez with the residual
functional capacity (“RFC”) for light work. Specifically, the individual could lift
and/or carry 20 pounds occasionally and 10 pounds frequently; stand and/or walk
with normal breaks for six hours of an eight-hour day; sit with normal breaks for
six hours of an eight-hour day; and do unlimited pushing and pulling. The
second hypothetical involved an individual with the same limitations as the first,
but who was also limited to only occasional climbing, kneeling, crouching, and
crawling; to only frequent balancing; and to avoiding exposure to all heights.
The VE testified that both hypothetical individuals could not perform
Hernandez’s past relevant work, but that they could perform jobs existing in
significant numbers in the national economy such as a food preparation person,

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a parking lot attendant, and a packer or packager.
      As required by 20 C.F.R. §§ 404.1520(a)(4)(i)-(v), 416.920(a)(4)(i)-(v), the
ALJ applied a five-step, sequential evaluation process to determine whether
Hernandez was disabled. In so doing, he considered the medical evidence, the
VE’s testimony, the opinions of the treating physicians, the findings of a
consultative examiner, the opinion of a non-examining medical consultant, and
Hernandez’s testimony, activity level, and treatment history. At the first step,
the ALJ found that Hernandez had not engaged in substantial gainful activity
since his alleged onset date of February 14, 2003. At the second step, the ALJ
found that Hernandez’s degenerative changes in the lumbar spine constituted
a severe impairment. At the third step, the ALJ found that Hernandez’s
impairment failed to meet or equal a listed impairment for presumptive
disability under Social Security Agency regulations.
      The ALJ then found that Hernandez had the RFC to perform a full range
of light work activity, which includes sitting, standing, and/or walking up to six
hours of an eight-hour day; unlimited pushing and/or pulling; occasional
climbing, kneeling, and crouching; and frequent crawling and balancing. Based
on this RFC, the ALJ found at step four that Hernandez could not perform any
of his past relevant work. And at step five, crediting the VE’s testimony, the
ALJ determined that Hernandez could perform other work activity existing in
sufficient numbers in the national economy. Accordingly, the ALJ denied
Hernandez’s applications for disability insurance benefits and supplemental
security income payments.
      Thereafter, on March 15, 2006, Hernandez filed his complaint with the
district court seeking review of the final decision pursuant to 42 U.S.C. § 405(g).
A magistrate judge recommended that the final administrative decision be
affirmed, and the district court adopted the recommendation and dismissed
Hernandez’s complaint with prejudice on August 22, 2007. Hernandez filed a
timely notice of appeal.

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                                II. Discussion
      Hernandez alleges three points of error in the district court’s
determination that substantial evidence supports the final administrative
decision that he was not disabled within the meaning of the Act: first, the
Commissioner’s finding that Hernandez can perform light work lacks substantial
evidence; second, the Commissioner failed to fully and fairly develop the record
regarding Hernandez’s literacy; and third, the Commissioner failed to establish
the existence of other work in the national economy that Hernandez can
perform, given Hernandez’s age, education, and past work experience.
      A. Standard of Review
      Our review of the Commissioner’s decision is limited under 42 U.S.C. §
405(g) to two inquiries: (1) whether substantial evidence supports the decision;
and (2) whether the decision comports with relevant legal standards. Greenspan
v. Shalala, 38 F.3d 232, 236 (5th Cir. 1994). “The Court of Appeals cannot
reweigh the evidence, but may only scrutinize the record to determine whether
it contains substantial evidence to support the Commissioner’s decision.” Leggett
v. Chater, 67 F.3d 558, 564 (5th Cir. 1995). “Substantial evidence is that which
is relevant and sufficient for a reasonable mind to accept as adequate to support
a conclusion; it must be more than a scintilla, but it need not be a
preponderance.” Anthony v. Sullivan, 954 F.2d 289, 295 (5th Cir. 1992); see also
Paul v. Shalala, 29 F.3d 208, 210 (5th Cir. 1994). Accordingly, a finding of no
substantial evidence is warranted only “where there is a conspicuous absence of
credible choices or no contrary medical evidence.” Johnson v. Bowen, 864 F.2d
340, 343-44 (5th Cir. 1988) (internal quotation marks and citation omitted).
      B. Burden of Proof
      To determine whether Hernandez qualified as “disabled” under 42 U.S.C.
§ 423(d)(1)(A), the Commissioner utilized a sequential, five-part evaluation




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process.2 Hernandez carried the burden of proof under the first four parts of the
inquiry. Leggett, 67 F.3d at 564. The burden of proof then shifted to the
Commissioner at the fifth step to establish the existence of other available
substantial gainful employment that Hernandez could perform. Fraga v. Bowen,
810 F.2d 1296, 1301-02 (5th Cir. 1987). Once the Commissioner identified
suitable alternative employment, the burden of proof shifted back to Hernandez
to prove that he could not perform the alternative work identified. Id. at 1302.
Throughout the process, however, the ultimate burden of establishing disability
remained with Hernandez. Hames v. Heckler, 707 F.2d 162, 165 (5th Cir. 1983).
       C. Light Work Activity
       Hernandez first argues that there is a lack of substantial evidence to
support the conclusion that he can perform light work activity, which includes
sitting, standing, and/or walking up to six hours of an eight-hour day; unlimited
pushing and/or pulling; occasional climbing, kneeling, and crouching; and
frequent crawling and balancing. Specifically, he contends that the ALJ failed
to make any findings regarding Hernandez’s “ability to lift, bend and stoop,” and
that the RFC is inconsistent with the consultative examiner’s functional capacity
opinion, which summarized Hernandez’s permanent restrictions as follows: “This
patient should consider lite [sic] levels of employment. He has 15 pound lifting
restrictions recommended. He should not do activities of repetitive stooping,
squatting, twisting, kneeling, and climbing.”
       Contrary to Hernandez’s argument, however, the ALJ never found that
Hernandez could do “unlimited” kneeling.                  Rather, the ALJ stated that
Hernandez could do “occasional” kneeling, and this finding is fully consistent
with the consultative examiner’s recommendation against “repetitive” kneeling.


       2
         The steps include: (1) whether the claimant is presently performing substantial gainful
activity, (2) whether the claimant has a severe impairment, (3) whether the impairment meets
or equals a listed impairment, (4) whether the impairment prevents the claimant from doing
past relevant work, and (5) whether the impairment prevents the claimant from performing
any other substantial gainful activity. 20 C.F.R. §§ 404.1520(a)(4)(i)-(v), 416.920(a)(4)(i)-(v).

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Moreover, although Hernandez accurately notes a discrepancy between the
consultative examiner’s recommended 15-pound lifting restriction and the Social
Security regulations—wherein the definition of “light work” requires lifting up
to 20 pounds—the ALJ only assigned “more weight” to the consultative
examiner’s opinion after reviewing the entire record of medical evidence and the
opinions of Hernandez’s treating physicians. The ALJ observed that one of these
physicians had previously released Hernandez “back to light duty status,” and
that another had given Hernandez a RFC for “work activity which allowed for
the lifting/carrying of objects weighing 50 pounds.”      Given that it is the
responsibility of the ALJ, not the court, to resolve conflicts in the evidence,
Martinez v. Chater, 64 F.3d 172, 174 (5th Cir. 1995), we find that substantial
evidence supports the RFC finding.
      D. Duty to Fully and Fairly Develop the Record
      Next, Hernandez claims that the Commissioner failed to fully and fairly
develop the record regarding Hernandez’s literacy, arguing that “[t]he ALJ’s
cumulative failures to make and/or document the relevant inquiries regarding
[Hernandez’s] language abilities deprives his finding on this matter of
substantial supporting evidence.”
      To determine whether the ALJ fully and fairly developed the record, we
ask whether the record contained sufficient evidence for him to make an
informed decision. See Brock v. Chater, 84 F.3d 726, 728 (5th Cir. 1996). So long
as such evidence exists, the ALJ need not have supplemented the record with
additional evidence. See 20 C.F.R. §§ 404.1516, 416.916; Anderson v. Sullivan,
887 F.2d 630, 634 (5th Cir. 1989).
      Here, there was sufficient evidence in the record for the ALJ to make his
determination regarding Hernandez’s literacy and ability to communicate in
English. First, the ALJ heard Hernandez’s testimony regarding Hernandez’s
formal education, vocational training, military service, math ability, ability to
read and write in English, and ability to make change at the store, and followed

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up on this testimony by asking Hernandez about Hernandez’s ability to read the
newspaper and whether Hernandez had a valid driver’s license.            Second,
Hernandez stated in the disability reports that he can speak English and read
and write “a little” English, and also reported that he can follow spoken or
written instructions. Finally, although Hernandez contends that he was initially
unable to respond to several questions at the hearing, the transcript indicates
that he could readily understand and answer those questions once they were
rephrased.
      E. Alternative Employment
      Hernandez last argues that the Commissioner failed to establish the
existence of other work in the national economy that Hernandez can perform,
given Hernandez’s age, education, and past work experience. Specifically,
Hernandez claims that the hypothetical questions upon which the VE relied
were deficient because they failed to take into account limitations on bending
and stooping, including restricted lifting abilities, and because they failed to
“assume [Hernandez] was illiterate.”
      Our case law, however, provides that an ALJ need only incorporate into
such hypothetical questions those claimed disabilities “supported by the evidence
and recognized by the ALJ.” Masterson v. Barnhart, 309 F.3d 267, 273 (5th Cir.
2002). The ALJ was thus entitled to rely upon a hypothetical question that
included a RFC with only those limitations he found credible and supported by
the record. At the same time, because the record supports the ALJ’s evaluation
of the evidence pertaining to Hernandez’s literacy and ability to communicate
in English, no conflict exists between the VE’s testimony regarding the potential
alternative jobs the hypothetical claimant could perform and the language
development levels of those positions as defined in the Dictionary of
Occupational Titles.




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                               III. Conclusion
      Accordingly, finding that substantial evidence supports the final
administrative decision to deny Hernandez’s applications for disability insurance
benefits and supplemental security income payments, we AFFIRM.




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