                                                            United States Court of Appeals
                                                                     Fifth Circuit
                                                                   F I L E D
                IN THE UNITED STATES COURT OF APPEALS
                                                                   August 15, 2003
                            FOR THE FIFTH CIRCUIT
                                                                Charles R. Fulbruge III
                            ____________________                        Clerk

                                No. 02-30771

                            ____________________

     BILLY JOE MCCULLER II

                 Plaintiff - Appellant

     v.

     JO ANNE BARNHART, Commissioner of Social Security

               Defendant - Appellee
_________________________________________________________________

          Appeal from the United States District Court
              for the Western District of Louisiana
                        No. CV 01-2050 LC
_________________________________________________________________

Before KING, Chief Judge, DENNIS, Circuit Judge, and LYNN, District
Judge.*

PER CURIAM:**

     The plaintiff-appellant appeals the judgment of the district

court affirming the final decision of the commissioner of social

security    denying   the     plaintiff’s   application   for    disability

benefits.    Because the record contains substantial evidence in


     *
          United States District Judge Barbara M.G. Lynn of the
Northern District of Texas, sitting by designation.
     **
            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that this opinion should not be published and is not precedent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.


                                      1
support of the denial of benefits, we affirm.

                                        I.

                             PROCEDURAL HISTORY

     In September 1998, Billy Joe McCuller, II applied for social

security disability benefits.           As alleged, he became disabled on

March 25, 1998, while performing wellhead maintenance during the

course of his employment as an oilfield service technician.1              After

his application was denied at two administrative levels, a hearing

before an administrative law judge (“ALJ”) was held on December 1,

1999.     McCuller was twenty-six years old at the time of this

hearing.

     On February 23, 2000, the ALJ found that McCuller was capable

of performing work of light exertion and was thus not disabled.

McCuller appealed this decision, and the appeals council considered

additional evidence submitted with McCuller’s request for review –

namely,    a   letter     from   his   treating   physician,    Dr.   Bernauer.

However, on August 27, 2001, the appeals council denied McCuller’s

request for review; the decision of the ALJ thus became the final

decision       of   the     commissioner     of    social      security    (the

“Commissioner”).

     On October 9, 2001, McCuller appealed this decision to the

district court.         On July 8, 2002, after a de novo review, the



     1
          McCuller injured his back by falling onto his left side
to avoid a 200-pound falling wellhead.

                                         2
district    court      accepted      the     magistrate       judge’s    report     and

recommendation of May 20, 2002, in which the magistrate judge

recommended that the Commissioner’s decision be affirmed. McCuller

appeals from this judgment.

                                           II.

                REVIEW OF THE COMMISSIONER’S FINAL DECISION

A.   Standard of Review

     In cases appealing a district court’s affirmation of the

Commissioner’s decision, we review the final decision of the

Commissioner, not the decision of the district court.                    See Cieutat

v. Bowen, 824 F.2d 348, 359 (5th Cir. 1987).                      Our review of the

final decision of the Commissioner denying disability benefits, “is

limited    to    determining       whether      the   decision    is    supported    by

substantial evidence in the record and whether the proper legal

standards       were   used   in   evaluating         the   evidence.”     Villa    v.

Sullivan, 895 F.2d 1019, 1021 (5th Cir. 1990) (citation omitted).

“Substantial evidence is more than a scintilla and less than a

preponderance.”         Muse v. Sullivan, 925 F.2d 785, 789 (5th Cir.

1991). A finding of no substantial evidence is appropriate only if

there is    a     “conspicuous      absence      of    credible    choices”   or    “no

contrary medical evidence.”            Haywood v. Sullivan, 888 F.2d 1463,

1466 (5th Cir. 1989); Richardson v. Perales, 402 U.S. 389, 401

(1971) (stating that “substantial evidence” is evidence consisting

of “such relevant evidence as a reasonable mind might accept as


                                            3
adequate to support a conclusion”).          If supported by substantial

evidence, the ALJ’s findings in the Commissioner’s final decision

are conclusive.       Id. at 390.   We may not reweigh the evidence, try

the issues de novo, or substitute our judgment for that of the ALJ.

Id.

B.    Framework for Evaluating Whether a Claimant is Disabled

      The Social Security Act defines disability as a medically

determinable physical or mental impairment lasting at least twelve

months that prevents the claimant from engaging in substantial

gainful activity.       42 U.S.C. § 423(d)(1)(A) (2000).          Title 20 of

the Code of Federal Regulations, part 404, sets forth a five-step

sequential process the ALJ must follow to evaluate whether the

claimant has a disability.          20 C.F.R. § 404.1520(a)-(f) (2003);

Muse, 925 F.2d at 789.        The claimant bears the burden as to the

first four steps.       Id.   First, a claimant must not be presently

working.      20 C.F.R. § 404.1520(b).          Second, a claimant must

establish that he has an “impairment or combination of impairments

which significantly limits [his] physical or mental ability to do

basic work activities.”        Id. § 404.1520(c).      Third, to secure a

finding of disability without consideration of age, education, and

work experience, a claimant must establish that his impairment

meets   or   equals    an   impairment    enumerated   in   the   listing   of

impairments in the appendix to the regulations. Id. § 404.1520(d).

Fourth, a claimant must establish that his impairment prevents him



                                      4
from doing past relevant work.                  Id. § 404.1520(e).              Finally, the

burden shifts to the Commissioner to demonstrate that the claimant

can perform relevant work.                If the Commissioner meets this burden,

the claimant must then prove that he cannot in fact perform the

work suggested.            Id. § 404.1520(f).

C.    Analysis of the Findings of the ALJ

      Following this sequential process, the ALJ, whose findings

became the final decision of the Commissioner, found that “the

claimant     has       a    severe     impairment         but    retains    the        residual

functional capacity to perform work existing in significant numbers

in the national and local economies.” In reaching this conclusion,

the ALJ made several findings related to each step in the five-step

sequential process.               McCuller objects to the majority of these

findings as not supported by substantial evidence.

      (1)    Objections to the Step 3 Findings of the ALJ

      The Commissioner found at Step 2 that McCuller had medically

determinable severe impairments consisting of “herniated discs,

status [post] discectomy and fusion at the L3-4 and L4-5 levels and

placement of screw fixation due to lumbar instability.”                                However,

as   to    Step    3       of   the   process,      the    ALJ       determined    that      the

impairments were not severe enough to meet or medically equal one

of   the    impairments          listed    in   Appendix        1,    Subpart     P,    of   the




                                                5
regulations.2    On appeal, McCuller contends that this finding is

erroneous because medical evidence, including a letter submitted to

the appeals council by Dr. Bernauer, demonstrates that his back

impairments met or equaled the impairments listed in section 1.04B

of the listed impairments.

     Section 1.04B, in relevant part, provides:

     Disorders of the spine (e.g., herniated nucleus pulposus,
     spinal arachnoiditis, spinal stenosis, osteoarthritis,
     degenerative disc disease, facet arthritis, vertebral
     fracture), resulting in compromise of a nerve root
     (including the cauda equina) or the spinal cord. With:
          B.   Spinal    arachnoiditis,   confirmed    by   an
               operative note or pathology report of tissue
               biopsy, or by appropriate medically acceptable
               imaging, manifested by severe burning or
               painful dysesthesia, resulting in the need for
               changes in position or posture more than once
               every 2 hours.

20 C.F.R., Subpt. P., App. 1, § 1.04.

     McCuller must provide medical findings that support all of the

criteria   for   the   Step   3   equivalent   impairment   determination.

Selders v. Sullivan, 914 F.2d 614, 619 (5th Cir. 1990).              Here,

McCuller identifies no medical evidence that he suffered from


     2
          The Code section setting forth Step 3 of the process
provides, in relevant part:

     When your impairment(s) meets or equals a listed
     impairment in Appendix 1. If you have an impairment(s)
     which meets the duration requirement and is listed in
     Appendix 1 or is equal to a listed impairment(s), we will
     find you disabled without considering your age,
     education, and work experience.

20 C.F.R. § 404.1520(d).

                                      6
spinal arachnoiditis, or its equivalent, nor does he cite to any

medical evidence demonstrating that he was required to change his

posture    or   position       more   than       once   every   two    hours.        Thus,

substantial evidence supports the ALJ’s finding that McCuller’s

impairments do not meet or equal this listed impairment.

     (2)    Objections to the RFC Determination of the ALJ

     Because McCuller did not meet his burden of establishing that

his impairment met or equaled an impairment enumerated in the

listing of impairments in the appendix to the regulations, the ALJ

was required to make a determination regarding McCuller’s residual

functional capacity (“RFC”) – that is, a determination regarding

the range of work activities McCuller can perform despite his

impairments      when    considering     objective        evidence      such    as   age,

education       and     work    experience.3             As     to    McCuller’s      RFC

determination, the ALJ states:

     [McCuller] underwent a course of physical therapy and
     received epidural steroid injections with Dr. James
     Perry. Although he was referred for another course of


     3
          The Code section relating to the RFC determination
provides, in relevant part:

     Your impairment(s) must prevent you from doing past
     relevant work. If we cannot make a decision based on
     your current work activity or on medical facts alone, and
     you have a severe impairment(s), we then review your
     residual functional capacity and the physical and mental
     demands of the work you have done in the past. If you
     can still do this kind of work, we will find that you are
     not disabled.

20 C.F.R. § 404.1520(e).

                                             7
     physical therapy, Dr. Perry noted in August 1998 that he
     had not attended same and was visiting another physician,
     apparently on the recommendation of his attorney. Dr.
     Perry noted that the new physician had recommended a
     myelogram, but opined that based on the claimant’s MRI
     and physical examination, neither a myelogram nor
     surgical treatment was recommended.     He further noted
     that the claimant had been resistant throughout his
     treatment program and apparently unhappy and, thus, he
     recommended that he follow-up elsewhere. Also in August
     1998, Dr. Dale Bernauer noted that the claimant had a
     decreased range of motion, but with negative straight leg
     raises, strong muscles, intact nerve signs and reflexes,
     and negative x-rays. Nevertheless, after the myelogram
     was performed, reflecting finding similar to the prior
     MRI, the claimant underwent a lumbar fusion and
     discectomy at the L3-4 and L4-5 levels on November 24,
     1998.

     In March 1999, Dr. Bernauer noted that the claimant was
     improving, but continued to complain of bilateral leg and
     low back pain. With only those notations for support, he
     then opined that the claimant would be unable to work for
     approximately one year[] from surgery. In May 1999, a CT
     scan revealed that the view of the L3-4 and L4-5 levels
     were obscured due to surgical changes, but with an
     otherwise normal lumbar spine. The following month, an
     MRI revealed an unremarkable cervical spine. No other
     significant medical documentation was provide until
     September 16, 1999, wherein the claimant was diagnosed
     with lumbar instability and underwent surgery for
     placement of a pedicle screw fixation with spinal link
     systems from L3 through L5 levels.
     . . .
     After carefully considering the entire record in this
     matter, including the testimony of the claimant . . . I
     agree with the non-examining state consultant [who found
     in a RFC assessment form that the claimant was capable of
     performing a light level of work, with occasional
     postural limitations] and find the claimant not disabled.


McCuller maintains that the RFC determination by the ALJ that

McCuller retained the ability to perform light work with occasional

                                8
postural limitations is not supported by substantial evidence.4                   We

disagree.

     As   stated,   on   review,   we       do     not   inquire   as   to    whether

conflicting evidence exists in the record; rather, we probe the

record to ensure only that the ALJ’s findings are supported by

substantial evidence.       See Muse, 925 F.2d at 790 (“The ALJ as

factfinder has the sole responsibility for weighing the evidence

and may choose whichever physician’s diagnosis is most supported by

the record.”)(quoting Pierre v. Sullivan, 884 F.2d 799, 803 (5th

Cir. 1989)).

     Here, the ALJ carefully considered all of the evidence before

him and found McCuller’s testimony and the conclusory opinion of

Dr. Bernhauer that McCuller could not work for one year from the

date of his surgery to be less than credible in the face of

conflicting    medical    evidence          from     Dr.   Perry.        In    these


     4
            Light work is defined by the regulations as:

     [L]ifting no more than 20 pounds at a time with
     frequent lifting or carrying of objects weighing up to
     10 pounds. Even though the weight lifted may be very
     little, a job is in this category when it requires a
     good deal of walking or standing, or when it involves
     sitting most of the time with some pushing and pulling
     of arm or leg controls. To be considered capable of
     performing a full or wide range of light work, you must
     have the ability to do substantially all of these
     activities. If someone can do light work, we determine
     that he or she can also do sedentary work, unless there
     are additional limiting factors such as loss of fine
     dexterity or inability to sit for long periods of time.

20 C.F.R. § 404.1567(b).

                                        9
circumstances, we hold that substantial evidence supports the RFC

determination by the ALJ.     Masterson v. Barnhart, 309 F.3d 267, 272

(5th Cir. 2002) (stating that the ALJ has the responsibility to

resolve    questions   of   credibility    and   questions   arising   from

conflicting medical opinions).5

     (3)    Objections to the Step 5 Findings of the ALJ

     Regarding Step 4 in the sequential process, the ALJ agreed

with McCuller that McCuller’s impairments rendered him unable to

perform his past relevant work as an oilfield service technician

and oilfield service supervisor.          However, regarding the Step 5

determination, the ALJ found that the Commissioner met her burden

of demonstrating that McCuller is able to perform a significant

number of other jobs existing in the national and local economy

pursuant to Rule 202.21 of the Medical-Vocational Guidelines (the

     5
          McCuller further contends that in making his RFC
determination, the ALJ erred in relying on the state consultant’s
RFC conclusions. In so contending, McCuller maintains that the
state consultant’s RFC conclusions were made prior to McCuller’s
second surgery and are thus not reliable. We find this argument
unpersuasive. The responsibility for determining a claimant’s
RFC rests soundly with the ALJ, not the state agency medical
consultant. Here, the ALJ considered evidence regarding the
alleged condition of McCuller both before and after the second
surgery and then made an independent RFC determination based on
his observations. McCuller also contends that the ALJ was
required to order the government to produce testimony from a
medical consultant or expert who had examined McCuller after his
second back surgery. However, the ALJ’s duty to undertake a full
inquiry “‘does not require a consultative examination at
government expense unless the record establishes that such an
examination is necessary to enable the [ALJ] to make the
disability decision.’” Pierre, 884 F.2d at 802. On this record,
the ALJ did not abuse his discretion in concluding that such an
examination was not “necessary.”

                                   10
“Guidelines”).6   Specifically, the ALJ stated:

     The claimant is presently twenty-six years of age,
     defined as a younger individual, with a high school
     education, plus one semester of vocational training in
     air conditioning and refrigeration. He testified at the
     hearing that he spends part of his day playing on the
     computer and the internet. Thus, he has at least some
     computer skills.    Based on the favorable vocational
     factors of the claimant’s young age, education, and work
     history,   the   [Guidelines]   were   consulted.      In
     promulgating the [Guidelines], administrative notice has
     been taken of the numbers of unskilled jobs that exist
     throughout the national economy at various functional
     levels, with approximately 1,600 unskilled sedentary and
     light occupations recognized. Based on the evidence, the
     aforementioned residual functional capacity and the
     favorable vocational factor of his age, Rule 202.21 of
     the Medical-Vocational Guidelines, 20 CFR, Part 404,
     Subpart P, Appendix 2, would direct a conclusion of “Not
     disabled.” However, because the record reflects that the
     claimant may also suffer[] from certain non-exertional
     limitations, such as the ability to only occasionally
     perform postural activities, such as kneeling, crouching,
     crawling or climbing, Rule 202.21 would also need to be


     6
          The Code section setting forth Step 5 of the process
provides, in relevant part:

     Your impairment(s) must prevent you from doing any other
     work.
           (1) If you cannot do any work you have done in the
               past because you have a severe impairment(s),
               we will consider your residual functional
               capacity and your age, education, and past
               work experience to see if you can do other
               work.    If you cannot, we will find you
               disabled.
           (2) If you have only a marginal education, and
               long work experience (i.e., 35 years or more)
               where you only did arduous unskilled physical
               labor, and you can no longer do this kind of
               work,   we   use   a   different   rule   (see
               § 404.1562).

20 C.F.R. § 404.1520(f)(1)-(2).
                                  11
       applied as a framework.     Based on the entire record,
       including the claimant’s educational background, his
       apparent computer skills, and his testimony that he had
       not taken any pain medication in the three weeks prior to
       the hearing, I find that even when Rule 202.21 is applied
       as a framework, these non-exertional limitations do not
       significantly erode the occupational base recognized by
       the [Guidelines].

McCuller argues that the ALJ erred in making these Step 5 findings

based solely on the Guidelines without the benefit of vocational

expert testimony.

       “Nonexertional limitations” are work limitations, other than

strength demands, that affect a claimant’s ability to meet the

demands of jobs, such as reaching, handling, stooping, crawling, or

crouching.     20 C.F.R. § 404.1569a(c)(iv).         Here, the ALJ concluded

that McCuller suffered from “certain non-exertional limitations,”

but   determined    that   “these    non-exertional        limitations       do   not

significantly      erode   the    occupational     base    recognized        by   the

[Guidelines].”      Where, as here, the claimant suffers from “non-

exertional impairments [that] do not significantly affect [the

claimant’s]     residual    functional       capacity,     the    ALJ    may      rely

exclusively on the Guidelines in determining whether there is other

work available that the claimant can perform.”                  Selders, 914 F.2d

at    618   (emphasis   added).      The     ALJ   did    not    err    in   relying

exclusively on the Guidelines.



                                      III.

                                   CONCLUSION

                                       12
     The   judgment   of   the   district   court   upholding   the   final

decision of the Commissioner is AFFIRMED.




                                    13
