                  UNITED STATES COURT OF APPEALS
                       For the Fifth Circuit



                             No. 99-30554


                          ALODIE CARNAHAN,

                                              Plaintiff-Appellant,


                                versus


       KENNETH S. APFEL, US COMMISSIONER OF SOCIAL SECURITY
                          ADMINISTRATION,

                                               Defendant-Appellee.




            Appeal from the United States District Court
        For the Western District of Louisiana, Lake Charles
                             (98-CV-1301)
                            January 8, 2001
Before REAVLEY, BENAVIDES, and DENNIS, Circuit Judges.

PER CURIAM:*

      Alodie Carnahan appeals the district court’s grant of summary

judgment in favor of the Commissioner, which affirmed the denial of

Social Security benefits.    We affirm.

                 I.   Facts and Procedural History

      Alodie Carnahan, born March 31, 1949, completed the tenth

  *
   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opinion should not be published and is not precedent except under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
grade and earned a general equivalency diploma. She has previously

worked as a construction worker and a convenience store assistant

manager.    In May of 1991, while working in the convenience store,

she suffered a work-related back injury.                Carnahan then began

treatment under several different doctors.              In November of 1991,

she underwent “nerve conduction studies,” which showed the presence

of mild L-5 irritation on the left side, but otherwise normal

results.     In January of 1992, Dr. R. Dale Bernauer, one of

Carnahan’s orthopedic surgeons, diagnosed lumbar spine strain and

facet arthritis.     He concluded that she could not engage in light

duty due to pain and would need surgery, which Carnahan never had.

      Dr. Kevin Gorin, Carnahan’s second orthopedic specialist,

treated her for the longest period of time.             In May of 1993, Dr.

Gorin noted that Carnahan had more pain than should be expected and

later suggested that she undergo a pain and personality evaluation.

In September of 1993, the evaluation showed that she seemed willing

to   cope   with   her   pain   and   could   benefit   from    learning   pain

management    skills.       Dr.   Gorin    continued     to    treat   Carnahan

throughout 1993, giving her peripheral injections.              In January of

1994, he reported that Carnahan’s problems were beginning to

improve, and he recommended a home stretching program. In March of

1994, Carnahan indicated to Dr. Gorin that she felt the best that

she had in years and had cut back on pain medication.              In June of

that year, Dr. Gorin noted that although Carnahan continued to

suffer from facet arthropathy, she had made excellent progress and

                                       2
could possibly return to light work.      In November of 1994, he found

improvement in both posture and body mechanics despite Carnahan’s

complaints of leg and foot pain.       Throughout 1995, Dr. Gorin noted

facet arthropathy and left sacroiliac joint dysfunction, but also

gradual improvement.    In 1996, he completed a Residual Functional

Capacity form in which he indicated that she could stand and/or

walk for a total of two hours, continuously for one-half hour, and

that she could sit for a total of six hours, continuously for two

hours.

     In October of 1994, Dr. John Humphries, the Commissioner’s

orthopedic specialist, examined Carnahan.           At the time, she had

been wearing a corset prescribed by Dr. Gorin, which reportedly

gave her some relief.    Dr. Humphries found tenderness at the lower

back, and Carnahan complained of low back pain when he lifted her

right leg in the supine position.       The testing of the left leg in

that position was unreliable because during the test she could only

elevate the leg half way, whereas Dr. Humphries noted that Carnahan

had spontaneously lifted the leg fully in the seated position

earlier.   His report noted moderate degenerative disk disease and

substantial   facet     arthropathy,     but   no     hard   neurological

abnormalities upon physical examination.       Dr. Humphries concluded

that Carnahan “should be able to stand, sit or walk although she

may need to alternate intervals” and could perform light or even

medium work with the proper liberties.

     Carnahan applied for benefits on July 27, 1994, but the

                                   3
application was denied.        After reconsideration, a hearing was held

before an     Administrative     Law    Judge    (ALJ)   on    March      21,    1996.

Carnahan testified that she had a deep pain in her hip and a

throbbing pain in her back.          She said that her legs gave out, the

most   recent   time   being    in     1995,    and   that    she   was    on    pain

medication.     She testified that she did little walking, squirmed

while sitting so she could not sit continuously for two hours, and

found standing the most difficult position.                  Carnahan’s daughter

testified that her mother was usually in her recliner or bed.

       On May 8, 1996, the ALJ denied benefits.                     Although she

concluded   that   Carnahan     was     unable   to   return     to    her      former

employment, the ALJ found that she could make an adjustment to

other sedentary work.      The ALJ determined that Carnahan suffered

from degenerative disc disease, facet arthropathy, and sacroiliac

joint dysfunction, but that evidence supported a finding that she

was not disabled.      Carnahan filed suit in the district court.                  The

district court found that the Commissioner’s decision was supported

by substantial evidence and consistent with legal standards.

                         II.    Standard of Review

       “We review the Secretary’s decision only to determine whether

it is supported by substantial evidence on the record as a whole

and whether the Secretary applied the proper legal standard.”

Greenspan v. Shalala, 38 F.3d 232, 236 (5th Cir. 1994) (citing 42

U.S.C. §§ 405(g), 1383 (c)(3)).             “Substantial evidence is ‘such

relevant evidence as a reasonable mind might accept as adequate to

                                        4
support a conclusion.’          In applying the substantial evidence

standard, we scrutinize the record to determine whether such

evidence is present.        We may not reweigh the evidence, try the

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

Secretary.”    Id. (citing Richardson v. Perales, 402 U.S. 389, 401

(1971)) (in turn citing Consolidated Edison Co. v. NLRB, 305 U.S.

197, 229 (1938)).

     Disability is defined as the “inability to engage in any

substantial     gainful     activity         by    reason   of   any    medically

determinable physical or mental impairment which can be expected to

result in death or which has lasted or can be expected to last for

a continuous period of not less than 12 months.”                     42 U.S.C. §

423(d)(1)(A) (2000).        A physical or mental impairment is “an

impairment    that    results     from       anatomical,      physiological,      or

psychological abnormalities which are demonstrable by medically

acceptable clinical and laboratory diagnostic techniques.”                   Id. §

423(d)(3).     An individual is “under a disability, only if his

physical or mental impairment or impairments are of such severity

that he is not only unable to do his previous work but cannot,

considering his age, education, and work experience, engage in any

other kind of substantial gainful work which exists in the national

economy . . .”    Id. § 423(d)(2)(A).

                                III.   Analysis

     On appeal, Carnahan argues that the ALJ erred by relying

solely on the Medical Vocational Guidelines.                  First, she argues

                                         5
that her pain constitutes a significant nonexertional factor that

prohibits reliance on the guidelines.                Second, she argues that

there was not substantial evidence to support a finding of not

disabled. Finally, she argues that the ALJ erred by not consulting

a vocational expert because she is limited by a need to alternate

between sitting and standing.

A.   Pain

       Carnahan contends that the ALJ’s conclusion that she had no

“significant nonexertional limitations which narrow the range of

work    she   can       perform”   was   erroneous    and   not   supported     by

substantial evidence. She claims that her pain was a nonexertional

limitation, pointing to evidence that she needed to alternate

sitting and standing, to walk continuously only for one-half hour,

to never climb or crawl due to pain, and to limit reaching because

of pain.

       Nonexertional limitations “affect only . . . [the] ability to

meet the demands of jobs other than strength demands.”                  20 C.F.R.

§ 416.969a (2000).          “Pain may constitute a nonexertional factor

that can limit the range of jobs a claimant can perform.”                Scott v.

Shalala, 30 F.3d 33, 35 (5th Cir. 1994).             However, there should be

“clinical     or    laboratory     diagnostic    techniques     which   show   the

existence     of    a    medical   impairment   which   could     reasonably    be

expected to produce the pain alleged.”               Selders v. Sullivan, 914

F.2d 614, 618 (5th Cir. 1990).                Pain is disabling when it is

“constant, unremitting, and wholly unresponsive to therapeutic

                                          6
treatment.”     Id. at 618-19 (internal citations omitted).          If a

claimant suffers from a nonexertional limitation, the ALJ must rely

on a vocational expert to establish that jobs exist in the economy.

Newton v. Apfel, 209 F.3d 448, 458 (5th Cir. 2000).

     There is substantial evidence to support the ALJ’s findings

that Carnahan had no significant nonexertional limitations of pain.

There is certainly evidence that she has pain; however, there is

not substantial evidence that the pain is “wholly unresponsive to

therapeutic treatment.”      Selders, 914 F.2d at 618-19.          On the

contrary, Carnahan’s relationship with Dr. Gorin shows that her

pain was responsive to treatment.        She admitted to feeling relief

from pain medication and a prescribed corset, and Dr. Gorin’s notes

indicate a pattern of improvement.

     Furthermore, an ALJ’s assessment of a claimant’s credibility

is accorded great deference.      Newton, 209 F.3d at 459.     Here, the

ALJ found that the “claimant’s statements concerning her impairment

and its impact on her ability to work are not entirely credible in

light of the degree of medical treatment required, the reports of

the treating and examining practitioners, and the findings made on

the examination.”   We find that statement supported by substantial

evidence.     For example, Dr. Humphries’ report indicates that

Carnahan provided unreliable testing data.

B.   Substantial medical evidence

     Carnahan    argues   that   there   was   not   substantial   medical

evidence to support a finding of not disabled.         She contends that

                                    7
Dr. Gorin’s Residual Functional Capacity form is unclear and does

not constitute substantial evidence. She also alleges that the ALJ

erred in considering only part of Dr. Humphries’ report.

     Carnahan’s arguments are without merit.         “We have long held

that ‘ordinarily the opinions, diagnoses, and medical evidence of

a treating physician who is familiar with the claimant’s injuries,

treatments, and responses should be accorded considerable weight in

determining disability.’” Greenspan, 38 F.3d at 237 (quoting Scott

v. Heckler, 770 F.2d 482, 485 (5th Cir. 1985)).      However, when good

cause is shown, such as statements that are brief and conclusory or

unsupported by medically acceptable techniques or evidence, the

testimony may be given little or no weight.         Id. (quoting Scott,

770 F.2d at 485).   We find that Dr. Gorin’s opinion was entitled to

considerable weight as Dr. Gorin was her treating physician and had

the most extensive relationship with her.            His report is not

unclear as it indicates Carnahan can walk or stand for one-half

hour continuously and can sit for two hours continuously.          It is

also consistent with Dr. Humphries’ diagnosis, which concluded that

Carnahan could even perform light to medium work if her need to

alternate sitting and standing was accommodated. The ALJ’s opinion

shows that she considered all of the evidence carefully and found

that Dr. Gorin’s opinion outweighed the earlier conclusion of Dr.

Bernauer.

C.   Vocational Expert

     Relying   solely    on   the   Medical   Vocational   Guidelines   of

                                     8
Appendix 2 of the regulations, the ALJ concluded that Carnahan was

not disabled.     Based on the evidence, the ALJ found that Carnahan

could engage in sedentary work, and that, because of her residual

functional capacity, age, education, and work experience, the

guidelines demonstrated a significant number of available jobs.

Thus, the ALJ found Carnahan to be not disabled.            Carnahan argues

that the ALJ erred by not consulting a vocational expert as to how

her need to alternate sitting and standing would affect her ability

to perform the full range of sedentary work.

     Because we have found that substantial evidence supports the

ALJ’s factual     conclusions,    we   must     now   determine       if   the    ALJ

followed the proper legal standards in finding that Carnahan could

perform a full range of sedentary work.           Scott, 30 F.3d at 34.            In

finding Carnahan not disabled because she had the exertional

capacity    for   sedentary    work   without    relying   on     a    vocational

expert’s    testimony,   the   ALJ    assumed    that   Carnahan’s         need   to

alternate sitting and standing could be accommodated by breaks at

two-hour intervals.

     The Medical Vocational Guidelines were promulgated to improve

uniformity and efficiency.       Heckler v. Campbell, 461 U.S. 458, 461

(1983); see 20 C.F.R. Pt. 404, Subpt. P, App. 2.           The Supreme Court

has explained the guidelines as follows:

     These guidelines relieve the Secretary of the need to

     rely    on   vocational    experts    by   establishing      through

     rulemaking the types and numbers of jobs that exist in

                                       9
      the national economy.             They consist of a matrix of the

      four factors identified by Congress–physical ability,

      age, education, and work experience–and set forth rules

      that    identify         whether         jobs    requiring      specific

      combinations       of   these      factors      exist   in   significant

      numbers in the national economy . . . If such work

      exists, the claimant is not considered disabled.

Campbell, 461 U.S. at 461-62.               This circuit has held “that the

Secretary    may    rely      on   the    medical-vocational         guidelines    to

establish that work exists for a claimant only if the guidelines’

‘evidentiary underpinnings coincide exactly with the evidence of

disability appearing on the record.’”                 Scott, 30 F.3d at 34.

      The Social Security Regulations define sedentary work as

involving lifting no more than ten pounds at a time, occasionally

lifting small items, and sitting with a certain amount of walking

and standing. 20 C.F.R. §§ 404.1567, 416.967. The Social Security

Administration has also issued several rulings addressing the

definition of sedentary work and the implications of the need to

alternate sitting and standing.2               Social Security Ruling (SSR) 83-

10 states that, for sedentary work, one should stand or walk no

more than two hours of an eight-hour workday and should sit

approximately      six   hours     of    the    workday.      1983   WL   31251,   *5

  2
    The Social Security Administration’s rulings are not binding on
this court, but may be consulted when the statutes provide little
guidance. B.B. ex. rel. A.L.B. v. Schweiker, 643 F.2d 1069, 1071
(5th Cir. 1981).

                                           10
(S.S.A.).

      SSR 83-12 states,

      Where an individual’s exertional RFC [residual functional

      capacity] does not coincide with the definition of any

      one of the ranges of work . . ., the occupational base is

      affected and may or may not represent a significant

      number   of   jobs   in   terms    of   the   rules   directing   a

      conclusion    as   to   disability.      The   adjudicator   will

      consider the extent of any erosion of the occupational

      base and access its significance . . . Where the extent

      of erosion of the occupational base is not clear, the

      adjudicator will need to consult a vocational resource.

1983 WL 31253, *2 (S.S.A.).             Furthermore, if a claimant must

alternate positions, that person is not functionally capable of the

prolonged sitting contemplated by sedentary work, but persons who

can adjust to any need to alternate by doing so at breaks and lunch

periods could still perform a defined range of work.             Id. at *4.

      SSR 96-9p3 defines a full range of sedentary work as remaining

  3
   SSR 96-9p became effective on July 2, 1996, after the
Commissioner affirmed the denial of Carnahan’s benefits; however,
while we acknowledge that the ruling was not binding precedent on
the ALJ, we nevertheless consult the ruling for guidance on this
issue. In doing so, we agree with the Seventh Circuit’s analysis
in Lauer v. Apfel, 169 F.3d 489, 492 (7th Cir. 1999) (“SSRs are
interpretive rules intended to offer guidance to agency
adjudicators. While they do not have the force of law or properly
promulgated notice and comment regulations, the agency makes SSRs
‘binding on all components of the Social Security Administration.’
The parties do not dispute the application of SSR 96-9p to this
case, even though the SSR was not issued until after [appellant’s]

                                        11
“in a seated position for approximately 6 hours of an 8-hour

workday, with a morning break, a lunch period, and an afternoon

break at approximately 2-hour intervals.          If an individual is

unable to sit for a total of 6 hours in an 8-hour workday, the

unskilled sedentary occupational base will be eroded.”            1996 WL

374185, *6 (S.S.A.).     If a claimant needs to alternate between

sitting and standing, the ruling concludes that “[w]here this need

cannot be accommodated by scheduled breaks and a lunch period, the

occupational base for a full range of unskilled sedentary work will

be eroded” and that the extent of erosion will depend on the facts,

including the frequency of the need to alternate.         Id. at *7.

     We find that the ALJ applied the proper legal standard.        There

is substantial evidence that Carnahan can sit for six hours, as

evidenced by Dr. Gorin’s Residual Functional Capacity report. This

ability meets the evidentiary underpinnings of the guidelines. See

Scott, 30 F.3d at 34.      There is also substantial evidence that

Carnahan can sit continuously for two hours; thus, she can adjust

her need to alternate positions with breaks every two hours.        In so

holding, we find that an ALJ may properly consider whether a

claimant’s   need   to   alternate    sitting   and    standing   may   be

accommodated by “a morning break, a lunch period, and an afternoon

break at approximately 2-hour intervals.”             SSR 96-9p, 1996 WL

374185 at *6.   This interpretation is consistent with the SSRs, as



administrative hearing.”) (internal citations omitted).

                                     12
SSR 96-9p does not consider the full range of unskilled sedentary

work to be eroded where the need to alternate positions can be

accommodated by “scheduled breaks and a lunch period,” and SSR 83-

12 considers individuals who may adjust with scheduled breaks to be

able to perform a defined range of work.

      We are equally persuaded by the case law of the Fifth Circuit.

Most relevant is Scott v. Shalala, 30 F.3d at 34, where the court

concluded that “[b]ecause Scott must alternate between sitting and

standing as needed, Scott’s exertional capabilities do not fit

within the definition of sedentary work.”        (emphasis added).      The

court remanded for consideration of vocational expert testimony.

Id.   Here, unlike in Scott, where the ALJ specifically found that

Scott required the option to sit or stand as needed, the ALJ

adopted   the   findings   of   Dr.   Gorin   that   Carnahan   could   sit

continuously for two hours without needing to stand.            Thus, the

guidelines’ “evidentiary underpinnings coincide exactly with the

evidence of disability appearing on the record.”            Id. (quoting

Lawler, 761 F.2d at 197).       Additionally, Moon v. Bowen, 810 F.2d

472, 473 (5th Cir. 1987), involved a claimant who testified that he

could sit for two hours before his pain increased.         The ALJ relied

solely on the guidelines to find him not disabled as he could

perform sedentary work.     Id.   The denial of benefits was affirmed

on the age factor, but the case implicitly demonstrates that the

ability to sit for two hours continuously was justification for



                                      13
reliance on the guidelines.

      We also find support for our decision that reliance on the

medical guideline was appropriate in the persuasive authority of

other courts who have addressed substantially similar issues.               In

Johnson v. Shalala, No. 2:92 CV 279, 1994 WL 809110, *4 (N.D. Ind.

Nov. 30, 1994), a claimant could not sit for more than an hour so

the ALJ properly consulted a vocational expert.              In    Wages   v.

Secretary of Health and Human Services, 755 F.2d 495, 499 (6th Cir.

1985), the court reversed a denial of benefits because the claimant

had   to   alternate   between   sitting    and   standing    as   she   found

necessary and thus could not perform the range of sedentary work.

Howse v. Heckler, 782 F.2d 626, 627-28 (6th Cir. 1986), reversed a

denial of benefits on the basis that the claimant could not perform

sedentary work because he was incapable of sitting or standing for

longer than one hour at a time.          In Davis v. Secretary of Health

and Human Services, 915 F.2d 186, 188 (6th Cir. 1990), an ALJ

consulted a vocational expert because the claimant’s doctor said he

could sit only four hours of an eight-hour workday.           See Talbott v.

Bowen, 821 F.2d 511, 515 (8th Cir. 1987) (Because the claimant could

sit for only an hour at a time, the court found that the guidelines

could not replace expert testimony).        In Shiner v. Heckler, No. 84-

0703-C, 608 F.Supp. 481, 484 (D. Mass. May 7, 1985), the claimant

could only sit for ten minutes at a time, and a vocational expert

was consulted.     The court found that where a claimant has to

interrupt work with periods of prone rest, he cannot perform

                                    14
sedentary work, but that an ability to perform sedentary work must

be predicated on a finding that claimant can sit for most of the

day with occasional interruptions of short durations.   Id. at 484.

Unlike Carnahan, these claimants were not able to accommodate their

need to alternate positions with breaks at two-hour intervals.

     Therefore, based on a review of the applicable regulations,

rulings, and persuasive case law, we find Carnahan’s argument that

vocational expert testimony was required without merit.

                         IV.   Conclusion

     For the foregoing reasons, the decision of the district court

is AFFIRMED.




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