                                                            United States Court of Appeals
                                                                     Fifth Circuit
                                                                  F I L E D
                    UNITED STATES COURT OF APPEALS
                         for the Fifth Circuit                     August 9, 2004

                                                               Charles R. Fulbruge III
                                                                       Clerk
                              No. 03-30873




                            BILLIE J. HARPER,

                                                    Plaintiff-Appellant,


                                  VERSUS


       JO ANNE B. BARNHART, COMMISSIONER OF SOCIAL SECURITY


                                                     Defendant-Appellee.



            Appeal from the United States District Court
                for the Western District of Louisiana
                              02-CV-869




Before HIGGINBOTHAM, DAVIS and EMILIO M. GARZA, Circuit Judges,

PER CURIAM:*

      On October 26, 1998, Billie J. Harper (“Harper”) filed an

application for disability benefits.          Harper requested benefits

relating back to the date a knee injury and heart condition forced

him to quit his work as a self-employed, drilling and work over

consultant.     He was 57.      The Commissioner of Social Security


  *
    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should not be published and is not precedent except under the limited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.
(“Commissioner”)    denied    his   application    initially      and   upon

reconsideration. Harper requested and was granted a hearing before

an administrative law judge (“ALJ”) to appeal the Commissioner’s

ruling.   The hearing was held on January 12, 2000.

     On May 19, 2000, the ALJ issued an opinion finding that Harper

was not disabled.   The ALJ found that 1) Harper had not engaged in

gainful activity    since    September   22,   1997,    2)   Harper   was   of

advanced age, 3) Harper had no transferrable skills, 3) Harper was

able to lift 50 pounds occasionally and 25 pounds frequently, 4)

Harper was unable to climb, kneel, squat, and could not push or

pull using his left leg, 5) Harper could sit for eight hours in an

eight hour day but could stand for only thirty minutes at a time

for up to two hours in an eight hour day, and 6) Harper had a high

school education and vocational training.          At step five of the

disability analysis, the ALJ determined that Harper could perform

medium work and was therefore able to perform work found in

significant numbers in the national economy, i.e. Harper was not

disabled.   Harper appealed that decision to the district court.

The district court affirmed the ALJ’s judgment based upon a report

and recommendation from the magistrate.         Harper now appeals the

district court judgment to this court.

     Harper complains that the ALJ erred in finding that he was

capable of medium work and thus able to perform work available in

significant numbers in the national economy.           He asserts that his

advanced age, lack of transferrable skills, and limited education

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should dictate a finding of disability.

      Under federal regulations in place at the time Harper applied

for social security benefits, severely impaired individuals over

the age of 55 are considered disabled unless they are able to

perform medium work or have skills that could be used in less

demanding jobs:

      Person of Advanced Age. We consider that advanced age
      (55 or over) is the point where age significantly affects
      a person’s ability to do substantial gainful activity.
      If you are severely impaired and of advanced age and you
      cannot do medium work . . . you may not be able to work
      unless you have skills that can be used in (transferred
      to) less demanding jobs which exist in significant
      numbers in the national economy.

20 C.F.R. § 404.1563 (1999).1

      The ALJ’s conclusion of “not disabled” was based upon a

finding that Harper was capable of performing medium work:

      The claimant can lift and carry 50 pounds occasionally
      and 25 pounds frequently. The claimant can sit for eight
      hours in an eight-hour day. The claimant can also stand
      and walk for thirty minutes at a time for a total of two
      hours in an eight-hour day.     The claimant, however,
      cannot climb, kneel or squat. In addition, the claimant
      cannot push or pull using his left lower extremity.

      * * *

      Based on an exertional capacity for work, and the
      claimant’s age, education, and work experience, medical-
      vocational rule 203.15, used as a framework for decision
      making, justifies a conclusion of “not disabled.”



   1
     On April 6, 2000 the regulations were changed slightly to be more specific
about when those of advanced age are still able to work despite impairments. 20
C.F.R. § 404.1568(d)(4) (2004). We do not comment on these current regulations
since both parties are in agreement that the prior regulations should be applied.


                                       3
ALJ Opinion, at 10, 11.

      The ALJ’s conclusion is flawed, however, because the ALJ’s

evaluation of Harper’s residual functional capacities do not allow

a finding that he is capable of medium work.                    While federal

regulations define the ability to do medium work as simply the

ability to lift 50 pounds occasionally and 25 pounds frequently, 20

C.F.R. § 404.1567(c), social security rulings interpreting that

regulation dictate that “[a] full range of medium work requires

standing or walking, off and on, for a total of approximately 6

hours in an 8-hour workday in order to meet the requirements of

frequent lifting or carrying objects weighing up to 25 pounds.”

Social Security Ruling 83-10, Titles II and XVI: Determining

Capability    to    do   Other   Work--The   Medical-Vocational       Rules   of

Appendix 2.2       The ALJ’s determination that Harper cannot walk or

stand more than two hours in an eight-hour workday mandates the

conclusion that he is not capable of the full range of medium work.

      As such the ALJ’s finding of “not disabled” based upon 20

C.F.R. § 404.1563(d) and 20 C.F.R. Pt. 404, Subpt. P, App. 2, §

203.15 is not appropriate.         Accordingly we reverse and remand for

a more specific evaluation of Harper’s level of exertional capacity

and ability to perform work present in significant numbers in the


   2
     “The Social Security Administration's rulings are not binding on this court,
but they may be consulted when the statute at issue provides little guidance.
The Fifth Circuit has frequently relied upon the rulings in evaluating ALJs'
decisions.”     Myers v. Apfel, 238 F.3d 617, 620 (5th Cir. 2001) (citations
omitted).


                                       4
national economy given his skills and education.



REVERSE and REMAND.




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