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

                                                                            FILED
                                                                           July 18, 2008

                                     No. 07-51343                     Charles R. Fulbruge III
                                   Summary Calendar                           Clerk


JESUS M DOMINGUEZ

                                                  Plaintiff-Appellant
v.

MICHAEL J ASTRUE, COMMISSIONER OF SOCIAL SECURITY

                                                  Defendant-Appellee



                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 1:06-CV-913


Before KING, DAVIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
       The Commissioner of the Social Security Administration (“Commissioner”)
denied Jesus M. Dominguez’s claim for Social Security Disability Insurance
Benefits (“DIB”). The district court affirmed that denial. For the reasons stated
below, we affirm the district court.




       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
                                No. 07-51343

                     I. FACTS AND PROCEEDINGS
     The district court summarized the facts and procedural history in its order
affirming the Commissioner’s decision to deny Dominguez’s claims:
            Plaintiff Jesus Dominguez (“Dominguez”) filed for disability
     benefits on July 22, 2004 with an alleged onset date for his
     disability of April 1, 1989. In disability reports dated July 17 and
     April 17, 2004, Dominguez described himself as suffering from
     cirrhosis of the liver, mental confusion, back pain, sleep apnea and
     decreased hearing. He stated his conditions limited his ability to
     work because he was unable to sit, stand or walk for prolonged
     periods of time and had mental confusion.               According to
     [Dominguez], he was first bothered by his conditions in 1989 and
     became unable to work at the same time.
            Dominguez reported losing his job both because of back pain
     and seizures, as well as company downsizing. In listing his prior
     jobs, [Dominguez] noted he had worked as a delivery driver from
     some time in 1982 to September 1987 and again from January to
     February 1989, but had not worked since.
            Records from Seton Medical Center indicate [Dominguez] was
     admitted through the emergency room on March 13, 1991. He
     reported having a seizure about 3:00 a.m. in his home while
     standing at a sink. The records note Dominguez reported a past
     history of frequent alcohol use, which he had stopped about five
     days prior. The impression noted is an isolated seizure, which was
     treated with Dilantin. His EEG, heart, lungs, vascular and bony
     structures were reported as normal and his blood chemistry was
     also within normal limits. The records note [Dominguez] had no
     past medical history and was taking no medications. [Dominguez]
     was released the following day with directions for follow up care at
     the VA clinic, but with no restrictions on his activity or diet.
            ....
            [Dominguez’s] disability application was denied initially on
     August 30, 2004, and upon reconsideration on November 3, 2004.
     On December 17, 2004, [Dominguez] requested a hearing before an
     administrative law judge (“ALJ”).
            On February 3, 2006, the ALJ conducted an administrative
     hearing, as which [Dominguez] appeared and was represented by
     counsel. Dominguez testified at the hearing he was currently fifty
     eight and the highest level of education he had acheived was a GED.
     He was married and living with his wife in a house.


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       [Dominguez] testified he became disabled on April 1, 1989 as
a result of seizures. He reported having two or three seizures at
that time and stated he had not worked since. Dominguez testified
he had worked as a delivery driver, although he conceded he was
not working at the time of his seizures. According to [Dominguez],
he did not return to work because companies would not hire him to
drive due to insurance concerns.
       ....
       Dominguez reported drinking a six pack of beer each day in
1989. He testified he stopped drinking in 1989 or 1990, after his
seizures, when a doctor told him the seizures were probably because
of the alcohol. [Dominguez] stated he began attending Alcoholics
Anonymous some time after, when he was diagnosed with liver
damage. He began attending as a requirement of staying in the
transplant program at Baylor Hospital.
       ....
       [After the ALJ heard further testimony from Dominguez and
his wife describing Dominguez’s other conditions including water
retention, memory problems, depression, and sleep apnea,]
[v]ocational expert Donna Eagar (“Eagar”) also testified at the
hearing. Eagar classified [Dominguez’s] prior job as delivery driver
as medium, semi-skilled work. She noted his additional tasks of
occasional household appliance delivery and installation were rated
as heavy, skilled work. Eagar classified Dominguez’s former job at
a lumber yard as heavy, semi-skilled work.
       In response to the ALJ’s hypothetical, Eagar testified that an
individual with the same age, education, and work history as
[Dominguez] who is limited to medium simple work could perform
the duties of a dining room attendant, or busboy, a hardware
assembler, or a bagger in a grocery store. The judge further posed
a claimant with the additional restriction of no hazardous
machinery and delivery work driving, plus no climbing of scaffolds
and ladders. Eagar testified such an individual would possibly be
unable to work as a bagger, but could work as a hospital cleaner.
Eagar further stated a person who was performing the job at the
bottom level of acceptable would be able to maintain employment.
She admitted an individual who missed work more than two times
per month would not maintain employment.
       In a March 29, 2006 decision, the ALJ denied [Dominguez’s]
claim on the grounds that he was not under a “disability,” as defined
in the Social Security Act. The ALJ concluded [Dominguez’s]
seizure disorder was severe within the meaning of the regulations,

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      but not severe enough to meet a listed impairment. She found,
      despite his exertional limitations, [Dominguez] was able to perform
      a significant range of medium work.
            [Dominguez] appealed.          The Appeals Council denied
      [Dominguez’s] request for review of the ALJ’s decision on September
      19, 2006. [Dominguez] filed this action seeking judicial review of
      the ALJ’s decision on November 16, 2006.
Dominguez v. Astrue, No. 06-CA-913, slip op. at 3–8 (W.D. Tex. Oct. 9, 2007). The
magistrate judge entered a Report and Recommendation in which he found that
the decision of the Commissioner was supported by substantial evidence and was
in accord with the relevant legal standards. He recommended affirming the
Commissioner’s decision.      Dominguez filed objections to the Report and
Recommendation. The district court adopted the Report and Recommendation,
affirmed the Commissioner and dismissed Dominguez’s complaint on October 9,
2007. Dominguez appeals.
                        II. STANDARD OF REVIEW
      This court’s “review of the Commissioner’s decision is limited to
determining whether that decision is supported by substantial evidence and
whether the Commissioner has employed the correct legal standards.” Kinash
v. Callahan, 129 F.3d 736, 738 (5th Cir. 1997). “Substantial evidence is such
relevant evidence as a reasonable mind might accept to support a conclusion.
It is more than a mere scintilla and less than a preponderance. . . . In our review,
we do not reweigh the evidence nor do we substitute our judgment for that of the
Secretary.”   Ripley v. Chater, 67 F.3d 552, 555 (5th Cir. 1995) (internal
quotations and footnotes omitted).
                                III. ANALYSIS
      Dominguez makes three arguments on appeal. First, he argues that the
ALJ applied the incorrect legal standard regarding alcohol addiction between
Dominguez’s last-insured date of March 1992 and his hearing in February 2006.
Second, Dominguez argues that the ALJ’s decision that his testimony was not


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credible was not based on the proper legal standard. Third, Dominguez argues
that the ALJ’s decision did not consider his impairments and whether he could
perform work under the proper legal standard.
A.    The ALJ’s Application of the Legal Standards Regarding Alcohol
      Addiction
      To be eligible for DIB, a claimant must be insured. See George v. Chater,
76 F.3d 675, 676 (5th Cir. 1996) (citing 42 U.S.C. § 423(a)(1)(A)). The claimant
bears the burden of establishing a disabling condition before the expiration of his
insured status. See Anthony v. Sullivan, 954 F.2d 289, 295 (5th Cir. 1992)
(citing 42 U.S.C. § 423(a), (c)). Evidence showing degeneration of a condition
after the expiration of a claimant’s insured status is not relevant to the
Commissioner’s disability analysis. See Torres v. Shalala, 48 F.3d 887, 894 n.12
(5th Cir. 1995). The parties agree that Dominguez was last insured on March
31, 1992. Therefore, the timeframe for the ALJ’s consideration of Dominguez’s
disability claim is from April 1, 1989 (the date of the alleged onset of the
disability) to March 31, 1992.
      Dominguez argues that the ALJ should have evaluated his claim under the
legal standards that existed at the time of his alleged impairment in 1992, when
alcoholism would not have been a bar to receiving benefits. In March 1996,
Congress passed the Contract with America Advancement Act (“CAAA”), which
precluded Social Security benefits if either drug addiction or alcoholism is a
contributing factor material to a determination of a disability and applied “to
any individual who applies for, or whose claim is finally adjudicated by the
Commissioner of Social Security with respect to, benefits under title II of the
Social Security Act based on disability on or after the date of the enactment of
this Act.” Pub. L. No. 104-121, § 105, 110 Stat. 847, 853 (1996). This court has
interpreted that language to preclude an award of benefits for claims based on
alcoholism as a disability adjudicated after the March 29, 1996 passage of the


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statute, regardless of when the disabling condition began. See Brown v. Apfel,
192 F.3d 492, 497 (5th Cir. 1999) (affirming the retroactive application of the
CAAA).
      Dominguez did not file his disability claim until July 2004, eight years
after the 1996 enactment of the CAAA. Because his claim was not finally
adjudicated before March 1996, the CAAA would have precluded any award for
alcoholism-based benefits. Even though Dominguez notes that he met the listing
for severe cirrhosis of the liver in 1996, his last date insured was March 31,
1992; therefore, the ALJ was not allowed to consider evidence showing
degeneration of a condition after the expiration of a claimant’s insured status.
      Regardless, the record for the relevant time period of April 1989 to March
1992 does not support an alcohol-based disability finding. The record does not
contain any medical records from Dominguez’s alleged date of disability onset
on March 1, 1989 to March 13, 1991. On March 13, 1991, Dominguez went to
the hospital and self-reported a seizure. At that time, doctors documented
Dominguez’s history of frequent alcohol use, but noted that he had stopped using
alcohol days prior to the seizure.     The physician’s report indicated that
Dominguez was taking no medications and otherwise seemed in satisfactory
health. The doctor released Dominguez without restrictions on diet or work.
Although the ALJ considered Dominguez’s testimony that he “might” have been
drinking considerably in 1989, substantial evidence supports the ALJ’s
determination that, prior to March 1992, Dominguez was not disabled. Contrary
to Dominguez’s assertion, the ALJ was not required to obtain medical expert
testimony to determine whether his alcohol use was disabling; the use and
consideration of medical expert testimony is solely within the discretion of the
ALJ. See 20 C.F.R. §§ 404.1526, 404.1527(f)(2)(iii).




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B.    The ALJ’s Consideration of Dominguez’s Testimony
      “The evaluation of a claimant’s subjective symptoms is a task particularly
within the province of the ALJ, who has had an opportunity to observe whether
the person seems to be disabled.” Loya v. Heckler, 707 F.2d 211, 215 (5th Cir.
1983) (per curiam). “Moreover, a factfinder’s evaluation of the credibility of
subjective complaints is entitled to judicial deference if supported by substantial
record evidence.” Villa v. Sulllivan, 895 F.2d 1019, 1024 (5th Cir. 1990).
      The record indicates that, after considering the medical evidence,
application documents, and testimony at the hearing, the ALJ found that
Dominguez’s allegations regarding his limitations were not credible and listed
in detail her reasons for discounting his credibility. “[W]e have no power to
determine if the record contains substantial evidence to support [Dominguez’s]
claim; instead, we are confined to questioning only whether substantial evidence
supports the [ALJ’s] judgment.” Hollis v. Bowen, 837 F.2d 1378, 1384 (5th Cir.
1988) (per curiam). We hold that it does. Our review of the record indicates that
substantial evidence existed to support the ALJ’s finding regarding Dominguez’s
credibility, including the fact that, aside from the doctor’s report after
Dominguez’s visit to the hospital in March 1991, no other objective medical
evidence of impairment was presented for the relevant period between April
1989 to March 1992. See id. at 1385 (holding that the absence of objective
factors can justify the conclusion that a witness lacks credibility). In addition,
the ALJ considered Dominguez’s daily activities, which included performing
contracted landscaping from time to time.          Finally, the ALJ considered
Dominguez’s testimony about the location, duration, frequency, and intensity of
his symptoms, but an individual’s own statements regarding pain and symptoms
are not determinative of disability status. See 20 C.F.R. § 404.1529.




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C. The ALJ’s Determination of Disability
      The five-step legal standard for “determining whether or not a claimant
is capable of performing substantial gainful activity” is set out in 20 C.F.R.
§ 404.1520(b)-(f). Harrell v. Bowen, 862 F.2d 471, 475 (5th Cir. 1988) (per
curiam). The steps are:
            1. An individual who is working and engaging in substantial
      gainful activity will not be found disabled regardless of the medical
      findings.
            2. An individual who does not have a “severe impairment” will
      not be found to be disabled.
            3. An individual who meets or equals a listed impairment in
      Appendix 1 of the regulations will be considered disabled without
      consideration of vocational factors.
            4. If an individual is capable of performing the work he has
      done in the past, a finding of “not disabled” must be made.
            5. If an individual’s impairment precludes him from
      performing his past work, other factors including age, education,
      past work experience, and residual functional capacity must be
      considered to determine if other work can be performed.
Id. Dominguez bears the burden of proving the first four steps. See Watson v.
Barnhart, 288 F.3d 212, 216 (5th Cir. 2002). After that, the burden shifts to the
ALJ to prove the fifth step. Id. Social Security rules and regulations reserve to
the Commissioner the final responsibility for determining an individual’s
residual functional capacity, of whether that residual functioning capacity
prevents him from doing past relevant work, and the ultimate question of
whether an individual is disabled under the Social Security Act. See 20 C.F.R.
§ 404.1527.
      Dominguez complains that the ALJ erred by not proving the fifth step.
This argument is without merit. Although the ALJ found that Dominguez met
his burden for steps one through four, the ALJ satisfied her burden in proving
step five to determine that Dominguez retained the residual functioning capacity


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to perform a significant range of medium work, including lifting and carrying
fifty pounds occasionally and twenty-five pounds frequently, and sitting,
standing, or walking for six hours in an eight-hour workday. The ALJ also found
that Dominguez was able to understand, remember, and carry out simple,
repetitive tasks.
      Dominguez argues that the ALJ’s residual functioning capacity
assessment was inconsistent with the findings of the treating and examining
doctors. However, the records available for the relevant time period, April 1989
to March 1992, do not support his argument. The ALJ properly considered the
opinions of the state agency medical consultants who evaluated the evidence at
the initial and reconsideration stages of the administrative review process, see
20 C.F.R. § 404.1527(f); those physicians determined that the medical records for
that time period did not establish evidence of cirrhosis of the liver, heart
problems, hearing problems, sleep apnea, or mental impairment.
      Dominguez further argues that the ALJ failed to prove that he could
perform work existing in significant numbers in the national economy. The ALJ
may meet that burden either by relying on the medical-vocational guidelines
contained in Appendix 2 of the Social Security regulations or by obtaining the
testimony of a vocational expert. See Fraga v. Bowen, 810 F.2d 1296, 1304 (5th
Cir. 1987). Here, the ALJ properly relied on vocational expert testimony to
demonstrate the existence of a significant number of jobs in the national
economy that he could perform.       Specifically, the record reveals that the
vocational expert related that there were 20,000 dining room attendant jobs in
Texas and 270,000 in the nation; 8,000 hardware assembler jobs in Texas and
270,000 in the nation; 50,000 grocery bagger jobs in Texas and 600,000 in the
nation; and 18,000 hospital cleaner jobs in Texas and 240,000 in the nation.
“Under 42 U.S.C. § 423(d)(2)(A) and 20 C.F.R. § 404.1566, work exists in
significant numbers in the national economy if it exists in significant numbers


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in either the region where the claimant lives or in other regions of the country.”
Lirley v. Barnhart, 124 F. App’x 283, 283–84 (5th Cir. 2005) (per curiam). A
common-sense reading of the ALJ’s findings reveals that the ALJ succeeded in
meeting his burden for proving that work that Dominguez was qualified to
perform existed in significant numbers in the national economy.
                              IV. CONCLUSION
      The judgment of the district court is AFFIRMED.




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