                                                        United States Court of Appeals
                                                                 Fifth Circuit
                                                              F I L E D
                IN THE UNITED STATES COURT OF APPEALS
                        FOR THE FIFTH CIRCUIT                  April 27, 2006

                                                          Charles R. Fulbruge III
                            No. 05-20669                          Clerk
                          Summary Calendar


ROLANDO MENCHACA,

                                               Plaintiff-Appellant,

versus

JO ANNE B. BARNHART, COMMISSIONER OF SOCIAL SECURITY,

                                                Defendant-Appellee.

                        --------------------
            Appeal from the United States District Court
                 for the Southern District of Texas
                           (4:03-CV-05310)
                        --------------------

Before KING, WIENER, and DeMOSS, Circuit Judges.

PER CURIAM*:

     Rolando Menchaca appeals the district court’s judgment denying

his petition for fees under the Equal Access to Justice Act

(“EAJA”)1 and affirming the conclusion of the Commissioner of

Social Security (“Commissioner”) that Menchaca does not suffer from

a “disability” within the meaning of the Social Security Act

(“SSA”).2    Having carefully reviewed the record and briefs, we

     *
       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this opinion should not be published and is not precedent except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
         28 U.S.C. § 2412(d).
     2
       42 U.S.C. § 423(d) (defining “disability” 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
affirm the district court’s judgment.

     First, Menchaca is not a “prevailing party” eligible for a fee

award under EAJA.   To qualify as a prevailing party, “the plaintiff

[must have] succeeded on any significant issue in litigation which

achieved some of the benefit [he] sought in bringing suit.”3

Menchaca argues that he prevailed at a conference held before the

district court because the court allegedly ordered the Commissioner

to reimburse Menchaca for his costs incurred in gathering documents

for his Social Security file.     Nothing in the record, however,

establishes that the district court issued such an order or,

assuming that it did, that this particular matter would qualify as

a “significant issue,” Menchaca’s success in which would have

“achieved some of the benefit [he] sought in bringing suit.”4

     Second, the Commissioner’s conclusion that Menchaca is not

disabled within the meaning of the SSA is supported by substantial

evidence and is not tainted by any legal errors.       “Substantial

evidence is ‘more than a mere scintilla.    It means such relevant


to last for a continuous period of not less than 12 months”).
     3
       Tex. State Teachers Ass’n v. Garland Indep. Sch. Dist., 489
U.S. 782, 791-92 (1989) (internal quotation marks and alterations
omitted).
     4
       Id.
     Menchaca also contends that, under Federal Rules of Civil
Procedure 37(b)(2)(A), (B), and (C), “the party who has completely
failed to meet deadlines has, as a matter of law, a penalty of
payment of attorney’s fees and/or of loss of the right to present
evidence.”   Those rules, however, govern a parties’ failure to
cooperate in discovery, not a party’s failure to answer a complaint
in a timely manner.

                                 -2-
evidence as a reasonable mind might accept as adequate to support

a conclusion.’”5         Notably, “we may not reweigh the evidence in the

record, nor try the issues de novo, nor substitute our judgment for

that of the [Commissioner], even if the evidence preponderates

against [her] decision.”6            In other words, if the Commissioner’s

conclusion is supported by substantial evidence, we must affirm it,

even       in   the   face   of   conflicting   evidence.   This    is   because

“[c]onflicts in the evidence are for the [Commissioner] and not the

courts to resolve.”7

       The Commissioner based her conclusion that Menchaca is not

disabled on both steps four (whether Menchaca retained the residual

functional capacity to perform his past relevant work) and five

(whether, considering Menchaca’s residual functional capacity, age,

education, and work experience, he is capable of engaging in other

work that exists in significant numbers in the national economy) of

the five-step sequential evaluation process mandated by 20 C.F.R.

§§ 404.1520 and 416.920.             Menchaca challenges the Commissioner’s

conclusion at both of these steps, but expends most of his energy

challenging the Commissioner’s step four analysis.                 As the five-

step sequential process embodies a conjunctive test, however, we



       5
       Brown v. Apfel, 192 F.3d 492. 496 (5th Cir. 1999) (quoting
Richardson v. Perales, 402 U.S. 389, 401 (1971)) (internal
quotation marks omitted).
       6
           Johnson v. Bowen, 864 F.2d 340, 343 (5th Cir. 1988).
       7
           Brown, 192 F.3d at 496 (internal quotation marks omitted).

                                         -3-
must affirm the Commissioner’s decision if her conclusion at either

step four or step five is supported by substantial evidence and not

tainted by legal error.          It is therefore unnecessary for us to

consider the propriety of her conclusion at step four because her

conclusion at step five is both supported by substantial evidence

and free from legal error.8

      At step five, the Commissioner concluded that Menchaca’s

residual functional capacity, age, education, and work experience

enable him to “perform the full range of sedentary, unskilled work”

and that such jobs “are found to exist [in the national economy] in

significant numbers.”       To reach this conclusion, the Commissioner

relied on the testimony of a Vocational Expert and the Medical-

Vocational Guidelines.9          Menchaca argues that the Commissioner

erred in both of these respects because “the hypothetical question

[she]      posed     did   not    adequately      incorporate”    Menchaca’s

characteristics, and reliance on the Medical-Vocational Guidelines

is not permitted “when there are non-exertional limitations.” Like

his     other      arguments,    these     are   meritless.      First,   the


      8
       To impugn the Commissioner’s decision at step four, Menchaca
most forcefully argues that the Commissioner improperly classified
his residual functional capacity as limiting him to light work,
claiming that the Commissioner erred in her consideration of
Menchaca’s evidence of pain. We need not address this argument,
though, because the Commissioner’s conclusion at step five assumed
that Menchaca is correct that his residual functional capacity
limits him to sedentary work. In his appellate brief, Menchaca
agrees with this sedentary residual functional capacity.
      9
          See 20 C.F.R. § 404.1569 & Subpart P., App. 2.

                                         -4-
Commissioner’s          hypothetical    question         adequately     incorporated

Menchaca’s       characteristics,       and       Menchaca’s     counsel   had    the

opportunity to correct any problems with it on cross-examination of

the   Vocational        Expert.10      Second,     our    precedents     permit   the

Commissioner to rely on the Medical-Vocational Guidelines “[w]hen

the characteristics of the claimant correspond to criteria in”

those Guidelines “and the claimant . . . suffers only from . . .

non-exertional impairments [that] do not significantly affect his

residual functional          capacity.”11         Here,   the    Vocational   Expert

explicitly testified that Menchaca’s non-exertional limitations

would cause “zero percent erosion” in the amount of sedentary,

unskilled jobs available to him.              As Menchaca has made no attempt

to    rebut      this    evidence,     we    agree    that      his   non-exertional

limitations “do not significantly affect his residual functional

capacity.”12        We thus perceive no error in the Commissioner’s



      10
        The hypothetical question assumed the following facts: an
“individual 44 years of age who’s completed a GED,” who is “limited
by the qualification that the individual should neither bend nor
stoop on more than an occasional basis,” for whom “[c]rawling is
precluded as is working at significant unprotected heights,” and
whose residual functional capacity is “sedentary as a result of his
pain symptoms.” According to the Vocational Expert, “sedentary,
unskilled work . . . would be most appropriate” for such an
individual. Cf. Morris v. Bowen, 864 F.2d 333, 335-36 (5th Cir.
1988) (permitting reliance on a hypothetical question where the
question “reasonably incorporated” the claimant’s characteristics
and the claimant “had an opportunity to correct any defect in the
hypothetical”).
      11
           Fraga v. Bowen, 810 F.2d 1296, 1304 (5th Cir. 1987).
      12
           Id.

                                            -5-
reliance on the Vocational-Medical Guidelines.

AFFIRMED.




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