                                                                    United States Court of Appeals
                                                                             Fifth Circuit
                                                                            F I L E D
                    IN THE UNITED STATES COURT OF APPEALS
                                                                           December 30, 2005
                            FOR THE FIFTH CIRCUIT
                            _____________________                     Charles R. Fulbruge III
                                                                              Clerk
                                 No. 04-31234
                               Summary Calendar
                            _____________________

BRUCE E. GARDNER,
                                                          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, Lafayette
                       USDC No. 6:03-CV-1756
_________________________________________________________________

Before JOLLY, DAVIS, and OWEN, Circuit Judges.

PER CURIAM:*

     Bruce     E.    Gardner   appeals       the   district      court’s    decision

affirming the Commissioner’s denial of social security disability

benefits because the Commissioner determined that Gardner was not

disabled   under      the   Social   Security      Act.     We    affirm     for   the

following reasons:

     1. We agree with the analysis offered in the magistrate

judge’s report and recommendation and the district court’s order

accepting the magistrate’s recommendation.

     *
       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this opinion should not be published and is not precedent except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.

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      2. Gardner’s main argument is that the ALJ erred in finding

that the hypothetical situation presented to the vocational expert

was appropriate; that is, the ALJ erred when she found that Gardner

could perform work that exists in significant numbers, based on a

hypothetical situation in which the vocational expert assumed that

Gardner could sit for six hours in an eight-hour workday.

      This Court’s review is restricted under 42 U.S.C. § 405(g) to

two inquiries: (1) whether the Commissioner’s decision is supported

by substantial evidence in the record; and (2) whether the decision

comports with relevant legal standards.             Carey v. Apfel, 230 F.3d

131, 135    (5th    Cir.   2000).   Substantial        evidence   is   relevant

evidence that a reasonable mind might accept as adequate to support

a conclusion.      Carey, 230 F.3d at 135.        This Court may not re-weigh

the evidence, nor substitute its judgment for the Commissioner’s.

Id.   This rule applies even if the preponderance of the evidence

does not support the Commissioner’s conclusion.             Id.   A finding of

no substantial evidence is only appropriate when no credible

evidentiary choices or medical findings support the Commissioner’s

decision.   Johnson v. Bowen, 864 F.2d 340, 343-44 (5th Cir. 1988).

      3.    Gardner argues that the limitations presented in the

hypothetical    (mentioned    above)       were   inappropriate   because   the

evidence shows that he could not sit for six hours in an eight-hour

workday.     The record shows that two of the four doctors who

examined Gardner, one of whom was Gardner’s treating physician,



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indicated that he could do light work. Such aforementioned sitting

requirements are part of the definition of the ability to do light

work.      The ALJ is entitled to determine the credibility of the

examining physicians and medical experts and weigh their opinions

accordingly.     Greenspan v. Shalala, 38 F.3d 232, 237 (5th Cir.

1994).     It is within the ALJ’s discretion to resolve issues of

conflicting evidence.        Jones v. Heckler, 702 F.2d 616, 621 (5th

Cir. 1983).      Thus, the record, through the statements of the

doctors, supports the ALJ’s finding that Gardner could sit for six

hours.

      Gardner also argues that the limitations were inappropriate

for failing to include his depression as a limitation.              He admits,

however, that he did not raise this argument in his principal brief

to the district court.       Furthermore, the ALJ appeared to consider

the evidence of depression in her opinion and the only doctor who

presented evidence on the issue stated that Gardner’s depression

was mild and did not inhibit his daily functions or relationships.

      Gardner further argues that the fact that Gardner had counsel

present, who could have cured the error of the hypothetical, does

not mitigate the effect of the error. Because substantial evidence

supports the application of the hypothetical, it is unnecessary to

address this argument.

      4.    Gardner argues that the legal standard applied by the ALJ

was   incorrect,    first,    because       “there   is   no   mention   of   any



                                        3
functional limitation by the [ALJ].”        As the ALJ considered a wide

array of limitations in this case, this argument is meritless.

     Gardner then seems to argue that, because Gardner suffers from

both exertional and non-exertional limitations, the ALJ should not

have used the Medical-Vocational Guidelines. This argument is also

meritless.   The ALJ noted that Gardner could not perform the full

range of light work, but only a limited range.         She further noted

that he had both exertional and non-exertional limitations, and

properly used the Guidelines as a “framework” for considering how

much Gardner’s work capability was further diminished.           20 C.F.R.

pt. 404, subpt. P, app. 2, § 200.00(e)(2) (2005).               Using the

Guidelines   as   a   “framework,”   the   ALJ   properly   relied   on   the

vocational expert’s testimony and the medical evidence to determine

that Gardner could perform a significant number of jobs, and thus

was not disabled.

     For these reasons, the judgment of the district court is

                                                                 AFFIRMED.




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