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

                                                                            FILED
                                                                           July 30, 2008

                                     No. 07-51451                     Charles R. Fulbruge III
                                   Summary Calendar                           Clerk


FEDERICO C CHARLES

                                                  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. 5:07-CV-58


Before WIENER, GARZA, and BENAVIDES, Circuit Judges.
PER CURIAM:*
       In this administrative appeal, Plaintiff-Appellant Federico C. Charles
(“Appellant”) challenges the final decision of the Commissioner of the Social
Security Administration (“the Commissioner”), who denied his application for
Disability Income Benefits based on a finding that he was not disabled under the
Social Security Act.        The district court upheld the determination of the
Commissioner, and Appellant now appeals.


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 07-51451

       On appeal, Appellant challenges almost every aspect of the Administrative
Law Judge’s (“ALJ”) determination.1 Having reviewed the record and the briefs,
we AFFIRM the judgment of the district court for the following reasons:
1. The ALJ’s decision indicates that he considered all the relevant evidence in
determining whether Appellant’s impairment met or was medically equivalent
to Listing 1.04(a) (Disorders of the spine). See 20 C.F.R. Pt. 404, Subpt. P, App.
1, § 1.04(a).     Furthermore, the ALJ’s determination that Appellant’s back
condition did not meet or medically equal Listing 1.04(a) was supported by
substantial evidence–including: (1) medical evidence indicating that Appellant
had no motor loss or weakness, no sensory loss, and normal deep tendon reflex
tests, and (2) evidence regarding his back pain and the effects from his pain
medication, which the ALJ concluded did not prevent him from doing activities
of daily living or sedentary work.2
2. The ALJ’s decision indicates that he considered all the relevant evidence in
determining Appellant’s residual functional capacity. Furthermore, the ALJ’s
determination that Appellant could perform sedentary work limited to simple,
repetitive tasks with a sit/stand option was supported by substantial
evidence–including the medical evidence documenting Appellant’s physical
abilities and the evidence regarding his pain and the side effects of his pain
medication.



       1
        The Appeals Council denied Appellant’s request for review of the ALJ’s decision. Thus,
the ALJ’s decision became the final decision of the Commissioner, which we review on appeal.
Our review of the ALJ’s decision is limited to: “(1) whether there is substantial evidence in the
record to support the decision; and (2) whether the decision comports with relevant legal
standards.” Brock v. Carter, 84 F.3d 726, 728 (5th Cir. 1996).
       2
         Contrary to Appellant’s characterization, in making this determination, the ALJ did
not reject the opinion of Dr. Marquez (a treating physician) or fail to give it controlling weight.
Instead, the ALJ resolved an inconsistency between Dr. Marquez’s sworn statement and his
own treatment notes and sufficiently explained why he resolved the conflict in favor of the
treatment notes.

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                                      No. 07-51451

3. Although the ALJ found that Appellant could not perform the full range of
sedentary activity, he did not err in using Medical-Vocational Guideline (“Grid
Rule”) 201.23 as a framework for decision making.                    The ALJ properly
determined that, because Appellant could not perform the full range of sedentary
activity, he could not rely on Grid Rule 201.23 to direct a finding of “not
disabled.” Instead, the ALJ properly used Grid Rule 201.23 as a frame of
reference and relied on the testimony of the vocational expert, who testified that
there were jobs existing in significant numbers in the national economy that a
person with Appellant’s residual functional capacity and other vocational factors
could perform. See 20 C.F.R. Pt. 404, Subpt. P, App. 2, § 200.00(d); Social
Security Ruling (“SSR”) 96-9p, 1996 WL 374185, at *4-5.3
4. In his determination regarding Appellant’s allegations about the effects of
pain and pain medication, the ALJ considered all the relevant evidence and
testimony and found that the medical evidence did not support Appellant’s
allegations. The ALJ did, however, credit such allegations to the extent that
they limited Appellant to sedentary work involving only simple, repetitive tasks.
The ALJ sufficiently explained the evidence he relied on to arrive at this
conclusion and the reasons why he did not find Appellant’s allegations fully
credible. These conclusions were supported by substantial evidence.
5. The ALJ properly considered and rejected the non-binding decision of the
Tennessee Workers Compensation Court. The ALJ acknowledged the Tennessee
Workers Compensation Court’s award of benefits and Appellant’s claim that he
received a 99.9% impairment rating. The ALJ, however, properly determined



       3
         Although the ALJ did not set a specific time limit for the sit/stand option in his
hypothetical questions to the vocational expert, “[p]rocedural perfection in administrative
proceedings is not required,” and Appellant has not argued how this alleged failure adversely
affected his substantial rights. Mays v. Bowen, 837 F.2d 1362, 1364 (5th Cir. 1988).
Appellant’s other complaints regarding the ALJ’s hypothetical questions to the vocational
expert are meritless.

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that the evidence before him supported his conclusion that Appellant could
perform sedentary work.
6.   The ALJ did not improperly reject the opinion of Dr. Greg Cates, a
rehabilitation counselor, who stated that Appellant was unemployable due to his
pain, the side effects of his pain, and his inability to speak English. The ALJ
explained that Dr. Cates’s opinion was inconsistent with many of Appellant’s
treating and examining doctors. Although the ALJ stated that these doctors
found that Appellant could do “sedentary” to “light” work, the ALJ did not rely
merely on these labels; rather, these medical opinions were based on thorough
descriptions regarding Appellant’s physical ability to perform certain
work-related activities.
7. Although a conflict existed between the vocational expert and the Dictionary
of Occupational Titles (“DOT”) with respect to the ability of a person functionally
illiterate in English to perform the types of jobs identified by the vocational
expert, the ALJ explained that he did not rely on the DOT because the argument
that illiteracy in English precluded employment, taken to its logical conclusion,
would mean that “virtually all immigrants would be automatically entitled to
disability benefits.”   Rather, as the vocational expert testified, and the
regulations suggest, see 20 C.F.R. Pt. 404, Subpt. P, App. 2 § 201.00(i), persons
who are functionally illiterate in English can still perform a significant number
of unskilled jobs in the national economy, including the ones identified by the
vocational expert.
8.   Although the ALJ frequently intervened during Appellant’s counsel’s
cross-examination of the medical and vocational experts, these interventions
appear substantially justified. Furthermore, Appellant has failed to show that
any interruptions caused him prejudice, as the ALJ’s interruptions did not
prevent Appellant’s counsel from asking all his desired questions and making all
his relevant points.

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            No. 07-51451

AFFIRMED.




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