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

                                                                            FILED
                                                                        November 21, 2007

                                     No. 07-60107                     Charles R. Fulbruge III
                                   Summary Calendar                           Clerk


Charles Claiborne

                                                                                    Plaintiff

Eliza Broadway

                                                                                 Appellant

v.

Michael J. Astrue,
Commissioner of Social Security

                                                                      Defendant-Appellee



                   Appeal from the United States District Court
                     for the Southern District of Mississippi
                               Case No. 5:99cv153


Before JONES, Chief Judge, and REAVLEY and PRADO, Circuit Judges.
PER CURIAM:*




       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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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                                       No. 07-60107

       Plaintiff-Appellant challenges the district court order affirming the
Commissioner of Social Security’s final decision to deny his claim for disability
insurance benefits. We affirm.
                                    BACKGROUND
       Charles Claiborne1 (“Claiborne”) applied for disability benefits in March
1998. The Social Security Administration (“SSA”) denied Claiborne’s claim at
all administrative levels, and Claiborne appealed to the district court. Claiborne
died in November 2001 while the matter was pending, and the district court
remanded the case to the Commissioner of Social Security (“Commissioner”) for
reconsideration of whether Claiborne’s death was related to the medical
conditions raised in his appeal. On remand, the SSA’s administrative law judge
(“ALJ”) consolidated the case with subsequent claims Claiborne filed in February
2001, which had been denied at the initial and reconsideration levels in July
2001, and for which Claiborne had requested a hearing.
       An administrative hearing was held before the ALJ in February 2003. At
the hearing, the ALJ received testimony from Claiborne’s mother and a
vocational expert. The ALJ found that Claiborne was not disabled within the
meaning of the Social Security Act, and that finding became the final decision
of the Commissioner. Claiborne, through his mother, posthumously sought
judicial review of the Commissioner's final decision under 42 U.S.C. § 405(g).
The district court followed the magistrate's recommendation and affirmed the
Commissioner’s decision to deny benefits.
       Claiborne appealed to this court alleging three errors: (1) the ALJ was
without jurisdiction to conduct a full evidentiary hearing; (2) the ALJ’s decision
was not supported by substantial evidence in the record; and (3) Claiborne was


       1
        Plaintiff-appellant Charles Claiborne died from a myocardial infarction in November
2001. His mother, Eliza Broadway, is the substitute party. The opinion will refer to plaintiff
as “Claiborne.”

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entitled to summary judgment. This court, having carefully reviewed the
parties' briefs and pertinent portions of the record, concludes there is no
reversible error in the district court's essential findings of fact and conclusions
of law.
                                 DISCUSSION
I.    Standard of Review
            We review the Commissioner’s final decision in a limited fashion, as
dictated by 42 U.S.C. § 405(g), determining whether: (1) substantial evidence of
record supports the decision; and (2) whether the decision comports with proper
legal standards. Carey v. Apfel, 230 F.3d 131, 135 (5th Cir. 2000). For the
evidence to be substantial, it must be relevant and sufficient for a reasonable
mind to support a conclusion; it must be more than a scintilla but need not be a
preponderance.    Falco v. Shalala, 27 F.3d 160, 162 (5th Cir. 1994)(citing
Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420 (1971)). In reviewing the
evidence, this court does not substitute its judgment for the Commissioner’s
judgment. Newton v. Apfel, 209 F.3d 448, 452 (5th Cir. 2000). If there are
conflicts in the evidence, this court accepts the Commissioner's resolution of
those conflicts so long as that resolution is supported by substantial evidence.
See id.
II.   Remand
      Claiborne initially argues the ALJ’s evidentiary hearing exceeded the
bounds of the district court's September 2002 remand order, which he claims
instructed the Commissioner only to determine whether Claiborne listed his
heart condition as a reason for his disability.      In fact, the remand order
instructed the Commissioner to examine the record and reconsider whether
Claiborne's death was related to any of the medical conditions he listed in his
original complaint. Thus, the record does not lead to the conclusion that the ALJ
erred in conducting an evidentiary hearing. Furthermore, consideration of this

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argument is waived because Claiborne raises it for the first time on appeal. See
Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993).
III.   Substantial Evidence
       The ALJ conducted the five-step evaluation to determine disability2
mandated by 20 C.F.R. § 416.920.3 The ALJ performed a thorough review of
Claiborne's complaints and arguments, as well as of the medical record. We hold
that substantial evidence supports the ALJ’s conclusion on this issue.4
       a.     Disability
       Claiborne argues the record is replete with evidence that his heart
condition prevented him from any substantial gainful activity. The relevant
regulations provide that all medical opinions are to be considered in determining
a claimant’s disability status. 20 C.F.R. §§ 404.1527(b), 416.927(b). But the
opinion on ultimate issues, such as disability status, is reserved to the ALJ.
20 C.F.R. §§ 404.1527(e), 416.927(e)(1). The ALJ must consider all medical
findings and evidence that support a medical source's assertion that a claimant
is disabled. Id.




       2
        Under the Social Security Act, “disability” requires that a person be unable to engage
in any substantial gainful activity by virtue of a medical condition that could be expected to
continue for at least 12 months. 42 U.S.C. § 423(d)(1)(A).
       3
        The Commissioner must consider the following five-step sequential analysis when
determining whether a claimant is disabled within the meaning of the SSA: (1) whether the
claimant is currently gainfully employed; (2) whether the claimant has a severe impairment;
(3) whether that impairment meets or equals the severity listed in the Code of Federal
Regulations; (4) whether the impairment prevents the claimant from performing past
occupations in light of his residual functional capacity; and (5) whether the impairment
prevents the claimant from adjusting to other work in light of his residual functional capacity.
20 C.F.R. §§ 404.1520; 416.920.
       4
         Claiborne argues throughout his brief, as he did below, that the ALJ’s findings are
contradicted by the record. But this court defers to the ALJ’s resolution of those conflicts, to
the extent the findings are supported in the record. Newton, 209 F.3d at 452. And we conclude
the ALJ’s findings are supported in the record.

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       Here, the ALJ properly evaluated the opinions of Claiborne’s treating
physicians and other involved parties. The ALJ’s determination that Claiborne
did not have a disability was consistent with their opinions and supported by
substantial evidence in the record.
       b.     Residual functional capacity
       Claiborne argues the record shows that a heart condition and swelling of
the limbs prevented him from performing any work. Determining a claimant’s
residual functioning capacity is the ALJ’s responsibility. Ripley v. Chater,
67 F.3d 552, 557 (5th Cir. 1995).
       The ALJ found that Claiborne “retained the residual functional capacity
for sedentary work that required only occasional crawling, kneeling, and
squatting.” The ALJ's finding was based on professional medical opinion. While
Claiborne suffered from gout, hypertension, and obesity, according to his doctor
those conditions precluded only manual labor. Therefore, the ALJ’s finding that
Claiborne retained a residual functional capacity is supported by substantial
evidence in the record.
       c.     Job capacity
       Claiborne also argues that under Singletary v. Bowen,5 a claimant may be
designated as able to engage in “substantial gainful activity” only when the
claimant can hold a job for “significant period of time.”                 Thus, Claiborne
contends, because the ALJ did not make specific findings related to Claiborne's
ability to hold a job, the ALJ’s findings were not supported by substantial
evidence.
       But the ALJ’s own decision specifically makes such findings. The ALJ
found, based on testimony and the record, that Claiborne's age, educational


       5
        798 F.2d 818, 822 (5th Cir. 1986); see also Wingo v. Bowen, 852 F.2d 827, 831 (5th Cir.
1988) (stating that a person is capable of engaging in substantial gainful activity when the
individual is able, despite his condition, to keep a job).

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                                        No. 07-60107

background, work experience, and residual functional capacity made him
capable of “a successful adjustment to work that existed in significant numbers
in the national economy.” Further, the ALJ found that “there were a significant
number of jobs in the national economy that [Claiborne] could have performed.”
And the ALJ’s findings are consistent with, and supported by, substantial
evidence in the record.6 Therefore, we hold that the Commissioner properly
concluded that Claiborne was not entitled to disability benefits under the Social
Security Act.7
       For the above reasons, we AFFIRM the order of the district court.
              AFFIRMED.




       6
        A vocational expert testified that despite Claiborne’s conditions, he could still work as
an order clerk, food and beverage clerk, sedentary surveillance monitor, and circuit board
assembler.
       7
         Claiborne argues that because the ALJ found that he could not perform the full range
of sedentary work, nor any of his past relevant work, he was entitled to summary judgment.
But Claiborne, a pro se appellant, is mistaken as to the appropriate procedures for judicial
review of an administrative action insofar as he believes all procedural mechanisms present
in the Federal Rules of Civil Procedure are available here. But cf. 42 U.S.C. 405(g) (outlining
procedures for judicial review of the SSA’s decisions). Essentially, his argument is simply a
restatement of his prior arguments, which we addressed above.

                                               6
