                      IN THE UNITED STATES COURT OF APPEALS
                               FOR THE FIFTH CIRCUIT



                                            No.95-60265
                                         (Summary Calendar)


BERLIN EICHELBERGER,

                                                                                   Plaintiff-Appellant,

                                                versus

SHIRLEY S. CHATER, Commissioner of Social Security,

                                                                                  Defendant-Appellee.



                            Appeal from the United States District Court
                              for the Southern District of Mississippi
                                           (93-CV-160)
                                         November 24, 1995
Before JOLLY, JONES, and STEWART, Circuit Judges.*

PER CURIAM:

       Plaintiff-Appellant Berlin Eichelberger appeals the dismissal of his complaint seeking judicial

review of the Commissioner’s decision to deny his application for disability benefits. Eichelberger

contends t hat the weight of the law and the evidence, as well as the testimony of the vocational

expert, do not support a finding that he can perform his past relevant work. For the following

reasons we affirm the judgment of the district court.

                                               FACTS

       Berlin Eichelberger applied for disability insurance benefits and supplemental security income

(SSI) in 1991 alleging that back pain, leg pain, swelling, arthritis, migraine headaches, and high blood



  Local Rule 47.5 provides: “The publication of opinions that have no precedential value and merely
decide particular cases on the basis of well-settled principles of law imposes needless expense on the
public and burdens on the legal profession.” Pursuant to that Rule, the Court has determined that this
opinion should not be published.
pressure prevented him from working. Eichelberger had worked previously as a wire-spooling

operator and as a school bus driver. After benefits were denied initially, the case proceeded to a

hearing before the Administrative Law Judge (ALJ), who determined that Eichelberger was not

disabled within the meaning of the Social Security Act. The Appeals Council vacated the ALJ’s

decision and remanded the case for further proceedings. The Appeals Council suggested that

Eichelberger undergo a comprehensive examination by Dr. Claude Fox. Dr. Fox reported that

Eichelberger had no motor restrictions and that the crutches he used were not required.

       The ALJ conducted a supplemental hearing but again found that Eichelberger was not

disabled. This time the Appeals Council denied Eichelberger’s request for review of the ALJ’s

decision, which became the Commissioner’s final decision.

       Eichelberger filed a complaint seeking judicial review of the Commissioner’s decision.

Eichelberger also filed a “Motion to Reverse Cause and Render Judgment for Plaintiff or in the

Alternative to Reverse and Remand Cause for Application of Correct Legal Standards.” The

magistrate judge recommended that the district court deny Eichelberger’s motion and render a final

judgment in favor of the Commissioner. The district court adopted the magistrate judge’s report over

Eichelberger’s objections and dismissed his complaint. Eichelberger filed a timely notice of appeal.

                                          DISCUSSION

       We review the Commissioner’s decision to deny disability benefits by determining whether

there is substantial evidence in the record to support it and whether the proper legal standards were

used in evaluating the evidence. Villa v. Sullivan, 895 F.2d 1019, 1021 (5th Cir. 1990). A finding

of no substantial evidence is appropriate “only where there is a conspicuous absence of credible

choices or no contrary medical evidence.” Johnson v. Bowen, 864 F.2d 340, 343-44 (5th Cir. 1988)

(internal quotations and citations omitted). We leave conflicts in the evidence to the Commissioner

to resolve. Anthony v. Sullivan, 954 F.2d 289, 296 (5th Cir. 1992) (citations omitted).

       In evaluating a claim of disability, the Commissioner uses the following five-step process to

determine whether (1) the claimant is not presently working; (2) the claimant’s ability to work is


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significantly limited by a severe physical or mental impairment; (3) the impairment meets or equals

an impairment listed in the appendix to the regulations; (4) the impairment prevents the claimant from

doing past relevant work; and (5) the impairment prevents the claimant from performing any other

substantial gainful activity. 20 C.F.R. §§ 404.1520, 416.920 (1993); Muse v. Sullivan, 925 F.2d 785,

789 (5th Cir. 1991). A finding that a claimant is not disabled at any point terminates the sequential

evaluation. Crouchet v. Sullivan, 885 F.2d 202, 206 (5th Cir. 1989).

        On the first four steps of the analysis, the initial burden is on the claimant to prove that he

is disabled. On the fifth step, the burden shifts to the Commissio t o show that there is other
                                                                  ner

substantial work in the national economy which the claimant can perform. Wren v. Sullivan, 925 F.2d

123, 125 (5th Cir. 1991). If the Commissioner meets this burden, the claimant must then prove that

he is not capable of alternative work. Selders v. Sullivan, 914 F.2d 614, 618 (5th Cir. 1990). The

ALJ concluded at the fourth step that Eichelberger is not disabled under the Social Security Act and

that his impairments do not prevent him from performing his past relevant work.

        To determine whether substantial evidence of disability exists, four elements of proof must

be weighed: (1) objective medical facts; (2) diagnoses and opinions of treating and examining

physicians; (3) claimant’s subjective evidence of pain and disability; and (4) claimant’s age, education,

and work history. DePaepe v. Richardson, 464 F.2d 92, 94 (5th Cir. 1972). The entire record is

reviewed to determine if such evidence is present. Villa, 895 F.2d at 1022.

Past Relevant Work

        Eichelberger says that it was error to conclude that he can return to his past relevant work.

He asserts that the medical evidence established that he suffers from both exertional and nonexertional

limitations and that the vocational expert testified that he could not work with such limitations.

        To determine whether a claimant can perform past relevant work, the ALJ must assess the

physical demands of the job by considering the description of the work actually performed or as

generally performed in the national economy. Id. The ALJ listened to Eichelberger’s testimony

regarding his past work and obtained t estimony from a vocational expert to assess the physical


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demands of the jobs Eichelberger had performed.

       The vocational expert testified that Eichelberger’s work as a wire-spooling machine operator

was unskilled and required light physical exertion. His experience as a bus driver was semi-skilled

and required medium physical exertion. In response to a hypothetical question paralleling Dr. Fox’s

findings, the expert testified that Eichelberger could return to wire-spooling and bus driving, as well

as perform other jobs in the light, sedentary, and medium unskilled ranges. The vocational expert also

testified that a person of the same age, work background, and education with the same impairments

as Eichelberger but who also required sleep during the daytime could not work. The ALJ rejected

this testimony, however, because t here was no medical evidence of a condition which reasonably

would cause excessive sleepiness.

       A report by Dr. Patrick Gill indicates that Eichelberger gets sleepy after taking Procardia,

medication for his high blood pressure. However, this part of the record is too sparse to warrant our

mandating reconsideration. Eichelberger has proffered nothing more than statements that he feels

tired during the day to establish that his sleepiness disables him under the Act. Absent that kind of

evidence, we must accept the ALJ’s determination.

       The medical findings also support the ALJ’s conclusion that Eichelberger retains the residual

functional capacity to perform his past work. Dr. Fox reported that Eichelberger had no physical

limitations and was subject to no environmental restrictions. Dr. Gill reported that Eichelberger had

essentially the normal range of motion in his neck and extremities.

       Eichelberger also contends that the ALJ should have considered his subjective symptoms in

determining the extent that his work capability is diminished. He maintains that the trier of fact was

required to make credibility determinations and to provide reasons for the findings.

       The evaluation of a claimant’s subjective symptoms is within the province of the ALJ who had

an opportunity to observe the claimant. Harrell v. Bowen, 862 F.2d 471, 480 (5th Cir. 1988). The

ALJ considered Eichelberger’s subjective complaints and made credibility determinations regarding

Eichelberger’s testimony. The ALJ accepted as credible Eichelberger’s contentions that he is a


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diabetic, has gout, and has right shoulder pain. The ALJ did not accept as credible Eichelberger’s

testimony that he is unable to walk, that he can hardly move at times due to pain in his legs, that he

has only limited ability to sit, that he has trouble breathing, and that his has trouble using his hands

because the objective medical findings and the doctors’ observations did not support these

complaints. The ALJ also did not accept as credible Eichelberger’s contention that he cannot control

his hypertension because one physician reported that Eichelberger did not take his medication.

Although the ALJ did not accept all of Eichelberger’s subjective complaints as true, the ALJ did

provide reasons supported by medical findings to substantiate his credibility determinations.

       Eichelberger argues that the ALJ asked the vocational expert “improper questions,” yet he

does not explain what questions were improper. A determination of no ndisability will stand if the

hypothetical questions posed to the expert incorporated reasonably all the claimant’s disabilities as

determined by the ALJ and the claimant or his representative is allowed to correct deficiencies in the

hypothetical question. Bowling v. Shalala, 36 F.3d 431, 436 (5th Cir. 1994). The hypothetical

questions reasonably incorporated Eichelberger’s complaints that were accepted as credible by the

ALJ. Counsel represented Eichelberger and did not object to the hypothetical questions posed nor

ask additional questions.

       The ALJ is responsible for assessing the medical evidence and determining a claimant’s

residual functional capacity. 20 C.F.R. §§ 404.1546, 416.946 (1993). The ALJ determined that

Eichelberger retained the capacity to perform work requiring medium physical exertion. The ALJ’s

decision was supported by substantial evidence.

The Grid

       Eichelberger contends that the ALJ improperly used the Table of Listings to determine that

he was not disabled and that testimony from a vocational expert was required.

       An ALJ may rely upon the Medical-Vocational Guidelines (the Grid) when determining

whether the claimant is disabled at Step 5 of the analysis. See 20 C.F.R. pt. 404, subpt. P, app. 2

(1994); see Scott v. Shalala, 30 F.3d 33, 34 (5th Cir. 1994); Fraga v. Bowen, 810 F.2d 1296, 1304


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(5th Cir. 1987). If reliance upon the Grid is proper, testimony from a vocational expert is

unnecessary. See Fraga, 810 F.2d at 1304-05.

       The ALJ determined that Eichelberger could return to his past relevant work. Thus, the ALJ

determined that Eichelberger was not disabled at Step 4. See Muse, 925 F.2d at 789. The ALJ did

not proceed to Step 5 in the sequential analysis and thus did not refer t o the Grid in making his

decision. See Crouchet, 885 F.2d at 204, 206 (A finding that a claimant is not disabled at any point

terminates the sequential evaluation). Furthermore, the ALJ obtained the testimony of a vocational

expert to provide additional evidence t hat Eichelberger could perform his past relevant work.

Eichelberger’s contentions of error are without factual basis and are thus frivolous.

Pain Testimony

       Eichelberger claims the ALJ erred in failing to find his subjective pain testimony credible,

especially when pain alone can be disabling. Pain is a disabling condition only when it is “constant,

unremitting, and wholly unresponsive to therapeutic treatment.” Selders, 914 F.2d at 618-19.

Subjective evidence need not be given precedence over objective evidence. Villa, 895 F.2d at 1024.

       The ALJ determined that the medical evidence did not support Eichelberger’s subjective

complaints. Eichelberger’s testimony indicated that his pain is not constant or unremitting. Thus,

while Eichelberger may have some pain, it is not of disabling severity. See Hollis v. Bowen, 837 F.2d

1378, 1384 (5th Cir. 1988).

AFFIRMED.




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