                                                              United States Court of Appeals
                                                                       Fifth Circuit
                                                                    F I L E D
                  IN THE UNITED STATES COURT OF APPEALS
                                                                   December 21, 2005
                          FOR THE FIFTH CIRCUIT
                                                                 Charles R. Fulbruge III
                                                                         Clerk

                               No. 04-51079

                              Summary Calendar


                              Porfirio Guzman
                                                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 Texas
                               (03-CV-169)



Before HIGGINBOTHAM, BENAVIDES, and DENNIS, Circuit Judges.

PER CURIAM:*

      Porfiro S. Guzman appeals an order of the United States

District Court for the Western District of Texas affirming the

final decision of the Commissioner of Social Security Benefits, Jo

Anne B. Barnhart, that Guzman was not entitled to disability

benefits under Title II of the Social Security Act.              Finding the

Commissioner’s     decision   supported    by   substantial    evidence,      we

affirm.




      *
       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should not be published and is not precedent except under the limited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.
                                      I

     Porfiro S. Guzman filed for disability insurance benefits

under Title II of the Social Security Act on July 11, 2002,

alleging disability due to back pain, knee pain, and diabetes.                At

the time of his hearing, Guzman was 47-years old.          Although he only

attended school through the third grade, he is English literate and

is able to speak conversational English.              Guzman worked as a

forklift operator for 24 years at a rubber plan in Odessa, Texas

until the plant closed in May 2002. Because he worked successfully

at the same job for over 24 years, the ALJ described him as an

“ideal employee.”

     A   hearing   was   held    on   April   15,   2003   in   front   of   an

administrative law judge (“ALJ”).         After Guzman testified to the

above facts, the ALJ remarked that the case looked more like an

unemployment case than a disability case.           The ALJ then requested

that Guzman undergo a consultative evaluation, which he did.                 Dr.

Pandya found that Guzman’s knee and back pain forced him to retire.

In addition, Dr. Padya found that Guzman was unable to lift weight

or stay in one position.        Dr. Pandya’s handwritten notes indicate

that Guzman “can sit in one place for upto 2 hours.”                    On the

assessment form, Dr. Pandya checked a box indicating that Guzman

can sit “less than 6 hours in an 8 hour workday.”

     Subsequently, the ALJ sent a letter and Dr. Padya’s assessment

to Guzman and his nonlawyer representative. The letter stated that



                                      2
Guzman could submit additional statements, records, law, or written

questions, as well as request a supplemental hearing.               The letter

indicated that if the ALJ did not receive a response within ten

days of the date Guzman received notice, the ALJ would assume that

Guzman did not wish to submit additional materials or request a

supplemental hearing.           Guzman did not submit a response to the

ALJ’s letter.

      On August 20, 2003, the ALJ found that Guzman was not disabled

within the meaning of the Social Security Act.             The ALJ concluded

that Guzman was not entitled to disability insurance benefits.

Guzman’s timely appeal to the Appeals Council was denied, and he

subsequently petitioned for judicial review.            The magistrate judge

held that the ALJ followed the proper legal standards and used

legally sufficient evidence in the record to support his finding

that Guzman retained the ability to perform a full range of

sedentary work.       Guzman timely appealed to this Court.             We have

jurisdiction under 28 U.S.C. § 1291.

                                        II

      Our review of the Commissioner’s denial of disability benefits

is limited to determining whether there is substantial evidence in

the record     to   support     the   decision   and   whether   proper   legal

standard were       used   in   evaluating   the   evidence.1      Substantial

evidence is more than a scintilla, but less than a preponderance,


      1
        See Richardson v. Perales, 402 U.S. 389, 401 (1971); Falco v. Shalala, 27
F.3d 160, 162 (5th Cir. 1994).

                                        3
and is such relevant evidence as a reasonable mind might accept as

adequate to support the conclusion.2                We do not reweigh the

evidence; rather, we only scrutinize the entire record to determine

whether    it    contains     substantial        evidence     to     support      the

Commissioner’s decision.3          A finding of no substantial evidence is

appropriate only if no credible evidentiary choices or medical

findings exist to support the decision.4           Conflicts in the evidence

are for the Commission, and not this Court, to resolve.5

      An individual is disabled if he is “unable 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 to last for

a continuous period of not less than twelve months.”6                At step five

of   the   evaluation    process,     the    Commissioner’s        burden   may    be

satisfied by the use of the Medical-Vocational Guidelines if there

are no nonexertional limitations that significantly affect the

claimant’s residual functional capacity.7                   The term “residual

functional capacity” is defined as the claimant’s maximum remaining


      2
       Richardson, 402 U.S. at 401.
      3
       Leggett v. Chater, 67 F.3d 558, 564 (5th Cir. 1995).
      4
       See Johnson v. Bowen, 864 F.2d 340, 343-44 (5th Cir. 1988).
      5
       See Selders v. Sullivan, 914 F.2d 614, 617 (5th Cir. 1990).
      6
       42 U.S.C. § 423(d)(1)(A).

      7
        See Selders, 914 F.2d at 618; Fraga v. Bowen, 810 F.2d 1296, 1304-05 (5th
Cir. 1987).

                                        4
ability to do sustained work activity in an ordinary work setting

“on a regular and continuing basis.”8

     Guzman contends that the record does not contain substantial

evidence that he can do a full range of sedentary work.                Although

we note some inconsistencies in the record, we conclude that the

ALJ’s decision is supported by substantial evidence.                   Although

sedentary work “involves sitting, a certain amount of walking and

standing is often necessary in carrying out job duties.                Jobs are

sedentary if walking and standing are required occasionally and

other      sedentary    criteria    are       met.”9   The   Social    Security

Administration further elaborated,

     In order to perform a full range of sedentary work, an
     individual must be able to remain in a seated position
     for approximately 6 hours of an 8-hour workday, with a
     morning break, a lunch period, and an afternoon break at
     approximately 2-hour intervals.    If an individual is
     unable to sit for a total of 6 hours in an 8-hour work
     day, the unskilled sedentary occupational base will be
     eroded.10

Here, there is evidence in the record that Guzman could sit for two

hours at a time and for a total of six hours in a work day.              First,

Dr. Naidu, Guzman’s treating physician, indicated that Guzman could

sit for two-to-three hours before his legs went numb.              Second, Dr.

Pandya’s notes from the consultative examination ordered by the ALJ

indicate that Guzman can sit for up to two hours at a time.              Third,


     8
        20 C.F.R. § 404.1545(b), (c) (2004).
     9
        20 C.F.R. § 404.1567(a) (2004).
     10
          Social Security Ruling 96-9p, 1996 WL 374185, at *6 (July 2, 1996).

                                          5
although Guzman complained of greater pain, Dr. Pandya indicated

that Guzman “does not appear to be in . . . as much [pain] as he

alleges.” Finally, Dr. Pandya checked a box indicating that Guzman

can sit for less than six hours in an eight-hour day.           Although

this somewhat contradicts the handwritten notes on Dr. Pandya’s

assessment form, it is for the ALJ, not this Court, to resolve such

inconsistencies.11       Based on the substantial evidence supporting a

finding that Guzman could perform a full range of sedentary work,

the ALJ resolved the inconsistency in favor of the Commissioner,

and neither the record nor the law requires reversal.

                                       III

     For the foregoing reasons, the Commissioner’s final decision

denying Guzman’s claim for benefits under the Social Security Act

is AFFIRMED.




     11
          Newton v. Apfel, 209 F.3d 448, 454 (5th Cir. 2000).

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