               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT



                            No. 95-50042
                         (Summary Calendar)



ARTURO S. MARTINEZ,

                                             Plaintiff-Appellant,


                               versus


SHIRLEY S. CHATER,
Commissioner of Health
and Human Services,

                                             Defendant-Appellee.



          Appeal from the United States District Court
                for the Western District of Texas
                           (94-CV-420)


                           (July 10, 1995)


Before DUHÉ, WIENER and STEWART, Circuit Judges.

PER CURIAM:*


     Plaintiff-Appellant   Arturo   S.   Martinez   appeals   from   the

district court's affirmance of the Commissioner's affirmance of


     *
     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should not be published.
denial   of   Social   Security   benefits   to   Martinez   pursuant   to

42 U.S.C. § 405(g).     On appeal Martinez insists that a remand to

the district court for an evidentiary hearing is necessary and that

the Commissioner's determination is not supported by substantial

evidence.     Finding frivolous the suggestion that a remand for

adducing additional evidence is necessary, and finding substantial

evidence in the record to support the Commissioner's decision, we

affirm the rulings of the district court.

                                    I

                         FACTS AND PROCEEDINGS

     Martinez applied for disability benefits and Supplemental

Security Income in January 1992, alleging that he had been disabled

since November 7, 1991, due to diabetes, a hernia, and kidney and

stomach problems. The Commissioner concluded that Martinez was not

disabled and denied relief. The Commissioner also denied Martinez'

request for reconsideration.

     A hearing was held before an administrative law judge (ALJ) on

March 6, 1993, at which Martinez was represented by counsel, and at

which Martinez, his daughter, a medical expert, and a vocational

expert testified.      At the conclusion of the hearing, the ALJ

referred Martinez to an internist for a consultative examination.

After reviewing the additional evidence, the ALJ determined that

Martinez was not disabled within the meaning of the Social Security

Act (the Act).    The Appeals Council denied Martinez' request for

review, and the decision of the ALJ became the final decision of

the Commissioner under 42 U.S.C. § 405(g).


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       Martinez filed suit in the district court seeking judicial

review of the Commissioner's decision.                  The Commissioner answered

the complaint and both parties filed briefs.                 The magistrate judge

recommended that the complaint be dismissed, finding substantial

evidence to support the Commissioner's determination that Martinez

was not disabled.      After a de novo review, the district court

adopted    the   magistrate      judge's      factual       findings     and     legal

conclusions, overruled Martinez' objections to the recommendation,

and dismissed the complaint.        This appeal ensued.

                                        II

                                   ANALYSIS

A.     Legal Background

       Appellate review of the Commissioner's denial of disability

benefits is limited to determining whether (1) the decision is

supported by substantial evidence and (2) proper legal standards

were used to evaluate the evidence.               Villa v. Sullivan, 895 F.2d

1019, 1021 (5th Cir. 1990).         If the Commissioner's findings are

supported by substantial evidence, then the findings are conclusive

and the Commissioner's decision must be affirmed.                        42 U.S.C.

§    405(g);   Richardson   v.   Perales,         402    U.S.   389,   390     (1971).

"Substantial     evidence   is   more    than      a     scintilla,    less    than a

preponderance, and is such relevant evidence as a reasonable mind

might accept as adequate to support a conclusion." Villa, 895 F.2d

at 1021-22 (internal quotations and citations omitted).

       In evaluating a disability claim, the Commissioner must follow

a    five-step   sequential   process        to   determine      whether      (1)   the


                                        3
claimant is presently working; (2) the claimant's ability to work

is significantly limited by a physical or mental impairment;

(3) the claimant's 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 claimant cannot

presently perform relevant work.         See Muse v. Sullivan, 925 F.2d

785, 789 (5th Cir. 1991); 20 C.F.R. § 404.1520.         In this case, at

the fourth step of the sequential evaluation process, the ALJ found

that Martinez could perform his past relevant work.

     We weigh four elements of proof when determining whether there

is substantial evidence of disability:            (1) objective medical

facts;   (2)   diagnoses   and   opinions   of   treating   and    examining

physicians; (3) the claimant's subjective evidence of pain and

disability;    and   (4)   his   age,    education,   and   work    history.

Wren v. Sullivan, 925 F.2d 123, 126 (5th Cir. 1991).          We may not,

however, reweigh the evidence or try the issues de novo.             Cook v.

Heckler, 750 F.2d 391, 392 (5th Cir. 1985).            The Commissioner,

rather than the courts, must resolve conflicts in the evidence.

See Patton v. Schweiker, 697 F.2d 590, 592 (5th Cir. 1983).

B.   Necessity of Remand

     Martinez suggests that a remand is required because the

consultative medical examination ordered by the ALJ failed to

include blood tests and x-rays suggested by the medical expert. At

the hearing, medical expert Dr. William Daily recommended that

Martinez have a follow-up examination which should include a

complete blood count, SMA-20 blood chemistry tests, and chest x-


                                     4
rays.1       Dr.   Gregory   Moore's     subsequent       consultative      medical

examination included these tests; therefore, Martinez' argument is

frivolous.

      Martinez also suggests that the case should be remanded so

that he can have a stress test and arteriogram.                   The suggestion is

frivolous too.          Dr. Daily did not state that these tests were

necessary to evaluate Martinez' condition.

C.    Evidence of Disability

Age, Education, and Work History

      Martinez was 52 years old when the hearing was held.                   He has

only a first-grade education and is not fluent in English.                         His

past employment experience includes work as a machine sander and a

fruit picker.      Both occupations are considered medium work.

Subjective Evidence

      Martinez testified that he is always very tired and his back

and legs hurt; that his legs are numb when he first wakes in the

morning; that his shoulders hurt; and that he frequently becomes

dizzy and drowsy from his diabetes.                  According to Martinez, his

doctor has told him that if his "sugar does not go down," he will

have to take insulin shots.        He stated that he has to get up to go

to   the     bathroom    approximately       eight    times   a    night;   that    he

sometimes has blurry vision and problems breathing; and that he


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          Dr. Daily also recommended follow-up psychological or
psychiatric testing if the medical evaluation revealed no problems.
Although this testing apparently never took place, Martinez does
not suggest that the failure to evaluate his mental condition was
error. Accordingly, this issue is waived. Brinkmann v. Abner,
813 F.2d 744, 748 (5th Cir. 1987); see Fed. R. App. P. 28(a)(5).

                                         5
takes pills for chest pain and has problems with his bladder

leaking.

      Martinez grocery shops while his grandson pushes the cart. It

hurts his back to bend and his hands are stiff, but he can perform

small motor tasks.           He stated that he washes dishes, mops and

sweeps, cleans the bathroom, and cooks.                   He spends most of his days

watching TV and resting.

      Martinez' daughter, Rose Mary Pantoja, testified that Martinez

used to be a hard worker who maintained his yard and car, but he

can no longer do this because of his back.                    Ms. Pantoja and other

members of her family do her parents' heavy housework and yard work

because Mr. and Mrs. Martinez are unable to do it themselves.

Objective Medical Facts

      It   is   undisputed      that   Martinez       suffers       from    non-insulin

dependent diabetes and arthritis of the spine.                      The extent of his

impairment from these conditions is disputed.

Physicians' Opinions

      At the hearing, Martinez introduced a report dated September

1, 1992, from Dr. Yeung Chan, his treating physician, which stated

that Martinez was unable to perform any type of work because he

suffered from severe arthritis of the spine.                     Dr. Chan's records

cited a December 9, 1991, x-ray indicating degenerative spinal

arthritis,      but    the   x-ray   was   not      submitted       with    his   report.

Dr.   Chan's    notes    also   indicated          that    Martinez       suffered   from

diabetes melitis.

      Martinez        also   introduced        a    report     of     a    consultative


                                           6
examination performed on March 16, 1992, by Dr. Kenneth L. Long,

which stated that Martinez suffered from:

            1.     Alleged diabetes without documentation.   No
                   laboratory data requested. The patient is on
                   no medication for this problem.

            2.     Alleged low back problems without
                   physical   or x-ray  findings  of
                   significance.

            3.     Alleged stomach problems (mainly
                   abdominal bloating and bowel gas)
                   without documentation.

Dr. Long noted that x-rays revealed "normal (spinal) alignment,

normal disc spaces, and . . . joints . . . within normal limits.

Processes are intact.          There are . . . small anterior marginal

osteophytes at L3 and L4 but the lumbar spine is otherwise within

normal limits."

     Before Martinez testified, the medical expert, Dr. Daily,

expressed his opinion that, although there was "some conflict in

the medical evidence," Martinez' medical records indicated that he

could perform medium work.           After Martinez testified, Dr. Daily

qualified    his    opinion    by   stating   that,   considering   Martinez'

testimony as credible, additional medical tests would be required

to determine whether Martinez was capable of medium work.

     Dr.    Daily     stated    that   Martinez'      medical   records   were

sufficient for him to express a confident opinion as to all of

Martinez' claimed impairments except his complaints of fatigue.

Dr. Daily opined that Martinez' diabetes could not cause the

extreme    symptoms    of   chronic    fatigue   that   Martinez    described.

Dr. Daily suggested that Martinez be referred for a consultative


                                        7
examination to determine whether he suffered from chronic fatigue

syndrome.     Dr.    Daily    found   no   musculoskeletal     disability   or

indication of a coronary problem.            In response to questions by

Martinez' attorney, Dr. Daily qualified his prior testimony by

agreeing that Martinez' diabetes could be partially responsible for

his complaints of fatigue and poor bladder control; however,

Dr. Daily indicated that further testing would be required to

resolve the issue.

      Dr. Moore performed a consultative medical exam which included

the tests recommended by Dr. Daily.              Dr. Moore reported that

Martinez suffered from arthritis of the spine but that he had

"no significant physical abnormalities nor evidence of functional

limitations . . . ."      He further reported that, although Martinez

had a history of non-insulin dependent diabetes with a history of

poor control, Dr. Moore found no evidence of end organ damage due

to the diabetes.

      Based on his examination, Dr. Moore determined that Martinez

had no impediments to his ability to lift, carry, stand, walk, or

sit; that he could climb, crouch, kneel, and crawl occasionally;

and   that   he    had   no   other   limitations   on   his    work-related

activities.       This determination supports the ALJ's finding that

Martinez could perform his past relevant work as a sander or fruit

picker.

      Without discussing the results of the follow-up consultative

medical examination, Martinez cites Dr. Daily's statement at the

hearing that he would not "send [Martinez] out today to do medium


                                       8
work," arguing that there is "no evidence" to show that Martinez

can     perform    medium    work.         Martinez     misses    the     point    and

misconstrues Dr. Daily's statement.                Dr. Daily did not state that

Martinez was incapable of medium work; he stated that without

further testing he could not determine whether Martinez was capable

of medium work. Thus, Martinez' argument that there is no evidence

to support the finding of no disability is incorrect.

      Martinez      also    insists    that      the   district   court    erred    by

disregarding the evidence of his treating physician, Dr. Yeung

Chan.     Although not conclusive, an evaluation by the claimant's

treating physician should be accorded great weight.                     Greenspan v.

Shalala, 38 F.3d 232, 237 (5th Cir. 1994), cert. denied, No. 94-

8717, 1995 WL 156211 (U.S. May 15, 1995).                 A treating physician's

opinion on the nature and severity of a patient's impairment will

be given controlling weight if it is "well-supported by medically

acceptable clinical and laboratory diagnostic techniques and is not

inconsistent with . . . other substantial evidence."                      20 C.F.R.

§ 404.1527(d)(2).           Even though the opinion and diagnosis of a

treating    physician       should    be   afforded     considerable      weight    in

determining       disability,    "the      ALJ   has   sole   responsibility       for

determining a claimant's disability status."                  Moore v. Sullivan,

919 F.2d 901, 905 (5th Cir. 1990).                "`[T]he ALJ is free to reject

the opinion of any physician when the evidence supports a contrary

conclusion.'"       Bradley v. Bowen, 809 F.2d 1054, 1057 (5th Cir.

1987) (citation omitted).

      Dr. Chan's opinion that Martinez is totally disabled is not


                                           9
entitled to controlling weight because Dr. Chan failed to provide

a medical explanation for his opinion, and because Dr. Chan's

opinion is inconsistent with the opinions of Drs. Long and Moore,

which were based on clinical test results.

     As    substantial   evidence   supports   the   determination   that

Martinez is not disabled, the Commissioner's decision must stand.

42 U.S.C. § 405(g); Richardson, 402 U.S. at 390; Villa, 895 F.2d at

1021-22.

AFFIRMED.




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