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Diaz v. Barnhart, 02-11248 (2003)

Court: Court of Appeals for the Fifth Circuit Number: 02-11248 Visitors: 4
Filed: May 22, 2003
Latest Update: Feb. 21, 2020
Summary: United States Court of Appeals Fifth Circuit F I L E D UNITED STATES COURT OF APPEALS May 22, 2003 FOR THE FIFTH CIRCUIT Charles R. Fulbruge III Clerk 02-11248 Summary Calendar CARLOS DIAZ, Plaintiff-Appellant, VERSUS JO ANNE B. BARNHART, COMMISSIONER OF SOCIAL SECURITY, Defendant-Appellee. Appeal from the United States District Court For the Northern District of Texas (2:99-CV-136) Before JONES, DUHÉ, and CLEMENT, Circuit Judges. PER CURIAM:1 This social security appeal presents the question wh
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                                                          United States Court of Appeals
                                                                   Fifth Circuit
                                                                F I L E D
                  UNITED STATES COURT OF APPEALS                  May 22, 2003

                        FOR THE FIFTH CIRCUIT               Charles R. Fulbruge III
                                                                    Clerk


                              02-11248
                          Summary Calendar




                            CARLOS DIAZ,

                                                Plaintiff-Appellant,

                               VERSUS

       JO ANNE B. BARNHART, COMMISSIONER OF SOCIAL SECURITY,

                                                 Defendant-Appellee.



           Appeal from the United States District Court
                For the Northern District of Texas
                           (2:99-CV-136)



Before JONES, DUHÉ, and CLEMENT, Circuit Judges.

PER CURIAM:1

      This social security appeal presents the question whether

substantial evidence supports the Commissioner’s final decision

denying   Plaintiff   disability   benefits.    Finding     substantial

evidence to support the finding of no disability, we affirm.

      Plaintiff was injured while working as an industrial mechanic.



  1
     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this opinion should not be published and is not precedent except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.
The Administrative Law Judge found the claimant was unable to

perform the kind of work he had customarily performed before the

onset of his disability.              The Commissioner thereupon bore the

burden of showing that the claimant’s age, education, work history,

and   functional    capacity     permit      a   successful       adaptation      to   a

significant number of other jobs existing in the national economy.

Selders v. Sullivan, 
914 F.2d 614
, 618 (5th Cir. 1990).

       The Administrative Law Judge found that plaintiff has the

residual functional capacity to perform sedentary work.                     Because a

vocational expert identified two sedentary jobs the claimant could

perform      considering   his   age,     education,    and       experience,      the

Administrative Law Judge concluded that the claimant was not

disabled at step five of the sequential evaluation process. See 20

C.F.R. § 404.1520(b-f).

       Plaintiff identifies two issues in this appeal: first, whether

the Commissioner carried her burden of showing a significant number

of    jobs the    claimant    could     perform    consistent       with    his   age,

education and experience; and second, whether jobs which require

additional training can properly be considered jobs which the

claimant can perform.

       We review the record to determine whether substantial evidence

supports the findings and whether any errors of law were made.

Anderson v. Sullivan, 
887 F.2d 630
, 633 (5th Cir. 1989); 42 U.S.C.

§ 405(g).

       The    vocational     expert    testified     that     a    person    of    the

                                         2
claimant’s age, education, experience, and functional capacity

could work as an information clerk (e.g., answering questions in a

retail establishment or hotel about merchandise or services) or an

identification      clerk       (e.g.,       compiling       personal      data       about

personnel, preparing identification cards).                     Further, the expert

noted that there are hundreds of thousands of such jobs nationally.

This testimony constitutes “substantial evidence” to support the

Administrative Law Judge’s finding that other substantial gainful

employment was available.

      Plaintiff next argues that both the jobs identified require

additional education and experience and cannot therefore constitute

jobs existing in significant numbers that he can presently perform.

The expert considered the plaintiff’s education and experience,

however, before identifying the two jobs.                       Tr. 57.          Once the

Secretary pointed out potential alternative employment, the burden

then shifted to the claimant to prove that he is unable to perform

the alternate work. 
Selders, 914 F.2d at 618
; Haywood v. Sullivan,

888 F.2d 1463
, 1467 (5th Cir. 1989).

      Plaintiff failed to produce evidence that he is incapable of

performing the jobs identified by the vocational expert.                         The only

record   reference        plaintiff        offers      to   support     his   claim     of

intellectual      deficiency         is    the   ambiguity      about      whether     the

statement that he “[went] back to school to get a GED” meant that

he   actually    received       a    GED    or   simply     tried     to   get    a   GED.

Regardless      whether    he       attained     his    goal,   we    note    that     the

                                             3
Administrative Law Judge’s opinion was based on the premise that

plaintiff completed only eleventh grade and his education was

“limited.” Tr. 20. “Limited education” generally means 7th through

the 11th grade and not high school graduate or equivalent.      See 20

C.F.R.   §   404.1564(b)3).   Plaintiff   did   not   cross-examine   or

challenge the vocational expert on the testimony that plaintiff

could perform either of the jobs.     Accordingly, the testimony of

the vocational expert provides a sufficient evidentiary basis to

support the finding of no disability.

     AFFIRMED.




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Source:  CourtListener

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