Diaz v. Barnhart ( 2003 )

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this opinion should not be published and is not precedent except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
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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
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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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