(caption unavailable)

* 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that this opinion should not be published.
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
__________________________
No. 94-10419
(Summary Calendar)
__________________________
ARTHUR GONZALES,
SSN: 376-44-7096, Plaintiff-Appellant,
versus
DONNA SHALALA, Secretary of
Health and Human Services, Defendant-Appellee.
_______________________________________________
Appeal from the United States District Court
for the Northern District of Texas
(3:92-CV-2490-P)
_______________________________________________
(February 17, 1995)
Before DUHÉ, WIENER and STEWART, Circuit Judges.
PER CURIAM:*
Plaintiff, Arthur Gonzales, appeals the judgment of the
district court which affirmed the Secretary's denial of his claim
for social security disability insurance benefits under 42 U.S.C.
§ 423. We affirm.
FACTS

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1 Gonzales was forty-nine at the time of the December 1991
ALJ hearing.
2 Gonzales' poor healing was attributed to his diabetic
condition.
2
Arthur Gonzales, a forty-nine year old1 construction carpenter
who worked primarily with sheetrock in high-rise projects, suffered
an abdominal hernia while on the job in 1982. On October 7, 1987,
Gonzales again suffered a hernia while on the job. Prior to this
incident, Gonzales underwent at least two surgical procedures for
his hernia problems, and one of these involved the implant of a
synthetic mesh for his abdominal wall. In December 1987, his
physicians operated on him to removed most of the old, wadded mesh
material and replace it with new Goretex material. Gonzales'
recovery from this surgery was hindered by slow healing,2 the
presence of necrotic fat in the wound area, and recurrent buildup
of fluid in the wound area which eventually became infected. He
was hospitalized several times to control recurrent infections.
Gonzales underwent additional surgeries in October 1988, June
1989, and on October 17, 1991. During the last operation, surgeons
removed the old implanted meshes, implanted the new Goretex mesh,
and overlaid the mesh with a portion of muscle from Gonzales' upper
leg.
In December 1989, Gonzales applied for disability and
supplemental income benefits, alleging October 10, 1987 as the
onset date of disability from recurring abdominal hernias. After
his application was denied, an ALJ conducted a hearing
approximately two months after Gonzales' last surgery.

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3 Gonzales testified that the training course in printing
required him to lift no more than a ream of paper but that, as of
the time of the ALJ hearing, he had not used his new trade.
4 Gonzales also testified that his on-the-job injuries
resulted in a workman's compensation settlement of $74,000 and
medical coverage through Gonzales' 65th birthday.
3
At the hearing, Gonzales testified as follows: He was a high
school graduate and, in 1989 he completed an eleven month long
trade school course in printing.3 However, he had not used this
training because he had not obtained a work release from his
physicians. His past work included extensive movement and lifting
objects weighing up to 150 pounds. He summarized his work
experience and his medical history for the past ten years. As to
his current physical abilities, Gonzales stated that he had to
alter his position continuously because he had difficulty sitting,
standing, or walking for any length of time greater than twenty to
fifty minutes. He experienced discomfort and pain. He wears an
abdominal binder except when bathing. Gonzales described his
activities as reading, helping his wife with the dishes, fixing
sandwiches, going to church, and some driving. Gonzales
acknowledged that he was able to do more activities before his last
surgery.4
The ALJ found that, although Gonzales could not perform his
past work, Gonzales had the residual functional capacity (RFC) to
perform the full range of sedentary-work activity and, therefore,
was not disabled. Among the ALJ's specific findings is the
following: Gonzales "has the residual functional capacity to
perform the physical exertion requirements of work except for

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4
lifting more than 10 pounds and standing or walking for prolonged
periods of time. There are no non-exertional limitations." The
ALJ decision became the final agency decision.
Gonzales filed suit in federal district court against the
Secretary of Health and Human Services (the Secretary) and the
matter was referred to a magistrate judge. Both parties moved for
summary judgment. The magistrate judge recommended summary
judgment in favor of the Secretary. After Gonzales filed
objections, the district court independently reviewed the record
and adopted the magistrate judge's report, thus affirming the
Secretary's denial of benefits. Gonzales appeals, asserting that
there was not substantial evidence to support the Secretary's
factual findings and resultant decision, therefore the district
court erred in adopting the magistrate judge's recommendation. We
disagree.
STANDARD OF REVIEW
This Court "review[s] the district court's grant of a summary
judgment de novo. Summary judgment is appropriate if the record
discloses `that there is no genuine issue of material fact and that
the moving party is entitled to a judgment as a matter of law.'"
Spellman v. Shalala, 1 F.3d 357, 360 (5th Cir. 1993) (citation
omitted). This Court's review of the Secretary's decision is
limited to determining "whether the Secretary applied the correct
legal standard and whether the Secretary's decision is supported by
substantial evidence on the record as a whole." Orphey v.

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5
Secretary of Health & Human Services., 962 F.2d 384, 386 (5th Cir.
1992).
DISCUSSION
A claimant under the Social Security Act is disabled if the
claimant is unable to perform "any substantial gainful activity by
reason of a[] medically determinable . . . impairment which
. . . has lasted or can be expected to last for a continuous period
of not less than 12 months." 42 U.S.C. § 423(d)(1)(A).
A five-step analysis is used to evaluate whether a claimant is
disabled. 20 C.F.R. §§ 404.1520, 416.920 (1994). The burden is on
the claimant at the first four steps to show that he is not engaged
in substantial gainful activity, that his impairment is "severe,"
and that he meets or equals an impairment listed in Appendix One of
the regulations, thus being disabled, or if not, that he cannot
perform his past relevant work. At Step 5, the burden shifts to
the Secretary to show that the claimant, considering his severe
impairment and other factors such as age, RFC, education, and work
experience, can perform work available in the national economy, and
thus the claimant is not disabled. See Wren v. Sullivan, 925 F.2d
123, 125 (5th Cir. 1991).
The ALJ determined that Gonzales was not disabled at Step 5.
After summarizing Gonzales' work and medical histories, the ALJ
found that Gonzales' condition was "severe," but that his
exertional level allowed him to lift up to ten pounds. The ALJ
concluded that,
Although claimant has undergone multiple
surgeries, there is no evidence of

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6
complications such as to preclude claimant
from engaging in the full range of sedentary
work, nor is there evidence that claimant's
condition was expected to or did last for 12
continuous months. The medical evidence shows
that in between surgeries, claimant was able
to engage in substantial gainful activity at
the sedentary level. There are no medical
records from claimant's latest surgery to show
that he is unable to return to work.
The ALJ considered Gonzales' complaints of pain and of disabling
limitations and found that the complaints were not credible to the
extent that he alleged his pain and limitations prevented the full
range of sedentary activity. The ALJ relied upon the Medical-
Vocational Guidelines (the Grid) to find that Gonzales was not
disabled. 20 C.F.R. Pt. 404, Subpt. P, App. 2, Table 1, Rule
201.21 (1994).
Gonzales argues that the Secretary's decision is not supported
by substantial evidence as to Gonzales' complaints of pain, lack of
non-exertional impairments, and RFC for the full range of sedentary
work.
"Substantial evidence is more than a scintilla and less than
a preponderance. It is such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion." Muse v.
Sullivan, 925 F.2d 785, 789 (5th Cir. 1991). "Sedentary work
involves lifting no more than 10 pounds at a time and occasionally
lifting or carrying articles like docket files, ledgers, and small
tools." 20 C.F.R. § 404.1567(a) (1994). Sitting is the primary
position for sedentary work although a certain amount of walking

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5 Gonzales argues that the ALJ should not have relied on
medical reports and assessments made in 1988 and 1990 because
they are not "substantial evidence". However, the record
reflects that the ALJ (1) considered Gonzales' post-October 1991
complaints of pain, discomfort from sitting, and fluid build-up;
and (2) noted that his complaints since the October 1991 surgery
have not been shown to last more than 12 continuous months.
7
and standing is often necessary and amounts to no more than two
hours of such activity per eight-hour day. See id.; SSR 83-10.
Complaints of Pain
The ALJ found that Gonzales' subjective complaints of
discomfort and pain were not credible so as to preclude sedentary
activity. Gonzales challenges this finding as unsupported by
substantial evidence.5
An ALJ's determination concerning a claimant's subjective
complaints receives considerable deference on review. Wren, 925
F.2d at 128. Gonzales testified that he experienced constant dull
pain with instances of sharp pain throughout the day and that he
had to repeatedly change physical positions. However, Gonzales
acknowledged that he did not list a pain-relief prescription on his
list of medications, and that he had not taken the prescribed
analgesic for over three weeks. See Carrier v. Sullivan, 944 F.2d
243, 246-47 (5th Cir. 1991) (noting that the plaintiff did not take
medication for pain). He also stated that he took Tylenol only two
or three times per week. The ALJ's findings concerning the extent
of Gonzales' pain and subjective complaints are supported by this

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8
evidence. See Selders v. Sullivan, 914 F.2d 614, 619 (5th Cir.
1990).
Reliance on the Grid:
Non-exertional Limitations & RFC for Sedentary Work
Several months after Gonzales' December 1987 surgery, the
occupational therapist noted that Gonzales had no signs of
discomfort in sitting, standing, or walking. One month after the
1987 surgery, the physician noted that Gonzales experienced no
discomfort and that the synthetic-mesh implant to the abdominal
wall was holding and the wound was well healed.
Two RFC assessments conducted in January and June of 1990
revealed that Gonzales could lift up to twenty pounds and
frequently lift up to ten pounds. No limitations were noted in his
ability to stand or walk which would affect the requirements of
sedentary activity. However, in January 1990, Gonzales' physician
noted that Gonzales could stand for periods of thirty minutes and
could lift or carry no more than five pounds. In July 1990,
Gonzales was released for work with a no-more-than-ten-pounds lift
restriction. The time frame for these assessments and the
physician's work release was between major surgical procedures.
Gonzales' last major surgery had occurred approximately two
months before the hearing before the ALJ. Gonzales testified at
the hearing that he stood for fifty minutes preaching at church the
previous evening but that he had excruciating pain during the last
fifteen minutes. Although Gonzales testified that the doctors

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6 There is no mention of additional evidence in the denial
of appeal.
9
informed him that this past surgery was his last chance for relief,
the record contains neither follow-up notes from the physicians nor
subsequent RFC assessments. Thus, there is no indication that
Gonzales' capacity for work, after he recovers from the October
1991 surgery, would be different than in the previous RFC
assessments.6
Gonzales argues that the ALJ improperly relied upon Rule
201.21 from the Grid because he does not meet the RFC for sedentary
work and because he has non-exertional impairments. He also argues
that the ALJ erred by failing to utilize testimony from a
vocational expert.
If the evidence of the severe impairment and the claimant's
characteristics match the criteria of the rule from the Grid, then
the ALJ may rely upon the Grid to determine whether the claimant is
disabled at Step 5 of the analysis. See Scott v. Shalala, 30 F.3d
33, 34 (5th Cir. 1994); Fraga v. Bowen, 810 F.2d 1296, 1304 (5th
Cir. 1987). When the ALJ properly relies on the Grid, testimony
from a vocational expert is unnecessary. See Fraga, 810 F.2d at
1304-05.
Gonzales argues that his pain and weakness are non-exertional
impairments. As discussed above, the ALJ's findings regarding
Gonzales' complaints of pain and his limitations are supported by
substantial evidence. See Carrier, 944 F.2d at 247. Gonzales'
complaints of pain and weakness relate only to his ability to

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10
perform exertional tasks, thus the ALJ's determination that
Gonzales had no non-exertional limitations is supported by
substantial evidence. See 20 C.F.R. § 416.969a(b) (limitations
which affect only the ability to sit, stand, walk, and lift are
deemed exertional limitations).
The ALJ applied 20 C.F.R. Pt. 404, Subpt. P, App. 2, Table 1,
Rule 201.21. The characteristics associated with this rule are
that the claimant (1) is able to perform the full range of
sedentary work, (2) has at least a high school education, and (3)
has previous work experience that is skilled or semi-skilled but is
not transferable. Sedentary work requires the ability to lift up
to 10 pounds, to sit for at least six hours, and to stand for up to
two hours, out of an eight-hour work day. Social Security Ruling
83-10; 20 C.F.R. § 416.967(a).
The ALJ found that Gonzales had an RFC for sedentary work,
except for the ability to stand or walk for prolonged periods of
time. Neither the ALJ nor the magistrate judge defined what was
meant by "prolonged periods of time", but both noted that Gonzales
was released to work on July 9, 1990 with a 10 pound lifting
restriction. Gonzales' pre-1991 RFC assessments place him within
the full range of sedentary work. Given the work release, the
previous post-surgery RFC assessments, and the absence of medical
evidence regarding Gonzales' post-October 1991 RFC, we find no
medical evidence that Gonzales' RFC has changed from that required
by 20 C.F.R. § 404, Subpt. P, App. 2, Table 1, Rule 201.21.

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11
Accordingly, the ALJ did not err by using the Grid. See Fraga, 810
F.2d at 1304-05.
CONCLUSION
For the above stated reasons, the finding that Gonzalez is not
disabled is supported by substantial evidence. Accordingly, the
district court judgment is AFFIRMED.

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