Gardner v. Barnhart

* 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this opinion should not be published and is not precedent except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.
1
United States Court of Appeals
Fifth Circuit
F I L E D
December 30, 2005
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 04-31234
Summary Calendar
_____________________
BRUCE E. GARDNER,
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 Louisiana, Lafayette
USDC No. 6:03-CV-1756
_________________________________________________________________
Before JOLLY, DAVIS, and OWEN, Circuit Judges.
PER CURIAM:*
Bruce E. Gardner appeals the district court’s decision
affirming the Commissioner’s denial of social security disability
benefits because the Commissioner determined that Gardner was not
disabled under the Social Security Act. We affirm for the
following reasons:
1. We agree with the analysis offered in the magistrate
judge’s report and recommendation and the district court’s order
accepting the magistrate’s recommendation.

-- 1 of 4 --

2
2. Gardner’s main argument is that the ALJ erred in finding
that the hypothetical situation presented to the vocational expert
was appropriate; that is, the ALJ erred when she found that Gardner
could perform work that exists in significant numbers, based on a
hypothetical situation in which the vocational expert assumed that
Gardner could sit for six hours in an eight-hour workday.
This Court’s review is restricted under 42 U.S.C. § 405(g) to
two inquiries: (1) whether the Commissioner’s decision is supported
by substantial evidence in the record; and (2) whether the decision
comports with relevant legal standards. Carey v. Apfel, 230 F.3d
131, 135 (5th Cir. 2000). Substantial evidence is relevant
evidence that a reasonable mind might accept as adequate to support
a conclusion. Carey, 230 F.3d at 135. This Court may not re-weigh
the evidence, nor substitute its judgment for the Commissioner’s.
Id. This rule applies even if the preponderance of the evidence
does not support the Commissioner’s conclusion. Id. A finding of
no substantial evidence is only appropriate when no credible
evidentiary choices or medical findings support the Commissioner’s
decision. Johnson v. Bowen, 864 F.2d 340, 343-44 (5th Cir. 1988).
3. Gardner argues that the limitations presented in the
hypothetical (mentioned above) were inappropriate because the
evidence shows that he could not sit for six hours in an eight-hour
workday. The record shows that two of the four doctors who
examined Gardner, one of whom was Gardner’s treating physician,

-- 2 of 4 --

3
indicated that he could do light work. Such aforementioned sitting
requirements are part of the definition of the ability to do light
work. The ALJ is entitled to determine the credibility of the
examining physicians and medical experts and weigh their opinions
accordingly. Greenspan v. Shalala, 38 F.3d 232, 237 (5th Cir.
1994). It is within the ALJ’s discretion to resolve issues of
conflicting evidence. Jones v. Heckler, 702 F.2d 616, 621 (5th
Cir. 1983). Thus, the record, through the statements of the
doctors, supports the ALJ’s finding that Gardner could sit for six
hours.
Gardner also argues that the limitations were inappropriate
for failing to include his depression as a limitation. He admits,
however, that he did not raise this argument in his principal brief
to the district court. Furthermore, the ALJ appeared to consider
the evidence of depression in her opinion and the only doctor who
presented evidence on the issue stated that Gardner’s depression
was mild and did not inhibit his daily functions or relationships.
Gardner further argues that the fact that Gardner had counsel
present, who could have cured the error of the hypothetical, does
not mitigate the effect of the error. Because substantial evidence
supports the application of the hypothetical, it is unnecessary to
address this argument.
4. Gardner argues that the legal standard applied by the ALJ
was incorrect, first, because “there is no mention of any

-- 3 of 4 --

4
functional limitation by the [ALJ].” As the ALJ considered a wide
array of limitations in this case, this argument is meritless.
Gardner then seems to argue that, because Gardner suffers from
both exertional and non-exertional limitations, the ALJ should not
have used the Medical-Vocational Guidelines. This argument is also
meritless. The ALJ noted that Gardner could not perform the full
range of light work, but only a limited range. She further noted
that he had both exertional and non-exertional limitations, and
properly used the Guidelines as a “framework” for considering how
much Gardner’s work capability was further diminished. 20 C.F.R.
pt. 404, subpt. P, app. 2, § 200.00(e)(2) (2005). Using the
Guidelines as a “framework,” the ALJ properly relied on the
vocational expert’s testimony and the medical evidence to determine
that Gardner could perform a significant number of jobs, and thus
was not disabled.
For these reasons, the judgment of the district court is
AFFIRMED.

-- 4 of 4 --