Menchaca 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this opinion should not be published and is not precedent except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 28 U.S.C. § 2412(d).
2 42 U.S.C. § 423(d) (defining “disability” as the “inability
to engage in any substantial gainful activity by reason of any
medically determinable physical or mental impairment which can be
expected to result in death or which has lasted or can be expected
United States Court of Appeals
Fifth Circuit
F I L E D
April 27, 2006
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 05-20669
Summary Calendar
ROLANDO MENCHACA,
Plaintiff-Appellant,
versus
JO ANNE B. BARNHART, COMMISSIONER OF SOCIAL SECURITY,
Defendant-Appellee.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
(4:03-CV-05310)
--------------------
Before KING, WIENER, and DeMOSS, Circuit Judges.
PER CURIAM*:
Rolando Menchaca appeals the district court’s judgment denying
his petition for fees under the Equal Access to Justice Act
(“EAJA”)1 and affirming the conclusion of the Commissioner of
Social Security (“Commissioner”) that Menchaca does not suffer from
a “disability” within the meaning of the Social Security Act
(“SSA”).2 Having carefully reviewed the record and briefs, we

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to last for a continuous period of not less than 12 months”).
3 Tex. State Teachers Ass’n v. Garland Indep. Sch. Dist., 489
U.S. 782, 791-92 (1989) (internal quotation marks and alterations
omitted).
4 Id.
Menchaca also contends that, under Federal Rules of Civil
Procedure 37(b)(2)(A), (B), and (C), “the party who has completely
failed to meet deadlines has, as a matter of law, a penalty of
payment of attorney’s fees and/or of loss of the right to present
evidence.” Those rules, however, govern a parties’ failure to
cooperate in discovery, not a party’s failure to answer a complaint
in a timely manner.
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affirm the district court’s judgment.
First, Menchaca is not a “prevailing party” eligible for a fee
award under EAJA. To qualify as a prevailing party, “the plaintiff
[must have] succeeded on any significant issue in litigation which
achieved some of the benefit [he] sought in bringing suit.”3
Menchaca argues that he prevailed at a conference held before the
district court because the court allegedly ordered the Commissioner
to reimburse Menchaca for his costs incurred in gathering documents
for his Social Security file. Nothing in the record, however,
establishes that the district court issued such an order or,
assuming that it did, that this particular matter would qualify as
a “significant issue,” Menchaca’s success in which would have
“achieved some of the benefit [he] sought in bringing suit.”4
Second, the Commissioner’s conclusion that Menchaca is not
disabled within the meaning of the SSA is supported by substantial
evidence and is not tainted by any legal errors. “Substantial
evidence is ‘more than a mere scintilla. It means such relevant

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5 Brown v. Apfel, 192 F.3d 492. 496 (5th Cir. 1999) (quoting
Richardson v. Perales, 402 U.S. 389, 401 (1971)) (internal
quotation marks omitted).
6 Johnson v. Bowen, 864 F.2d 340, 343 (5th Cir. 1988).
7 Brown, 192 F.3d at 496 (internal quotation marks omitted).
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evidence as a reasonable mind might accept as adequate to support
a conclusion.’”5 Notably, “we may not reweigh the evidence in the
record, nor try the issues de novo, nor substitute our judgment for
that of the [Commissioner], even if the evidence preponderates
against [her] decision.”6 In other words, if the Commissioner’s
conclusion is supported by substantial evidence, we must affirm it,
even in the face of conflicting evidence. This is because
“[c]onflicts in the evidence are for the [Commissioner] and not the
courts to resolve.”7
The Commissioner based her conclusion that Menchaca is not
disabled on both steps four (whether Menchaca retained the residual
functional capacity to perform his past relevant work) and five
(whether, considering Menchaca’s residual functional capacity, age,
education, and work experience, he is capable of engaging in other
work that exists in significant numbers in the national economy) of
the five-step sequential evaluation process mandated by 20 C.F.R.
§§ 404.1520 and 416.920. Menchaca challenges the Commissioner’s
conclusion at both of these steps, but expends most of his energy
challenging the Commissioner’s step four analysis. As the five-
step sequential process embodies a conjunctive test, however, we

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8 To impugn the Commissioner’s decision at step four, Menchaca
most forcefully argues that the Commissioner improperly classified
his residual functional capacity as limiting him to light work,
claiming that the Commissioner erred in her consideration of
Menchaca’s evidence of pain. We need not address this argument,
though, because the Commissioner’s conclusion at step five assumed
that Menchaca is correct that his residual functional capacity
limits him to sedentary work. In his appellate brief, Menchaca
agrees with this sedentary residual functional capacity.
9 See 20 C.F.R. § 404.1569 & Subpart P., App. 2.
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must affirm the Commissioner’s decision if her conclusion at either
step four or step five is supported by substantial evidence and not
tainted by legal error. It is therefore unnecessary for us to
consider the propriety of her conclusion at step four because her
conclusion at step five is both supported by substantial evidence
and free from legal error.8
At step five, the Commissioner concluded that Menchaca’s
residual functional capacity, age, education, and work experience
enable him to “perform the full range of sedentary, unskilled work”
and that such jobs “are found to exist [in the national economy] in
significant numbers.” To reach this conclusion, the Commissioner
relied on the testimony of a Vocational Expert and the Medical-
Vocational Guidelines.9 Menchaca argues that the Commissioner
erred in both of these respects because “the hypothetical question
[she] posed did not adequately incorporate” Menchaca’s
characteristics, and reliance on the Medical-Vocational Guidelines
is not permitted “when there are non-exertional limitations.” Like
his other arguments, these are meritless. First, the

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10 The hypothetical question assumed the following facts: an
“individual 44 years of age who’s completed a GED,” who is “limited
by the qualification that the individual should neither bend nor
stoop on more than an occasional basis,” for whom “[c]rawling is
precluded as is working at significant unprotected heights,” and
whose residual functional capacity is “sedentary as a result of his
pain symptoms.” According to the Vocational Expert, “sedentary,
unskilled work . . . would be most appropriate” for such an
individual. Cf. Morris v. Bowen, 864 F.2d 333, 335-36 (5th Cir.
1988) (permitting reliance on a hypothetical question where the
question “reasonably incorporated” the claimant’s characteristics
and the claimant “had an opportunity to correct any defect in the
hypothetical”).
11 Fraga v. Bowen, 810 F.2d 1296, 1304 (5th Cir. 1987).
12 Id.
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Commissioner’s hypothetical question adequately incorporated
Menchaca’s characteristics, and Menchaca’s counsel had the
opportunity to correct any problems with it on cross-examination of
the Vocational Expert.10 Second, our precedents permit the
Commissioner to rely on the Medical-Vocational Guidelines “[w]hen
the characteristics of the claimant correspond to criteria in”
those Guidelines “and the claimant . . . suffers only from . . .
non-exertional impairments [that] do not significantly affect his
residual functional capacity.”11 Here, the Vocational Expert
explicitly testified that Menchaca’s non-exertional limitations
would cause “zero percent erosion” in the amount of sedentary,
unskilled jobs available to him. As Menchaca has made no attempt
to rebut this evidence, we agree that his non-exertional
limitations “do not significantly affect his residual functional
capacity.”12 We thus perceive no error in the Commissioner’s

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reliance on the Vocational-Medical Guidelines.
AFFIRMED.

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