Anna January v. Michael Astrue, Commissioner

Filing

UNPUBLISHED OPINION FILED. [10-30345 Affirmed ] Judge: JLW , Judge: ECP , Judge: PRO Mandate pull date is 12/27/2010 [10-30345]

Anna January v. Michael e: 10-30345 Document: 00511285652 Cas Astrue, Commissioner

Page: 1 Date Filed: 11/05/2010

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IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
November 5, 2010 N o . 10-30345 S u m m a r y Calendar Lyle W. Cayce Clerk

A N N A MARIA JANUARY, P la in t if f ­ A p p e lla n t , v. M I C H A E L J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, D e fe n d a n t ­ A p p e lle e .

A p p e a l from the United States District Court for the Western District of Louisiana U S D C No. 6:08-CV-785

B e fo r e WIENER, PRADO, and OWEN, Circuit Judges. P E R CURIAM:* A n n a Maria January appeals the district court's judgment affirming the C o m m is s io n e r 's denial of her application for Social Security disability benefits. We affirm. I J a n u a r y filed an application for Social Security disability benefits on a c c o u n t of her back and neck problems. In evaluating a disability claim, the

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.

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Case: 10-30345 Document: 00511285652 Page: 2 Date Filed: 11/05/2010

No. 10-30345 C o m m is s io n e r conducts a five-step sequential analysis to determine whether (1 ) the claimant is presently working; (2) the claimant has a severe impairment; (3 ) the impairment meets or equals an impairment listed in Appendix 1 of the S o c ia l Security regulations; (4) the impairment prevents the claimant from doing p a s t relevant work; and (5) the impairment prevents the claimant from doing a n y other work.1 While the claimant bears the burden of establishing her

d is a b ilit y in the first four steps of the analysis, the burden shifts to the C o m m is s io n e r at step five to show that there is other substantial work in the n a t io n a l economy that the claimant can perform.2 A fte r a hearing, an Administrative Law Judge (ALJ)--acting for the C om m ission er-- d et e r m in e d that January was not working and that she suffered fr o m a severe impairment, a disorder of the cervical, thoracic, and lumbar spine. After concluding that a finding of disability was not required at step three, the A L J determined that January's residual functional capacity enabled her to p e r fo r m the full range of light work as defined by Social Security regulations. This finding precluded January from returning to her previous work as a sales a s s o c ia t e , which fell in the medium work category. The ALJ determined,

h o w e v e r , that under the Medical-Vocational Guidelines,3 other substantial work e x is t e d in the national economy that January was capable of performing. Accordingly, the ALJ found that January was "not disabled" and denied her a p p lic a t io n for benefits. This appeal followed.

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Audler v. Astrue, 501 F.3d 446, 447-48 (5th Cir. 2007). Id. at 448. 20 C.F.R. pt. 404, subpt. P, app. 2.

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No. 10-30345 II Our review is limited to determining whether the Commissioner applied t h e proper legal standards and whether the denial is supported by substantial e v id e n c e in the record.4 Substantial evidence "is such relevant evidence as a r e a s o n a b le mind might accept as adequate to support a conclusion." 5 We may n o t reweigh the evidence or substitute our judgment for that of the C o m m is s io n e r .6 J a n u a r y 's two contentions on appeal revolve around the ALJ's failure to c o n s id e r a box ticked by a medical consultant on her residual functional capacity e v a lu a tio n . The tick mark indicates that she suffers from a nonexertional limit o n her work capacity, namely an environmental restriction prohibiting her from w o r k in g around hazards such as machinery or heights. January first argues t h a t the ALJ's failure to mention this nonexertional limitation deprives the r e s id u a l functional capacity assessment of substantial evidence, thereby in v a lid a t in g it. Though the ALJ is not always required to provide an

" e x h a u s t iv e point-by-point discussion" of the evidence offered in support of a d is a b ilit y claim,7 it is a close call whether his failure to discuss the nonexertional lim it a t io n was error. Assuming, arguendo, that the ALJ erred here, the error w a s harmless, as discussed more fully below.

Greenspan v. Shalala, 38 F.3d 232, 236 (5th Cir. 1994) (citing 42 U.S.C. §§ 405(g), 1383(c)(3)) (other citations omitted).
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Id. (citations omitted). Id. Audler, 501 F.3d at 448.

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No. 10-30345 J a n u a r y 's second contention has more merit, but ultimately fails. She a r g u e s that, in light of her nonexertional limitation, the ALJ erred in relying e x c lu s iv e ly on the Guidelines to find she was not disabled at step five. January is correct that, as a general rule, the Commissioner may not rely exclusively on t h e Guidelines when the claimant suffers from nonexertional impairments.8 T h a t rule is subject to a substantial caveat, however, in that it does not apply w h e n the claimant's nonexertional impairments "do not significantly affect [the c la im a n t 's ] residual functional capacity."9 Here, the ALJ looked to the

G u id e lin e s without first determining that January's environmental restriction p r o h ib it in g her from working near machinery or heights significantly c o m p r o m is e d her capacity to perform light work. This omission is error, as we c a n n o t determine whether his decision to utilize the Guidelines--and thus d e c la r e January "not disabled"--is based on substantial evidence.1 0 O u r analysis is not at an end, however, because we must analyze whether t h e ALJ's error was harmless. It is well-established that "procedural perfection in administrative proceedings is not required as long as the substantial rights o f a party have not been affected."1 1 We are convinced that the ALJ's error here d id not affect January's substantial rights, as we agree with the district court t h a t Social Security Ruling 85-15 forecloses January's argument that her

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See Fraga v. Bowen, 810 F.2d 1296, 1304 (5th Cir. 1987). Id.

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See Audler, 501 F.3d at 448 ("[T]he ALJ offered nothing to support her conclusion at this step and because she did not, we, as a reviewing court, simply cannot tell whether her decision is based on substantial evidence or not." (citation and quotation marks omitted)).
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Id. (citation omitted).

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Case: 10-30345 Document: 00511285652 Page: 5 Date Filed: 11/05/2010

No. 10-30345 n o n e x e r t io n a l limitation significantly affected her capacity to perform light w o r k . SSR 85-15 describes various environmental limitations that a person may n e e d to avoid, such as "those involving extremes of temperature, noise, and v ib r a t io n ; recognized hazards such as unprotected elevations and dangerous m o v in g machinery; and fumes, dust, and poor ventilation."1 2 The ruling also p r o v id e s an example relevant here, stating that "a person with a seizure disorder w h o is restricted only from being on unprotected elevations and near dangerous m o v in g machinery is an example of someone whose environmental restriction d o e s not have a significant effect on work that exists at all exertional levels." 13 S im ila r ly , January's environmental limitation does not have a significant effect o n the light work available to her in the national economy, and her substantial r ig h t s were not affected by the ALJ's error. J a n u a r y argues that SSR 85-15 does not apply because her environmental r e s t r ic t io n requires that she avoid all machinery and not just dangerous m a c h in e r y . This argument is based solely on the language of the residual fu n c tio n a l capacity checklist indicating that January should "avoid all exposure" t o "hazards (machinery, heights, etc.)." We are not persuaded that the checklist la n g u a g e must be taken so literally. Indeed, the medical consultant ticked a n o t h e r box indicating that January had "unlimited" capability to "push and/or p u ll" within her exertional limitations. This capability, according to the

c h e c k lis t , includes the "operation of hand and/or foot controls"--actions typically a s s o c ia t e d with operating machinery. Moreover, January testified that she o c c a s io n a lly drove her car, which is undoubtedly "machinery." Most

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SSR 85-15, 1985 WL 56857, at *8 (1985). Id.

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Case: 10-30345 Document: 00511285652 Page: 6 Date Filed: 11/05/2010

No. 10-30345 im p o r t a n t ly , a restriction from dangerous machinery comports with the other " h a z a r d s " described in the United States Department of Labor's Selected C h a r a cteristics of Occupations Defined in the Revised Dictionary of Occupational T itle s (SCO),1 4 one source from which the Commissioner may take

a d m i n is t r a t iv e notice of work existing in the national economy.1 5 Aside from " p r o x im it y to moving mechanical parts," other hazards listed in the SCO include " e x p o s u r e to electrical shock"; "working in high, exposed places"; "exposure to r a d ia tio n " ; "working with explosives"; and "exposure to toxic, caustic c h e m ic a ls ."1 6 In this context, we believe that the checklist's language is

s h o r t h a n d for "dangerous machinery," and that SSR 85-15 is applicable. Accordingly, remand to the Commissioner would serve no purpose because J a n u a r y 's environmental restriction does not significantly erode her potential jo b base at the light work level. F in a lly , January contends that we are precluded from relying on SSR 851 5 because the Commissioner did not rely on it below. Generally, we may only a ffir m an agency decision on the basis of the rationale it advanced below.17

UNITED STATES DEP'T OF LABOR, SELECTED CHARACTERISTICS OF OCCUPATIONS DE F I N E D IN TH E REVISED DICTIONARY OF OCCUPATIONAL TITLES, app. D (1993) [hereinafter SCO]; see also SSR 96-9p, 1996 WL 374185, at *8 (1996) ("The `hazards' defined in the SCO are considered unusual in unskilled sedentary work [and] . . . [e]ven a need to avoid all exposure to these conditions would not, by itself, result in a significant erosion of the occupational base.")
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20 C.F.R. § 404.1566(d)(1). SCO, supra note 14, at app. D.

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See Enriquez-Gutierrez v. Holder, 612 F.3d 400, 407 (5th Cir. 2010) ("[W]e may usually only affirm the BIA on the basis of its stated rationale for ordering an alien removed from the United States.").

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Case: 10-30345 Document: 00511285652 Page: 7 Date Filed: 11/05/2010

No. 10-30345 H o w e v e r , there are exceptions to that rule, including harmless error.1 8 Here, t h e r e is "no realistic possibility that, absent the error[]," the ALJ would have r e a c h e d a different conclusion.1 9 * The judgment is AFFIRMED. * *

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See id. Id.

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