                              PUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 15-2487


CONSTANCE L. PATTERSON,

                Plaintiff – Appellant,

           v.

COMMISSIONER OF SOCIAL SECURITY ADMINISTRATION,

                Defendant – Appellee.



Appeal from the United States District Court for the District of
South Carolina, at Charleston.     Bruce H. Hendricks, District
Judge. (2:14-cv-00763-BHH)


Argued:   December 7, 2016                 Decided:   January 19, 2017


Before KING, DUNCAN, and KEENAN, Circuit Judges.


Reversed and remanded with instructions by published opinion.
Judge Duncan wrote the opinion, in which Judge King and Judge
Keenan joined.


ARGUED: William Daniel Mayes, SMITH, MASSEY, BRODIE, GUYNN &
MAYES, P.A., Aiken, South Carolina, for Appellant. Evelyn Rose
Marie Protano, SOCIAL SECURITY ADMINISTRATION, Philadelphia,
Pennsylvania, for Appellee.      ON BRIEF: Nora Koch, Acting
Regional Chief Counsel, Charles J. Kawas, Acting Supervisory
Attorney, Office of the General Counsel, SOCIAL SECURITY
ADMINISTRATION, Philadelphia, Pennsylvania; William N. Nettles,
United States Attorney, Marshall Prince, Assistant United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Columbia, South
Carolina, for Appellee.
DUNCAN, Circuit Judge:

     Plaintiff-Appellant                  Constance         L.    Patterson          (“Patterson”)

appeals     from          a      district-court          order         affirming       the     Social

Security         Administration’s               (“SSA”)          decision        to     deny       her

application          for      disability        benefits.          This      case     presents      an

issue      of        first        impression        in      our        circuit:       whether      an

Administrative Law Judge’s (“ALJ”) failure to follow the special

technique required by 20 C.F.R. § 404.1520a when evaluating a

claimant’s mental impairment requires remand or may constitute

harmless        error.             We    hold     that         such     an     error     does      not

automatically             require       remand,       but      that      the    error        was   not

harmless        on       these    facts.        For      the     reasons       that    follow,      we

reverse the district court’s order with instructions to remand

to   the    ALJ           for     appropriate         review       of     Patterson’s          mental

impairment.



                                                  I.

     Patterson             filed    an     application           for    disability       insurance

benefits        on       July     21,    2010.           The      SSA     denied       Patterson’s

application initially and on reconsideration.                                    Patterson then

filed a timely request for a hearing on May 12, 2011.

        After        a    hearing,       an   ALJ      also      denied        her    application,

finding that Patterson was not disabled during the period for

which she sought benefits.                       In so ruling, the ALJ claimed to

                                                  2
have reached his decision on the objective medical record, but

he   based     his        findings     regarding         Patterson’s       impairments

primarily on the conclusions of one doctor, Dr. Horn.                               With

regard to the ALJ’s evaluation of Patterson’s mental impairment

specifically,       the     ALJ    failed     to   (1)     follow    the    procedures

outlined     in    20      C.F.R.    § 404.1520a         (“the     special-technique

regulation”), and (2) discuss other medical-record evidence that

conflicted with Dr. Horn’s opinion, such as contrary opinions of

other   physicians        or    contradictory          portions    of   medical     test

results.     Understanding where the ALJ went wrong in evaluating

Patterson’s       disability       requires      background       knowledge   of    the

complex web of regulations governing the ALJ’s review, which we

discuss at great length infra Part II.A.1.                      For now it suffices

to note that, on appeal, the SSA concedes error in the ALJ’s

failure to assess Patterson’s mental impairment--and its effect

on   her   working      abilities--in        the    manner       prescribed   by    the

special-technique regulation.

     Patterson       sought       review    of   the    ALJ’s     decision,   but    the

SSA’s Appeals Council denied her request, rendering the ALJ’s

decision the final decision of the SSA Commissioner for purposes

of judicial review.            42 U.S.C. § 405(g).         Patterson timely filed

suit in federal district court, claiming that the ALJ ignored

regulatory requirements and reached a decision unsupported by

substantial evidence.              Before the magistrate judge, Patterson

                                            3
requested a reversal of the SSA’s determinations and a remand

for   (1)     an    award    of    benefits,      or       alternatively,     (2)     further

administrative         proceedings.         The    magistrate         judge     recommended

affirming the SSA, on the grounds that (1) substantial evidence

supported      all    of     the   ALJ’s    challenged         findings,      and    (2)   the

ALJ’s failure to articulate his findings in accordance with the

special-technique           regulation      constituted         harmless      error.       The

district           court      adopted       the        magistrate’s           report       and

recommendation         and     affirmed     the    SSA’s        decision.           Patterson

timely appealed.



                                            II.

      On      appeal,       Patterson      seeks       a    remand    to    the     SSA    for

proceedings consistent with the special-technique regulation and

other       applicable       regulations. 1        The        SSA    counters       that   any

missteps by the ALJ constitute harmless error because this court

can itself apply the special technique in determining whether

substantial evidence supports the ALJ’s denial of benefits.


        1
       Patterson also argues that the ALJ erred by failing to
(1) adequately   consider   all   impairments   listed  in  SSA
regulations, (2) accord controlling weight to her treating
physician’s opinion, and (3) properly explain the sit/stand
option in assessing her ability to work.      As we explain, we
cannot consider the merits of these claims, or reach an
independent conclusion on whether Patterson is entitled to
benefits because the ALJ failed to follow the special-technique
regulation in documenting his conclusions.


                                              4
       We   review     an    SSA    decision       only     to   determine          if    it   is

supported by substantial evidence and conforms to applicable and

valid   regulations.          42     U.S.C.       § 405(g);      Shively       v.    Heckler,

739 F.2d 987, 989 (4th Cir. 1984).                      Where an insufficient record

precludes     a   determination        that       substantial         evidence      supported

the ALJ’s denial of benefits, this court may not affirm for

harmless error.          See Meyer v. Astrue, 662 F.3d 700, 707 (4th

Cir. 2011); see also Shinseki v. Sanders, 556 U.S. 396, 407

(2009) (noting that “general case law governing application of

the harmless-error standard” applies equally to administrative

cases).       Because       the    ALJ’s     failure       to    follow       the    special-

technique     regulation          frustrates      effective          judicial       review     in

this    case,     we     reverse       the        district       court’s        order       with

instructions to remand to the SSA for proceedings consistent

with its own regulations.

       Below,     we   first       outline        the    statutory       and     regulatory

framework governing the SSA’s grant or denial of benefits, and

how the ALJ applied that framework here.                         Next, we explain why

we   cannot     accept      the    SSA’s   invitation           to    apply    the       special

technique ourselves in the first instance.                             We do not decide

whether failure to follow the special technique requires remand

in every case, but we are satisfied that the error here requires

remand.



                                              5
                                          A.

                                          1.

     The Social Security Act (“the Act”) provides for benefits

to claimants below retirement age who are “under a disability.”

42 U.S.C. § 423(a)(1)(E).               SSA regulations set out a step-by-

step process for determining disability benefits.                           20 C.F.R.

§ 404.1520(a)(1).       Steps       1     through   3   ask:   (1)     whether      the

claimant   is   working;     (2)    if    not,    whether    she    has     a   “severe

impairment”; and (3) if she does, whether the impairment “meets

or equals a listed impairment.”                See id. § 404.1520.        Satisfying

step 3 warrants an automatic finding of disability, and relieves

the decision maker from proceeding to steps 4 and 5.                            See id.

§ 404.1520(d); see also Sullivan v. Zebley, 493 U.S. 521, 532

(1990).

     If the claimant satisfies steps 1 and 2, but not step 3,

then the decision maker must determine the claimant’s residual

functional capacity, that is, an evaluation of her ability to

perform    work    despite     her        limitations       (“RFC     assessment”).

20 C.F.R. § 404.1520(e).           In determining the most a claimant can

still perform, the decision maker must evaluate “all” relevant

record evidence.      Id.      This RFC assessment is a holistic and

fact-specific     evaluation;       the    ALJ    cannot    conduct    it       properly

without reaching detailed conclusions at step 2 concerning the

type and severity of the claimant’s impairments.

                                           6
     After conducting the RFC assessment, the ALJ proceeds to

step 4.    Id. §§ 404.1520(a)(4)(iv), 404.1520(f).                  At step 4, the

decision maker determines whether the impairment prevents the

claimant        from      performing         “past          relevant            work.”

Id. § 404.1520(a)(4)(iv). 2

     The     special-technique       regulation          affects     how       an   ALJ

evaluates and documents his process at steps 1 through 4 if the

claimant alleges a mental impairment.                Id. § 404.1520a.               When

evaluating and documenting the severity of a claimant’s mental

impairment at steps 2 and 3--and its concomitant impact on the

RFC assessment relevant to step 4--the ALJ “must follow [the]

special technique.”      Id. § 404.1520a(a) (emphasis added).

     Under      the    special-technique         regulation,        if      the     ALJ

determines that a mental impairment exists, he “must specify the

symptoms, signs, and laboratory findings that substantiate the

presence   of    the   impairment(s)       and   document     [his]        findings.”

Id. § 404.1520a(b)(1).         The ALJ must also document “a specific

finding as to the degree of limitation in each of” the four

areas of functional limitation listed in § 404.1520a(c)(3).                         Id.

§ 404.1520a(e)(4).        In   the   first       three    areas     of    functional

limitations--(a)       activities     of     daily        living,        (b)    social


     2 An alternative process governs where insufficient evidence
supports a finding at the fourth step, 20 C.F.R. § 404.1520(h),
but that exception does not apply here.


                                       7
functioning,      and    (c)     concentration,            persistence,          or    pace--the

ALJ   must    rate   the    degree       of     limitation         using    “the       following

five-point scale: None, mild, moderate, marked, and extreme.”

Id. § 404.1520a(c)(4).             The ALJ must rate the fourth functional

area--(d) episodes of decompensation--using “the following four-

point scale: None, one or two, three, four or more.”                                  Id.     Next,

the ALJ must determine if the mental impairment is severe, and

if    so,     whether       it     qualifies              as   a     listed       impairment.

Id. § 404.1520a(d).            If the mental impairment is severe but is

not a listed impairment, the ALJ must assess the claimant’s RFC

in light of how the impairment constrains the claimant’s work

abilities.           See       id. § 404.1520a(d)(3).                      The        regulation

specifically      provides        that    the       ALJ    must    document       all       of    the

special technique’s steps.               Id. § 404.1520a(e)(4).

      The     claimant      carries       the       burden      of    proof      at     steps       1

through 4.      See 42 U.S.C. § 423(d)(5); 20 C.F.R. § 404.1512(a).

If a claimant carries her burden, the burden shifts to the SSA

at step 5 to demonstrate that the impairment does not prevent

the    claimant      from        engaging       in        other      substantial            gainful

employment.       See 20 C.F.R. §§ 404.1520(g)(1), 404.1512(f).                                   To

do    this,    the   SSA     Commissioner            must      present     “evidence             that

demonstrates that other work exists in significant numbers in

the national economy that [the claimant] can do, given [her]



                                                8
residual        functional    capacity    and   vocational   factors.”     Id.

§ 404.1560(c)(2). 3

                                         2.

       In the present case, at steps 1 and 2, the ALJ found that

Patterson was not working, and had severe physical and mental

impairments.       At step 3, he determined these impairments did not

meet       or   equal   any   listed   impairment.     In    reaching    these

conclusions, the ALJ mentioned the findings of two doctors--

Dr. Horn and Dr. Ritterspach. 4          However, the ALJ did not evaluate

the severity of Patterson’s mental impairment in accordance with

the special technique, nor did he document application of the

special technique in his decision as required by the regulation.

20 C.F.R. § 404.1520a(e).              In addition, the record contained

evidence that conflicted with the findings of these doctors, and

the ALJ did not address these conflicts.


       3The Act defines “work which exists in the national
economy” as work that “exists in significant numbers either in
the region where such individual lives or in several regions of
the country.”     42 U.S.C. § 423(d)(2)(A).       This is often
demonstrated by vocational-expert testimony on the matter.  See
Grant v. Schweiker, 699 F.2d 189, 191–92 (4th Cir. 1983).

       4
       Dr. Ritterspach had completed a psychological evaluation
of Patterson, and Dr. Horn had reviewed this evaluation to
conclude that Patterson had the severe mental impairment of
borderline intellectual functioning.     The ALJ agreed with
Dr. Horn “that the claimant’s test results show that the
claimant was functioning at the borderline intellectual level,”
A.R. 15, in making his mental-impairment findings and in
conducting his RFC assessment.


                                         9
        In his RFC assessment, the ALJ explained that Patterson’s

impairments         allowed      her    to    perform          “light    work”        with    the

requirement that employers give her discretion to switch from

sitting to standing while performing work.                            At step 4, the ALJ

found      that     this      RFC      assessment         prevented          Patterson       from

performing         any   “past      relevant       work.”         But    at     step     5,    he

concluded that Patterson did not qualify as disabled because

vocational-expert testimony established that her RFC assessment

matched available alternative work activity.

                                              B.

                                              1.

     The SSA concedes that the ALJ did not document application

of   the      special      technique         in     reaching         these     findings,       or

explicitly adopt physician findings that could possibly qualify

alone    as    a     surrogate      for      the    special-technique            assessment.

Nevertheless,        the      SSA   claims    that        we   can    examine    the     record

evidence and apply the special technique ourselves.                              Noting that

the question before us is an issue of first impression, the SSA

argues     that     if   we    reach    the       ALJ’s    conclusion         after    our    own

application of the special technique, then we can affirm the

ALJ’s denial of benefits on harmless-error grounds.                               Our sister

circuits that have considered this issue have split on whether




                                              10
harmless-error          review   applies,    both   in     analyzing    the    current

special-technique regulation and its predecessor. 5

       Of    the    courts    that   have   found   harmless      error,      only   the

Sixth Circuit has analyzed the language of the special-technique

regulation         in   so   holding.      See   Rabbers    v.   Comm’r    Soc.      Sec.

Admin., 582 F.3d 647, 656–57 (6th Cir. 2009).                      In Rabbers, the

court reached its harmless-error conclusion after noting that

the opening provision of 20 C.F.R. § 404.1520a states “[u]sing

the technique helps us,” id. § 404.1520a(a), with “us” referring

to the SSA.         Rabbers, 582 F.3d at 656.         Reasoning primarily from

this       one   textual     hook,   the    court   decided      that   the    special

technique is a procedure designed solely to aid the ALJ.                              Id.

The Sixth Circuit therefore concluded that the special technique

       5
       Compare Wells v. Colvin, 727 F.3d 1061, 1065 & n.3, 1068–
71 (10th Cir. 2013) (failure to follow the special-technique
regulation   requires   remand    if  claimant   has   medically
determinable mental impairments); Keyser v. Comm’r Soc. Sec.
Admin., 648 F.3d 721, 726 (9th Cir. 2011) (same); Moore v.
Barnhart, 405 F.3d 1208, 1214 (11th Cir. 2005) (same), and
Montgomery v. Shalala, 30 F.3d 98, 100 (8th Cir. 1994) (same
with predecessor regulation), with Kohler v. Astrue, 546 F.3d
260, 269 (2d Cir. 2008) (leaving “open the possibility that an
ALJ’s failure to adhere to the regulations’ special technique
might under other facts be harmless” but concluding that the
record before it could not support such a finding), and Pepper
v. Colvin, 712 F.3d 351, 366–67 (7th Cir. 2013) (can be harmless
error); Rabbers v. Comm’r Soc. Sec. Admin., 582 F.3d 647, 661
(6th Cir. 2009) (same).       Notably, in an unpublished case
considering the predecessor of the current regulation, this
court found reversible error where the ALJ failed to follow the
special technique. Long v. U.S. Dep’t of Health & Human Servs.,
No. 88-3651, 1990 WL 64793 at *4 (4th Cir. 1990) (per curiam)
(unpublished).


                                            11
could    not    also      provide     (1)    a     mandatory      process     designed        to

confer       procedural     benefits        on    claimants       or    (2)   a     necessary

component to establish a record for possible judicial review.

See id. at 655–57.

       While we agree with the Sixth Circuit that the language of

the special-technique regulation guides our inquiry, we disagree

on     the    import      of    that    language.             The       special-technique

regulation’s plain language describes what the SSA must do.                                   The

regulation states that the SSA “will document application of the

technique in the decision,” 20 C.F.R. § 404.1520a(e) (emphasis

added),      and   its    subsections        all    say    what     the   decision          maker

“must” include or document, e.g., id. § 404.1520a(e)(3) (noting

that     “the      determination       must        document       application          of    the

technique”).         Therefore,        the       plain    language      of    the   special-

technique       regulation      militates         against     the      holding      that     the

special-technique regulation offers only nonbinding guidance for

the    benefit      of    the   ALJ.        See     Rabbers,      582     F.3d    at    664–65

(Holschuh, J., dissenting in part, and concurring in part).

       Moreover,         that   the    SSA       codified      the      special-technique

process in a regulation contradicts the argument that the SSA

sought only to offer decision makers nonbinding guidance.                                     The

SSA knows how to issue nonbinding policy statements and guidance

documents.         See, e.g., Social Security Administration, Program

Operations Manual System (2016).                   Explaining how an agency wants

                                             12
its decision makers to apply a regulation is one purpose of such

nonbinding guidance.             See Cmty. Nutrition Inst. v. Young, 818

F.2d   943,     949    (D.C.     Cir.    1987)     (per      curiam).        In     issuing

nonbinding guidance, agencies need not undergo the laborious and

demanding requirements of promulgating a regulation, nor must

they   publish       this    type   of   guidance       in   the    Federal       Register.

Long   Island      Care     at   Home,   Ltd.     v.    Coke,      551    U.S.    158,   173

(2007).       In      establishing       its     special-technique          process      for

evaluating and documenting mental impairments, the SSA did not

choose to issue nonbinding policy guidance, but instead chose

the much more arduous process of promulgating and publishing a

regulation with mandatory language.                    We cannot conclude that the

SSA    codified       the    special-technique          process      simply       for    the

benefit of ALJs.           See id. at 172–73.

       Furthermore, the weight of authority suggests that failure

to properly document application of the special technique will

rarely, if ever, be harmless because such a failure prevents, or

at least substantially hinders, judicial review.                              See, e.g.,

Kohler v. Astrue, 546 F.3d 260, 267 (2d Cir. 2008); see also

Mascio v. Colvin, 780 F.3d 632, 636–37 (4th Cir. 2015) (finding

reversible error where ALJ failed to employ a parallel special-

technique regulation for assessing supplemental security income

benefits      claims).           Without        documentation        of     the     special

technique,      it    is    difficult      to    discern      how    the    ALJ     treated

                                           13
relevant and conflicting evidence.                  See Mascio, 780 F.3d at 637

(refusing    to    hold       that    ALJ’s    lack      of   reasoning      constituted

harmless error “[b]ecause we are left to guess about how the ALJ

arrived at his conclusions” regarding an RFC assessment); Myers

v. Califano, 611 F.2d 980, 983 (4th Cir. 1980).

      “Administrative determinations are required to be made in

accordance       with    certain      procedures        which   facilitate      judicial

review.”     Cook v. Heckler, 783 F.2d 1168, 1172 (4th Cir. 1986).

We cannot fill in the blanks for the ALJ in the first instance.

Failure     to     document      application            of    the    special-technique

regulation constitutes error.

                                              2.

      Although such error may be harmless error in some cases,

this is not one of them.              Based on the findings of Dr. Horn, the

ALJ concluded that Patterson had the severe mental impairment of

borderline intellectual functioning, but also found that this

impairment did not meet or equal a listed impairment.                              In so

deciding,    the        ALJ   noted    other       evidence     that    is     admittedly

pertinent to his conclusions, but he did not address conflicting

evidence, or explain away contrary findings of other doctors in

a comprehensive manner.              Looking at the ALJ’s decision, the most

we   can   say    is     that   he    appears      to    have   at     least   partially

examined the correct evidence, and began the correct evaluation.



                                              14
      But   the      special-technique            regulation      requires     more,     see

supra Part II.A.1, and we hesitate to declare the error here

harmless because it implicates the validity of so many of the

ALJ’s conclusions.           We cannot affirm the ALJ’s evaluation of

Patterson’s       mental    impairment         because      his     decision      did    not

explain how he weighed all relevant evidence: he did not rate

Patterson’s       four     areas   of        functional      limitation       listed       in

§ 404.1520a(c)(3) according to the prescribed scale, nor did he

explain how he reached his conclusions about the severity of the

mental   impairment.          20   C.F.R.         §§ 404.1520a(c),          404.1520a(d).

For example, on this record, the IQ score is a red flag that the

ALJ   should    have      analyzed      in    greater       depth    before       summarily

concluding that Patterson’s condition met none of the listed

impairments.          Likewise,    because          we   cannot     review     the      ALJ’s

mental-impairment         evaluation,        we    cannot    say    that     he    properly

assessed Patterson’s RFC.             20 C.F.R. § 404.1520a(c)(3); Mascio,

780 F.3d at 637.           And because we cannot gauge the propriety of

the   ALJ’s     RFC      assessment,      we       cannot    say     that     substantial

evidence supports the ALJ’s denial of benefits.                        See Meyer, 662

F.3d at 707; Mascio, 780 F.3d at 636.                       Harmonizing conflicting

evidence       and       bolstering          inconclusive          findings        requires

credibility determinations that we cannot make; these exercises




                                             15
fall outside our scope of review.                 See Mascio, 780 F.3d at 637–

40. 6

        Put    simply,    “[t]he    ALJ’s       lack    of     explanation        requires

remand.”       Id. at 640.       Normally, our opinion would end here, and

we would not go beyond ordering the ALJ to apply the regulation

that it failed to observe.                Here, however, in the interest of

judicial       efficiency,    we    direct       the    ALJ       to    provide    a   more

detailed explanation of any evaluation of applicable Listings,

including      Listing    12.05,    and    Patterson’s            treating     physician’s

opinion       in   determining     the    type   and        severity     of    Patterson’s

mental impairment.           We also exhort him to more fully define

Patterson’s        RFC,   which    will    obviate          the     concerns     Patterson

raises on appeal about the adequacy of the ALJ’s definition of

the sit/stand option in assessing her ability to work.



                                          III.

        We do not take a position on the merits of Patterson’s

application for disability benefits.                   Instead, the dispute here

arises      from   a   problem    that    has    become       all      too    common   among

administrative         decisions    challenged         in    this      court--a    problem

        6
       Importantly, in articulating its harmless-error exception
in Rabbers, the Sixth Circuit noted that an ALJ’s failure to
follow the special technique likely could not be reviewed for
harmless error where the record contained “conflicting or
inconclusive evidence.”   582 F.3d at 657.    That is precisely
what we have here.


                                           16
decision makers could avoid by following the admonition they

have no doubt heard since their grade-school math classes: Show

your work.    The ALJ did not do so here, and this error rendered

his decision unreviewable.            See Kohler, 546 F.3d at 267.

     On   remand,    the      ALJ    should     follow   the    dictates   of    all

applicable regulations.             Reaching a decision in a well-reasoned

and documented fashion serves multiple purposes.                   It provides an

appropriate record for review.                  It also accords a claimant’s

arguments    the   procedure         and   respect    they   deserve.      And   of

course, providing comprehensive review of a claimant’s arguments

is in the SSA’s best interest--in the instant case, providing

such review in a well-documented manner would allow a court to

readily   determine      the    merits     of    Patterson’s    other    arguments

related to the ALJ’s (1) evaluation of a particular Listing,

(2) consideration        of    her    treating       physician’s     opinion,    and

(3) definition of her sit/stand option in formulating her RFC

assessment.        For   the    reasons     stated     above,   we    reverse    the

district court’s order with instructions to remand to the ALJ

for appropriate review of Patterson’s mental impairment.



                                    REVERSED AND REMANDED WITH INSTRUCTIONS




                                           17
