     Case: 10-30345 Document: 00511285652 Page: 1 Date Filed: 11/05/2010




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                          November 5, 2010

                                     No. 10-30345                           Lyle W. Cayce
                                   Summary Calendar                              Clerk



ANNA MARIA JANUARY,

                                                   Plaintiff–Appellant,
v.

MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY,

                                                   Defendant–Appellee.




                   Appeal from the United States District Court
                      for the Western District of Louisiana
                             USDC No. 6:08-CV-785


Before WIENER, PRADO, and OWEN, Circuit Judges.
PER CURIAM:*
       Anna Maria January appeals the district court’s judgment affirming the
Commissioner’s denial of her application for Social Security disability benefits.
We affirm.
                                              I
       January filed an application for Social Security disability benefits on
account 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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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                                         No. 10-30345

Commissioner 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
Social Security regulations; (4) the impairment prevents the claimant from doing
past relevant work; and (5) the impairment prevents the claimant from doing
any other work.1        While the claimant bears the burden of establishing her
disability in the first four steps of the analysis, the burden shifts to the
Commissioner at step five to show that there is other substantial work in the
national economy that the claimant can perform.2
      After a hearing, an Administrative Law Judge (ALJ)—acting for the
Commissioner—determined that January was not working and that she suffered
from 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
ALJ determined that January’s residual functional capacity enabled her to
perform 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
associate, which fell in the medium work category.                  The ALJ determined,
however, that under the Medical-Vocational Guidelines,3 other substantial work
existed in the national economy that January was capable of performing.
Accordingly, the ALJ found that January was “not disabled” and denied her
application for benefits. This appeal followed.



      1
          Audler v. Astrue, 501 F.3d 446, 447-48 (5th Cir. 2007).
      2
          Id. at 448.
      3
          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
the proper legal standards and whether the denial is supported by substantial
evidence in the record.4 Substantial evidence “is such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.” 5 We may
not reweigh the evidence or substitute our judgment for that of the
Commissioner.6
       January’s two contentions on appeal revolve around the ALJ’s failure to
consider a box ticked by a medical consultant on her residual functional capacity
evaluation. The tick mark indicates that she suffers from a nonexertional limit
on her work capacity, namely an environmental restriction prohibiting her from
working around hazards such as machinery or heights. January first argues
that the ALJ’s failure to mention this nonexertional limitation deprives the
residual functional capacity assessment of substantial evidence, thereby
invalidating it.         Though the ALJ is not always required to provide an
“exhaustive point-by-point discussion” of the evidence offered in support of a
disability claim,7 it is a close call whether his failure to discuss the nonexertional
limitation was error. Assuming, arguendo, that the ALJ erred here, the error
was harmless, as discussed more fully below.




      4
        Greenspan v. Shalala, 38 F.3d 232, 236 (5th Cir. 1994) (citing 42 U.S.C. §§ 405(g),
1383(c)(3)) (other citations omitted).
       5
           Id. (citations omitted).
       6
           Id.
      7
           Audler, 501 F.3d at 448.

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                                        No. 10-30345

       January’s second contention has more merit, but ultimately fails. She
argues that, in light of her nonexertional limitation, the ALJ erred in relying
exclusively 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
the Guidelines when the claimant suffers from nonexertional impairments.8
That rule is subject to a substantial caveat, however, in that it does not apply
when the claimant’s nonexertional impairments “do not significantly affect [the
claimant’s] residual functional capacity.”9             Here, the ALJ looked to the
Guidelines without first determining that January’s environmental restriction
prohibiting her from working near machinery or heights significantly
compromised her capacity to perform light work. This omission is error, as we
cannot determine whether his decision to utilize the Guidelines—and thus
declare January “not disabled”—is based on substantial evidence.10
       Our analysis is not at an end, however, because we must analyze whether
the ALJ’s error was harmless. It is well-established that “procedural perfection
in administrative proceedings is not required as long as the substantial rights
of a party have not been affected.”11 We are convinced that the ALJ’s error here
did not affect January’s substantial rights, as we agree with the district court
that Social Security Ruling 85-15 forecloses January’s argument that her



       8
           See Fraga v. Bowen, 810 F.2d 1296, 1304 (5th Cir. 1987).
       9
           Id.
       10
          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)).
       11
            Id. (citation omitted).

                                               4
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                                      No. 10-30345

nonexertional limitation significantly affected her capacity to perform light
work. SSR 85-15 describes various environmental limitations that a person may
need to avoid, such as “those involving extremes of temperature, noise, and
vibration; recognized hazards such as unprotected elevations and dangerous
moving machinery; and fumes, dust, and poor ventilation.”12 The ruling also
provides an example relevant here, stating that “a person with a seizure disorder
who is restricted only from being on unprotected elevations and near dangerous
moving machinery is an example of someone whose environmental restriction
does not have a significant effect on work that exists at all exertional levels.” 13
Similarly, January’s environmental limitation does not have a significant effect
on the light work available to her in the national economy, and her substantial
rights were not affected by the ALJ’s error.
      January argues that SSR 85-15 does not apply because her environmental
restriction requires that she avoid all machinery and not just dangerous
machinery. This argument is based solely on the language of the residual
functional capacity checklist indicating that January should “avoid all exposure”
to “hazards (machinery, heights, etc.).” We are not persuaded that the checklist
language must be taken so literally. Indeed, the medical consultant ticked
another box indicating that January had “unlimited” capability to “push and/or
pull” within her exertional limitations.             This capability, according to the
checklist, includes the “operation of hand and/or foot controls”—actions typically
associated with operating machinery. Moreover, January testified that she
occasionally drove her car, which is undoubtedly “machinery.”                    Most


      12
           SSR 85-15, 1985 WL 56857, at *8 (1985).
      13
           Id.

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                                            No. 10-30345

importantly, a restriction from dangerous machinery comports with the other
“hazards” described in the United States Department of Labor’s Selected
Characteristics of Occupations Defined in the Revised Dictionary of Occupational
Titles        (SCO),14   one    source      from   which   the   Commissioner    may    take
administrative notice of work existing in the national economy.15 Aside from
“proximity to moving mechanical parts,” other hazards listed in the SCO include
“exposure to electrical shock”; “working in high, exposed places”; “exposure to
radiation”; “working with explosives”; and “exposure to toxic, caustic
chemicals.”16         In this context, we believe that the checklist’s language is
shorthand for “dangerous machinery,” and that SSR 85-15 is applicable.
Accordingly, remand to the Commissioner would serve no purpose because
January’s environmental restriction does not significantly erode her potential
job base at the light work level.
         Finally, January contends that we are precluded from relying on SSR 85-
15 because the Commissioner did not rely on it below. Generally, we may only
affirm an agency decision on the basis of the rationale it advanced below.17



         14
         UNITED STATES DEP ’T OF LABOR , SELECTED CHARACTERISTICS OF OCCUPATIONS
DEFINED 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.”)
         15
              20 C.F.R. § 404.1566(d)(1).
         16
              SCO, supra note 14, at app. D.
         17
         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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                                    No. 10-30345

However, there are exceptions to that rule, including harmless error.18 Here,
there is “no realistic possibility that, absent the error[],” the ALJ would have
reached a different conclusion.19
                                *        *         *
      The judgment is AFFIRMED.




      18
           See id.
      19
           Id.

                                         7
