     Case: 10-30752 Document: 00511385503 Page: 1 Date Filed: 02/17/2011




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

                                                 FILED
                                                                          February 17, 2011

                                     No. 10-30752                           Lyle W. Cayce
                                   Summary Calendar                              Clerk



JANELLE T. ALEXANDER,

                                                   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-1570


Before REAVLEY, DENNIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
       Janelle T. Alexander appeals from the district court’s decision affirming
the Commissioner’s denial of her application for Social Security disability
benefits. We affirm.
       Alexander brought this action under 42 U.S.C. § 405(g) to obtain
judicial review of a final decision of the Commissioner of Social Security that
she was not disabled, and hence was not entitled to benefits, under the Social


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 10-30752

Security Act. In her application for benefits, Alexander alleged that she was
disabled due to hypertension and neck and back pain. Her application was
denied by an administrative law judge (ALJ) on March 20, 2008.1 The
Appeals Council denied her request for review, making the ALJ’s
determination the final decision of the Commissioner. Alexander then
brought this action under § 405(g) in the United States District Court for the
Western District of Louisiana. The district court adopted the magistrate
judge’s report and recommendation, overruled Alexander’s objections to it,
and affirmed the ALJ’s decision. Alexander timely appealed.
       In reviewing the Commissioner’s determination that Alexander was not
disabled, we consider only whether the ALJ applied the proper legal
standards and whether the decision to deny benefits was supported by
substantial evidence in the record. Audler v. Astrue, 501 F.3d 446, 447 (5th
Cir. 2007). “Substantial evidence is ‘more than a mere scintilla. It means
such relevant evidence as a reasonable mind might accept as adequate to
support a conclusion.’” Id. (quoting Richardson v. Perales, 402 U.S. 389, 401
(1971)). “We may not reweigh the evidence or substitute our judgment for
that of the Commissioner.” Id. We “may only scrutinize the record to
determine whether it contains substantial evidence to support the
Commissioner’s decision.” Leggett v. Chater, 67 F.3d 558, 564 (5th Cir. 1995).
       The Commissioner conducts a five-step sequential analysis in
evaluating disability claims. In this analysis, the Commissioner determines:
       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;


       1
         Alexander’s opening brief indicates that she is currently receiving disability benefits,
as of March 21, 2008, as a result of a subsequently filed application which was successful. At
issue in this appeal is the ALJ’s decision to deny her benefits prior to that date, pursuant to
her initial application.

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      (4) the impairment prevents the claimant from doing past
      relevant work; and (5) the impairment prevents the claimant
      from doing any other substantial gainful activity.
Audler, 501 F.3d at 447-48. At the first four steps, the claimant has the
burden of showing that she is disabled; at the fifth step, the Commissioner
has the burden of showing “that there is other substantial work in the
national economy that the claimant can perform.” Id. at 448. “A finding that
a claimant is disabled or is not disabled at any point in the five-step review is
conclusive and terminates the analysis.” Lovelace v. Bowen, 813 F.2d 55, 58
(5th Cir. 1987).
      Alexander’s arguments on appeal pertain to the ALJ’s findings at the
fourth and fifth steps of the analysis. At the fourth step, the ALJ found that
Alexander was “able to perform sedentary work,” albeit with certain
“limitations.” Among these limitations were that she could “never stoop,
kneel, crouch, or crawl.” These findings were based on medical records
including a “Physical Residual Functional Capacity Assessment [which] was
completed by a State Agency medical consultant on October 10, 2006.” The
ALJ also took into account Alexander’s testimony, but found that her
“statements concerning the intensity, persistence and limiting effects of [her]
symptoms [were] not credible to the extent they [were] inconsistent with the
residual functional capacity assessment.” The ALJ found that Alexander had
“past relevant work as a retail teller/cashier, production technician, sewing
machine operator, work order technician, bench jewelry technician, and
accounting clerk.” The ALJ explained that a “vocational expert classified
[Alexander’s] past work as light and sedentary, and semiskilled/skilled in
nature. Accordingly, [Alexander] is unable to perform some of her past
relevant work.” However, at this point in his opinion, having concluded that




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                                     No. 10-30752

Alexander was unable to perform some of her past relevant work, the ALJ did
not specifically state which past jobs she could or could not perform.
       A finding, at the fourth step, that Alexander’s impairments did not
prevent her from performing some of her past relevant work ought to have
resulted in the conclusion that Alexander was not disabled. See 20 C.F.R.
§ 404.1560(c)(1) (“If we find that your residual functional capacity is not
enough to enable you to do any of your past relevant work, we will . . . decide
if you can adjust to any other work.”); Smith v. Astrue, 278 F. App’x 395, 398
(2008) (unpublished) (“The negative result at step four required a finding of
‘not disabled.’”). Such a conclusion should have brought the ALJ’s sequential
analysis to an end. Lovelace, 813 F.2d at 58.
       However, the ALJ instead continued to the fifth step of the analysis. At
this step, he found that “[c]onsidering [Alexander’s] age, education, work
experience, and residual functional capacity, there are jobs that exist in
significant numbers in the national economy that [she] can perform.” The
ALJ noted that Alexander did not have “the residual functional capacity to
perform the full range of sedentary work” because she had additional physical
limitations. Therefore, “[t]o determine the extent to which these limitations
erode the unskilled sedentary occupational base, the [ALJ] asked the
vocational expert whether jobs exist in the national economy for an individual
with [Alexander’s] age, education, work experience, and additional functional
capacity.”2 The vocational expert responded that such an individual “would
be able to perform the requirements of representative occupations such as
work order technician (sedentary-semiskilled); bench jewelry technician
(sedentary-semiskilled); and accounting clerk (sedentary-skilled).”


      2
        As the district court put it: “The ALJ appears to have simultaneously asked the
vocational expert whether [Alexander] could have performed any of her past work (step four)
and whether she could perform any work that exists in the national economy (step five).”

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      All three of those occupations — work order technician, bench jewelry
technician, and accounting clerk — were among those included in Alexander’s
“past relevant work” in the ALJ’s findings at step four. Thus, the ALJ’s
findings at step five supplemented and clarified the findings at step four, in
which the ALJ determined that Alexander was unable to perform some of her
past relevant work but did not specify which past relevant work she was still
able to perform.
      The ALJ made a procedural error by combining the fourth and fifth
steps of the sequential analysis. However, when an ALJ makes a procedural
error in denying disability benefits, “we must still determine whether [the]
error was harmless.” Audler, 501 F.3d at 448 (citing Morris v. Bowen, 864
F.2d 333, 334 (5th Cir. 1988)). “‘Procedural perfection in administrative
proceedings is not required’ as long as ‘the substantial rights of a party have
not been affected.’” Id. (quoting Mays v. Bowen, 837 F.2d 1362, 1364 (5th Cir.
1988)). “[P]rocedural improprieties . . . will therefore constitute a basis for
remand only if such improprieties would cast into doubt the existence of
substantial evidence to support the ALJ’s decision.” Morris, 864 F.2d at 335;
see also January v. Astrue, No. 10-30345, 2010 WL 7386754, *3 (5th Cir.
2010) (unpublished) (“[T]here is ‘no realistic possibility that, absent the error,’
the ALJ would have reached a different conclusion.’” (brackets omitted)
(quoting Enriquez-Gutierrez v. Holder, 612 F.3d 400, 407 (5th Cir. 2010))).
      Here, the ALJ’s failure to clearly distinguish between the fourth and
fifth steps of the sequential analysis was a harmless error that did not affect
Alexander’s substantial rights. The ALJ found that although Alexander’s
impairments prevented her from performing some of her past relevant work,
she still had the residual functional capacity to perform some of that work —
namely, the occupations of work order technician, bench jewelry technician,
and accounting clerk. These findings were sufficient for the ALJ to conclude,

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                                      No. 10-30752

at the fourth step of the analysis, that Alexander was not disabled, and end
the analysis there. Alternatively, the same findings also supported the ALJ’s
conclusion at the fifth step that Alexander was capable of performing “jobs
that exist in significant numbers in the national economy” and was therefore
not disabled.
       Alexander argues that the ALJ’s finding that she had the residual
functional capacity to work as a work order technician, bench jewelry
technician, or accounting clerk was predicated on an inaccurate hypothetical
question which the ALJ posed to the vocational expert during the hearing.
The ALJ asked the vocational expert whether jobs existed in the national
economy for a person of Alexander’s age, with her education, work experience,
and physical limitations; however, the ALJ neglected to mention one of her
physical limitations, namely her inability to stoop. Nonetheless, this
inaccuracy does not mean that the ALJ’s findings were not supported by
substantial evidence in the record. The vocational expert testified that a
person with the characteristics given in the ALJ’s hypothetical question could
work as a work order technician, bench jewelry technician, or accounting
clerk as those jobs are defined in the Dictionary of Occupational Titles
(“DOT”), a publication of the United States Department of Labor.3 The DOT
states that none of those three jobs require stooping. Thus, if the ALJ had
posed a hypothetical question that included the inability to stoop, the
vocational expert’s response would have been the same. This minor omission
by the ALJ does not warrant reversal because it does not “cast into doubt the



       3
         An ALJ’s determination of whether a claimant can perform his or her past relevant
work “may rest on descriptions of past work as actually performed or as generally performed
in the national economy. . . . ALJs may take notice of job data in the Dictionary of
Occupational Titles (‘DOT’), which reflects the exertional requirements of a job as performed
in the national economy.” Villa v. Sullivan, 895 F.2d 1019, 1022 (5th Cir. 1990) (citing 20
C.F.R. § 404.1566(d)(1)).

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                                       No. 10-30752

existence of substantial evidence to support the ALJ’s decision.” Morris, 864
F.2d at 335.
       Alexander’s briefs seem to suggest that the ALJ should have been
bound to find that she was disabled at the fourth step of the analysis because
of a sentence in a letter titled “Notice of Disapproved Claims,” issued by a
regional commissioner of the Social Security Administration. This letter
denied Alexander’s claim at the initial stage of review, prior to the ALJ’s
adjudication of the claim. The sentence reads, “We realize that your condition
prevents you from doing any of your past work, but it does not prevent you
from doing work which requires less physical effort.” (emphasis added).
However, Alexander cites no authority establishing that the ALJ should have
been bound by this letter. See 20 C.F.R. § 404.905 (“An initial determination
is binding unless you request a reconsideration within the stated time period,
or we revise the initial determination.” (emphasis added)).4
       Alexander also relies on a ruling of the Social Security Administration
which states that “[a] complete inability to stoop would significantly erode the
unskilled sedentary occupational base and a finding that the individual is
disabled would usually apply.” SSR 96-9p, 1996 WL 374185 (July 2, 1996).
However, SSR 96-9p says only that a finding of disability “would usually
apply”; it does not say that whenever a claimant has a complete inability to



       4
         As the district court noted, “the statement upon which [Alexander] relies was not
made by a State agency, medical or psychological consultant, or any other program physician
or psychologist.” Alexander’s brief describes the letter as coming from a “State Agency.”
However, the letter itself indicates that it comes from the Social Security Administration, a
federal agency, but that it is based on a decision made by “trained staff” who “work for the
state.” Alexander’s brief seemingly contends that Dr. Charles Lee, who performed a residual
functional capacity assessment on her, made the determination that she could not perform any
of her past work. But she does not point to anything in Dr. Lee’s report that supports this.
At any rate, even if a state agency did find that Alexander was unable to perform any of her
past work, “[t]he findings of a state agency are not binding on the ALJ.” Reyes v. Sullivan, 915
F.2d 151, 154 (5th Cir. 1990) (citing Richardson v. Bowen, 807 F.2d 444, 448 (5th Cir. 1987)).

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stoop, such a finding is automatically required at the fourth step. In this
case, the ALJ found that Alexander was capable of performing some of her
past relevant work notwithstanding her inability to stoop. The ALJ’s decision
was not contrary to SSR 96-9p, and it was supported by substantial evidence
in the record.
      Finally, Alexander contends that the ALJ’s statement that
“[t]ransferability of job skills is not material to the determination of
disability” amounted to a finding that she was “unskilled.” She argues that
such a finding would be inconsistent with the finding that she could perform
the “semiskilled” and “skilled” occupations of work order technician, bench
jewelry technician, and accounting clerk. However, this argument misstates
that ALJ’s findings. The ALJ merely concluded that under the regulations, it
did not matter whether Alexander’s job skills were transferable to new
occupations. He did not make a finding that Alexander was unskilled.
      In summary, although the ALJ made an error by failing to clearly
distinguish between the fourth and fifth steps of the sequential analysis, that
error does not warrant reversal. Alexander has not shown that the error
affected her substantial rights. The ALJ’s conclusion that Alexander still had
the functional capacity to perform some of her past work, and that she was
therefore not disabled for purposes of the Social Security Act, was supported
by substantial evidence in the record. We therefore AFFIRM the judgment of
the district court.




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