                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                September 30, 2004

                                                          Charles R. Fulbruge III
                                                                  Clerk
                            No. 03-51406
                          Summary Calendar


JOSLYN M. HEARNE,

                                    Plaintiff-Appellant,

versus

JO ANNE B. BARNHART, COMMISSIONER OF SOCIAL SECURITY,

                                    Defendant-Appellee.

                         --------------------
            Appeal from the United States District Court
                  for the Western District of Texas
                         USDC No. W-02-CV-164
                         --------------------

Before JOLLY, HIGGINBOTHAM, and PICKERING, Circuit Judges.

PER CURIAM:*

     Joslyn M. Hearne appeals the district court’s judgment

affirming the denial by the Commissioner of Social Security

(“Commissioner”) of Hearne’s application for disability insurance

benefits.   The Commissioner uses a sequential five-step test to

determine whether a claimant qualifies as “disabled” for purposes

of obtaining disability insurance benefits.    See Leggett v.

Chater, 67 F.3d 558, 563 (5th Cir. 1995).    In this five-step

inquiry, the Commissioner considers:   (1) whether the claimant is

currently engaged in substantial gainful activity; (2) whether

     *
       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this opinion should not be published and is not precedent except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.
                            No. 03-51406
                                 -2-

the claimant has a severe impairment; (3) whether the impairment

is listed, or equivalent to an impairment listed in appendix I of

the Social Security regulations; (4) whether the impairment

prevents the claimant from doing past relevant work; and

(5) whether the impairment prevents the claimant from performing

any other substantial gainful activity.     Id. at 563 n.2; see also

20 C.F.R. § 404.1520.    The claimant bears the burden of proving

disability for the first four steps, and the Commissioner bears

the requisite burden in the fifth step.     See Leggett, 67 F.3d at

564 & n.11.   The Commissioner’s decision is given great deference

on review and will not be disturbed unless substantial evidence

does not exist in the record to support this determination, or an

error of law was made.    See id. at 564.

     Specifically, Hearne asserts that the Administrative Law

Judge (“ALJ”) erred in relying solely upon the Medical-Vocational

Guidelines (“Grid Rules”) when determining that the Commissioner

met her burden in Step Five, thereby establishing that Hearne was

not disabled during the period in question.    Hearne’s argument

that the mere presence of a nonexertional mental impairment

prohibited the ALJ’s sole reliance upon the Grid Rules lacks

merit under this court’s precedent.    See Fraga v. Bowen, 810 F.2d

1296, 1304 (5th Cir. 1987)(The ALJ may rely exclusively on the

Grid Rules if the claimant either suffers only from exertional

impairments or his nonexertional impairments do not significantly

affect his residual functional capacity).
                            No. 03-51406
                                 -3-

     Hearne also contends that the ALJ’s finding that Hearne’s

depression, by itself as well as in conjunction with her physical

impairments, constituted a “severe” impairment at Step Two

precluded the ALJ from relying solely upon the Grid Rules in Step

Five.    This court’s holding in Loza v. Apfel, 219 F.3d 378, 391,

398-99 (5th Cir. 2000), supports Hearne’s contention.   In Loza,

this court linked the definition of a “severe” impairment at Step

Two to the determination of whether a claimant’s nonexertional

impairments significantly affected his residual functional

capacity such that reliance solely upon the Grid Rules at Step

Five would be inappropriate.

     As the ALJ’s sole reliance upon the Grid Rules for purposes

of satisfying the Commissioner’s burden at Step Five was

erroneous, the ALJ’s finding that Hearne was not entitled to

disability insurance benefits was not supported by substantial

evidence.   See Ferguson v. Schweiker, 641 F.2d 243, 247-48 (5th

Cir. 1981), overruled on other grounds, Johnson v. Heckler, 767

F.2d 180, 183 (5th Cir. 1985).   Accordingly, the district court’s

judgment is VACATED and the case is REMANDED to the district

court with instructions to return the case to the Commissioner

for further proceedings in accordance with this opinion.*


     *
      It is not clear if the ALJ determined that Hearne was able
to perform the full range of unskilled, sedentary work or if
Hearne was limited to unskilled, sedentary work that involved
only simple repetitive tasks. In further proceedings, the
Commissioner should include a determination as to whether
Hearne’s residual functional capacity permits her to perform the
full range of unskilled sedentary work.
