IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 10-30345

Summary Calendar

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

United States Court of Appeals

Fifth Circuit

F I L E D

November 5, 2010

Lyle W. Cayce

Clerk

 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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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. While the claimant bears the burden of establishing her

1

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, other substantial work

3

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.

Audler v. Astrue, 501 F.3d 446, 447-48 (5th Cir. 2007). 1

Id. at 448.

2

 20 C.F.R. pt. 404, subpt. P, app. 2. 3

2

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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. Substantial evidence “is such relevant evidence as a

4

reasonable mind might accept as adequate to support a conclusion.” We may

5

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, it is a close call whether his failure to discuss the nonexertional

7

limitation was error. Assuming, arguendo, that the ALJ erred here, the error

was harmless, as discussed more fully below.

Greenspan v. Shalala, 38 F.3d 232, 236 (5th Cir. 1994) (citing 42 U.S.C. §§ 405(g),

4

1383(c)(3)) (other citations omitted).

Id. (citations omitted).

5

Id. 6

Audler, 501 F.3d at 448.

7

3

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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.” Here, the ALJ looked to the

9

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.” We are convinced that the ALJ’s error here

11

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

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

8

Id. 9

See Audler, 501 F.3d at 448 (“[T]he ALJ offered nothing to support her conclusion 10

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)).

Id. (citation omitted).

11

4

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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.” The ruling also

12

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

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

12

Id. 13

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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), one source from which the Commissioner may take

14

administrative notice of work existing in the national economy. Aside from

15

“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.” In this context, we believe that the checklist’s language is

16

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

UNITED STATES DEP’T OF LABOR, SELECTED CHARACTERISTICS OF OCCUPATIONS

14

DEFINED IN THE 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.”)

 20 C.F.R. § 404.1566(d)(1).

15

 SCO, supra note 14, at app. D.

16

See Enriquez-Gutierrez v. Holder, 612 F.3d 400, 407 (5th Cir. 2010) (“[W]e may 17

usually only affirm the BIA on the basis of its stated rationale for ordering an alien removed

from the United States.”).

6

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However, there are exceptions to that rule, including harmless error. Here,

18

there is “no realistic possibility that, absent the error[],” the ALJ would have

reached a different conclusion.

19

* * *

The judgment is AFFIRMED.

See id. 18

Id. 19

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