* Pursuant to Local Rule 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opinion should not be published and is not precedent except under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 Local Rule 47.5.4. UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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No. 96-30207

Summary Calendar

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DEXTER L. ASHWORTH,

Plaintiff-Appellant,

versus

SHIRLEY L. CHATER,

COMMISSIONER OF SOCIAL SECURITY,

Defendant-Appellee.

______________________________________________

Appeal from the United States District Court for the

Western District of Louisiana

______________________________________________

September 19, 1996

Before HIGGINBOTHAM, WIENER, and BENAVIDES, Circuit Judges.

PER CURIAM: *

Dexter L. Ashworth appeals the district court’s dismissal of

his complaint regarding the denial of his claim for Social Security

disability insurance benefits and supplemental security income.

For the reasons stated, we will affirm in part and vacate and

remand in part.I.

This case arises out of Ashworth’s second set of applications

for disability insurance benefits and supplemental security income.

In connection w ith his second set of applications, the

Administrative Law Judge (ALJ) denied Ashworth benefits initially

on November 13, 1989. The Appeals Council denied review. On

appeal, the district court remanded to allow Ashworth the

opportunity to cross-examine Dr. G.R. Morin, a psychiatric expert

witness.

O n remand, Dr. Morin was unavailable for cross-examination

,

and his repor t was expunged. The ALJ received the report of

another psychiatrist, Dr. Sam Benbow, and also entertained

testimony from a vocational expert, Dr. J ohn W. Grimes. The ALJ

again found that Dexter Ashworth was not disabled. Specifically,

t he ALJ found that Ashworth was not able to perform h is past

relevant work as a truck driver, that his residual functional

capacity for the full range of sedentary work was “reduced” by his

nonexertional limitations, and that his “capacity for the full

range of sedentary work has not been significantly compromised by

his additiona l nonexertional limitations.” The Appeals Council

denied rev iew. Ashworth once again sought judicial review in

district court and moved for summary judgment. This time the

district court dismissed Ashworth’s complaint with prejudice. This

appeal under 42 U.S.C. § 405(g) followed.

Ashworth contends that the ALJ failed to base his findings on

the testimony of a vocational expert as required under Scott v.

Shalala

, 30 F.3d 33, 34 (5th Cir. 1994). Ashworth and the1 Ashworth also argues that if his full range of sedentary work was

significantly compromised, the ALJ would ha ve been required by

Social Security Ruling 83-12 to consider Rule 200.01(h) of Appendix

2, Subpart P, part 404, which directs that a finding of disabled is

not precluded for younger individuals. Ashworth raises this

argument as a separate point of error. We need not address the

issue at this time because the very finding upon which Ashworth’s

argument turns, ALJ’s Finding No. 12, is yet t o be clarified on

remand.

3 Commissioner agree that vocational expert testimony was required,

but for different reasons. ALJ’s Finding No. 12 (that Ashworth’s

“capacity for the full range of sedentary work has not been

significantly compromised by his additional nonexertional

limitations”) is the source of some confusion. Ashworth contends

that this finding is not supported by substantial evidence and

that, absent such a finding, the ALJ was required to base its

decision on the testimony of a vocational expert rather than on the

Medical-Vocational Guidelines. 1 The Commissioner responds that

Finding No. 12 contains a typographical error and that the ALJ in

fact found that Ashworth’s capacity for the full range of sedentary

work was significantly compromised by his nonexertional

limitations. As a result, the Commissioner and Ashworth agree that

the ALJ could not base his decision on the Medical-Vocational

Guidelines alone, but was required to look to vocational expert

testimony. Ashworth and the Commissioner, however, disagree about

whether the ALJ in fact based his findings on the vocational

expert’s testimony. The resolution of this disagreement forms the

first question in this appeal.

Ashworth also argues that his due process rights were violated

because the hearing notice he received instructed him to be4

prepared to prove that he was disabled as of the hearing date and

failed to apprise him that to be eligible for disability insurance

benefits he had to prove that he was disabled as of the “date last

insured.” We address the two questions in turn.

II.

The Vocational Expert and the ALJ’s Findings

In reviewing a disability determination, we limit our inquiry

to two issues: (1) whether substantial evidence exis ts in the

record, considered as a whole, to support the Commiss ioner’s

findings, and (2) whether any errors of law were committed.

Anthony v. Sullivan

, 954 F.2d 289, 292 ( 5th Cir. 1992). If

substantial evidence supports the Commissioner’s findings, those

findings are conclusive and must be affirmed. 42 U.S.C. § 405(g);

Richardson v. Perales

, 402 U.S. 389, 390, 91 S. Ct. 1420, 1422, 28

L.Ed.2d 842 (1971).

In evaluating a disability claim, the Commissioner must follow

a five-step sequential process, the first four steps of which place

the burden on the claimant. Leggett v. Chater , 67 F.3d 558, 564

(5th Cir. 1995) ; Muse v. Sullivan

, 925 F.2d 785, 789 (5th Cir.

1991). The Commissioner must consider (1) whether the claimant is

engaging in substantial gainful activity, (2) whether the claimant

has a severe impairment, (3) whether the impairment is listed, or

equivalent to, an impairment listed in Appendix 1 of the

regulation, (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 gainful2 If the Commissioner makes this showing, the burden then shifts

back to the claimant to show that he cannot perform the work

suggested. I d. I n reviewing Ashworth’s case, the ALJ reached Step

Five before determining that Ashworth was not disabled.

5 activity. 20 C.F.R. § 404.1540; s ee also Anthony

, 954 F.2d at 293.

At the fifth step, the burden shifts to the Commissioner to show

that the claimant can perform substantial gainful activity. M use

,

925 F.2d at 789. 2

The Commissioner can rely exclusively on the MedicalVocational Guidelines to meet her Step-Five burden to establish

that the claimant can perform substantial gainful activity only if

the guidelines’ “‘evidentiary underpinnings coincide exactly with

the evidence of disability appearing on the rec ord.’” S cott

, 30

F.3d at 34 (quoting Lawler v. Heckler

, 761 F.2d 195, 197 (5th Cir.

1985) (internal quotations omitted)). But if the claimant has both

exertional and nonexertional impairments and the nonexertional

limitations significantly affect his residual functional capacity,

then the ALJ must base his or her findings on a vocational expert’s

testimony or other similar evidence. F raga v. Bowen

, 810 F.2d

1296, 1304 (5th Cir. 1987); see Wingo v. Bowen , 852 F.2d 827, 830

(5th Cir. 1988); Ferguson v. Schweiker

, 641 F.2d 243, 248 (5th Cir.

1981).

Although the guidelines may serve as a framework for a

disability de termination in conjunction with the testimony of a

vocational expert, the ALJ must make clear that his or her findings

are based on a vocational expert’s testimony or o ther similar

testimony. S ee Vaughan v. Shalala

, 58 F.3d 129, 132 (5th Cir.3 Ashworth suggests that the ALJ did not base his findings on

the vocational expert’s testimony because that testimony was

defective. We do not pass on whether the vocational expert’s

testimony would constitute substantial evidence in support of a

finding that Ashworth was not disabled nor do we reach whether

there was substantial evidence to support a finding that

Ashworth’s residual capacity was not significantly compromised by

his nonexertional limitations. In this regard, however, we are

troubled by the ALJ’s apparent failure to address Dr. Benbow’s

conclusion that Ashworth’s depression did not render him

incapable of employment by itself, but that, in combination with

a real physical disability, it would “contribute to that status.”

6 1995). In V aughan

, the ALJ used the Guidelines, but also expressly

relied upon the vocational expert’s testimony in his findings. We

a ccordingly upheld a finding that the claimant was not disabled.

Id.

The bare fact that the ALJ avails himself of a vocational

expert’s testimony is not sufficient. In S cott v. Shalala

, the ALJ

entertained testimony from a vocational expert, but made only

“vague and confusing reference to [ the vocational expert’s]

testimony in his findings.” S cott

, 30 F.3d at 35. Because we were

unable conclude that the ALJ properly considered the vocational

expert’s testimony, we remanded for thorough consideration of that

testimony. Id.

Similarly, the ALJ’s findings here do not demonstrate that he

relied upon the testimony of the vocational expert in finding that

Ashworth was not disabled. The ALJ discussed the vocational

expert’s testimony in the language prefatory to his findings, but

he made no express findings based on that testimony, nor did he

refer to the vocational expert’s testimony in his fin dings. 3

Although the prefatory language makes this a close case, we will4 The Commissioner contends that this court lacks jurisdiction to

consider Ashwor th’s claim because he failed to exhaust his

administrative remedies. Although a claimant is typically required

to exhaust his administrative remedies before seeking review in

federal district court, see Paul v. Shalala

, 29 F.3d 208, 210 (5th

Cir. 1994), a claimant may be exc used from the exhaustion

requirement under certain circumstances if the question presented

is a collateral constitutional one. S ee Bowen v. City of New York

, 476 U.S. 467, 483, 106 S. Ct. 2022, 2031, 90 L.Ed.2d 462 (1986);

Mathews v. Eldridge

, 424 U.S. 319, 329 n.10, 96 S. Ct. 893, 900

n.10, 47 L.Ed.2d 18 (1976). In the interest of judicial economy,

we will consider Ashworth’s due process claim.

7 remand for clarification of the ALJ’s decision and basis for his

findings. On remand, the ALJ should also clarify the Commissioner’s

contention that Finding No. 12 contains a typographical error.

III.

Due Process and Hearing Notice

Ashworth als o contends that his due process rights were

violated because he received a defective hearin g notice. The

notice stated that he w as required to prove his disability as of

the hearing date, but failed to inform him that he was required to

prove disability as of the date last insured. The notice also

failed to inform him of the date last insured. The district court

concluded that there was no due process violation because the date

last insured was “irrelevant with respec t to the preparation of

this claim

. . . .” On that point, the district court is mistaken.

To receive disability insurance benefits (as distin guished from

supplemental security income), Ashworth was also required to prove

that he was disabled as of the date he was last insured for

disability benefits. S ee 42 U.S.C. § 423(a)(1)(A) (West Supp.

1996). 45 Ashworth argues that had he known of the requirement that he

prove a disability as of the date last insured, he would have

resisted the expungement of Dr. Morin’s report and cross-examined

Dr. Benbow. We are unpersuaded. There is no indication that Dr.

Morin’s report would have supported such a conclusion; in fact,

that report was in the record when the ALJ initially found that

Ashworth was not disabled on November 13, 1989. We likewise fail

to see how a cross-examination of Dr. Benbow, whose report related

to Ashworth’s present disability, would have established

information relevant to the earlier date-last-insured.

8 Assuming without deciding that the notice was constitutionally

deficient, we nonetheless conclude that Ashworth was not deprived

o f due process as a result. The ALJ found that Ashworth was not

disabled at any time through the date of decision, April 23, 1993.

Ashworth does not allege that he would have been able to adduce any

evidence to support a finding that he was disabled as of September

30, 1991, the dat e he was last insured for disability benefits. 5

Because Ashworth has not shown that he was prejudiced by the

defective notice, we affi rm this portion of the district court’s

ruling.

IV.

Accordingly, we AFFIRM the district court’s ruling on

Ashwor th’s due process claim, VACATE the district court’s order

dismissing Ashworth’s complaint, and REMAND to the district court

with instructions to remand this case to allow the ALJ an

opportunity to clarify his findings.