Local Rule 47.5 provides: “The publication of opinions that have

no precedential value and merely decide particular cases on the

basis of well-settled principles of law imposes needless expense on

the public and burdens on the legal profession.” Pursuant to that

Rule, the Court has determined that this opinion should not be

published.

 20 C.F.R. § 404.1520; Muse v. Sullivan, 925 F.2d 785, 789 (5th

Cir. 1991).

UNITED STATES COURT OF APPEALS

For the Fifth Circuit

No. 95-10424

Summary Calendar

CAROL A. STEPHENS,

Plaintiff-Appellant,

VERSUS

SHIRLEY S. CATER,

COMMISSIONER OF SOCIAL SECURITY,

Defendant-Appellee.

Appeal from the United States District Court

For the Northern District of Texas

(2:93-CV-203)

(October 16, 1995)

Before HIGGINBOTHAM, DUHÉ, and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:1

Carol A. Stephens’ application for social security disability

and SSI benefits was denied by the administrative law judge (ALJ)

at step four of the well known sequential process.2 The district

court found that: Stephens retained the residual functional
2

capacity to perform her past relevant work; the ALJ’s evaluation of

Stephens’ activities (that she leads a very active lifestyle) was

not supported by substantial evidence; the ALJ failed to articulate

reasons for his unfavorable credibility determination of Stephens’

subjective complaints of pain and limitations; and that the ALJ

improperly found Stephens capable of performing her past relevant

work based on vocational-expert testimony indicating that she was

not capable of performing such work. The district court reversed

the step-four determination that Stephens was not disabled, and

remanded this case pursuant to sentence four of 42 U.S.C. § 405(g)

for further analysis at step five of the sequential process. 

Stephens argues to this Court that this case should have been

remanded for an award of benefits rather than for further

proceedings. Relying on Goodley v. Harris, 608 F.2d 234 (5th Cir.

1979), she contends that the district court held that the

Commissioner did not adduce substantial evidence to carry her

burden of proof that Appellant had the residual functional capacity

for substantial gainful activity, and that the appropriate

disposition is rendition of judgment in Appellant’s favor rather

than giving the Commissioner a second chance to prove her case.

It is within the district court’s discretion to remand to the

Commissioner for a further hearing or to direct the Commissioner to

award benefits. See Emory v. Sullivan, 936 F.2d 1092, 1095 (10th

Cir. 1991) (cited with approval in Randall v. Sullivan, 956 F.2d

105, 109 (5th Cir. 1992)).

The Commissioner is correct that Stephens has misconstrued the
3

district court’s opinion. The district court essentially held that

Stephens had sustained her burden of proof at step four and that

the case should be remanded for further analysis at step five for

the Commissioner to show that Appellant could perform some other

work.

When a denial of benefits at step four is reversed, remand for

evaluation at step five is generally appropriate, unless there is

no substantial evidence in the record that the claimant can perform

other work, in which case a remand for evaluation at the fifth step

would be useless. In Rodriguez v. Schweiker, 640 F.2d 682, 686

(5th Cir. 1981), this Court held that there was no substantial

evidence to support the Secretary’s determination that the claimant

could return to his previous work. Thus, the burden of proof

shifted to the Secretary to show that the claimant was capable of

performing substantial gainful employment. Because there was no

evidence in the record regarding this factor, this Court remanded

the case for further fact-findings in order to determine if the

Secretary could meet this burden. This Court did not hold that the

claimant was entitled to benefits at this stage. See also Lauer v.

Bowen, 818 F.2d 636, 64l (7th Cir. 1987) (step-four determination

reversed and case remanded for step-five inquiry).

Stephens’ reliance on Goodley v. Harris is misplaced. In

Goodley, although we did not discuss the five-step process, and it

is not clear at exactly which step benefits were denied, this Court

stated that there was an absence of evidence that the claimant

could engage in some kind of gainful employment, and so remanded
4

for an award of benefits. 608 F.2d at 237. Likewise, in Ferguson

v. Heckler, 750 F.2d 503, 505 (5th Cir. 1985), the record did not

contain substantial evidence to support the ALJ’s finding that the

claimant’s alcoholism was not a significant impairment to gainful

activity and so this Court remanded with instructions to enter

judgment for the claimant.

In this case, although there was some testimony by the

vocational expert regarding other work that claimant may or may not

be able to do based on varying hypotheticals, the record is not

clear that there is no substantial gainful employment that

Appellant could perform based on her condition, therefore an award

of benefits is not warranted at this stage of the proceedings.

AFFIRMED.