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.
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Appeal from the United States District Court for the
Western District of Louisiana
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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.
*
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opinion should not be published and is not precedent except under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.
I.
This case arises out of Ashworth’s second set of applications
for disability insurance benefits and supplemental security income.
In connection with 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.
On remand, Dr. Morin was unavailable for cross-examination,
and his report was expunged. The ALJ received the report of
another psychiatrist, Dr. Sam Benbow, and also entertained
testimony from a vocational expert, Dr. John W. Grimes. The ALJ
again found that Dexter Ashworth was not disabled. Specifically,
the ALJ found that Ashworth was not able to perform his 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 additional nonexertional limitations.” The Appeals Council
denied review. 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 the
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 be
1
Ashworth also argues that if his full range of sedentary work was
significantly compromised, the ALJ would have 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 to be clarified on
remand.
3
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 exists in the
record, considered as a whole, to support the Commissioner’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 gainful
4
activity. 20 C.F.R. § 404.1540; see 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. Muse,
925 F.2d at 789.2
The Commissioner can rely exclusively on the Medical-
Vocational 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 record.’” Scott, 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. Fraga 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 determination 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 other similar
testimony. See Vaughan v. Shalala, 58 F.3d 129, 132 (5th Cir.
2
If the Commissioner makes this showing, the burden then shifts
back to the claimant to show that he cannot perform the work
suggested. Id. In reviewing Ashworth’s case, the ALJ reached Step
Five before determining that Ashworth was not disabled.
5
1995). In Vaughan, the ALJ used the Guidelines, but also expressly
relied upon the vocational expert’s testimony in his findings. We
accordingly 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 Scott 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.” Scott, 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 findings.3
Although the prefatory language makes this a close case, we will
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
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 also contends that his due process rights were
violated because he received a defective hearing notice. The
notice stated that he was 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 respect to the preparation of
this claim . . . .” On that point, the district court is mistaken.
To receive disability insurance benefits (as distinguished 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. See 42 U.S.C. § 423(a)(1)(A) (West Supp.
1996).4
4
The Commissioner contends that this court lacks jurisdiction to
consider Ashworth’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 excused from the exhaustion
requirement under certain circumstances if the question presented
is a collateral constitutional one. See 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
Assuming without deciding that the notice was constitutionally
deficient, we nonetheless conclude that Ashworth was not deprived
of 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 date he was last insured for disability benefits.5
Because Ashworth has not shown that he was prejudiced by the
defective notice, we affirm this portion of the district court’s
ruling.
IV.
Accordingly, we AFFIRM the district court’s ruling on
Ashworth’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.
5
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