IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
F I L E D
No. 07-60187
Summary Calendar September 21, 2007
Charles R. Fulbruge III
Clerk
JUSTENE M. AUDLER
Plaintiff - Appellant
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY
Defendant - Appellee
Appeal from the United States District Court
for the Southern District of Mississippi
Before JOLLY, DENNIS, and PRADO, Circuit Judges..
E. GRADY JOLLY, Circuit Judge:
Justine Audler filed an application for disability insurance benefits on
account of back and neck problems, migraine headaches, and depression. After
a hearing, an Administrative Law Judge found that Audler was capable of
performing her past work, and could also perform other sedentary level jobs,
which exist in significant numbers in the national and local economy. The ALJ
therefore denied Audler’s claim, finding that Audler was not disabled within the
meaning of the Social Security Act. The Appeals Council denied Audler’s request
for review and the district court, on recommendation from the magistrate judge,
affirmed the Commissioner’s decision. Audler then filed this appeal arguing
that the decision denying her benefits was not supported by substantial evidence
No. 07-60187
and that the Administration failed to follow its own legal standards in
considering her claim.
In reviewing the Commissioner’s determination, we consider only whether
the Commissioner applied the proper legal standards and whether substantial
evidence in the record supports the decision to deny benefits. See Greenspan v.
Shalala, 38 F.3d 232, 236 (5th Cir. 1994). Substantial evidence is “more than
a mere scintilla. It means such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S.
389, 401 (1971) (internal quotation marks and citation omitted). We may not
reweigh the evidence or substitute our judgment for that of the Commissioner.
Hollins v. Bower, 837 F.2d 1378, 1383 (5th Cir. 1988).
I.
In evaluating a disability claim, the 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 substantial gainful
activity. If, at any step, the claimant is determined to be disabled or not
disabled, the inquiry is terminated. Lovelace v. Bowen, 813 F.2d 55, 58 (5th Cir.
1987). The claimant bears the burden of showing she is disabled through the
first four steps of the analysis; on the fifth, the Commissioner must show that
there is other substantial work in the national economy that the claimant can
perform.
At step three, the ALJ summarily concluded that “[t]he medical evidence
indicates that the claimant has status post lumbar laminectomy, cervical disc
herniation, headaches and chronic neck and back pain, impairments that are
severe within the meaning of the Regulations but not severe enough to meet or
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No. 07-60187
medically equal one of the impairments listed in Appendix 1, Subpart P,
Regulations No. 4.” The ALJ did not identify the listed impairment for which
Audler’s symptoms fail to qualify, nor did she provide any explanation as to how
she reached the conclusion that Audler’s symptoms are insufficiently severe to
meet any listed impairment. “Such a bare conclusion is beyond meaningful
judicial review.” Clifton v. Chater, 79 F.3d 1007, 1009 (10th Cir. 1996).1
Under the Social Security Act,
[t]he Commissioner of Social Security is directed to
make any findings of fact, and decisions as to the rights
of any individual applying for a payment under this
subchapter. Any such decision by the Commissioner of
Social Security, which involves a determination of
disability and which is in whole or in part unfavorable
to such individual shall contain a statement of the case,
in understandable language, setting forth a discussion
of the evidence, and stating the Commissioner’s
determination and the reason or reasons upon which it
is based.
42 U.S.C. § 405(b)(1). By the explicit terms of the statute, the ALJ was required
to discuss the evidence offered in support of Audler’s claim for disability and to
explain why she found Audler not to be disabled at that step. Although the ALJ
is not always required to do an exhaustive point-by-point discussion, in this case,
the ALJ offered nothing to support her conclusion 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.” Cook v. Heckler, 783 F.2d 1168, 1172 (4th
Cir. 1986).
Having determined that the ALJ erred in failing to state any reason for
her adverse determination at step 3, we must still determine whether this error
was harmless. Morris v. Bowen, 864 F.2d 333, 334 (5th Cir. 1998). “Procedural
1
Indeed the magistrate judge and the district court both affirmed the Commissioner
based on the finding that substantial evidence supported the ALJ’s determination at steps 4
and 5, without first addressing her finding at step 3.
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No. 07-60187
perfection in administrative proceedings is not required” as long as “the
substantial rights of a party have not been affected.” Mays v. Bowen, 837 F.2d
1362, 1364 (5th Cir. 1988)). Audler contends, inter alia, that her disability
meets the Listing level criteria as set forth in 20 C.F.R. Part 404, Subpart P,
Appendix 1, § 1.04 with respect to spinal disorders, which, as applicable to this
case, requires a “herniated nucleus pulposus ...[w]ith [e]vidence of nerve root
compression characterized by neuro-anatomic distribution of pain, limitation of
motion of the spine, motor loss (atrophy with associated muscle weakness)
accompanied by sensory or reflex loss and, if there is involvement of the lower
back, positive straight-leg raising test.” To demonstrate the required loss of
function for a musculoskeletal impairment, Audler must demonstrate either an
“inability to ambulate effectively on a sustained basis ..., or the inability to
perform fine and gross movements effectively on a sustained basis.” 20 C.F.R.
Part 404, Subpt. P, App. 1, § 1.00(B)(2).
The record indicates that Audler submitted a diagnostic checklist from her
treating physician, Dr. Purser, an orthopedic surgeon, indicating that Audler
had most of the symptoms of nerve root compression (including motor loss,
limitation of motion of the spine, and sensory loss) and that she had a positive
straight-leg raising test. Dr. Purser concluded that Audler cannot stand or walk
for more than 10 or 15 minutes per day without experiencing lower back pain,
that she must be able to recline at will during the day for relief of pain, and that
she experiences severe migraine headaches once or twice a week that require her
to recline in a quiet darkened room.2 No medical evidence was introduced to
contradict these findings.3 Absent some explanation from the ALJ to the
2
Audler submitted a second diagnostic checklist from Dr. Trieu, which supported Dr.
Purser’s findings.
3
The Administration suggests that the ALJ discredited Dr. Purser’s opinion because
he was not her “treating physician” and because his office notes do not record any clinical
findings with respect to her complaints of migraines or neck pain. The ALJ’s decision,
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No. 07-60187
contrary, Audler would appear to have met her burden of demonstrating that
she meets the Listing requirements for § 1.04A, and therefore her substantial
rights were affected by the ALJ’s failure to set out the bases for her decision at
step three.
Because we vacate and remand for additional proceedings at step three,
we need not reach Audler’s additional arguments.
II.
The judgment of the district court is VACATED, and the case is
REMANDED to the district court with directions to remand to the Commissioner
for further proceedings consistent with this opinion.
VACATED and REMANDED.
however, specifically notes that Dr. Purser “treated [] the claimant between March 2001 and
January 2002 ....”and provides no rationale for discounting his opinion.
5