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Ida G. v. Berryhill

United States District Court, N.D. Texas, Dallas Division

March 10, 2019

IDA G., Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of the Social Security Administration, Defendant.

          FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE

          REBECCA RUTHERFORD UNITED STATES MAGISTRATE JUDGE.

         Plaintiff Ida G.[1] filed a civil action seeking judicial review pursuant to 42 U.S.C. § 405(g) of a final adverse decision by the Commissioner of Social Security. The District Court referred the case to the United States magistrate judge for pretrial management under 28 U.S.C. § 636(b) and a standing order of reference. For the reasons explained below, the District Court should AFFIRM the Commissioner's decision.

         Background

         Plaintiff alleges that she is disabled due to a number of impairments, including anxiety, dyspnea on exertion, hypertensive disorder, lightheadedness, low back pain, morbid obesity, shoulder pain, seasonal allergies, claustrophobia, numbness in fingertips, constant headache, sciatica shooting pain, chest pain, obstructive sleep apnea, abdominal pain, neuropathy, and rectal bleeding that may have been corrected by colonoscopy. Pl.'s Br. 2 (ECF No. 18); Administrative Record 188-89, 620 (“A.R.”) (ECF No. 15-1). After her applications for disability insurance benefits and supplemental security income were denied initially and on reconsideration, Plaintiff requested a hearing before an administrative law judge (“ALJ”). That hearing took place in Dallas, Texas, on August 15, 2016. A.R. 18. At the time of the hearing, Plaintiff was 45 years old. See Id. 26. She has a high school education, can communicate in English, and has past work experience as a housekeeper and caring for children. Id. 27, 184-85. She also previously worked as a 9-1-1 operator. Id. 186.

         The ALJ found that Plaintiff was not disabled and, therefore, not entitled to disability insurance benefits or supplemental security income. Id. 28. At step one of the five-step sequential evaluation, [2] the ALJ found Plaintiff has not engaged in substantial gainful activity since February 10, 2014. Id. 20. At steps two and three, the ALJ found that Plaintiff had the severe impairments of lumbar degenerative disease, obesity, depression, and anxiety, but that her impairments, or combination of impairments, did not meet or equal the severity of any listed impairment in the social security regulations. Id. 20-21. At step four, the ALJ found Plaintiff had the residual functional capacity (“RFC”) to perform a limited range of sedentary work and determined that she could not perform her past work. Id. 22, 26-27. At step five, relying on the testimony of a vocational expert, the ALJ found that Plaintiff was capable of working as an order clerk, a document preparer, and a charge account clerk-jobs that exist in significant numbers in the national economy. Id. 27.

         Plaintiff appealed the ALJ's decision to the Appeals Council. The Council affirmed. Id. 5. Plaintiff then filed this action in federal district court, in which she argues the ALJ erred in finding her not disabled because: (1) she did not apply the appropriate standard in determining whether Plaintiff's impairments were “severe” at step two of the analysis; (2) the RFC is not based on substantial evidence; and (3) she did not analyze the consultative medical examiner's opinion using the factors under 20 C.F.R. § 404.1527(c) when “rejecting” it.

         Legal Standards

         The Court's “review of Social Security disability cases ‘is limited to two inquiries: (1) whether the decision is supported by substantial evidence on the record as a whole, and (2) whether the Commissioner applied the proper legal standard.'” Copeland, 771 F.3d at 923 (quoting Perez v. Barnhart, 415 F.3d 457, 461 (5th Cir. 2005)); see also Ripley v. Chater, 67 F.3d 552, 555 (5th Cir. 1995). Plaintiff's appeal raises both issues. 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); see also Copeland, 771 F.3d at 923 (“Substantial evidence is ‘more than a mere scintilla and less than a preponderance.'”) (quoting Perez, 415 F.3d at 461). The Commissioner, and not the courts, resolves conflicts in the evidence; thereafter, the Court may not “reweigh the evidence or try the issues de novo.” Martinez v. Chater, 64 F.3d 172, 174 (5th Cir. 1995) (per curiam) (citing Cook v. Heckler, 750 F.2d 391, 392-93 (5th Cir. 1985); Patton v. Schweiker, 697 F.2d 590, 592 (5th Cir. 1983) (per curiam)). Accordingly, the Court may not substitute its own judgment for the Commissioner's, and it may affirm only on the grounds that the Commissioner stated to support her decision. Copeland, 771 F.3d at 923 (citing Cole v. Barnhart, 288 F.3d 149, 151 (5th Cir. 2002) (per curiam)).

         Analysis

         The Court will address Plaintiff's arguments in the order she presents them. After reviewing the hearing decision and the administrative record, the Court finds that though the ALJ erred by not using the correct standard at step two, the error was harmless; the ALJ's RFC finding is supported by substantial evidence; and the ALJ did not err by failing to detail her analysis of the factors under 20 C.F.R. § 404.1527(c) when weighing the consultative medical examiner's opinion.

         I.

         Plaintiff first argues that the ALJ failed to apply the appropriate legal standard in deciding whether Plaintiff's impairments were “severe” at step two of the analysis. Specifically, Plaintiff contends that the ALJ did not cite or otherwise set forth the Stone v. Heckler, 752 F.2d 1099, 1101 (5th Cir. 1985), definition of “severe.” The Court agrees.

         Step two of the Secretary's sequential analysis “requires that the factfinder decide whether the claimant's impairment is ‘severe,' irrespective of age, education and work experience.” Anthony v. Sullivan, 954 F.2d 289, 293 (5th Cir. 1992). In the Fifth Circuit, an “‘impairment can be considered as not severe only if it is a slight abnormality [having] such minimal effect on the individual that it would not be expected to interfere with the individual's ability to work, irrespective of age, education or work experience.'” Stone, 752 F.2d at 1101 (brackets in original) (quoting Estran v. Heckler, 745 F.2d 340, 341 (5th Cir. 1984) (per curiam); citing Martin v. Heckler, 748 F.2d 1027, 1032 (5th Cir. 1984); Davis v. Heckler, 748 F.2d 293, 296 (5th Cir. 1984) (per curiam)). A reviewing court should “assume that the ALJ . . . applied an incorrect standard to the severity requirement unless the correct standard is set forth by reference to . . . [Stone] or another [opinion] of the same effect, or by an express statement that the construction [the Fifth Circuit] give[s] ¶ 20 C.F.R. § 404.1520(c) is used.” Id. at 1106. Nevertheless, “[a] case will not be remanded simply because the ALJ did not use ‘magic words.'” Hampton v. Bowen, 785 F.2d 1308, 1311 (5th Cir. 1986). Remand is only required “where there is no indication the ALJ applied the correct standard.” Id. The Commissioner may overcome the presumption that the ALJ applied an incorrect severity standard by showing that, though not explicitly stated, the ALJ applied the correct legal standard or by demonstrating that the ALJ's application of an improper standard was harmless. See Taylor v. Astrue, 706 F.3d 600, 603 (5th Cir. 2012) (per curiam) (“Although the ALJ did not identify the specific applicable legal standard, we agree with the magistrate judge that the ALJ nevertheless applied the proper standard. While it is true that the ALJ never cited to Stone . . . , which provides the appropriate legal standard for determining the severity of the disability, procedural perfection is not required unless it affects the substantial rights of a party.”) (citing Mays v. Bowen, 837 F.2d 1362, 1364 (5th Cir. 1988) (per curiam)); see also Taylor v. Astrue, 2011 WL 4091506, at *6 (N.D. Tex. June 27, 2011), adopted by 2011 WL 4091503 (N.D. Tex. Sept. 14, 2011) (citing Cook v. Astrue, 2010 WL 4628732 at *3 (N.D. Tex. Nov. 15, 2010); Vaughn v. Astrue, 2009 WL 3874607 at *5 (N.D. Tex. Nov. 17, 2009)).

         The ALJ did not cite Stone in her decision. Rather, the hearing decision's applicable law section states, “[a]n impairment is ‘severe' within the meaning of the regulations if it significantly limits an individual's ability to perform basic work activities”; the decision further states that an impairment is “‘not severe' when medical and other evidence establish only a slight abnormality or a combination of slight abnormalities that would have no more than a minimal effect on an individual's ability to work.” A.R. 19. The severity standard the ALJ recites comes from 20 C.F.R. §§ 404.1520(c) and 416.920(c)[3], which the Stone court rejected as inconsistent with the Social Security Act. Stone, 752 F.2d at 1104-05; see also Anthony, 954 F.2d at 293 (citing Stone, 752 F.2d at 1104) (“[T]his Court evaluated the Secretary's severity regulation, and determined that it was inconsistent with the statutory language and the legislative history of the Act.”); Craaybeek v. Astrue, 2011 WL 539132, at *6 (N.D. Tex. Feb. 7, 2011) (citing Charlton v. Astrue, 2010 WL 3385002 at *6 (N.D. Tex. July 14, 2010), adopted by 2010 WL 3385000 (N.D. Tex. Aug. 26, 2010); Ruby v. Astrue, 2009 WL 4858060 at *8 (N.D. Tex. Dec. 14, 2009) (“The ‘minimal effect' standard is also wholly inconsistent with Stone.”)). The Stone standard requires a finding of “severe” if the impairment interferes with an individual's ...


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