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Jacquelyn S. v. Commissioner of Social Security Administration

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

August 27, 2019

JACQUELYN S., [1] Plaintiff,
v.
COMMISSIONER OF THE SOCIAL SECURITY ADMINISTRATION, Defendant.

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

          REBECCA RUTHERFORD UNITED STATES MAGISTRATE JUDGE

         Plaintiff Jacquelyn S. filed this civil action seeking judicial review pursuant to 42 U.S.C. § 405(g) of a final adverse decision by the Commissioner of the Social Security Administration (the “Agency”). 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 was born on October 1, 1955. Administrative Record 411 (A.R.) (ECF No. 11). She has a college education and past work experience as a data processing auditor and as an orderly. A.R. 52. In 2010, Plaintiff filed an application for a period of disability and disability insurance benefits, alleging a disability onset date of October 3, 2008. A.R. 409-17. The Agency determined that the severity of Plaintiff's breast cancer equaled the requirements of Listing 13.10B in the Listing of Impairments, 20 C.F.R. Part 404, Subpart P, Appendix 1. A.R. 216 319-20, 325. Thus, the Agency determined she was disabled and entitled to benefits. Five years later, however, the Agency notified Plaintiff of its determination that she had experienced medical improvement and was no longer disabled as of April 1, 2015. A.R. 321-24, 328-30. Plaintiff requested an administrative hearing before an ALJ, which was held on February 1, 2017. A.R. 32-58. The ALJ issued a decision on March 2, 2017, finding that Plaintiff had experienced medical improvement and her disability ended on April 1, 2015. A.R. 14-24.[2]

         Plaintiff appealed the ALJ's decision to the Appeals Council. A.R. 407-408. The Council affirmed. A.R. 1-7. Plaintiff then filed this action in federal district court, in which she argues the ALJ erred by: (1) failing to use the correct legal standard in deciding whether Plaintiff's impairments were “severe”; (2) failing to properly weigh medical source opinions in determining Plaintiff's residual functional capacity (RFC); and (3) finding that she can return to her past relevant work. As a result, Plaintiff contends the ALJ's determination that she is no longer disabled after April 1, 2015 is not supported by substantial evidence.

         Legal Standards

          Judicial “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) (citation omitted). 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 his decision. Copeland, 771 F.3d at 923 (citing Cole v. Barnhart, 288 F.3d 149, 151 (5th Cir. 2002) (per curiam)).

         Analysis

         I.

         In determining whether a claimant continues to be disabled, the factfinder must decide whether her current impairments are “severe.” 20 C.F.R. § 404.1594(f)(6). Here, the ALJ determined that Plaintiff has the following severe impairments: moderate degenerative facet joint hypertrophy at ¶ 4-L5; minimal degenerative spondylosis L3-L4; mild degenerative facet joint hypertrophy at ¶ 3-L4, diabetes; emphysema/COPD; osteoporosis; left shoulder impingement; and morbid obesity. A.R. 16. The hearing decision explains the ALJ found these impairments to be severe because they “have more than a minimal limitation on the claimant's ability to perform basic work functions.” A.R. 16. The ALJ further determined that Plaintiff's anxiety and depression are nonsevere because they “do not more than minimally limit her” and “do not cause more than minimal limitation in [her] ability to perform basic . . . work activities.” A.R. 16-17. Plaintiff argues that the ALJ failed to apply the correct legal standard in deciding whether Plaintiff's impairments were severe.

         In the Fifth Circuit, an impairment is 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.” Stone v. Heckler, 752 F.2d 1099, 1101, 1104-05 (5th Cir. 1985). Courts in this district consistently hold this standard, known as the Stone standard, provides no allowance for even a minimal interference with a claimant's ability to work. Scroggins v. Astrue, 598 F.Supp.2d 800, 805 (N.D. Tex. 2009); see also Bownds v. Astrue, 2011 WL 4091507, at *4 (N.D. Tex. July 19, 2011) (holding that an ALJ fails to apply the Stone standard by requiring “more than a minimal” effect on an individual's ability to work.); Craaybeek v. Astrue, 2011 WL 539132, at *6 (N.D. Tex. Feb. 7, 2011) (determining the “minimal effect” standard is “wholly inconsistent with Stone”); Sanders v. Astrue, 2008 WL 4211146 (N.D. Tex. Sept. 12, 2008) (remanding the case after finding that the ALJ's standard, which allowed for a finding of non-severity if the abnormality has only a minimal effect on the individual's ability to work, inconsistent with the Stone standard); but see Flowers v. Berryhill, 2017 WL 2257596, at *4 (N.D. Tex. Apr. 18, 2017) (finding “minimal effect” standard was not an improper statement of the law), adopted by 2017 WL 2225411 (N.D. Tex. May 22, 2017). Rather, the Stone standard requires a finding of “severe” if the impairment interferes with an individual's ability to work at all. Stephanie Z. v. Berryhill, 2018 WL 4467470, at *3 (N.D. Tex. Sept. 18, 2018) (citing Scroggins, 598 F.Supp.2d at 805-06; Morris v. Astrue, 2012 WL 4468185, at *5 (N.D. Tex. Sept. 4, 2012)).

         The Fifth Circuit held in Stone that it would assume the ALJ applied an incorrect standard to the severity requirement unless the correct standard is set forth by reference to Stone or by an express statement that the construction the Fifth Circuit gives to the severity requirement is used. Stone, 752 F.2d 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) (citing Mays v. Bowen, 837 F.2d 1362, 1364 (5th Cir. 1988)) (“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.”); see also Taylor v. Astrue, 2011 WL 4091506, at *6 (N.D. Tex. June 27, 2011) (citing Cook v. Astrue, 2010 WL 4628732 at *3 (N.D. Tex. Nov. 15, 2010), adopted by 2011 WL 4091503 (N.D. Tex. Sept. 14, 2011); Vaughn v. Astrue, 2009 WL 3874607 at *5 (N.D. Tex. Nov. 17, 2009)). Because the ALJ did not cite to Stone and his articulation of the severity standard was inconsistent with Stone, the Court concludes the ALJ applied an incorrect standard to the severity requirement. No. remand is required, however, because the error was harmless.

         With respect to the ALJ's finding that Plaintiff's anxiety and depression are non-severe, Plaintiff argues remand is required because: (1) the record establishes that Plaintiff has been diagnosed with both impairments; (2) Plaintiff testified that she experiences symptoms of depression; and (3) Plaintiff's treating physician indicated that depression contributes to the severity of Plaintiff's symptoms and her functional limitations, A.R. 1951-52. However, as the ALJ noted in his decision, there is no evidence Plaintiff ever saw a psychologist, a psychiatrist, or a mental health counselor-despite being provided referrals for such providers and resources. A.R. 17, 1474. An ALJ may rely upon the lack of treatment as an indication of nondisability. Villa v. Sullivan, 895 F.2d 1019, 1024 (5th Cir. 1990). The ALJ further observed that the record did not contain any mental status examinations to demonstrate deficiencies in Plaintiff's mental status. A.R. 17. And, the ALJ relied on the Agency medical consultant's finding, based on the entire record, that Plaintiff did not have a severe mental impairment. A.R. 17, 970-83. In view of all the evidence, the Court finds Plaintiff has failed to demonstrate that the ALJ would have reached a different conclusion regarding Plaintiff's medical improvement and her ability to work if he had applied the correct standard to evaluate the severity of her mental impairments. Accordingly, the Court concludes that the ALJ's failure to apply the correct severity standard was a harmless error. If a Stone error is harmless, it is not reversible since “procedural perfection is not required, and an adjudication of the Commissioner is not to be vacated unless a substantial right of the claimant has been adversely affected, ” for “the major policy underlying the harmless error rule is to preserve judgments and avoid waste of time.” Jones v. Astrue, 851 F.Supp.2d 1010, 1015 (N.D. Tex. 2012) (brackets and internal quotation marks omitted) (citing Mays, 837 F.2d at 1364; Carter v. Massey-Ferguson, Inc., 716 F.2d 344, 349 (5th Cir. 1983); Gulf States Utils. Co. v. Ecodyne Corp., 635 F.2d 517, 519-20 (5th Cir. Unit A Jan. 1981)); Taylor, 706 F.3d at 603.

         Plaintiff also argues that the ALJ improperly failed to find her alleged fibromyalgia is a severe impairment. Specifically, the ALJ determined Plaintiff's alleged fibromyalgia is not even a medically determinable impairment because she had not been diagnosed as having fibromyalgia by an acceptable medical source in accordance with the testing protocol required by Agency regulations. A.R. 18. Pursuant to Social Security Ruling 12-2p, fibromyalgia is a medically determinable impairment “when it is established by appropriate medical evidence.” Social Security Ruling (SSR) 12-2p, 2012 WL 3104869 (S.S.A. July 25, 2012). The Ruling clarifies that a “physician's diagnosis alone” is insufficient, and that “[t]he evidence must document that the physician reviewed the person's medical history and conducted a physical exam.” Id. Under the Ruling, a claimant will be found to have a medically determinable impairment of fibromyalgia when, in addition to a diagnosis, a physician provides evidence to satisfy the 1990 American College of Rheumatology (ACR) Criteria for the Classification of Fibromyalgia or the 2010 ACR Preliminary Diagnostic Criteria. See Tebyanian v. Colvin, 2015 WL 4475762, at * 7 (N.D. Tex. July 22, 2015) (“Ruling 12-2p offers two tests for determining whether a claimant's fibromyalgia qualifies as a medically determinable impairment.”). Under either test, a claimant must show: (1) a history of widespread pain “in all quadrants of the body (the right and left sides of the body, both above and below the waist) and axial skeletal pain (the cervical spine, anterior chest, thoracic spine, or low back)-that has persisted (or that persisted) for at least 3 months;” and (2) evidence that other disorders that could cause symptoms and signs were excluded. In addition to these two requirements, under the first test, the claimant must also show at least 11 positive tender points during a physical exam. Under the second test, a claimant instead must show “[r]epeated manifestations of six or more fibromyalgia symptoms, signs, or co-occurring conditions, especially manifestations of fatigue, cognitive or memory problems (‘fibro fog'), waking unrefreshed, depression, anxiety disorder, or irritable bowel syndrome.” Plaintiff insists that several of her doctors diagnosed fibromyalgia and made observations of positive findings on tenderpoint evaluation, with complaints of diffuse myalgias, fatigue and low energy and that the UT Southwestern Rheumatology Clinic ...


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