Suero v. Commissioner of Social Security
Filing
19
OPINION AND ORDER accepting and adopting in part 14 Report and Recommendations; sustaining in part 18 Objection. The Court rejects the finding that the failure to find that the mental impairment was not severe was supported by substantial evide nce, but the ALJ's error was harmless. The Court otherwise adopts the Report and Recommendation. The Decision of the Commissioner of Social Security is reversed as to the Step Two finding that the mental impairment was not "severe" and is otherwise affirmed. The Step Two error was harmless beyond any doubt. The Clerk of the Court shall enter judgment accordingly and close the file. Signed by Judge John E. Steele on 3/17/2014. (RKR)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
JOSEPH A. SUERO,
Plaintiff,
v.
Case No: 2:12-cv-626-FtM-29DNF
COMMISSIONER
SECURITY,
OF
SOCIAL
Defendant.
OPINION AND ORDER
This
matter
is
before
the
Court
on
consideration
of
Magistrate Judge Douglas N. Frazier’s Report and Recommendation
(Doc. #14), filed on February 11, 2014, recommending that the
Decision of the Commissioner be affirmed.
Plaintiff filed an
Objection to the Report and Recommendation (Doc. #18) on March 7,
2014.
I.
The Court reviews the Commissioner’s decision to determine if
it is supported by substantial evidence and based upon proper legal
standards.
Crawford v. Comm’r of Soc. Sec., 363 F.3d 1155, 1158
(11th Cir. 2004)(citing Lewis v. Callahan, 125 F.3d 1436, 1439
(11th Cir. 1997)).
Substantial evidence is more than a scintilla
but less than a preponderance, and is such relevant evidence as a
reasonable person would accept as adequate to support a conclusion.
Moore v. Barnhart, 405 F.3d 1208, 1211 (11th Cir. 2005)(citing
Crawford,
363
F.3d
at
1158-59).
Even
if
the
evidence
preponderates against the Commissioner’s findings, the Court must
affirm
if
evidence.
the
decision
Crawford,
reached
363
F.3d
is
at
supported
1158-59
by
substantial
(citing
Sullivan, 894 F.2d 1520, 1529 (11th Cir. 1990)).
Martin
v.
The Court does
not decide facts anew, make credibility judgments, reweigh the
evidence, or substitute its judgment for that of the Commissioner.
Moore, 405 F.3d at 1211 (citing Bloodsworth v. Heckler, 703 F.2d
1233, 1239 (11th Cir. 1983)); Dyer v. Barnhart, 395 F.3d 1206,
1210 (11th Cir. 2005)(citing Phillips v. Barnhart, 357 F.3d 1232,
1240 n.8 (11th Cir. 2004)).
The Court reviews the Commissioner’s
conclusions of law under a de novo standard of review.
Ingram v.
Comm’r of SSA, 496 F.3d 1253, 1260 (11th Cir. 2007)(citing Martin,
894 F.2d at 1529).
II.
A. Step Two Determination of “Severe” Impairment
Plaintiff asserts that the ALJ erred in failing to find his
mental impairments to be “severe” at Step 2 of the sequential
evaluation process.
Plaintiff argues, contrary to the finding in
the Report and Recommendation (Doc. #14, p. 12), that sufficient
evidence did not support the ALJ’s finding that plaintiff’s mental
impairments were not severe.
The Court’s analysis differs from
that of the magistrate judge, but the result is the same.
- 2 -
Step Two is a threshold inquiry that “allows only claims based
on the most trivial impairments to be rejected”, McDaniel v. Bowen,
800 F.2d 1026, 1031 (11th Cir. 1986), and “acts as a filter” to
weed out claims where there are no substantial impairments at all,
Jamison v. Bowen, 814 F.2d 585, 588 (11th Cir. 1987).
The Eleventh
Circuit follows the “slight abnormality” test for determining
whether
an
impairment
is
severe:
“[A]n
impairment
can
be
considered as not severe only if it is a slight abnormality which
has such a 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.”
Bridges v.
Bowen, 815 F.2d 622, 625-626 (11th Cir. 1987)(quoting Brady v.
Heckler, 724 F.2d 914, 920 (11th Cir. 1984)). To show a “severe”
impairment, a claimant must show “any impairment or combination of
impairments which significantly limits [his] physical or mental
ability to do basic work activities.” 20 C.F.R. §§ 404.1520(c);
416.920(c).
Plaintiff’s burden to show a severe impairment has
been described as “mild”. McDaniel, 800 F.2d at 1031.
If the ALJ concludes that none of the claimant's impairments
are medically severe, the ALJ is to conclude that the claimant is
not disabled; if the ALJ concludes that the claimant’s impairments
are medically severe, then the ALJ moves on to the third step.
Phillips, 357 F.3d at 1237.
Once a case advances beyond Step Two,
the ALJ must consider all impairments, severe or not, at Step Three
- 3 -
in assessing the residual functional capacity (RFC). Bowen v.
Heckler, 748 F.2d 629, 634–35 (11th Cir.1984); Phillips, 357 F.3d
at 1238.
Thus, the issue before the Court is whether the evidence of
record provides substantial support—more than a scintilla, less
than a preponderance—for the ALJ’s finding that plaintiff’s mental
condition is merely a slight abnormality with minimal effect on
his general ability to work.
1274-75 (11th Cir. 1985).
reasonable
mind
could
Flynn v. Heckler, 768 F.2d 1273,
A court is required to ask whether a
review
plaintiff’s
evidence
and
still
conclude that that condition has only a minimal effect on his
ability to perform the most general and rudimentary functions of
a work activity as those functions are set out in the regulations.
Id.
Here, the ALJ found severe impairments related to lumbar
degenerative
changes,
process past Step Two.
and
therefore
continued
the
evaluation
The ALJ did not find that plaintiff’s
mental impairments were severe.
(Tr. 47-50.)
The Court finds
that the ALJ’s conclusion that plaintiff’s mental impairment was
not “severe” for Step Two purposes is not supported by substantial
evidence.
Four doctors found some level of mental impairment, and
even crediting the ALJ’s ultimate credibility determinations, the
evidence satisfies the mild Step Two severity standard.
- 4 -
While not
disabling, the mental impairment was “severe” and the ALJ’s finding
to the contrary is not supported by substantial evidence.
This does not end the matter, however, because the failure to
include an impairment at Step Two can be harmless error.
In
assessing plaintiff’s RFC, the ALJ found that plaintiff had severe
impairments relating to lumbar degenerative changes, and that the
Step Two test was satisfied as to that impairment.
The ALJ
therefore continued with the five-step sequential process, as was
required.
Jamison,
814
F.2d
at
588.
The
ALJ
specifically
considered and discussed plaintiff’s mental impairments in his
continuation of the evaluation process.
(Tr. 50-53.)
The ALJ
thus performed the analysis that would have been required had he
determined a mental impairment was severe at Step Two.
See id.
Accordingly, even if the ALJ erred at Step Two, any error was
harmless.
See Gray v. Comm’r of Soc. Sec.,
F. App’x
,
2013 WL 6840288, *1 (11th Cir. Dec. 30, 2013); Packer v. Comm’r,
Soc.
Sec.
Admin.,
542
F.
App’x
890,
892
(11th
Cir.
2013).
Therefore, the Court finds that the ALJ’s error in failing to
include mental impairment as a “severe” impairment at Step Two was
harmless error.
B. Opinion of Treating Physician and Psychiatrist
Plaintiff
determinations
also
as
objects
to
the
to
the
opinions
ALJ’s
of
Dr.
reduced
credibility
Candelore
and
Dr.
Hernandez, and his enhanced credibility determination as to the
- 5 -
opinion of Dr. Heffron.
After review of the record, the Court
concludes that substantial evidence supports the ALJ’s credibility
determinations.
The Court accepts and adopts this portion of the
Report and Recommendation.
C. Vocational Expert at Step Four
Plaintiff
asserts
vocational expert.
with
the
Report
that
the
ALJ
was
required
to
call
a
After review of the record, the Court agrees
and
Recommendation
vocational expert was not necessary.
that
the
testimony
of
a
The Court accepts and adopts
this portion of the Report and Recommendation.
D. Medium RFC Finding
Plaintiff asserts that the Appeals Council decision was not
based on substantial evidence and it inadequately evaluated postdecision MRI evidence. After review of the record, the Court agrees
with the Report and Recommendation, and therefore accepts and
adopts this portion of the Report and Recommendation.
Accordingly, it is now
ORDERED:
1.
The Report and Recommendation (Doc. #14) is accepted and
adopted in part by the Court.
The Court rejects the finding that
the failure to find that plaintiff’s mental impairment was not
“severe” was supported by substantial evidence.
that
the
determination
of
the
ALJ
that
The Court finds
plaintiff’s
mental
impairment at Step Two of the evaluation process was not severe
- 6 -
was not supported by substantial, but that this error was harmless.
The
Court
adopts
the
remaining
portions
of
the
Report
and
Recommendation.
2.
Plaintiff’s Objection to the Report and Recommendation
(Doc. #18) is sustained in part an overruled in part.
3.
The Decision of the Commissioner of Social Security is
reversed as to the Step Two finding that the mental impairment was
not “severe” and is otherwise affirmed.
The Step Two error was
harmless beyond any doubt.
4.
The Clerk of the Court shall enter judgment accordingly
and close the file.
DONE and ORDERED at Fort Myers, Florida, this
of March, 2014.
Copies:
Hon. Douglas N. Frazier
U.S. Magistrate Judge
Counsel of Record
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17th
day
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