Black v. Commissioner of Social Security

Filing 16

MEMORANDUM OPINION. Signed by S. Allan Alexander on 2/21/2014. (lmf)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
OXFORD DIVISION
WILLIE JAMES BLACK

PLAINTIFF

vs.

CIVIL ACTION NO. 3:13cv0166-SAA

COMMISSIONER OF SOCIAL SECURITY

DEFENDANT

MEMORANDUM OPINION
This case involves an application under 42 U.S.C. § 405(g) for judicial review of the
decision of the Commissioner of Social Security denying plaintiff’s application for supplemental
security income (SSI) benefits under Title XVI of the Social Security Act, 42 U.S.C. §1382c.
Plaintiff protectively filed applications for SSI benefits on April 15, 2010, alleging disability
beginning August 1, 2007. Docket 8, p. 146-149. His claim was denied initially (Docket 8,
p.97) and on reconsideration. Docket 8, p.102. He filed a written request for hearing on
(Docket 8, p. 105) and was represented by counsel at the hearing held on December 15, 2011.
Docket 8, p. 22-51. The Administrative Law Judge (ALJ) issued an unfavorable decision on
March 29, 2012 (Docket 8, pp. 8-16), and the Appeals Council denied plaintiff’s request for a
review on May 1, 2013. Docket 8, p. 1-5. Plaintiff timely filed the instant appeal from the
decision, and it is now ripe for review. Because both parties have consented to have a magistrate
judge conduct all the proceedings in this case as provided in 28 U.S.C. § 636(c), the undersigned
has the authority to issue this opinion and the accompanying final judgment.
I. FACTS
Plaintiff was born on November 24, 1950, and completed the seventh grade. Docket 8, p.
30. He is unable to read and is only able to write his name. Docket 8, p.31. He was unable to
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fill out the forms for disability. Id. He was sixty-one years old at the time of the ALJ’s decision.
He previously had worked as a carpet installer, construction laborer, landscape laborer,
packager, and window replacer. Docket 8, p. 167. Plaintiff contends that he became disabled
before his application for SSI due to hypertension, heart trouble, lung issues, arthritis and a bad
knee. Docket 8, p. 166. The ALJ rejected his claims of disability, concluding that even though
the plaintiff had multiple medically determinable impairments, his impairments have been nonsevere since his amended onset date and therefore was “not disabled.” Docket 8, p.16, Finding
No. 4.
Plaintiff claims that the ALJ erred when she failed to consider properly the severity of
plaintiff’s impairments under the law of this circuit, his financial inability to receive additional
medical care, that he is completely illiterate, and by not ordering a consultative exam. Docket
14. The commissioner has responded [Docket 15], and the court rules as follows.
II. STANDARD OF REVIEW
In determining disability, the Commissioner, through the ALJ, works through a five-step
sequential evaluation process.1 The burden rests upon plaintiff throughout the first four steps of
this five-step process to prove disability, and if plaintiff is successful in sustaining his burden at
each of the first four levels, then the burden shifts to the Commissioner at step five.2 First,
plaintiff must prove he is not currently engaged in substantial gainful activity.3 Second, plaintiff
must prove his impairment is “severe” in that it “significantly limits [his] physical or mental

1

See 20 C.F.R. §§ 404.1520, 416.920 (2010).

2

Crowley v. Apfel, 197 F.3d 194, 198 (5th Cir. 1999).

3

20 C.F.R. § 416.920(b) (2010).
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ability to do basic work activities . . . .”4 At step three the ALJ must conclude plaintiff is
disabled if he proves that his impairments meet or are medically equivalent to one of the
impairments listed at 20 C.F.R. Part 404, Subpart P, App. 1, §§ 1.00-114.09 (2010).5 If plaintiff
does not meet this burden, at step four he must prove that he is incapable of meeting the physical
and mental demands of his past relevant work.6 At step five, the burden shifts to the
Commissioner to prove, considering plaintiff’s residual functional capacity, age, education and
past work experience, that he is capable of performing other work.7 If the Commissioner proves
other work exists which plaintiff can perform, plaintiff is given the chance to prove that he
cannot, in fact, perform that work.8
The court considers on appeal whether the Commissioner’s final decision is supported by
substantial evidence and whether the Commissioner used the correct legal standard. Crowley v.
Apfel, 197 F.3d 194, 196 (5th Cir. 1999); citing Austin v. Shalala, 994 F.2d 1170 (5th Cir. 1993);
Villa v. Sullivan, 895 F.2d 1019, 1021 (5th Cir. 1990). The court has the responsibility to
scrutinize the entire record to determine whether the ALJ’s decision was supported by
substantial evidence and whether the proper legal standards were applied in reviewing the claim.
Ransom v. Heckler, 715 F.2d 989, 992 (5th Cir. 1983). The court has limited power of review

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20 C.F.R. § 416.920(c) (2010).

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20 C.F.R. § 416.920(d) (2010). If a claimant’s impairment meets certain criteria, that
claimant’s impairments are “severe enough to prevent a person from doing any gainful activity.”
20 C.F.R. § 416.925 (2003).
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20 C.F.R. § 416.920(e) (2010).

7

20 C.F.R § 416.920(g) (2010).

8

Muse, 925 F.2d at 789.
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and may not reweigh the evidence or substitute its judgment for that of the Commissioner,9 even
if it finds that the evidence leans against the Commissioner’s decision.10 The Fifth Circuit has
held that substantial evidence is “more than a scintilla, less than a preponderance, and is such
relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”
Crowley v. Apfel, 197 F.3d 194, 197 (5th Cir. 1999) (citation omitted). Conflicts in the evidence
are for the Commissioner to decide, and if there is substantial evidence to support the decision, it
must be affirmed even if there is evidence on the other side. Selders v. Sullivan, 914 F.2d 614,
617 (5th Cir. 1990). The court’s inquiry is whether the record, as a whole, provides sufficient
evidence that would allow a reasonable mind to accept the conclusions of the ALJ. Richardson
v. Perales, 402 U.S. 389, 401 (1971). “If supported by substantial evidence, the decision of the
[Commissioner] is conclusive and must be affirmed.” Paul v. Shalala, 29 F.3d 208, 210 (5th Cir.
1994), citing Richardson v. Perales, 402 U.S. 389, 390, 28 L.Ed.2d 842 (1971).
III. DISCUSSION
After reviewing the record evidence and testimony, the ALJ issued a decision denying
plaintiff’s application on March 29, 2012. Docket 8, pp. 12-20. At step one, the ALJ found that
plaintiff had not engaged in substantial gainful activity since his application date, April 5, 2010.
Docket 8, p. 17, Finding 1. At step two, the ALJ found that plaintiff had the medically
determinable impairments of “hypertension, a surgically repaired diverticular perforation, and
mild to moderate degenerative joint disease of the lumbar spine.” Docket 8, pp. 17-18, Finding

9

Hollis v. Bowen, 837 F.2d 1378, 1383 (5th Cir. 1988).

10

Bowling v. Shalala, 36 F.3d 431, 434 (5th Cir. 1994); Harrell v. Bowen, 862 F.2d 471,
475 (5 Cir. 1988).
th

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2. However, the ALJ determined that plaintiff did not have a “severe” impairment or
combination of impairments because his medically determinable impairments did not
significantly limit his ability to perform basic work-related activities for 12 consecutive months.
Docket 8, pp. 18-20, Finding 3. Finding so, the ALJ determined that plaintiff had not been
disabled from his application date of April 5, 2010, through the date of the ALJ’s decision.
Docket 8, p. 20, Finding 4.
Plaintiff challenges the ALJ’s finding that all of his impairments are non-severe. The
Commissioner argues that the ALJ properly found all of plaintiff’s alleged disabilities to be nonsevere, but fails to address the fact that the ALJ did not follow the proper analysis in reaching
that conclusion. In determining that plaintiff’s impairments were not severe, the ALJ stated:
The claimant does not have an impairment or combination of impairments that
has significantly limited (or is expected to significantly limit) the ability to
perform basic work-related activities for 12 consecutive months; therefore, the
claimant does not have a severe impairment or combination of impairments (20
CFR 416.921, et seq.).
Docket 8, p. 14.11 The Fifth Circuit has held that, “[a]n impairment can be considered as not
severe only if it is a slight abnormality having such minimal effect on individual that it would
not be expected to interfere with the individual’s ability to work, irrespective of age, education

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The ALJ continued:
“In reaching the conclusion that the claimant does not have an impairment or
combination of impairments that significantly limits his ability to perform basic
work activities, the undersigned has considered all symptoms and the extent to
which these symptoms can be reasonably be accepted as consistent with the
objective medical evidence and other evidence, based on the requirements of 20
CFR 416.929 and SSRs 96-4p and 96-7p. The undersigned has also considered
opinion evidence in accordance with the requirements of 20 CFR 416.927 and
SSRs 96-2p, 96-5p, 96-6p and 06-3p.”
Docket 8, p. 14.
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or work experience.” Stone v. Heckler, 752 F.2d 1099, 1101 (5th Cir. 1985). Further, the Circuit
“allow[s] an impairment to be found nonsevere based on medical factors alone” id., citing Lofton
v. Schweiker, 653 F.2d 215, 217 (5th Cir. 1981), and requires that the Commissioner apply this
severity standard with either direct citation to the regulations [20 C.F.R. §§ 404.1521 & 416.921]
or reference to the Stone v. Heckler, 752 F.2d 1099 (5th Cir. 1985) decision, or both. Failure to
refer to these standards may be reversible error, see, e.g., Sanders v. Astrue, 2008 WL 4211146
(N.D. Tex. Sept. 12, 2008); a district court need not remand a case simply because the ALJ did
not use “magic words,” but remand is required where there is no indication the ALJ applied the
correct standard. White v. Astrue, 2009 WL 763064 (N.D. Tex. Mar. 23, 2009), citing Hampton
v. Bowen, 785 F.2d 1308, 1311 (5th Cir.1986).
In this case, the ALJ did not cite to Stone, as required by the Fifth Circuit. Stone, 752
F.2d 1106 (“. . . unless the correct standard is set forth by reference to this opinion or another of
the same effect, or by an express statement that the construction we give to 20 C.F.R.
§404.1520(c)(1984) is used. . . , the claim must be remanded to the Secretary for
reconsideration.”). The Commissioner argues that the ALJ’s omitting a citation to Stone is not
reversible error in this case for two reasons: “(1). The ALJ applied the Stone standard to
determine whether Plaintiff had a severe impairment at step two and (2) the ALJ also determined
that plaintiff’s impairments did not meet the durational requirement.” Docket 15, p. 10. The
court cannot agree.
Although the lack of a citation to Stone is not automatically reversible error when it is
clear that the correct standard was applied, it is not clear that the ALJ applied the correct
standard in this case. Given the low bar for the establishment of a severe impairment under

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Stone, the court concludes that remand is appropriate to allow the Commissioner to clarify that
the Stone opinion was followed, as well as to revisit whether any other of plaintiff’s impairments
should have been included among his impairments examined at step two of the ALJ's analysis.
Noble v. Astrue, 2010 WL 6776687 (N.D. Tex. Dec. 29, 2010).
Additionally, the court is troubled by the ALJ’s failure to consider the plaintiff’s lack of
funds and access to medical treatment as a real issue and impediment to remedying his
conditions. The fact that the plaintiff had not sought free or low cost treatment should have no
bearing on the ALJ’s decision. Lovelace v. Bowen, 813 F.2d 55, 59 (5th Cir. 1987). Moreover, in
the rural area of this district where the plaintiff lives, there may be little or no access to free
medical treatment. Merely reading the transcript reveals plaintiff’s obvious illiteracy and limited
knowledge and understanding of medical treatment; in light of these circumstances, the ALJ
should have examined the plaintiff’s claims even more closely. Because the court is remanding
the case so that the ALJ can apply the appropriate legal standard at step two, the court will not
consider whether the Commissioner’s decision on this issue is supported by substantial evidence,
though additional, in-depth review of plaintiff’s claims, on remand, is surely warranted.
IV. CONCLUSION
The Commissioner’s denial of benefits will be remanded for additional review in
accordance with this opinion. A final judgment will issue this day.
This, the 21st of February, 2014.
/s/ S. Allan Alexander
UNITED STATES MAGISTRATE JUDGE

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