Small v. Saul
JUDGMENT in favor of Shonqilla Small against Kilolo Kijakazi. CASE CLOSED. Signed by Magistrate Judge David A. Sanders on 5/10/22. (cs)
Case: 4:21-cv-00036-DAS Doc #: 28 Filed: 05/10/22 1 of 5 PageID #: 1181
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
CIVIL ACTION NO. 4:21-CV-36-DAS
KILOLO KIJAKAZI, ACTING COMMISSIONER
OF THE SOCIAL SECURITY ADMINISTRATION
Plaintiff Shonqilla Small filed a Complaint for Judicial Review of Social Security
Decision of the unfavorable decision of the Commissioner of Social Security regarding an
application for a period of disability and disability insurance benefits. Docket 1. The parties have
consented to entry of final judgment by the United States Magistrate Judge under 28 U.S.C.
§ 636(c), with any appeal to the Court of Appeals for the Fifth Circuit. Docket 19. The Court,
having reviewed the record, the administrative transcript, the briefs of the parties, and the
applicable law and having heard oral argument, finds that the Commissioner’s decision should be
The plaintiff filed for benefits on April 25, 2019, alleging onset of disability commencing
on December 31, 2017. The Social Security Administration denied the claim initially and on
reconsideration. Following a hearing, the ALJ issued an unfavorable decision on October 28,
2020. The Appeals Council denied the request for review, and this timely appeal followed.
The ALJ determined the claimant had the following severe impairments: fibromyalgia,
avascular necrosis of right hip, and obesity. The ALJ found she retained the residual functional
capacity (RFC) to perform light work with the following limitations: lifting/carrying no more
than 20 pounds occasionally and 10 pounds frequently, standing/walking no more than six hours
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in an eight-hour workday and sitting for six hours in an eight-hour workday, frequent balancing,
stooping, kneeling, and climbing ramps/stairs, and only occasionally crouch, crawl, and climb
ladders, ropes, and scaffolds. While the plaintiff has no past relevant work, the ALJ found, based
on the testimony of the vocational expert, that there were jobs in the national economy that
would fit within her RFC. For example, the ALJ found she can work as a ticketer, folder, and
information clerk. Each of these jobs is unskilled and performed at the light level of exertion.
These three jobs represent 170,000, 140,000, and 58,000 jobs respectively in the national
The plaintiff raised three issues on appeal. The court finds the first issue – whether the
ALJ properly considered the plaintiff’s mental impairments in formulating the RFC – warrants
remand. As a preliminary matter, the court finds the ALJ did not err in finding the plaintiff’s
mental impairments non-severe at step two. The ALJ appropriately analyzed the B-criteria and
found the plaintiff has a mild mental limitation in her ability to interact with others, concentrate,
persist, or maintain pace, and adapt and manage herself but did not find her mental impairments
severe. The court considers it a close question as to whether the ALJ should have found these
conditions rose to the level of severe impairments under Stone v. Heckler, 752 F.2d 1099 (5th Cir.
1985); however, the legal error occurred at step four when the ALJ failed to consider the impact,
if any, of the plaintiff’s non-severe mental impairments on the RFC finding.
The ALJ has a duty to fully and fairly develop the facts relating to a claim for disability
benefits, see Ripley v. Chater, 67 F.3d 552, 557 (5th Cir. 1995), and must also consider
throughout the disability determination process ... the combined effect of any impairments
Case: 4:21-cv-00036-DAS Doc #: 28 Filed: 05/10/22 3 of 5 PageID #: 1183
‘without regard to whether any such impairment, if considered separately, would be of sufficient
severity.’” Loza v. Apfel, 219 F.3d 378, 393 (5th Cir. 2000) (quoting 20 C.F.R. § 404.1523).
Here, the ALJ did not adequately discuss the plaintiff’s mental limitations in the RFC
determination. At step two, the ALJ recognized that the plaintiff has depression and posttraumatic stress disorder and takes medications for anxiety and depression. However, the ALJ
determined that these were non-severe impairments. In assessing the B-criteria, the ALJ assessed
a mild mental limitation in the plaintiff’s ability to interact with others, concentrate, persist, or
maintain pace, and adapt and manage herself. But the impact of these limitations, if any, remains
undeveloped in the ALJ’s RFC analysis.
In formulating the RFC, the ALJ discussed the plaintiff’s physical limitations, however,
the analysis does not include a discussion of the plaintiff’s non-severe mental impairments, the
mental limitations recognized by the ALJ when evaluating the B-criteria, or the medical evidence
and opinions related to the plaintiff’s mental impairments and limitations. The ALJ’s RFC
analysis omits the plaintiff’s testimony that she is disabled due to depression and anxiety and
only states that she testified regarding “fibromyalgia, arthritis, muscle/joint pain, disease of
nerves in arms, legs, and feet, elevation sedimentation rate, and a muscular disorder.” At the
administrative hearing, the plaintiff testified she took medication for her anxiety and depression
and was prescribed a higher dose after having suicidal thoughts. She testified she “definitely
[has] a lot of panic attacks […] especially when [she] have [sic] to go out in the crowd or
At step four, the ALJ references Dr. Whelan’s psychological consultative examination
and the State Agency physicians’ opinions but does not discuss their findings such that the court
can determine whether the ALJ properly considered whether the plaintiff’s non-severe mental
Case: 4:21-cv-00036-DAS Doc #: 28 Filed: 05/10/22 4 of 5 PageID #: 1184
impairments caused any functional limitations. Dr. Whelan found the plaintiff’s depressive
disorder was “moderately severe” and noted “she takes a significantly large dose of [Celexa] to
stabilize her mood.” Dr. Whelan opined the plaintiff would require continued treatment for
depression with antidepressant medication and would experience “depressive symptoms in the
future.” The State Agency physicians opined that the plaintiff’s psychological impairments
caused moderate limits in interacting with other, concentrating, persisting, or maintaining pace,
and adapting or managing herself. As noted, the ALJ found the plaintiff was mildly limited in
this area when evaluating the B-criteria, however, the effects of such limitations are not
discussed in the ALJ’s decision.
While the ALJ erred in failing to consider the impact of plaintiff’s mental limitations, if
any, on her mental functioning when formulating the RFC, remand is not required if the error is
harmless. “Procedural 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). Harmless error exists when it is inconceivable that a different administrative
conclusion would have been reached absent the error. Frank v. Barnhart, 326 F.3d 618, 622 (5th
Cir. 2003). On this point, the Commissioner maintains any such error is harmless because by
limiting the plaintiff to unskilled work, the vocational expert (VE) accounted for any mental
limitations caused by the plaintiff’s non-severe mental impairments.
Under 20 C.F.R. § 404.1568 (a), unskilled work “needs little or no judgment to do simple
duties that can be learned on the job in a short period of time.” The regulation continues “we
consider jobs unskilled if the primary work duties are handling, feeding and offbearing […], or
machine tending, and a person can usually learn to do the job in 30 days, and little specific
vocational preparation and judgment are needed.” Despite the limitations associated with
Case: 4:21-cv-00036-DAS Doc #: 28 Filed: 05/10/22 5 of 5 PageID #: 1185
unskilled work, the court finds the VE’s job assessment does not satisfy the ALJ’s obligation to
consider the effects of the plaintiff’s mental impairments, if any, on her RFC. Because the court
is unable to determine whether and to what extent the ALJ adequately considered the plaintiff’s
non-severe mental impairments and any resulting mental limitation(s) when determining her
RFC, the court cannot conclude the error is harmless.
The remaining issues concern the ALJ’s treatment of the plaintiff’s anemia and
hemoglobin readings and her migraine headaches. The ALJ did not err in failing to find the
plaintiff’s anemia to be an impairment. There is no evidence that her anemia significantly limited
or is expected to significantly limit her ability to perform basic work-related activities for 12
consecutive months nor is there any evidence that it caused any work-related functional
limitations. Stone v. Heckler, 752 F.2d 1099, 1103 (5th Cir. 1985) (quoting 42 U.S.C.
§ 423(d)(1)(A); see also 20 C.F.R. § 220.102. The same is true of the plaintiff’s migraine
headaches. There is no evidence of the “other objective medical signs” outlined in Wiltz v.
Barnhart demonstrating disabling migraine pain or evidence of associated functional limitations.
Wiltz v. Barnhart, 484 F.Supp.2d 524 (W.D. La. 2006).
For these reasons, the Commissioner’s decision is reversed and remanded for a rehearing
of the plaintiff’s application under the fourth sentence of § 405(g).
SO ORDERED, this the 10th day of May, 2022.
/s/ David A. Sanders
UNITED STATES MAGISTRATE JUDGE
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