Lewis v. Colvin

Filing 16

ORDER denying 9 Motion for Summary Judgment; granting 13 Motion to Affirm. Signed by Magistrate Judge F. Keith Ball on 3/20/17. (YWJ)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
NORTHERN DIVISION

ROSIE MARIE LEWIS

PLAINTIFF

VS.

CIVIL ACTION NO. 3:15-cv-817-FKB

CAROLYN W. COLVIN, COMMISSIONER
OF SOCIAL SECURITY ADMINISTRATION

DEFENDANT

______________________________________________________________________________
MEMORANDUM OPINION AND ORDER
This cause is before the Court regarding the appeal by Rosie Marie Lewis of the
Commissioner of Social Security's final decision denying Lewis's application for a period of
disability, Disability Insurance Benefits (“DIB”), and Supplemental Security Income (“SSI”). In
rendering this Memorandum Opinion and Order, the Court has carefully reviewed the
Administrative Record [7] regarding Lewis=s claims (including the administrative decision, the
medical records, and a transcript of the hearing before the Administrative Law Judge ("ALJ")),
Plaintiff=s Motion for Summary Judgment [9], Memorandum Brief [10], Defendant=s Motion to
Affirm Commissioner’s Decision [13], Memorandum Brief [14], and Plaintiff’s Rebuttal [15].
The parties have consented to proceed before the undersigned United States Magistrate Judge,
and the District Judge has entered an Order of Reference [12]. 28 U.S.C. § 636(c); Fed. R. Civ.
P. 73.
For the reasons discussed in this Memorandum Opinion and Order, the undersigned finds
that the Commissioner=s decision should be affirmed. Accordingly, the Motion to Affirm [13] is
granted, and Plaintiff=s Motion [9] is hereby denied.
I. PROCEDURAL HISTORY

Lewis filed her application for a period of disability, DIB, and SSI on September 20,
2012, and alleged a disability onset date of April 15, 2011, when she was thirty-nine years of
age. [7] at 63, 81, 154-162, 174.1 Lewis’s earning record demonstrated that she had acquired
sufficient quarters of coverage to remain insured through March 31, 2015. Id. at 174.
Lewis was born on April 8, 1972, and she was forty-two years of age on the date she was
last insured. Id. at 23. Thus, she was considered a “younger person” under the regulations. 20
C.F.R. § 404.1563(c). Lewis completed high school with a certificate of attendance for
completing a special education curriculum. [7] at 36, 373. In the fifteen years leading up to her
disability onset date, Lewis had been employed as a poultry line operator, poultry grader, and
box assembler. Id. at 54. The poultry line operator is classified as light, unskilled work with
specific vocational preparation (“SVP”) of 2. Id. The poultry grader is classified as light, semiskilled work with an SVP of 3. Id. And the box assembler is classified as light, unskilled work
carrying an SVP of 2. Id. She had worked since 1995 in the chicken processing industry. Id. at
180.
In her request for disability, Lewis alleged that she is disabled and stopped working due
to several conditions: osteoporosis in left leg, high blood pressure, and a bad case of arthritis in
her left leg. Id. at 179. In her application, she also stated that she was five feet, one inches tall
and weighed one hundred seventy pounds. Id. The Court observes that Lewis did not assert that
borderline intellectual functioning was a disabling condition in her application for benefits. Id.
The Social Security Administration denied Lewis=s application initially and upon
reconsideration. Id. at 63-70, 72-79, 81-88, 89-96. Lewis requested a hearing, which was held

1. Citations

reflect the original pagination of the administrative record.
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on June 16, 2014, via video, with Lewis, who was represented by counsel, appearing in
Meridian, Mississippi, and the ALJ presiding from Hattiesburg, Mississippi. Id. at 27. On July
11, 2014, the ALJ issued a decision finding that Lewis was not disabled. Id. at 12-21. The
Appeals Council denied her request for review on September 14, 2015, id. at 1, and this appeal
followed.
II. MEDICAL HISTORY
The Court has determined that a detailed recitation of the medical records is not
necessary because the parties summarized Lewis’s records in their briefs, and the ALJ provided
thorough summaries in her decision. Nevertheless, a review of the observations and evaluations
of certain examiners will aid in the consideration of this case.
On November 14, 2012, Dr. Anthony Fouts conducted a consultative medical
examination of Lewis. Id. at 357-362. At the examination, Dr. Fouts documented that Lewis
was sixty-four inches tall and weighed one hundred ninety-five pounds, with a BMI of 33.5. The
doctor commented that she had high blood pressure. Id. at 360.2 Dr. Fouts found that Lewis had
a full range of motion in her shoulders, elbows, wrists, and hands. Id. at 360. Her fine and gross
manipulation were intact, and her grip strength was 5/5. Id. Lewis had a full range of motion in
her right hip, knee, and ankle without joint effusion or joint instability. Id. As to her left lower
extremity, Dr. Fouts found full range of motion of her left hip, knee, and ankle, with no joint
instability or joint effusion. Id. He commented that her left calf is about 1½ inches smaller in
diameter than the right calf, with depressed scars along the shin, which was consistent with her
history of a childhood injury to her left leg. Id. at 359-360. He commented that the pulses in her

2. For reasons unknown to the Court, Lewis’s blood pressure measurement was redacted from
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left foot were diminished, but he could feel them, and that there were no signs of vascular
insufficiency in the left foot or left leg. Id. at 360. He also noted that her gait was normal, she
did not require a “balance device,” and she could “walk for about a half mile.” Id. at 359-360.
Dr. Fouts concluded that she “would seem to have a good physical basis for a chronic pain
syndrome of the left lower extremity,” and that her blood pressure was “markedly elevated.” Id.
at 360. He also concluded that Lewis’s “EKG does meet criteria for left ventricular hypertrophy
which could be viewed as end[]organ damage for her high blood pressure.” Id.
Lewis’s attorney arranged for her to see Patricia M. Sandusky, Ph.D., for a psychological
evaluation on May 14, 2014. Id. at 375-378. Dr. Sandusky observed that Lewis completed the
twelfth grade in a special education program and noted that she had worked at least fifteen years
in the poultry industry. Id. at 375. Dr. Sandusky commented that Lewis indicated that she could
bathe, provide meals, engage in basic housekeeping, and care for her young child. Id. at 376.
She commented that Lewis had three children, ages two, fifteen, and twenty-two at the time of
the examination. Id. Dr. Sandusky commented that Lewis’s affect was euthymic, she showed no
indication or gave no report of significant depression, and she gave no indication of anxiety. Id.
Dr. Sandusky administered the Wechsler Adult Intelligence Scale, IV Edition, to Lewis.
Id. at 376-377. Lewis obtained a full scale IQ of 72, which the psychologist found to be in the
3rd percentile and within the borderline range. Id. at 377. She commented that “there was
significant variability in composite scores, ranging from a low of 71 in processing speed to a
high of 83 in working memory.” Id. Her diagnostic impression was “Borderline Intellectual
Functioning” and “Impaired left leg (by report).” Id. The psychologist concluded, as follows:

the record. Id. at 359.
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Based on intellectual functioning, Ms. Lewis would have much difficulty
functioning in a work environment that did not involve some type of repetitive
motion or manual labor. If her physical condition is considered prohibitive of
this, taken together, these conditions may reflect a disability prohibiting her from
functioning in a work environment. Ms. Lewis is considered capable of handling
funds in her own best interest if so assigned.
Id. at 378.
III. HEARING AND DECISION
In her July 11, 2014, decision, the ALJ evaluated Lewis=s impairments using the familiar
sequential evaluation process3 and found that she has the severe impairments of obesity; left
lower extremity osteoarthrosis; history of osteomyelitis and/or osteochondral defect; and
essential hypertension. Id. at 14. The ALJ determined that Lewis’s left ventricular hypertrophy,

3. In evaluating a disability claim, the ALJ is to engage in a five-step sequential process, making
the following determinations:
(1)

whether the claimant is presently engaging in substantial gainful activity (if so, a
finding of “not disabled” is made);

(2)

whether the claimant has a severe impairment (if not, a finding of “not disabled”
is made);

(3)

whether the impairment is listed, or equivalent to an impairment listed, in 20
C.F.R. Part 404, Subpart P, Appendix 1 (if so, then the claimant is found to be
disabled);

(4)

whether the impairment prevents the claimant from doing past relevant work (if
not, the claimant is found to be not disabled); and

(5)

whether the impairment prevents the claimant from performing any other
substantial gainful activity (if so, the claimant is found to be disabled).

See 20 C.F.R. §§ 404.1520, 416.920. The analysis ends at the point at which a finding of
disability or non-disability is required. The burden to prove disability rests upon the claimant
throughout the first four steps; if the claimant is successful in sustaining his burden through step
four, the burden then shifts to the Commissioner at step five. Leggett v. Chater, 67 F.3d 558,
564 (5th Cir. 1995).
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peripheral vascular disease, carpal tunnel syndrome, and borderline intellectual functioning were
nonsevere. Id. at 14-15.
The ALJ concluded that Lewis does not have an impairment or combination of
impairments that meets or medically equals the severity of one of the listed impairments in 20
C.F.R Park 404, Subpart P, Appendix 1. Id. at 16. The ALJ determined that Lewis did not meet
the requirements of Listing 1.02 (major dysfunction of a joint due to any cause) because her left
lower extremity osteoarthritis and remote history of osteomyelitis do not prevent her from
ambulating effectively or performing fine and gross movements effectively. Id. The ALJ
considered the combined impact of her impairments, including obesity, and concluded that she
did not meet or medically equal the criteria for any listed impairment. Id.
The ALJ determined that Lewis’s borderline intellectual functioning did not meet or
medically equal the criteria of Listing 12.05 (intellectual disability) because there was no
evidence of adaptive functioning deficits prior to age 22. Id. The ALJ noted that although
Lewis’s high school transcript indicated that she completed high school with a special education
certificate, she received passing grades in some regular classes, which was inconsistent with
intellectual disability and illiteracy. Id. The ALJ pointed out that she could read the newspaper,
do simple math, and engage in normal independent activities of daily living. Id. at 16-17.
Finally, the ALJ pointed to her many years of substantial gainful activity, as evidenced by her
starting work in 1991 at age 19 and her earnings record beginning in 1996 that was well above
the level for substantial gainful activity, all of which was inconsistent with intellectual disability.
Id. at 16.
After considering the record, the ALJ determined that Lewis has the residual functional

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capacity to perform the full range of sedentary work, as defined in 20 C.F.R. §§ 404.1567(a) and
416.967(a). Id. at 17. The ALJ found her complaints of the effects of pain and other symptoms
to be partially credible based upon her conditions. Id. However, the ALJ determined that the
objective evidence did not support the severity of limitations alleged by Lewis. Id. at 18. In
particular, the ALJ relied on Dr. Fouts’s consultative exam, which “reported physical
examination findings mostly within normal limits, with normal gait, full range of motion, and
normal strength in all extremities.” Id. The ALJ also considered that gaps in treatment and noncompliance with medication detracted from Lewis’s credibility. Id. The ALJ pointed to the fact
that she had received unemployment in 2012, which “implie[d] that she was actively seeking
employment and ready, willing and able to work if hired.” Id. Taking into account her
testimony, the record of treating and examining physicians, and non-examining physicians of
Disability Determination Services, along with Lewis’s subjective allegations and obesity, the
ALJ found that Lewis could engage in the full range of sedentary work. Id. at 18-19. The ALJ
determined that Lewis is unable to perform any past relevant work. Id. at 19. The ALJ
concluded that Lewis was a “younger individual age 18-44” on the alleged onset date of April
15, 2011, because she was born on April 8, 1972, and was thirty-nine by the onset date. Id. at
20. The ALJ also determined that she had a limited education and is able to communicate in
English, and that transferability of job skills was not an issue because her past relevant work was
unskilled. Id.
Finally, the ALJ looked at Lewis’s age, education, work experience and residual
functional capacity in conjunction with the Medical-Vocational Guidelines, 20 C.F.R. Part 404,
Subpart P, Appendix 2, also known as the “grids,” to conclude that Lewis is not disabled under

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Rule 201.24. Id. at 20. The ALJ considered that the limitations found by state agency nonexamining physicians, limitations consisting of limited ability to push/pull with the lower left
extremity, postural limitations, and environmental limitations, and concluded that these had little
or no effect on the occupational base for sedentary work. Id. The ALJ took judicial notice that
the “vast majority of sedentary occupations are performed indoors, and, at most, require only
occasional stooping, crouching and bending.” Id. And the ALJ found that there was no
“persuasive medical evidence” to support additional non-exertional limitations at the sedentary
level of work. Id. at 21. The ALJ noted that even if Lewis were illiterate, and the ALJ found
that she was not illiterate, Medical-Vocational Rule 201.23 would direct a finding of “not
disabled.” Id. Thus, the ALJ found that Lewis was not disabled from April 15, 2011, her date of
onset, to the date of the decision, July 11, 2014. Id.
IV. STANDARD OF REVIEW
This Court=s review is limited to an inquiry into whether there is substantial evidence to
support the Commissioner=s findings, Richardson v. Perales, 402 U.S. 389, 390, 401 (1971), and
whether the correct legal standards were applied, 42 U.S.C. § 405(g) (2006). Accord Falco v.
Shalala, 27 F.3d 160, 163 (5th Cir. 1994); Villa v. Sullivan, 895 F.2d 1019, 1021 (5th Cir. 1990).
The Fifth Circuit has defined the Asubstantial evidence@ standard as follows:
Substantial evidence means 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. It must do more than create a suspicion of the existence of
the fact to be established, but Ano substantial evidence@ will be found only where
there is a Aconspicuous absence of credible choices@ or Ano contrary medical
evidence.@
Hames v. Heckler, 707 F.2d 162, 164 (5th Cir. 1983). In applying the substantial evidence
standard, the Court must carefully examine the entire record, but must refrain from re-weighing
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the evidence or substituting its judgment for that of the Commissioner. Ripley v. Chater, 67 F.3d
552, 555 (5th Cir. 1995). Conflicts in the evidence and credibility assessments are for the
Commissioner and not for the courts to resolve. Martinez v. Chater, 64 F.3d 172, 174 (5th Cir.
1995). Hence, if the Commissioner=s decision is supported by the evidence, and the proper legal
standards were applied, the decision is conclusive and must be upheld by this Court. Paul v.
Shalala, 29 F.3d 208, 210 (5th Cir. 1994), overruled on other grounds, Sims v. Apfel, 530 U.S.
103 (2000).
V. DISCUSSION OF THE ALLEGED ERRORS
AND APPLICABLE LAW
Plaintiff argues that the ALJ=s decision is unsupported by substantial evidence and should
be reversed for two basic reasons, summarized as follows:
1. Did the ALJ apply the proper standard for evaluating whether an impairment is
severe, as found in Stone v. Heckler, 752 F.2d 1099 (5th Cir. 1985), and, if not,
did Plaintiff suffer prejudice?
2. Did the ALJ properly apply the medical-vocational guidelines of
Appendix 2, Subpart P of Social Security Regulations No. 4?
[10] at 2-3.
A. Did the ALJ properly apply the Stone standard?
Plaintiff argues that the ALJ used the wrong standard to evaluate severe impairments.
That is, Lewis asserts that the ALJ did not use a definition that tracked the language set forth by
the Fifth Circuit Court of Appeals in Stone v. Heckler to evaluate her impairments, and, in
particular, her borderline intellectual functioning. Thus, Lewis argues that the case must be
remanded to the Commissioner for application of the proper legal standard and for full
consideration of all of her functional limitations, including her borderline intellectual

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functioning, which, the Court observes, she did not assert was a disabling condition in her
application for benefits.
The severity standard in this circuit was established in the case of Stone. In that case, the
Fifth Circuit considered the regulation that defines a severe impairment as one that “significantly
limits [a claimant’s] physical or mental ability to do basic work activities,” 20 C.F.R. §
404.1520(c), and held that this definition was inconsistent with the Social Security Act. The
court stated the correct severity standard as follows:
[A]n 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. Moreover, the court stated that in the future, it would assume that the
ALJ had applied an incorrect standard “unless the correct standard is set forth by reference to
[the Stone opinion] or another of the same effect, or by an express statement that the construction
[given by the Stone court] to 20 C.F.R. § 404.1520(c) is used.” Id. at 1106. Lewis argues that
remand is required because the ALJ failed to apply the Stone standard, observing that the ALJ
defined a non-severe impairment as one which causes “no more than a minimal effect on an
individual’s ability to work, irrespective of her age, education or work history,” while citing to
Stone. See [7] at 14. With regard to her borderline intellectual functioning, the ALJ concluded
that it “causes no more than minimal limitation in ability to perform the basic mental
requirements of unskilled activity and is, therefore, nonsevere.” Id. at 15. This language raises
the issue of whether this “minimal effect” standard is equivalent to, or at least consistent with,
the Stone standard.

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The present confusion concerning the appropriate standard originates in post-Stone Social
Security Administration rulings. After Stone, the regulations regarding severity remained
essentially the same. However, the Administration responded to Stone and its standard by
issuing a ruling attempting to clarify its policy for the determination of severity. In the ruling,
the Administration stated that an impairment would be considered non-severe if it was a slight
abnormality having only a minimal effect on the ability to work. SSR 85-28, 1985 WL 56856, at
*3 (S.S.A. 1985). A subsequent ruling used this same “minimal effect” language. See SSR 963p, 1996 WL 374181, at *1 (S.S.A. 1996) Thus, as one court has observed, it appears that the
Administration views this minimal limitation standard as consistent with the Stone standard. See
Acosta v. Astrue, 865 F.Supp.2d 767, 779-82 (W.D. Tex. 2012). Not surprisingly, ALJs often
cite to this regulation or quote its language.
Adding to the confusion in this circuit is the fact that the Fifth Circuit has occasionally
used this language in its opinions. See, e.g., Loza v. Apfel, 219 F.3d 378, 399 (5th Cir. 2000)
(directing that on remand, the ALJ is to determine whether claimant’s mental impairments were
merely “a slight abnormality of minimal effect on ability to work”); Brunson v. Astrue, 387 Fed.
App’x 459, 461 (5th Cir. 2010) (unpublished decision) (per curiam) (stating that an impairment
is not severe if it has no more than a minimal effect on ability to do basic work activities). As a
result, some district courts in this circuit have concluded that the minimal limitation standard is
equivalent to the Stone standard. See, e.g., Acosta v. Astrue, 865 F.Supp. 2d 767, 782-83 (W.D.
Tex. 2012). Other courts, however, have reached the opposite conclusion. See, e.g., Padalecki
v. Astrue, 688 F.Supp.2d 576, 580-81 (W.D. Tex. 2010).

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The language of Stone, however, is clear: It allows for a minimal effect on the individual
but makes no allowance for a minimal interference with the ability to work. While the Fifth
Circuit has occasionally referred to “minimal effect” on the ability to work, it has never
specifically addressed the issue of whether this standard is consistent with Stone. The
undersigned believes that unless and until the Fifth Circuit holds that a severity analysis may
properly allow for a minimal effect on an individual’s ability to work, the better course is to
apply Stone to require that a medically-determinable impairment having any effect on the ability
to work be characterized as severe. Under this interpretation of the correct standard, the ALJ’s
citation in the present case to the minimal effect standard was erroneous.
However, failure to cite to the correct standard does not necessarily mandate reversal.
Stone created only a presumption, and where the ALJ’s written decision otherwise indicates that
the ALJ applied the correct standard, or where the substantial rights of the plaintiff are not
affected, the failure of the ALJ to cite to Stone or track its precise language does not require
remand. See Taylor v. Astrue, 706 F.3d 600, 603 (5th Cir. 2012); Hampton v. Bowen, 785 F.2d
1308, 1311 (5th Cir. 1986); see also LeBlanc v. Chater, 83 F.3d 419, 1996 WL 197501, at *3
(5th Cir. 1996) (unpublished table decision) (per curiam).
In the portion of the decision in which the ALJ analyzed the severity of Plaintiff’s
borderline intellectual functioning, she specifically evaluated Lewis’s allegations using the
criteria of Listing 12.00(C) of the Listing of Impairments in 20 C.F.R., Ch. III, Part 404, Subpart
P., Appendix 1. [7] at 16. Using the “paragraph B” criteria, the ALJ analyzed Lewis’s activities
of daily living; social functioning; concentration, persistence or pace; and episodes of
decompensation. Id. The ALJ concluded that because Lewis’s borderline intellectual

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functioning “causes no more than ‘mild’ limitation in any of the first three functional areas and
‘no’ episodes of decompensation, it is nonsevere.” Id. at 16. In so doing, the ALJ cited record
evidence supporting her finding of nonseverity. The ALJ noted that Plaintiff did not allege a
mental limitation in her request for disability, even though she had a history of completing high
school in a special education curriculum, which included regular and vocational courses. The
ALJ observed that, by Lewis’s own admission, she is independent with her personal care and
runs a household, which includes children of various ages. See id. at 194-201. Lewis also helps
take care of her elderly mother, helps her teenager with homework, and takes care of her own
finances. The ALJ observed that Lewis’s reports indicate no limitations with regard to
“memory, completing tasks, concentration, understanding and following instructions, or getting
along with others.” Id. at 18. Moreover, the ALJ pointed out that Lewis had successfully
performed unskilled work for over ten years. Id. at 16.
The ALJ misquoted the Stone standard. Nevertheless, the ALJ pointed to record
evidence that supports the conclusion that Lewis’s borderline intellectual functioning has such
minimal effect on her as a person that it would not be expected to interfere with her ability to
work. As the ALJ correctly noted, record evidence shows that Lewis had, in fact, performed
substantial gainful activity for many years, despite any borderline intellectual functioning.
Accordingly, substantial evidence supports the ALJ’s decision on this issue, and Lewis’s
substantial rights were not violated by the ALJ misquoting the Stone standard. Even if the ALJ
erred in her application of Stone, “[p]rocedural perfection in administrative proceedings is not
required as long as the substantial rights of a party have not been affected.” Audler v. Astrue, 501
F.3d 446, 448 (5th Cir.2007) (citation and quotation marks omitted). Such procedural errors

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justify vacating “only if such improprieties would cast into doubt the existence of substantial
evidence to support the ALJ's decision.” Morris v. Bowen, 864 F.2d 333, 335 (5th Cir.1988); see
also Avery v. Colvin, 605 Fed. Appx. 278, 283 (5th Cir. 2015). As shown by the ALJ’s
discussion of the evidence, substantial evidence exists supporting the ALJ’s finding that her
borderline intellectual functioning does not meet “paragraph B” criteria. Because Plaintiff has
failed to show that she is so “functionally impaired by [her] mental impairment that [she] is
precluded from engaging in substantial gainful activity, . . .any error by the ALJ in not following
the procedures set out in Stone is harmless.” Taylor, 706 F.3d at 603.
Plaintiff now asserts, however, that she has never maintained that she has an intellectual
disability, but that, instead, her borderline intellectual functioning has resulted in deficits in
intellectual functioning which, according to Dr. Sandusky, limit her to a work environment that
involves “some type of repetitive motion or manual labor.” Plaintiff argues that the ALJ did not
consider Dr. Sandusky’s recommendation, and that the ALJ’s conclusion that she can perform
the full range of sedentary work, with her functional limitations as determined by Dr. Sandusky,
is “sheer speculation,” and thus, she was prejudiced by the ALJ’s conclusion on this issue.
To the contrary, the ALJ considered Dr. Sandusky’s report “against the whole of the
evidence” to find that it did not prevent her from performing the full range of sedentary work.
[7] at 16. The ALJ accepted the diagnosis of borderline intellectual functioning, but rejected its
implication that she could not perform the basic mental requirements of unskilled work. As the
ALJ correctly noted, Plaintiff had performed the basic mental requirements of unskilled work for
more than ten years. Accordingly, the ALJ essentially rejected the notion that Plaintiff’s
borderline intellectual functioning impacted her such that it would prevent her from performing

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the full range of sedentary work. Id. at 15-16, 18-19. Moreover, it appears to the undersigned
that the psychologist’s report intrudes into the realm of reaching a determination on Lewis’s
residual functional capacity. Under the regulations and our case law, the determination of
residual functional capacity is the sole responsibility of the ALJ. See Ripley v. Chater, 67 F.3d
552, 557 (5th Cir.1995). To be sure, what Lewis “characterizes as the ALJ substituting [her]
opinion [for that of the psychologist] is actually the ALJ properly interpreting the medical
evidence to determine [her] capacity for work.” Taylor, 706 F.3d at 602–603.
In sum, the record contains substantial evidence to support the ALJ’s finding that
Plaintiff’s borderline intellectual functioning does not qualify as a severe impairment, and that
her borderline intellectual functioning has not historically interfered with her ability to work.
Thus, the Court concludes that Plaintiff’s substantial rights have not been violated, and any error
by the ALJ in applying the Stone standard is harmless. Accordingly, the ALJ’s decision on this
issue must remain undisturbed by this Court.
B. Did the ALJ properly apply the grids?
Plaintiff argues that the ALJ improperly applied medical-vocational Rule 201.24 when
she found that Lewis is not disabled and has the capacity to perform the full range of sedentary
work. Rule 201.24 directs that a younger individual, age 18 to 44, with a limited or less
education, who is at least literate and able to communicate in English, and whose previous work
experience is unskilled or none, is not disabled. Lewis argues that her nonexertional
impairments significantly affect her residual functional capacity and, therefore, preclude use of
the grids.
In this case, the Fifth Circuit case law squarely supports the ALJ’s conclusion that Lewis

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is not disabled, according to Rule 201.24 of the grids. The Fifth Circuit has found that “belowaverage intelligence alone does not constitute a non-exertional impairment” that requires the
testimony by a vocational expert and precludes reliance on the grids. Johnson v. Sullivan, 894
F.2d 683, 686 (5th Cir. 1990). In another case, the Fifth Circuit found that a full scale IQ of 72
did not constitute “a non-exertional impairment rendering [claimant] entirely unable to perform
light or sedentary work.” Selders v. Sullivan, 914 F.2d 614, 619 (5th Cir. 1990).4
In the end, the “claimant must show that [she] is so functionally impaired by [her] mental
impairment that [she] is precluded from engaging in substantial gainful activity.” Taylor, 706
F.3d at 603. In this case, Lewis has failed to do so because the “record reflects that [claimant]
was able to, and did, work for several years while suffering from ailments she now asserts are
disabling.” Vaughan v. Shalala, 58 F.3d 129, 131 (5th Cir. 1995); see also Fraga v. Bowen, 810
F.2d 1296, 1305 & n.11 (5th Cir.1987) (ability to work despite pre-existing condition supports
ALJ's finding of not disabled). In sum, remand is not required since there is no evidence in the
record that Plaintiff’s claims of deficits in intellectual functioning are severe enough to prevent
her from holding substantial gainful employment. Taylor, 706 F.3d at 603.
VI. CONCLUSION
For the reasons discussed in this Memorandum Opinion and Order, the undersigned finds
that the ALJ’s decision that Lewis is not disabled is supported by substantial evidence.
Therefore, the undersigned finds that the Defendant’s Motion to Affirm Commissioner’s
Decision [13] should be granted, Plaintiff=s Motion [9] should be denied, and that this matter
should be dismissed with prejudice.

4. While Plaintiff places great emphasis on the report of the psychologist, Dr. Sandusky, the
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A separate judgment will be entered in accordance with Rule 58 of the Federal Rules of
Civil Procedure.
SO ORDERED, this the 20th day of March, 2017.
/s/ F. Keith Ball
UNITED STATES MAGISTRATE JUDGE

Court observes that the opinion is contrary to the Grids and is in conflict with Selders.
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