Barnes v. Colvin
ORDER adopting 14 Report and Recommendations, denying 9 Motion for Summary Judgment and granting 11 Motion to Affirm. Signed by District Judge Daniel P. Jordan, III on 2/22/17. (RRL)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF MISSISSIPPI
CIVIL ACTION NO. 3:15cv879-DPJ-JCG
CAROLYN W. COLVIN,
Commissioner, United States Social
This appeal from the final decision of the Social Security Administration denying
Plaintiff Willie Barnes’s claim for Supplemental Security Income payments is before the Court
on the Report and Recommendation  of United States Magistrate Judge John C. Gargiulo.
Judge Gargiulo recommended that the Court deny Barnes’s Motion for Summary Judgment 
and grant Defendant’s Motion to Affirm . Barnes timely filed Objections  to the Report
and Recommendation, and Defendant filed a Notice  indicating that she did not intend to
respond to the Objections. For the reasons that follow, the Court adopts as modified the Report
and Recommendation as the opinion of the Court.
Barnes argues that Judge Gargiulo incorrectly decided the sole issue involved in this
appeal: whether the ALJ employed an incorrect severity standard in assessing whether Barnes
suffers from a “severe” impairment or combination of impairments. Judge Gargiulo concluded
that the ALJ “cited and applied the correct legal standard and her decision is supported by
substantial evidence.” Report & Recommendation  at 9.
The ALJ in this case decided that Barnes is “not disabled” at the second step of the Social
Security Administration’s five-step sequential evaluation process. “At the second step, we
consider the medical severity of your impairment(s). If you do not have a severe medically
determinable physical or mental impairment . . . or a combination of impairments that is severe .
. . , we will find that you are not disabled.” 20 C.F.R. § 416.920(a)(4)(ii) (2016). The regulation
defines a severe impairment or combination of impairments as one “which significantly limits
your physical or mental ability to do basic work activities.” Id. § 416.920(c).
In Stone v. Heckler, the Fifth Circuit construed the regulation
as setting the following standard in determining whether a claimant’s impairment
is severe: “[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.”
752 F.2d 1099, 1101 (5th Cir. 1985) (quoting Estran v. Heckler, 745 F.2d 340 (5th Cir. 1984)).
The court went on to explain that courts in this circuit
will in the future assume that the ALJ and Appeals Council have applied an
incorrect standard to the severity requirement 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 [the regulation] is used.
Id. at 1106.
Here, the ALJ neither specifically cited Stone nor used its precise language, instead
describing the severity standard as follows:
An impairment or combination of impairments is “severe” within the meaning of
the regulations if it significantly limits an individual’s ability to perform basic
work activities. An impairment or combination of impairments is “not severe”
when medical and other evidence establish only a slight abnormality or a
combination of abnormalities that would have no more than a minimal effect on
an individual’s ability to work (20 CFR 416.921; Social Security Rulings (SSRs)
85-28, 96-3p, and 96-4p).
Admin. R.  at 16. Though the ALJ tracked the SSA regulations and rules she cited, Barnes
takes issue with that approach, contending that the ALJ’s articulated standard would find no
severity where there is “minimal effect” on the “ability to work,” whereas Stone allows no effect
on the ability to work. Pl.’s Objections  at 5.
Barnes’s argument is not without support and raises a tiresome dispute. Despite the Fifth
Circuit’s clear instructions in Stone, ALJs throughout the circuit continue to ignore the holding
and apply severity standards that are the same or similar to the one here. Not surprisingly, the
claimants often appeal, and the results have produced two diametrically opposed schools of
thought. Compare, e.g., Horn v. Colvin, No. G-15-126, 2017 WL 476740, at *2 (S.D. Tex. Feb.
3, 2017) (remanding because application of same standard used in this case was presumptively
incorrect and error was not harmless), with, e.g., Acosta v. Astrue, 865 F. Supp. 2d 767, 781
(W.D. Tex. 2012) (finding that this standard is correct) (collecting conflicting cases).
At the circuit level, the available authority does not directly resolve the dispute. Several
unpublished, and therefore non-binding, opinions seem to approve standards that are equivalent
to the one under review. For example, in Hutchinson v. Barnhart, the ALJ applied that standard
at step two. See Brief for Appellee, Hutchinson v. Barnhart, 45 F. App’x 323 (5th Cir. 2002)
(No. 99-60834), 2002 WL 32303908, at *12 (5th Cir. 2002). The claimant objected, but the
Fifth Circuit summarily held, “The ALJ applied the proper standard under Stone.” Hutchinson v.
Barnhart, No. 99-60834, 2002 WL 1860531, at *1 (5th Cir. June 27, 2002); see also Brunson v.
Astrue, 387 F. App’x 459, 461 (5th Cir. 2010) (holding that “[a]n impairment is severe if it
significantly limits an individual’s physical or mental abilities to do basic work activities; it is
not severe if it is a slight abnormality or combination of slight abnormalities that has no more
than a minimal effect on the claimant’s ability to do basic work activities”) (emphasis added)
(citing Stone, 752 F.2d at 1101); Joubert v. Astrue, 287 F. App’x 380, 382 (5th Cir. 2008)
(quoting Stone standard but holding that substantial evidence supported finding that impairments
“did not impose more than a slight limitation on her ability to perform basic work-related
activities”); Jones v. Barnhart, No. 01-11261, 2002 WL 761058, at *1 (5th Cir. Apr. 18 2002)
(observing that ALJ applied correct standard—whether claimant “suffer[ed] from a combination
of impairments which cause more than a slight abnormality on her ability to perform basic work
activities”) (emphasis added). Conversely, numerous Fifth Circuit opinions remanded cases in
which the ALJ deviated from Stone. See, e.g., Garza v. Heckler, 771 F.2d 871, 873 (5th Cir.
1985) (remanding for failure to follow Stone).
Regardless, the Fifth Circuit “does not require the use of ‘magic words’ for compliance
with Stone.” Lynch v. Shalala, No. 92-4119, 1994 WL 93270, at *3 (5th Cir. Mar. 9, 1994)
(quoting Hampton, 785 F.2d at 1311). And even assuming the ALJ erred, “procedural perfection
is not required unless it affects the substantial rights of a party.” Taylor v. Astrue, 706 F.3d 600,
603 (5th Cir. 2012). If “substantial evidence supports the finding of . . . non-severity,” then the
error was harmless. Id.; see also Charles v. Colvin, 628 F. App’x 290, 292 (5th Cir. 2016)
(applying harmless-error standard when ALJ failed to follow Stone (citing Taylor, 706 F.3d at
In this case, the ALJ’s initial description of the severity standard neither quoted Stone nor
used its exact language. But her analysis of the record indicates that she applied the proper
standard and that substantial evidence otherwise supports her conclusion that Barnes suffered no
severe impairments or combinations of impairments. To begin, the ALJ found that Barnes had
“normal physical capabilities during the period under consideration.” Admin. R.  at 20.
Barnes did report diabetes and hypertension, but she “was not found to have symptoms related to
those conditions or any end organ damage” and thus did “not experience more than minimal
limitations.” Id. In other words, as a factual matter, the ALJ detected no effect on the
Two Fifth Circuit cases state the harmless-error standard a different way, holding that
remand is proper “where there is no indication the ALJ applied the correct standard.” Hampton,
785 F.2d at 1311; see also Lynch, 1994 WL 93270, at *3.
individual, which she described as producing “no more than minimal limitations.” Similarly, the
ALJ considered Barnes’s cataracts, hyperopia, and presbyopia but found that Barnes “was able to
display visual acuity at 20/20 in both eyes.” Id.
In a separate paragraph, the ALJ revisited the hypertension issue along with
hyperlipidemia, hypercholerolemia, upper respiratory infection, sinusitis, allergic rhinitis, and
bronhchitis. Id. But the ALJ concluded that those conditions did not “persist[ ] at a level that
caused more than minimal functional limitations for a time-period sufficient for a finding of
severity.” Id. (emphasis added). On these issues, the ALJ focused on duration. And, as noted
above, the ALJ previously concluded that the hypertension was asymptomatic and that Barnes
had “normal physical capabilities.” Id. So as to these alleged physical impairments, the factual
findings would support a conclusion that Barnes suffered no severe impairments; those findings
are supported by substantial evidence.
Finally, the ALJ considered Barnes’s mental impairments, noting first a May 2010
evaluation during which Barnes showed low-average intellectual functioning but also signs of
malingering, which caused the examiner to withhold any assessment. Id. at 21. Nevertheless,
the ALJ found a “medically determinable mental impairment” and “considered the four broad
functional areas [for mental impairments] set out in the disability regulations for evaluating
mental disorders and in section 12.00C of the Listing of Impairments (20 CFR, Part 404, Subpart
P, Appendix 1).” Id. In other words, she followed the “technique.”
As to the first, second, and fourth criteria, the ALJ found either “no limitation” or that
“no episodes” had occurred. Id. at 21–22. Regarding the third criterion—concentration,
persistence or pace—the ALJ concluded that Barnes “has no more than mild limitation in this
area.” Id. at 22. The opinion regarding the third criterion examined the effect on the individual,
as opposed to the effect on the ability to work, and found it was mild. The ALJ therefore
concluded that the mental impairment was not severe. That finding is consistent with Stone and
the regulations. See Walker v. Colvin, No. 3:14-CV-1498-L (BH), 2015 WL 5836263, at *12
(N.D. Tex. Sept. 30, 2015) (collecting cases).
Given this record and these findings, it is hard to understand why the ALJ would risk
reversal by failing to cite Stone. See Lynch, 1994 WL 93270, at *3 (noting that “direct reference
to Stone would have been preferable”). Following Stone would have saved the Court and the
litigants considerable time and expense. Nevertheless, the Court finds, “by implication, no
severe impairment during the relevant period.” Id. Accordingly, even if the ALJ applied the
wrong standard, any error was harmless.2
It is therefore ordered that the Report and Recommendation  of United States
Magistrate Judge John C. Gargiulo is adopted as the opinion of the Court as modified by this
Order. Barnes’s Motion for Summary Judgment  is denied; Defendant’s Motion to Affirm
 is granted; the decision of the Social Security Administration is affirmed; and this appeal is
dismissed with prejudice. A separate judgment will be entered in accordance with Federal Rule
of Civil Procedure 58.
SO ORDERED AND ADJUDGED this the 22nd day of February, 2017.
s/ Daniel P. Jordan III
UNITED STATES DISTRICT JUDGE
Based on the inconsistent ways courts apply Stone, it might be time to take another
look. Much has happened since 1985, and some clarification would help.
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