Sullivan v. Astrue

Filing 34

Memorandum Opinion and Order re: 28 Plaintiff's Motion for Summary Judgement; and 32 Defendant's Motion for Summary Judgment. Plaintiff's motion is GRANTED in part, Defendant's motion is DENIED, and the case is REMANDED to the Commissioner for further proceedings. (Ordered by Magistrate Judge Irma Carrillo Ramirez on 3/31/2014) (mcrd)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
KAREN SUE SULLIVAN,
Plaintiff,
v.
CAROLYN W. COLVIN, ACTING
COMMISSIONER OF THE SOCIAL
SECURITY ADMINISTRATION,
Defendant.

§
§
§
§
§
§
§
§
§
§

Civil Action No. 3:12-CV-04460-BH

Consent Case

MEMORANDUM OPINION AND ORDER
By order filed January 15, 2013, this matter has been transferred for the conduct of all further
proceedings and the entry of judgment. Before the Court are Plaintiff’s Motion for Summary
Judgement, filed March 24, 2013 (doc. 28), and Defendant’s Motion for Summary Judgment, filed
May 1, 2013 (doc. 32). Based on the relevant filings, evidence, and applicable law, Plaintiff’s
motion is GRANTED in part, Defendant’s motion is DENIED, and the case is REMANDED to
the Commissioner for further proceedings.
I. BACKGROUND1
A.

Procedural History
Karen Sue Sullivan (Plaintiff) seeks judicial review of a final decision by the Commissioner

of Social Security (Commissioner) denying his claim for disability insurance benefits (DIB) and
supplemental security income (SSI) under Titles II and XVI of the Social Security Act. (R. at 1–3.)
On June 29, 2006, Plaintiff applied for DBI and SSI, alleging disability beginning on August 31,
2005, due to osteoarthritis, the inability to sit or stand for long, numbness in her hands and arms,

1

The background information is summarized from the record of the administrative proceedings, which is
designated as “R.”

poor eyesight, back pain, depression, muscle spasms and cramping, nerve damage, and stiff neck.
(R. at 173, 189, 209.) Her applications were denied initially and upon reconsideration. (R. at 76–78,
89–96, 98–103.) Plaintiff requested a hearing before an Administrative Law Judge (ALJ), and she
personally appeared and testified at a hearing held on October 23, 2008. (R. at 9–71.) On
November 26, 2008, the ALJ issued his decision finding Plaintiff not disabled. (R. at 79–88.)
Plaintiff requested review of the ALJ’s decision, and the Appeals Council denied her request on May
1, 2009, making the ALJ’s decision the final decision of the Commissioner. (R. at 1–3.) She
appealed the Commissioner’s decision in federal court pursuant to 42 U.S.C. § 405(g), and on
February 8, 2010, the court remanded the case for further proceedings.2 (R. at 489–91.)
On remand, the same ALJ held another hearing on November 17, 2010. (R. at 394–517.)
On January 13, 2011, the ALJ issued his decision finding Plaintiff not disabled. (R. at 502–13.) The
Appeals Council again denied Plaintiff’s request for review on September 8, 2012, making the ALJ’s
decision the final decision of the Commissioner. (R. at 518–20.) Plaintiff now appeals the
Commissioner’s decision pursuant to 42 U.S.C. § 405(g). (doc. 1.)
B.

Factual History
1.

Age, Education, and Work Experience

Plaintiff was born on November 20, 1956; she was 53 years old at the time of the second
hearing before the ALJ. (R. at 398.) She has a general equivalency degree (GED), and past relevant
work as a retail marker, a landscaping nursery manager, and a nursery and horticulture salesperson.
(R. at 399, 470–74.)

2
The Commissioner also requested a remand on grounds that reconsideration of Plaintiff’s past relevant work
was necessary. (R. at 492–93.)

-2-

2.

Medical Evidence2

Plaintiff visited Kaufman Community Health Center (Health Center) on June 20, 2006, for
a consultation with Brad White, M.D., her family medicine physician. (R. at 340.) Dr. White
diagnosed her with herpes II, osteoarthritis, and chronic bronchitis, and he prescribed her medication
and ordered laboratory testing. (Id.)
On September 6, 2006, Plaintiff saw Mohiudin A. Zeb, M.D., an internal medicine specialist
and consultative examiner for disability determination services, for a consultative examination. (R.
at 242–43.) Dr. Zeb noted that Plaintiff had no history of high blood pressure or diabetes mellitus.
(R. at 242.) Plaintiff told him that she had high cholesterol and was taking medication. (Id.) His
initial assessments were back pain, history of lipid disorder, history of depression, and history of
bronchitis. (Id.) Upon a physical examination, he observed that she walked with a normal gait,
could walk on her toes and in tandem, had difficulty walking on her heel and squatting, was unable
to hop, and did not use assistive devices. (Id.) Her grip was normal and she could “reach, handle,
and feel okay.” (Id.) Dr. Zeb noted that she could sit for 20 minutes, stand for 20 minutes, “move
about,” lift and carry about 5 pounds, handle objects, and “hear and speak okay.” (Id.) X-rays of
her lumbar spine taken that day revealed moderate loss of disk height at L5-S1, consistent with
degenerative disk disease, but was “otherwise normal.” (R. at 241.)
Plaintiff returned to Health Center on September 14, 2006, and reported feeling better with
her medication, but continued having weakness in her legs and insomnia. (R. at 380.) Dr. White
noted her history of chronic obstructive pulmonary disease (COPD), high cholesterol, depression
and coronary artery disease (CAD), and he continued her medications. (Id.)
2
Because the resolution of this case involves Plaintiff’s physical impairments, only the medical evidence is
included in this summary.

-3-

On October 26, 2006, Yvonne Post, D.O., a state agency medical consultant (SAMC),
reviewed Plaintiff’s medical records and completed a consultative physical residual functional
capacity (RFC) assessment. (R. at 265–72.) She listed Plaintiff’s primary diagnosis as back pain
and her secondary diagnosis as hypercholesterolemia. (R. at 265.) She determined that Plaintiff had
the following physical RFC: lift and carry 20 pounds occasionally and 10 pounds frequently; stand,
walk, and sit for about 6 hours in an 8-hour workday; push and pull an unlimited amount of weight
with hand and foot controls; and no postural, manipulative, visual, communicative, or environmental
limitations. (R. at 266–69.) Dr. Post noted that Plaintiff had not received any treatment for her
alleged back impairment. (R. at 272.) She also referenced Dr. Zeb’s consultative findings from the
previous month. (Id.) Dr. Post’s assessment was reviewed and fully affirmed a few months later
by John Durfor, M.D., another SAMC. (R. at 273.)
On October 31, 2006, Plaintiff’s “chief complaint” was her lower back and neck pain. (R.
at 378–79.) She told Dr. White that she also experienced “cramping” in her legs that caused her
difficulty moving and walking. (R. at 378.) Her pain started in her mid and lower neck and radiated
down her buttocks, arms, and legs. (Id.) She rated her pain at 10 on a 10-point scale and described
it as “sharp, burning, and stabbing.” (Id.) Activity worsened her pain and “resting” eased it. (Id.)
Dr. White diagnosed her with COPD, mixed hyperlipidemia, sprain of neck, and sprain of the
lumbar region, and he prescribed her medication and ordered X-rays. (R. at 378–79.) Plaintiff saw
Dr. White again the next day and complained of fatigue, weakness in her legs while walking,
insomnia, cough, and anxiety. (R. at 381.)
The following month, another physician at Health Center diagnosed her with cervical and
thoracic paraspinal spasm. (R. at 339.)

-4-

On November 14, 2006, Dr. White examined Plaintiff’s spine and found that she had normal
lumbar lordosis, no spasm or tenderness, and a full range of motion “without limitation or
restriction.” (R. at 375–76.) Straight leg raises were negative, and she showed no “Hoover” signs
of leg paresis. (Id.) He diagnosed her with depressive disorder, unspecified idiopathic peripheral
neuropathy, COPD, muscle spasm, myalgia and myositis, and he continued her medications. (R. at
375–76.)
By December 1, 2006, Plaintiff was complaining of leg cramps. (R. at 371.) She told Dr.
White that she “bent over” the day before and was “barely . . . able to stand back up.” (Id.) Her
lower back was “hurting real bad”, and the pain radiated down to her legs and hips. (Id.) Upon
examination, Dr. White found that she had sinus pain and pressure, nasal obstruction and congestion,
and a cough. (R. at 371–72.) She had “tenderness to palpation of the lumbar spine,” “evidence of
paraspinal muscle spasm,” and “decreased” sensation to touch. (R. at 372.) Dr. White ordered a
magnetic resonance imaging (MRI) of her lower spine. (R. at 373.)
A few days later, Plaintiff returned to Health Center complaining of fatigue, headaches,
hoarseness in her throat, sinusitis, nasal discharge and obstruction, and nasal congestion. (R. at
287.) Among other things, Dr. White diagnosed her with “chronic airway obstruction.” (R. at 288.)
Throughout January 2007, Plaintiff’s chronic airway obstruction was a recurrent condition, and Dr.
White noted prescribed her Advair to control her symptoms. (R. at 278, 302–03.) On April 4, 2007,
Plaintiff’s complaints to Dr. White included fatigue, lethargy, constant pain, and a chronic cough.
(R. at 317, 360.) Dr. White referred her to a neurologist. (R. at 360.) Three months later, she
complained of dizziness, stomach pain, chronic cough, and numbness and paresthesias in her hands
and feet, and stated that she’d had no improvement since her last visit. (R. at 313–14.)

-5-

On September 13, 2007, Plaintiff complained of dizziness, pelvic pain, and nasal congestion.
(R. at 308.) Upon a physical examination, Dr. White found that her heart rate was normal, but her
heart rhythm was “irregular” with a “murmur.” (Id.) Although her breathing was effortless and
normal, her breathing sounds “were diminished bilaterally.” (Id.)
Plaintiff presented to Albert Lea Medical Center/Mayo Health System (Mayo Clinic) for the
first time on September 2, 2009, “to establish new provider care” after she moved from Texas to
Minnesota. (R. at 632–33, 649.) On November 22, 2009, she was taken by ambulance to the
emergency room at Mayo Clinic because she was experiencing severe chest pain. (R. at 632, 669.)
She reported “tightness and squeezing across [her] upper chest,” nausea and “mild vomiting,” nasal
congestion, and “difficulty breathing.” (R. at 626.) X-rays showed “equivocal findings,” and the
radiologist noted that “a small subtle infiltrate” in her right lung could “not be ruled out.” (R. at
669.) Steven K. Wiese, M.D., the attending physician, diagnosed her with atypical chest pain and
acute bronchitis, prescribed medication, and discharged her in a stable condition. (R. at 627–28.)
Plaintiff returned to the Mayo Clinic on December 16, 2009, with allegations of numbness
and pain in her feet and legs. (R. at 621.) She told Duard Birkhofer, M.D., a Mayo Clinic physician,
that her symptoms had worsened over the past two or three years. (Id.) He opined that she had a
“high risk for chronic peripheral neuropathy” due to her long smoking history and referred her to
a neurologist. (Id.) He also advised her to stop smoking and gave her information about an
assistance program. (Id.) A few days later, Nathan Young, M.D., a specialist in neurology, opined
that the cause of Plaintiff’s pain and numbness in her extremities was “probably small fiber
peripheral neuropathy with polypharmacy, Parkinsonism, and anxiety/depression.” (R. at 617.)

-6-

By February 24, 2010, Plaintiff’s “chronic pain syndrome” was not improving. (R. at
613–14.) She told a Mayo Clinic physician that she felt pain, “muscle tightness,” “cramping,” and
weakness “all over.” (R. at 613.) She saw Eun Jong Kim, another neurologist, on March 2, 2010,
for further evaluation. (R. at 599–602.) Dr. Kim’s differential diagnoses included chronic pain,
muscle spasms, peripheral neuropathy (not otherwise specified), and skin sensation disturbance. (R.
at 599.) An electromyography (EMG) revealed “no abnormal spontaneous activity” in her muscles
and “no electrophysiologic evidence” of neuropathy.

(R. at 589.)

Dr. Kim did note

“electrophysiologic evidence of [] mild focal median neuropathy” in her left wrist and prescribed
her a “night splint.” (Id.) Two months later, Jason H. Szostek, M.D., a specialist in internal
medicine, reviewed Plaintiff’s EMG and conducted a MRI. (R. at 679.) His “final diagnoses” were
elevated hemoglobin, “probable sensory neuropathy,” and “possible cerebellar atrophy.” (R. at 672.)
Dr. Birkhofer examined Plaintiff on June 28, 2010, because she was again experiencing chest
discomfort. (R. at 954.) He noted her history of COPD and listed her “current problems” as chest
pain, hyperlipidemia, nicotine dependence, and hypertension. (R. at 960.) On September 3, 2010,
Plaintiff presented to the Mayo Clinic for a consultation regarding pain in her right shoulder. (R.
at 947.) She told Dr. Birkhofer that she had injured her shoulder during a fall the previous month,
but she did not seek medical attention because she did not have health insurance. (Id.) Dr. Birkhofer
found that she had tenderness in her right shoulder and deltoid and a fairly good range of motion,
“but at about 80 degrees [her shoulder] start[ed] to lock up.” (Id.) He diagnosed her with possible
rotator cuff or deltoid strain and discussed the possibility of physical therapy. (Id.) Two weeks
later, her shoulder continued to be painful with movement and lifting. (R. at 935.)
On October 27, 2010, Mark Ciota, M.D., found that an MRI of Plaintiff’s right shoulder

-7-

showed no rotator cuff tearing, but did reveal “some tendinosis.” (R. at 907.) Dr. Ciota prescribed
her medication and referred her to physical therapy three times a week for six weeks. (R. at 907,
1528.) She presented for physical therapy on December 3, 2010. (R. at 1524–25.) She told Renee
Ruble, the physical therapist, that she had constant pain in her right shoulder, which was her
“dominant arm,” and rated her pain at 5 on a 10-point scale. (R. at 1524.) She had difficulty
completing her daily living activities, such as dressing and grooming, because movement
exacerbated her pain. (Id.) She later told another therapist that she experienced relief from her pain
after her therapy sessions, but it did “not last for very long.” (R. at 1523.) The therapist noted that
she was unable to perform even 3 repetitions of a given exercise because it “was too painful.” (Id.)
During a follow up consultation with Dr. Ciota on December 20, 2010, Plaintiff complained that her
pain was not “getting any better.” (R. at 890.) Dr. Ciota opined that Plaintiff showed “impingementtype” symptoms in her right shoulder, administered a steroid injection, and discussed other treatment
options, including surgery. (Id.) On January 28, 2011, Plaintiff stopped attending physical therapy
due to “transportation issues.” (R. at 1522.) The therapist noted her goals were only “partially met”
and her pain had not decreased “enough to allow improved ease with her daily tasks.” (Id.)
3.

Hearing Testimony

On November 17, 2010, Plaintiff, a psychological expert (PE), a medical expert (ME), and
a vocational expert (VE) testified at a hearing before the ALJ. (R. at 394–488.) Plaintiff was
represented by an attorney. (R. at 394.)
a.

Plaintiff’s Testimony

Plaintiff testified that she lived in Minnesota, was 53 years old, was separated, and had one
child under 18. (R. at 398.) She did not complete high school but had a GED. (R. at 399.) She was

-8-

5 feet 7 inches tall, weighed 175 pounds, and was right-handed.

(Id.)

Plaintiff last worked in September 2005 making heater components at a manufacturing plant
in Terrell, Texas. (R. at 400.) She worked there for only two weeks because that was all she “could
handle.” (Id.) Before that, she worked for “Commercial Conversions” placing barcodes on store
shelves. (R. at 400–01.) At some point, she also worked for a company connecting “DSL services
to different businesses.” (R. at 402.) From October 2004 to February 2005, she worked “doing
wiring,” and before that, she worked for a landscaping company watering plants and loading/
unloading trucks. (R. at 402–03.) The most she lifted at the landscaping job was 15 pounds. (R. at
403.) From 1993 to 1994, she “worked in quality control in manufacturing.” (R. at 407.)
Plaintiff stopped working in 2005 because she had carpal tunnel syndrome and just “couldn’t
continue” doing the job. (R. at 409.) She experienced numbing and tingling in her fingers, feet,
toes, and legs as a result of her neuropathy. (R. at 411.) She was diagnosed and treated for
depression, but was later diagnosed with bipolar disorder. (R. at 412.) She took medications for her
neuropathy, muscle spasms, and bipolar disorder. (R. at 413–14.)
Plaintiff had “problems with walking”; when she “walk[ed] a certain distance, [her] legs []
cramp[ed] up.” (Id.) She could not even walk one city block due to the leg cramps. (R. at 416.)
Her doctors told her that her leg cramps were caused by her “bad circulation” and neuropathy. (Id.)
On a typical day, she did not “really do much of anything” and spent “a lot of time lying in bed.”
(Id.) She could bathe and dress herself. (Id.) If she sat for more than 20 minutes, she “started
getting numb and tingly” from her “hips down.” (Id.) She could stand for only 15 minutes at a time
and lift about a gallon of milk. (R. at 418–19.)

-9-

Plaintiff saw her doctors at the Mayo Clinic at least once a week and saw her psychologist
once a month. (R. at 421.) One doctor diagnosed her with chronic fibromyalgia. (R. at 424.) Her
neuropathy caused her numbness, tingling, stabbing pain, and a feeling of “ice picks” that made it
difficult for her to feel objects with her hands. (R. at 425.) She developed carpal tunnel syndrome
in her right wrist from working at an assembly line and underwent corrective surgery. (R. at 426.)
Plaintiff ate out “once every two months.” (R. at 427.) She did not attend church or any
other type of “social gatherings.” (R. at 428.) She tried helping with the house chores and
occasionally washed the dishes. (Id.) On the days when she felt neither “good” nor “bad,” she
“[g]ot on the computer,” emailed some friends, and “might try to walk to the post office,” which was
about one city block away from her house. (R. at 429.)
Plaintiff felt pain all over her body, both in her joints and muscles. (R. at 431.) Her
osteoarthritis was worse in her knees and fingers. (R. at 432.) Her cramps affected all of her body,
even her jaw. (Id.) She had recently fallen and injured her rotator cuff in her right shoulder, and
she was “waiting” to undergo “some physical therapy.” (R. at 433.) She could not even raise her
right arm up to her shoulder or reach out in front of her to grab objects and “put them in a box”
because it was “extremely painful.” (R. at 433–34.) She did not have any trouble with her left hand.
(R. at 434.)
She started having back pain when she was in her “early 20s” due to a “herniated disk.” (R.
at 435.) A consultative examiner found that she could sit for 20 minutes, stand for 20 minutes, and
carry up to 5 pounds. (Id.) In response to counsel’s question, she stated that she could perform a
job where she had the option to “alternate” between “sitting and standing” for 6 hours of an 8-hour
workday, but she “would always [have to] push [herself].” (R. at 439–41.) She could “possibly”

-10-

lift 10 pounds. (R. at 441.) She would “most likely” need to take a 15-minute break every hour.
(R. at 441–42.) She could not work for 8 hours “without having to lie down” “for a few hours” “at
some point.” (R. at 442.)3
b.

PE’s Testimony

According to the PE, treatment records showed that Plaintiff was first diagnosed with major
depression and later with bipolar disorder. (R. at 452.) There was also “a mention of anxiety
disorder”, but he opined that such a diagnosis was “not fully supported” because “the rest of the
record [did] not address [it] at all.” (Id.) He opined that Plaintiff’s diagnosis of bipolar disorder was
correct based on the SAMC’s findings on the psychiatric review technique form. (R. at 454–60.)
In response to counsel’s question, he explained that a global assessment of functioning (GAF) score
“reflects a subjective judgment of the person’s overall functioning at or about the time the doctor
observes” the person.

(R. at 465.)

“The GAF does not directly correlate with disability

determination,” but functions only “as a clinical benchmark.” (Id.) In the PE’s view, a GAF score
was “not a reliable tool” because research showed that treatment providers “varied greatly” in their
assessment methods, and the assessment provides only “a snapshot” of the person. (R. at 466–67.)
c.

ME’s Testimony

The ME, “a semi-retired internist,” testified that X-rays of Plaintiff’s lumbar spine showed
“considerable narrowing” at the L5-S1 level, but the differential diagnoses of fibromyalgia and
neuropathy were never confirmed because an EMG and nerve conduction tests “were negative.” (R.
at 444.) Consequently, her doctors “couldn’t really come to a specific conclusion as to the cause
of her numbness and tingling”; they only “speculated about what the diagnosis [was].” (R. at 444,
3
At this point, the ALJ explained that the Appeals Council’s reasons for remand was to determine whether
Plaintiff’s past employment could be considered “past relevant work” and to “update the medical record.” (R. at 436.)

-11-

448.) He explained that neuropathy “is a degeneration of peripheral nerves” and is constant,
meaning that “it’s not something that comes and goes.” (R. at 445.) Plaintiff’s symptoms were not
constant; she testified for example, that she “began” to feel numb after sitting for 20 minutes. (Id.)
The ME opined that Plaintiff had “lumbar spondylosis,” and on that basis, he was “willing to give
her a full light RFC.” (R. at 446.)
The ME did not adopt Dr. Zeb’s consultative findings in September 2006 that Plaintiff could
sit for 20 minutes, stand for 20 minutes, and carry 5 pounds because Dr. Zeb did not “document the
justification for those restrictions” with objective medical evidence. (R. at 447.) Lastly, the ME
noted Plaintiff’s “peculiar family history [of] Ptosis and odd neurologic things.”
d.

VE’s Testimony

The VE classified Plaintiff’s past relevant work as a landscaping nursery manager (light,
skilled, SVP-8) and horticulture sales person (light, semi-skilled, SVP-4). (R. at 470–80.) The ALJ
asked the VE to opine whether a hypothetical person with Plaintiff’s age, education, and work
experience could perform her past relevant work if she had the following RFC: perform full light
work; understand and do simple, “but not complex or detailed” tasks; and have “no problem working
with [the] public, coworkers, or supervisors.” (R. at 480.) The VE initially opined that the person
could perform Plaintiff’s past relevant work as a “retail marker,” but upon further inquiry by
counsel, he clarified that the retail marker position did not constitute significant gainful activity
(SGA) and therefore was not past relevant work. (R. at 480, 483.)
The ALJ modified the hypothetical to include the following limitations: walk for less than
one city block; sit for only 20 minutes at a time; stand for only 15 minutes at a time; and lift no more
than a gallon of milk. (R. at 481.) The VE opined that the person could not perform any of

-12-

Plaintiff’s past relevant work or any other job in the national economy. (Id.) When the ALJ asked
the VE to opine whether the first hypothetical person could perform other jobs in the national
economy, the VE testified that the person could perform the jobs of ticket seller (light, unskilled,
SVP-2), with 90,000 jobs in Texas and 1,000,000 jobs in the national economy; cashier II (light,
unskilled, SVP-2), with 90,000 jobs in Texas and 1,000,000 jobs in the national economy; and
cafeteria attendant (light, unskilled, SVP-2), with 6,000 jobs in Texas and 71,000 jobs in the national
economy. (R. at 484–85.)
In response to counsel’s question, the VE stated that the ticket seller job had a “sit-stand”
option, and “sometimes” the cashier job had that option as well. (R. at 485.) Since all three jobs
listed by the VE were unskilled, there was “no need” for the person in the first hypothetical to have
“transferable” skills. (R. at 486.) When counsel added the limitations to stand for 20 minutes and
sit for 20 minutes, the VE testified that the person would be unable to maintain competitive
employment. (Id.) The requirement to take a 15-minute break every hour to lie down would also
preclude competitive employment. (R. at 487.)
C.

ALJ’s Findings
The ALJ issued his decision denying benefits on January 13, 2011. (R. at 502–13.) At step

one, he found that Plaintiff had not engaged in SGA since her alleged onset date of August 31, 2005.
(R. at 504.) At step two, he found that Plaintiff had three severe impairments: lumbar spondylosis,
carpal tunnel release, and depressive disorder. (Id.) Despite those impairments, at step three, the
ALJ determined that Plaintiff did not have an impairment or combination of impairments that met
or medically equaled any impairment listed in the regulations. (R. at 505–09.)

-13-

Before proceeding to step four, the ALJ determined that Plaintiff had following RFC:
perform less than the full range of light work as defined by 20 C.F.R. §§ 404.1567(b), 416.967(b);
lift and carry 10 pounds frequently and 20 pounds occasionally; stand, walk, and sit for 6 hours in
an 8-hour workday; and do simple, “but not complex or detailed,” tasks. (R. at 509.) At step four,
with the VE’s testimony, the ALJ determined that Plaintiff could not perform her past relevant work.
(R. at 512.) At step five, also based on the VE’s testimony, the ALJ determined that Plaintiff could
perform other jobs existing in significant numbers in the national economy, such as ticket seller,
cashier II, and cafeteria attendant. (R. at 513.) Accordingly, the ALJ concluded that Plaintiff was
not disabled, as the term is defined under the Social Security Act, at any time between her alleged
onset date and the date of the ALJ’s decision. (Id.)
II.
A.

ANALYSIS

Legal Standards
1.

Standard of Review

Judicial review of the commissioner’s denial of benefits is limited to whether the
Commissioner’s position is supported by substantial evidence and whether the Commissioner
applied proper legal standards in evaluating the evidence. Greenspan v. Shalala, 38 F.3d 232, 236
(5th Cir. 1994); 42 U.S.C. § 405(g), 1383(c)(3). Substantial evidence is defined as more than a
scintilla, less than a preponderance, and as being such relevant and sufficient evidence as a
reasonable mind might accept as adequate to support a conclusion. Leggett v. Chater, 67 F.3d 558,
564 (5th Cir. 1995). In applying the substantial evidence standard, the reviewing court does not
reweigh the evidence, retry the issues, or substitute its own judgment, but rather, scrutinizes the
record to determine whether substantial evidence supports the Commissioner’s decision. Greenspan,

-14-

38 F.3d at 236. A finding of no substantial evidence is appropriate only if there is a conspicuous
absence of credible evidentiary choices or contrary medical findings to support the Commissioner’s
decision. Johnson v. Bowen, 864 F.2d 340, 343-44 (5th Cir. 1988).
The scope of judicial review of a decision under the supplemental security income program
is identical to that of a decision under the social security disability program. Davis v. Heckler, 759
F.2d 432, 435 (5th Cir. 1985). Moreover, the relevant law and regulations governing the
determination of disability under a claim for disability insurance benefits are identical to those
governing the determination under a claim for supplemental security income. See Id. The Court may
rely on decisions in both areas, without distinction, when reviewing an ALJ’s decision. Id.
2.

Disability Determination

To be entitled to social security benefits, a claimant must prove he or she is disabled as
defined by the Social Security Act. Leggett, 67 F.3d at 563-64; Abshire v. Bowen, 848 F.2d 638, 640
(5th Cir. 1988). The definition of disability under the Social Security Act is “the inability to engage
in any substantial gainful activity by reason of any medically determinable physical or mentla
impairment which can be expected to result in death or which has lasted or can be expected to last
for a continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A); Anthony v. Sullivan,
954 F.2d 189, 292 (5th Cir. 1992).
The Commissioner utilizes a sequential five-step inquiry to determine whether a claimant
is disabled:
1.

An individual who is working and engaging in substantial gainful activity
will not be found disabled regardless of medical findings.

2.

An individual who does not have a “severe impairment” will not be found to
be disabled.

-15-

3.

An individual who “meets or equals a listed impairment in Appendix 1” will
not be found to be disabled.

4.

If an individual is capable of performing the work he had done in the past, a
finding of “not disabled” must be made.

5.

If an individual’s impairment precludes him from performing his work, other
factors including age, education, past work experience, and residual
functional capacity must be considered to determine if work can be
performed.

Wren v. Sullivan, 925 F.2d 123, 125 (5th Cir. 1991) (per curiam) (summarizing 20 C.F.R.
§ 404.1520(b)-(f)) (currently 20 C.F.R. § 404.1520(a)(4)(i)-(v) (2012)). Under the first four steps
of the analysis, the burden lies with the claimant to prove disability. Leggett, 67 F.3d at 564. The
analysis terminates if the Commissioner determines at any point during the first four steps that the
claimant is disabled or is not disabled. Id. Once the claimant satisfies his or her burden under the
first four steps, the burden shifts to the Commissioner at step five to show there is other gainful
employment available in the national economy that the claimant is capable of performing.
Greendspan, 38 F.3d at 236. This burden may be satisfied either by reference to the MedicalVocational Guidelines of the regulations, by vocational expert testimony, or other similar evidence.
Froga v. Bowen, 810 F.2d 1296, 1304 (5th Cir. 1987). A finding that a claimant is not disabled at
any point in the five-step review is conclusive and terminates the analysis. Lovelace v. Bowen, 813
F.2d 55, 58 (5th Cir. 1987).
3.

Standard for Finding of Entitlement to Benefits
As an alternative to remand, Plaintiff asks the Court to reverse the case “for an immediate

award of benefits.” (Pl. Br. at 18.)
If an ALJ’s decision is not supported by substantial evidence, the case may be remanded
“with the instruction to make an award if the record enables the court to determine definitively that
-16-

the claimant is entitled to benefits.” Armstrong v. Astrue, No. 1:08-CV-045-C, 2009 WL 3029772,
at *10 (N.D. Tex. Sept. 22, 2009). The claimant must carry “the very high burden of establishing
‘disability without any doubt.’” Id. at *11 (citation omitted). The Commissioner, not the court,
resolves evidentiary conflicts. Newton v. Apfel, 209 F.3d 448, 452 (5th Cir. 2000). Inconsistencies
and unresolved issues in the record therefore preclude an immediate award of benefits. Wells v.
Barnhart, 127 F. App’x 717, 718 (5th Cir. 2005) (per curiam).
B.

Issues for Review
Plaintiff presents four issues for review:
(1) The ALJ failed to evaluate the severity of several of [Plaintiff’s] medically determinable
impairments.;
(2) The ALJ’s residual functional capacity determination failed to include all of [Plaintiff’s]
mental limitations and was not supported by substantial evidence.;
(3) The ALJ failed to include all of [Plaintiff’s] physical limitations in the residual functional
capacity determination.; [and]
(4) The evidence clearly establishes that [Plaintiff] was, at the very least, limited to
performing less than a full range of sedentary work. Thus, the ALJ failed to include all of
her limitations in the hypothetical question posed to the vocational expert, and pursuant to
the Medical -Vocational Guidelines (Grids), she was disabled as a matter of law beginning
on her fiftieth birthday.

(Pl. Br. at 1.)
C.

Stone (De Minimis) Standard
Plaintiff argues that remand is required because the ALJ “did not correctly apply” the Stone

severity standard “in evaluating the severity of all of [Plaintiff’s] medically determinable
impairments” at step two. (Pl. Br. at 3.) She claims that if the ALJ had used the Stone severity
standard, he would have recognized as severe her “peripheral neuropathy, chronic obstructive
pulmonary disease, and right shoulder impingement.” (Id. at 3–4.)
-17-

1.

Stone Error

Pursuant to the Commissioner’s regulations, a severe impairment is “any impairment or
combination of impairments which significantly limits [a claimant’s] physical or mental ability to
do basic work activities.” 20 C.F.R. § 404.1520(c) (2012). The Fifth Circuit has held that an
impairment is 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.” Stone v.
Heckler, 752 F.2d 1099, 1101, 1104-05 (5th Cir. 1985). “Because a determination [of] whether an
impairment[] is severe requires an assessment of the functionally limiting effects of an impairment[],
[all] symptom-related limitations and restrictions must be considered at this step.” Social Security
Ruling (SSR) 96-3P, 1996 WL 374181, at *2 (S.S.A. July 2, 1996). Ultimately, the determination
of severity may not be “made without regard to the individual’s ability to perform substantial gainful
activity.” Id. at 1104.
To ensure that the regulatory standard for severity does not limit a claimant’s rights, the Fifth
Circuit held in Stone that it would 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 20 C.F.R. § 404.1520(c) [(2012)] is used.” Id. at 1106; see also Loza v. Apfel, 219 F.3d 378, 393
(5th Cir. 2000). Notwithstanding this presumption, however, courts must look beyond the use of
“magic words” and determine whether the ALJ applied the correct severity standard. Hampton v.
Bowen, 785 F.2d 1308, 1311 (5th Cir. 1986).
Here, in reciting the applicable law, the ALJ stated that “[a]n impairment or combination of
impairments is ‘severe’ within the meaning of the regulations if it significantly limits an individual’s

-18-

ability to perform basic work activities.” (R. at 503) (citing to 20 C.F.R. § 404.1520(c)). He further
stated that an impairment or combination of impairment is “not severe” “when medical and other
evidence establish only a slight abnormality or combination of slight abnormalities that would have
no more than a minimal effect on an individual’s ability to work.” (Id.) (citing 20 C.F.R. §§
404.1521 and 416.921) (emphasis added). The ALJ did not cite Stone anywhere in his decision.
(See R. at 502–13.)
Courts in this district have construed the language of 20 C.F.R. § 404.1521, cited by the ALJ
in this case, as “indicat[in]g that the impairment [can] have, ‘at most, a minimal effect on a
claimant’s ability to work.” See, e.g., Middleton v. Colvin, No. 3:13-CV-2647-BN, 2014 WL
1158894, at *4 (N.D. Tex. Mar. 21, 2014) (citing Sanders v. Astrue, No. 3:07–CV–1827–G–BH,
2008 WL 4211146, at *7 (N.D. Tex. Sept.12, 2008)). Notably, these courts have held that
“[b]ecause the standard set forth in Stone ‘provides no allowance for a minimal interference on a
claimant’s ability to work,’” the language that the ALJ cited in this case is “not a proper recitation
of the severity standard.” Id.; see also Lawson v. Astrue, No. 4:11-CV-00426, 2013 WL 449298,
at *4 (E.D. Tex. Feb. 6, 2013) (“while the difference between the two statements appears slight, it
is clear that the [regulatory definition] is not an express statement of the Stone standard”); Scroggins
v. Astrue, 598 F. Supp. 2d 800, 805 (N.D. Tex. 2009) (“Unlike the standard applied by the ALJ,
Stone provides no allowance for a minimal interference on a claimant’s ability to work.”). The
difference between the ALJ’s articulations and Stone, coupled with the ALJ’s failure to cite Stone
or specify which standard he actually applied, compel the conclusion that he applied an incorrect
standard of severity.
Nevertheless, as recently held by the Fifth Circuit and courts within this district, Stone error

-19-

does not mandate automatic reversal and remand, and application of the harmless error analysis is
appropriate in cases where the ALJ proceeds past step two. See Taylor v. Astrue, 706 F.3d 600, 603
(5th Cir. 2012) (per curiam) (applying harmless error analysis where the ALJ failed to cite Stone at
step two but proceeded to the remaining steps of the sequential evaluation process); Goodman v.
Comm’r of Soc. Sec. Admin., No. 3:11-CV-1321-G BH, 2012 WL 4473136, at *9 (N.D. Tex. Sept.
10, 2012), rec. adopted, 2012 WL 4479253 (N.D. Tex. Sept. 28, 2012) (same); Jones v. Astrue, 821
F. Supp. 2d 842, 851 (N.D. Tex. 2011). In the Fifth Circuit, harmless error exists when it is
inconceivable that a different administrative conclusion would have been reached absent the error.
Bornette v. Barnhart, 466 F. Supp. 2d 811, 816 (E.D. Tex. 2006) (citing Frank v. Barnhart, 326 F.3d
618, 622 (5th Cir. 2003)).
2.

Harmless Error

Plaintiff argues, in essence, that the ALJ’s Stone error was not harmless and requires remand
because he failed to find that her “peripheral neuropathy, chronic obstructive pulmonary disease,
and right shoulder impingement” were severe impairments at step two and affected her ability to
work at other steps of the analysis. (Pl. Br. at 7–8.)
The ALJ found at step two that Plaintiff had three severe impairments: lumbar spondylosis,
carpal tunnel release, and depressive disorder. (R. at 504.) He referenced Dr. Post’s, an SAMC,
notation in her October 26, 2006 consultative RFC assessment that Plaintiff’s primary diagnosis was
“back pain,” as well as her opinion that Plaintiff could perform “light exertional activities” with
several limitations. (R. at 505.) Notably, the ALJ’s step two discussion did not address or even
mention Plaintiff’s peripheral neuropathy, chronic obstructive pulmonary disease, or right shoulder
injury. (See R. at 504–05.) Finding that none of Plaintiff’s impairments or combination of

-20-

impairments met or medically equaled a listed impairment at step three, the ALJ proceeded to assess
Plaintiff’s RFC. (See R. at 505–09); see also Boyd v. Apfel, 239 F.3d 698, 705 (5th Cir. 2001) (“If
the [claimant’s] impairment is severe, but does not reach the level of a listed disorder, then the ALJ
must conduct a [RFC] assessment.”) (citing 20 C.F.R. § 404.1520a(d)(3)). The ALJ determined that
Plaintiff had the following RFC: perform less than the full range of light work; lift and carry 10
pounds frequently and 20 occasionally; stand, walk, and sit for 6 hours in an 8-hour workday; and
“do simple [], but not complex or detailed, tasks.” (R. at 509.)
In assessing Plaintiff’s RFC, the ALJ was required to consider all “medically determinable
impairments,” including those that were “not ‘severe,’” as well as “all of the relevant medical and
other evidence” in the record. See 20 C.F.R. § 404.1545(a)(2)-(3) (2012); SSR 96-8p, 1996 WL
374184, at *5 (S.S.A. 1996) (“While a ‘not severe’ impairment standing alone may not significantly
limit an individual’s ability to do basic work activities, it may—when considered with limitations
or restrictions due to other impairments—be critical to the outcome of a claim.”). In his RFC
narrative discussion, the ALJ explained that he “considered all [of Plaintiff’s] symptoms and the
extent to which these symptoms [could] reasonably be accepted as consistent with the objective
medical evidence and other evidence.” (R. at 509.) He considered Plaintiff’s testimony that she:
(1) had “neuropathy” that “caus[ed] numbness and tingling in her fingers, feet, and toes”; (2) took
“medicines for neuropathy, muscle spasms, [and] bipolar disorder”; (3) could walk for “less than
one block but her legs cramp[ed],”; (4) had poor circulation; (5) could sit for only 20 minutes before
feeling numbness and tingling “from her hips because of neuropathy”; (6) was treated for
fibromyalgia for 5 years; (7) had osteoarthritis pain; and (8) suffered from back problems since her
early 20s “from a herniated disk.” (R. at 509–10.)

-21-

The ALJ implicitly adopted the ME’s testimony that Plaintiff’s physicians at the Mayo Clinic
could not find the cause of her pain, stating that there were “no tests showing” that she had the
impairment that she alleged. (R. at 444, 448, 510.) He explained that testing “ha[d] been negative
for subluxation, herniation, spinal stenosis, and nerve root compression.” (R. at 511.) He did not
give much credence to Plaintiff’s allegation that her daily living activities were “fairly limited” “in
view of the relatively weak medical evidence and other factors.” (Id.) He also explained that
Plaintiff had “not generally received the type of medical treatment one would expect for a totally
disabled individual.” (Id.) Accordingly, he concluded that in light of the objective medical
evidence, Plaintiff’s allegations about her impairments and their limitations on her ability to work
were “not entirely credible.” (R. at 511.) Lastly, the ALJ stated that the ME’s opinion that Plaintiff
had the RFC to perform light work took into account her alleged pain, and he also gave “significant
evidentiary weight” to Dr. Post’s opinion that Plaintiff had the RFC to perform “light work
activities.” (R. at 511.) The ALJ then proceeded to steps four and five, and based on the VE’s
testimony, he concluded that considering Plaintiff’s age, education, work experience, and RFC, she
could not perform her past relevant work but could perform other work. (R. at 511–13.)
Although the ALJ did not explicitly find Plaintiff’s peripheral neuropathy to be a severe
impairment at step two, his RFC discussion shows that he considered her testimony regarding this
impairment and its resulting limitations. (See R. at 510.) He acknowledged her statement that her
neuropathy caused numbness and tingling in her fingers, feet, and toes. (Id.) He implicitly adopted
the ME’s opinion that the neuropathy diagnosis was never confirmed with objective tests because
the EMG and nerve conduction tests “were negative.” (See R. at 444, 510–11.) The ALJ’s Stone
error as it relates to this alleged impairment was harmless because it is inconceivable that he would

-22-

have assessed a different physical RFC—and thereby reached a different disability determination
at step five—if he had applied the Stone severity standard at step two.
Nonetheless, nowhere in his opinion did the ALJ discuss or even mention Plaintiff’s COPD.4
(See R. at 509–11.) Because the ALJ did not address her COPD at any step of the disability
analysis, it is unclear whether he purposefully dismissed it as non-severe based on his application
of an incorrect severity standard at step two. Moreover, he did not consider the effects that this
impairment may have on Plaintiff’s ability to perform work-related functions when assessing her
RFC, as he was required to do by the regulations and corresponding ruling. See 20 C.F.R.
§ 404.1545(a)(1)-(3); SSR 85-28, 1985 WL 56856, at *3. Consequently, he did not consider the
effects that Plaintiff’s COPD may have on her ability to work at step five. From June 20, 2006 to
December 16, 2009, Plaintiff repeatedly complained of nasal congestion, breathing difficulties, and
cough. (See R. at 288, 313–14, 317, 340, 360, 371–72, 380.) In January 2007, her “chronic airway
obstruction” was an on-going concern, and throughout the medical history, her doctors repeatedly
prescribed her Advair to treat her breathing difficulties and other nasal symptoms. (R. at 278,
302–03, 378, 960.) If the ALJ had considered this evidence, he might have imposed environmental
restrictions in her RFC, such as limiting her exposure to fumes, odors, dusts, gases, and poor
ventilation. It is not inconceivable that if the ALJ had posed this more restrictive hypothetical to
the VE, a different determination might have been reached regarding Plaintiff’s ability to perform
the job of “cafeteria attendant” at step five. Accordingly, the ALJ’s Stone error was not harmless

4

Plaintiff’s COPD could reasonably be said to constitute a “medically determinable impairment” because it
was “demonstrable by medically acceptable clinical and laboratory techniques,” including Dr. White’s diagnoses in
October and November 2006 and Dr. Birkhofer’s diagnosis in June 2010. (See R. at 375–76, 378–79, 960); see also 42
U.S.C.A. § 423(d)(3) (West 2004) (“[A] ‘physical or mental impairment’ is an impairment that results from anatomical,
physiological, or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory
diagnostic techniques.”).

-23-

as it relates to Plaintiff’s COPD.
Moreover, although the ALJ’s narrative discussion states that Plaintiff could “raise her right
arm up to her shoulder” and“ha[d] no trouble with her left hand” (R. at 510), Plaintiff actually
testified that she could not raise her right arm up to her shoulder and could not extend it out in front
of her to “pick up” objects and place them in a box because it was “extremely painful.” (See R.
433–34.) Given that the ALJ’s only mention of Plaintiff’s right shoulder injury5 was incorrect, it
cannot be determined whether he considered this alleged impairment at any step of the disability
analysis. The evidence before the ALJ showed that on September 3, 2010, Plaintiff told Dr.
Birkhofer that she fell and injured her right shoulder the month before. (R. at 947.) Upon a physical
examination, Dr. Birkhofer found that she had tenderness in her shoulder and deltoid and her
shoulder started to “lock up” at 80 degrees. (Id.) The October 27, 2010 MRI revealed “some
tendinosis,” and Dr. Ciota referred her to physical therapy three times a week for six weeks. (R. at
907, 1528.) Nearly two months later, Dr. Ciota diagnosed her with “impingement-type” symptoms,
administered a steroid injection, and discussed more aggressive treatment options. (R. at 890.)
Because the ALJ did not reference this evidence in assessing Plaintiff’s RFC, it is unclear
whether he accounted for the effects of Plaintiff’s right shoulder injury on her ability to perform
work-related functions as he was required. See 20 C.F.R. § 404.1545(a)(1)-(3); SSR 85-28, 1985
WL 56856, at *3. Consequently, it is unclear whether he considered the effects that this alleged
impairment may have her ability to work at step five. Although he limited Plaintiff to “less than the
full range of light work,” the ALJ might have limited the amount of weight she could lift with her
right hand and arm, or might have limited her reaching, handling, or fingering with her right hand
5

Plaintiff’s right shoulder injury was arguably “demonstrable by medically acceptable clinical and laboratory
diagnostic techniques,” such as the MRI that revealed “tendinosis” and Dr. Ciota’s diagnosis of “impingement-type”
symptoms. (See R. at 890; 907); see also 42 U.S.C.A. § 423(d)(3).

-24-

if he had considered Plaintiff’s right shoulder injury. Had the ALJ posed a hypothetical to the VE
with such restrictions, the VE’s opinion regarding Plaintiff’s ability to perform the jobs of “ticket
seller,” “cashier II,” and “cafeteria attendant” might have been different.
In conclusion, because is not inconceivable that the ALJ would have reached a different
determination at step five absent his Stone error at step two error, the error was not harmless as it
relates to Plaintiff’s COPD and right shoulder injury, and it requires remand. See Hall v. Astrue, No.
3:11-CV-1929-BH, 2012 WL 4167637, at *13 (N.D. Tex. Sept. 20, 2012) (holding that Stone error
was not harmless and required remand where the ALJ failed to consider the effects of the claimant’s
chronic breathing difficulties on his ability to work at any step of the sequential evaluation process).
The Court does not reach Plaintiff’s remaining issues because the ALJ’s application of the
correct severity standard on remand will likely affect them.7
III. CONCLUSION
Plaintiff’s motion is GRANTED in part, Defendant’s motion is DENIED, and the case is
REMANDED to the Commissioner for further proceedings.
SO ORDERED on this 31st day of March, 2014.

___________________________________
IRMA CARRILLO RAMIREZ
UNITED STATES MAGISTRATE JUDGE

7
Plaintiff has not met her “heavy burden” to prove disability because there are unresolved issues in the record
to be determined on remand. Her request for disability benefits at this stage of the proceedings is therefore denied.

-25-