Rivera v. Colvin
Filing
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Memorandum Opinion and Order: The hearing decision is reversed, and this case is remanded to the Commissioner of Social Security for further proceedings consistent with this opinion. (See order for specifics) (Ordered by Magistrate Judge David L Horan on 2/19/2016) (mcrd)
IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
JOSE MANUEL RIVERA,
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Plaintiff,
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V.
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CAROLYN W. COLVIN,
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Acting Commissioner of Social Security, §
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Defendant.
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No. 3:14-cv-4328-BN
MEMORANDUM OPINION AND ORDER
Plaintiff Jose Manuel Rivera seeks judicial review of a final adverse decision of
the Commissioner of Social Security pursuant to 42 U.S.C. § 405(g). For the reasons
explained below, the hearing decision is reversed.
Background
Plaintiff alleges that he is disabled due to a variety of ailments, including
diabetes, pancreatitis, high blood pressure, vomiting, and numbness in his feet. See
Administrative Record [Dkt. No. 12 (“Tr.”)] at 74-80, 184. After his applications for
disability insurance benefits and supplemental security income (“SSI”) benefits were
denied initially and on reconsideration, Plaintiff requested a hearing before an
administrative law judge (“ALJ”). That hearing was held on June 4, 2013. See id. at 6391. At the time of the hearing, Plaintiff was 59 years old. See id. at 67. He has a 10th
grade education and past work experience as a forklift operator, assistant manager,
material handler loader, and oil changer. See id. at 68, 83-84. Plaintiff has not engaged
in substantial gainful activity since January 28, 2011. See id. at 12.
The ALJ found that Plaintiff was not disabled and therefore not entitled to
disability or SSI benefits. Although the medical evidence established that Plaintiff
suffered from diabetes, hypertension, left knee pathology, obesity, and substanceinduced mood disorder, the ALJ concluded that the severity of those impairments did
not meet or equal any impairment listed in the social security regulations. See id. at
12. The ALJ further determined that Plaintiff had the residual functional capacity to
perform a wide range of light work but could not return to his past relevant
employment. See id. at 14, 18. Relying on a vocational expert’s testimony, the ALJ
found that Plaintiff was capable of working as a furniture rental consultant, boat
rental clerk, and silver wrapper – jobs that exist in significant numbers in the national
economy. See id. at 18-19.
Plaintiff appealed that decision to the Appeals Council. The Council affirmed.
Plaintiff then filed this action in federal district court. Plaintiff contends that the
hearing decision is not supported by substantial evidence and results from reversible
legal error. More particularly, Plaintiff argues that: (1) the ALJ failed to use the proper
legal standard to evaluate Plaintiff’s severe impairments and failed to analyze
impairments identified by medical experts; (2) the ALJ failed to inquire about the
reliability of the vocational expert’s testimony in light of Plaintiff’s objections and an
inadequate hearing transcript; and (3) the ALJ impermissibly relied on evidence
outside the record when assessing Plaintiff’s symptoms and pain.
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The Court determines that the hearing decision must be reversed and this case
remanded to the Commissioner of Social Security for further proceedings consistent
with this opinion.
Legal Standards
Judicial review in social security cases is limited to determining whether the
Commissioner’s decision is supported by substantial evidence on the record as a whole
and whether Commissioner applied the proper legal standards to evaluate the
evidence. See 42 U.S.C. § 405(g); Copeland v. Colvin, 771 F.3d 920, 923 (5th Cir. 2014);
Ripley v. Chater, 67 F.3d 552, 555 (5th Cir. 1995). Substantial evidence is “more than
a mere scintilla. It means such relevant evidence as a reasonable mind might accept
as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971);
accord Copeland, 771 F.3d at 923. The Commissioner, rather than the courts, must
resolve conflicts in the evidence, including weighing conflicting testimony and
determining witnesses’ credibility, and the Court does not try the issues de novo. See
Martinez v. Chater, 64 F.3d 172, 174 (5th Cir. 1995); Greenspan v. Shalala, 38 F.3d
232, 237 (5th Cir. 1994). This Court may not reweigh the evidence or substitute its
judgment for the Commissioner’s but must scrutinize the entire record to ascertain
whether substantial evidence supports the hearing decision. See Copeland, 771 F.3d
at 923; Hollis v. Bowen, 837 F.2d 1378, 1383 (5th Cir. 1988). The Court “may affirm
only on the grounds that the Commissioner stated for [the] decision.” Copeland, 771
F.3d at 923.
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“In order to qualify for disability insurance benefits or [supplemental security
income], a claimant must suffer from a disability.” Id. (citing 42 U.S.C. § 423(d)(1)(A)).
A disabled worker is entitled to monthly social security benefits if certain conditions
are met. See 42 U.S.C. § 423(a). The Act defines “disability” as the inability to engage
in substantial gainful activity by reason of any medically determinable physical or
mental impairment that can be expected to result in death or last for a continued
period of 12 months. See id. § 423(d)(1)(A); see also Copeland, 771 F.3d at 923; Cook v.
Heckler, 750 F.2d 391, 393 (5th Cir. 1985). The Commissioner has promulgated a fivestep sequential evaluation process that must be followed in making a disability
determination:
1.
The hearing officer must ascertain whether the claimant is
engaged in substantial gainful activity. A claimant who is working
is not disabled regardless of the medical findings.
2.
The hearing officer must determine whether the claimed
impairment is “severe.” A “severe impairment” must significantly
limit the claimant’s physical or mental ability to do basic work
activities. This determination must be made solely on the basis of
the medical evidence.
3.
The hearing officer must decide if the impairment meets or equals
in severity certain impairments described in Appendix 1 of the
regulations. The hearing officer must make this determination
using only medical evidence.
4.
If the claimant has a “severe impairment” covered by the
regulations, the hearing officer must determine whether the
claimant can perform his or her past work despite any limitations.
5.
If the claimant does not have the residual functional capacity to
perform past work, the hearing officer must decide whether the
claimant can perform any other gainful and substantial work in
the economy. This determination is made on the basis of the
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claimant's age, education, work experience, and residual functional
capacity.
See 20 C.F.R. § 404.1520(b)-(f); Copeland, 771 F.3d at 923 (“The Commissioner
typically uses a sequential five-step process to determine whether a claimant is
disabled within the meaning of the Social Security Act. The analysis is: First, the
claimant must not be presently working. Second, a claimant must establish that he has
an impairment or combination of impairments which significantly limit [her] physical
or mental ability to do basic work activities. Third, to secure a finding of disability
without consideration of age, education, and work experience, a claimant must
establish that his impairment meets or equals an impairment in the appendix to the
regulations. Fourth, a claimant must establish that his impairment prevents him from
doing past relevant work. Finally, the burden shifts to the Secretary to establish that
the claimant can perform the relevant work. If the Secretary meets this burden, the
claimant must then prove that he cannot in fact perform the work suggested.” (internal
quotation marks omitted)); Audler v. Astrue, 501 F.3d 446, 447-48 (5th Cir. 2007) (“In
evaluating a disability claim, the Commissioner conducts a five-step sequential
analysis to determine whether (1) the claimant is presently working; (2) the claimant
has a severe impairment; (3) the impairment meets or equals an impairment listed in
appendix 1 of the social security regulations; (4) the impairment prevents the claimant
from doing past relevant work; and (5) the impairment prevents the claimant from
doing any other substantial gainful activity.”).
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The claimant bears the initial burden of establishing a disability through the
first four steps of the analysis; on the fifth, the burden shifts to the Commissioner to
show that there is other substantial work in the national economy that the claimant
can perform. See Copeland, 771 F.3d at 923; Audler, 501 F.3d at 448. A finding that the
claimant is disabled or not disabled at any point in the five-step review is conclusive
and terminates the analysis. See Copeland, 771 F.3d at 923; Lovelace v. Bowen, 813
F.2d 55, 58 (5th Cir. 1987).
In reviewing the propriety of a decision that a claimant is not disabled, the
Court’s function is to ascertain whether the record as a whole contains substantial
evidence to support the Commissioner’s final decision. The Court weighs four elements
to determine whether there is substantial evidence of disability: (1) objective medical
facts; (2) diagnoses and opinions of treating and examining physicians; (3) subjective
evidence of pain and disability; and (4) the claimant’s age, education, and work history.
See Martinez, 64 F.3d at 174.
The ALJ has a duty to fully and fairly develop the facts relating to a claim for
disability benefits. See Ripley, 67 F.3d at 557. If the ALJ does not satisfy this duty, the
resulting decision is not substantially justified. See id. However, the Court does not
hold the ALJ to procedural perfection and will reverse the ALJ’s decision as not
supported by substantial evidence where the claimant shows that the ALJ failed to
fulfill the duty to adequately develop the record only if that failure prejudiced Plaintiff,
see Jones v. Astrue, 691 F.3d 730, 733 (5th Cir. 2012) – that is, only if Plaintiff’s
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substantial rights have been affected, see Audler, 501 F.3d at 448. “Prejudice can be
established by showing that additional evidence would have been produced if the ALJ
had fully developed the record, and that the additional evidence might have led to a
different decision.” Ripley, 67 F.3d at 557 n.22. Put another way, Plaintiff “must show
that he could and would have adduced evidence that might have altered the result.”
Brock v. Chater, 84 F.3d 726, 728-29 (5th Cir. 1996).
Analysis
Among the arguments Plaintiff makes is a single ground that compels remand
– the ALJ failed to use the proper legal standard to evaluate Plaintiff’s severe
impairments.1 Plaintiff contends that the ALJ failed to consider all of his vocationally
significant impairments, specifically degenerative disc disease of the spine,
atherosclerosis, hyperlipidemia, history of irregular heart rhythm, and history of
pancreatitis and elevated liver function. One of Plaintiff’s arguments is that the ALJ
committed reversible error by neither citing nor applying the appropriate legal
standard, set forth by Stone v. Heckler, 752 F.2d 1099, 1102 (5th Cir. 1985), and that,
without this analysis, the ALJ cannot meet his Step 5 burden to show that Plaintiff can
perform other gainful and substantial work in the economy.
At Step 2, the ALJ found that Plaintiff has severe impairments of diabetes,
hypertension, left knee pathology, obesity, and substance-induced mood disorder. See
Tr. at 11. At Step 4, the ALJ found that Plaintiff has the residual functional capacity
By ordering a remand of this case for further administrative proceedings, the
Court does not suggest that Plaintiff is or should be found disabled.
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(“RFC”) to lift or carry twenty pounds occasionally and ten pounds frequently and to
stand or walk for three hours and to sit for six hours in an eight-hour workday. The
ALJ found that Plaintiff should avoid climbing ladders, ropes, or scaffolds and that
Plaintiff can occasionally climb ramps and stairs, balance, stoop, kneel, crouch, and
crawl. The ALJ also found that Plaintiff should avoid hazards such as unprotected
heights, fast moving machinery, sharp objects, and unprotected flames and avoid
exposure to temperature extremes or concentrated exposure to vibration. And the ALJ
found that Plaintiff has the ability to understand, carry out and remember detailed,
non-complex tasks and instructions. See id. at 13. Based on this RFC, the ALJ found
that Plaintiff can perform other gainful and substantial work in the economy,
specifically, the jobs of furniture rental consultant, boat rental clerk, and silver
wrapper. See id. at 18.
At Step 2, the primary analysis is whether a claimant’s impairment, or
combination of impairments, is severe, irrespective of age, education, or work
experience. See Stone, 752 F.2d at 1100. In Stone, the United States Court of Appeals
for the Fifth Circuit “construed the current 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.’” Id. at 1101 (quoting Estran
v. Heckler, 745 F.2d 340, 341 (5th Cir. 1984)). In making a severity determination, the
ALJ must set forth the correct standard by reference to Fifth Circuit opinions or by an
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express statement that the Fifth Circuit’s construction of the regulation has been
applied. See Hampton v. Bowen, 785 F.2d 1308, 1311 (5th Cir. 1986).
A court must 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 [Stone] or another [opinion] of the same effect, or by an express
statement that the construction [the Fifth Circuit gave] to 20 C.F.R. § 404.1520(c)
(1984) is used.” Stone, 752 F.2d at 1106. Notwithstanding this presumption, the Court
must look beyond the use of “magic words” and determine whether the ALJ applied the
correct severity standard. See Hampton, 785 F.2d at 1311. That is, the presumption
may be rebutted by a showing that the ALJ applied the correct legal standard,
regardless of the ALJ’s recitation of the severity standard, or that the ALJ’s application
of the incorrect standard was harmless. See Morris v. Astrue, No. 4:11-cv-631-Y, 2012
WL 4468185, at *9 (N.D. Tex. Sept. 4, 2012), rec. adopted, 2012 WL 4466144 (N.D. Tex.
Sept. 27, 2012); see also Taylor v. Astrue, No. 3:10-cv-1158-O-BD, 2011 WL 4091506,
at *6 (N.D. Tex. June 27, 2011), rec. adopted, 2011 WL 4091503 (N.D. Tex. Sept. 14,
2011) (applying harmless error analysis in Stone error cases).
In his decision, the ALJ did not cite to Stone. In the applicable law section, the
ALJ stated that an impairment is severe “if it significantly limits an individual’s
ability to perform basic work activities.” Tr. at 10 (citing 20 C.F.R. §§ 404.1521 &
416.921; SSR 85-28, 96-3p, & 96-4p). This is the very standard set forth in 20 C.F.R.
§§ 404.1520(c) and 416.920(c) that Stone found to be inconsistent with the Social
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Security Act. See Stone, 752 F.2d at 1104-05; Craaybeek v. Astrue, No. 7:10-cv-054-BK,
2011 WL 539132, at *6 (N.D. Tex. Feb. 7, 2011). The ALJ also found Plaintiff’s
diabetes, hypertension, left knee pathology, obesity and substance-induced mood
disorder to be “severe” because they “cause more than a minimal effect” and “would be
expected to interfere with the individual’s ability to perform basic work activities.” Tr.
at 11 (citing 20 C.F.R. § 404.1520(c), 416.920(c)). The “minimal effect” standard is also
wholly inconsistent with Stone. See Craaybeek, 2011 WL 539132, at *6 (citing cases).
Nevertheless, Defendant argues that citing to SSR 85-28 is “of the same effect”
as citing to Stone because SSR 85-25 allegedly incorporated the Stone ruling. See Dkt.
No. 19 at 8-9; SSR 85-28, 1985 WL 56856 (S.S.A. 1985). But the ALJ’s referral to
applicable social security regulations and rulings, including SSR 85-28, does not
substitute as a proper construction of the Stone standard. See Scott v. Comm’r of Soc.
Sec. Admin., No. 3:11-cv-152-BF, 2012 WL 1058120, at *7 (N.D. Tex. Mar. 29, 2012)
(citing cases). And SSR 85-28, which was amended shortly after Stone was decided,
continues to provide that an impairment is severe if it has “no more than a minimal
effect on an individual’s ability to work.” In contrast, Stone provides no allowance for
a minimal interference with a claimant’s ability to work.
The standard recited by the ALJ here allows for a minimal effect on the
claimant’s ability to work, but the Stone severity standard does not allow for any
interference with work ability – even minimal interference. See Scroggins v. Astrue,
598 F. Supp. 2d 800, 805-06 (N.D. Tex. 2009); Morris, 2012 WL 4468185, at *5. The
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ALJ therefore erred because he did not actually state the same standard mandated by
Stone.
In the past, this would be grounds for automatic remand because it constituted
a legal error. See, e.g., Scroggins, 598 F. Supp. 2d at 806-07; Sanders, 2008 WL
4211146, at *8. More recently, however, courts have not automatically remanded such
cases. See, e.g., Lacy v. Colvin, No. 3:13-cv-1312-BN, 2013 WL 6476381, at *8 (N.D.
Tex. Dec. 10, 2013); Rivera v. Colvin, No. 3:12-cv-1748-G-BN, 2013 WL 4623514, at *6
(N.D. Tex. Aug. 28, 2013); Easom v. Colvin, No. 3:12-cv-1289-N-BN, 2013 WL 2458540,
at *4-*6 (N.D. Tex. June 7, 2013). Rather, the presumption that legal error occurred
based on the incorrect wording of the standard may be rebutted by a showing that the
correct legal standard was actually applied by the ALJ, see Morris, 2012 WL 4468185,
at *9, or that the error was harmless, see Taylor v. Astrue, 706 F.3d 600, 603 (5th Cir.
2012). Many courts have presumed that the Stone error is harmless where the analysis
continues beyond Step 2. See, e.g., Lederman v. Astrue, 829 F. Supp. 2d 531, 539 (N.D.
Tex. 2011).
Here, Plaintiff suggests that the error cannot be harmless because the ALJ did
not properly consider certain alleged impairments – degenerative disc disease of the
spine, atherosclerosis, hyperlipidemia, history of irregular heart rhythm, and history
of pancreatitis and elevated liver function – at Step 2 or afterward. That is, according
to Plaintiff, the failure to apply the proper Stone standard was not harmless because
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the ALJ did not consider these impairments in Step 4 or Step 5 and possibly found
them non-severe based upon the incorrect standard for severity.
At Step 2, the ALJ found that Plaintiff’s diabetes, hypertension, left knee
pathology, obesity and substance-induced mood disorder were severe impairments
“because they cause more than a minimal effect” on Plaintiff’s “ability to perform basic
work activities.” Tr. at 11. The ALJ did not mention Plaintiff’s degenerative disc
disease of the spine, atherosclerosis, hyperlipidemia, history of irregular heart rhythm,
and history of pancreatitis and elevated liver function. See id.
In the narrative concerning Plaintiff’s RFC, the ALJ stated that Edward
Panousier, D.O., performed a consultative examination and diagnosed Plaintiff with
type 2 diabetes with neuropathy, history of ethanol abuse, degenerative joint disease
of the knee, degenerative disc disease of the spine, atherosclerosis, hypertension,
hyperlipidemia, history of irregular heart rhythm, history of pancreatitis and an
elevated liver function test. See id. at 14-15, 553-54. State agency medical consultant
Robin Rosenstock, M.D. reviewed Plaintiff’s file and listed a primary diagnosis of
degenerative disc disease of the left knee and a secondary diagnosis of degenerative
disc disease of the lumbar spine. See id. at 555. The ALJ also gave significant weight
to the State agency examiners’ assessments of Plaintiff’s functional capacity, which
would have been based on their diagnoses of Plaintiff’s impairments.
But the ALJ made no further reference to – and the Court cannot ascertain
whether the ALJ considered – the impairments of degenerative disc disease of the
spine, atherosclerosis, hyperlipidemia, history of irregular heart rhythm, and history
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of pancreatitis and elevated liver function, much less whether he considered them
under the Stone standard. Without a substantive analysis of these five impairments,
the ALJ cannot meet his burden at Step 5 to show that Plaintiff can perform any other
gainful and substantial work in the economy despite all of his impairments and
limitations. As a result, the ALJ’s error was prejudicial.
Conclusion
The hearing decision is reversed, and this case is remanded to the Commissioner
of Social Security for further proceedings consistent with this opinion.
DATED: February 19, 2016
_________________________________________
DAVID L. HORAN
UNITED STATES MAGISTRATE JUDGE
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