Abu Nejmeh v. Colvin

Filing 19

MEMORANDUM OPINION AND ORDER REVERSING DECISION OF COMMISSIONEROF SOCIAL SECURITY AND REMANDING CASE: For the reasons explained above, the Court REVERSES the decision of the Commissioner and REMANDS this case for further proceedings consistent with this opinion under the fourth sentence of 42 U.S.C. § 405(g). (Ordered by Judge Terry R Means on 2/18/2016) (hth)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
FORT WORTH DIVISION
KHAWALA ABU NEJMEH

§
§
§
§
§

VS.
CAROLYN W. COLVIN

CIVIL ACTION NO. 4:14-CV-816-Y

MEMORANDUM OPINION AND ORDER REVERSING DECISION OF COMMISSIONER
OF SOCIAL SECURITY AND REMANDING CASE
Plaintiff seeks judicial review of the Commissioner of Social
Security (“the Commissioner”)’s finding that she is not disabled
and therefore not entitled to supplemental social security income
payments.

See 42 U.S.C. § 405(g).

On January 1, 2016, the United

States magistrate judge filed a report and recommendation to which
Plaintiff filed objections (docs. 17, 18). For the following
reasons,

the

Court

declines

to

adopt

the

magistrate

judge’s

recommendation.
I.

Procedural Background
On

May

31,

2012,

Plaintiff

filed

her

application

for

supplemental social security income (Admin. R. at 94-103, ECF No.
12). On July 3, the Social Security Administration (“SSA”) denied
Plaintiff’s claim because “[she] [is] not disabled or blind under
[its] rules” (Admin. R. at 45-48, ECF No. 12).

On November 5,

Plaintiff’s request for reconsideration was denied (Admin. R. at
55-57, ECF No. 12).
On January 13, 2013, Plaintiff requested a hearing before an
ALJ, which was held on November 20 (Admin. R. at 59-61, ECF No.
12).

Plaintiff and vocational expert, Carol Bennett, testified at

the hearing (Admin. R. at 31-42, ECF No. 1).

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On February 28, 2014, an Administrative Law Judge (“ALJ”)
found that Plaintiff was not disabled because her impairments,
singly or in combination, were not “severe” within the meaning of
20 C.F.R. § 416.921 (Admin. R. at 16-30, ECF No. 12).

That same

day, Plaintiff requested a review of the ALJ’s decision (Admin. R.
at 14-15, ECF No. 12).

On July 25, Plaintiff’s counsel submitted

“Interrogatories from Impartial Medical Expert Kweli Amusa, M.D.,
dated July 25, 2014" to the Social Security Appeals Council (“AC”)
(Admin. R. at 556-565, ECF No. 12).
On August 7, the AC denied Plaintiff’s request for review. In
affirming the ALJ’s decision, the AC noted that it had considered
the interrogatories of Dr. Kweli J. Amusa and found it “[did] not
provide

a

basis

for

changing

the

Administrative

Law

Judge’s

decision.” (Admin. R. at 1-6, ECF No. 12).
On October 7, Plaintiff filed the instant suit for review of
the Commissioner’s decision (Pl.’s Complaint, ECF No. 1).
II.

Standard of Review
Judicial

review

of

social-security

disability

claims

is

exceedingly deferential and limited to two inquiries: whether
substantial evidence supports the ALJ’s decision, and whether the
ALJ

applied

evidence.”

the

proper

legal

standards

when

evaluating

the

Avery v. Colvin, 605 F.App’x 278, 281 (5th Cir.

2015)(citing Taylor v. Astrue, 706 F.3d 600, 602 (5th Cir. 2012))
The ALJ uses a five-step process for evaluating disability
under

the

Social

Security

Act:

(1)

whether

the

claimant

is

currently engaged in substantial gainful activity (whether the
claimant is working); (2) whether the claimant has a severe
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impairment; (3) whether the claimant’s impairment meets or equals
the severity of an impairment listed in 20 C.F.R., Part 404,
Subpart B, Appendix 1; (4) whether the impairment prevents the
claimant from doing past relevant work (whether the claimant can
return to his old job); and (5) whether the impairment prevents the
claimant from doing any work.

Avery, 605 F.App’x at 282 (citing

Perez v. Barnhart, 415 F.3d 457, 461 (5th Cir. 2005)).
III.

Discussion
Plaintiff objects that the magistrate judge did not address

her claim that the ALJ applied the incorrect severity standard set
forth in Stone v. Heckler, 752 F.2d 1099, 1101 (5th Cir. 1985).
In Stone, the United States Court of Appeals for the Fifth
Circuit (“the Fifth Circuit”) established the following standard
for determining whether a claimant’s impairment is severe at step
two:
An impairment is not severe only when 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.
The Fifth Circuit stated that it would assume that the ALJ had
applied an incorrect standard to the severity requirement unless
the correct standard was either set forth by reference to Stone or
expressly stated in the decision.

Id at 1106. ”[U]nless the

correct standard is used, the claim must be remanded to the
Secretary for reconsideration.”

Id.

In 2012, the Fifth Circuit clarified that even if the ALJ errs
in failing to follow the procedures set forth in Stone, such error

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does not require remand unless the claimant is harmed by the error.
Taylor v. Astrue, 706 F.3d 600, 603 (5th Cir. 2012). Under Taylor,
therefore, a Stone error no longer requires automatic remand but
instead is subject to a harmless-error analysis.

Id.

In this case, Plaintiff is correct that the ALJ did not apply
the correct standard when evaluating the severity of Plaintiff’s
impairments. Although he references Stone in his decision, the ALJ
recites the improper standard. On page 22 of his decision, the ALJ
concludes:
The claimant does not have an impairment or combination
of impairments that has significantly limited (or is
expected to significantly limit) the ability to perform
basic work-related activities for 12 consecutive months;
therefore, the claimant does not have a severe impairment
or combination of impairments (20 CFR 416.921 et
seq.)(Admin. R. at 22, ECF No. 12).
Under Taylor, the Court must determine whether Plaintiff was
harmed by the ALJ’s Stone error, that is, whether the ALJ’s
determination at step two is supported by substantial evidence.
“Substantial evidence is enough that a reasonable mind would
support the conclusion.”

Taylor, 706 F.3d at 602.

“The evidence

must be more than a scintilla, but it need not be a preponderance.”
Id. “We will not re-weigh the evidence, try the questions de novo,
or substitute our judgment for the Commissioner’s, even if we
believe the evidence weighs against the Commissioner’s decision.”
Avery, 605 F.App’x at 282 (quoting Masterson v. Barnhart, 309 F.3d
267, 272 (5th Cir. 2002)).

Plaintiff objects that the Commissioner’s decision is not
supported by substantial evidence because the AC did not properly
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evaluate the medical opinion evidence of Dr. Kweli J. Amusa.
Plaintiff argues the AC summarily denied her request for review and
did not explain its decision or evaluate the new evidence under 20
C.F.R. § 416.927, which provides the criteria for weighing medical
opinions.
In deciding whether to deny a claimant’s request for review,
the AC must consider and evaluate any “new and material evidence”
that is submitted if it relates to the period on or before the
ALJ’s decision. Sun v. Colvin, 793 F.3d 502, 511-12 (5th Cir.
2015); See 20 C.F.R. § 404.970(b).

If the AC finds that the ALJ’s

“action, findings, or conclusion is contrary to the weight of the
evidence currently of record,” the AC will then review the case.
Id. Otherwise, it will deny the claimant’s request for review. Id.
Although “[t]he regulations do not require the AC to provide a
discussion of the newly submitted evidence or give reasons for
denying review,” in some instances remand be necessary if it is
unclear whether the AC evaluated the new evidence.

Id., 793 F.3d

at 512.
In this case, the ALJ gave “great weight” to the medical
opinions of [s]tate agency medical consultants Tina Ward, MD, and
Patty Rowley, MD, “because they are consistent with the medical
evidence of record (Admin. R. at 25, ECF No. 12).”

Drs. Ward and

Rowley both determined Plaintiff’s “limitations are not wholly
supported by objective and EOR (Admin. R. at 392, 269).” The ALJ
also

concluded

that

Plaintiff’s

statements

concerning

the

intensity, persistence, and limiting effects of her symptoms were
not “entirely credible (Admin. R. at 23, ECF No. 12).”
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On the other hand, in Dr. Amusa’s “Impartial Medical Expert
Interrogatories,” when asked whether Plaintiff suffers from any
“severe

medically-determinable

impairment,

or

combination

of

impairments,” she lists “[a]bdominal [p]ain/chronic [c]onstipation
with intermittent bouts of diverticulitis/colitis associated with
significant emotional overlay....” (Admin. R. at 557, ECF No. 12.)
Dr. Amusa cites to various hospital records in support of her
conclusion.

Dr. Amusa also states that Plaintiff is able to sit

and stand six hours a day (Admin. R. At 558, ECF No. 12).
After considering the record as a whole, the Court, like the
Fifth Circuit in Sun, is unable to determine whether substantial
evidence supports the ALJ’s denial of benefits.

The ALJ’s finding

may still be correct and supported by substantial evidence, but the
opinion of Dr. Amusa is significant and casts doubt upon the ALJ’s
finding. Dr. Amusa’s opinion supports Plaintiff’s claim and relies
on much of the same evidence cited and relied upon by Dr. Ward, Dr.
Rowley, and the ALJ in reaching their conclusions. Despite the
significance of Dr. Amusa’s opinion, no fact finder has attempted
to reconcile her report with the conflicting reports of Drs. Ward
and Rowley.

“Assessing the probative value of competing evidence

is quintessentially the role of the fact finder.”

Sun, 793 F.3d at

513 (citing Meyer v. Astrue, 662 F.3d 700, 707 (4th Cir. 2011)).
It is not the role of the Court to undertake such an assessment
here.
IV.

Conclusion
For the reasons explained above, the Court REVERSES the

decision of the Commissioner and REMANDS this case for further
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proceedings consistent with this opinion under the fourth sentence
of 42 U.S.C. § 405(g).
SIGNED February 18, 2016.

____________________________
TERRY R. MEANS
UNITED STATES DISTRICT JUDGE

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