Salmond v. Colvin

Filing 44

Memorandum Opinion and Order: The court ORDERS the decisions of the Commissioner that, based on the application for a period of disability and disability insurance benefits protectively filed by plaintiff on May 13, 2013, plaintiff is not disabled under sections 216(i) and 223(d) of the Social Security Act, and that, based on the application for supplemental security income protectively filed by plaintiff on May 13, 2013, plaintiff is not disabled under section 1614 (a) (3) (A) of the Social Security Act, be, and are hereby, affirmed. (see order for further specifics) (Ordered by Judge John McBryde on 12/27/2016) (mpw)

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IN THE UNITED STATES DISTRICb
NORTHERN DISTRICT OF TE:IAS
FORT WORTH DIVISION i

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DEC 1.. 1 281 !

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RONALD SALMOND, SR.,
Plaintiff,

vs.
CAROLYN W. COLVIN, ACTING
COMMISSIONER, SOCIAL SECURITY
ADMINISTRATION,

§
§
§
§
§
§
§

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--------

NO. 4:15-CV-526-A

§
§
§
§

Defendant.

MEMORANDUM OPINION
and
ORDER
Before the court for decision is the complaint of plaintiff,
Ronald Salmond, Sr., in which he seeks judicial review of the
final decision of the Acting Commissioner of Social Security,
Carolyn W. Colvin ("Commissioner"), to deny plaintiff's claims
for a period of disability and disability insurance benefits and
for supplemental security income. Having considered the
administrative record, the record in the above-captioned action,
the proposed findings and conclusions and recommendation of
Magistrate Judge Jeffrey L. Cureton, and pertinent legal
authorities, the court has concluded that the Commissioner's
decision should be affirmed.

I.

Background
On January 16, 2015, the Administrative Law Judge ("ALJ")
decided that "[b]ased on the application for a period of
disability and disability insurance benefits protectively filed
on May 13, 2013, the claimant is not disabled under sections
216(i) and 223( d) of the Social Security Act" and that "[b]ased
on the application for supplemental security income protectively
filed on May 13, 2013, the claimant is not disabled under section
1614 (a) (3) (A) of the Social Security Act." Doc. 32 at 33 . 1

On

May 18, 2015, the Appeals Council denied plaintiff's request for
review, and the January 16, 2016 decision of the ALJ became the
final decision of the Commissioner. Id. at 6.
On July 20, 2015, Plaintiff initiated this action by filing
his complaint in this court. Doc. 1. The matter was referred to
the United States Magistrate Judge for proposed findings and
conclusions and a recommendation for disposition.

On January 7,

2016, the Magistrate Judge ordered that plaintiff's complaint be
treated as an appeal from the Commissioner's decision and fixed a
timetable for the filing of briefs. Doc. 35. Both sides filed
briefs. Docs. 36 & 39.

1

The "Doc. _ _ " references are to the numbers assigned to the referenced documents on the
docket of the above-captioned action.
2

On December 1, 2016, the Magistrate Judge issued his
proposed findings and conclusions and his recommendation ("FC&R")
that the decision of the Commissioner be reversed and remanded
for further administrative proceedings consistent with his
proposed findings of fact and conclusions of law.

Doc. 40 at 12.

On December 14, 2016, the Commissioner filed a response to the
FC&R. Doc. 42.
response.

On December 23, 2016, plaintiff replied to the

Doc. 43.
II.

Positions Taken on Appeal
A.

Plaintiff's Brief
In his brief filed with the magistrate judge, plaintiff

identified the following issues for resolution:
A.
The ALJ's finding that Plaintiff's mental
impairments did not satisfy the de minimis level of step
circuit
2 severity is contrary to Agency policy,
precedent, and every single medical opinion of record.
B. There was compelling record evidence of diabetic
neuropathy, affecting the functioning of Plaintiffs hands
and feet, which warrants remand for proper consideration.
Doc. 36 at 2.

3

In summary, plaintiff argued that the ALJ erred at step two 2
by failing to conclude that plaintiff's mental disability is
severe, and that, in any event, evidence presented for the first
time to the Appeals Council established that plaintiff suffers
from diabatic neuropathy to the extent that the case should be
remanded for the ALJ to consider the specific functional effects
of the diabetic neuropathy.
In support of his contention that the ALJ erroneously
concluded that plaintiff's mental impairment was not severe,
plaintiff said that "every single medical opinion of record,
including from 3 of SSA's own [medical experts], confirm that
Plaintiff more than satisfied the de minimis threshold of step 2
severity." Doc. 36 at 3. In plaintiff's view, such opinions in
favor of a finding that plaintiff's mental impairments were
severe were irrefutable.
2

The five-step evaluation process the ALJ used to determine whether a claimant is disabled is set
forth in 20 C.P.R.§§ 404.1520(a)(4) and416.920(a)(4). See Doc. 32 at25-26; Tr. at 11. First, the
claimant must not be presently working at any substantial gainful activity, id. §§ 404.1520(a)(4)(i) and
416.920(a)(4)(i); second, the claimant must have an impairment or combination of impairments that
qualify as a severe impairment, id. §§ 404.1520(a)(4)(ii) and 416.920(a)(4)(ii); third, the claimant's
impairment(s) must meet or equal an impairment listed in appendix 1 to the regulations, id. Pt. 404,
Subpt. P, App. 1, 20 C.P.R.§§ 404.1520(a)(4)(iii) and 416.920(a)(4)(iii); or, fourth, the claimant's
impairment(s) must prevent the claimant from doing his past relevant work, 20 C.P.R.
§§ 404.1520(a)( 4)(iv) and 416.920(a)(4)(iv); and fifth, the claimant's impairment(s) must prevent him
from doing any work, considering the claimant's residual functional capacity, age, education, and past
work experience, id. §§ 404.1520(a)(4)(v) and 416.920(a)(4)(v). At steps one through four, the burden of
proof rests upon the claimant to show he is disabled. Crowley v. Apfel, 197 F.3d 194, 198 (5th Cir.
1999). The burden shifts to Commissioner at step five to show that there is other gainful employment the
claimant is capable of performing despite his impairment(s). Id. If Commissioner meets that burden, the
claimant must prove he cannot perform the alternate work. Id.
4

In support of his claim concerning diabetic neuropathy,
plaintiff argued that evidence of neuropathy that plaintiff
presented to the Appeals Council after the ALJ had issued his
opinion established that plaintiff had neuropathy and that the
new evidence was sufficient to render the ALJ's severity
determination erroneous.
B.

The Commissioner's Response Brief
In response, the Commissioner argued that there was

substantial evidence to support the ALJ's finding that plaintiff
had failed to meet his step two burden of showing that his
impairments, singly or in combination, were severe.

The

Commissioner emphasized that "[t]he ALJ may discount a claimant's
subjective complaints if inconsistencies exist, as here, between
the alleged impairments and the evidence as a whole," highlighted
such inconsistencies, and concluded that "the medical findings
[relied upon by petitioner] do not support Salmond's allegations
of severe mental impairments." Doc. 39 at 5-6. In doing so, the
Commissioner addressed each of the opinions of a medical expert
offered on plaintiff's behalf, demonstrated that the ALJ
considered each opinion, and supported the ALJ's decision to
discount certain of the opinions on the basis that they were

5

overly reliant on plaintiff's subjective self-reporting of his
impairment, explaining that:
The evidence, consisting of Salmond's medical records,
treatment history, activities of daily living, and other
activities, contradicts Salmond's allegations that his
impairments were severe and disabling. Thus, the ALJ
appropriately accorded greater credence to the weight of
the medical evidence than to Salmond's subjective
complaints, and found his mental impairments were not
severe or disabling.
Id. at 17.
The Commissioner pointed out that plaintiff's additional
evidence of diabetic neuropathy, which was dated after the ALJ's
decision, was immaterial.

The Commissioner added that the

evidence was nonetheless insufficient to contradict, or change,
the ALJ's finding that plaintiff's diabetes was not severe. Id.
at 18.
C.

The FC&R
The Magistrate Judge identified in the FC&R the issues to be

decided as follows:
A.

Whether the ALJ erred in not finding that
Salmond's mental impairment was severe at Step
Two; and

B.

Whether the ALJ erred in not finding Salmond's
diabetic neuropathy impairment was severe at
Step Two.

Doc. 40 at 4.

6

In resolving to recommend remand, the Magistrate Judge found
that the ALJ's conclusion that plaintiff's mental impairment was
not severe was not supported by substantial evidence. The
Magistrate Judge's recommendation relative to plaintiff's
neuropathy claims was worded as follows:
While the mere presence or diagnosis of some
impairment is not disabling per se, see Hames v.
Heckler, 707 F.2d 162, 165 (5th Cir. 1983), the new
evidence that Salmond submitted to the Appeals Council
after the ALJ decision does raise an issue that
Salmond's diabetes may now have some impact on his
ability to work. Because the Court is remanding the
case for the ALJ to reconsider its decision at Step Two
regarding Salmond's mental impairments, the ALJ should
take another look at the severity of Salmond's diabetes
impairment as well.
Doc. 40 at 12.
D.

The Commissioner's Response to the FC&R
While the Commissioner noted that the ALJ did not cite to

Stone v. Heckler, 752 F.2d 1099 (5th Cir. 1985), or a similar
case in support of his standard for determining severity, the
Commissioner pointed out that the ALJ applied the proper standard
for determining whether plaintiff's disability was severe and
properly found that plaintiff's impairments, alone or in
combination, were not severe within the meaning of the Act. The
Commissioner first examined the framework used by the ALJ and
argued that any technical misapplication of the framework was
harmless error. Doc. 42 at 2-3.

The Commissioner thoroughly
7

examined the medical testimony and the ALJ's analysis of such
testimony, id. at 4-7, in the course of reaching her conclusion
that the ALJ's severity findings were supported by substantial
evidence.

Finally, the Commissioner urged that plaintiff had

failed to meet his burden of showing that plaintiff's new
evidence of diabetic neuropathy would have been material to the
ALJ's ultimate findings.
E.

Id. at 7-8.

Plaintiff's Reply to Commissioner's Response to the FC&R
In his reply brief, plaintiff argued for the very first time

that the failure of the ALJ to cite to Stone v. Heckler when
explaining the standard he used to determine severity was an
error that provided yet another basis for remand. Additionally,
plaintiff reurged that his diabetic neuropathy was established
for purposes of his disability claim.
III.
Analysis
A.

Standard of Review
Judicial review of the decision of the Commissioner that an

individual is not disabled is limited to two inquiries:

(1)

whether substantial evidence in the record supports the
Commissioner's decision and (2) whether the decision comports
with relevant legal standards. See Anthony v. Sullivan, 954 F.2d
289, 292

(5th Cir. 1992). "The Commissioner's decision is granted

8

great deference and will not be disturbed unless the reviewing
court cannot find substantial evidence in the record to support
the Commissioner's decision or finds that the Commissioner made
an error of law." Leggett v. Chater, 67 F.3d 558, 564 (5th Cir.
1995).
B.

The ALJ Applied the Correct Severity Legal Standard
The language on which plaintiff relies in his reply brief

for his suggestion that the ALJ's failure to refer to Stone v.
Heckler when describing the severity standard he used undoubtedly
was inspired by the following language in the Stone v. Heckler
opinion:
In view of both the Secretary's position in this
case and our recent experience with cases where the
disposition has been on the basis of nonseverity, we
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 20 C.F.R. § 404.1520(c) (1984)
is used.
752 F.2d at 1106 (emphasis added).
Plaintiff and Commissioner both failed to give effect to the
"or by an express statement that the construction we give to
20 C.F.R.

§

404.1520(c)

(1984) is used" alternative given by the

9

------------

Fifth Circuit in Stone.

The severity standard mandated by Stone

was as follows:
An impairment can be considered as not severe only
if it is a slight abnormality having such minimal
effect on the individual that it would not be expected
to interfere with the individual's ability to work,
irrespective of age, education or work experience.
Stone v. Heckler, 752 F.2d at 1101 (brackets and internal
quotation marks omitted) .

The ALJ made an express statement of

the severity standard he used that was essentially the same
standard the Fifth Circuit gave to the regulation in Stone, thus
satisfying Stone's requirement.

Doc. 32 at 26 (item 4) & 27.

Moreover, even if there were some technical shortcoming in
the ALJ's description of the severity standard he used, it would
not lead to a remand because it would not constitute a harmful
error, see Audler v. Astrue, 501 F.3d 446, 448-49 (5th Cir.
2007), and for the reason that technical errors such as those
cannot provide a basis for a remand.

See Taylor v. Astrue, 706

F.3d 600, 602-03 (5th Cir. 2012).
Thus, plaintiff's belatedly asserted contention of a
reversible legal error based on Stone v. Heckler fails.

The

decision of the ALJ shows that he utilized the proper sequential
evaluation process and used the appropriate standard for

10

determining whether plaintiff had a severe impairment or
combination of impairments.
C.

Doc. 32 at 25-27.

Substantial Evidence Supports the ALJ's Decision
1.

The Substantial-Evidence Standard to Be Applied

The Commissioner, not the court, has the duty to weigh the
evidence, resolve material conflicts in the evidence, and make
credibility choices.
Cir. 1991)
Cir. 1985).

Carrier v. Sullivan, 944 F.2d 243, 247 {5th

{per curiam); Carry v. Heckler, 750 F.2d 479, 482 {5th
The court's role is to "scrutinize the record in its

entirety to determine whether substantial evidence supports" the
Commissioner's findings.
{5th Cir. 1992)
Cir. 1983)

Randall v. Sullivan, 956 F.2d 105, 109

{citing Ransom v. Heckler, 715 F.2d 989, 992 {5th

{per curiam)).

If supported by substantial evidence,

the Commissioner's findings are deemed conclusive, and the court
must accept them.
91

s.

See Richardson v. Perales, 402 U.S. 389, 390,

Ct. 1420, 1422 {1971).

"The role of the courts in this

quintessentially administrative process is extremely narrow and
the Commissioner's decision is entitled to great deference."
Leggett v. Chater, 67 F. 3d 558, 564 {5th Cir. 1995); Lewis v.
Weinberger, 515 F.2d 584, 586 {5th Cir. 1975).
The determination of whether there is substantial evidence
to support the fact findings of the Commissioner does not involve

11

reweighing the evidence, or trying the issues de novo.
67 F.3d at 555.

The court cannot substitute its own judgment for

that of the Commissioner.
Cir. 1987)

Ripley,

Neal v. Bowen, 829 F.2d 528, 530 (5th

(per curiam); Chaparro v. Bowen, 815 F.2d 1008, 1010

(5th Cir. 1987)

(per curiam); Milam v. Bowen, 782 F.2d 1284, 1286

(5th Cir. 1986). There will not be a finding of "no substantial
evidence" unless "there is a conspicuous absence of credible
choices."

Harrell v. Brown, 862 F.2d 471, 475 (5th Cir. 1988)

(per curiam) .
Substantial evidence is more than a scintilla but less than
a preponderance; it is "such relevant evidence as a reasonable
mind might accept to support a conclusion."

Ripley v. Chater, 67

F.3d 552, 555 (5th Cir. 1995); Greenspan v. Shalala, 38 F.3d 232,
236 (5th Cir. 1994). Also basic is the claimant's burden of
proof; as the Fifth Circuit reminded in Hames v. Heckler: "[i)t
must be remembered that an individual claiming disability
insurance benefits under the Social Security Act has the burden
of proving her disability."
(per curiam)

707 F.2d 162, 165 (5th Cir. 1983)

(citations omitted).

See also Mays v. Bowen, 837

F.2d at 1364; Shearer v. Astrue, 2008 WL 5136949, at *3, No.
4:07-CV-552-A (N.D. Tex. Dec. 5, 2008).

12

2.

There Was an Abundance of Evidence to Support the ALJ's
Severity Finding

The ALJ began his discussion of the severity issue by
affirming that he fulfilled his obligation to consider the
complete record, stating:
In reaching the conclusion that the claimant's
impairments are only slight abnormalities which have
such a minimal effect on the claimant that they would
not be expected to interfere with his ability to work
irrespective of age, education, or work experience, I
have considered all symptoms and the extent to which
these symptoms can reasonably be accepted as consistent
with the objective medical evidence and other evidence,
based on the requirements of 20 CFR 404.1529 and
416.929 and SSRs 96-4p and 96-7p. I have also
considered opinion evidence in accordance with the
requirements of 20 CFR 404.1527 and 416.927 and SSRs
96-2p, 96-5p, 96-6p, and 06-3p.
Doc. 32 at 27.

He concluded his discussion of the severity issue

with the following summations:
In sum, the record as a whole supports a conclusion
that the claimant does not have a severe impairment or
combination of impairments.
Because the claimant has medically determinable mental
impairments, I have considered the four broad
functional areas 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). These four broad functional
areas are known as the "paragraph B" criteria. For the
reasons discussed above, I find the claimant has no
limitation in the first functional area, activities of
daily living; mild limitation in the second and third
functional areas, social functioning and concentration,
persistence, or pace; and has experienced no episodes
of decompensation of extended duration in the fourth

13

functional area. Because the claimant's mental
impairments cause no more than "mild" limitation in any
of the first three functional areas and "no" episodes
of decompensation of extended duration in the fourth
area, they are nonsevere (20 CFR 404.1520a(d) (1) and
416. 920a( d) ( 1)).
Id. at 33.
Between the beginning and concluding comments of the ALJ on
the severity issue, as set forth above, the ALJ devoted six pages
of a detailed analysis of the evidence, primarily directing his
attention to evidence bearing on the severity issue, including
evidence contradicting, or consistent with, evidence that might
be viewed to be supportive of a finding of severity.
33.

Id. at 27-

The analysis conducted by the ALJ on those pages is self-

explanatory, and nothing would be gained by a detailed review of
the analysis in this memorandum opinion.

Suffice to say, the

court is satisfied that the ALJ correctly concluded that there
was significant, and substantial, evidence to rebut any and all
of the evidence tending to support plaintiff's claim.

The ALJ

pointed out repeated inconsistencies, and repeated shortcomings,
in plaintiff's claims and the medical records presented in
support of plaintiff's severity contention.

The court is

satisfied that the record before the ALJ supports the statements
he made in his analysis.

14

If the court were to adopt the recommendation of the
magistrate judge, the court would find itself in the position of
reweighing the evidence, and trying the issues de novo, and
substituting the court's own judgment for that of the
Commissioner.
that.

As noted above, the court is not permitted to do

Moreover, the ALJ's opinion and the record before the ALJ

gives the court no reason to think that a reweighing of the
evidence, or the trying of the issue de novo, would result in an
outcome different from that reached by the ALJ.
Therefore, the court has concluded that the ALJ's finding
that plaintiff does not have a severe impairment or combination
of impairments is supported by substantial evidence and is to be
affirmed.

The court's conclusion disposes adversely to plaintiff

the first of the two issues he presented to the court for
resolution.
D.

Supra at 3.

Plaintiff's New Evidence of Diabetic Neuropathy Is Not a
Basis for a Remand
The second issue plaintiff presented for resolution in his

brief before the magistrate judge was that the new evidence
adduced by plaintiff of diabetic neuropathy warrants remand for
proper consideration.

Supra at 3.

The tentative nature of

plaintiff's definition of this issue is matched by the tentative
nature of the following reasons given by the magistrate judge for

15

suggesting that the court order the ALJ on remand to take another
look at the severity of plaintiff's diabetes impairment:
While the mere presence or diagnosis of some
impairment is not disabling per se, the new evidence that
Salmond submitted to the Appeals Council after the ALJ
decision does raise an issue that Salmond's diabetes may
now have some impact on his ability to work. Because the
Court is remanding the case for the ALJ to reconsider its
decision at
Step
Two
regarding
Salmond's
mental
impairments, the ALJ should take another look at the
severity of Salmond's diabetes impairment as well.
Doc. 40 at 12 (footnote omitted).
Such a reconsideration is inappropriate when, as here,
substantial evidence before the ALJ revealed that plaintiff's
diabetes was not severe during the relevant period for
determining plaintiff's eligibility for benefits. To allow
further consideration of such impairment cannot be reconciled
with the heavily deferential framework for reviewing decisions of
the Commissioner.
Moreover, the evidence upon which plaintiff and the
magistrate judge relied in suggesting that diabetic neuropathy be
considered on a remand has no relevance to the issues decided by
Commissioner.

Plaintiff relies on a Medical Assessment of

Ability to Do Work-Related Activities ("MEM'') that was conducted
in the year 2015.

Doc. 34 at 1290-1311.

The neuropathy of which

plaintiff complained at that time did not exist during the time

16

period relevant to the decision of the ALJ, as affirmed by
Commissioner.
E.

Conclusion
For the reasons given above, the court concludes that the

magistrate judge's recommendations of reversal and remand should
be rejected.

The court disapproves of all proposed findings and

conclusions of the magistrate judge that are inconsistent with
this memorandum opinion.

The court concludes that all arguments

made by plaintiff in support of the issues he presents in his
brief are without merit.
IV.

Order
Therefore,
The court ORDERS the decisions of the Commissioner that,
based on the application for a period of disability and
disability insurance benefits protectively filed by plaintiff on
May 13, 2013, plaintiff is not disabled under sections 216(i} and
223(d) of the Social Security Act, and that, based on the
application for supplemental security income protectively filed
by plaintiff on May 13, 2013, plaintiff is not disabled under

17

section 1614 (a) (3) (A) of the Social Security Act, be, and are
hereby, affirmed.
SIGNED December 27, 2016.

18