Shine v. Berryhill
Filing
17
MEMORANDUM OPINION denying 14 MOTION for Summary Judgment , granting 11 Cross MOTION for Summary Judgment and Brief in Support of Cross-Motion for Summary Judgment (Signed by Magistrate Judge Nancy K Johnson) Parties notified.(sjones, 4)
United States District Court
Southern District of Texas
ENTERED
August 10, 2018
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
§
§
Plaintiff,
§
§
v.
§
§
NANCY A. BERRYHILL,
§
ACTING COMMISSIONER OF THE
§
SOCIAL SECURITY ADMINISTRATION, §
§
Defendant.
§
David J. Bradley, Clerk
JIMMY LEE SHINE,
CIVIL ACTION NO. H-17-2840
MEMORANDUM OPINION
Pending before the court1 are Plaintiff’s Motion for Summary
Judgment
(Doc.
14)
Judgment (Doc. 11).
and
Defendant’s
Cross-Motion
for
Summary
The court has considered the motions, the
responses, the administrative record, and the applicable law.
For
the reasons set forth below, the court DENIES Plaintiff’s motion
and GRANTS Defendant’s motion.
I.
Case Background
Plaintiff filed this action pursuant to 42 U.S.C. §§ 405(g)
for judicial review of an unfavorable decision by the Social
Security Administration (“SSA”) Commissioner (“Commissioner” or
“Defendant”) regarding Plaintiff’s claim for disability insurance
benefits under Title II of the Social Security Act (“the Act”).
A.
Medical History
1
The parties consented to proceed before the undersigned magistrate
judge for all proceedings, including trial and final judgment, pursuant to 28
U.S.C. § 636(c) and Federal Rule of Civil Procedure 73. Doc. 10, Ord. Dated
Dec. 4, 2017.
Plaintiff was born on November 7, 1953, and was fifty-seven
years old on the alleged disability onset date of September 15,
2011.2
Plaintiff had a high school education and had worked as a
maintenance engineer for twenty-eight years at the time he quit
working in 2011.3
On January 6, 2015, Plaintiff underwent a consultative medical
examination with Hanna J. Abu-Nassar, M.D., (“Dr. Abu-Nassar”) in
conjunction
with
his
application
for
disability
benefits.4
Plaintiff’s chief complaints were a bulging disk in his lower back,
bone spurs, and arthritis.5
Plaintiff relayed his history of back
pain, which originated in April 1998 while moving a refrigerator.6
Plaintiff noted that he had been diagnosed with a bulging disk in
his lower back and bone spurs, but that he had not undergone
surgery or received injections.7
“recurrent back pain.”8
Plaintiff still experienced
Plaintiff also felt pain in his left leg
and knee and treated his pain with a heating pad and over-thecounter medications such as Advil and Aleve.9
It was also noted
2
See Tr. of the Admin. Proceedings (“Tr.”) 162.
3
See Tr. 29-30.
4
See Tr. 252-59.
5
See Tr. 252.
6
See id.
7
See id.
8
Id.
9
See Tr. 252-53.
2
that Plaintiff’s left knee was subject to “intermittent swelling,
a warm sensation and stiffness as well as numbness.”10
also reported neck pain.11
Plaintiff
In terms of prior medical treatment,
Plaintiff had not seen his chiropractor since 2011 and had not had
an appointment with his primary care physician in eight years.12
Dr. Abu-Nassar conducted a physical examination of Plaintiff.13
Plaintiff’s spine showed a “normal curvature” but Dr. Abu-Nassar
noted that he had “tenderness over the lower lumbar region in the
midline and over the right buttock.”14
Plaintiff’s knee was not
tender or swollen, his gait was normal, the straight leg raising
test was normal, deep tendon reflexes were normal, and Plaintiff
had the ability to walk on his toes, heels, and in tandem.15
Plaintiff had no swelling or limitation in his motion in his
extremities.16
Plaintiff could lift forty pounds and ten pounds
overhead, walk four blocks at once, stand for forty minutes, sit
for thirty minutes, bend, squat, and climb half a flight of
stairs.17
Plaintiff’s
10
See id.
12
See id.
13
See Tr. 252-59.
14
Tr. 254.
15
See id.
16
See id.
17
activities
Tr. 253.
11
daily
See Tr. 253.
3
included
watching
television, “light” housework, including cooking, and walking for
exercise.18
Plaintiff did not use assistive devices, and had the
abilities to “write, hold a coffee-cup, open a jar top, hold a
light skillet and a broom.”19
This examination also included two x-rays.20
The x-ray of
Plaintiff’s left knee was “unremarkable,” showing “[n]o fracture,
dislocation, bone or joint space abnormality” and “[n]o soft tissue
calcification.”21
or
Plaintiff’s spine x-ray revealed “[n]o fracture
dislocation”
but
showed
“[d]egenerative
changes,
spondylosis, and disk space narrowing” at L5-S1.22
showed “[s]ome
dorsal
degenerative
spine.23
Plaintiff’s
“unremarkable.”24
Dr.
changes/spondylosis”
SI
Abu-Nassar
joints
were
concluded
bony
The x-ray also
in
the
found
that
lower
to
there
be
were
“[m]arked degenerative changes and disk space narrowing at L5-S1.”25
Overall,
Dr.
Abu-Nassar
concluded
that
Plaintiff
had
a
“[s]uspect herniated disk at L4-L5, possibly at L5-S1 with lumbar
radiculopathy,
possibly
18
Id.
20
See Tr. 257-59.
21
Tr. 257.
22
Id.
23
Id.
24
Id.
25
the
See id.
19
on
Id.
4
left.
Possible
left
knee
degenerative joint disease as well as possible cervical spine
degenerative disease.”26
B.
Application to SSA
Plaintiff applied for disability insurance benefits on August
29, 2014.27
claimed
his
In a disability report from the same date, Plaintiff
ability
to
work
was
limited
by
the
following
conditions: bulging disc in the lower back, bone spurs in his back,
and arthritis.28
Plaintiff completed a function report on November 30, 2014.29
Plaintiff reported that he injured his back while working in 1998,
and this injury made it difficult to move out of bed, sit for long
periods of time, and lift objects over forty pounds.30
also caused numbness in his legs.31
This injury
Plaintiff did not engage in
many daily activities other than occasionally walking outside; he
spent most of his time lying around.32
Plaintiff’s condition
affected his ability to sleep, and he sometimes needed help with
dressing himself, moving in and out of the bathtub, and using the
26
Tr. 255.
27
See Tr. 162-71.
28
See Tr. 198.
29
See Tr. 205-12.
30
See Tr. 205.
31
See id.
32
See Tr. 206.
5
toilet.33
Plaintiff did not complete household chores or yard work due
to numbness in his legs and back pain.34
While Plaintiff could
drive a car, he did not leave the house by himself.35
Plaintiff
could manage money but he reported that this ability was impacted
by his conditions.36
Plaintiff listed his hobbies and interests as
watching television and reading, which he engaged in on a daily
basis.37
Plaintiff did not socialize often, but visited family
members on occasion.38
Plaintiff reported that he could no longer
engage in outdoor activities after the onset of his back pain.39
Plaintiff’s condition affected his ability to lift, squat,
bend, stand, reach, walk, sit, kneel, climb stairs, complete tasks,
and use his hands.40
These physical activities caused problems for
Plaintiff such as “sharp” pain in his back and legs, numbness, and
spasms.41
Plaintiff estimated that he could walk for about one
hundred yards before he would require rest for ten to fifteen
33
See id.
34
See Tr. 207-08.
35
See Tr. 208.
36
See Tr. 208-09.
37
See Tr. 209.
38
See id.
39
See Tr. 210.
40
See id.
41
See id.
6
minutes.42
Plaintiff reported that he could pay attention for
thirty minutes, follow written instructions thirty percent of the
time, and follow spoken instructions.43
stress and changes in routine.44
Plaintiff adapted well to
After he received his injury,
Plaintiff sometimes utilized a cane to assist in ambulating.45
In
terms of medication, Plaintiff listed that he took the following
without side effects: extra-strength Tylenol, Aleve, Lyrica, and
Propoxy-N/apap.46
At the end of his function report, Plaintiff
explained that while he was employed, he would rarely work a full
week
and
performing
utilized
his
retirement.”48
FMLA
position,
leave.47
he
“was
Because
force
of
to
the
take
difficulty
a[n]
early
Plaintiff explained that he could only afford over-
the-counter medication to treat his conditions.49
On January 23, 2015, the SSA found Plaintiff not disabled at
the initial level of review.50
42
See id.
43
See id.
44
See Tr. 211.
45
See id.
46
See Tr. 212.
47
See id.
48
Id.
49
See id.
50
Robert Herman, M.D., (“Dr. Herman”)
See Tr. 46-54.
7
opined that Plaintiff had a severe back impairment.51
Plaintiff’s
exertional limitations were assessed as follows: occasionally lift
and/or carry twenty pounds, frequently lift and/or carry ten
pounds, stand and/or walk six hours in an eight-hour work day, sit
about six hours in an eight-hour work day.52
Plaintiff had the
following postural limitations: occasional climbing of ladders,
ropes, or scaffolds and occasional stooping; he could frequently
balance, climb ramps or stairs, crouch, kneel, or crawl.53
Because
of his residual functional capacity (“RFC”), Plaintiff could not
perform his past relevant work.54
Because he was able to perform
light, skilled work, Dr. Herman believed that Plaintiff could
perform the jobs of electrical technician, testing technician, or
tester electrical continuity.55
In an updated disability report from February 12, 2015,
Plaintiff stated that his conditions had “become more severe”
causing
him
“greater
limitations”
that
were
virtually every aspect of [his] daily life.”56
2015,
the
SSA
again
51
See Tr. 51.
53
See Tr. 51-52.
54
See Tr. 53.
55
See Tr. 53-54.
56
Plaintiff
See Tr. 50-52.
52
found
Tr. 223.
8
not
“more
severe
in
On February 27,
disabled
upon
reconsideration,
making
similar
findings
as
in
the
initial
determination.57
After this denial, Plaintiff completed another
disability report on April 8, 2015, again reporting a worsening of
his condition.58 Plaintiff requested a hearing before an ALJ.59 The
ALJ granted Plaintiff’s request and scheduled the hearing on June
22, 2016.60
C.
Hearing
At the hearing, Plaintiff and a vocational expert, Cheryl
Swisher (“Swisher” or “VE”), testified.61 Plaintiff was represented
by an attorney.62
Plaintiff testified that he was sixty-two years old, had a
high school education, and was unmarried.63
At the time of the
hearing, he was living with the mother of his children and his
twenty-one-year-old son.64
Plaintiff worked at as a maintenance engineer for about
57
See Tr. 55-64.
58
See Tr. 231.
59
See Tr. 75-76.
60
See Tr. 94-98.
61
See Tr. 26-45.
62
See id.
63
See Tr. 29.
Elsewhere (for example, in
Plaintiff reported being married. See, e.g., Tr. 206.
64
See Tr. 29-30.
9
the
function
report),
twenty-eight
years.65
Plaintiff
explained
that
the
job
was
physically demanding, as he had to constantly stand, walk, and lift
heavy objects of up to one hundred-fifty pounds.66
While Plaintiff
was working, he supervised twenty-five people, as he was the chief
shop lead man of the engineering department at Ben Taub Hospital.67
This department was responsible for maintenance and repair of the
entire hospital.68
Plaintiff did not have hiring or firing power,
but he tracked the work his employees were to complete and also
created reports for his supervisors.69
Plaintiff was certified as
a welder, a refrigeration technician, and as a power II operator.70
Plaintiff knew how to perform electrical work and helped repair air
conditioning units and generators.71
Plaintiff was covered under the Family Medical Leave Act
(“FMLA”) from 1989 to 2011, when he stopped working.72
Plaintiff
explained that because he was covered under the FMLA, he could take
leave for up to one hundred and twenty-two days annually.73
65
See Tr. 30.
66
See id.
67
Tr. 37.
68
See id.
69
See Tr. 37-38.
70
See Tr. 38.
71
See Tr. 38-39.
72
See Tr. 31.
73
See id.
10
Plaintiff sometimes had difficulty going to work and reported that
he
experienced
extremities.”74
“sharp,
shooting
pains
in
my
legs,
my
lower
Plaintiff utilized a transcutaneous electrical
nerve stimulation (“TENS”) unit and a shock therapy machine for his
pain.75
Plaintiff missed about eight to ten days of work every
month while employed.76
Plaintiff sought medical treatment prior to his retirement in
2011, stating that he was treated for “[b]ulging discs . . .
herniated
disc,
bone
spurs.”77
Plaintiff
took
prescription
medication for back pain and surgery was considered, but never
scheduled.78
Plaintiff stopped seeing his doctor once he retired
because he no longer had to perform physically-demanding tasks such
as
lifting
objects
weighing
over
forty
pounds
or
requiring
continuous movement.79 Plaintiff said that he switched to over-thecounter pain medication, which he took three times a week, and he
rested more since he was no longer working.80 He also used his TENS
unit once a month for his pain and occasionally walked with a
74
Id.
75
See Tr. 31-32.
76
See Tr. 32.
77
Id.
78
See Tr. 32-33.
79
See Tr. 33.
80
See Tr. 33, 37.
11
cane.81 Plaintiff explained that he sometimes had difficulty seeing
far away objects or reading, but wearing glasses helped him.82
The ALJ asked Plaintiff about his current physical abilities.83
Plaintiff opined that he could stand for about forty-five minutes
to an hour before needing to sit.84
longer than
twenty
to
thirty
Plaintiff could not sit for
minutes
before
standing
up
and
stretching.85 Plaintiff had difficulty undertaking household chores
or yard work because it caused him back pain, but he would
sometimes sweep or mop the house.86
Plaintiff did not wash dishes,
do laundry, take out the garbage, vacuum, make the bed, change the
sheets,
grocery
shop,
use
the
computer,
or
attend
religious
services.87 Plaintiff was not always able to get himself in and out
of the bathtub.88
Plaintiff was able to drive and belonged to the
neighborhood watch group.89
Plaintiff smoked approximately a pack
of cigarettes per month.90
81
See Tr. 35, 37.
82
See Tr. 43-44.
83
See Tr. 33-34.
84
See Tr. 33-34.
85
See Tr. 34.
86
See Tr. 34-35.
87
See Tr. 35-36.
88
See Tr. 35.
89
See Tr. 36.
90
See Tr. 36-37.
12
Towards the end of the hearing, the VE discussed Plaintiff’s
past work history.91
The VE stated that Plaintiff’s past relevant
work met the definition of a building maintenance repairer under
the Dictionary of Occupational Titles (“DOT”) and was considered a
medium, skilled position.92
The VE opined that Plaintiff had no
transferable skills from this past work to a light position due to
his age.93
D.
Commissioner’s Decision
On
September
decision.94
21,
2016,
the
ALJ
issued
an
unfavorable
The ALJ found that Plaintiff last met the requirements
of insured status on December 31, 2015, and that Plaintiff did not
engage in substantial gainful activity from the onset date of
September 15, 2011, through the date last insured.95
that
Plaintiff
had
one
“[d]isorders of the back.”96
medically
determinable
The ALJ found
impairment:
The ALJ also acknowledged Plaintiff’s
allegation that he had knee problems, but found that it was not a
medically determinable impairment, as the evidence demonstrated a
91
See Tr. 39-45.
92
See Tr. 40-41.
93
See Tr. 42.
94
See Tr. 15-20.
95
See Tr. 17.
96
Id.
13
normal x-ray and normal ranges of motion.97
The ALJ found that
Plaintiff had no severe impairments, reasoning that he had no
impairment or combination of impairments that would limit his
ability
to
perform
basic
work-related
activities
for
twelve
months.98
The ALJ discussed Plaintiff’s claimed symptoms and his medical
treatment and stated that he followed the regulatory requirements
as to both.99
evaluated
When considering Plaintiff’s symptoms, the ALJ first
whether
a
medically
determinable
impairment
reasonably be expected to produce the alleged symptoms.100
could
Second,
he evaluated the “intensity, persistence, and limiting effects of
the claimant’s symptoms to determine the extent to which they limit
the claimant’s functioning,” looking to other evidence in the
record for those symptoms that were not substantiated by objective
medical evidence.101
The
ALJ
discussed
Plaintiff's
2015
clinical
including x-rays of his spine and left knee.102
examination,
The only opinion
evidence in the record were those of the state agency physicians
97
See id.
98
See Tr. 18.
99
See Tr. 18-19.
100
See Tr. 18.
101
Id.
102
See Tr. 19.
14
who opined that Plaintiff's back disorder was severe.103
The ALJ
gave these opinions little weight as the only evidence in support
was the “highly benign clinical exam,” explaining that there were
“no significant abnormalities.”104
Id.
The ALJ concluded:
After
considering
the
evidence
of
record,
the
Administrative Law Judge finds that the claimant's
medically determinable impairment could have reasonably
been expected to produce the alleged symptoms. However,
the claimant's statements concerning the intensity,
persistence and limiting effects of these symptoms are
not entirely consistent with the medical evidence and
other evidence in the record for the reasons explained in
this decision.105
Therefore, the ALJ found that Plaintiff was not disabled from
the alleged onset date through the date last insured.106
Plaintiff
appealed the ALJ's decision, and, on July 27, 2017, the Appeals
Council denied Plaintiff's request for review, thereby transforming
the ALJ's decision into the final decision of the Commissioner.107
After receiving the Appeals Council’s denial, Plaintiff sought
judicial review of the decision by the court.108
II.
Standard of Review and Applicable Law
The court’s review of a final decision by the Commissioner
103
See id.
104
Id.
105
Tr. 19.
106
See Tr. 20.
107
See Tr. 1-6.
108
See Doc. 1, Pl.’s Compl.
15
denying disability benefits is limited to the determination of
whether: 1) the ALJ applied proper legal standards in evaluating
the record; and 2) substantial evidence in the record supports the
decision.
A.
Waters v. Barnhart, 276 F.3d 716, 718 (5th Cir. 2002).
Legal Standard
In order to obtain disability benefits, a claimant bears the
ultimate burden of proving he is disabled within the meaning of the
Act.
Wren v. Sullivan, 925 F.2d 123, 125 (5th Cir. 1991).
Under
the applicable legal standard, a claimant is disabled if she is
unable “to engage in any substantial gainful activity by reason of
any medically determinable physical or mental impairment. . . 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); see also
Greenspan v. Shalala, 38 F.3d 232, 236 (5th Cir. 1994).
The
existence of such a disabling impairment must be demonstrated by
“medically acceptable clinical and laboratory diagnostic” findings.
42 U.S.C. § 423(d)(3), (d)(5)(A); Jones v. Heckler, 702 F.2d 616,
620 (5th Cir. 1983).
To determine whether a claimant is capable of performing any
“substantial
gainful
activity,”
the
regulations
provide
that
disability claims should be evaluated according to the following
sequential five-step process:
(1) a claimant who is working, engaging in a substantial
gainful activity, will not be found to be disabled no
matter what the medical findings are; (2) a claimant will
not be found to be disabled unless he has a “severe
16
impairment;” (3) a claimant whose impairment meets or is
equivalent to [a Listing] will be considered disabled
without the need to consider vocational factors; (4) a
claimant who is capable of performing work that he has
done in the past must be found “not disabled;” and (5) if
the claimant is unable to perform his previous work as a
result of his impairment, then factors such as his age,
education, past work experience, and [RFC] must be
considered to determine whether he can do other work.
Bowling v. Shalala, 36 F.3d 431, 435 (5th Cir. 1994); see also 20
C.F.R. § 404.1520.
The analysis stops at any point in the process
upon a finding that the claimant is disabled or not disabled.
Greenspan, 38 F.3d at 236.
B.
Substantial Evidence
The widely accepted definition of “substantial evidence” is
“that quantum of relevant evidence that a reasonable mind might
accept as adequate to support a conclusion.” Carey v. Apfel, 230
F.3d 131, 135 (5th Cir. 2000).
It is “something more than a
scintilla but less than a preponderance.”
Id.
The Commissioner
has the responsibility of deciding any conflict in the evidence.
Id.
If the findings of fact contained in the Commissioner’s
decision are supported by substantial record evidence, they are
conclusive, and this court must affirm.
42 U.S.C. § 405(g).
Only if no credible evidentiary choices of medical findings
exist to support the Commissioner’s decision should the court
overturn it.
1988).
See Johnson v. Bowen, 864 F.2d 340, 343-44 (5th Cir.
In applying this standard, the court is to review the
entire record, but the court may not reweigh the evidence, decide
17
the issues de novo, or substitute the court’s judgment for the
Commissioner’s judgment.
Cir. 1999).
Brown v. Apfel, 192 F.3d 492, 496 (5th
In other words, the court is to defer to the decision
of the Commissioner as much as is possible without making its
review meaningless.
Id.
III. Analysis
Plaintiff requests judicial review of the ALJ’s decision to
deny disability benefits.
Plaintiff asserts that the ALJ erred by
finding that his back impairment was not severe and that he should
have been found to be disabled.
Defendant argues that the ALJ’s
decision is legally sound and is supported by substantial evidence.
At step two, the ALJ considers whether the claimant has a
medically determinable impairment or combination of impairments
that are severe.
by
whether
the
20 C.F.R. § 404.1520(c).
impairment
or
Severity is determined
combination
of
impairments
significantly limits the claimant’s ability to perform basic work
activities.
20 C.F.R. § 404.1521; Social Security Ruling (“SSR”)
85-28, 1985 WL 56856 (S.S.A. 1985); SSR 96-3p, 1996 WL 374181
(S.S.A. July 2, 1996); SSR 96-4p, 1996 WL 374187 (S.S.A. July 2,
1996).
In Stone v. Heckler, 752 F.2d 1099, 1101 (5th Cir. 1985), the
court held that an impairment is considered non-severe only if it
does not cause more than a minimal limitation in the claimant’s
ability to perform basic work activities or activities of daily
18
living.
The court stated, “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
education or work experience.”
work,
irrespective
of
age,
Id. (internal quotations and
citations omitted).
In his opinion, the ALJ explained:
In terms of the claimant’s disorder of the back, the
record does not support a finding that the claimant’s
back impairment is severe, as it would not interfere with
the claimant’s ability to function in a work setting. In
this connection, Exhibit 1F reflects a normal physical
examination. The Administrative Law Judge observes that
Exhibit 1F reflects that the claimant can bend and squat
and uses no assistive devices.
The exhibit further
reveals that the claimant has a normal spinal curvature
and no paravertebral spasms or trigger paints [sic]. Not
only does he have a normal gait and tandem walk, but he
can also walk on his toes.
In addition, Exhibit 1F
reveals that he has normal ranges of motion, including of
the neck and back, and normal motor muscle power, normal
sensory functioning, and normal reflexes.
Further,
Exhibit 1F documents that the claimant has a normal
ability to fine finger, a normal grip [, and] negative
straight leg raising.
These are not the clinical
findings that one would expect to find in the medical
records of a person disabled by a back impairment.109
Overall, the ALJ found that Plaintiff’s one medical examination was
normal.
ALJ’s
The court finds that substantial evidence supports the
determination
severe.
that
Plaintiff’s
back
impairment
was
not
The normal findings from this examination, along with his
testimony that he took over-the-counter medication for his pain
109
Tr. 19.
19
three times a week is substantial evidence that his back impairment
was not severe.
Plaintiff challenges the ALJ’s rejection of the state agency
consultant opinions that his back impairment was severe.
However,
as he explained in his decision, Plaintiff’s examination by Dr.
Abu-Nassar resulted in normal findings.
In his motion, Plaintiff
focuses on the fact that Dr. Abu-Nassar concluded that the x-ray
showed “marked degeneration.”
The ALJ rejected this finding
because of the “normal” clinical examination and the fact that the
x-ray report showed only “some” degeneration in Plaintiff’s spine.
The ALJ noted this inconsistency in support of his finding to give
the state agency opinions little weight.
The court finds that the
ALJ’s decision to give the state agency reviewing opinions little
weight is supported by substantial evidence from the examination
conducted by Dr. Abu-Nassar.
The ALJ has a duty to develop the facts fully and fairly
relating to an applicant's claim for disability benefits.
v. Chater, 67 F.3d, 552, 557 (5th Cir. 1995).
Ripley
Reversal of the
Commissioner's decision is appropriate only if Plaintiff can show
that she was prejudiced in some way.
Id.
Prejudice can be
established by showing that, had the ALJ adequately performed his
duty, he “could and would have adduced evidence that might have
altered the result.”
Cir. 2012).
Jones v. Astrue, 691 F.3d 730, 735 n.8 (5th
In other words, Plaintiff must show that absent the
20
error, the ALJ might have reached a different conclusion.
Ripley,
67 F.3d at 557 n.22.
Here, even if the ALJ found that Plaintiff had a severe back
impairment at step two, substantial evidence supports a finding
that Plaintiff is not disabled.
Abu-Nassar
revealed
Plaintiff’s back.
normal
The medical examination with Dr.
findings
other
than
tenderness
in
Plaintiff has not sought medical treatment for
his impairments since he stopped working and only takes over-thecounter medication for his back pain.
opinions,
which
found
that
his
The state agency reviewing
back
impairment
was
severe,
proceeded with the full analysis and, relying on vocational expert
opinions, found that he could perform other jobs in the national or
regional economy at the light level of exertion.
Therefore,
substantial evidence supports the ALJ’s decision, and even if
Plaintiff’s back impairment was severe, failure to make such a
finding was harmless error.
IV. Conclusion
Based on the foregoing, the court DENIES Plaintiff’s motion
and GRANTS Defendant’s.
SIGNED in Houston, Texas, this 10th
day of August, 2018.
______________________________
U.S. MAGISTRATE JUDGE
21
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