Rodriguez v. Astrue

Filing 25

MEMORANDUM OPINION AND ORDER. Signed by Judge Richard P. Mesa. (fm, )

IN THE UNITED STATES DISTRICT COURT

fl.,1

FOR THE WESTERN DISTRICT OF TEXAS
3:

EL PASO DIVISION

31

çcouR r
y

RENE RODRIGUEZ,

§
§

Plaintiff,

§
§

V.

NO. EP-10-CV-399-

§
§

MICHAEL J. ASTRUE,
Commissioner of the Social
Security Administration,

§
§
§

§

Defendant.

§

MEMORANDUM OPINION AND ORDER
This is a civil action seeking judicial review of an administrative decision. Jurisdiction is
predicated upon 42 U.S.C.

§

405(g). Both parties consented to trial on the merits before a United

States Magistrate Judge. The case was transferred to this Court for trial and entry of judgment

pursuant to 28 U.S.C.

§ 63 6(c)

and Appendix C to the Local Court Rules.

Plaintiff RENE RODRIGUEZ appeals the decision of the Commissioner of the Social
Security Administration ("Commissioner") denying his claim for benefits on the ground that he is

not disabled within the meaning of the Social Security Act. After considering the briefs, the record
evidence, the transcript of the administrative hearing and the written decision of the Administrative

Law Judge ("AU"), the Court finds the final decision of the Commissioner should be AFFIRMED.
BACKGROUND

Plaintiff was born on September 4, 1953, making him 56 years old at the time of the AU's
1

decision. (R. 26, 15).' He has an eighth grade education and previous work experience as a laborer
at ajunk yard. (R. 27-29). He testified he can no longer work due to constant radiating lower back

pain for which he wears a brace, leg pain and numbness, arthritis pain in his elbows, wrist, fingers
and shoulders, diabetes, high blood pressure, stomach problems, anemia, problems sleeping,
headaches, dizziness, and red, burning, watery eyes. (R. 30-37).

PROCEDURAL HISTORY
On January 15,2008, Plaintiff filed an application for supplemental security income ("SSI")
in which he alleged disability since January 1, 1997. (R. 106-112). On March 10, 2008, his

application was denied. (R. 58-62). He requested reconsideration and was denied again on April
9, 2008. (R. 63-66). On July 22, 2009, Plaintiff appeared with his attorney for an administrative

hearing. (R. 23-5 1). His application for benefits was denied by the AU's written decision issued
on September 11, 2009. (R. 7-15). On August 28, 2010, the Appeals Council denied Plaintiff's
request to review the AU's decision, thereby making it the final decision of the Commissioner. (R.
1-3).

On October 28, 2010, Plaintiff filed a motion to proceed in forma pauperis with the filing of

his complaint seeking judicial review of the administrative decision. (Doc. 1). On November

1,

2010, Plaintiffs motion to proceed in forma pauperis was granted, and his complaint was filed.
(Docs. 5 & 7). On January 6, 2011, Defendant filed an answer. (Doc. 15). The following day, the

District Judge entered an order transferring the case to the undersigned for all proceedings, and a
transcript of the administrative proceedings was filed. (Docs. 17 & 19). On April 12,2011, Plaintiff

Reference to the transcript of the record of administrative proceedings filed in this case,
(Doc. 19), is designated by "R." followed by the page numbers.
1

2

filed his brief in support of reversing the Commissioner's decision and remanding for an award of
benefits or, in the alternative, for additional administrative proceedings. (Doc. 23). On May 12,
2011, the Commissioner's brief was filed. (Doe. 24). This matter is now ripe for decision.

DISCUSSION
A. Standard of Review

This Court's review of the Commissioner's decision is limited to a determination ofwhether
it is supported by substantial evidence on the record as a whole, and whether the proper legal

standards were applied in evaluating the evidence. Myers

v.

Apfel, 238 F.3d 617, 619 (5th Cir.

2001), citing Greenspan v. Shalala, 38 F.3d 232, 236 (5th Cir. 1994), cert. denied, 514 U.S. 1120
(1995). Substantial evidence is more than a scintilla, but less than a preponderance, and is such

relevant evidence as a reasonable mind might accept as adequate to support a conclusion.

Richardson

Perales, 402 U.S. 389, 401 (1971); Hames

v.

v.

Heckler, 707 F.2d 162, 164 (5th Cir.

1983).

In applying the substantial evidence standard, a court must carefully examine the entire
record, but may not reweigh the evidence or try the issues de novo. Newton

v.

Apfel, 209 F.3d 448,

452(5th Cir. 2000); Haywood v. Sullivan, 888 F.2d 1463, 1466(5th Cir. 1989). It may not substitute
its own judgment "even

if the evidence preponderates against the Secretary's decision" because

substantial evidence is less than a preponderance. Harrell v. Bowen, 862 F.2d 471, 475 (5th Cir.
1988). Conflicts in the evidence are for the Commissioner and not the courts to resolve. Speliman
v.

Shalala,

1

F.3d 357, 360 (5th Cir. 1993). A finding of"no substantial evidence" will be made

only where there is a "conspicuous absence of credible choices" or "no contrary medical evidence."

Abshire v. Bowen, 848 F.2d 638, 640 (5th Cir. 1988). If the Commissioner's findings are supported

3

by substantial evidence, they are conclusive and must be affirmed. Speilman

v.

Shalala,

1

F.3d at

360.
B. Evaluation Process and Burden

of Proof

An individual applying for benefits bears the initial burden of proving that he is disabled for
purposes of the Social Security Act. Selders

v.

Sullivan, 914 F.2d 614, 618 (5th Cir. 1990). A

disability is defined as a medically determinable physical or mental impairment lasting at least 12

months that prevents the individual from engaging in substantial gainful activity. 42 U.S.C.A.
423(d)(1)(A) (West Supp. 2011); 20 C.F.R.

§

§

416.905(a) (2011). Substantial gainful activity is

defined as work activity involving the use of significant physical or mental abilities for pay or profit.
20 C.F.R. § 416.972(a)-(b) (2011).

Disability claims are to be evaluated according to a five-step sequential process. 20 C.F.R.
§

416.920(a) (2011). A finding that a claimant is disabled or not disabled at any point in the process

is conclusive and terminates the analysis. Greenspan

v.

Shalala, 38 F.3d at 236. In the first step,

it is determined whether the claimant is currently engaged in substantial gainful activity. 20 C.F.R.
§

416.920(a)(4)(i) (2011). If so, the claimant is found not disabled regardless of his medical

condition or his age, education and work experience. Id.
In the second step, it is determined whether the claimant's impairment is severe. 20 C.F.R.
§

416.920(a)(4)(ii) (2011). If the impairment is not severe, the claimant is deemed not disabled.

Id. If the impairment is severe and meets the duration requirement, the third step of the evaluation

directs that the impairment be compared to a list of specific impairments in Appendix
P of Part 404 of the regulations. 20 C.F.R.

§

1

to Subpart

416.920(a)(4)(iii) (2011). Ifthe claimant's impairment

meets or equals a listed impairment, he is deemed disabled without considering his age, education

or work experience. Id.

If the impairment is not on the list of specific impairments in Appendix

1, the fourth step

requires a review of the claimant's residual functional capacity ("RFC") and the demands of his past
work. 20 C.F.R. §416.920(a)(4)(iv) (2011). If he can still do this kind of work, he is not disabled.
Id. If he cannot perform his past work, the fifth and final step evaluates the claimant's ability, given

his RFC and his age, education and work experience, to do other work. 20 C.F.R. § 416.920(a)(4)(v)
(2011). If he cannot do other work, he will be found to be disabled. Id.

The claimant bears the burden of proof on the first four steps of the sequential analysis.
Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987). Once this burden is met, the burden shifts to the

Commissioner to show that there is other substantial gainful employment available that the claimant
is capable of performing. Anderson

v.

Sullivan, 887 F.2d 630, 632 (5th Cir. 1989).

The

Commissioner may meet this burden by the use of opinion testimony of vocational experts or by the
use of administrative guidelines provided in the form of regulations. Rivers v. Schweiker, 684 F.2d
1144, 1155 (5th Cir. 1982).

If the Commissioner adequately points to potential alternative

employment, the burden then shifts back to the claimant to prove that he is unable to perform the
alternative work. Anderson v. Sullivan, 887 F.2d at 632.
C. The

AU's Decision
In his written decision, the AU determined Plaintiff had not engaged in substantial gainful

activity since January 15, 2008, the amended alleged onset date.2 (R. 12). At the next step, the AU

The originally alleged onset date of January 1, 1997, was amended twice at the
administrative hearing. First, the date was amended to January 15, 2008. (R. 30). Later in the
hearing, it was amended to September 4, 2008, the date of Plaintiff's 55th birthday. (R. 48). The
AU's written opinion, however, references an onset date of January 15, 2008. (R. 10, 12, 15).
2

5

determined Plaintiff has medically determinable impairments consisting of diabetes mellitus,
hypertension, low back pain, arthritis,anemia and depression. Id. The AU determined at step two,
however, that Plaintiff does not have a severe impairment or combination of impairments, and,

therefore, is not disabled. (R. 12-15).
D. Claim Presented

Plaintiff contends the AU' s finding that he does not have a severe impairment is the result

of the application of an incorrect legal standard and is not supported by substantial evidence.
Plaintiff requests that the Court reverse the Commissioner's decision that he is not entitled to
benefits, and remand for an award of benefits, or alternatively, for further administrative
proceedings.
E. Evidence Relevant to Claims
1.

Testimony at the Administrative Hearing

On July 22, 2008, an administrative hearing was held. (R. 23-5 1). Plaintiff appeared,
represented by his attorney, and testified to the following. He was born on September 4, 1953, making

him 55 years old on the date of the hearing. (R. 26). He and his wife live in a room of his father's
house. (R. 27).

Plaintiff attended school through the eighth grade, and has some problems with reading, writing
and basic math. (R. 28 ). He last worked in 1995 as a laborer at a junkyard removing parts from

vehicles. (R. 28-30, 46-47). He worked eight hours a day, five days a week, and was paid minimum
wage. (R. 46). He testified he can no longer work due to constant radiating lower back pain for which
he wears a brace, leg pain and numbness, arthritis pain in his elbows, wrist, fingers and shoulders,

diabetes, high blood pressure, stomach problems, anemia, problems sleeping, headaches, dizziness,

and red, burning, watery eyes. (R. 30-37).

Plaintiff testified he takes pills for diabetes. (R. 32-33). He checks his blood sugar weekly,
which usually ranges from 97 to 100. (R. 33). Plaintiff stated his stomach "[h]urts a lot." Id. He also
testified he takes B-12 injections for anemia, but he still has problems. (R. 34). He has problems
sleeping because he needs to urinate about every two hours during the night. Id. He attributes the

frequent urination to his diabetes medication. (R. 35). He has daily headaches for which he takes
aspirin. Id. He also takes medication for high blood pressure. Id. He experiences dizziness as a

medication side effect. (R. 36). He has red, burning, watery eyes which he guesses is caused by
medication. (R. 37). He is losing his teeth due to diabetes, but cannot afford dental care. (R. 38).

Plaintiff testified he lies down for thirty minutes about three to four times daily because he

doesn't sleep well at night. (R. 36). He is able to walk for about a block or two before he has to stop
and rest. (R. 36-37). He can remain standing for about 15 to 20 minutes and can remain sitting for

about 30 to 45 minutes. (R. 37). The most he can lift from table height is about ten pounds. Id.
In response to the AU's questions, Plaintifftestified to the following. He has a driver's license

and drives about twice weekly. (R. 39). He drove to the location of the hearing, a distance of about

ten miles. Id. He is 5 feet 5 inches tall and weighs 160 pounds. Id. He has not worked since 1995
because he has "been getting sick a lot." (R. 40). He has never been incarcerated. Id. Plaintiff and
his wife receive about $300 per month in food stamps. Id. He receives discounted medical care at the
San Vicente Clinic. (R. 41).
The AU asked Plaintiff to rate his daily pain on a scale of one to ten, with ten being the worst,

and Plaintiff rated his pain "about eight." Id. When Plaintiff was asked by the AU if he had any

medication side effects, Plaintiff replied, "I don't think so." Id. Plaintiff stated he needs to urinate

7

every two hours during the day, as well as during the night. Id. Plaintiff testified the doctor has not

told him what is causing his back pain. Id. He has not undergone any surgery, physical therapy or
other treatment for his back pain. (R. 42). Plaintiff takes ibuprofen for his back pain, and it helps a
little. Id. He takes aspirin for his arthritis as recommended by his doctor. Id.

Plaintiff has been taking monthly B- 12 shots since 2007 for anemia, and they help a little. (R.
42-43). He testified the anemia makes him dizzy, and he feels like fainting. (R. 43). Although he has

never lost consciousness, he feels faint about every two weeks, Id. He sometimes feels depressed, but
he does not take any medication for depression and has not received any treatment for depression.

(R.

eye
43-44). He experiences burning eyes for about 10 to 15 minutes once a week. (R. 44). He uses

drops for relief. Id.
When questioned by the AU about his daily activities, Plaintiff replied he doesn't do anything.
(R. 44-45).
(R. 44). He can fix a sandwich for himself, but he does not do any housework or laundry.

His wife does all the household chores. Id. Plaintiff does not believe he could perform the household

chores without pain. (R. 45).
Kay Gilreath, a vocational expert ("yE"), also testified at the hearing. Id. The VE testified

Plaintiff's past work as a laborer is classified as unskilled work performed at the heavy to very heavy
exertional

level.3

(R. 47). The AU asked the VE to assume an individual of the same age, education

the
and past relevant work experience as Plaintiff, and to further assume the individual can work at
medium exertional level, lifting and carrying 25 pounds frequently and 50 pounds occasionally, and
can stand and/or walk and sit for up to 6 hours out of an

8

hour day, taking short breaks every two

The VE clarified that the Dictionary of Occupational Titles ("DOT") does not contain a
specific listing for pulling parts in a salvage yard, but the job as performed by Plaintiff ranged
between the heavy and very heavy exertional levels. (R. 49-50).

hours. The AU asked the VE to further assume this individual can never climb ladders, ropes, or
scaffolding, can never work at unprotected heights, can never do jobs requiring balance, and should

have no jobs requiring working with hazards or dangerous equipment or driving. (R. 48-49). Based
on the hypothetical, the VE opined the hypothetical individual could not perform Plaintiff's past

relevant work which was at the heavy exertional level. (R. 49). The VE further opined that the same
hypothetical individual would be able to perform medium unskilled work as a laundry worker or as

a kitchen helper. Id.
Plaintiff's counsel was given an opportunity to question the yE. He asked the VE to add to the
hypothetical the need to take two to three unscheduled breaks during the work day to lie down for up
to 45 minutes each time. (R. 50). The VE opined that such a limitation would eliminate all types of

employment. Id.
2. Medical Evidence

On April 10, 2007, Plaintiff was seen by Dr. Luna at Centro San Vicente Clinic for a follow

up visit. (R. 212-213). Notes indicate Plaintiff's diabetes was controlled. His fasting blood sugar
level was 81, and his blood pressure was 104/80. His platelets were low. He was counseled about

discontinuing alcohol use. Lab work was ordered to assess Plaintiff's B-12 and folic acid levels. He
was to return to the clinic in six weeks.

On May 25, 2007, Plaintiff was seen by Dr. Luna for a follow up regarding abnormal lab

results. (R. 210-2 11). His vitamin B-12 level was low. (R. 223). He was given a vitamin B-12
was
injection. The notes indicate Plaintiff was continuing to drink alcohol daily. His blood pressure
110/76, and his blood sugar was 97. He was to follow up in one month.

On June 22, 2007, Plaintiff was seen by Dr. Luna for a follow up visit related to his B-l2

deficiency. (R. 208-209). He was given a vitamin B-12 injection. Progress notes indicate Plaintiff

reported degenerativejoint disease pain, especially of his back and hands. His fasting blood sugar was
93. His blood pressure was 102/64. He was to return in one month.

On July 27, 2007, Plaintiff was seen by Dr. Luna for a follow up regarding B-12 deficiency.
(R. 206-207).

Plaintiffs exam was reported to be unchanged, and no other problems were noted. His

blood pressure was 112/72, and his blood sugar was 144. He was given a vitamin B- 12 injection, and
asked to return to the clinic in one month.
On September 4, 2007, Plaintiff was seen for a follow up visit with Dr. Luna. (R. 204-205).
He was given a vitamin B-12 injection. His fasting blood sugar was 81, and his blood pressure was

90/64. No new complaints were noted, and he was to return in one month.

On October 10, 2007, Plaintiff was seen by Dr. Luna for a follow up visit related to pernicious
anemia.4

(R. 202- 203). He was given a vitamin B-12 injection. His non-fasting blood sugar was 86,

and his blood pressure was 108/70. He was to return for a follow up visit in three months.

On January 31, 2008, Plaintiff was seen by Dr. Luna for follow up of pernicious anemia and
diabetes mellitus. (R. 200-20 1). He was given a vitamin B-12 injection. His fasting blood sugar was

diabetes was
80, and his blood pressure was 110/70. No new problems were noted. Plaintiffs
reported to be stable, and he was to return in two months.
A Case Assessment Form dated March 6, 2008, by Randal Reid, M.D., a state agency medical

consultant, indicates Plaintiffs medically determinable impairments of diabetes and anemia are non-

Pernicious anemia is a type of megaloblastic anemia usually seen in older adults, caused
by impaired intestinal absorption of vitamin B- 12 due to lack of availability of intrinsic factor.
DORLAND'S ILLUS. MEDICAL DICTIONARY 78 (29th ed. 2000).
10

severe. (R. 214). The summary of pertinent medical evidence indicates Plaintiff's recent blood sugar

levels were normal. He was given a B-12 shot and told to return in two months. Dr. Reid concluded

Plaintiff's alleged limitations were not supported by the evidence of record.
Plaintiff was seen on April 1,2008, by Dr. Lunafora B-12 injection. (R. 217-218). At that
time, he complained of having back pain for the past year. He was to return for a B- 12 injection in one

month and schedule a follow up visit in three months.
On July 1, 2008, Plaintiff was seen for a follow up with Dr. Luna regarding lab results,
diabetes, hypertension and pernicious anemia. (R. 227-228). He received a B-12 injection. His
fasting blood sugar was 89, and his blood pressure was 120/72. He was to return to the clinic in three
months.
On April 8, 2009, Leigh McCary, M.D., a state agency medical consultant, reviewed the

evidence in the file related to Plaintiff's medically determinable impairments of diabetes mellitus,
hypertension and pernicious anemia. (R. 215). Dr. McCary affirmed Dr. Reid's assessment dated

March 6, 2008, and concluded Plaintiff's allegations were not wholly supported by the evidence on
record.
F. Analysis of Plaintiff's Claim

Plaintiff contends the AU's finding that he does not have a severe impairment is the result of
the application of an incorrect legal standard and is unsupported by substantial evidence. Specifically,

Plaintiff argues the AU did not apply the correct standard for evaluating the severity of an impairment
in accordance with the Fifth Circuit decision in Stone

v.

Plaintiff argues the evidence, when evaluated under the

Heckler,
Stone

752 F.2d 1099 (5th Cir. 1985).

standard, shows his impairments are

severe, and the AU should not have terminated his analysis at step two of the five-step sequential

11

process.
At step two, the AU determines whether an impairment is severe, irrespective of the claimant's
age, education or work experience. 20 C.F.R.

§

416.920(a)(4)(ii) & 416.920(c) (2011). Pursuant to

the Commissioner's regulations, a severe impairment is defined as "any impairment or combination

of impairments which significantly limits [the claimant's] physical or mental ability to do basic work
activities." 20 C.F.R.

§

416.920(c) (2011). The Fifth Circuit, however, has held that a literal

application ofthis regulation would be inconsistent with the Social Security Act because it would deny
benefits to individuals who are disabled under the statute. Stone, 752 F.2d at 1104-05. Accordingly,
in this Circuit, an impairment is not severe "only if it is a slight abnormality which has 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, quoting Estran

v.

Heckler, 745 F.2d 340, 341 (5th Cir. 1984) (citations omitted).
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 "AU and Appeals Council have applied an incorrect
standard to the severity requirement unless the correct standard is set forth by reference to the Stone

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) (1 984) is used. Unless the correct standard is used, the claim must be remanded

to the Secretary for reconsideration." Stone, 752 F.2d at 1106. Notwithstanding this presumption,

"[a] case will not be remanded simply because the AU did not use 'magic words.' We remand only

where there is no indication the AU applied the correct standard." Hampton v. Bowen, 785 F.2d 1308,

The definition of "severe" at 20 C.F.R.
"severe" at 20 C.F.R. § 4 16.920(c).

§

404.1520(c) is the same as the definition of

12

1311

(5thCir. 1986).
The Commissioner contends the citations in the

AU's decision show that the proper legal

standard to determine severity at step two was applied in this case. Although the AU did not use the
exact wording from Stone, he cited to the Stone opinion and to Bowen

v.

Yuckert, 482 U.S. 137

(1987),6 as well as to the agency's regulations and rulings, including 20 C.F.R. § 416.921, SSR 85-

28, SSR 96-3p,8 and SSR 96-4p.9 The Commissioner further contends substantial evidence supports

the AU's determination.

In the "Applicable Law" section of his decision, the AU stated:

"An impairment or combination of impairments is 'severe' within the meaning of the
regulations if it significantly limits an individual's ability to perform basic work
activities. An impairment or combination of impairments is 'not severe' when medical
and other evidence establish only a slight abnormality or a combination of slight
abnormalities that would have no more than a minimal effect on an individual's ability
to work. 20 CFR416.921; Social Security Rulings (SSRs) 85-28, 96-3p, and 96-4p."
"Vuckert simply upheld the facial validity of the severity regulation as an appropriate
method of streamlining the review process. Yuckert did not conclude that the severity regulation
properly interpreted the statutory requirements, and Yuckert did not purport to state the proper
definition of the term 'severe impairment.' Thus, Stone is not inconsistent with the Supreme
Court's pronouncement in Yuckert; Stone merely reasons that the regulation cannot be applied to
summarily dismiss, without consideration of the remaining steps in the sequential analysis,
claims of those whose impairment is more than a slight abnormality. " Loza v. Apfel, 219 F.3d
378, 391 (5th Cir. 2000) (quoting Anthony v. Sullivan, 954 F.2d 289, 294 (5th Cir. 1992).
6

SSR 85-28 states it was intended to clarify that the agency's policy regarding the step
two severity determination is consistent with various court decisions, including Stone. SSR 8528 (1985) (Titles II and XVI: Medical Impairments that are Not Severe).

SSR 96-3p restates and clarifies policies for consideration of allegations of pain or other
symptoms. SSR 96-3p (1996) (Policy interpretation Ruling Titles II and XVI: Considering
Allegations of Pain and Other Symptoms in Determining Whether a Medially Determinable
Impairment is Severe).
SSR 96-4p clarifies policies for evaluating symptoms. SSR 96-4p (1996) (Policy
interpretation Ruling Titles II and XVI: Symptoms, Medically Determinable Physical and Mental
Impairments, and Exertional and Nonexertional Limitations).
13

(R. 11).

Next, under the caption "FINDINGS OF FACT AND CONCLUSIONS OF LAW," the AU
stated the severity standard as follows:

"In order for an impairment to be considered severe, it must impose more than a slight
limitation on the individual's ability to perform basic work-related activities as
described in the regulations. Stone v. Heckler, 752 F.2d 1099 (5th Cir. 1985), Bowen
v. Yuckert, 107 S.C.T. [sic] 2287 (1987), SSR 85-28." (R. 12).
The AU also wrote:
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 C.F.R. 416.921; Stone v.
Heckler, 752 F.2d 1099 (SthCir 1985)). (R. 12).
The AU made a final reference to the severity standard when he stated:
The undersigned Administrative Law Judge concurs with the determination made by
the Disability Determination Service, in that the evidence shows that the claimant's
ability to perform basic work activities was not as limited as he alleged, and that the
evidence of record fails to establish that any of the claimant's complaints rise to the
level of a "severe" impairment as defined by the Act and Regulations. Stone v.
Heckler, 752 F 2nd [sic] 1099 (5t1'Cir. 1985)[.]b0 (R. 14).

The AU's decision, resting on a finding of non-severity, cited to Stone. Therefore, there is no

presumption that an incorrect severity standard was applied. See Stone, 752 F.2d at 1106; compare
Range! v. Astrue, 605 F.Supp.2d 840 (W.D. Tex. 2009) (Remanding case where AU did not explicitly
reference Stone or a similar decision applying the Stone standard, and it was not clear whether the AU

applied the Stone standard). Moreover, a review of the evidence shows the AU applied the correct
severity standard.

Although not identified by the AU, it appears that the referenced document is the Case
Assessment Form completed by Randal Reid, M.D., which indicates Plaintiffs medically
determinable impairments of diabetes and anemia are non-severe. (R. 214).
10

14

As noted in the

AU's opinion, the medical evidence shows Plaintiff's diabetes and

hypertension were well-controlled. His anemia was treated with monthly B- 12 injections. The AU' s
conclusion that Plaintiff's pain is intermittent and mild to moderate at most is supported by substantial
evidence. Plaintiff takes only aspirin and Tylenol for pain relief. He has received no treatment for his
alleged depression. The record does not contain any opinions from treating or examining physicians

indicating any limitations or imposing any restrictions, contrary to Plaintiff's allegations of totally
disabling symptoms.
In support of his claim that his impairments are severe under the Stone standard, Plaintiff cites
to pages 208, 242 and 244 of the record. Plaintiff claims these records support Plaintiff's testimony

that he cannot work due to back pain and arthritis in his elbows, wrist and fingers. The pages Plaintiff
cites are multiple copies of the same records from one doctor's visit on June 22, 2007 (nearly fifteen

months before the onset date at issue) at which Plaintiff made a subjective complaint of pain in his
back and hands. The notes from the visit show Plaintiff rated his pain at one, on a scale of zero to five,
with one meaning "hurts little bit." (R. 208, 242). The record does not show any tests or treatment
were prescribed at that visit related to Plaintiff's subjective complaint of pain.

Plaintiff also relies on his need to wear a back brace11 and his testimony that his pain radiates
to other parts of his body,'2 and he has numbness. Plaintiff does not point to any medical records or
objective medical findings in support of these statements. Objective medical evidence, at least in part,
must corroborate a claimant's subjective complaints. Wren v.

Sullivan, 925

F.2d 123, 128-29(5th Cir.

'There is no medical record indicating the back brace was prescribed for Plaintiff by a
doctor.

Plaintiff testified the pain from his lower back goes through "{pjarts of the middle or
from my neck." (R. 31).
12

15

1991). The AU found the objective clinical findings did not support the degree ofpain and functional

limitations which Plaintiff alleged. (R. 14). He concluded Plaintiffs allegations concerning the
severity of his symptoms were not wholly credible. Id. The

AU's determination that the medical

evidence was more persuasive than Plaintiff's own testimony is precisely the kind of determination

the AU is best positioned to make.

Falco

v.

Shalala,

27 F.3d 160, 164 (5th Cir. 1994).

Although the AU did not quote the exact language from

Stone,

he applied the proper legal

standard in determining Plaintiff's impairments, either singly or in combination, are not severe.
Further, the AU's step two decision is supported by substantial evidence. Accordingly, the Court

finds there was no legal error committed by the AU.
CONCLUSION
It is therefore ORDERED that the decision of the Commissioner be, and it is hereby,
AFFIRMED.
SIGNED and ENTERED this

')

day of March, 2012.

JJAAQ P
RICHARD P. MESA
UNITED STATES MAGISTRATE JUDGE

16