Gonzalez v. Berryhill

Filing 20

MEMORANDUM OPINION AND ORDER. Signed by Judge Robert F. Castaneda. (dc)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
EL PASO DIVISION
CYNTHIA ANN GONZALEZ,
Plaintiff,
v.
NANCY A. BERRYHILL,
Acting Commissioner of Social Security,
Defendant.

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NO. 3:17-CV-00098-RFC

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 having 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. § 636(c) and Appendix C to the Local Court Rules for this district.
Plaintiff appeals from the decision of the Commissioner of the Social Security
Administration (“Commissioner”) denying her application for supplemental security income (“SSI”)
under Title XVI of the Social Security Act. For the reasons set forth below, this Court orders that
the Commissioner’s decision be REVERSED and REMANDED for further proceedings.
PROCEDURAL HISTORY
On February 15, 2013, Plaintiff filed her application for SSI benefits wherein she alleged a
disability onset date of January 28, 2009. (R:176)1 The date was subsequently amended to February
15, 2013. (R:64) Her application was denied initially and on reconsideration. After conducting a
hearing on April 21, 2015, the Administrative Law Judge (“ALJ”) issued a decision on August 3,
2015, denying benefits. (R:13-24) At step one, the ALJ determined that Plaintiff had not engaged

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Reference to the record of administrative proceedings is designated by (R:[page number(s)]). Reference
to the pleadings is designated by (Doc.[docket number]:[page number(s)]).

in substantial gainful activity since February 15, 2013. (R:15) At the second step, the ALJ
determined that Plaintiff had one severe impairment–intellectual disability. (R:15) He found that
her conditions regarding her thyroid, liver and ovarian cysts/tumors, goiter, anemia, osteoarthritis,
loss of vision in one eye, fatigue, and abdominal pain were non-severe impairments. (R:15) He next
concluded, at step three, that Plaintiff did not have an impairment or combination of impairments
that met or medically equaled the severity of one of the listed impairments in 20 C.F.R. Part 404,
Subpart P, Appendix 1. (R:17) He further determined that Plaintiff had the residual functional
capacity (“RFC”) to perform a full range of work at all exertional levels, but with the following
nonexertional limitations: the full range of unskilled work (work which needs little or no judgment
to do simple duties that can be learned on the job in a short period of time), but she must only
occasionally be required to understand, remember and complete detailed instructions because she
has marked limitations in this area; her supervision must be simple, direct and concrete, where
interpersonal contact with supervisors and coworkers must be incidental to the work performed, e.g.2,
assembly work; she must not be required to work at fast-paced production line speeds; she should
have only occasional workplace changes; and she has no limitations regarding public contact. (R:19)
At step four the ALJ concluded that Plaintiff had no past relevant work. (R:23) At step five, the
ALJ concluded that based on Plaintiff’s age, education, work experience, RFC, and considering
vocational expert (“VE”) testimony, there were jobs that existed in significant numbers in the
national economy that she could perform. (Id.) Thus, the ALJ found that Plaintiff was not disabled
within the meaning of the Social Security Act. (R:24)

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Although the ALJ’s decision uses “i.e.,” in context, it appears the ALJ meant “e.g.” (See R:19)

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ISSUES
Plaintiff presents the following issues for review:
1) whether the ALJ applied the incorrect severity standard; and
2) whether the ALJ’s RFC finding is supported by substantial evidence. (Doc. 17:2)
Plaintiff contends that the ALJ’s disability determination is the result of legal error and is not
supported by substantial evidence. Consequently, she seeks a reversal and remand for an award of
benefits or for further administrative proceedings. (Doc. 17:10)
DISCUSSION
I. Standard of Review
This Court’s review is limited to a determination of whether the Commissioner’s decision
is supported by substantial evidence, and whether the Commissioner applied the proper legal
standards in evaluating the evidence. See 42 U.S.C. § 405(g); Masterson v. Barnhart, 309 F.3d 267,
272 (5th Cir. 2002); Martinez v. Chater, 64 F.3d 172, 173 (5th Cir. 1995). Substantial evidence “is
more than a mere scintilla, and less than a preponderance.” Masterson, 309 F.3d at 272. The
Commissioner’s findings will be upheld if supported by substantial evidence. Id. 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).
In applying the substantial evidence standard, the court may not reweigh the evidence, try the
issues de novo, or substitute its own judgment for the Commissioner’s, even if it believes the
evidence weighs against the Commissioner’s decision. Masterson, 309 F.3d at 272. Conflicts in the
evidence are for the Commissioner and not the courts to resolve. Id.; Spellman v. Shalala, 1 F.3d
357, 360 (5th Cir. 1993).
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II. Evaluation Process
The ALJ evaluates disability claims according to a sequential five-step process: 1) whether
the claimant is currently engaged in substantial gainful activity; 2) whether the claimant has a severe
medically determinable physical or mental impairment; 3) whether the claimant’s impairment(s)
meet or equal the severity of an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1; 4)
whether the impairment prevents the claimant from performing past relevant work; and 5) whether
the impairment prevents the claimant from doing any other work. 20 C.F.R. §§ 404.1520, 416.920.
The claimant bears the burden of proof at the first four steps of the analysis. Leggett v. Chater, 67
F.3d 558, 564 (5th Cir. 1995). Once the claimant satisfies her burden under the first four steps, the
burden shifts to the Commissioner at step five to show that there is other gainful employment
available in the national economy that the claimant is capable of performing. Greenspan v. Shalala,
38 F.3d 232, 236 (5th Cir. 1994). This burden may be satisfied either by reference to the MedicalVocational Guidelines of the regulations, by VE testimony, or by other similar evidence. Fraga v.
Bowen, 810 F.2d 1296, 1304 (5th Cir. 1987). Once the Commissioner makes the requisite showing
at step five, the burden shifts back to the Plaintiff to rebut the finding that there are jobs that exist
in significant numbers that the Plaintiff could perform. Perez v. Barnhart, 415 F.3d 457, 461 (5th
Cir. 2005). The Commissioner’s determination is afforded great deference. Leggett, 67 F.3d at 564.
III. Determination of the Severity of Plaintiff’s Impairments
Plaintiff argues that the ALJ committed legal error by failing to apply the correct legal
standard to determine the severity of her impairments. Further, she argues that the ALJ’s findings
are not supported by substantial evidence. She contends that remand is required pursuant to Stone
v. Heckler, 752 F.2d 1099, 1101 (5th Cir. 1985).
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Under the Regulations, a severe impairment is any impairment or combination of
impairments which significantly limits one’s physical or mental ability to do basic work activities.
20 C.F.R. §§ 404.1520(c); 416.920(c). In Stone, the Fifth Circuit held that a literal application of
the 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. Therefore, the Court
held that an impairment is 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.
The Court further held that it would “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.” Id. at 1106. Notwithstanding this presumption, the
Court must look beyond the use of “magic words” to determine whether the ALJ applied the correct
severity standard. Hampton v. Bowen, 785 F.2d 1308, 1311 (5th Cir. 1986). Unless the correct
standard is used, the claim must be remanded. Id.
More recently, the Fifth Circuit has held that any error by the ALJ in failing to follow the
procedures set out in Stone does not require remand, unless the substantial rights of the claimant
were affected by the error. Taylor v. Astrue, 706 F.3d 600, 603 (5th Cir. 2012) (per curiam).
Remand is not required where substantial evidence supports the ALJ’s finding of non-severity. Id.
Harmless error exists when it is inconceivable that a different administrative conclusion would have
been reached absent the error. See Frank v. Barnhart, 326 F.3d 618, 622 (5th Cir. 2003).

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Plaintiff contends that the evidence of record fails to support a finding that additional
impairments are “not severe.” She argues that the ALJ’s application of an incorrect severity standard
may have led to an improper determination at step three, which culminated in prejudice to Plaintiff’s
disability claim.
In this case, the ALJ expressly referenced the traditional Stone standard. (R:15 (“a slight
abnormality which has such a 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”))
He also referenced a slight variation of the traditional Stone standard, which has been approved by
the Fifth Circuit in an unpublished opinion. (R:15); Brunson v. Astrue, 387 Fed.Appx. 459, 461,
2010 WL 2802372, at *2 (5th Cir. July 16, 2010) (per curiam) (“substantial evidence in the record
supports the ALJ’s conclusion that Mr. Brunson’s back pain did not impose more than a minimal
effect on his ability to engage in basic work-related activities during the relevant period”). Prior to
Brunson, this particular Stone interpretation had been frowned upon by courts in this district. See,
e.g., Rangel v. Astrue, 605 F.Supp. 2d 840, 850-51 (W.D. Tex. 2009). Unfortunately, the ALJ also
referenced standards which clearly run afoul of Stone. In his findings of fact and conclusions of law,
he declared that “a non-severe impairment is an impairment that does not cause significant
limitations in the claimant’s ability to function.” (R:15) In the same section, he concluded that the
credible medical evidence did not support a finding that any of Plaintiff’s conditions, either
individually, or collectively had caused Plaintiff to have “significant functional limitations in worklike activities.” (Id.) Neither of these standards adhere to Stone. Based on a thorough review of the
ALJ’s opinion, it is not at all clear what standard the ALJ employed in determining whether
Plaintiff’s impairments were severe. This stark ambiguity regarding whether the correct legal
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standard was used must be resolved at the administrative level. See, e.g., Craabeek v. Astrue, No.
710-CV-054-BK, 2011 WL 539132, * 6 (N.D. Tex. Feb. 7, 2011). The Court finds that the ALJ
erred in arriving at his step two determination in this case.
In terms of harmless error, Plaintiff argues, to which argument the Commissioner has failed
to respond, that this case is one where the conclusion can depend upon the severity of her
impairments at step two. (Doc.17:7) Had the ALJ clearly applied the Stone standard and another
of Plaintiff’s impairments been determined to be severe at step two, it is conceivable that Plaintiff
could have been found disabled by meeting Listing 12.05(C). See 20 C.F.R. Part 404, Subpart P.,
Appendix 1, §12.05(C) (2008). To be found disabled pursuant to Listing 12.05(C), Plaintiff must
have a valid verbal, performance, or full-scale IQ of 60 through 70 and a physical or other mental
impairment imposing additional and significant work-related limitations of function. (Id.) The
record supports the existence of such IQ scores. (R:486, 487, 554, 577). In other circuits, the next
part of Listing 12.05(C) is presumed to have been met if an additional impairment has been found
to be severe at step two. Nieves v. Secretary of Health & Human Services, 775 F.2d 12, 14 n.7 (1st
Cir. 1985) (“A claimant satisfies the second half of the Sec. 12.05(C) test if he or she has a severe
impairment under Sec. 404.1520(c)); see also Edwards v. Heckler, 736 F.2d 625, 630 (11th Cir.
1984). The Court is aware that the mental retardation requirement of Listing 12.05(C) must still be
met and that the Fifth Circuit has never expressly adopted the position of these other circuits.
Nevertheless, this case is not one where it is inconceivable that a different administrative conclusion
would have been reached absent the error. Hence, the Court concludes that the error is not harmless.
Since remand is required pursuant to the ALJ’s legal error at Step Two, the Court will not
consider the remaining issues for review. Upon remand, the Commissioner is ordered to not only
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apply the Stone standard, but also to apply it unambiguously. Depending on the results of said
application, the ALJ should then decide how to proceed through the rest of the sequential steps of
the disability determination process.
CONCLUSION
Based on the foregoing, the Court hereby ORDERS that the decision of the Commissioner
be REVERSED and REMANDED for further proceedings consistent with this opinion.
SIGNED and ENTERED on October 11, 2017.

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ROBERT F. CASTANEDA
UNITED STATES MAGISTRATE JUDGE

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