PADALECKI v. ASTRUE

JOHN PRIMOMO, Magistrate Judge

Plaintiff instituted this action pursuant to 42 U.S.C. § 405(g) seeking review of the determination of Michael J. Astrue, the Commissioner of the Social Security Administration, that plaintiff is not disabled and, therefore, not entitled to receive disability benefits. Plaintiff protectively filed his application for benefits on March 23, 2005 alleging disability beginning June 15, 2001. (Tr. pp. 57-59). The Social Security Administration denied the application both initially and upon reconsideration. On May 25, 2007, after a hearing, an administrative law judge ("ALJ") determined that plaintiff is not disabled. (Tr. pp. 26-32). The Appeals Council denied plaintiff's request for review, making the determination of the ALJ the final decision of the Commissioner. Plaintiff now appeals that determination.

Every individual who is insured for disability insurance benefits, has not attained retirement age, has filed an application for benefits, and suffers a disability is entitled to receive disability insurance benefits. Title 42 U.S.C. § 423(a)(1). The term "disability" means the inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months. Title 42 U.S.C. § 423(d)(1)(A). A person shall be determined to be disabled only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in significant numbers in the national economy, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he applied for work. Title 42 U.S.C. § 423(d)(2)(A).

Regulations set forth by the Commissioner prescribe five basic steps or considerations in evaluating disability claims. Title 20 C.F.R. § 404.1520. To be found disabled, the claimant first bears the burden of proving that:

(1) he is not currently engaged in substantial gainful activity;

(2) he has an impairment or combination of impairments that is severe; and,

(3) the impairment meets or equals a listed impairment; or,

(4) in light of the claimant's residual functional capacity ("RFC"), the impairment prevents the claimant from returning to his past relevant work. Crowley v. Apfel, 197 F.3d 194, 197-98 (5th Cir. 1999). If the claimant establishes these elements, the burden shifts to the Commissioner to prove that:

(5) considering the claimant's residual capacities and his age, education, and work experience, the impairment does not prevent him from performing other jobs which exist in significant numbers in the national economy. Id. 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. Id.

In reviewing the Commissioner's decision denying disability benefits, the Court is limited to a determination of whether the decision is supported by substantial evidence and whether the Commissioner applied the proper legal standards in evaluating the evidence. Masterson v. Barnhart, 309 F.3d 267, 272 (5th Cir. 2002). Substantial evidence is more than a scintilla and less than a preponderance. Id. It must do more than create a suspicion of the existence of the fact to be established but "no substantial evidence" will be found 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 by substantial evidence, they must be affirmed. Masterson, 309 F.3d at 272. In applying the substantial evidence standard, the Court must carefully examine the entire record but must refrain from reweighing the evidence or substituting its judgment for that of the Commissioner. Id. Conflicts in the evidence are for the Commissioner and not the courts to resolve. Id.

At the time of the ALJ's decision, plaintiff was 55 years old with a college education and past relevant work experience as a tax accountant. The ALJ found that plaintiff has not engaged in substantial gainful activity since his alleged onset date. At the second and third steps of the evaluation process, the ALJ determined, after reviewing the objective medical evidence, that plaintiff has the following severe impairments: neurocardiogenic syncope and duodenal amyloid, but that these impairments do not, either singly or in combination, meet or equal a listed impairment. The ALJ concluded that plaintiff's diagnoses of Barrett's esophagus, history of iron deficient anemia, lumbar degenerative disc disease, and hypertension are not severe impairments.

At the fourth step of the evaluation process, the ALJ assessed plaintiff's RFC and the demands of his past work. The ALJ discounted plaintiff's subjective complaints of disabling symptoms and limitations. He determined that plaintiff retains the RFC to perform a wide range of sedentary work and found that plaintiff is able to perform his past relevant work; therefore, he is not disabled.

Plaintiff contends that the decision of the Commissioner is not supported by substantial evidence. He states that the ALJ used the wrong standard in finding that plaintiff's diagnoses of Barrett's esophagus, history of iron deficient anemia, lumbar degenerative disc disease, and hypertension are not severe impairments. Next, he asserts that the ALJ failed to determine whether his cardiac impairment equaled Listing 4.05. Plaintiff complains that the ALJ failed to properly evaluate the opinion of his treating physician. Finally, he states that the RFC assessment is not well-supported because it does not include his non-exertional limitations.

Plaintiff contends that the ALJ erred in finding that his diagnoses of Barrett's esophagus, history of iron deficient anemia, lumbar degenerative disc disease, and hypertension are not severe impairments. As the basis for his findings, the ALJ stated that these impairments either impose no significant limitations on work activity, cleared spontaneously, or are controlled with medical management. (Tr. p. 28). Plaintiff argues that the ALJ did not rely upon the appropriate severity standard in arriving at his determination.

The Commissioner suggests that the ALJ's determination that some of plaintiff's impairments are not severe is irrelevant in light of the fact that this case was resolved at step four of the evaluation process. In support of his argument, he cites to Chaparro v. Bowen, 815 F.2d 1008, 1011 (5^th Cir. 1987) and Jones v. Bowen, 829 F.2d 524, 526 n. 1 (5^th Cir. 1987). In Gonzales-Sargent v. Barnhart, 2007 WL 1752057 at *17-18 (W.D.Tex. 2007), after reviewing these cases, this Court rejected the conclusion of the undersigned that the failure to find that an impairment is severe at step two can lead to remand only when the ALJ fails to find that any impairment is severe. Therefore, the merits of plaintiff's claim will be addressed.

The applicable regulation provides that an impairment is not severe if it does not significantly limit a claimant's physical or mental ability to do basic work activities. Title 20 C.F.R. § 404.1521(a). In this circuit, that regulation has been construed to mean that an impairment can be considered as not severe only if it is a slight abnormality having 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. Stone v. Heckler, 752 F.2d 1099, 1101 (5th Cir. 1985). In Stone, the Court of Appeals required that future ALJ decisions must include a reference to the Stone opinion to demonstrate that the correct standard was applied. Id. at 1106.

Contrary to plaintiff's representation, the ALJ's decision does refer to the Stone standard, in a slightly varied form. Before analyzing plaintiff's case, the ALJ discussed, in general, the five step process. After noting, correctly, that an impairment is within the meaning of the regulation if it significantly limits an individual's ability to perform basic work activities, the ALJ stated that "[a]n 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 . . ." (Tr. p. 27). When discussing plaintiff's specific impairments, he referred to "significant limitations," rather than "slight abnormality" and "minimal effect." (Tr. p. 28). Plaintiff argues that by holding that certain of his impairments do not impose "significant limitations," the ALJ applied the improper severity standard.

This Court does not agree. Procedural perfection in administrative proceedings is not required as long as the substantial rights of a party have not been affected. Audler v. Astrue, 501 F.3d 446, 448 (5^th Cir. 2007). The ALJ's explanation of the general statement on the law, though not word for word from Stone, refers to the important phrases from Stone, "slight abnormality" and "minimal effect." The fact that the ALJ did not again recite this standard when applying the facts of plaintiff's case is of no consequence. Plaintiff's substantial rights were not affected so long as the impairments found not to be severe were only slight abnormalities having such a minimal effect on plaintiff that they would not be expected to interfere with his ability to work, irrespective of age, education or work experience.

The ALJ's decision does contain a Stone issue which cannot be ignored. As noted above, the Court of Appeals held in Stone that an impairment can be considered as not severe only if it is a slight abnormality having 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. the ALJ in this case stated that "[a]n 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 . . . " (Tr. p. 27) (emphasis added). He did not otherwise cite to Stone or the precise standard set forth in Stone.

In Scroggins v. Astrue, 2009 WL 192875 (N.D.Tex. 2009), the Court dealt with the precise issue that exists here. In Scroggins, the ALJ did not explicitly reference Stone or a similar opinion applying the Fifth Circuit's standard. Id. at *5. Instead, he stated, as did the ALJ here, that "[a]n impairment or combination of impairments is `not severe' when medical or other evidence establish only a slight abnormality or combination of slight abnormalities that would have no more than a minimal effect on an individual's ability to work." Id. According to this standard, an impairment could have, at most, a minimal effect on a claimant's ability to work for it to be found to be "not severe." Id.

The Scroggins Court held that this is not the standard set forth in Stone, which holds that a severe impairment "would not be expected to interfere with the individual's ability to work." 2009 WL 192875 at *5, quoting Stone, 752 F.2d at 1101. Unlike the standard applied by the ALJ in Scroggins and in the case at bar, Stone provides no allowance for a minimal interference on a claimant's ability to work. While noting that procedural perfection was not required, the Scroggins Court held that the use of an improper Stone standard was a legal error, not a procedural error. Scroggins, 2009 WL 192875 at *7. Remand was required. See Deaver v. Astrue, 2008 WL 4619823 at *10 (N.D.Tex. 2008) (same error); Sanders v. Astrue, 2008 WL 4211146 at *7 (N.D.Tex. 2008) (same error).

In Winget v. Astrue, 2007 WL 4975206 (N.D.Tex. 2007), the District Court, in adopting a Magistrate Judge's recommendation, held the ALJ applied the proper legal standard by stating "[a]n impairment or combination of impairments is `not severe' when medical and other evidence establish only a slight abnormality or a combination of abnormalities that would have no more than a minimal effect on an individual's ability to work." Id. at 7. However, the Winget Court did not resolve the issue raised in Scroggins and did not compare the ALJ's language to the literal wording of Stone. This Court notes that cases from this district, in discussing the severity standard, have referred to abnormalities having "no more than a minimal effect on an individual's ability to work", Franzen v. Astrue, 555 F.Supp.2d 720, 728 (W.D.Tex. 2008), or have equated the Stone standard with the standard used by the ALJ in this case. See Bustos v. Barnhart, 2005 WL 3353745 at *8 (W.D.Tex. 2005). However, the Court has not found that the severity language used by the ALJ in the case at bar or in Winget has been accepted in any Fifth Circuit case.

Stone refers to a slight abnormality having such a minimal effect on the individual that it would not be expected to interfere with the individual's ability to work. "Slight" quantifies the abnormality and "minimal" quantifies the effect on the individual. Arguably, to have meaning, "minimal effect" could refer to the individual's ability to work. However, the Court of Appeals did not phrase the severity standard that way. As it stands, Stone does not allow any interference with the individual's ability to work. A literal reading of Stone indicates that an impairment is not severe if it interferes in any way with this ability. The standard employed by the ALJ in this case allows for a finding of non-severity if the abnormality has only a minimal effect on the individual's ability to work. As that standard is inconsistent with Stone, the Court finds that substantial evidence does not supports the Commissioner's conclusion that plaintiff is not disabled.

It is, therefore, the recommendation of the Magistrate Judge that the decision of the Commissioner denying plaintiff's application for disability benefits be REVERSED and that this matter be REMANDED to the Commissioner for further proceedings.

The United States District Clerk shall serve a copy of this United States Magistrate Judge's Memorandum and Recommendation on all parties by either (1) electronic transmittal to all parties represented by attorneys registered as a "Filing User" with the Clerk of Court, or (2) by mailing a copy of those not registered by certified mail, return receipt requested. Pursuant to Title 28 U.S.C. Section 636(b)(1) and Rule 72(b), Fed.R.Civ.P., any party who desires to object to this report must serve and file written objections to the Memorandum and Recommendation within 10 days after being served with a copy unless this time period is modified by the district court. A party filing objections must specifically identify those findings, conclusions, or recommendations to which objections are being made and the basis for such objections; the district court need not consider frivolous, conclusive or general objections. Such party shall file the objections with the Clerk of Court and serve the objections on all other parties and the Magistrate Judge. A party's failure to file written objections to the proposed findings, conclusions, and recommendations contained in this report shall bar the party from a de novo determination by the district court. See Thomas v. Arn, 474 U.S. 140, 150 (1985). Additionally, any failure to file written objections to the proposed findings, conclusions, and recommendation contained in this Memorandum and Recommendation within 10 days after being served with a copy shall bar the aggrieved party, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal conclusions accepted by the district court. Douglass v. United Services Automobile Association, 79 F.3d 1415, 1428-29 (5^th Cir. 1996). SIGNED