Summary
declining to reverse on grounds that Stone standard not used to determine severity of claimant's obesity, where his obesity was taken into consideration by ALJ at all other steps of the process
Summary of this case from Brown v. AstrueOpinion
NO. 4:08-CV-598-A.
May 27, 2010
MEMORANDUM OPINION and ORDER
On April 26, 2010, United States Magistrate Judge Charles Bleil issued his proposed findings and conclusions and his recommendation in the above-referenced case. The recommendation is that the decision of defendant, Michael J. Astrue, Commissioner of Social Security, ("Commissioner") that plaintiff, Patricia Stone, is "not disabled under sections 216(i) and 223(d) and section 1614(a)(3)(A) of the Social Security Act," be reversed and that the matter be remanded for further administrative proceedings consistent with the proposed findings of fact and conclusions of law. Pursuant to 28 U.S.C. § 636, Magistrate Judge Bleil granted each party until May 17, 2010, to serve and file written objections to his proposed findings and conclusions and his recommendation. Neither party filed an objection. However, the absence of an objection does not relieve the court of its responsibility to make an informed final determination. See Mathews v. Weber, 423 U.S. 261, 271 (1976). After a thorough study of the filings of the parties, the magistrate judge's proposed findings and conclusions, and the applicable legal authorities, the court has decided not to accept the recommendation of the magistrate judge.
The language quoted in the text is the decision of the administrative law judge, Tr. at 27, which became the final decision of the Commissioner, id. at 4.
The court recognizes that 28 U.S.C. § 636(b) directs the district judge to make a de novo determination of those portions of the magistrate judge's proposed findings and recommendation to which objection is made. As a general rule, this statutory language is thought to be applicable in evaluating the scope of review once a party has filed an objection or objections.
The complaints plaintiff has with the decision of the administrative law judge ("ALJ") that served as the basis for the Commissioner's decision is that the ALJ did not properly address plaintiff's obesity. The complaints include a contention that there should be a reversal and remand because the ALJ did not apply the correct standard for determining whether plaintiff's obesity met the second-step severity requirement. Plaintiff notes the rulings of the United States Court of Appeals for the Fifth Circuit in Stone v. Heckler, 752 F.2d 1099, 1106 (5th Cir. 1985), that there is an assumption that the ALJ applied an incorrect standard to the second-step severity requirement unless the correct standard is set forth by the ALJ by reference to the Stone opinion or another of the same effect, or by an express statement that the construction the Fifth Circuit gave in Stone was used and that "[u]nless the correct standard is used, the case must be remanded to the Secretary for reconsideration." Id.
The five-step analysis employed to determine whether a claimant is disabled was correctly explained by Magistrate Judge Bleil as follows:
To determine whether a claimant is disabled, and thus entitled to disability benefits, a five-step analysis is employed. 20 C.F.R. §§ 404.1520, 416.920 (2009). First, the claimant must not be presently working at any substantial gainful activity. 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. §§ 404.1527, 416.972. Second, the claimant must have an impairment or combination of impairments that is severe. 20 C.F.R. §§ 404.1520(c), 416.920(c); Stone v. Heckler, 752 F.2d 1099, 1101 (5th Cir. 1985), cited in Loza v. Apfel, 219 F.3d 378, 392 (5th Cir. 2000). Third, disability will be found if the impairment or combination of impairments meets or equals an impairment listed in the Listing of Impairments, 20 C.F.R. Pt. 404, Subpt. P, App. 1. 20 C.F.R. §§ 404.1520(d), 416.920(d). Fourth, if disability cannot be found on the basis of the claimant's medical status alone, the impairment or impairments must prevent the claimant from returning to his past relevant work. Id. §§ 404.1520(e), 416.920(e). And fifth, the impairment must prevent the claimant from doing any work, considering the claimant's residual functional capacity, age, education, and past work experience. Id. §§ 404.1520(f), 416.920(f); Crowley v. Apfel, 197 F.3d 194, 197-98 (5th Cir. 1999). At steps one through four, the burden of proof rests upon the claimant to show he is disabled. Crowley, 197 F.3d at 198. If the claimant satisfies this responsibility, the burden shifts to the Commissioner to show that there is other gainful employment the claimant is capable of performing in spite of his existing impairments. Id.
FC R at 2-3. The description contained in this footnote will define what is meant when reference is made to one of the steps in the analysis.
The magistrate judge in a well-written opinion, which has support in other opinions of this court, agreed with plaintiff's Stone-based contention. A proposed finding of the magistrate judge is that the ALJ failed to make a reference to the proper second-step Stone severity standard as to plaintiff's obesity, with the consequence that there is an assumption that the ALJ applied an incorrect standard in evaluating whether plaintiff's obesity satisfied the second-step severity requirement. From there, the magistrate judge reasoned that the ruling of the ALJ must be reversed and the matter remanded for further consideration.
See Luna v. Astrue, No. 3:09-CV-1436-A, 210 WL 582151 (N.D. Tex. Feb. 18, 2010); Scroggins v. Astrue, 598 F. Supp. 2d 800 (N.D. Tex. 2009); Key v. Astrue, No. 3:06-CV-1087-N (N.D. Tex. Sept. 4, 2007).
In reaching the decision not to accept the recommendation of the magistrate judge, the court bears in mind that judicial review of the decision of the Commissioner of nondisability is limited to two inquiries: (1) whether substantial evidence of record supports Commissioner's decision and (2) whether the decision comports with relevant standards. See Anthony v. Sullivan, 954 F.2d 289, 292 (5th Cir. 1992). Substantial evidence is such evidence that a reasonable mind might accept as adequate to support the decision. Richardson v. Perales, 402 U.S. 389, 401 (1971).
The opinion of the ALJ makes clear that the ALJ was conscious of, and took into account, plaintiff's obesity in his overall analysis. He makes reference to a consultive evaluation performed on September 27, 2006, that revealed, among other things, that plaintiff had morbid obesity. Tr. at 25. The ALJ took into account a discussion plaintiff's treating physician had with her about weight loss and lifestyle modifications. Id. And, he took into account the descriptions plaintiff gave of the problems she had that limited, or interfered with, her activities and capabilities. Id. After considering all the evidence of record, the ALJ found that plaintiff's statements concerning the intensity, persistence, and limiting effects of her symptoms were not entirely credible. Id. at 25-26.
Notwithstanding the ALJ's concern as to plaintiff's credibility, he found in favor of plaintiff at the first two steps. He found that she had not engaged in substantial gainful activity since July 10, 2005, the alleged onset date, id. at 23, and he found that she has severe impairments in the form of bilateral carpal tunnel syndrome and degenerative joint disease of the knees. Id. "After careful consideration of the entire record," id. at 24, the ALJ defined the residual functional capacity of plaintiff. In making that finding, the ALJ "considered all symptoms and the extent to which these symptoms can reasonably be accepted as consistent with the objective medical evidence and other evidence. . . ." Id.
The court adopts the finding of the magistrate judge that nothing in the ALJ's opinion satisfies the Stone-mandated recitations that must be made in order to avoid presumed incorrectness in the evaluation of severity. However, nothing in the record indicates that the ALJ failed to accord proper weight to plaintiff's obesity. The ALJ found for plaintiff at the second step by finding that she had an impairment or combination of impairments that was severe. Nothing in the record would allow for a reasonable conclusion that the ALJ did not consider plaintiff's impairment of obesity when he concluded that her bilateral carpal tunnel syndrome and degenerative joint disease of the knees conditions were severe impairments. The court assumes that the ALJ took into account all of her impairments (in other words, her "combination of impairments") in determining whether specific impairments are severe. Having thus found for plaintiff at the "impairment or combination of impairments that is severe" step, plaintiff can hardly complain of the standard the ALJ used to arrive at that finding. He made precisely the finding plaintiff would have wanted him to make.
The Stone rulings simply do not apply to this case. The Stone administrative law judge did not find that the claimant had an impairment or combination of impairments that was severe. In other words, the administrative law judge found against plaintiff at the second step. Consequently, the standard the administrative law judge applied in making its finding at the second step was dispositive. In Loza v. Apfel, the Fifth Circuit explained that in Stone the "court was confronted with another in a series of cases in which a decisive administrative determination was made against disability at step two on the grounds of non-severity. . . ." 219 F.3d 378, 390-91 (5th Cir. 2000). That is not so in the instant case. As the Fifth Circuit noted in Chaparro v. Bowen, "this case did not turn on whether or not [the claimant's] impairment was severe, but on whether [the claimant] could return to his past relevant work — an inquiry unaffected by the test set forth in Stone." 815 F.2d 1008, 1011 (5th Cir. 1987).
The main holding of the Fifth Circuit in Loza seems to have been that because of the administrative law judge's failure to comply with theStone ruling when he found that a mental impairment was nonsevere, there was an assumption that the administrative law judge applied an incorrect standard to the severity requirement. Loza v. Apfel, 219 F.3d 378, 393 (5th Cir. 2000). For that reason, the Fifth Circuit ordered that the case be remanded to the Commissioner for reconsideration. In addition, the Fifth Circuit found that the administrative law judge's finding that the mental impairment was nonsevere was not supported by substantial evidence based on the record as a whole. Id. at 398.
Once the ALJ found in favor of plaintiff at the severe impairment step, he went forward with his analysis through the remaining steps. Because the ALJ made clear that he was aware of, and considering, obesity in his overall analysis, presumably he took the obesity impairment into account in his analysis at each of the steps. To whatever extent plaintiff contends otherwise, her contentions do not find support in the record.
There is substantial evidence in the record to support each of the ALJ's findings and his ultimate decision, which became the Commissioner's decision, and there is nothing in the record that would support a conclusion that the decision does not comport with relevant standards. The fact that the ALJ did not recite the Stone standard as to the second step does not mean that his ultimate decision does not comport with relevant standards. Plaintiff has not called the court's attention to anything in the record that provides support for her various arguments that the ALJ did not properly consider her obesity in his analysis or in reaching his ultimate decision. The court concludes, therefore, that all of plaintiff's complaints are without merit.
To whatever extent the findings and conclusions of the magistrate judge are inconsistent with this memorandum opinion and order, they do not meet with the court's approval. The findings and conclusions of the magistrate judge that are consistent with this memorandum opinion and order are approved. The court concludes that Commissioner's decision should be affirmed.
THE COURT SO ORDERS.