Keel v. Saul ( 2021 )

Case: 20-10728 Document: 00515715509 Page: 1 Date Filed: 01/22/2021
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
FILED
January 22, 2021
No. 20-10728 Lyle W. Cayce
Clerk
Luzenia S. Keel,
Plaintiff—Appellant,
versus
Andrew M. Saul, Commissioner of Social Security,
Defendant—Appellee.
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:19-CV-1006
Before Haynes, Duncan, and Engelhardt, Circuit Judges.
Haynes, Circuit Judge:
In this social security case, the district court affirmed the decision of
the Social Security Commissioner to deny supplemental security income and
disability insurance benefits to Appellant Luzenia Keel. On appeal, Keel
argues that the Administrative Law Judge (“ALJ”) failed to apply the correct
severity standard regarding her impairments. For the following reasons, we
AFFIRM.
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No. 20-10728
I. Background
In 2011, Keel applied for disability insurance benefits and
supplemental security income. She alleged that she was disabled due to
several physical and mental impairments, including: hypertension; injury to
her back, right knee, right shoulder, and neck; arthritis; depression; diabetes;
compressed nerves; and sleep apnea.
An ALJ denied Keel benefits. After remanding Keel’s case twice for
further consideration, the Appeals Council ultimately denied Keel’s request
to review her third denial of benefits. The final ALJ decision became the
Commissioner’s final administrative decision on Keel’s claim.
Keel sought judicial review of the final decision to deny her benefits in
federal district court. 1 See Luzenia K. v. Saul, No. 3:19-CV-01006-BT, 2020
WL 2574933, at *1 (N.D. Tex. May 20, 2020). The parties consented to have
the case decided before a magistrate judge, and the magistrate judge affirmed
the ALJ’s final decision and dismissed the case with prejudice. Keel timely
appealed. 2
II. Legal Standard
We review the Commissioner’s denial of social security benefits
“only to ascertain whether (1) the final decision is supported by substantial
evidence and (2) whether the Commissioner used the proper legal standards
to evaluate the evidence.” Whitehead v. Colvin, 820 F.3d 776, 779 (5th Cir.
1
Under 42 U.S.C. § 405(g), a claimant may seek judicial review of any final
decision of the Commissioner of Social Security. Because the ALJ’s and the
Commissioner’s final decisions are one and the same, we refer to the final decision as that
of the ALJ’s in the Discussion section.
2
Matters resolved by a consented-to magistrate judge are appealable on the same
grounds as those resolved by a district judge. 28 U.S.C. § 636(c)(3).
2
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2016) (per curiam) (quotation omitted). Evidence is substantial if “a
reasonable mind would support the conclusion”; there “must be more than
a scintilla, but it need not be a preponderance.” Taylor v. Astrue, 706 F.3d
600, 602 (5th Cir. 2012) (per curiam) (quotation omitted).
In determining if a claimant is disabled, the Commissioner uses a
sequential, five-step approach, which considers whether:
(1) the claimant is currently engaged in substantial gainful
activity, (2) he has a severe impairment, (3) the impairment
meets the severity of an impairment enumerated in the relevant
regulations, (4) it prevents the claimant from performing past
relevant work, and (5) it prevents him from doing any relevant
work.
Garcia v. Berryhill, 880 F.3d 700, 704 (5th Cir. 2018). If the claimant gets
past the first four stages, then the burden shifts to the Commissioner on the
fifth step to prove the claimant’s employability. Id. If the claimant is found
to be disabled or not disabled at a step, then that determination ends the
inquiry. See 20 C.F.R. § 404.1520(a)(4).
III. Discussion
On appeal, Keel argues that the ALJ erred at step two of the disability
analysis: assessing whether the claimant has a severe impairment. 3 See
3
Keel also argues that the ALJ’s residual functional capacity determination was not
based on substantial evidence because of a Ripley error—that is, the ALJ independently
decided, without obtaining an opinion from a medical expert, the effects of Keel’s
impairments on her ability to work. See Williams v. Astrue, 355 F. App’x 828, 832 & n.6
(5th Cir. 2009) (per curiam) (citing Ripley v. Chater, 67 F.3d 552, 557 (5th Cir. 1995)).
Assuming arguendo that a Ripley error occurred, Keel failed to show how she was
prejudiced by this error. See Ripley, 67 F.3d at 557 (holding that prejudice is required to
reverse on a Ripley error). Keel argues that the ALJ should have considered a report that
would have shown that she can perform only sedentary work. However, the ALJ concluded
3
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Garcia, 880 F.3d at 704. She contends that the ALJ committed a Stone
error—that is, the ALJ used the wrong standard to assess the severity of
Keel’s impairment. See Stone v. Heckler, 752 F.2d 1099, 1106 (5th Cir. 1985).
In Stone, we described the threshold for a severe impairment. Phrased
in the negative, 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 work,
irrespective of age, education or work experience.” Id. at 1101 (quotation
omitted). ALJs are bound not just to use this standard but also to cite it (or
to an equivalent authority) in their written decisions; we presume that an ALJ
applied the wrong severity standard if it does not. Id. at 1106 (noting that
courts must presume error “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) (1984) is
used”). However, “[a] case will not be remanded simply because the ALJ
did not use ‘magic words.’” Hampton v. Bowen, 785 F.2d 1308, 1311 (5th Cir.
1986). Remand is only appropriate “where there is no indication the ALJ
applied the correct standard.” Id.Here, the ALJ did not mention the Stone standard, but it did cite Social
Security Ruling (“SSR”) 85-28, 1985 WL 56856 (Jan. 1, 1985), a policy
statement issued to clarify the agency’s process for determining non-severe
that Keel could return to her past relevant work as a customer service representative—the
same sedentary job she previously held. Keel’s citation to vocational guidelines addressing
the functional restrictions of sedentary work for people of advanced age does not compel a
different result. See 20 C.F.R. pt. 404, subpt. P, app. 2, § 201.00(e) (commenting that
“[t]he presence of acquired skills that are readily transferable to a significant range of
skilled work within an individual’s residual functional capacity would ordinarily warrant a
finding of ability to engage in substantial gainful activity regardless of the adversity of age”
(emphasis added)). We therefore reject Keel’s residual functional capacity argument.
4
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impairments. SSR 85-28 uses some of the same language as Stone, but it is
not identical: SSR 85-28 considers “[a]n impairment or combination of
impairments” as “not severe” if “medical evidence establishes only a slight
abnormality or a combination of slight abnormalities which would have no
more than a minimal effect on an individual’s ability to work even if the
individual’s age, education, or work experience were specifically
considered.” 1985 WL 56856, at *3.
The district courts in this circuit are split on whether SSR 85-28 is
consistent with Stone. See Guzman v. Berryhill, No. EP-17-CV-312-MAT,
2019 WL 1432482, at *5 (W.D. Tex. Mar. 29, 2019) (unpublished) (collecting
cases holding that SSR 85-28 provides the same standard as Stone and cases
holding the opposite); see also Acosta v. Astrue, 865 F. Supp. 2d 767, 780 &
nn.13–14 (W.D. Tex. 2012) (collecting the same). Although we reaffirmed
the traditional Stone standard in Salmond v. Berryhill, 892 F.3d 812, 817 (5th
Cir. 2018), and Garcia, 880 F.3d at 705, we did not rule on whether SSR 85-
28 comports with it. We now hold that it does.
Stone treats an impairment as not severe when it is of “such minimal
effect” that it would not be expected to interfere with “the individual’s
ability to work.” 752 F.2d at 1101. SSR 85-28 uses similar language focusing
on “a minimal effect on an individual’s ability to work.” 1985 WL 56856, at
*3. Though the precise wording differs, Stone and SSR 85-28 are not
substantially different enough to warrant a finding of error.
Even if we were to conclude that the ALJ failed to properly apply the
Stone standard, such a conclusion does not require an automatic reversal—if
the ALJ proceeds past step two, we consider whether the error was harmless.
See Taylor, 706 F.3d at 603 (applying harmless error analysis where the ALJ
failed to cite Stone at step two but proceeded to later steps in the sequential
evaluation process); see also Snell v. Chater, 68 F.3d 466 (5th Cir. 1995) (per
5
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curiam) (“[T]his court has held that when the ALJ’s analysis goes beyond
Step Two . . . specific reference to Stone and its requirements is not
necessary.”). 4 Harmless error exists when it is inconceivable that a different
administrative conclusion would have been reached even if the ALJ did not
err. See Frank v. Barnhart, 326 F.3d 618, 622 (5th Cir. 2003) (per curiam).
Keel argues that the ALJ’s alleged Stone error was not harmless
because the ALJ failed to consider the effect of some of her non-severe
impairments—depression, obesity, dizziness, forgetfulness, and the need to
urinate—in combination with her other impairments. Had the ALJ
considered these impairments “both singly and in combination,” Keel
maintains, “the ALJ could have found that [Keel] had additional severe
impairments at the step 2 finding,” resulting in an ultimate finding of
disability. 5
We disagree. Keel does not meaningfully address how the ALJ’s
application of SSR 85-28 (instead of citing Stone) produced a different
outcome in her case. 6 Keel thus fails to overcome the harmless error rule.
4
Before January 1, 1996, unpublished opinions in this circuit are precedential. 5TH
CIR. R. 47.5.3.
5
Keel also contends that the ALJ failed to consider the effects of her obesity or
explain how the ALJ reached its conclusions. However, the record shows that the ALJ did
consider the effects of her obesity and how it might affect her other impairments.
Significantly, the ALJ also found that Keel could return to her previous sedentary job. See
Walford v. Astrue, No. 3-09-CV-0629-BD, 2011 WL 2313012, at *5 (N.D. Tex. June 10,
2011) (“Where an ALJ fails to comply with SSR 02–1p [regarding the evaluation of
obesity], courts generally find that the claimant has been prejudiced unless: (1) the ALJ
limits the claimant to sedentary work, or (2) the record is totally devoid of medical evidence
establishing any obesity-related limitations.” (emphasis added)).
6
Keel maintains that, “[h]ad the ALJ used the correct definition of the word
‘severe,’ [the ALJ] would have had to consider whether [Keel’s] other conditions,
including her depression, are severe.” The record shows that the ALJ did consider: (1) “all
6
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See Shinseki v. Sanders, 556 U.S. 396, 409 (2009) (noting that “the burden of
showing that an error is harmful normally falls upon the party attacking the
agency’s determination”).
For the foregoing reasons, we AFFIRM.
[of Keel’s] symptoms and the extent to which these symptoms c[ould] reasonably be
accepted with the objective medical evidence”; and (2) determined that many of Keel’s
impairments were not severe.
7