United States District Court, S.D. Mississippi, Northern Division
THOMAS L. HODGES, Plaintiff,
CAROLYN W. COLVIN, ACTING COMMISSIONER OF SOCIAL SECURITY Defendant.
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
LINDA R. ANDERSON, Magistrate Judge.
Thomas Hodges appeals the final decision denying his applications for Supplemental Security Income ("SSI") and Disability Insurance Benefits ("DIB"). The Commissioner requests an order pursuant to 42 U.S.C. § 405(g), affirming the final decision of the Administrative Law Judge. Having carefully considered the hearing transcript, the medical records in evidence, and all the applicable law, the undersigned recommends that the decision be affirmed for the reasons that follow.
Factual and Procedural Background
On February 23, 2009, Hodges filed applications for SSI and DIB, alleging he became disabled on October 15, 2007, due to anxiety, depression, epilepsy, migraines, hypertension, post traumatic stress disorder, diabetes, colitis, and pain in his back, knee, hand, hip, and neck. He is a high school graduate and was approximately 49 years old at the time of filing, with previous work experience as an electrician's helper, carpenter, construction worker, chemical mixer, and service in the U.S. Air Force. The applications were denied initially and on reconsideration. He appealed the denial and on December 22, 2010, Administrative Law Judge Regina L. Warren ("ALJ") rendered an unfavorable decision finding that Plaintiff had not established a disability within the meaning of the Social Security Act. The Appeals Council subsequently considered new evidence submitted by Plaintiff, but found it presented no basis for changing the ALJ's decision. Plaintiff now appeals that decision.
After reviewing the evidence, the ALJ concluded that Plaintiff was not disabled under the Social Security Act. At step one of the five-step sequential evaluation,  the ALJ found that Plaintiff has not engaged in substantial gainful activity since his alleged onset date. At steps two and three, the ALJ found that although Plaintiff's epilepsy and degenerative disc disease were severe, neither impairment met or medically equaled any listing. At step four, the ALJ found that Plaintiff had the residual functional capacity to perform a reduced range of light work except he can "perform simple work, can maintain attention and concentration for a two-hour period, can interact appropriately with coworkers and supervisors but should have no interaction with the public." Based on vocational expert testimony, the ALJ concluded that given Plaintiff's age, education, work experience, and residual functional capacity, he could perform light, unskilled work as a hand-packager, small-products-assembler, and ticket-seller.
Standard of Review
Judicial review in social security appeals is limited to two basic inquiries: "(1) whether there is substantial evidence in the record to support the [ALJ's] decision; and (2) whether the decision comports with relevant legal standards." Brock v. Chater, 84 F.3d 726, 728 (5th Cir. 1996) (citing Carrier v. Sullivan, 944 F.2d 243, 245 (5th Cir. 1991)). Evidence is substantial if it is "relevant and sufficient for a reasonable mind to accept as adequate to support a conclusion; it must be more than a scintilla, but it need not be a preponderance." Leggett v. Chater, 67 F.3d 558, 564 (5th Cir. 1995) (quoting Anthony v. Sullivan, 954 F.2d 289, 295 (5th Cir. 1992)). This Court may not re-weigh the evidence, try the case de novo, or substitute its judgment for that of the ALJ, even if it finds evidence that preponderates against the ALJ's decision. Bowling v. Shalala, 36 F.3d 431, 434 (5th Cir. 1994).
Plaintiff argues that the Commissioner's decision should be reversed or alternatively remanded because (1) the ALJ erred in finding that epilepsy and degenerative disc disease were his only severe impairments at step two; (2) the Appeals Council failed to properly consider new evidence of his physical and mental impairments; and, (3) the ALJ's finding that he could perform work in the national economy is not supported by substantial evidence. He additionally claims that the ALJ erred in failing to reopen his prior application for benefits in violation of HALLEX I-2-9-1.
As his first point of error, Plaintiff argues the ALJ erroneously found at step two of the sequential evaluation that his depression, anxiety disorder, and polysubstance abuse were not severe because they "do not cause more than a minimal limitation" in his ability to perform basic mental work activities under 20 C.F.R. § § 404.1520 (c) and § 416.920 (c) (2013). To the extent Plaintiff asserts that the ALJ substituted her own definition or applied the wrong standard because she failed to cite Stone v. Heckler, 752 F.2d 1099 (5th Cir. 1985), this argument is rejected. The critical issue at step two is whether the ALJ applied the correct legal standard, not whether she recited "magic words." Hampton v. Bowen, 785 F.2d 1308, 1311 (5th Cir. 1986). Even if the Court were to find that the ALJ's formulation of the severity standard was at odds with Stone, remand is not required on this basis in this case. The Fifth Circuit has recently made clear that any error in failing to follow the procedures set forth in Stone is harmless, where the claimant has failed to show that he is "so functionally impaired by his mental impairment that he is precluded from engaging in substantial gainful activity." Taylor v. Astrue, 706 F.3d 600, 603 (5th Cir. 2012). Moreover, Plaintiff's claims were not summarily dismissed at step two. To the contrary, as further set forth herein, the ALJ substantially considered the combined impact of all of Plaintiff's impairments in the remaining steps of the five-step sequential evaluation. See Herrera v. Astrue, 406 F.Appx. 899, 903 (5th Cir. 2010) (declining to remand where "case did not turn on a finding that [plaintiff's] impairments were not severe at step two"); Corbitt v. Commissioner of Social Sec. Administration, Civil Action No. 3:10CV558 CWR-LRA, 2013 WL 603896 (S.D.Miss. Feb. 19, 2013) (remanded because the ALJ failed to sufficiently consider non-severe impairment in the remainder of the five-step sequential evaluation).
Plaintiff also argues that the ALJ's non-severity findings are not substantially supported because they are contrary to the medical evidence of record. Specifically, he asserts that the ALJ failed to properly weigh the medical findings of consulting psychologist, Dr. Jan Boggs, and failed to consider the psychiatric review of the consulting examiner, Dr. David Powers. He similarly claims with respect to his physical impairments, that the ALJ erred in failing to consider his neck pain secondary to degenerative disc disease; upper extremity pain; bilateral knee pain secondary to arthritis; diabetes mellitus type II; ulcerative colitis; hypertension; and migraines. These arguments are not well taken.
In April 2009, Dr. Boggs performed a comprehensive psychological examination. During the examination, Plaintiff described himself as an "ex-druggie, " who had been drug-free for approximately six months. He also advised that he had previously had an alcohol problem following the death of both his parents in the 1980's and had received multiple citations for driving under the influence. He also stated that he has difficulty sleeping because of chronic pain and had been "treated for nerves at the V.A. Hospital, " albeit not recently. With regard to his daily activities, Plaintiff reported that he drives, shops with his wife, attends church, and sometimes visits friends. He also does some yard work, including planting a garden, and goes "turtling" at the pond behind his house because the turtles were eating all the fish. On examination, Dr. Boggs noted that Plaintiff was depressed, anxious, and "quite somatic." He was fully oriented and though he expressed concern about his memory, he was able to give a detailed history; and, his cognition was not adversely affected by his medications. Dr. Boggs also noted that records from the Veterans Administration ("VA") indicated that Plaintiff had a poor compliance with his appointments and that his primary diagnoses were cannabis abuse, insomnia, and depression. The records also indicated that Plaintiff's GAF score was 65 in March 2009 which, as noted by the ALJ, indicates that he had "some mild symptoms" but was "generally functioning pretty well." Based on his examination, Dr. Boggs ultimately diagnosed Plaintiff with anxiety and depressive disorders, not otherwise specified, polydrug dependence, and somatization disorder.
In June 2009, Dr. Powers submitted a psychiatric review based on the medical records to date, including Dr. Boggs's examination. He noted that Plaintiff had moderate limitations in activities of daily living, in maintaining social functioning, in maintaining concentration, persistence and pace, and no episodes of decompensation. Plaintiff contends that the moderate limitations assigned by Dr. Powers clearly demonstrate that his depression and anxiety disorder were more than slight abnormalities that would interfere with his ability to work, and that the ALJ erred in failing to consider or even mention this evidence. Specifically, he maintains that the ALJ erred in finding that his depression and anxiety produced only mild limitations in all functional areas and no episodes of decompensation.
The ALJ did err in failing to reference or analyze Dr. Power's psychiatric review. Plaintiff has not shown, however, that the ALJ's failure prejudiced his substantial rights. While Plaintiff characterizes Dr. Powers's psychiatric review as favorable evidence undermining the ALJ's non-severity finding at step two, a plain reading of Dr. Powers's opinion reflects that he ...