United States District Court, S.D. Mississippi, Northern (Jackson) Division
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
LINDA R. ANDERSON, Magistrate Judge.
Sally Mae McKinney appeals the final decision denying her applications for Disability Insurance Benefits, Supplemental Security Income, and Disabled Widow's Benefits. 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.
Factual and Procedural Background
On June 4, 2009, McKinney filed applications alleging she became disabled on May 16, 2009, due to an inability to walk because of a stroke resulting from too much medication in her system. At the hearing before the ALJ, she also claimed headaches, seizure disorder, hypertension, depression, and leg and chest pain. She was 52 years old at the time of filing, and has a 10th grade education, with no past relevant work experience that rises to the level of substantial gainful activity. The applications were denied initially and on reconsideration. McKinney appealed the denial and on February 22, 2011, Administrative Law Judge Frederick McGrath ("ALJ") rendered an unfavorable decision finding that Plaintiff had not established a disability within the meaning of the Social Security Act. The Appeals Council denied Plaintiff's request for review. She now appeals that decision.
Upon 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 her alleged onset date. At steps two and three, the ALJ found that although Plaintiff's seizure disorder, headaches, hypertension, obesity, and a history of stroke were severe, they did not meet or medically equal any listing. At step four, the ALJ found that Plaintiff had the residual functional capacity to perform light, unskilled work, except she cannot work around unprotected heights or around dangerous machinery. Based on vocational expert testimony, the ALJ concluded at step five, that given Plaintiff's age, education, work experience, and residual functional capacity, she could perform work as a bench assembler, electrical accessories assembler, and electrode cleaner.
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 at 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 primarily argues on appeal that the Commissioner's decision should be reversed or alternatively remanded because the ALJ (1) failed to find that her depression was a medically severe impairment at step two of the sequential evaluation; (2) failed to apply the proper legal standards in considering the medical opinion evidence; (3) and, failed to consider all of her impairments in assessing her residual functional capacity. The Court rejects these arguments for the reasons that follow.
1. Whether substantial evidence supports the ALJ's finding that Plaintiff's depression was not a severe impairment.
Although Plaintiff failed to assert depression as a disabling impairment in her applications, she alleges that the ALJ failed to adequately analyze her mental impairment at step two of the sequential evaluation. McKinney argues first that under 42 U.S.C. § 421(h),  the ALJ was required to obtain a mental health professional's review of her allegations of depression following the Commissioner's failure to obtain a review at the initial level. See also 20 C.F.R. § § 404.1503(e), 416. 903(e). Yet, a plain reading of the regulation in its entirety reflects that an ALJ is not subject at the hearing level to the purview of 421(h), and therefore not required to "employ the assistance of a qualified psychiatrist or psychologist in making an initial determination of [a] mental impairment." Plummer v. Apfel, 186 F.3d 422, 433 (3rd Cir. 1999)(emphasis added); 42 U.S.C. § 421 (d). An ALJ is governed by 42 U.S.C. § 421 (d).
To the extent Plaintiff contends that the ALJ should have ordered a consultative mental health examination to evaluate her depression at the hearing level, the ALJ's duty to obtain a consultative examination is triggered when the evidence is insufficient to make an informed decision. 20 C.F.R. § 416.912; see also Pierre v. Sullivan, 884 F.2d 799, 802 (5th Cir. 1989); Kane v. Heckler, 731 F.2d 1216, 1219 (5th Cir. 1984). The duty is discretionary and must be balanced against the fact that the claimant bears the burden of proof through step four of the evaluation process. Brock, 84 F.3d at 728; Audler v. Astrue, 501 F.3d 446, 448 (5th Cir. 2007). As set forth below, sufficient evidence was present here.
Plaintiff also cites as error the ALJ's failure to complete a Psychiatric Review Technique Form, as required by 20 C.F.R. § 1520(a). While she acknowledges that the ALJ applied the psychiatric review technique in assessing the severity of her depression, she nonetheless maintains that the ALJ erred in failing to complete the Psychiatric Review Technique Form. Social Security regulations require that when evaluating the severity of mental impairments, a psychiatric review technique form should be completed during the initial and reconsideration phases of the administrative review process. 20 C.F.R. § 1520a(e); 20 C.F.R. § 416.920(a). The technique, which must be incorporated in the ALJ's findings, rates the degree of functional limitation in four broad areas: activities of daily living; social functioning; concentration, persistence, or pace; and episodes of decompensation. 20 C.F.R. §§ 1520a(c), 920a(c). Id. "In the Fifth Circuit, however, an ALJ's failure to complete a psychiatric review technique form is a procedural error that does not require remand, provided the error has not affected a party's substantial rights." McGehee v. Chater, 1996 WL 197435, at *3 (5th Cir. Mar.21, 1996) (unpubl.)(emphasis added) ( citing Maya v. Bowen, 837 F.2d 1362, 1364 (5th Cir.1984)). McKinney's substantial rights were not affected here.
In determining that Plaintiff's depression was not severe, the ALJ's decision cites and applies the correct standard from Stone v. Heckler, 752 F.2d 1099, 1101 (5th Cir. 1985. He additionally found that Plaintiff had only mild limitations in her activities of daily living, social functioning, concentration, persistence, and pace, and no episodes of decompensation. The only question for this Court is whether these findings are supported by substantial evidence. While Plaintiff cites to various portions of her testimony to support her severity claim, a claimant may not rely solely on her own testimony or subjective complaints to establish severity. It is undisputed that Plaintiff was diagnosed with depression, but a diagnosis alone is insufficient to establish a severe impairment or disability. Hames v. Heckler, 707 F.2d 162, 165 (5th Cir. 1983). "An impairment is severe if it significantly limits an individual's physical or mental abilities to do basic work ...