United States District Court, S.D. Mississippi, Northern Division
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
LINDA R. ANDERSON, Magistrate Judge.
John Clark appeals the final decision denying his application for 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 March 25, 2011, Clark filed a Title II application alleging he became disabled on March 19, 2011, due to pain in his neck, back, right shoulder, right hand, and knees. He was 50 years old at the time of filing, and has a high school education, with two years of vocational college, and past work experience as a slot/pit technician, chair-framer, laborer, maintenance-mechanic, and clean-up worker. The application was denied initially and on reconsideration. Clark appealed the denial and on July 13, 2012, Administrative Law Judge Douglas Gilmer ("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 denied Clark's request for review, and he 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 had not engaged in substantial gainful activity since his alleged onset date. At steps two and three, the ALJ found that although Plaintiff's "status post cervical spine surgery (circa 2005) with cervical disc disease, status post right shoulder rotator cuff repair surgery (circa 2005), status post right carpel tunnel release (2010), lumbar degenerative disc disease, mild obesity, and hypertension" were medically 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 work, except he should not climb ladders, ropes or scaffolds and only occasionally climb stairs. Based on vocational expert testimony at step five, the ALJ concluded that given Plaintiff's age, education, work experience, and residual functional capacity, he could perform work as a cleaner, poultry-worker, and fast-food worker.
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 the ALJ failed to apply the correct severity standard at step two, and failed to assign controlling weight to his treating physician's medical source statement. The Court rejects these arguments on the grounds set forth below.
In Stone v. Heckler, the Fifth Circuit confirmed the following to be the proper legal standard for determining whether a claimant's impairment is severe: "[A]n 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." 752 F.2d 1099, 1101 (5th Cir. 1985) (quoting Estran v. Heckler, 745 F.2d 340, 341 (5th Cir. 1984)). The Stone Court cautioned that it would "in the future assume that the ALJ and the Appeals Council have applied an incorrect standard to the severity requirement unless the correct standard is set forth by reference to this 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) is used." Id. at 1106. In evaluating the severity of Plaintiff's impairments here, the ALJ explained 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." Plaintiff maintains that this was error because an impairment causing any interference with a clamant's work ability, even minimal interference, is a severe impairment under Stone.
Since Stone, the Fifth Circuit has cautioned that the critical issue is whether the ALJ applied the slight abnormality standard, not whether he or she recited "magic words." Hampton v. Bowen, 785 F.2d 1308, 1311 (5th Cir. 1986). More importantly, Plaintiff bears the burden of establishing a severe impairment at step two, and he has failed to identify any impairment that the ALJ failed to find severe on appeal. As noted above, the ALJ found that Plaintiff had several severe impairments. Although Clark correctly notes that the ALJ failed to cite Stone in his opinion, the failure to cite Stone or track its precise language does not mandate reversal or remand. Adams v. Bowen, 833 F.2d 509, 512 (5th Cir. 1987). "Stone merely reasons that the [severity] regulation cannot be applied to summarily dismiss, without consideration of the remaining steps in the sequential analysis, claims of those whose impairment is more than a slight abnormality." Loza v. Apfel, 219 F.3d 378, 391 (5th Cir. 2000) (quoting Anthony, 954 F.2d at 294) (emphasis added). Plaintiff's claims were not summarily dismissed at step two here. In compliance with controlling law, the ALJ proceeded with the sequential evaluation, and substantial evidence supports his overall finding that none of Plaintiff's impairments, alone or in combination, would preclude him from performing light work subject to the limitations of his residual functional capacity.
As his second point of error, Plaintiff alleges that the ALJ erred in failing to assign controlling weight to the medical source statement of his treating physician, Dr. Augustus Soriano. Specifically, he asserts that the ALJ failed to expressly indicate the weight that he assigned to Dr. Soriano's opinion, and failed to perform the statutory analysis outlined in 20 C.F.R. § 404.1527(d).
The Fifth Circuit has long held that "absent reliable medical evidence from a treating or examining physician controverting the claimant's treating specialist, an ALJ may reject the opinion of the treating physician only if the ALJ performs a detailed analysis of the treating physician's views under the criteria set forth in 20 C.F.R. § 404.1527(d)(2)." Newton v. Apfel, 209 F.3d 448, 453 (5th Cir. 2000) (emphasis in original). The statutory analysis requires the ALJ to consider the length of treatment; the frequency of examination; the nature and extent of the treatment relationship; the extent to which his opinions were supported by the medical record; the consistency of his opinion with the record as a whole; and the specialization of the physician. Id. But as noted, an ALJ is required to perform the statutory analysis only when the ALJ "rejects the sole relevant medical opinion before it." Qualls v. Astrue, 339 F.Appx. 461, 467 (5th Cir. 2009). The ALJ is free to reject any opinion, in whole or in part, when good cause is shown, i.e., when the evidence supports a contrary conclusion, when the opinions are conclusory, or when they are unsupported by medically acceptable clinical, laboratory, or diagnostic techniques. Scott v. Heckler, 770 F.2d 482, 485 (5th Cir. 1985); Martinez v. Chater, 64 F.3d 172 (5th Cir. 1995). An ALJ need not consider each of the § 404.1527(d) factors where "there is competing first-hand medical evidence and the ALJ finds as a factual matter that one doctor's opinion is more well-founded than another." Walker v. Barnhart, 158 Fed.App'x. 534 (5th Cir. 2005) (citing Newton 209 F.3d at 458). The ALJ was presented with competing first-hand medical evidence to support his assessment of Dr. Soriano's medical source statement in this case.
While medical records establish that Dr. Soriano was Plaintiff's treating physician, they show that he was only seen by Dr. Soriano from February 2011 though April 2012, primarily for check-ups and prescription refills. No comprehensive physical examination, objective laboratory or diagnostic tests, or clinical findings are reflected in his treatment records during that time period. Yet, in a medical source statement submitted in August 2011, Dr. Soriano opined that based on Plaintiff's hypertension, GERD, status postrotator cuff tear of the right shoulder, status post-cervical fusion CS-C4, and status postcarpel tunnel release, Plaintiff had environmental and manipulative limitations, and could not sit/stand/or walk for more than three hours or lift and carry more than 10 pounds. He also opined that Plaintiff would need ...