United States District Court, S.D. Mississippi, Jackson Division
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
LINDA R. ANDERSON, Magistrate Judge.
Angela Daniel appeals the final decision denying her 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.
Factual and Procedural Background
On June 8, 2007, Daniel filed applications alleging she became disabled on January 1, 2006, due to a deformed neck, scoliosis, back, leg, and knee pain, neck stiffness, vision and hearing problems, depression, and anxiety disorder. She was 31 years old at the time of filing, and has a high school education. Her past work experience included cashier, fast-food worker, shift leader in the fast-food industry, homemaker/home health agency, shipping/packaging packager, and babysitter. The applications were denied initially and on reconsideration. Daniel appealed the denial and on March 8, 2010, Administrative Law Judge Wallace E. Weakley ("ALJ") rendered an unfavorable decision finding that Plaintiff had not established a disability within the meaning of the Social Security Act. The Appeals Council granted Plaintiff's request for review, vacated the ALJ's decision, and remanded the case under the substantial evidence provisions of 20 C.F.R. § § 404.970 & 416.1470. In compliance with the remand order, the ALJ obtained additional evidence and conducted a second administrative hearing before rendering a second unfavorable decision on December 2, 2011. The Appeals Council denied Plaintiff's second 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 although Plaintiff worked after her alleged onset date, the work did not rise to the level of substantial gainful activity. At steps two and three, the ALJ found that although Plaintiff's torticollis, scoliosis, back pain, and right side disc bulge 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 sedentary work, except:
she is limited to 45 degrees of movement of head from side to side. She can occasionally bend and kneel. She is limited to walking a maximum of 25 feet at a time. She requires a sit/stand option. She can sit up to 15 minutes and stand up to 20 minutes at a time. She can stand/sit a total of eight hours a day. She can occasionally climb ramps and stairs.
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 booth-cashier, ticket-seller, and electrical-assembler.
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 argues that the Commissioner's decision should be reversed or alternatively remanded because the ALJ: (1) failed to find that her depression, partial hearing loss, and corneal ulcer of the right eye were medically severe impairments at step two of the sequential evaluation; (2) failed to consider all her non-severe impairments in assessing her residual functional capacity; and, (3) failed to properly consider her nurse practitioner's medical source statement.
1. Substantial evidence supports the ALJ's severity determination.
Plaintiff alleges that the ALJ failed to apply the correct legal standard at step two, and as a result, erred in failing to find that her depression, partial hearing loss, and corneal ulcer in her right eye were not severe impairments. In support, Plaintiff claims the ALJ applied three different severity standards, two of which she contends are inconsistent with the severity standard announced by the Fifth Circuit in Stone v. Heckler, 752 F.2d 1099 (5th Cir. 1985). In Stone, 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.'" Id. at 1101 (quoting Estran v. Heckler, 745 F.2d 340, 341 (5th Cir. 1984)).
While Plaintiff is correct that the ALJ used varying language in analyzing the severity of her impairments, 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). Despite the inconsistency in phrasing, the ALJ's decision reflects that he both cited and properly analyzed the severity of Plaintiff's impairments in accordance with Stone. As set forth below, ...