United States District Court, S.D. Mississippi, Northern Division
P. JORDAN III UNITED STATES DISTRICT JUDGE
appeal from the final decision of the Social Security
Administration denying Plaintiff Willie Barnes's claim
for Supplemental Security Income payments is before the Court
on the Report and Recommendation  of United States
Magistrate Judge John C. Gargiulo. Judge Gargiulo recommended
that the Court deny Barnes's Motion for Summary Judgment
 and grant Defendant's Motion to Affirm . Barnes
timely filed Objections  to the Report and
Recommendation, and Defendant filed a Notice  indicating
that she did not intend to respond to the Objections. For the
reasons that follow, the Court adopts as modified the Report
and Recommendation as the opinion of the Court.
argues that Judge Gargiulo incorrectly decided the sole issue
involved in this appeal: whether the ALJ employed an
incorrect severity standard in assessing whether Barnes
suffers from a “severe” impairment or combination
of impairments. Judge Gargiulo concluded that the ALJ
“cited and applied the correct legal standard and her
decision is supported by substantial evidence.” Report
& Recommendation  at 9.
in this case decided that Barnes is “not
disabled” at the second step of the Social Security
Administration's five-step sequential evaluation process.
“At the second step, we consider the medical severity
of your impairment(s). If you do not have a severe medically
determinable physical or mental impairment . . . or a
combination of impairments that is severe .. ., we will find
that you are not disabled.” 20 C.F.R. §
416.920(a)(4)(ii) (2016). The regulation defines a severe
impairment or combination of impairments as one “which
significantly limits your physical or mental ability to do
basic work activities.” Id. § 416.920(c).
Stone v. Heckler, the Fifth Circuit construed the
as setting the following standard in 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 (5th Cir. 1984)).
court went on to explain that courts in this circuit
will in the future assume that the ALJ and 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 [the
regulation] is used.
Id. at 1106.
the ALJ neither specifically cited Stone nor used
its precise language, instead describing the severity
standard as follows:
An impairment or combination of impairments is
“severe” within the meaning of the regulations if
it significantly limits an individual's ability to
perform basic work activities. An impairment or combination
of impairments is “not severe” when medical and
other evidence establish only a slight abnormality or a
combination of abnormalities that would have no more than a
minimal effect on an individual's ability to work (20 CFR
416.921; Social Security Rulings (SSRs) 85-28, 96-3p, and
Admin. R.  at 16. Though the ALJ tracked the SSA
regulations and rules she cited, Barnes takes issue with that
approach, contending that the ALJ's articulated standard
would find no severity where there is “minimal
effect” on the “ability to work, ” whereas
Stone allows no effect on the ability to work.
Pl.'s Objections  at 5.
argument is not without support and raises a tiresome
dispute. Despite the Fifth Circuit's clear instructions
in Stone, ALJs throughout the circuit continue to
ignore the holding and apply severity standards that are the
same or similar to the one here. Not surprisingly, the
claimants often appeal, and the results have produced two
diametrically opposed schools of thought. Compare,
e.g., Horn v. Colvin, No. G-15-126, 2017 WL
476740, at *2 (S.D. Tex. Feb. 3, 2017) (remanding because
application of same standard used in this case was
presumptively incorrect and error was ...