Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Barnes v. Colvin

United States District Court, S.D. Mississippi, Northern Division

February 22, 2017

WILLIE BARNES PLAINTIFF
v.
CAROLYN W. COLVIN, Commissioner, United States Social Security Administration DEFENDANT

          ORDER

          DANIEL P. JORDAN III UNITED STATES DISTRICT JUDGE

         This 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 [14] of United States Magistrate Judge John C. Gargiulo. Judge Gargiulo recommended that the Court deny Barnes's Motion for Summary Judgment [9] and grant Defendant's Motion to Affirm [11]. Barnes timely filed Objections [15] to the Report and Recommendation, and Defendant filed a Notice [16] 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.

         Barnes 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 [14] at 9.

         The ALJ 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).

         In Stone v. Heckler, the Fifth Circuit construed the regulation

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)).

         The 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.

         Here, 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 96-4p).

Admin. R. [8] 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 [15] at 5.

         Barnes's 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 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.