Keel v. Saul

Case: 20-10728     Document: 00515715509         Page: 1     Date Filed: 01/22/2021




           United States Court of Appeals
                for the Fifth Circuit
                                                                       United States Court of Appeals
                                                                                Fifth Circuit

                                                                              FILED
                                                                        January 22, 2021
                                  No. 20-10728                           Lyle W. Cayce
                                                                              Clerk

   Luzenia S. Keel,

                                                            Plaintiff—Appellant,

                                      versus

   Andrew M. Saul, Commissioner of Social Security,

                                                           Defendant—Appellee.


                  Appeal from the United States District Court
                      for the Northern District of Texas
                           USDC No. 3:19-CV-1006


   Before Haynes, Duncan, and Engelhardt, Circuit Judges.
   Haynes, Circuit Judge:
         In this social security case, the district court affirmed the decision of
   the Social Security Commissioner to deny supplemental security income and
   disability insurance benefits to Appellant Luzenia Keel. On appeal, Keel
   argues that the Administrative Law Judge (“ALJ”) failed to apply the correct
   severity standard regarding her impairments. For the following reasons, we
   AFFIRM.
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                                         No. 20-10728


                                    I.    Background
           In 2011, Keel applied for disability insurance benefits and
   supplemental security income. She alleged that she was disabled due to
   several physical and mental impairments, including: hypertension; injury to
   her back, right knee, right shoulder, and neck; arthritis; depression; diabetes;
   compressed nerves; and sleep apnea.
           An ALJ denied Keel benefits. After remanding Keel’s case twice for
   further consideration, the Appeals Council ultimately denied Keel’s request
   to review her third denial of benefits. The final ALJ decision became the
   Commissioner’s final administrative decision on Keel’s claim.
           Keel sought judicial review of the final decision to deny her benefits in
   federal district court. 1 See Luzenia K. v. Saul, No. 3:19-CV-01006-BT, 

2020 WL 2574933

, at *1 (N.D. Tex. May 20, 2020). The parties consented to have
   the case decided before a magistrate judge, and the magistrate judge affirmed
   the ALJ’s final decision and dismissed the case with prejudice. Keel timely
   appealed. 2

                                 II.     Legal Standard
           We review the Commissioner’s denial of social security benefits
   “only to ascertain whether (1) the final decision is supported by substantial
   evidence and (2) whether the Commissioner used the proper legal standards
   to evaluate the evidence.” Whitehead v. Colvin, 

820 F.3d 776, 779

 (5th Cir.


           1
            Under 

42 U.S.C. § 405

(g), a claimant may seek judicial review of any final
   decision of the Commissioner of Social Security. Because the ALJ’s and the
   Commissioner’s final decisions are one and the same, we refer to the final decision as that
   of the ALJ’s in the Discussion section.
           2
            Matters resolved by a consented-to magistrate judge are appealable on the same
   grounds as those resolved by a district judge. 

28 U.S.C. § 636

(c)(3).




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                                          No. 20-10728


   2016) (per curiam) (quotation omitted).               Evidence is substantial if “a
   reasonable mind would support the conclusion”; there “must be more than
   a scintilla, but it need not be a preponderance.” Taylor v. Astrue, 

706 F.3d 600, 602

 (5th Cir. 2012) (per curiam) (quotation omitted).
           In determining if a claimant is disabled, the Commissioner uses a
   sequential, five-step approach, which considers whether:
           (1) the claimant is currently engaged in substantial gainful
           activity, (2) he has a severe impairment, (3) the impairment
           meets the severity of an impairment enumerated in the relevant
           regulations, (4) it prevents the claimant from performing past
           relevant work, and (5) it prevents him from doing any relevant
           work.
   Garcia v. Berryhill, 

880 F.3d 700, 704

 (5th Cir. 2018). If the claimant gets
   past the first four stages, then the burden shifts to the Commissioner on the
   fifth step to prove the claimant’s employability. 

Id.

 If the claimant is found
   to be disabled or not disabled at a step, then that determination ends the
   inquiry. See 

20 C.F.R. § 404.1520

(a)(4).

                                   III.    Discussion
           On appeal, Keel argues that the ALJ erred at step two of the disability
   analysis: assessing whether the claimant has a severe impairment. 3 See


           3
            Keel also argues that the ALJ’s residual functional capacity determination was not
   based on substantial evidence because of a Ripley error—that is, the ALJ independently
   decided, without obtaining an opinion from a medical expert, the effects of Keel’s
   impairments on her ability to work. See Williams v. Astrue, 

355 F. App’x 828

, 832 & n.6
   (5th Cir. 2009) (per curiam) (citing Ripley v. Chater, 

67 F.3d 552, 557

 (5th Cir. 1995)).
   Assuming arguendo that a Ripley error occurred, Keel failed to show how she was
   prejudiced by this error. See Ripley, 

67 F.3d at 557

 (holding that prejudice is required to
   reverse on a Ripley error). Keel argues that the ALJ should have considered a report that
   would have shown that she can perform only sedentary work. However, the ALJ concluded




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                                           No. 20-10728


   Garcia, 

880 F.3d at 704

. She contends that the ALJ committed a Stone
   error—that is, the ALJ used the wrong standard to assess the severity of
   Keel’s impairment. See Stone v. Heckler, 

752 F.2d 1099, 1106

 (5th Cir. 1985).
           In Stone, we described the threshold for a severe impairment. Phrased
   in the negative, an “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

 (quotation
   omitted). ALJs are bound not just to use this standard but also to cite it (or
   to an equivalent authority) in their written decisions; we presume that an ALJ
   applied the wrong severity standard if it does not. 

Id. at 1106

 (noting that
   courts must presume error “unless the correct standard is set forth by
   reference to [the Stone] 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) (1984) is
   used”). However, “[a] case will not be remanded simply because the ALJ
   did not use ‘magic words.’” Hampton v. Bowen, 

785 F.2d 1308, 1311

 (5th Cir.
   1986). Remand is only appropriate “where there is no indication the ALJ
   applied the correct standard.” 

Id.

           Here, the ALJ did not mention the Stone standard, but it did cite Social
   Security Ruling (“SSR”) 85-28, 

1985 WL 56856

 (Jan. 1, 1985), a policy
   statement issued to clarify the agency’s process for determining non-severe



   that Keel could return to her past relevant work as a customer service representative—the
   same sedentary job she previously held. Keel’s citation to vocational guidelines addressing
   the functional restrictions of sedentary work for people of advanced age does not compel a
   different result. See 20 C.F.R. pt. 404, subpt. P, app. 2, § 201.00(e) (commenting that
   “[t]he presence of acquired skills that are readily transferable to a significant range of
   skilled work within an individual’s residual functional capacity would ordinarily warrant a
   finding of ability to engage in substantial gainful activity regardless of the adversity of age”
   (emphasis added)). We therefore reject Keel’s residual functional capacity argument.




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                                    No. 20-10728


   impairments. SSR 85-28 uses some of the same language as Stone, but it is
   not identical: SSR 85-28 considers “[a]n impairment or combination of
   impairments” as “not severe” if “medical evidence establishes only a slight
   abnormality or a combination of slight abnormalities which would have no
   more than a minimal effect on an individual’s ability to work even if the
   individual’s age, education, or work experience were specifically
   considered.” 

1985 WL 56856

, at *3.
          The district courts in this circuit are split on whether SSR 85-28 is
   consistent with Stone. See Guzman v. Berryhill, No. EP-17-CV-312-MAT,
   

2019 WL 1432482

, at *5 (W.D. Tex. Mar. 29, 2019) (unpublished) (collecting
   cases holding that SSR 85-28 provides the same standard as Stone and cases
   holding the opposite); see also Acosta v. Astrue, 

865 F. Supp. 2d 767

, 780 &
   nn.13–14 (W.D. Tex. 2012) (collecting the same). Although we reaffirmed
   the traditional Stone standard in Salmond v. Berryhill, 

892 F.3d 812, 817

 (5th
   Cir. 2018), and Garcia, 

880 F.3d at 705

, we did not rule on whether SSR 85-
   28 comports with it. We now hold that it does.
          Stone treats an impairment as not severe when it is of “such minimal
   effect” that it would not be expected to interfere with “the individual’s
   ability to work.” 

752 F.2d at 1101

. SSR 85-28 uses similar language focusing
   on “a minimal effect on an individual’s ability to work.” 

1985 WL 56856

, at
   *3. Though the precise wording differs, Stone and SSR 85-28 are not
   substantially different enough to warrant a finding of error.
          Even if we were to conclude that the ALJ failed to properly apply the
   Stone standard, such a conclusion does not require an automatic reversal—if
   the ALJ proceeds past step two, we consider whether the error was harmless.
   See Taylor, 

706 F.3d at 603

 (applying harmless error analysis where the ALJ
   failed to cite Stone at step two but proceeded to later steps in the sequential
   evaluation process); see also Snell v. Chater, 

68 F.3d 466

 (5th Cir. 1995) (per




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                                          No. 20-10728


   curiam) (“[T]his court has held that when the ALJ’s analysis goes beyond
   Step Two . . . specific reference to Stone and its requirements is not
   necessary.”). 4 Harmless error exists when it is inconceivable that a different
   administrative conclusion would have been reached even if the ALJ did not
   err. See Frank v. Barnhart, 

326 F.3d 618, 622

 (5th Cir. 2003) (per curiam).
           Keel argues that the ALJ’s alleged Stone error was not harmless
   because the ALJ failed to consider the effect of some of her non-severe
   impairments—depression, obesity, dizziness, forgetfulness, and the need to
   urinate—in combination with her other impairments.                         Had the ALJ
   considered these impairments “both singly and in combination,” Keel
   maintains, “the ALJ could have found that [Keel] had additional severe
   impairments at the step 2 finding,” resulting in an ultimate finding of
   disability. 5
           We disagree. Keel does not meaningfully address how the ALJ’s
   application of SSR 85-28 (instead of citing Stone) produced a different
   outcome in her case. 6 Keel thus fails to overcome the harmless error rule.


           4
           Before January 1, 1996, unpublished opinions in this circuit are precedential. 5TH
   CIR. R. 47.5.3.
           5
              Keel also contends that the ALJ failed to consider the effects of her obesity or
   explain how the ALJ reached its conclusions. However, the record shows that the ALJ did
   consider the effects of her obesity and how it might affect her other impairments.
   Significantly, the ALJ also found that Keel could return to her previous sedentary job. See
   Walford v. Astrue, No. 3-09-CV-0629-BD, 

2011 WL 2313012

, at *5 (N.D. Tex. June 10,
   2011) (“Where an ALJ fails to comply with SSR 02–1p [regarding the evaluation of
   obesity], courts generally find that the claimant has been prejudiced unless: (1) the ALJ
   limits the claimant to sedentary work, or (2) the record is totally devoid of medical evidence
   establishing any obesity-related limitations.” (emphasis added)).
           6
             Keel maintains that, “[h]ad the ALJ used the correct definition of the word
   ‘severe,’ [the ALJ] would have had to consider whether [Keel’s] other conditions,
   including her depression, are severe.” The record shows that the ALJ did consider: (1) “all




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                                       No. 20-10728


   See Shinseki v. Sanders, 

556 U.S. 396, 409

 (2009) (noting that “the burden of
   showing that an error is harmful normally falls upon the party attacking the
   agency’s determination”).
          For the foregoing reasons, we AFFIRM.




   [of Keel’s] symptoms and the extent to which these symptoms c[ould] reasonably be
   accepted with the objective medical evidence”; and (2) determined that many of Keel’s
   impairments were not severe.




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