Jones v. Astrue

851 F.Supp.2d 1010

182 Soc.Sec.Rep.Serv. 123

Darrell L. JONES, Jr., Plaintiff,

v.Michael J. ASTRUE, Commissioner of Social Security, Defendant.

No. 4:11–CV–053–A.

United States District Court,

N.D. Texas,

Fort Worth Division.

March 20, 2012.

Ronald D. Honig, Law Office of Ronald D. Honig, Dallas, TX, for Plaintiff.

Eric Dale Poole, Social Security Administration, Dallas, TX, for Defendant.

MEMORANDUM OPINION and ORDER

JOHN McBRYDE, District Judge.

Before the court for decision is the complaint of plaintiff, Darrell L. Jones, Jr., filed under the authority of 42 U.S.C. § 405(g), complaining of the denial by defendant, Michael J. Astrue, Commissioner of Social Security Administration, (“Commissioner”) of his application for disability insurance benefits under sections 216(i) and 223 of the Social Security Act, 42 U.S.C. §§ 416(i) and 423. After having considered the filings of the parties, the administrative record, the proposed findings and conclusions and recommendation of Magistrate Judge Jeffrey L. Cureton, and pertinent legal authorities, the court has concluded that the decision of Commissioner should be affirmed.

I.Background

Plaintiff's application for disability insurance benefits was denied by Commissioner initially and on reconsideration. Me requested a hearing before an administrative law judge, which was held May 11, 2010, and was followed by an unfavorable decision of the administrative law judge (“ALJ”) on June 11, 2010. Plaintiff's request for review was denied on November 23, 2010, with the result that the ALJ's decision became the final decision of Commissioner about which plaintiff complains in this court.

Consistent with the normal practices of this court, plaintiff's complaint was referred to the magistrate judge for proposed findings and conclusions and a recommendation, and the parties were ordered to treat the application as an appeal by plaintiff from Commissioner's ruling adverse to him. On February 8, 2012, 2012 WL 957690, the magistrate judge filed his proposed findings and conclusions and his recommendation (“FC & R”) that the Commissioner's decision be reversed, and that the matter be remanded for further proceedings.

II.Positions Taken by the Parties, And the FC & R

A. Plaintiff's Opening Brief

In his opening brief filed with the magistrate judge plaintiff started by defining as follows the issues he presented:

1. Did the Defendant Commissioner apply the proper legal standard to evaluate the Plaintiff's severe impairments?

...

2. Did the Defendant Commissioner consider all of the Plaintiff's vocationally significant impairments?

...

3. Did the Defendant Commissioner give due consideration to expert medical opinion evidence?

Pl.'s Br. at 1.¹

While acknowledging that the ALJ found at step two of his five-step analysis ² that plaintiff had a severe impairment and proceeded to rule at a subsequent step of the analysis that denial of benefits was appropriate, plaintiff nevertheless maintained in support of his first issue that there should be a reversal and remand because the ALJ's decision did not affirmatively disclose that the ALJ properly applied the standard for determining severity adopted by the Fifth Circuit in Stone v. Heckler, 752 F.2d 1099 (5th Cir.1985).³ In support of his second issue, plaintiff argued that the ALJ failed to consider in his overall analysis (a) a congestive heart failure condition claimed by plaintiff, and claimed symptoms resulting from the congestive heart failure, i.e., edema that caused his feet to swell, or (b) plaintiff's obesity. In support of his third issue, plaintiff argued that the ALJ failed to consider opinions of state agency physicians who, after having a review of the evidence, “determined that the Plaintiff was limited to only occasional climbing of ramps and stairs and occasional balancing, stooping, kneeling, crouching and crawling” and that he was “further limited to no climbing of ladders, ropes, or scaffolds.” Pl.'s Br. at 12.

B. Brief Filed by Commissioner in Response to Plaintiff's Brief

Commissioner responded to the first issue defined by plaintiff by pointing out that if there was any error on the part of the ALJ in the standard applied in determining severity of plaintiff's conditions, the error was harmless inasmuch as the ALJ found at step two that plaintiff had a severe impairment of uncontrolled hypertension, and then proceeded in his analysis through the remaining steps three, four, and five. Commissioner maintained as to plaintiff's second issue that plaintiff has not shown that his impairments, including obesity, produced functional limitations that exceeded the limitations the ALJ set forth in his RFC determination. In response to plaintiff's third issue, Commissionernoted that the opinions of the state agency reviewing physicians, Drs. Dolan and Spoor, supported the ALJ's disability determination.

C. The FC & R

The magistrate judge recommended that Commissioner's decision be reversed, and that the matter be remanded for further administrative proceedings consistent with the magistrate judge's proposed findings of fact and conclusions of law. The recommendation of the magistrate judge was based in its entirety on the magistrate judge's conclusion that the decision of the ALJ failed to disclose that the ALJ applied Stone's severity standard at step two of the sequential evaluation process. Having been persuaded by rulings or recommendations previously made by other magistrate judges in the Northern District of Texas (adopted by the referring district judge) that the mere failure of an administrative law judge to apply the Stone standard at step two was fatal to the Commissioner's decision, the magistrate judge recommended reversal and remand without considering whether the failure of the ALJ to comply with the Stone standard was harmless error.

The magistrate judge noted in the FC & R that the undersigned, who referred this case to the magistrate judge for proposed findings and conclusions and a recommendation, has repeatedly ruled under circumstances like those existing in this action that a Stone error of the kind found by the magistrate judge does not, standing alone, require reversal and remand. The footnote explanation was that, notwithstanding the referring district judge's decisions to the contrary, the magistrate judge “feels compelled to continue to recommend remand on this issue based on current Fifth Circuit precedent and the rulings of the majority of judges in this district as set forth herein.” ⁴ FC & R at 11 n. 5 (a footnote in which the magistrate judge cited to four of the recent decisions of the undersigned that have rejected recommendations of reversal and remand made by the magistrate judge under the same circumstances that exist in the instant action).

As has become the magistrate judge's practice, the magistrate judge declined to consider plaintiff's second and third issues because of his conclusion that the resolution of plaintiff's Stone issue required a reversal and remand, leaving the unresolved issues to be dealt with by the undersigned without the benefit of proposed findings or conclusions or a recommendation by the magistrate judge as to those issues.

D. Response of Commissioner to the FC & R, and Plaintiff's Reply

Commissioner in his response to the FC & R took issue with the magistrate judge's recommendation that Commissioner's denial of benefits be reversed and that the matter be remanded to Commissioner for further proceedings. The crux of Commissioner's response is found in the following statement:

The Fifth Circuit has recognized that Stone is at issue in cases where the ALJ denied benefits at step two of the sequential evaluation process; if the ALJ's analysis proceeded past step two, a claimant's argument that the ALJ applied the wrong severity standard is moot. Here, the ALJ found in Jones's favor at step two and proceeded through the remainder of the five-step analysis (Tr. 9–14). This case did not turn on whether Jones's impairment was severe, but on whether he could perform other work that exists in the national economy, an inquiry that the Stone test does not affect. Thus, Jones's argument is irrelevant to disposition of this case.

Mar. 2, 2012 Resp. at 2 (citations omitted). As a backup argument, Commissioner urged that, in any event, the ALJ's failure to cite to Stone is harmless for the added reason plaintiff has identified no additional impairment that the ALJ should have found to be severe.

In support of his harmless-error arguments, Commissioner cited Audler v. Astrue, 501 F.3d 446, 448 (5th Cir.2007), and Morris v. Bowen, 864 F.2d 333, 335 (5th Cir.1988) (per curiam). In Morris, the Fifth Circuit repeated its statements in Mays v. Bowen, 837 F.2d 1362, 1364 (5th Cir.1988) (per curiam), that “[p]rocedural perfection in administrative proceedings is not required” and that “[t]his court will not vacate a judgment unless the substantial rights of a party have been affected.” 864 F.2d at 335. The same harmless-error language was used in Audler, 501 F.3d at 448.

As a further alternative position, Commissioner argued in his response that the magistrate judge's application of Stone was overly strict, and was inconsistent with controlling case law.

On March 8, 2012, plaintiff replied to Commissioner's response, arguing that the magistrate judge was correct in concluding a reversal and remand would be proper by reason of the failure of the ALJ to make proper reference to Stone at his step two evaluation of severity. Plaintiff cited as authority some of the earlier Northern District magistrate judge recommendations to that effect.

III.Analysis

A. Basic Principles

A guiding principle is that judicial review of a decision of Commissioner of nondisability is limited to two inquiries: (1) whether Commissioner's decision is supported by substantial evidence on the record as a whole and (2) whether Commissioner applied the proper legal standards. See Anthony v. Sullivan, 954 F.2d...