G.R. SMITH, Magistrate Judge.
Plaintiff Robert Hamlin, a 54-year-old illiterate ex-painter, seeks social security disability benefits due to, inter alia, mental retardation, shoulder, neck, and back pain, and acid reflux. Jr. 31, 209, 372.) His claim was denied by an Administrative Law Judge ("ALJ"), and the Appeals Council denied his request for review. (Tr. 12-21 (ALJ's decision); tr. 1-3 (Appeals Council action).) Hamlin then filed a complaint for judicial review in this Court, contending that the ALJ erred in denying benefits. (Doc. 1.) The Court agrees that the ALJ erred and concludes that this case must be remanded.
Affirmance of the Commissioner's decision is mandatory if her conclusions are supported by substantial evidence and based upon an application of correct legal standards. 42 U.S.C. § 405(g); Wilson v. Barnhart, 284 F.3d 1219, 1221 (11th Cir. 2002); Lewis v. Callahan, 125 F.3d 1436, 1439 (11th Cir. 1997). "Substantial evidence is something more than a mere scintilla, but less than a preponderance." Dyer v. Barnhart, 395 F.3d 1206, 1210 (11th Cir. 2005) (quotation marks and citations omitted). It "is such relevant evidence as a reasonable person would accept as adequate to support a conclusion." Crawford v. Comm'r of Soc. Sec., 363 F.3d 1155, 1158 (11th Cir. 2004) (quotation marks and citations omitted). If substantial evidence supports the decision, the Court will affirm "[e]ven if the evidence preponderates against the Commissioner's findings." Id. at 1158-1159. This Court cannot substitute its judgment for that of the Commissioner. Barnes v. Sullivan, 932 F.2d 1356, 1357-1358 (11th Cir. 1991).
The burden of proving disability lies with the claimant. 20 C.F.R. § 404.1512; Moore v. Barnhart, 405 F.3d 1208, 1211 (11th Cir. 2005). To determine whether he has met the burden, the Court looks to the five-step evaluation process set forth in the Social Security Regulations. 20 C.F.R. § 416.920; Dixon v. Astrue, 312 F. App'x 227, 227-28 (11th Cir. 2009); Jones v. Apfel, 190 F.3d 1224, 1228 (11th Cir. 1999). At step one, the claimant must prove that he has not engaged in substantial gainful activity. Jones, 190 F.3d at 1228. At step two, he must demonstrate a severe impairment or combination of impairments. Id. Then, at step three, if the claimant's impairment meets or equals a listed impairment, he is automatically found disabled. Id. If not, he must advance to step four, which requires him to prove an inability to perform past relevant work. Id. At that step the ALJ assesses "the claimant's residual functional capacity (`RFC')" and "ability to return to his past relevant work." Phillips v. Barnhart, 357 F.3d 1232, 1238 (11th Cir. 2004). "[T]he regulations define RFC as that which an individual is still able to do despite the limitations caused by his or her impairments." Id. (citing 20 C.F.R. § 404.1545(a)); Moore v. Comm'r of Soc. Sec., 478 F. App'x 623, 624 (11th Cir. 2012). If he cannot perform past relevant work, stage five shifts the burden to the Commissioner to show that "there is other work available in significant numbers in the national economy that the claimant is able to perform." Moore, 478 F. App'x at 624.
Hamlin contends that the ALJ erred in his step-two determination of plaintiff's severe impairments. (Doc. 10 at 12.) By discounting Hamlin's back problems at that step, the ALJ was able to avoid granting disability benefits at step three under Listing 12.05C. See 20 CFR Pt. 404, Subpart P, App'x 1 (listings). Listing 12.05C requires a claimant to show a "valid verbal, performance, or full scale IQ of 60 through 70 and a physical or other mental impairment imposing an additional and significant work-related limitation of function." Id. To meet Listing 12.05C, a claimant must show at least mild retardation plus an additional step-two "severe" impairment.
The ALJ found that plaintiffs only severe impairment at step two was "mild mental retardation." (Tr. 14.) He discounted plaintiffs back problems in concluding that Hamlin failed to meet the twelve-month duration requirement, 42 U.S.C. § 423(d)(1)(A), and failed to show sufficient step-two "severity":
(Tr. 14.)
After a searching review of the record,
His severity determination is similarly flawed. While the regulations use terms like "severe" and "significant," the step-two severity threshold is not a high one. Step two is "designed to screen out only clearly groundless claims," Jones v. Astrue, 2011 WL 1587731 at *7 (S.D. Ga. March 29, 2011), or in the words of the Eleventh Circuit, to filter out "those applicants whose medical problems could `not possibly' prevent them from working." Stratton v. Bowen, 827 F.2d 1447, 1452 n. 9 (11th Cir. 1987) (quoting Baeder v. Heckler, 768 F.2d 547, 551 (3d Cir. 1985)); see Bowen v. Yuckert, 482 U.S. 137, 153 (1987) ("The severity regulation increases the efficiency and reliability of the evaluation process by identifying at an early stage those claimants whose medical impairments are so slight that it is unlikely they would be found to be disabled even if their age, education, and experience were taken into account."); 70C Am. Jur. 2d Social Security and Medicare § 2006 (2011) (all that must be shown is a de minimis impairment or combination of impairments "which are of medical severity sufficient to significantly limit physical or mental ability to do basic work activities"). The step-two analysis is thus described as the "slight abnormality" test, Bridges v. Bowen, 815 F.2d 622, 625 (11th Cir. 1987) (per curium), which "allows only claims based on the most trivial impairments to be rejected." McDaniel v. Bowen, 800 F.2d 1026, 1031 (11th Cir. 1986) (cited by Cuthbert v. Astrue, 303 F. App'x 697, 699 (11th Cir. 2008)). The claimant's burden is thus "mild." McDaniel, 800 F.2d at 4031.
In finding Hamlin's back pain as non-severe, the ALJ attributed "great weight" to the non-examining state Disability Determination Services consultants, who according to the ALJ found "insufficient evidence of physical impairments since the protected filing date." (Tr. 14.) That statement is quite misleading. The consultants were focused on determining whether plaintiffs impairments were disabling, not whether they were "severe" for step-two purposes. (Tr. 326-27 ("There is insufficient [medical evidence of record] in file to make a disability determination for claimant's allegations." (emphasis added)); tr. 350.) It is simply not the case that there was a lack of "evidence of physical impairments since the filing date." In fact, there was ample evidence of a physical impairment. MRI tests established that plaintiff has degenerative and congenital spinal disorders. The only consultant to have made any notes on the impairment explicitly stated that plaintiff "has some credibility with his allegations of pain in neck, shoulders and joints." Jr. 327.) What was lacking, according to the consultant, was any finding showing the degree of functional limitation caused by the cervical congenital fusion, right eccentric cervical spondylosis, cervical stenosis, and lumbar bilateral facet disease. (Id.) Certainly, there is no basis in the record for finding that Hamlin's back impairments were "slight" or "trivial" in nature. Bridges, 815 F.2d at 625; McDaniel, 800 F.2d at 1031.
The ALJ also noted that Hamlin entered the hearing using a cane and shifted about on his chair. Jr. 14.) He stated that "neither of these behaviors was considered to be an impairment." (Id.) He did not explore the obvious question of whether they were related to or caused by plaintiff's back problems or whether the behavior was credible. Never once did he raise the issue at the hearing. Instead, he catalogued it and brushed it aside as unimportant. The ALJ also rather incongruously found that plaintiff could not return to his previous work as a painter, despite having no impairment other than mild mental retardation — the same limitation he had had while a painter. If he could work as a painter in the past, had no new "severe" impairments, and was otherwise found to have "no exertional limitations," then one must be forced to wonder why the ALJ found that Hamlin could not return to his past job. (Tr. 43.)
In a case much like this one, the Ninth Circuit reversed a district judge's affirmance of an ALJ's opinion that found no step-two severe impairment where a claimant reported pain in his ankle, walked with a limp, and an x-ray showed "minor `arthritic changes." Gardner v. Astrue, 257 F. App'x 28, 29 (9th Cir. 2007) (noting that the "step-two inquiry is a de minimis screening device to dispose of groundless claims."). Given the low bar for step-two severity and the ALJ's flawed analysis, the Court simply cannot say that his determination was supported by substantial evidence of record. Since the step-two inquiry may result in an award of benefits at step-three, the matter is of sufficient importance that further development is warranted. Accordingly, this case must be remanded to the Commissioner.
Based on the foregoing, the Court should
65 Fed. Reg. 50746, 50772-73 (Aug. 21, 2000). Accordingly, the second prong in Listing 12.05(C) now requires evidence of an additional severe impairment.
