Jeansonne v. Saul ( 2021 )

Case: 20-30570 Document: 00515818304 Page: 1 Date Filed: 04/12/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
April 12, 2021
No. 20-30570 Lyle W. Cayce
Summary Calendar Clerk
Cathy L. Jeansonne,
Plaintiff—Appellant,
versus
Andrew M. Saul, Commissioner of Social Security,
Defendant—Appellee.
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 1:18-CV-1121
Before Davis, Stewart, and Dennis, Circuit Judges.
Per Curiam:*
Claimant Cathy Jeansonne appeals the Social Security
Administration’s (“SSA”) denial of her application for disability benefits.
For the reasons that follow, we AFFIRM.
*
Pursuant to 5th Circuit Rule 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5th Circuit Rule 47.5.4.
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No. 20-30570
I. Background
In 2014 Jeansonne underwent a bilateral mastectomy to treat Stage II
breast cancer. After her surgery and treatment, Jeansonne’s oncologist
prescribed several drugs to prevent the cancer from recurring and to manage
pain. Arimidex, the drug that greatly reduces the risk of the cancer returning,
causes Jeansonne pain in her hips, knees, ankles, right shoulder, and right
arm which she claims prevents her from working. Jeansonne also has some
level of anxiety and depression related to her post-treatment pain and
resulting work limitations.
Jeansonne is over 55 years old and was last employed in February of
2015 when she worked as a warranty clerk for Progressive Tractor and
Implement. As a warranty clerk, she filed warranties and shipped parts which
required Jeansonne to work on her feet and lift parts up to 50 pounds. Before
her job as a warranty clerk, Jeansonne worked as an office clerk and cashier
clerk which involved sitting half of the time and did not involve lifting.
On October 8, 2015, Jeansonne filed an application for disability
insurance benefits with the SSA. Her claim was initially denied, but
Jeansonne was granted a hearing before an Administrative Law Judge
(“ALJ”) which took place on May 3, 2017. The ALJ issued written findings
on July 21, 2017 and concluded that Jeansonne was not disabled under the
Social Security Act. In making this determination, the ALJ found that pain
and other physical impairments from Jeansonne’s mastectomy were
“severe” but did not find that Jeansonne’s anxiety and depression were
severe mental impairments. After the SSA Appeals Council declined to
review the ALJ’s decision, the decision denying benefits became the final
decision of the Commissioner of Social Security.
Jeansonne appealed the Commissioner’s denial of benefits to the
district court arguing that the ALJ erred in finding her mental impairments
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No. 20-30570
non-severe under step two of the five-step sequential evaluation an ALJ must
apply for disability claimants. Jeansonne argued that the alleged step-two
error created a ripple effect that tainted the other steps in the ALJ’s analysis.
In particular, Jeansonne argued that the ALJ should have considered her
mental impairments at the step five determination. The district court found
that the ALJ erred at step two in finding that Jeansonne’s mental
impairments were not severe, but the district court concluded that the error
was harmless because substantial evidence nonetheless supported the ALJ’s
finding of no disability. Thus, the district court affirmed the final decision of
the Commissioner to deny benefits to Jeansonne. Subsequently, Jeansonne
filed a motion to alter or amend judgment under Federal Rule of Civil
Procedure 59(e). The district court denied that motion, and this appeal
followed.
II. Discussion
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.” 1 We do not “reweigh the evidence in the record,
try the issues de novo, or substitute our judgment for the Commissioner’s,
even if the evidence weighs against the Commissioner’s decision.” 2
Substantial evidence is more than a mere scintilla but less than a
preponderance, and the Commissioner’s decision is supported by substantial
1
Salmond v. Berryhill, 892 F.3d 812, 816–17 (5th Cir. 2018) (quoting Whitehead v.
Colvin, 820 F.3d 776, 779 (5th Cir. 2000)).
2
Id. at 817 (quoting Newton v. Apfel, 239 F.3d 448, 452 (5th Cir. 2001)).
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evidence if credible evidentiary choices or medical findings support the
decision. 3
Under the Social Security Act, those who have contributed to the
social security program and have a physical or mental disability qualify for
disability insurance benefits. 4 The Commissioner uses a sequential, five-step
approach to determine whether a claimant is disabled:
(1) whether the claimant is presently performing substantial
gainful activity; (2) whether the claimant has a severe
impairment; (3) whether the impairment meets or equals a
listed impairment; (4) whether the impairment prevents the
claimant from doing past relevant work; and (5) whether the
impairment prevents the claimant from performing any other
substantial gainful activity. 5
“The claimant bears the burden of proof on the first four steps, but the
Commissioner bears the burden on the fifth step.” 6 In this case, only step
two and step five are at issue.
Regarding step two, Jeansonne argues that the ALJ erred in finding
that her anxiety and depression were non-severe mental impairments. Our
precedent defines “severe impairment” for purposes of step two in the
negative: “[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
3
Id.4
Salmond v. Berryhill, 892 F.3d 812, 817 (5th Cir. 2018) (citing 42 U.S.C. § 423).
5
Id.6
Myers v. Apfel, 238 F.3d 617, 619 (5th Cir. 2001).
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of age, education or work experience.” 7 In other words, “an impairment is
severe if it is anything more than a ‘slight abnormality’ that ‘would not be
expected to interfere’ with a claimant’s ability to work.” 8 We have held that
step two requires only a de minimis showing by a claimant. 9 Moreover, we
“assume that the ALJ and the Appeals Council have applied an incorrect
standard to the severity requirement unless the correct standard is set forth
by reference to [our caselaw] or another [authority] of the same effect.” 10
In her written findings, the ALJ stated, “A medically determinable
impairment is not severe if it is only ‘a slight abnormality which has such a
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.’” The ALJ cited Social Security Ruling (“SSR”) 85-28 for this
standard. We recently held that SSR 85-28 comports with our case law and
is an acceptable reference for the proper standard for step two. 11 Thus, we do
not assume that the ALJ applied an incorrect standard for the step two
severity requirement. 12
The ALJ made a number of findings to conclude that Jeansonne’s
anxiety and depression did not constitute a severe impairment. The ALJ
considered four areas of mental functioning: (1) understanding,
remembering, or applying information; (2) interaction with others; (3)
7
Stone v. Heckler, 752 F.2d 1099, 1101 (5th Cir. 1985); see also Loza v. Apfel, 219
F.3d 378, 391 (5th Cir. 2000); Salmond, 892 F.3d at 817.
8
Salmond, 892 F.3d at 817.
9
Id.
10
Loza, 219 F.3d at 391.
11
Keel v. Saul, 986 F.3d 551, 556 (5th Cir. 2021).
12
See Loza, 219 F.3d at 391.
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concentrating, persisting, or maintaining pace; and (4) adapting or managing
oneself. For each area of mental functioning, the ALJ concluded that any
mental limitation Jeansonne had was mild based on evaluations from
physicians and Jeansonne’s testimony that showed she reads, watches
television, grocery shops, goes to the post office, gets along with others,
relates well with authority figures, pays bills, handles bank accounts, does
laundry, does dishes, and prepares meals.
Substantial evidence in the record supports the ALJ’s conclusion that
Jeansonne’s anxiety and depression were slight abnormalities that would not
be expected to interfere with her ability to work. First, Jeansonne
characterized her mental impairment as “a little depression” related to
having to stay home rather than being active. Second, the two primary
physicians who evaluated Jeansonne’s mental state, Dr. Adams and Dr.
Goodrich, agreed that any mental impairment was mild. Dr. Adams noted,
“There are no significant limitations in activities of daily living as a function
of mental or psychiatric reasons.” He further indicated, “The claimant
appears able to understand, remember, and follow simpler and familiar
detailed instructions. She is capable of understanding more complex
instructions but may have at least moderate difficulty in this area.”
Dr. Goodrich’s findings show that Jeansonne is “not significantly
limited” in her abilities to carry out short and simple instructions, to maintain
attention and concentration for extended periods, to perform activities
within a schedule, to be punctual, to sustain ordinary routine without
supervision, to work in coordination with and in proximity to others, to make
simple work-related decisions, to complete a normal workday and workweek
without interruptions from psychologically based symptoms, to accept
instructions and respond appropriately to criticism from supervisors, and to
perform several other work related abilities. Moderate limitations were only
noted for the abilities to understand and remember detailed instructions and
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to ask simple questions or request assistance. Overall, Dr. Goodrich found
that Jeansonne can perform simple and some complex tasks, can relate to
others on a superficial work basis, and can adapt to a work situation.
This evidence indicates that Jeansonne’s anxiety and depression are
merely a “slight abnormality which has such a minimal effect on [her] that it
would not be expected to interfere with [her] ability to work.” 13 Thus,
Jeansonne’s anxiety and depression are non-severe. The evidence in this case
falls very short of evidence in other cases where we have found error in step
two related to mental limitations.
In Salmond v. Berryhill, we found error in the ALJ’s step-two
determination when “[a]ll of the medical professionals who evaluated
Salmond agreed: Salmond’s mental impairments would be expected to
interfere with Salmond’s ability to work.” 14 There, physicians found that the
claimant had “major limitations” and stated that the claimant’s mental
impairments would “severely interfere with all gainful employment” and
that Salmond’s “mental health condition will prevent all employments.” 15
Likewise, in Loza v. Apfel, we found error in the ALJ’s step two
determination when a claimant’s treating physician found that the claimant
“could not return to full employment” because of Post-Traumatic Stress
Disorder (“PTSD”). 16 In contrast to these cases, the physicians in
13
See Stone, 752 F.2d at 1101.
14
Salmond, 892 F.3d at 817.
15
Id. at 818
16
Loza, 219 F.3d at 397.
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Jeansonne’s case all generally agree that most limitations are mild and that
Jeansonne has no significant limitations to working. 17
Because substantial evidence shows that Jeansonne’s mild mental
limitations do not significantly affect her ability to work, we also find no error
at step five—whether the impairment prevents the claimant from performing
any other substantial gainful activity. Generally, at step five, an ALJ considers
the claimant’s residual functional capacity (“RFC”) as part of the
determination of whether the claimant is unable to perform other substantial
gainful activity. 18 Although not binding on this Court, we have frequently
looked to SSA rulings for guidance on what should be considered for a
claimant’s RFC. 19 SSR 96-8p instructs that “all relevant evidence in the case
record” should be considered for RFC, and “[t]he adjudicator must consider
limitations and restrictions imposed by all of an individual’s impairments,
even those that are not ‘severe.’” 20 Nevertheless, “[t]he RFC assessment is
a function-by-function assessment based upon all of the relevant evidence of
an individual’s ability to do work-related activities. 21
As previously stated, the evidence supports a finding that Jeansonne’s
mild mental limitations do not significantly affect her ability to work.
17
See, e.g. Anthony v. Sullivan, 954 F.2d 289, 295 (5th Cir. 1992) (concluding no
error and no “severe impairment” at step two when a physician found that claimant with
a muscular problem could perform motor skills without assistance and claimant’s
testimony showed she could care for personal needs, cook meals, drive a vehicle, and attend
church and related activities).
18
See Myers v. Apfel, 238 F.3d 617, 620 (5th Cir. 2001).
19
See id.20
1996 WL 374184 at *5.
21
Id. at *3 (emphasis added).
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Therefore, we determine that the ALJ did not err in declining to consider
Jeansonne’s mental impairments at step five.
III. Conclusion
Based on the foregoing, the Commissioner’s decision to deny
Jeansonne’s application for disability benefits is AFFIRMED.
9