United States Court of Appeals

for the Fifth Circuit

No. 20-10728

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 

arguesthat the Administrative Law Judge (“ALJ”) failed to apply the correct 

severity standard regarding her impairments. For the following reasons, we 

AFFIRM. 

United States Court of Appeals

Fifth Circuit

FILED

January 22, 2021

Lyle W. Cayce

Clerk

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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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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 determinationwas 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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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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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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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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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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