1

In Stone, the Fifth Circuit noted that it had previously

construed the Social Security Administration’s regulation regarding

step two’s requirement of a severe impairment “as setting the

following standard in determining whether a claimant’s impairment

is severe: ‘[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 of age, education, or

work experience.’” 752 F.2d at 1101 (quoting Estran v. Heckler, 745

F.2d 340, 341 (5th Cir. 1984)). This definition diverges from the

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IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

FORT WORTH DIVISION

ADGRIAN B. MCKELLAR §

§

VS. § ACTION NO. 4:04-CV-189-Y

§

JO ANNE B. BARNHART, §

Commissioner of Social Security §

ORDER PARTIALLY ADOPTING MAGISTRATE JUDGE’S DECISION

Pending before the Court are Plaintiff’s Objections to the

Findings, Conclusions, and Recommendation of the United States

Magistrate Judge, which were filed in this cause on June 1, 2005.

As of the date of this order, there has been no response to the

objections. After review of the objections, the magistrate judge’s

decision, the record in this cause, and the applicable law, the Court

concludes that the magistrate judge’s decision should be partially

adopted to the extent he determined that the administrative law judge

employed an incorrect legal standard in concluding, at the second

step of the sequential evaluation, that Plaintiff’s impaired

intellectual functioning did not constitute a severe impairment.

As a result, and as required by the Fifth Circuit’s decision in Stone

v. Heckler, 752 F.2d 1099 (5th Cir. 1985),1 this Court concludes that

 

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Secretary’s regulation, which provides that an impairment is only

severe if it “significantly limits [the claimant’s] physical or

mental ability to do basic work activities.” Id. at 1100, n.3

(quoting 20 C.F.R. § 404.1520(c) (1984)); see also Loza v. Apfel,

219 F.3d 378, 391 n.18 (5th Cir. 2000) (noting that the Secretary’s

regulation has not significantly changed since the decision in

Stone). Due to the Secretary’s apparent recalcitrance in applying

the standard as determined by the Fifth Circuit, the court

concluded in Stone as follows: 

In view of both the Secretary’s position in this case and

our recent experience with cases where the disposition

has been on the basis of nonseverity, we will in the

future assume that the ALJ and Appeals Council have

applied an incorrect standard to the severity requirement

unless the correct standard is set forth by reference to

this opinion or another of the same effect, or by an

express statement that the construction we give to [the

regulation] is used. Unless the correct standard is

used, the claim must be remanded to the Secretary for

reconsideration.

Id. at 1106 (emphasis added); see also Loza, 219 F.3d at 393

(reversing and remanding where “the ALJ and Appeals Council applied

an incorrect standard to the severity requirement”).

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this matter must be remanded to the Secretary for “reconsideration

of the facts in the light of the proper standard, after considering

any further evidence as may be offered by either the claimant or the

[Commissioner].” Id. at 1106.

It is, therefore, ORDERED that Plaintiff’s objections [document

number 20] are hereby SUSTAINED. The decision of the magistrate judge

is hereby PARTIALLY ADOPTED as reflected above. This matter is

REVERSED AND REMANDED to the Commissioner for further proceedings

consistent with this decision.

SIGNED September 6, 2005.

 

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