1

In a Disability Supplemental Interview Outline, plaintiff avers he “can’t hardly read.” (Tr. 196).

SS\R&R\HEGDAHL-C.REV-STEP2:2

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

AMARILLO DIVISION

CHARLES HEGDAHL, §

§

Plaintiff, §

§

v. § 2:03-CV-0410

§

MICHAEL J. ASTRUE, §

Commissioner of Social Security, §

§

Defendant. §

REPORT AND RECOMMENDATION

TO AFFIRM THE DECISION OF THE COMMISSIONER

Plaintiff CHARLES HEGDAHL brings this cause of action pursuant to 42 U.S.C. §

405(g), seeking review of a final decision of defendant MICHAEL J. ASTRUE, Commissioner

of Social Security (Commissioner), denying plaintiff’s application for supplemental security

income benefits (SSI). For the reasons hereinafter expressed, the undersigned United States

Magistrate Judge recommends the Commissioner’s decision finding plaintiff not disabled and

not entitled to benefits be AFFIRMED.

I.

PROCEEDINGS

On March 29, 2000, plaintiff filed a Disability Report with the SSA. (Tr. 169-78). In his

report, plaintiff averred he could speak English, could read English,1

 and could write more than

 

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2

Plaintiff’s education is identified as a 10th grade education in other portions of the record, (Tr. 12, 382), and plaintiff

testified at the hearing that he attended school “[u]ntil about the tenth grade.” (Tr. 46).

3

Plaintiff filed a previous application for SSI on July 16, 1999 alleging an onset date of January 15, 1999. (Tr. 114-

16). Such application was denied September 2, 1999. (Tr. 89). Plaintiff sought untimely reconsideration of this denial on

September 22, 2000 because “NH received no notice.” (Tr. 95). Plaintiff alleged his back pain had worsened, he had no feeling

in his left leg, and he may also have a “hole in heart.” (Tr. 187). Plaintiff alleged he could not lift heavy items and that a

physician had restricted him from lifting more than 5 pounds. Plaintiff also alleged he could not bend or stoop.

SS\R&R\HEGDAHL-C.REV-STEP2:2 2

his name in English. (Tr. 169). As illnesses, injuries or conditions limiting his ability to work,

plaintiff alleged “[b]ad back, gets dizzy, light headed, gets black out spells when sneezes.” (Tr.

170). Plaintiff alleged his conditions limited his ability to work by stating, “bad heart, has blood

pressure goes up.” Plaintiff alleged his condition first bothered him on April 20, 1999 and that

he became unable to work and stopped working on that same date after he was hurt on the job. 

Plaintiff indicated he had not been seen by a doctor/hospital/clinic or anyone else for emotional

or mental problems that limited his ability to work. (Tr. 172). Plaintiff indicated he completed

the 11th grade2 and did not attend special education classes. (Tr. 176). Plaintiff identified past

work as a tree trimmer, wood chipper and a cottonseed hull bagger, working 40 hours a week,

for 5 days a week. (Tr. 171, 179-81). Plaintiff included the remark:

I need to get on disability because I will help my wife with our bills, so I can get

back on our feet. If I do work I am afraid I will be in a wheel chair the rest of my

life. I have too many bones broken from motorcycle wrecks and car wrecks. I

have pins in my hips and in left shoulder blade.

On May 2, 2000, plaintiff filed an application for SSI alleging he became disabled on January

15, 1999 due to “back problems, heart murmur.”3 (Tr. 118-30). At the time he filed his

application, plaintiff was 45-years-old. 

On April 10, 2001, the SSA, identifying plaintiff’s primary diagnosis as “disorders of

back, discogenic & degenerative” and secondary diagnosis as “osteoarthritis and allied

disorders” denied plaintiff benefits determining plaintiff’s condition was not severe enough to

 

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4

In denying SSI benefits, the SSA explained, “We have determined that you are not entitled to Supplemental Security

Income payments based on the claim you filed. . . . We have determined that your condition is not severe enough to keep you

from working. . . . You said that you are unable to work because of bad back, dizziness, light headiness, black outs, heart

problems and HBP [high blood pressure]. The medical evidence shows the following: Although you have pain and discomfort in

your back as well as other joints, you can move them well enough to do some types of work. While you occasionally have some

chest pain, there is no evidence of a severe problem with your heart. Your blood pressure has not caused severe problems with

your general health. Medical evidence does not show any other impairments which keep you from working. We realize that

your condition keeps you from doing any of your past work, but it does not keep you from doing other work which is less

demanding. Based on your age, education and past work experience, you can do other work.” (Tr. 97-99).

5

In again denying SSI benefits, the SSA explained, “We find that the previous determination denying your claim was

proper under the law. . . . You said that you are unable to work because of back pain, dizziness, lightheadedness, blackouts,

heart problems and High Blood Pressure. The medical evidence shows the following: Although you have occasional blackouts

and some dizziness, these do not happen frequently enough to prevent you from doing some types of work. You should avoid

dangerous moving machinery and unprotected heights. Although you are experiencing pain in your back, you are able to sit,

stand, bend, and walk well enough to do some types of work. While you occasionally have some chest pain, there is no evidence

of a severe problem with your heart. Medical evidence does not show any other impairments which keep you from working. 

Your condition prevents you from doing your past work, but it does not prevent you from doing other work which is less

demanding.” (Tr. 101-03).

SS\R&R\HEGDAHL-C.REV-STEP2:2 3

keep him from working.4 (Tr. 90, 97-99). On April 30, 2001, plaintiff, through a non-attorney

representative, requested the SSA reconsider its initial determination, explaining he did not agree

with the determination because he could not work “due to multiple impairments.” (Tr. 100). In

describing any changes in his condition, plaintiff averred he was “having more pain in lower

back & both legs, hands & legs go numb, falling more often.” (Tr. 199). In describing his

physical limitations, plaintiff stated he was “more limited in sitting, standing & walking” and

had to rest more often. (Tr. 199, 201). Plaintiff acknowledged no physician had placed him on

any restrictions since he had filed his claim. On May 18, 2001, the SSA, identifying plaintiff’s

primary diagnosis as “disorders of back, discogenic & degenerative” and his secondary diagnosis

as “osteoarthrosis and allied disorders,” denied plaintiff benefits upon reconsideration.5

 (Tr. 91,

101-03).

On June 14, 2001, plaintiff requested a hearing before an Administrative Law Judge

(“ALJ”), explaining he disagreed with the determination on reconsideration because he could not

work “due to multiple impairments.” (Tr. 104). Plaintiff explained he could not sleep at night, 

 

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6

At the hearing, plaintiff also alleged depression as a “problem.” (Tr. 34, 41-42, 48).

SS\R&R\HEGDAHL-C.REV-STEP2:2 4

that his legs were “giving out” on him, and that when he stood for too long his hands would go

numb. (Tr. 205). As functional limitations, plaintiff averred he was unable to walk long

distances, stand for long periods of time, or lift more than 10 lbs. (Tr. 208). 

On September 13, 2002, the ALJ conducted an administrative hearing in this case.6 (Tr.

40-88). At the hearing, as relevant to grounds raised in this proceeding, plaintiff testified he

attended school “[u]ntil about tenth grade” and did not obtain his GED. (Tr. 46). He testified

that in his varied history of heavy labor, he did not supervise any other employees, and was

assisted by his bosses in filling out time sheets. (Tr. 51). Plaintiff testified he had previously

had a driver’s license, but currently did not. (Tr. 54-55). He also testified he had not been

hunting or fishing since March 2000, and had not been on any trips since that time except to

attend the hearing. (Tr. 56-59). Plaintiff testified that once a week, he would spend about two

hours putting car models together. (Tr. 60-61). Plaintiff also testified he has problems with

memory, and “problems understanding questions when someone’s talking to [him] trying to give

answers” such as at the hearing. (Tr. 76). Plaintiff testified he has headaches about once a week

and occasional black out spells and dizziness. (Tr. 78-79). Plaintiff testified he can read, but

“[n]ot very good,” that he never does any reading and could not read the newspaper, and if he

has to fill out forms, someone else assists him. (Tr. 81). Plaintiff testified he cannot write down

a phone message, but could write down a phone number and sign his name. Plaintiff explained

he “mostly faked it through school” and attended regular classes. (Tr. 82). 

At the hearing, as relevant to the issues of this case, the ALJ posed the following

 

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7

The VE reduced the number of janitorial jobs available by half when limiting the job so as to avoid hazardous

machinery such as a floor buffer. 

SS\R&R\HEGDAHL-C.REV-STEP2:2 5

hypothetical to the VE:

[A]ssume a hypothetical person of the same age, education, sex, background

training and experience of this claimant. . . . [A]ssume that such a hypothetical

person can lift 50 pounds maximum, 25 pounds frequently, occasionally climb

and has need to avoid hazards, unprotected heights, dangerous machinery and so

forth. . . . [W]ith those limitations and no others, would you expect this

hypothetical person to be able to perform the past relevant work of this claimant?

The VE replied, “No.” (Tr. 83). The VE testified such a person could do other jobs with these

limitations and could perform the “full range of unskilled, light, sedentary work.” The VE

testified such a person could perform sedentary, unskilled, SVP 2 work as a clerical mailer (or

addresser or inserter), and that reading and writing would not be a factor. He also testified such

a person could perform sedentary, unskilled, SVP 2 work as a production assembly worker, and

light, unskilled, SVP 2 work as a cafeteria attendant and ticket taker. The VE also testified such

a person could perform medium, unskilled, SVP 2 work as a janitor7

 and a dishwasher. (Tr. 84-

85). The VE further testified that if “all of the testimony exactly as . . . given” were accepted

and used as a limitation, that the occupational base would be eliminated. (Tr. 86).

At the conclusion of the hearing, the ALJ granted the plaintiff’s request for a consultative

psychiatric evaluation. On December 30, 2002, plaintiff was examined by Dr. Richard Swink,

Ph.D., a clinical psychologist. In his January 3, 2003 report, Dr. Swink noted plaintiff reported

he repeated several grades in school (including the 5th grade twice), was a poor student, and

attended school to the 10th grade. (Tr. 392). Dr. Swink found intelligence testing revealed

plaintiff had a full scale IQ of 78 and verbal IQ of 73, placing plaintiff within the “Border[line]

intellectual functioning range.” His performance IQ of 85 was classified as low average. (Tr.

 

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SS\R&R\HEGDAHL-C.REV-STEP2:2 6

394). Plaintiff read at below the 3rd grade level giving a standard score of 52 which is deficient. 

(Tr. 395). Plaintiff was unable to write sentences with correct spelling. Plaintiff was deficient

on subtests of information and arithmetic, which was consistent with his history of severe

academic problems and learning disabilities. Dr. Swink found plaintiff’s test scores were

suggestive of probable life long left brain problems associated with learning disorders. Memory

testing revealed plaintiff was borderline on verbal memory and “lower Low Average” on visual

memory, which did not support a diagnosis of a “specific memory disorder beyond that

associated with Borderline intellectual functioning, presence of academic deficiencies and

clinical impressions.” The doctor concluded plaintiff evidenced borderline intellectual

functioning on intellectual and memory tests. (Tr. 397). Dr. Swink concluded plaintiff was

deficient, below 3rd grade level, on general reading skills, arithmetic, and expressive writing, all

consistent with his history of retention in public school, early school drop-out, and life long

academic skill problems. 

On January 15, 2003, Dr. Swink submitted his capability opinion that plaintiff would not

be able to manage benefit payments in his own interest due to his history of alcohol use and

continued alcohol use. (Tr. 399). Dr. Swink also submitted a Mental Medical Source Statement

wherein he found plaintiff had no significant limitations in understanding and memory, either no

limitation or no significant limitation in sustained concentration and persistence, either no

limitation or no significant limitation in social interaction, and either no limitation or no

significant limitation in adaptation. In assessing plaintiff’s functional capacity Dr. Swink noted

evidence of plaintiff’s adequate activities of daily living, his borderline intellectual functioning,

and deficient academic skills. Dr. Swink determined, however, that plaintiff was able to attend, 

 

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8

Again, plaintiff’s education is identified as a 10th grade education in other portions of the record. See footnote 2,

supra.

9

Other portions of the record indicate an onset date of January 15, 1999. (Tr. 114). 

SS\R&R\HEGDAHL-C.REV-STEP2:2 7

comprehend and carry-out instructions pertaining to basic tasks. (Tr. 403). 

On March 5, 2003, the ALJ rendered an unfavorable decision, finding plaintiff not

disabled at any time through the date of the decision. (Tr. 25-36). In his decision, under the

section “Evaluation of the Evidence,” the ALJ noted he considered “all the evidence of record,

including medical evidence, clinical and laboratory tests, statements in the record, and the

testimony at the hearing” in determining what impairments interfere with plaintiff’s normal

physical and mental functioning. (Tr. 28). The ALJ noted plaintiff was 48-years-old, had an 11th

grade education,8 and past work experience as an iron cutter, tree trimmer, bagger, and

bricklayer. The ALJ indicated plaintiff alleged he became disabled on January 19, 1999 after an

accident when a log fell on his back.9 The ALJ found plaintiff had not engaged in substantial

gainful activity since his onset date.

The ALJ noted a medically determinable impairment, or combination of impairments, is

severe “if it significantly limits an individual’s physical or mental ability to do basic work

activities.” Citing 20 C.F.R. § 416.921. (Tr. 29). He also noted that “if a severe impairment

exists, all medically determinable impairments must be considered in the remaining steps of the

sequential analysis.” Citing 20 C.F.R. § 416.923. (Tr. 30). 

The ALJ recited various medical records regarding plaintiff’s back injury and other

incidents involving problems urinating, hip pain, and chest pain. (Tr. 30). The ALJ also

summarized progress notes and records from Western State Psychiatric Center (WSPC) for the

 

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SS\R&R\HEGDAHL-C.REV-STEP2:2 8

time period December 4, 2001 to March 7, 2002 as follows:

The claimant came to the counseling session on December 4, 2001 accompanied

by his wife. He used a cane for walking. He reported numbness in his legs and

hands and he had had a back injury. He reported seizures and 3 suicide attempts. 

He had been unable to work for about 5 years. He wanted counseling for

depression, citing the fact his father had died in August 2001. He stated he

cannot read. A mental status exam on February 4, 2002 revealed the claimant to

be sloppily dressed and extremely malodorous. He walked with a cane. His

affect was flat and mood appeared depressed. He claimed to have suicidal

ideation but no plan, and it appeared he utilized this threat to tug on the

heartstrings of his wife and children. There was no evidence of psychotic

thinking. His memory was somewhat impaired; intellect was below average;

attention and concentration were somewhat impaired. He was oriented in all

spheres. Diagnosis were: Axis I: Mood disorder due to severe back trauma with

depressive features; rule out a substance abuse disorder; Axis II: antisocial

personality disorder; Axis III: Status post major back and leg trauma; Axis IV:

Global Assessment of Functioning 50; highest for the past year 60. Prognosis

was that if the claimant responded to Celexa that was ordered it would appear to

be somewhat fair to good. On March 7, 2002, he stated he was doing much better

since taking the Celexa and the depression had lessened and because of that he

was less angry and less irritable and pugnacious. Objectively he appeared to be

much calmer and did not have a hateful look in his eye. He showed no side

effects from the medication. 

The ALJ also noted an August 20, 2002 progress note from WSPC wherein plaintiff came in for

counseling and “seemed to be doing pretty well.” The progress note indicated plaintiff was

trying to get out in the community to see his friends and wanted to stay on his medication. (Tr.

31).

The ALJ summarized plaintiff’s testimony, including testimony that he could walk one

block, stand one hour, sit all day, and lift a coffee cup, as well as testimony that he has memory

problems, migraines about once a week for which he takes Aleve, blackouts, dizzy spells, and

numbness in the lower part of his back which radiates down his leg.

The ALJ also summarized the December 30, 2002 psychological evaluation of plaintiff

by Dr. Swink as follows:

 

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10NOS refers to “not otherwise specified” and is indicated when a behavioral pattern does not exactly match a

specified disorder, but nevertheless has characteristics of the disorder. 

SS\R&R\HEGDAHL-C.REV-STEP2:2 9

Dr. Swink’s evaluation of the claimant was that he was independent in personal

daily living skills; he helps with cooking and laundry and has a good friend who

comes over. He hunts deer and likes to go fishing. He enjoys playing cards and

other games. He makes key chains and necklaces and showed a silver necklace

with beads he had made. He states he was a poor student in school. He reported

he had been a “biker” for a time traveling about in California. He spent three

years in prison after assaulting a policeman in California. He had several drunken

driving jail terms since his prison term was served. He occasionally drinks beer

but “doesn’t abuse it,” he stated. He denies ever being an alcoholic, limiting

himself to a six pack. He was last inebriated two months ago. He ambulated

slowly but made good progress with adequate balance when going down the hall. 

He was slow to get off surfaces at times and appeared to be somewhat stiff. He

did not evidence a thought disorder, hallucinatory activity or delusions during the

interview. He was alert, coherent and able to focus on tasks. He had good eye

contact and did not appear to be significantly or markedly distressed or physically

distressed. He had appropriate mild humor at times and did not appear to be

significantly depressed. WAIS-R tests showed a verbal IQ of 73; performance IQ

of 85 and full scale IQ of 78. He was within the border intellectual functioning

range. Diagnostic impressions were: 1. Mood disorder NOS10; 2. Borderline

intellectual functioning; 3. Personality Disorder NOS, inadequate, antisocial and

borderline features; 4. Rule out alcohol dependence; 5. Rule out malingering. 

His conditions appeared relatively stable and not likely to change significantly

within the coming 12 months. Dr. Swink opined that if the claimant received

benefits, a payee would be recommended based on his history of alcohol use,

continued alcohol use and arrest record. The Mental Medical Source Statement

was completed by Dr. Swink regarding the claimant’s capacity to sustain work

activity over a normal workday and workweek on an ongoing basis. Dr. Swink

found the claimant had either “no limitations” or “no significant limitations” in

the following: understanding and memory; sustained concentration and

persistence; social interaction; and adaptation.

The ALJ specifically gave “great weight” to Dr. Swink’s assessment as it was “consistent with

the objective evidence,” and concluded plaintiff did not have a severe mental impairment. (Tr.

32). 

The ALJ found the medical evidence indicated plaintiff has impairments of (1)

degenerative disc disease, and (2) syncopal episodes. The ALJ found these impairments were

 

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11Plaintiff testified at the hearing that he had not gone hunting or fishing since March 28, 2000, his protected filing

date. (Tr. 59).

12At a later point in his decision, the ALJ subsequently indicated plaintiff’s RFC was for “no more than a limited range

of light work.” (Tr. 33). The ALJ, however, again referred to plaintiff’s RFC for a “significant range of light work.” (Tr. 34,

35).

SS\R&R\HEGDAHL-C.REV-STEP2:2 10

severe within the meaning of the Regulations, but that such impairments were not severe enough

to meet or medically equal one of the impairments listed in Appendix 1, Subpart P, Regulations

No. 4.

The ALJ noted he gave full consideration, both individually and in combination, to

plaintiff’s subjective complaints. The ALJ noted, however, that given plaintiff’s allegations of

totally disabling symptoms, “one might expect to see some indication in the treatment records of

restrictions placed on the claimant by the treating doctor.” The ALJ found the record included

evidence “strongly suggesting” plaintiff had exaggerated his symptoms and limitations, listing

plaintiff’s ability to help with household chores, visit friends, go fishing and hunting, and

participate in hobbies.11 After noting other inconsistencies, the ALJ concluded plaintiff

exaggerated his symptoms to include disabling pain, and that there was no objective evidence in

the record which could account for plaintiff’s allegations of pain and alleged inability to engage

in substantial gainful activity. The ALJ thus found the impact of plaintiff’s impairment on his

ability to work were not entirely credible in light of the objective medical evidence.

The ALJ determined plaintiff retained the residual functional capacity (RFC) to perform

a “significant range of light work.”12 (Tr. 35). The ALJ clarified that plaintiff retained the RFC

to:

[L]ift/carry no more than 20 pounds occasionally or 10 pounds frequently, stand

and/or walk (with normal breaks) about 6 hours in an 8-hour workday; sit (with

normal breaks) for a total of about 6 hours in an 8-hour workday; push and/or pull

(including hand and/or foot controls) unlimited, other than as shown for lift or

 

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SS\R&R\HEGDAHL-C.REV-STEP2:2 11

carry; can occasionally climb; must avoid hazards such as unprotected heights

and dangerous machinery.

(Tr. 33, 35).

In determining whether plaintiff could perform any of his past relevant work, the ALJ

noted the VE’s testimony that plaintiff’s past work was performed at the heavy or very heavy

exertional level. As plaintiff’s RFC was for light work, the ALJ determined he could not

perform any past work. 

In determining whether there were other jobs existing in significant numbers in the

national economy that plaintiff could perform, the ALJ noted plaintiff was 48 years old, defined

as a younger individual in the regulations. The ALJ also found plaintiff had a “limited

education,” and no transferable skills from any past relevant work. (Tr. 33). The ALJ noted

plaintiff’s ability to perform all or substantially all of the requirements of light work was

impeded by additional exertional limitations. (Tr. 34, 35). The ALJ noted that in response to his

inquiry as to whether jobs exist in the national economy for an individual of plaintiff’s age,

education, past relevant work experience and RFC, the VE replied that, assuming the

hypothetical individual’s specific work restrictions, plaintiff was capable of making a vocational

adjustment to other work, viz., as a cafeteria attendant and a ticket taker (unskilled, light jobs), or

a clerical mailer and a production assembly worker (unskilled, sedentary jobs). The ALJ then

concluded, based on the testimony of the VE, and considering plaintiff’s age, educational

background, work experience, and RFC, plaintiff was capable of making a successful adjustment

to work that exists in significant numbers in the national economy. (Tr. 34). The ALJ thus

reached a finding of “not disabled” within the framework of Medical-Vocational Rule 202.17,

and concluded plaintiff was not under a disability as defined in the Social Security Act at any

 

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SS\R&R\HEGDAHL-C.REV-STEP2:2 12

time through the date of his decision and was not eligible for SSI payments.

With his request for review of the ALJ’s decision, plaintiff, represented by a non-attorney

representative, attached a brief arguing plaintiff’s mental and physical impairments prevent him

from working on a sustained basis. Plaintiff submitted additional medical records from Western

State Psychiatric Center. (Tr. 11, 12-15, 16-24). Upon the Appeals Council’s denial of

plaintiff’s request for review on October 9, 2003, the ALJ’s determination that plaintiff was not

under a disability became the final decision of the Commissioner. (Tr. 8-10). Plaintiff now

seeks judicial review of the denial of benefits pursuant to 42 U.S.C. § 405(g).

II.

STANDARD OF REVIEW

In reviewing disability determinations by the Commissioner, this court’s role is limited to

determining whether substantial evidence exists in the record, considered as a whole, to support

the Commissioner’s factual findings and whether any errors of law were made. Anderson v.

Sullivan, 887 F.2d 630, 633 (5th Cir. 1989). Substantial evidence is “such relevant evidence as a

responsible mind might accept to support a conclusion. It is more than a mere scintilla and less

than a preponderance.” Boyd v. Apfel, 239 F.3d 698, 704 (5th Cir. 2001). To determine whether

substantial evidence of disability exists, four elements of proof must be weighed: (1) objective

medical facts; (2) diagnoses and opinions of treating and examining physicians; (3) claimant’s

subjective evidence of pain and disability; and (4) claimant’s age, education, and work history. 

Wren v. Sullivan, 925 F.2d 123, 126 (5th Cir. 1991) (citing DePaepe v. Richardson, 464 F.2d 92,

94(5th Cir. 1972)). If the Commissioner's findings are supported by substantial evidence, they

are conclusive, and the reviewing court may not substitute its own judgment for that of the

 

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SS\R&R\HEGDAHL-C.REV-STEP2:2 13

Commissioner, even if the court determines the evidence preponderates toward a different

finding. Strickland v. Harris, 615 F.2d 1103, 1106 (5th Cir. 1980). Conflicts in the evidence are

to be resolved by the Commissioner, not the courts, Laffoon v. Califano, 558 F.2d 253, 254 (5th

Cir. 1977), and only a "conspicuous absence of credible choices" or "no contrary medical

evidence" will produce a finding of no substantial evidence. Hames v. Heckler, 707 F.2d at 164. 

Stated differently, the level of review is not de novo. The fact that the ALJ could have found

plaintiff to be disabled is not the issue. The ALJ did not do this, and the case comes to federal

court with the issue being limited to whether there was substantial evidence to support the ALJ

decision.

III.

MERITS

Plaintiff’s brief presents the following issues for review:

1. The ALJ’s finding that plaintiff’s mental impairment was not severe at

Step Two is not supported by substantial evidence because:

a. the ALJ failed to utilize the proper legal standard under Stone v.

Heckler in evaluating the severity of plaintiff’s mental impairment;

b. the ALJ failed to evaluate plaintiff’s mental impairment and make

the necessary findings required by 20 C.F.R. § 416.920a; and

c. the medical evidence of record demonstrated plaintiff’s mental

impairment is severe.

2. The ALJ’s finding that plaintiff can perform other work, given his RFC, is

not supported by substantial evidence because plaintiff’s mental

impairment was not incorporated into the hypothetical posed to the VE;

and

3. The ALJ’s finding that plaintiff has a “limited education” is not supported

by substantial evidence because the medical evidence of record

demonstrated plaintiff has “marked academic deficiencies,” including a 3rd

 

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SS\R&R\HEGDAHL-C.REV-STEP2:2 14

grade reading level.

Although plaintiff presents several points of error as set forth above, the points presented

all relate to plaintiff’s contention that the ALJ’s finding, at Step Two, that plaintiff’s mental

impairment was not severe, and the resultant failure of the ALJ to incorporate a severe mental

impairment from Step Two as a limitation in the subsequent steps of the five-step sequential

analysis is error and warrants reversal. This Court’s review will focus on whether there was

substantial evidence in the record as a whole supporting the finding that plaintiff does not have a

mental impairment or combination of impairments that are severe and whether the proper legal

standards were applied in making this determination. If it is determined that plaintiff does, in

fact, have a severe mental impairment, then it must be decided whether reversal is appropriate. 

A.

Proper Standard for Severity Under Stone v. Heckler

Plaintiff argues the ALJ’s finding that plaintiff’s mental impairment was not severe at

Step 2 is not supported by substantial evidence because the ALJ failed to evaluate plaintiff’s

mental impairment using the proper legal standard for determining severity. Plaintiff notes the

ALJ did not reference the correct “slight abnormality” standard for determining severity and, in

fact, cited the improper “significantly limits” standard. Plaintiff concludes the ALJ’s failure to

set forth and apply the correct legal standard for determining the severity of his mental

impairments was reversible error.

Step 2 of the Commissioner’s sequential analysis requires that the ALJ decide whether

the claimant's impairment is "severe," irrespective of age, education and work experience. 

Regulations define the scope of the term "severe impairment":

 

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13Despite the Court’s disapproval, the Court did not go so far as to hold that the severity regulation was facially

invalid. Although the severity regulation, if taken literally, is clearly inconsistent with the conclusion in Stone that a claimant

need only prove that his or her impairment is something more than a slight abnormality, the Court did not, in Stone or thereafter,

expressly reject the validity of the severity regulation. In fact, the Fifth Circuit, like other circuits, conceded that the

Commissioner may require the claimant to make a de minimis showing that her impairment is severe enough to interfere with her

ability to work. See Hampton v. Bowen, 785 F.2d 1308, 1311 (5th Cir. 1986) (acknowledging that "Stone does not require a

wholesale remand of all severity cases"); see also McDonald v. Secretary of Health and Human Services, 795 F.2d 1118, 1122

SS\R&R\HEGDAHL-C.REV-STEP2:2 15

"If you do not have any impairment or combination of impairments which

significantly limits your physical or mental ability to do basic work activities, we

will find that you do not have a severe impairment and are, therefore, not

disabled." 

20 C.F.R. §§ 404.1520(c) & 416.920(c) (emphasis added). However, in Stone v. Heckler, 752

F.2d 1099 (5th Cir. 1985), the 5th Circuit evaluated the severity regulation and determined it was

inconsistent with the statutory language and legislative history of the Social Security

Administration Act. Id. at 1104. Noting the severity regulation defined "severe impairment" to

include far fewer conditions than the statutory language intended, the Court warned that it could

not condone the Commissioner’s use of the severity regulation to systematically deny benefits to

claimants who otherwise satisfied the statutory criteria. Id. Although the Court recognized in

Stone that the ALJ was entitled to follow a sequential process that disposed of appropriate cases

at an early stage, the Court also recognized it was impermissible to conduct the evaluation in

such a manner as to deny benefits to individuals who were, in fact, unable to perform

"substantial gainful activity." Id. at 1103. In that regard, the Court clarified the proper standard

to be utilized in determining whether a claimant's impairment was 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.

Id. at 1101 (emphasis added) (quoting Estran v. Heckler, 745 F.2d 340, 341 (5th Cir.1984)). In

disapproving the Commissioner's use of the severity regulation,13 the Court held it would

 

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(1st Cir. 1986) (recognizing the validity of a de minimis screening device).

SS\R&R\HEGDAHL-C.REV-STEP2:2 16

“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 this opinion or another of the

same effect . . . ." Id. at 1106. In Stone, the Court found the ALJ applied the wrong legal

standard in determining the plaintiff’s impairment was not severe because the standard used did

not consider the ability or inability of the claimant to engage in substantial gainful activity. 

As present 5th Circuit case law stands, an ALJ’s reference to Stone, or his express

statement that the construction the 5th Circuit gives to 20 C.F.R. § 404.1520(c) was used, is

sufficient to prevent the presumption that an incorrect standard was utilized to evaluate the

severity of an impairment. In this case, as plaintiff argues, the ALJ did not acknowledge the

Stone standard in his decision, much less state that the standard set forth in Stone was used in his

evaluation.

In his reply brief, the Commissioner appears to acknowledge, at least by the omission of

any argument otherwise, that the ALJ did not comply with the mandates of Stone by referencing

the de minimis standard of Stone or citing to Stone or another opinion of the same effect. In

evaluating the severity of plaintiff’s alleged mental impairments, the ALJ instead relied on the

regulation’s “significantly limited” definition of nonsevere. Therefore, under Stone, it must be

presumed the ALJ applied an incorrect standard in determining the severity of plaintiff’s mental

impairments. 

Plaintiff contends that if the incorrect standard is used in determining the severity of an

impairment, the case must be reversed and remanded for reconsideration at Step 2. The

Commissioner argues the law of the Fifth Circuit does not require reversal and remand for non-

 

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14The court was also presented with the issue of whether the factual finding of non-severity was supported by

substantial evidence.

SS\R&R\HEGDAHL-C.REV-STEP2:2 17

compliance with Stone when a claimant has non-severe impairments and the sequential

evaluation process proceeds beyond Step 2. The Commissioner contends the language in Stone

applies only where the “disposition of the case” was based on non-severity at Step 2, and that

Fifth Circuit case law endorses this interpretation of Stone. The Commissioner argues the Stone

mandates do not apply in this case because the ALJ proceeded past Step 2 and ultimately decided

plaintiff’s case at Step 5. 

In support of this argument, the Commissioner first cites Anthony v. Sullivan, 954 F.2d

289 (1992). In Anthony, the ALJ found the claimant did not have any severe impairments and

stopped his evaluation at Step 2. On appeal to the district court, the court found the ALJ

evaluated the severity of the claimant’s impairments under an incorrect legal standard and

remanded for reconsideration under Stone. On remand, the ALJ considered the severity of the

claimant’s impairments under the “slight abnormality” standard of Stone and determined, again,

that the impairments were not severe and again stopped his evaluation at Step 2. Such

determination was affirmed by the district court. On appeal, the Fifth Circuit was presented with

the issue of whether an interim ruling by the Supreme Court in Bowen v. Yuckert, 482 U.S. 137,

107 S.Ct. 2287, 96 L.Ed.2d 119 (1987) upholding the facial validity of the severity regulation

had altered the standard announced in Stone.

14 The Anthony court held Stone was not

inconsistent with the Supreme Court’s holding in Yuckert, did not displace prior limitations on

the Commissioner’s reliance on the severity regulation, and did not alter the standard by which

 

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15The court held Yuckert simply upheld the facial validity of the severity regulation as an appropriate method of

streamlining the review process and did not conclude that the severity regulation properly interpreted the statutory requirements

or purport to state the proper definition of the term “severe impairment.” The court concluded the Secretary [now the

Commissioner] applied the proper legal standard in evaluating Anthony’s disability claim.

16The footnote states:

Appellant also advances the rather disingenuous argument that the district court applied the incorrect legal

standard in determining the severity of his impairments, similar to that which we rejected in Stone v. Heckler,

752 F.2d 1099 (5th Cir. 1985), in denying benefits because appellant’s hypertension was characterized as

“mild.” While the ALJ correctly concluded that appellant’s hypertension was of mild medical severity, he

proceeded through the sequential evaluation to conclude at the fourth and fifth levels that appellant could

perform past relevant work and could perform a full range of light work activities. We perceive no error

SS\R&R\HEGDAHL-C.REV-STEP2:2 18

an impairment is considered severe in the 5th Circuit.15 

The Commissioner, however, quotes a summation statement from Anthony that “Stone

merely reasons that the regulation cannot be applied to summarily dismiss, without consideration

of the remaining steps in the sequential analysis, claims of those whose impairment is more than

a slight abnormality,” in support of his argument that 5th Circuit law “makes clear that the

holdings turn on whether the dispositive resolution of the case was made at step two.” If there is

merit to the defendant Commissioner’s argument, it would be that any Stone error at Step 2

would be harmless where the ALJ, notwithstanding the non-severe finding, proceeds past Step 2

and considers the non-severe impairment at Steps 3, 4 and, if appropriate, at Step 5. The

Anthony court, by its quoted language, did not imply that the proper severity standard of Stone

need not be utilized when a case proceeds beyond Step 2 if the case proceeds beyond Step 2 only

as to other impairments which were considered severe at Step 2, but does not proceed past Step 2

and there is no consideration of the non-severe impairment past Step 2. Stated differently, in a

case like this one, where there are both physical and mental impairments, proceeding past Step 2

only as to the physical impairments, without any consideration (of the mental impairments) past

Step 2, would not be harmless error under Stone.

The Commissioner also cites a footnote in Jones v. Bowen, 829 F.2d 524 (5th Cir. 1987),16

 

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similar to that found in Stone v. Heckler, where the claimant’s request for benefits was prematurely denied

based on an improper determination of “non-severity.” 

SS\R&R\HEGDAHL-C.REV-STEP2:2 19

Chaparro v. Bowen, 815 F.2d 1008 (1987), and Loza v. Apfel, 219 F.2d 378 (5th Cir. 2000), in

support of his argument that Stone is inapplicable in any case where an ALJ proceeds beyond

Step 2.

None of those cases, however, stand solely for the proposition that Stone is to be

mechanically applied only to cases that are dispositive at Step 2 of the sequential evaluation. 

Instead, the undersigned finds the requirements of Stone are applicable to multiple impairment

cases that proceed beyond Step 2, where the sequential evaluation continues only with regard to

certain impairments found to be severe at Step 2, but does not continue with respect to the other

impairments which were found non-severe under the wrong standard. 

In any event, the ALJ should have applied the appropriate Stone standard for determining

the severity of plaintiff’s mental impairments, and should have complied with the requirements

of Stone in his analysis at Step 2. The failure of the ALJ to do so was error. However, as the

ALJ considered the medical evidence and testimony concerning plaintiff’s mental impairments,

including Dr. Swink’s post-hearing assessment, and as the ALJ eventually found plaintiff had no

limitations or no significant limitations as a result of any mental impairment, the Court must

determine whether this Stone error was harmless.

B.

Analysis of Mental Impairments under 20 C.F.R. § 416.920a

In a related point, plaintiff also argues error at Step 2 occurred as to the ALJ’s finding

that plaintiff’s mental impairment was not severe because the ALJ failed to evaluate the severity

of plaintiff’s mental impairments utilizing the special technique described in 20 C.F.R. §

 

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17Plaintiff maintains the appropriate technique is reflected in the PRT form. 

SS\R&R\HEGDAHL-C.REV-STEP2:2 20

416.920a. Plaintiff contends that where, as here, the medical evidence reveals the presence of a

mental impairment that may affect a claimant’s ability to work, the ALJ must follow the specific

procedure set forth in the regulation to evaluate the severity of that mental impairment. The

regulation requires that the Commissioner:

1. record the claimant’s pertinent signs, symptoms, findings, functional

limitations, and effects of treatment contained in the claimant’s case

record to determine whether a medically determinable mental impairment

exists;

2. if the ALJ determines a mental impairment exists, he must indicate

whether certain medical findings which have been found especially

relevant to the ability to work are present or absent; 

3. the ALJ must then rate, on a set scale, the degree of functional loss

resulting from the mental impairment in the areas of function of activities

of daily living; social functioning; concentration, persistence, or pace; and

deterioration or decompensation in work or work-like settings. 

Following the rating of the degree of functional loss resulting from the mental impairment, the

ALJ must then determine the severity of the claimant’s mental impairment. Plaintiff argues that

if the ALJ does not attach a PRT form to his decision,17 the ALJ’s decision must demonstrate the

appropriate analysis technique was used, as well as contain the required findings. 

Plaintiff argues the ALJ failed to include any of the required findings in his written

decision and, therefore, was not in the position to make a proper severity determination at Step 2. 

Plaintiff specifically notes the ALJ did not even include plaintiff’s diagnosed mental

impairments as a medically-determined impairment, did not point to any contrary medical

evidence to rebut Dr. Swink’s diagnosis, or make the required findings. Plaintiff argues the ALJ

simply found his borderline intellectual functioning was not a severe impairment without making

 

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SS\R&R\HEGDAHL-C.REV-STEP2:2 21

any supporting findings and that such failure constitutes reversible error. 

The Commissioner maintains the failure to specifically follow the special technique for

evaluating plaintiff’s mental disorder, listing the mandated criteria, as well as the failure to make

the specific required findings, is not reversible. Specifically, the Commissioner contends the

ALJ’s decision should not be reversed because plaintiff has not shown he was prejudiced by the

ALJ’s failure to specifically detail the evaluation contemplated under 20 C.F.R. § 416.920a. The

Commissioner contends plaintiff cannot show prejudice because the ALJ fully analyzed and

discussed all of plaintiff’s mental records. He further notes that after detailing Dr. Swink’s

report, the ALJ “gave great weight to Dr. Swink’s assessment” and “clearly adopted” the

assessment regarding “no limitations” or “no significant limitations” in plaintiff’s understanding

and memory, sustained concentration and persistence, social interaction, and adaptation. The

Commissioner concludes the mere fact the ALJ did not restate, in his own words, the regulatory

criteria of the special technique of section 416.920a, does not require reversal.

The ALJ detailed plaintiff’s medical records from Western State Psychiatric Center

where plaintiff was treated for depression. He also summarized Dr. Swink’s December 30, 2002 

psychological evaluation, as well as Dr. Swink’s January 15, 2003 Mental Medical Source

Statement. The ALJ gave “great weight” to Dr. Swink’s assessment that plaintiff’s mental

impairments caused “no limitations” or “no significant limitations” in plaintiff’s understanding

and memory, sustained concentration and persistence, social interaction, and adaptation. While

it is clear the ALJ did not identify each step of the special procedure of section 416.920a, it is

equally clear Dr. Swink thoroughly evaluated plaintiff’s mental impairments and rated the

degree of functional loss attributable to those impairments. The ALJ gave “great weight” to this

 

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SS\R&R\HEGDAHL-C.REV-STEP2:2 22

assessment and found it “consistent with the objective evidence.” Consequently, the failure of

the ALJ to make specific findings in his decision with regard to the special procedure of section

416.920a does not appear to have prejudiced plaintiff. In light of Dr. Swink’s assessment, which

was adopted by the ALJ, no reversible error has been shown.

C.

Severity of Plaintiff’s Mental Impairment

In another related claim, plaintiff argues the ALJ’s finding that plaintiff’s mental

impairment was not severe at Step 2 is not supported by substantial evidence because the

medical evidence of record demonstrated plaintiff’s mental impairment is severe. Plaintiff

contends the ALJ’s conclusion that a person with borderline intellectual functioning (BIF) and a

verbal IQ of 73 does not have a severe mental impairment is contrary to case law and

inconsistent with the Commissioner’s own policies. Citing an 8th Circuit case and a Western

District of Texas case, plaintiff argues that, by definition, BIF has more than a “minimal impact”

on a person’s ability to perform basic work activities and should be considered a severe

impairment. Noting a verbal IQ of 73 is just above the listing level and would be considered

presumptively disabled at just 3 points lower, plaintiff further contends that for the ALJ to

conclude such an IQ level “does not even meet the minimalist definition of severe is contrary to

common sense.” Plaintiff further notes SSA policy manuals state that an IQ from 71-75 may

equal a listing when the severity of his additional impairment is considered.

The Commissioner counters plaintiff’s point of error and argues a diagnosis of BIF and

an IQ of 78 does not necessarily mandate a severity finding. As authority, however, the

Commissioner cites a case which dealt not with a severity determination based on IQ, but on

 

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SS\R&R\HEGDAHL-C.REV-STEP2:2 23

whether it was a listed impairment. The Commissioner also argues below average intelligence,

by itself, does not constitute a nonexertional limitation. Defendant’s Response, at 15. The

Commissioner maintains there is no evidence in the record to support a finding that plaintiff’s 

BIF has had any impact on his abilities, noting that despite Dr. Swink’s diagnosis of BIF, the

doctor subsequently found plaintiff had either “no limitations” or “no significant limitations” in

understanding and memory, concentration and persistence, social interaction, or adaptation. Dr.

Swink also found plaintiff could comprehend and carry-out instructions pertaining to basic tasks. 

The Commissioner concludes there is no evidence indicating plaintiff has experienced any

effects on his ability to perform light work activity due to mental impairments.

Based on Dr. Swink’s report, it does not appear plaintiff has any mental or psychiatric

disorders such as depression which are severe, but it does appear his BIF and deficient academic

skills are more than slight abnormalities having such a minimal effect on plaintiff that they

would not be expected to interfere with his ability to work. Consequently, plaintiff’s diagnoses

of these conditions would necessitate a finding of a severe mental impairment under the Stone

standard and upon application of the special technique for analyzing the severity of mental

impairments of section 416.920a. However, Dr. Swink, the same doctor that made such

diagnoses, also found plaintiff had no significant limitations in understanding and memory, and

either no limitation or no significant limitation in sustained concentration and persistence, social

interaction, or adaptation. In assessing plaintiff’s functional capacity, Dr. Swink noted evidence

of plaintiff’s adequate activities of daily living, his borderline intellectual functioning, and

deficient academic skills and determined plaintiff was able to attend, comprehend and carry-out

instructions pertaining to basic tasks. (Tr. 403). Consequently, even if this Court determines

 

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SS\R&R\HEGDAHL-C.REV-STEP2:2 24

these intellectual deficiencies should have been found to be severe, this Court must still

determine if such error was harmless.

D.

Defective Hypothetical

At the hearing, the ALJ posed the following hypothetical to the VE:

[A]ssume a hypothetical person of the same age, education, sex, background

training and experience of this claimant. . . . [A]ssume that such a hypothetical

person can lift 50 pounds maximum, 25 pounds frequently, occasionally climb

and has need to avoid hazards, unprotected heights, dangerous machinery and so

forth. . . . [W]ith those limitations and no others, would you expect this

hypothetical person to be able to perform the past relevant work of this claimant?

The VE replied, “No.” (Tr. 83). The VE testified such a person could do other jobs with these

limitations and could perform the “full range of unskilled, light, sedentary work.” The VE

testified such a person could perform sedentary, unskilled, SVP 2 work as a clerical mailer (or

addresser or inserter), and that reading and writing would not be a factor. He also testified such

a person could perform sedentary, unskilled, SVP 2 work as a production assembly worker, and

light, unskilled, SVP 2 work as a cafeteria attendant and ticket taker. The VE also testified such

a person could perform medium, unskilled, SVP 2 work as a janitor and a dishwasher. The VE

further testified that if “all of the testimony exactly as . . . given” were accepted and used as a

limitation, that the occupational base would be eliminated.

Plaintiff argues the ALJ’s finding, at Step 5, that plaintiff can perform other work is not

supported by substantial evidence because none of plaintiff’s mental impairments were

incorporated into the hypothetical posed to the VE. Plaintiff argues the ALJ is required to

consider all of a plaintiff’s impairments in combination, regardless of whether any one of them

may not be considered severe, and that any questions posed to the VE must reasonably reflect all

 

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18Two standard deviations below the norm constitute a marked impairment. 20 C.F.R. Pt. 404, Subpt. P, App. 1 §

12.00(6)(c); 20 C.F.R. § 416.926a(e)(2). A score of 4 constitutes a marked impairment.

SS\R&R\HEGDAHL-C.REV-STEP2:2 25

of a claimant’s significant impairments, both severe and non-severe. Plaintiff argues his BIF

was a significant nonexertional impairment that must be considered by the VE. Plaintiff also

argues the VE should have taken his other significant functional and educational limitations into

consideration, viz., Dr. Swink’s findings in his report that plaintiff was markedly deficient in his

fund of information, in his arithmetic abilities, had subtest scores of 4 in his digit span [motor

persistence, sustained attention, response speed, and visual-motor coordination], and reads on a

3rd grade level.18

Plaintiff maintains the ALJ could not deny benefits unless there was vocational testimony

elicited by a hypothetical that reasonably reflected all of plaintiff’s impairments, and that the

ALJ’s failure to include any of plaintiff’s mental limitations in his hypothetical “created an

underlying flaw that undermines his Step Five denial in this case.” Plaintiff concludes the ALJ’s

failure to pose a complete hypothetical was not harmless because the VE’s testimony would

most likely have been affected by a proper hypothetical including mental limitations because the

cafeteria attendant and ticket taker jobs the VE found plaintiff could perform required the ability

to perform detailed tasks, an R2 reasoning level under the DOT.

The Commissioner argues the hypothetical question presented by the ALJ to the VE

included all limitations eventually found by the ALJ, and contends no reversible error is present

when a hypothetical question reasonably incorporates all of the “disabilities” found by the ALJ. 

The Commissioner acknowledges the VE testified that an individual would not be able to

perform the identified jobs if the individual had the mental limitations to which plaintiff testified

(Defendant’s Response, at 16), but contends the ALJ considered plaintiff’s allegations and

 

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SS\R&R\HEGDAHL-C.REV-STEP2:2 26

properly found his allegations were not supported by the record. The Commissioner contends no

evidence exists to support a finding that plaintiff’s alleged educational limitations have any

impact on his ability to perform work activities. The Commissioner argues there is no opinion

from any medical source, including Drs. Mason or Swink, finding plaintiff had any limitations

due to a mental disorder or lack of educational abilities. The Commissioner notes the ALJ is not

bound by VE testimony which is based upon evidentiary assumptions the ALJ ultimately rejects

and argues the ALJ was “not obligated to rely on VE testimony which responded to that

limitation, or any other limitation not supported by the record.”

The Commissioner acknowledges the limiting effects of all of a claimant’s impairments,

even those not severe, must be considered in determining the claimant’s RFC. The

Commissioner explains that at Step 4 or 5, the severity of any given impairment is not at issue

because all impairments must be considered in determining RFC. The Commissioner concedes

that if this Court finds plaintiff’s RFC is not supported by substantial evidence because an

impairment was not properly considered, then reversal is appropriate. The Commissioner

contends, however, that reversal is not appropriate here because the ALJ’s RFC determination is

supported by substantial evidence. He argues the ALJ’s decision and the record evidence reveal 

the ALJ carefully evaluated all of the medical evidence pertaining to plaintiff’s alleged mental

limitations and properly concluded plaintiff did not have a severe mental impairment. The

Commissioner concludes the ALJ properly determined plaintiff’s RFC did not need to account

for any mental limitations because none were established by the evidence.

Neither the ALJ or the VE had the benefit of Dr. Swink’s evaluation before them when

the ALJ presented the hypothetical to the VE at the hearing. Nor did they have the Mental

 

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19The undersigned again notes the evidence in the record indicates plaintiff attended school only to the 10th grade. See

footnote 2, supra.

SS\R&R\HEGDAHL-C.REV-STEP2:2 27

Medical Source Statement from Dr. Swink wherein he indicated plaintiff’s mental impairments

did not significantly limit his ability to perform basic work functions. The VE did, however,

consider plaintiff’s academic deficiencies when he testified the job of clerical mailer (or

addresser or inserter) did not require reading and writing. The more prudent action on the part of

the ALJ would have been to reopen the hearing after obtaining the psychological evaluation in

order to allow a VE to consider the effect of plaintiff’s mental impairments of BIF and deficient

academic skills on his ability to perform work-related functions. The failure of the ALJ to do

that, however, particularly in light of Dr. Swink’s assessment that plaintiff’s mental impairments

caused no effect or only minimal effect on his ability to perform basic work functions, is not

reversible unless plaintiff can show those academic deficiencies would have eliminated the jobs

the VE found available.

E.

Educational Deficiencies

In his final point, which is related to the issue discussed in paragraph D. above, plaintiff

argues the ALJ erred in finding plaintiff has a “limited education.” The ALJ found plaintiff had

an 11th grade education,19 finding this to be a “limited education.” The regulations define a

“limited education” to mean an “ability in reasoning, arithmetic, and language skills, but not

enough to allow a person with these educational qualifications to do most of the more complex

job duties needed in semi-skilled or skilled jobs. We generally consider that a 7th grade through

the 11th grade level of formal education is a limited education.” 20 C.F.R. § 416.964(b)(3); see

also 20 C.F.R. § 404.1564(b)(3) (same). A “limited education” is the third in a hierarchy of four

 

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20Two standard deviations below the norm constitute a marked impairment. 20 C.F.R. Pt. 404, Subpt. P, App. 1 §

12.00(6)(c); 20 C.F.R. § 416.926a(e)(2). A score of 4 constitutes a marked impairment.

21“Illiteracy means the inability to read or writ. We consider someone illiterate if the person cannot read or write a

simple message such as instructions or inventory lists even though the person can sign his or her name. Generally, an illiterate

person has had little or no formal schooling.” 20 C.F.R. § 416.964(b)(1). 

SS\R&R\HEGDAHL-C.REV-STEP2:2 28

(4) categories specified in the Code of Federal Regulations, to wit: illiteracy, marginal education,

limited education, and high school education and above, to be used in evaluating a claimant’s

education level as a factor in determining whether a claimant can meet vocational requirements. 

See 20 C.F.R. §§ 416.964, 404.1564.

Plaintiff contends the ALJ’s finding that he has a “limited education” is not supported by

substantial evidence. Plaintiff acknowledges the grade level (here, the 10th grade) will be used to

determine a claimant’s education abilities unless there is no other evidence to contradict it, but

contends the other evidence of record clearly contradicted a finding that his numerical grade

level represents his actual educational abilities. Citing 20 C.F.R. § 416.964(b). Specifically,

plaintiff cites Dr. Swink’s findings as evidence that plaintiff’s educational level is less than

“limited,” i.e., he was markedly deficient in his fund of information, in his arithmetic abilities,

had subtest scores of 4 in his digit span [motor persistence, sustained attention, response speed,

and visual-motor coordination], and reads on a 3rd grade level.20 Plaintiff first argues this

medical evidence of record demonstrates plaintiff’s educational level fell more properly under

the category of “illiterate”21 instead of the “limited education” category as the ALJ found, and

concludes the Grids thus created a legal presumption that a significant number of sedentary jobs

were not available for plaintiff (a person 45-49 years old, with no transferable skills, and

illiterate). See Rule 201.17. Plaintiff argues the ALJ was thus barred from denying benefits on

the basis that there were sedentary jobs plaintiff could perform, to wit: clerical mailer and

 

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SS\R&R\HEGDAHL-C.REV-STEP2:2 29

production assembly worker.

The Commissioner does not specifically address this issue.

The evidence of record does not support the administrative determination that plaintiff

had a limited education. Nor does such evidence show plaintiff to be illiterate so as to require a

finding that plaintiff was disabled if limited to sedentary work under Rule 201.17. Instead, the

evidence shows plaintiff to be in the “marginal education” category which indicates an “ability

in reasoning, arithmetic, and language skills which are needed to do simple, unskilled types of

jobs. We generally consider that formal schooling at a 6th grade level or less is a marginal

education.” 20 C.F.R. § 416.964(b)(2). The fact that plaintiff went to at least the 10th grade and

the fact that plaintiff is at the 3rd grade reading level constitutes a marginal educational level, not

an illiterate level. The Grids addressing sedentary and light work, however, do not include the

“marginal” educational category. Instead, they include a category of “limited or less” education,

with the additional factor of being “at least literate and able to communicate in English.” See

Table No. 1. Consequently, even if the ALJ erred in finding plaintiff to have a “limited

education,” the ALJ would have been able to find a “marginal education.” Consequently,

plaintiff would have a “limited or less” education under the Grids, and would not be presumed

disabled under the medical-vocational guidelines. 

Plaintiff next appears to argue there was not substantial evidence to support the ALJ’s

finding that he could perform the identified light, unskilled jobs of ticket taker and cafeteria

attendant. Specifically, plaintiff contends that considering his 3rd grade reading level, he is

unable to meet the L2 reading level ability required to perform the job of a ticket taker under the

 

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22L2 states:

Reading: Passive vocabulary of 5,000-6,000 words. Read at rate of 190-215 words per minute. Read

adventure stories and comic books, looking up unfamiliar words in dictionary for meaning, spelling, and

pronunciation. Read instructions for assembling model cars and airplanes.

Writing: Write compound and complex sentences, using cursive style, proper end punctuation, and

employing adjectives and adverbs.

Speaking: Speak clearly and distinctly with appropriate pauses and emphasis, correct pronunciation,

variations in word order, using present, perfect and future tenses.

23R2 states:

Apply commonsense understanding to carry out detailed but uninvolved written or oral instructions. Deal

with problems involving a few concrete variables in or from standardized situations.

SS\R&R\HEGDAHL-C.REV-STEP2:2 30

Dictionary of Occupational Titles (DOT).22 Plaintiff also argues that, considering his BIF, he is

unable to meet the R2 reasoning level ability required to perform the jobs of both ticket taker and

cafeteria attendant under the DOT.23 Plaintiff contends a VE, if asked to consider all of

plaintiff’s documented mental limitations and academic deficiencies, would have eliminated both

the job of ticket taker and cafeteria attendant due to his inability to meet the language and

reasoning development. Plaintiff maintains “the ALJ’s failure to address these matters in his

questioning of the vocational expert was error that necessitates a remand.”

The VE, in identifying the sedentary, unskilled job of a clerical mailer as a job plaintiff

could perform, testified that reading and writing would not be a factor. The VE was clearly

aware of plaintiff’s difficulties with reading and writing when he identified these jobs and opined

plaintiff could perform them. 

Further, the DOT “lists maximum requirements of occupations as generally performed,

not the range of requirements of a particular job as it is performed in specific settings.” SSR 00-

4p at *3 (emphasis added). A VE “may be able to provide more specific information about jobs

or occupations than the DOT.” Id. The DOT itself cautions that its descriptions may not

 

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SS\R&R\HEGDAHL-C.REV-STEP2:2 31

coincide in every respect with the content of jobs as performed in particular establishments or at

certain localities, DOT, Vol. 1, p. xiii, and argues that not all of the jobs in every category have

requirements identical to or as rigorous as those listed in the DOT. (citing Hall v. Chater, 109

F.3d 1255, 1259 (8th Cir. 1996)). The Fifth Circuit has clarified that while the DOT “simply 

gives a general description of the [job] duties involved,” a VE “is familiar with the specific

requirements of a particular occupation, including working conditions and the attributes and

skills needed,” and is “able to compare all the unique requirements of a specified job with the

particular ailments a [plaintiff] suffers in order to reach a reasoned conclusion whether the

[plaintiff] can perform the specific job.” (quoting Fields v. Bowen, 805 F.2d 1168, 1170-71 (5th

Cir. 1986). 

The jobs identified by the VE were all unskilled. According to the regulations,

“unskilled” work is work which needs little or no judgment to do simple duties that can be 

learned on the job in a short period of time. 20 C.F.R. §§ 404.1568(a), 416.968(a). The “simple

duties” of unskilled work encompasses both the “simple one- or two-step instructions” of R1

jobs as well as the “detailed but uninvolved written or oral instructions” of R2 jobs. The VE in

this case recognized plaintiff’s intellectual limitations, finding that the job of clerical mailer did

not involve reading and writing. Even if plaintiff’s contention that the jobs of ticket taker and

cafeteria attendant might be eliminated is accepted, the jobs of clerical mailer (5,000 regionally

and 80,000 nationally), and production assembly worker (20,000 regionally and 260,000

nationally), remain. Plaintiff has not demonstrated the light, unskilled jobs identified by the VE

are inconsistent with plaintiff’s educational level or his language and reasoning level. 

 

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Consequently, even though plaintiff has identified and well briefed the errors in the

administrative proceedings as outlined above, those errors were harmless in that they did not

prejudice plaintiff. The decision of not disabled should be affirmed.

IV.

RECOMMENDATION

It is the RECOMMENDATION of the undersigned United States Magistrate Judge to the

United States District Judge that the decision of the defendant Commissioner finding plaintiff

not disabled and not entitled to a period of disability benefits be AFFIRMED.

V.

INSTRUCTIONS FOR SERVICE

The United States District Clerk is directed to send a copy of this Report and

Recommendation to each party by the most efficient means available.

IT IS SO RECOMMENDED. 

ENTERED this 8th day of March 2007.

 ______________________________________

 CLINTON E. AVERITTE

 UNITED STATES MAGISTRATE JUDGE

* NOTICE OF RIGHT TO OBJECT *

Any party may object to these proposed findings, conclusions and recommendation. In

the event a party wishes to object, they are hereby NOTIFIED that the deadline for filing

objections is eleven (11) days from the date of filing as indicated by the “entered” date directly

above the signature line. Service is complete upon mailing, Fed. R. Civ. P. 5(b)(2)(B), or

transmission by electronic means, Fed. R. Civ. P. 5(b)(2)(D). When service is made by mail or

electronic means, three (3) days are added after the prescribed period. Fed. R. Civ. P. 6(e). 

Therefore, any objections must be filed on or before the fourteenth (14th) day after this

 

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recommendation is filed as indicated by the “entered” date. See 28 U.S.C. § 636(b); Fed. R.

Civ. P. 72(b); R. 4(a)(1) of Miscellaneous Order No. 6, as authorized by Local Rule 3.1, Local

Rules of the United States District Courts for the Northern District of Texas. 

Any such objections shall be made in a written pleading entitled “Objections to the

Report and Recommendation.” Objecting parties shall file the written objections with the United

States District Clerk and serve a copy of such objections on all other parties. A party’s failure to

timely file written objections to the proposed findings, conclusions, and recommendation

contained in this report shall bar an aggrieved party, except upon grounds of plain error, from

attacking on appeal the unobjected-to proposed factual findings, legal conclusions, and

recommendation set forth by the Magistrate Judge in this report and accepted by the district

court. See Douglass v. United Services Auto. Ass’n, 79 F.3d 1415, 1428-29 (5th Cir. 1996);

Rodriguez v. Bowen, 857 F.2d 275, 276-77 (5th Cir. 1988).

 

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