NASHVILLE TENNESSEE SOCIAL SECURITY DISABILITY LAWYER

The Definition of “Severe Impairment” in Social Security Disability

This is an overview of the applicable Social Security disability laws, regulations, rulings, and primary circuit court case law governing the definition of “severity,” as used in step two of the sequential analysis used by the Social Security Administration to determine eligibility for disability benefits.

Many circuits that have issued published decisions on this topic have held that an impairment can be considered as not severe only if it is a slight abnormality that has such minimal effect on the individual that it would not be expected to interfere with the individual’s ability to work. Other courts have held that the inquiry at step two is a “de minimus screening device to dispose of groundless claims.”

Tip

Each impairment and its resulting limitations must be documented with medical evidence. Simply alleging existence of the impairment is insufficient to establish “severity” as set forth in step two of the sequential evaluation process.

Statutes

42 U.S.C. § 423(d)

In determining whether an individual’s physical or mental impairment or impairments are of a sufficient medical severity that such impairment or impairments could be the basis of eligibility under this section, the Commissioner is required to consider the combined effect of all of the individual’s impairments without regard to whether any such impairment, if considered separately, would be of such severity. If the Commissioner does find a medically severe combination of impairments, the combined impact of the impairments shall be considered throughout the disability determination process.

Regulations

20 C.F.R. §§ 404.1520, 416.920

The regulations provide that a claimant must have a severe impairment. If the claimant does not have any impairment or combination of impairments that significantly limit his or her physical or mental ability to do basic work activities, the SSA will find that the claimant does not have a severe impairment and is, therefore, not disabled.

20 C.F.R. §§ 404.1521, 416.921

In §§ 404.1521 and 416.921, a non-severe impairment is defined as an impairment or combination of impairments that does not significantly limit a claimant’s physical or mental ability to do basic work activities. “Basic work activities” are defined as the abilities and aptitudes necessary to do most jobs. Examples of these include:

  1. Physical functions such as walking, standing, sitting, lifting, pushing, pulling, reaching, carrying, or handling;
  2. Capacities for seeing, hearing, and speaking;
  3. Understanding, carrying out, and remembering simple instructions;
  4. Use of judgment;
  5. Responding appropriately to supervision, co-workers and usual work situations; and
  6. Dealing with changes in a routine work setting.

Rulings

Social Security Ruling 96-3p

To be found disabled, an individual must have a medically determinable “severe” physical or mental impairment or combination of impairments that meets the duration requirement. At step two of the sequential evaluation process, an impairment or combination of impairments is considered “severe” if it significantly limits an individual’s physical or mental abilities to do basic work activities. An impairment that is “not severe” must be a slight abnormality (or a combination of slight abnormalities) that has no more than a minimal effect on the ability to do basic work activities.

Social Security Ruling 96-8p

When an individual is not engaging in substantial gainful activity and a determination or decision cannot be made on the basis of medical factors alone (i.e., when the impairment is severe because it has more than a minimal effect on the ability to do basic work activities, yet does not meet or equal in severity the requirements of any impairment in the Listing of Impairments), the sequential evaluation process generally must continue with an identification of the individual’s functional limitations and restrictions and an assessment of his or her remaining capacities for work-related activities.

Social Security Ruling 85-28

An impairment or combination of impairments is found “not severe” and a finding of “not disabled” is made at step two when medical evidence establishes only a slight abnormality or a combination of slight abnormalities that 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. The severity requirement cannot be satisfied when medical evidence shows that the person has the ability to perform basic work activities, as required in most jobs. Examples of these are walking, standing, sitting, lifting, pushing, pulling, reaching, carrying or handling; seeing, hearing, and speaking; understanding, carrying out, and remembering simple instructions; use of judgment and responding appropriately to supervision, coworkers, and usual work situations; and dealing with changes in a routine work setting. Thus, these basic work factors are inherent in making a determination that an individual does not have a severe medical impairment.

Although an impairment is not severe if it has no more than a minimal effect on an individual’s physical or mental ability to do basic work activities, the possibility of several such impairments combining to produce a severe impairment must be considered. A claim may be denied at step two only if the evidence shows that the individual’s impairments, when considered in combination, are not medically severe (i.e., do not have more than a minimal effect on the person’s physical or mental ability to perform basic work activities). If such a finding is not clearly established by medical evidence, adjudication must continue through the sequential evaluation process.

If the medical evidence establishes only a slight abnormality that has no more than a minimal effect on a claimant’s ability to do basic work activities, but evidence shows that the person cannot perform his or her past relevant work because of the unique features of that work, a denial at the “not severe” step of the sequential evaluation process is inappropriate. The inability to perform past relevant work in such instances warrants further evaluation of the individual’s ability to do other work considering age, education and work experience.

Resources

POMS DI 24505.005 Evaluation of Medical Impairments that Are Not Severe

POMS DI 24505.005 sets forth the various considerations in evaluating severity issues. It confirms that although an impairment is not severe if it has no more than a minimal effect on an individual’s physical or mental ability(ies) to do basic work activities, the possibility of several such impairments combining to produce a severe impairment must be considered. When assessing the severity of whatever impairments an individual may have, the adjudicative team must assess the impact of the combination of those impairments on the person’s ability to function, rather than assess separately the contribution of each impairment to the restriction of his or her activity as if each impairment existed alone. A claim may be denied at step two only if the evidence shows that the individual’s impairments, when considered in combination, are not medically severe (i.e., do not have more than a minimal effect on the person’s physical or mental ability to perform basic work activities). If such a finding is not clearly established by medical evidence, however, adjudication must continue through the sequential evaluation process.

At the second step of sequential evaluation, evidence is evaluated to assess the effects of the impairment on the ability to do basic work activities. If the assessment shows the individual to have the physical and mental ability necessary to perform such activities, no evaluation of past work (or of age, education, and work experience) is needed. Rather, it is reasonable to conclude, based on the minimal impact of the impairment(s), that the individual is capable of engaging in SGA. The rationale of denial in the formal determination as to disability must also include a statement regarding the individual’s present functional abilities which supports the finding of a not severe impairment(s).

If the medical evidence establishes only a slight abnormality(ies) which has no more than a minimal effect on a claimant’s ability to do basic work activities, but evidence shows that the person cannot perform his or her past relevant work because of the unique features of that work, a denial at the “not severe” step of the sequential evaluation process is inappropriate. The inability to perform past relevant work in such instances warrants further evaluation of the individual’s ability to do other work considering age, education, and work experience.

Case Law

United States Supreme Court

The severity regulation increases the efficiency and reliability of the sequential evaluation process by identifying at an early stage those claimants whose medical impairments are so slight that it is unlikely they would be found to be disabled even if their age, education, and experience were taken into account. Bowen v. Yuckert, 482 U.S.137, 153, 107 S.Ct. 2287, 2297, 96 L.Ed.2d 119 (1987).

First Circuit

Under Social Security Ruling 85-28, a claim may be denied at step two for lack of a severe impairment only where the medical evidence establishes only a slight abnormality or combination of slight abnormalities that 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. Barrientos v. Secretary of Health and Human Servs., 820 F.2d 1, 2 (1st Cir. 1987). Social Security Ruling 85-28 clarifies that the step two severity requirement is intended “to do no more than screen out groundless claims.” McDonald v. Secretary of Health and Human Servs., 795 F.2d 1118, 1124 (1st Cir. 1986).

Second Circuit

A step two analysis can do no more than “screen out de minimus claims.” Pickering v. Chater, 951 F. Supp. 418, 424 (S.D.N.Y. 1996), citing Dixon v. Shalala, 54 F.3d 1019, 1030 (2d Cir. 1995) (finding that the Commissioner misapplied the severity step between 1976 and 1983 and ordering the readjudication of class member claims).

A severe impairment is one that imposes “more than a minimal restriction on a person’s ability to engage in basic work activities.” Torres v. Shalala, 938 F.Supp. 211, 215 n. 8 (S.D.N.Y. 1996).

Third Circuit

The step two severity standard is not intended to screen out significant disabilities. Bailey v. Sullivan, 885 F.2d 52, 56-57 (3d Cir. 1989).

Fourth Circuit

The establishment of “severity” is ordinarily not a difficult hurdle for the claimant to clear: “[A]n impairment can be considered as ‘not severe’ only if it is 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.” Albright v. Commissioner of Social Sec. Admin., 174 F.3d 473, 478 n. 1 (4th Cir. 1999), citing Evans v. Heckler, 734 F.2d 1012, 1014 (4th Cir. 1984).

The Fourth Circuit law provides that “an impairment can be considered as ‘not severe’ only if it is 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.” Evans v. Heckler, 734 F.2d 1012, 1014 (4th Cir. 1984).

Fifth Circuit

The Fifth Circuit assumed that the ALJ applied an improper standard for determining severity where the ALJ adverted only to the literal terms of 20 C.F.R. § 404.1520(c). Loza v. Apfel, 219 F.3d 378, 392-93 (5th Cir. 2000). The court further held that the ALJ should have either set forth the standard as it was construed in Stone v. Heckler, 752 F.2d 1099 (5th Cir. 1985) or another Fifth Circuit decision, or expressly stated that an impairment could be considered as not severe only if it was a slight abnormality having such minimal effect on an individual that it would not be expected to interfere with the individual’s ability to work, irrespective of age, education or work experience. Id.

An impairment can be considered as not severe only if it is a slight abnormality that has 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. Spellman v. Shalala, 1 F.3d 357 (5th Cir. 1993), citing Estran v. Heckler, 745 F.2d 340, 341 (5th Cir. 1984). As stated by the Spellman Court, in Stone v. Heckler, 752 F.2d 1099 (5th Cir. 1985), the Fifth Circuit stated that unless the correct standard was used in determining the severity of an impairment, the claim must be remanded to the Commissioner for reconsideration.Id. The court concluded that the Commissioner must indicate in his opinion that it evaluated severity in accordance with Estran and Stone. The court further noted that it would assume that the ALJ and Appeals Council applied an incorrect standard to the severity requirement unless the correct standard was set forth by reference to the Stone opinion or another of the same effect, or by an express statement that the proper construction was used. Id.

Sixth Circuit

An impairment can be considered non-severe only if it could constitute a “slight abnormality which has such a minimal effect on the individual that it would not be expected to interfere with an individual’s ability to work, irrespective of age, education and past work experience.” Farris v. Secretary of Health and Human Servs., 773 F.2d 85, 89-90 (6th Cir. 1985).

Seventh Circuit

The Seventh Circuit rejected a claimant’s argument that an ALJ was required to find that the claimant suffered from a severe mental impairment simply because one medical source opined that she often suffered from deficiencies of concentration. Nelson v. Apfel, 210 F.3d 799, 802-03 (7th Cir. 2000). The court reasoned that applicable regulations or SSR 96-3p did not equate the rating of “often” with a severe impairment as defined by a “significant limit” in a person’s ability to do basic work activities. The court added that because “we do not know what [the medical source] meant by ‘often’ . . . we conclude that the district court did not abuse its discretion when it remanded this case to the ALJ for further proceedings to resolve factual conflicts in the record.” Id.

Eighth Circuit

The Eighth Circuit held that the ALJ erred in not acknowledging the correct severity standard. Caviness v. Massanari, 250 F.3d 603 (8th Cir. 2001). The court further found that this error was not “harmless” and declined to make a finding of severity in “the first instance.” Id. at 605.

In Simmons v. Massanari, 264 F.3d 751 (8th Cir. 2001), the Eighth Circuit held that substantial evidence supported the determination that the claimant did not suffer from a severe impairment or combination of impairments prior to the expiration of his insured status. Id. at 755.

The Eighth Circuit rejected a claimant’s argument that reversal was necessary because the ALJ applied the wrong standard for determining severity. Johnston v. Apfel, 210 F.3d 870, 873 (8th Cir. 2000). The court reasoned that “[a]lthough the ALJ’s decision referred to the ‘no significant limitation’ standard instead of the ‘no more than a minimal effect’ standard, any error was harmless because it was undisputed that the district court used the correct ‘more than a minimal effect’ standard.” Id.

The Eighth Circuit held that the lack of any medically necessary restrictions in the record supported the ALJ’s finding that the claimant’s impairments were not severe. Mittlestedt v. Apfel, 204 F.3d 847, 852 (8th Cir. 2000).

In Gilbert v. Apfel, 175 F.3d 602 (8th Cir. 1999), the Eighth Circuit held that the ALJ’s conclusory finding that the claimant’s arthritis and carpal tunnel were non-severe impairments was not supported by the VE’s testimony that a manipulative limitation produced by these conditions would render the claimant unemployable. Id. at 604.

The regulations define a severe impairment as one that significantly limits the claimant’s physical or mental abilities to do basic work activities that are defined as the “abilities and aptitudes necessary to do most jobs.” Gwalthney v. Chater, 104 F.3d 1043, 1045 (8th Cir. 1997).

An impairment is non-severe when it has no more than a minimal effect on the claimant’s ability to work. Nguyen v. Chater, 75 F.3d 429, 431 (8th Cir. 1996). Denial of benefits at step two of the sequential evaluation process is justified only in cases where the claimant’s medical impairments are so slight that it is not likely that the claimant would be found disabled even if his or her vocational factors of age, education, and work experience were taken into consideration. Id.

The sequential analysis may be terminated at step two only when an impairment or combination of impairments would have “no more than a minimal effect on the claimant’s ability to work.” Henderson v. Sullivan, 930 F.2d 19, 21 (8th Cir. 1991), citingHudson v. Bowen, 870 F.2d 1392, 1396 (8th Cir. 1989).

Ninth Circuit

In Edlund v. Massanari, the Ninth Circuit held that the ALJ erred in finding that the claimant failed to demonstrate a severe mental impairment under step two of the five-step sequential evaluation process. Edlund v. Massanari, 253 F.3d 1152, 1159 (9th Cir. 2001). In finding that the claimant’s mental impairment was not severe, the ALJ “appears to have applied a more stringent legal standard than is mandated by law.” Id.at 1158. The step two inquiry is intended to be “‘a de minimis screening device to dispose of groundless claims.’” Id., quoting Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996).

The Ninth Circuit held in Bustamante v. Massanari, 262 F.3d 949 (9th Cir. 2001) that to the extent the ALJ determined that the claimant’s mental impairments were not severe regardless of the impact of alcoholism, the conclusion was not supported by substantial evidence. Id. at 955. The court noted that every psychiatrist or psychologist who examined the claimant found significant mental problems and that the evidence as a whole “overwhelmingly” supported his claim that he suffered from a severe mental impairment. Id. at 956.

The inquiry at step two is a “de minimus screening device to dispose of groundless claims.” Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996).

Tenth Circuit

The Tenth Circuit recently reiterated that “although a severe impairment must ‘significantly limit an individual’s physical or mental ability to do basic work activities,’ 20 C.F.R. § 404.1521, we have held that this is a ‘de minimus’ showing at step two of the five-step process.” Grogan v. Barnhart, 399 F.3d 1257, 1263 (10th Cir. 2005), citing Hawkins v. Chater, 113 F.3d 1162, 1169 (10th Cir. 1997) (citing Williams v. Bowen, 844 F.2d 748, 751 (10th Cir. 1988)).

Step two requires a “de minimis” showing of impairment. Hinkle v. Apfel, 132 F.3d 1349, 1352 (10th Cir. 1997). However, the claimant must show more than the mere presence of a condition or ailment. Id., citingBowen v. Yuckert, 482 U.S. 137, 153, 107 S.Ct. 2287, 2297, 96 L.Ed.2d 119 (1987) (holding step two was designed to identify “at an early stage” claimants with such slight impairments they would be unlikely to be found disabled even if age, education, and experience were considered).

At step two, a claimant is required only to make a “de minimus showing” that his or her medically determinable impairments, in combination, are severe enough to significantly limit his or her ability to perform work-related activity. Williams v. Bowen, 844 F.2d 748, 750-51 (10th Cir. 1988).

Where the record showed that the claimant suffered from joint disease or fibromyalgia, as well as chronic fatigue, migraines or chronic headaches, depression, and reflux disorder, the Tenth Circuit held that the ALJ’s determination that the claimant’s impairments were not severe was not based on substantial evidence. Langley v. Barnhart, 373 F.3d 1116, 1123-24 (10th Cir. 2004).

Eleventh Circuit

Where substantial medical evidence supported a conclusion that the claimant manifested few symptoms of sickle cell anemia and that her cognitive, social, and motor development were normal or close to normal during the relevant time period, the ALJ properly found that sickle cell anemia was not a severe impairment. Wilson v. Apfel, 179 F.3d 1276, 1278 (11th Cir. 1999). The court defined a severe impairment as an impairment “that is more than ‘a slight abnormality or a combination of slight abnormalities that causes no more than minimal functional limitations.’” Id.

An impairment is not severe if the abnormality is so slight and its effect so minimal that it would clearly not be expected to interfere with the individual’s ability to work, irrespective of age, education, or work experience. Brady v. Heckler, 724 F.2d 914, 920 (11th Cir. 1984).

The severity step is a threshold inquiry that allows only “claims based on the most trivial impairments to be rejected.” McDaniel v. Bowen, 800 F.2d 1026, 1031 (11th Cir. 1986). The claimant’s burden of showing severity is mild. A claimant “need show only that [his or] her impairment is not so slight and its effect is not so minimal.” Id.

A claimant who establishes the inability to perform past work activities has a severe impairment. Flynn v. Heckler, 768 F.2d 1273, 1275 (11th Cir. 1985).