Keel v. Saul, 986 F.3d 551

Luzenia Keel applied for disability insurance benefits and SSI (filed 2011), alleging multiple physical and mental impairments (back, knee, shoulder, neck injuries; arthritis; hypertension; diabetes; depression; compressed nerves; sleep apnea, etc.).
An ALJ denied benefits; the case was remanded twice administratively and ultimately the Appeals Council denied review, making the ALJ’s third denial the final agency decision.
Keel sued in federal court; the magistrate judge (by consent) affirmed the ALJ and dismissed. Keel appealed to the Fifth Circuit.
On appeal Keel’s principal claim was that the ALJ committed a Stone error at step two by not applying/citing the Stone severity standard and instead relying on SSR 85-28.
Keel also raised a Ripley challenge to the ALJ’s residual functional capacity (RFC) assessment, arguing the ALJ improperly made a medical determination without a medical opinion.
The Fifth Circuit held SSR 85-28 is consistent with Stone and, in any event, any error was harmless because the ALJ proceeded beyond step two and Keel failed to show prejudice; the court affirmed.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Step 2 severity / Stone error	ALJ used wrong severity standard by citing SSR 85-28 rather than Stone; failure to cite Stone creates a presumption of error	SSR 85-28 uses comparable language and the ALJ’s reliance on it did not produce reversible error; ALJ proceeded past step two	SSR 85-28 is consistent with Stone; any failure to cite Stone was harmless because ALJ continued evaluation and Keel showed no prejudice; affirmed
RFC / Ripley error	ALJ made medical determinations about Keel’s work capacity without obtaining a medical opinion, so RFC lacks substantial evidence	Even assuming Ripley error, Keel has not shown prejudice from any omission; RFC is supported by the record and finding of ability to return to past sedentary work	Court assumed arguendo Ripley error but found no prejudice shown; no reversible error

Stone v. Heckler, 752 F.2d 1099 (5th Cir. 1985) (establishes step two severity test)
Salmond v. Berryhill, 892 F.3d 812 (5th Cir. 2018) (reaffirmed Stone severity standard)
Garcia v. Berryhill, 880 F.3d 700 (5th Cir. 2018) (summary of five-step disability analysis)
Taylor v. Astrue, 706 F.3d 600 (5th Cir. 2012) (harmless-error review when ALJ omits Stone at step two)
Snell v. Chater, 68 F.3d 466 (5th Cir. 1995) (ALJ may proceed beyond step two; specific Stone citation not always required)
Frank v. Barnhart, 326 F.3d 618 (5th Cir. 2003) (‘‘inconceivable’’ standard for harmless error)
Ripley v. Chater, 67 F.3d 552 (5th Cir. 1995) (Ripley error requires showing of prejudice)
Shinseki v. Sanders, 556 U.S. 396 (U.S. 2009) (burden on appellant to show error was harmful)
Hampton v. Bowen, 785 F.2d 1308 (5th Cir. 1986) (no reversible error for lack of ‘‘magic words")
Whitehead v. Colvin, 820 F.3d 776 (5th Cir. 2016) (standard of review for Social Security appeals)