Johnson v. Social Security Administration, Commissioner
MEMORANDUM OPINION as more fully set out in order. Signed by Magistrate Judge Herman N Johnson, Jr on 9/15/22. (SPT )
2022 Sep-15 AM 11:38
U.S. DISTRICT COURT
N.D. OF ALABAMA
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
ANTOINE LASHUN JOHNSON,
COMMISSIONER, SOCIAL SECURITY
) Case No. 1:20-cv-02039-HNJ
Plaintiff Antoine Lashun Johnson seeks judicial review pursuant to 42 U.S.C.
§ 405(g) of an adverse, final decision of the Commissioner of the Social Security
Administration (“Commissioner”), regarding his claim for a period of disability and
disability insurance benefits. The undersigned carefully considered the record, and for
the reasons expressed herein, AFFIRMS the Commissioner’s decision. 1
LAW AND STANDARD OF REVIEW
To qualify for benefits, the claimant must be disabled as defined by the Social
Security Act and the Regulations promulgated thereunder. The Regulations define
“disabled” as the “inability to do any substantial gainful activity by reason of any
medically determinable physical or mental impairment which can be expected to result
In accordance with the provisions of 28 U.S.C. § 636(c) and Federal Rule of Civil Procedure 73, the
parties have voluntarily consented to have a United States Magistrate Judge conduct any and all
proceedings, including the entry of final judgment. (Doc. 15).
in death or which has lasted or can be expected to last for a continuous period of not
less than 12 months.” 20 C.F.R. § 404.1505(a). To establish an entitlement to disability
benefits, a claimant must provide evidence of a “physical or mental impairment” which
“results from anatomical, physiological, or psychological abnormalities which are
demonstrable by medically acceptable clinical and laboratory diagnostic techniques.”
42 U.S.C. § 423(d)(3).
In determining whether a claimant suffers a disability, the Commissioner,
through an Administrative Law Judge (ALJ), works through a five-step sequential
evaluation process. See 20 C.F.R. § 404.1520(a)(4). The burden rests upon the claimant
at the first four steps of this five-step process; the Commissioner sustains the burden
at step five, if the evaluation proceeds that far. Washington v. Comm’r of Soc. Sec., 906 F.3d
1353, 1359 (11th Cir. 2018).
In the first step, the claimant cannot be currently engaged in substantial gainful
activity. 20 C.F.R. § 404.1520(b). Second, the claimant must prove the impairment is
“severe” in that it “significantly limits [the] physical or mental ability to do basic work
activities . . . .” Id. at § 404.1520(c).
At step three, the evaluator must conclude the claimant is disabled if the
impairments meet or medically equal one of the impairments listed at 20 C.F.R. Part
404, Subpart P, App. 1, §§ 1.00–114.02. Id. at § 404.1520(d). If a claimant’s impairment
meets the applicable criteria at this step, that claimant’s impairment would prevent any
person from performing substantial gainful activity. 20 C.F.R. §§ 404.1520(a)(4)(iii),
404.1525. That is, a claimant who satisfies steps one and two qualifies automatically for
disability benefits if the claimant suffers a listed impairment. See Williams v. Astrue, 416
F. App’x 861, 862 (11th Cir. 2011) (“If, at the third step, [the claimant] proves that [an]
impairment or combination of impairments meets or equals a listed impairment, [the
claimant] is automatically found disabled regardless of age, education, or work
experience.” (citing 20 C.F.R. §§ 404.1520, 416.920; Crayton v. Callahan, 120 F.3d 1217,
1219 (11th Cir. 1997)).
If the claimant’s impairment or combination of impairments does not meet or
medically equal a listed impairment, the evaluation proceeds to the fourth step, where
the claimant demonstrates an incapacity to meet the physical and mental demands of
past relevant work. 20 C.F.R. § 404.1520(e). At this step, the evaluator must determine
whether the claimant has the residual functional capacity (“RFC”) to perform the
requirements of past relevant work. See id. § 404.1520(a)(4)(iv). If the claimant’s
impairment or combination of impairments does not prevent performance of past
relevant work, the evaluator will determine the claimant is not disabled. See id.
If the claimant succeeds at the preceding step, the fifth step shifts the burden to
the Commissioner to provide evidence, considering the claimant’s RFC, age, education
and past work experience, that the claimant is capable of performing other work. 20
C.F.R. § 404.1512(b)(3), 404.1520(g). If the claimant can perform other work, the
evaluator will not find the claimant disabled. See id. § 404.1520(a)(4)(v); see also 20 C.F.R.
§ 404.1520(g). If the claimant cannot perform other work, the evaluator will find the
claimant disabled. 20 C.F.R. §§ 404.1520(a)(4)(v), 404.1520(g).
The court must determine whether substantial evidence supports the
Commissioner’s decision and whether the Commissioner applied the proper legal
standards. Winschel v. Comm’r of Soc. Sec., 631 F.3d 1176, 1178 (11th Cir. 2011). The court
reviews the ALJ’s “‘decision with deference to the factual findings and close scrutiny of
the legal conclusions.’” Parks ex rel. D.P. v. Comm’r, Social Sec. Admin., 783 F.3d 847, 850
(11th Cir. 2015) (quoting Cornelius v. Sullivan, 936 F.2d 1143, 1145 (11th Cir. 1991)).
Indeed, “an ALJ’s factual findings . . . ‘shall be conclusive’ if supported by ‘substantial
evidence.’” Biestek v. Berryhill, 139 S. Ct. 1148, 1153 (2019) (citing 42 U.S.C. § 405(g)).
Although the court must “scrutinize the record as a whole . . . to determine if the
decision reached is reasonable . . . and supported by substantial evidence,” Bloodsworth
v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983) (citations omitted), the court “may not
decide the facts anew, reweigh the evidence, or substitute [its] judgment” for that of the
ALJ. “[W]hatever the meaning of ‘substantial’ in other contexts, the threshold for such
evidentiary sufficiency is not high.” . . . “Substantial evidence . . . . is ‘more than a mere
scintilla,’ . . . [and] means – and means only – such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.’” Biestek, 139 S. Ct. at 1154
(citations omitted). Therefore, substantial evidence exists even if the evidence
preponderates against the Commissioner’s decision. Moore v. Barnhart, 405 F.3d 1208,
1211 (11th Cir. 2005).
FACTUAL AND PROCEDURAL HISTORY
Mr. Johnson, age 34 at the time of the ALJ hearing, protectively filed an
application for a period of disability and disability insurance benefits on September 10,
2019, alleging disability as of September 1, 2018. (Tr. 179-80). The Commissioner
denied his claims, and Johnson timely filed a request for hearing on December 26, 2019.
(Tr. 80, 110-11). An Administrative Law Judge (“ALJ”) held a hearing on June 11,
2020. (Tr. 45-66). The ALJ issued an opinion on July 1, 2020, denying Johnson’s claim.
Applying the five-step sequential process, the ALJ found at step one that
Johnson did not engage in substantial gainful activity after September 1, 2018, his
alleged disability onset date. (Tr. 12). At step two, the ALJ found Johnson manifested
the severe impairments of degenerative disc disease; hip disorder, including trochanteric
bursitis; obesity; depressive disorder; posttraumatic stress disorder (“PTSD”); and
alcohol addiction disorder.
At step three, the ALJ found that Johnson’s
impairments, or combination of impairments, did not meet or medically equal any
impairment for presumptive disability listed in 20 C.F.R. Part 404, Subpart P, Appendix
1. (Tr. 13).
Next, the ALJ found that Johnson exhibited the residual functional capacity
(“RFC”) to perform light work, with the additional limitations:
The claimant can lift, carry, push and pull up to twenty pounds
occasionally and ten pounds frequently. With normal breaks in an eighthour day, he can sit for six hours, and stand and/or walk for six hours.
He can never climb ladders, ropes, or scaffolds; can occasionally climb
ramps and stairs; and can occasionally balance, stoop, kneel, crouch, and
crawl. The claimant should avoid all exposure to dangerous hazards, such
as unprotected heights and moving machinery. He can understand,
remember, and complete simple instructions; can concentrate and persist
on these tasks for at least two hours at a time; can acceptably relate with
coworkers and supervisors on an occasional basis but should have no
direct contact with the public and would work better with things than with
people; and can adapt to occasional simple work changes in routine. The
claimant requires a cane to ambulate but can use his free hand to lift and
At step four, the ALJ determined Johnson did not retain the ability to perform
his past relevant work as an infantry person, soldier, spray painter, department head, or
forklift operator. (Tr. 20). At step five, the ALJ determined that, considering Johnson’s
age, education, work experience, and RFC, a significant number of other jobs exist in
the national economy that he could perform. (Id.) Accordingly, the ALJ determined
that Johnson has not suffered a disability, as defined by the Social Security Act, since
September 1, 2018. (Tr. 21).
Johnson timely requested review of the ALJ’s decision. (Tr. 176-78). On
October 27, 2020, the Appeals Council denied review, which deems the ALJ’s decision
as the Commissioner’s final decision. (Tr. 1-3). On December 18, 2020, Johnson filed
his complaint with the court seeking review of the ALJ’s decision. (Doc. 1).
In this appeal, Johnson argues the ALJ failed to consider his obstructive sleep
apnea (“OSA”) as a severe impairment, failed to find that he has an impairment that
meets or medically equals an impairment listed in 12.15, improperly considered the
Veterans Affairs disability determination, improperly evaluated the medical evidence,
and failed to consider his nightmares and other sleep disturbances. For the reasons
discussed below, the undersigned concludes those contentions do not warrant reversal.
The ALJ Did Not Err by Declining to Deem Johnson’s Obstructive Sleep
Apnea a Severe Impairment
At step two of the sequential evaluation process, the ALJ found Johnson
manifested the severe impairments of degenerative disc disease; hip disorder, including
trochanteric bursitis; obesity; depressive disorder; PTSD; and alcohol addiction
disorder. (Tr. 12). Johnson argues the ALJ should also have adjudged his obstructive
sleep apnea as a severe impairment.
Step two of the sequential evaluation process, during which the ALJ considers
the medical severity of a claimant’s impairments, constitutes a “‘threshold inquiry’ and
‘allows only claims based on the most trivial impairments to be rejected.’” Schink v.
Comm’r of Soc. Sec., 935 F.3d 1245, 1264-65 (11th Cir. 2019) (citing Phillips v. Barnhart, 357
F.3d 1232, 1240 n.8 (11th Cir. 2004); McDaniel v. Bowen, 800 F.2d 1026, 1031 (11th Cir.
An impairment or combination of impairments manifests as “non-severe” if it
“does not significantly limit [the claimant’s] physical or mental ability to do basic work
activities.” 20 C.F.R. § 404.1522(a). The term “basic work activities” refers to “the
abilities and aptitudes necessary to do most jobs,” including:
Physical functions such as walking, standing, sitting, lifting,
pushing, pulling, reaching, carrying, or handling;
Capacities for seeing, hearing, and speaking;
Understanding, carrying out, and remembering simple instructions;
Use of judgment;
Responding appropriately to supervision, co-workers and usual
work situations; and
Dealing with changes in a routine work setting.
20 C.F.R. § 404.1522(b). Thus, an ALJ should characterize an impairment as non-severe
“only 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.” Schink, 935 F.3d at 1265 (citing McDaniel, 800 F.2d at
The ALJ did not include obstructive sleep apnea among Johnson’s severe
impairments because he assessed the condition as “well controlled with CPAP
titration,” and there exists “no evidence of significant limitations that stem from this
condition.” (Tr. 13). Johnson disputes that finding, as he “has a history of sleep
disturbance, daytime sleepiness, and snoring for which sleep studies revealed a diagnosis
of sleep apnea.” (Doc. 16 at 14).
To the contrary, the mere diagnosis of sleep apnea does not necessarily connote
a disabling impairment, or even a severe impairment, as the functional effect of a
claimant’s impairments, not the mere existence of the impairments themselves, governs
the assessment of an impairment. See Moore, 405 F.3d at 1213 n.6 (citing McCruter v.
Bowen, 791 F.2d 1544, 1547 (11th Cir. 1986)) (“To a large extent, Moore questions the
ALJ’s RFC determination based solely on the fact that she has varus leg instability and
shoulder separation. However, the mere existence of these impairments does not reveal
the extent to which they limit her ability to work or undermine the ALJ’s determination
in that regard.”); Mansfield v. Astrue, 395 F. App’x 528, 531 (11th Cir. 2010) (finding
diagnosis insufficient to establish disability); Osborn v. Barnhart, 194 F. App’x 654, 667
(11th Cir. 2006) (While a doctor’s letter reflected diagnoses, “it does not indicate in any
way the limitations these diagnoses placed on [the claimant’s] ability to work, a requisite
to a finding of disability.”).
Moreover, the diagnosis of sleep apnea preceded Johnson’s treatment with a
CPAP machine, which adequately controlled his symptoms. During the administrative
hearing, the ALJ asked Johnson whether he could sleep with his CPAP, and Johnson
responded, “I don’t have any problems. The only problems I have is the nightmares.”
Johnson also asserts “[h]is snoring and fatigue have been noted to be severely
increased with PTSD symptoms.” (Doc. 16 at 14). As the record portrays, Johnson
asked the VA medical clinic on March 25, 2020, “if [the] provider who read his sleep
study results would be agreeable to providing a letter stating that his service-connected
disability of PTSD aggravates his Obstructive Sleep Apnea because studies have shown
that PTSD symptoms severity increased the risk of snoring and fatigue.” (Tr. 449).
On March 30, 2020, Dr. Ripu Jindal, the attending physician, stated in a treating
As per records, I read the veteran’s sleep study in 2018. Sleep apnea is
common among veterans with PTSD. There is also evidence that PTSD
makes it difficult to treat sleep apnea. Patients with PTSD seem to be
more likely to have difficulty tolerat[ing] the mask for positive pressure
therapy, which is the commonest form of treatment for sleep apnea.
There is also evidence to suggest that untreated sleep apnea can adversely
On March 31, 2020, Mauricia C. Timmons, a Psychiatric Mental Health and
Family Nurse Practitioner for the Department of Veterans Affairs, wrote a letter
Mr. Johnson served on active duty in the U.S. Marine Corps. He is
currently service-connected for PTSD at 50%. Veteran has been
diagnosed with obstructive sleep apnea by Dr. R. Jindal, psychiatrist,
BVAMC, Sleep Clinic, treated by Continuous Positive Airway Pressure
(CPAP) since April 18, 2018. The veteran’s service-connected PTSD is
related to a motor vehicle accident (MVA) which occurred while serving
on active duty. MVA resulted in loss of consciousness (LOC)
approximately 3 hours. Veteran was symptomatic for retrograde amnesia
and post-traumatic amnesia.
The PTSD symptoms suffered by Mr. Johnson includes [sic] flashbacks,
nightmares, intrusive thoughts/memories, re-experiencing the trauma,
avoiding thoughts/feeling regarding accident, inability to remember
trauma details, anhedonia, irritability, decreased concentration,
hypervigilance, and hyper-startle response. Veteran’s obstructive sleep
apnea is more likely than not secondary to his service-connected PTSD.
Researchers have shown an increase in the intensity and frequency of sleep
disturbances with active duty personnel and veterans diagnosed with
PTSD. Medical literature strongly supports a correlation between sleep
apnea and PTSD.
The ALJ considered Ms. Timmons’ letter, but he observed that “Ms. Timmons’
notation of the association between the two conditions is not really an opinion
regarding the claimant’s capabilities and is simply noted as a statement that has been
considered in formulating this decision.” (Tr. 19). The ALJ correctly characterized the
letter as providing only generalizations about the connection between obstructive sleep
apnea and PTSD, not any specific assessments about the limitations Johnson suffered
as a result of the apnea. The record contains Johnson’s repeated reports of sleep
disturbances, but he attributed those disturbances to nightmares, not to obstructive
sleep apnea. (Tr. 229-30, 328, 559, 567, 647, 709). VA monitoring notes report that
the CPAP device improved Johnson’s condition. (Tr. 346, 355, 529, 711).
The record contains no evidence that Johnson’s obstructive sleep apnea causes
limitations in his ability to perform work activities.
Therefore, substantial evidence
supports the ALJ’s finding that obstructive sleep apnea did not constitute a severe
impairment. See Freeman v. Comm’r, Soc. Sec. Admin., 593 F. App’x 911, 914 (11th Cir.
2014) (“Mr. Freeman has not cited to any medical evidence showing that his back pain
significantly limits his ability to perform work activities.”).
The ALJ Did Not Err by Finding Johnson Does Not Have an Impairment
That Meets or Medically Equals an Impairment Listed in 12.15
At step three of the sequential evaluation process, the ALJ found Johnson’s
“mental impairments, considered singly and in combination, do not meet or medically
equal the criteria of listing[ ] . . . 12.15.” (Tr. 13). Johnson argues he has mental
impairments that meet or equal the listing.
Listing 12.15 describes “[t]rauma- and stressor related disorders” as
disorders . . . characterized by experiencing or witnessing a traumatic or
stressful event, or learning of a traumatic event occurring to a close family
member or close friend, and the psychological aftermath of clinically
significant effects on functioning. Symptoms and signs may include, but
are not limited to, distressing memories, dreams, and flashbacks related to
the trauma or stressor; avoidant behavior; diminished interest or
participation in significant activities; persistent negative emotional states
(for example, fear, anger) or persistent inability to experience positive
emotions (for example, satisfaction, affection); anxiety; irritability;
aggression; exaggerated startle response; difficulty concentrating; and
20 C.F.R. 404, Subpt. P, App. 1, Pt. A2 § 12.00(B)(11).
Listing 12.15 requires a claimant to satisfy two distinct subparts:
A. Medical documentation of all of the following:
1. Exposure to actual or threatened death, serious injury, or violence;
2. Subsequent involuntary re-experiencing of the traumatic event (for
example, intrusive memories, dreams, or flashbacks);
3. Avoidance of external reminders of the event;
4. Disturbance in mood and behavior; and
5. Increases in arousal and reactivity (for example, exaggerated startle
response, sleep disturbance).
B. Extreme limitation of one, or marked limitation of two, of the
following areas of mental functioning (see 12.00F) 2:
1. Understand, remember, or apply information (see 12.00E1).
2. Interact with others (see 12.00E2).
3. Concentrate, persist, or maintain pace (see 12.00E3).
4. Adapt or manage oneself (see 12.00E4).
C. Your mental disorder in this listing category is “serious and persistent;”
that is, you have a medically documented history of the existence of
the disorder over a period of at least 2 years, and there is evidence of
1. Medical treatment, mental health therapy, psychosocial support(s),
or a highly structured setting(s) that is ongoing and that diminishes
the symptoms and signs of your mental disorder (see 12.00G2b);
2. Marginal adjustment, that is, you have minimal capacity to adapt to
changes in your environment or to demands that are not already
part of your daily life (see 12.00G2c).
20 C.F.R. 404, Subpt. P, App. 1, Pt. A2 §§ 12.15(A)-(C).
The ALJ first considered whether Johnson’s mental impairments satisfied the
criteria set forth in paragraph B. The ALJ stated,
In understanding, remembering or applying information, the claimant has
a moderate limitation. The claimant can live independently and attend to
his finances without assistance. (See 4E and 6E).
Extreme limitation refers to an inability “to function in [the particular] area independently,
appropriately, effectively, and on a sustained basis.” 20 C.F.R. 404, Subpt. P, App. 1, Pt. A2 §
12.00(F)(2)(e). Marked limitation denotes “functioning in [the particular] area independently,
appropriately, effectively, and on a sustained basis is seriously limited.” Id. at § 12.00(F)(2)(d).
He apparently can shop, drive, and prepare simple meals as well. Despite
some intrusive thoughts, problems in this area appear to be moderate.
In interacting with others, the claimant has a moderate limitation. The
claimant has cited problems with anger and periodic outbursts at times.
However, he indicated that he has friends from the military and cousins
who understand him and that he goes out occasionally and attends church
regularly. (See Exhibit 5F). Problems in this area appear to be moderate.
With regard to concentrating, persisting or maintaining pace, the claimant
has a moderate limitation. The claimant’s activities, including caring for
others, shopping, driving, and managing his home and self-care, indicates
that, despite some preoccupation with past trauma, he experiences at most
moderate limitation in this area.
As for adapting or managing oneself, the claimant has experienced a
moderate limitation. The claimant is independent with self-care and
provides care for others as well. (See Exhibits 4E and 6E). He is able to
prepare meals, manage money, and shop without assistance. Overall,
problems in this area appear to be moderate.
Because the claimant’s mental impairments do not cause at least two
“marked” limitations or one “extreme” limitation, the “paragraph B”
criteria are not satisfied.
The ALJ also consider whether Johnson’s mental impairments met the criteria in
In this case, the evidence fails to establish the presence of the “paragraph
C” criteria. There is nothing in the record that suggests that the claimant
requires an ongoing, highly structured setting due to his mental health
issues or that a change in his environment would cause any type of failure
In response, Johnson contends the ALJ failed “to cite any expert opinion or
medical evidence to support his moderate limitations in all areas of functioning,
apparently relying instead on [his] own interpretation of the testimony and reports of
daily living without direct citation to the record.” (Doc. 18 at 7-8). To the contrary,
substantial evidence depicts the ALJ properly considered Johnson’s disability status
under Listing 12.15.
On June 20, 2019, Suzanne Fischer, Ph.D., in a VA Disability Benefits
Questionnaire, diagnosed Johnson with PTSD and opined he suffered no other mental
(Tr. 201, 203, 214).
Dr. Fischer noted Johnson’s PTSD causes
“[o]ccupational and social impairment with occasional decrease in work efficiency and
intermittent periods of inability to perform occupational tasks, although generally
functioning satisfactorily, with normal routine behavior, self-care and conversation.”
(Tr. 203). As symptoms of PTSD, Dr. Fischer also found that Johnson suffers from
depressed mood, anxiety, chronic sleep impairment, mild memory loss, short and long
term memory impairment, disturbances of motivation and mood, and difficulty in
establishing and maintaining effective work and social relationships. (Tr. 209-10).
However, Dr. Fischer did not find that Johnson exhibited near-continuous panic
or depression affecting his ability to function independently, appropriately, and
Furthermore, Dr. Fischer did not believe Johnson manifested
circumstantial, circumlocutory, or stereotyped speech; intermittently illogical, obscure,
or irrelevant speech; difficulty in understanding complex demands; impaired judgment;
impaired abstract thinking; gross impairment in thought process or communication;
difficulty adapting to stressful circumstances, including work or a work like setting; the
inability to establish and maintain effective relationships; obsessional rituals which
interfere with routine activities; impaired impulse control; grossly inappropriate
behavior; or intermittent inability to perform activities of daily living. (Tr. 209-10).
Dr. Fischer also documented that Johnson arrived at the appointment on time
and unaccompanied. (Tr. 210). In addition, she observed Johnson established good
eye contact during the interview and described him as being verbal, animated, bright,
smiling, and laughed easily. (Id.). Johnson, though, reported he “sees dead people.”
Upon review of Johnson’s medical evidence, Robert Estock, M.D., opined on
October 1, 2019, that Johnson suffered severe depression. (Tr. 68-71). Dr. Estock
determined Johnson has moderate limitations in the categories of understanding,
remembering, or applying information; interacting with others; concentrating,
persisting, or maintaining pace; and adapting and managing oneself. (Tr. 71-72). Dr.
Estock explained Johnson could “attend to simple 1-2 step tasks for at least 2 hours
sufficient to complete an 8 [hour] work day without excessive breaks or supervisions.”
(Tr. 75). Johnson also manifested the ability “to interact on a limited basis with the
public and coworkers and can accept non-threatening direct supervision.” (Tr. 76).
Johnson’s “[w]ork demands should be mostly routine . . . [and] [c]hanges in the work
place should be infrequent and gradually introduced.” (Id.). Finally, Johnson “could
adapt to infrequent, well explained changes . . . [and] would need help with long term
planning and goal setting but not short term planning and goal setting.” (Tr. 77).
After reviewing Johnson’s medical evidence, Peter Sims, M.D., determined on
November 20, 2019, that Johnson suffered severe depression, trauma and stressor
related disorders, and substance addiction disorders. (Tr. 82-88). Like Dr. Estock, Dr.
Sims declared Johnson manifested moderate limitations in the categories of
understanding, remembering, or applying information; interacting with others;
concentrating, persisting, or maintaining pace; and adapting and managing oneself. (Tr.
87). Dr. Sims gave the same account as Dr. Estock when explaining Johnson’s mental
capabilities and limitations. (Tr. 91-92).
Ms. Timmons’ March 31, 2020, letter discussed “[t]he PTSD symptoms suffered
by [Johnson] includes flashbacks, nightmares, intrusive thoughts/memories, reexperiencing . . . trauma, avoiding thoughts/feelings regarding the accident, inability to
hypervigilance, and hyper-startle response.” (Tr. 215). Yet, Ms. Timmons renders no
statement regarding how these symptoms limit Johnson’s mental functions or how
Johnson has minimal capacity to adapt to changes because of these symptoms.
In Johnson’s Function Report, he declared he lives in a house with his family.
(Tr. 229). Johnson explained that when he wakes up, he feels unrested due to sleep
disturbances caused by his PTSD. (Id.). Johnson claims he wakes up every night
because he dreams of himself dying and cannot return to sleep afterwards. (Tr. 230).
Johnson’s unrest leads him to “lay around [sometimes]” or sit at a park. (Tr. 229).
Johnson claims he does not go out alone due to his PTSD. (Tr. 232). He
described going to church every Sunday but needing someone to accompany him. (Tr.
233). Johnson then averred that he does not spend time with others and stays to
himself. (Tr. 233-34). He explained that “any [little] thing makes [him] mad and
trigger[s] [his] PTSD.” (Tr. 234). Accordingly, Johnson reported that his impairments
affect his ability to get along with others. He does not handle stress well and “act[s]
down” when handling changes in his routine. (Tr. 235).
Yet, Johnson reported taking care of his kids and buying them clothes and items
that they need. (Tr. 230). Johnson also prepares his own meals on a monthly basis
such as hot dogs and sandwiches. (Tr. 231). It usually takes him ten minutes to prepare
such meals. (Id.). In addition, it takes Johnson about 20 minutes to make his own bed,
albeit needing encouragement to complete the task. (Id.). Johnson claims he does not
need any reminders to take care of his personal needs and grooming, or to take his
medication. (Tr. 231).
Johnson specified he goes outside once a day and that he drives or rides in a car.
(Tr. 232). Johnson further stated he shops for clothes on his phone once a week. (Tr.
232). He maintains the ability to pay bills, count change, and handle a savings account.
(Id.). Johnson, however, cannot use a checkbook or money orders because he “can[’]t
keep [up] with what[’]s spent.” (Id.).
Johnson also concurred in his Function Report that he “get[s] along” with
authority figures, and he reported never experiencing a discharge from a job due to
“problems getting along with other people.” (Tr. 235). Johnson conveyed that he can
concentrate for two hours but does not finish what he starts. (Tr. 234). He also opined
good proficiency at following written and spoken instructions. (Id.).
Johnson’s mother also completed a Third-Party Function Report. Johnson’s
mother stated that she spends all day with Johnson and that they talk. (Tr. 249).
Johnson’s mother’s Report largely reiterates the responses of Johnson’s Function
Report. (See tr. 249-59). Johnson’s mother’s Report differs in that she claims Johnson
needs to be reminded “once or twice” to go places; he gets along “ok” with authority
figures “as longs as they don’t trigger his PTSD;” he handles stress “badly” and handles
changes in his routine “ok;” and she does not mention that Johnson goes to church.
(Tr. 253, 255).
Based upon the foregoing review, substantial evidence supports the ALJ’s
assessment that the record does not demonstrate extreme limitations or marked
limitations in Johnson’s mental functions, or that Johnson manifests a minimal capacity
to adapt to changes. Thus, substantial evidence supports the ALJ’s finding that Johnson
does not have an impairment that meets or medically equals an impairment listed in
The ALJ Properly Considered Johnson’s VA Disability Rating and the
Medical Opinions from Dr. Fischer and Ms. Timmons
Effective March 27, 2017, the Social Security Administration revised its
regulations regarding the consideration of other agencies’ opinions:
Other governmental agencies and nongovernmental entities – such as the
Department of Veterans Affairs . . . – make disability, blindness,
employability, Medicaid, workers’ compensation, and other benefits
decisions for their own programs using their own rules. Because a
decision by any other governmental agency or a nongovernmental entity
about whether you are disabled, blind, employable, or entitled to any
benefits is based on its rules, it is not binding on us and is not our decision
about whether you are disabled or blind under our rules. Therefore, in
claims filed (see § 404.614) on or after March 27, 2017, we will not provide
any analysis in our determination or decision about a decision made by
any other governmental agency or a nongovernmental entity about
whether you are disabled, blind, employable, or entitled to any benefits.
However, we will consider all of the supporting evidence underlying the
other governmental agency or nongovernmental entity’s decision that we
receive as evidence in your claim in accordance with § 404.1513(a)(1)
20 C.F.R. § 404.1504.
Johnson acknowledges the new regulation governs his claim, but he suggests case
law decided under the previous regulation may still apply. (Doc. 16 at 16-17) (“Prior to
these new regulations, case law in the 11th Circuit provided that a disability rating from
the VA should [be] treated as ‘evidence that should be given great weight.’ . . . While it
remains unclear how that long standing caselaw will be interpreted under the regulations
at 20 C.F.R. § 404.1504, this does not mean [the] ALJ is now permitted to completely
disregard the VA determination and underlying medical evidence upon which that
determination was based.”). However, Supreme Court and Eleventh Circuit authority
dictates that any previous case law requiring deference to – or even discussion of –
another agency’s decision does not apply under the revised regulatory scheme.
A court must afford an agency’s interpretation of a statute “substantial deference
. . . ‘when it appears that Congress delegated authority to the agency generally to make
rules carrying the force of law, and that the agency interpretation claiming deference
was promulgated in the exercise of that authority.’” Gonzales v. Oregon, 546 U.S. 243,
255-56 (2006) (citing Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S.
837, 842-845 (1984); United States v. Mead Corp., 533 U.S. 218, 226-227 (2001)). “A
court’s prior judicial construction of a statute trumps an agency construction otherwise
entitled to Chevron deference only if the prior court decision holds that its construction
follows from the unambiguous terms of the statute and thus leaves no room for agency
discretion.” Nat’l Cable & Telecommunications Ass’n v. Brand X Internet Servs., 545 U.S. 967,
Previous authority does not indicate the rule requiring reviewers to afford great
weight to other agencies’ decisions derived directly from the language of the Social
Security Act. To the contrary, the Social Security Act grants the agency “considerable
authority” to issue interpreting regulations. Barnhart v. Walton, 535 U.S. 212, 225 (2002);
see also 42 U.S.C. § 405(a) (“The Commissioner of Social Security shall have full power
and authority to make rules and regulations and to establish procedures, not
inconsistent with the provisions of this subchapter, which are necessary or appropriate
to carry out such provisions, and shall adopt reasonable and proper rules and
regulations to regulate and provide for the nature and extent of the proofs and evidence
and the method of taking and furnishing the same in order to establish the right to
benefits hereunder.”). Johnson has not asserted that the Social Security Administration
lacked authority to implement the 2017 regulatory revisions, nor has he otherwise called
into question the regulations’ validity.
The revised regulations cannot coexist with the rule requiring deference to other
agency decisions, as the revised regulations explicitly state previous agency decisions do
not bind the Commissioner, and the ALJ need not provide any analysis about those
other decisions. See 20 C.F.R. § 404.1504. Though the Eleventh Circuit has not
explicitly addressed the topic, it observed in Noble v. Comm’r of Soc. Sec., 963 F.3d 1317
(11th Cir. 2020), that “under the new regulation the ALJ no longer analyzes the other
agency’s decision.” Id. at 1324; see also Taylor v. Kijakazi, No. 4:20-CV-1545-AKK, 2021
WL 4820653, at *5 (N.D. Ala. Oct. 15, 2021) (“Noble recognizes that the newer version
of 20 C.F.R. § 404.1504 applies to claims filed on or after March 27, 2017 within the
Eleventh Circuit, and an ALJ no longer must give ‘great weight’ to agency
determinations, particularly under the amended regulations – regulations that instruct
the ALJ not to analyze the other agency’s determination.”). Consistent with this
authority, the court will apply the revised regulatory requirements when assessing the
relevance, if any, of the VA’s determination and related records.
The VA assigned Johnson a 50-percent service-connected disability rating for
PTSD effective June 29, 2017; a 50-percent service-connected disability rating for sleep
apnea effective April 12, 2018; a 10-percent service-connected disability rating for right
hip impairments from June 20, 2014; a 10-percent service-connected disability rating
for left finger impairments from September 26, 2018; and individual unemployability
effective August 9, 2018. (Tr. 37-45). 3
The ALJ considered the ratings, but he noted they “reflect another agency’s
application of its own rules.” Consequently, the ratings warranted “limited evidentiary
value without consideration of the supporting evidence on which the VA based its
rating.” (Tr. 19). After considering all the evidence, the ALJ found the record as a
whole supported his residual functional capacity finding, rather than the VA’s disability
He further stated:
I find the VA finding somewhat consistent with [the medical] evidence
insofar as it suggests moderate mental limitations due to mental
impairments and the ability to do light work with additional postural,
environmental[, and] mental limitations. I . . . do not find [the] VA rating
in this case consistent insofar as one might interpret it to suggest total
disability for several reasons. First, as stated above, the overall medical
evidence of record supports the residual functional capacity set forth in
this decision. Moreover, the VA uses a more deferential standard for
evaluating the credibility of subjective complaints than the SSA. . . .
Additionally, a VA disability rating relies on a consideration of the effects
of a disease or injury on a hypothetical average person’s ability to earn
income without consideration of a specific veteran’s age, education, or
work experience. . . . In contrast, SSA provides an individualized
assessment that focuses on a claimant’s ability to perform work in the
national economy. As part of SSA’s individualized assessment, the [Social
Security Act] requires SSA to consider whether a claimant has worked;
whether the impairment(s) would last at least 12 months or result in death;
and the claimant’s individual, specific residual functional capacity, age,
The ALJ referenced a 50-percent rating for PTSD and a 10-percent rating for Johnson’s finger and
thigh conditions. (Tr. 19). The ALJ relied upon a September 17, 2019, treatment note from the VA
medical clinic and the March 31, 2020, letter from Mauricia Timmons, the VA medical center
Psychiatric Mental Health and Family Nurse Practitioner. (Tr. 384, 715). On April 4, 2020, prior to
the ALJ’s decision, the VA revised Johnson’s ratings to those recited above. (Tr. 37-45). Even though
the ALJ recited outdated ratings, the same general principles apply to the court’s analysis of the ALJ’s
education, and work experience. I have set out elsewhere in this decision
why the claimant’s mental impairments and right hip disorder are severe
impairments but are not so severe as to be disabling, using SSA’s standard
above described. I do not find the VA rating to be fully persuasive for
(Tr. 19). The revised regulations did not require the ALJ to engage in that analysis of
Johnson’s VA ratings; rather, they only required the ALJ to consider the supporting
evidence underlying the VA’s decision.4
Johnson asserts the ALJ failed to consider medical opinion evidence from Dr.
Fischer, an examining psychologist at the VA, and Ms. Timmons, Johnson’s treating
therapist. However, as previously discussed, the ALJ explicitly discussed Ms. Timmons’
March 31, 2020, letter. (Tr. 19, 715). He also alluded to the Disability Questionnaire
Dr. Fischer completed on June 20, 2019. (Tr. 16, 701-14).
Moreover, the ALJ
thoroughly considered Johnson’s VA medical records. (Tr. 16-18). Therefore, pursuant
to the revised regulations, the ALJ properly considered the supporting evidence
underlying the VA’s disability rating decision.
IV. Substantial Evidence Supported the ALJ’s RFC Finding
At step four of the sequential analysis the ALJ formulates a claimant’s RFC by
assessing his or her “ability to meet the physical, mental, sensory, and other
requirements of work.” 20 C.F.R. §§ 404.1545(a)(4), 416.945(a)(4). The claimant’s RFC
Though the ALJ did not need to address Johnson’s VA ratings, the court can discern no error in his
decision to do so. Rather, the ALJ’s discussion is superfluous, and the relevant question under the
revised regulations is whether he considered the supporting evidence underlying the VA’s decision.
represents “the most [he or she] can still do despite [his or her] limitations.” 20 C.F.R.
§§ 404.1545(a)(1), 416.945(a)(1). Assessing a claimant’s RFC lies within the exclusive
province of the ALJ. See 20 C.F.R. §§ 404.1527(d)(2), 416.927(d)(2) (“[T]he final
responsibility for deciding [a claimant’s RFC] is reserved to the Commissioner.”); 20
C.F.R. §§ 404.1546(c), 416.946(c) (“[T]he administrative law judge . . . is responsible for
assessing [a claimant’s] residual functional capacity.”); Oates v. Berryhill, No. 17-0130MU, 2018 WL 1579475, at *8 (S.D. Ala. Mar. 30, 2018) (“The responsibility for making
the residual functional capacity determination rests with the ALJ.”); Del Rio v. Berryhill,
No. 3:16-CV-00489-RFC, 2017 WL 2656273, at *8 (W.D. Tex. June 20, 2017) (“The
ALJ has the sole responsibility of determining Plaintiff’s RFC . . . .”).
Social Security Ruling 96-8p dictates that an RFC assessment must first
determine the claimant’s functional limitations and then address the claimant’s ability
to work on a function-by-function basis, pursuant to the functions described in
paragraphs (b), (c), and (d) of 20 C.F.R. §§ 404.1545 and 416.945. SSR 96-8p, 1996 WL
374184, *1. The ALJ does not need to enumerate every piece of evidence or function
used in his or her determination, but rather must simply portray that he or she
considered the claimant’s medical conditions in totality. Dyer v. Barnhart, 395 F.3d 1206,
1211 (11th Cir. 2005); see also Castel v. Comm’r of Soc. Sec., 355 F. App’x 260, 263 (11th Cir.
2009). Once the ALJ has conducted that determination, the ALJ may then express the
RFC in terms of exertional levels such as sedentary, light, medium, heavy, and very
heavy. SSR 96-8p, 1996 WL 374184, at *1; see Castel, 355 F. App’x at 263; Freeman v.
Barnhart, 220 F. App’x 957, 959 (11th Cir. 2007); see also Bailey v. Astrue, No. 5:11-CV3583-LSC, 2013 WL 531075, *6 (N.D. Ala. Feb.11, 2013).
Johnson argues the ALJ failed to account for his purported nightmares and other
sleep disturbances in the RFC determination, particularly as to excessive daytime
sleepiness. Johnson’s nightmares and other sleep disturbances manifest as symptoms
of his PTSD impairment. In a VA Disability Benefits Questionnaire, Dr. Fischer listed
chronic sleep impairment as a symptom of Johnson’s PTSD and reported that Johnson
has “[r]ecurrent distressing dreams in which the content and/or affect of the dream are
related to . . . traumatic event(s).” (Tr. 708-09, 711). Dr. Fischer’s assessment relies
upon Johnson’s representations as to his symptoms.
Moreover, the record portrays Johnson attributing his sleep disturbances to the
nightmares he experiences.
(Tr. 229, 328, 559, 567, 647).
Johnson claims his
nightmares portray him as dying, in a coffin, or dead. (Tr. 328, 559, 647, 705, 711).
Johnson testified to experiencing these nightmares three to four times a week and
sleeping “[s]omewhere around four hours” each night. (Tr. 59). He further claimed his
nightmares and sleep disturbances cause him to sleep “[n]o more than 30 minutes”
during the day. (Id.).
Hence, the question ensues whether Johnson’s complaints of nightmares and
sleep disturbances necessitated the ALJ’s assessment of those symptoms in reaching his
A three-part “pain standard” applies when a claimant attempts to establish
disability through her own testimony of pain or other subjective
symptoms. Wilson[ v. Barnhart], 284 F.3d [1219,] 1225[ (11th Cir. 2002)].
The pain standard requires evidence of an underlying medical condition
and either objective medical evidence that confirms the severity of the
alleged pain arising from that condition or a showing that the objectively
determined medical condition is of such severity that it can be reasonably
expected to give rise to the alleged pain. Id.
Porto v. Acting Comm’r of Soc. Sec. Admin., 851 F. App’x 142, 148 (11th Cir. 2021). A
claimant’s testimony coupled with evidence that meets this standard suffice “to support
a finding of disability.” Holt v. Sullivan, 921 F.2d 1221, 1223 (11th Cir. 1991) (citation
omitted); see also Hollingsworth v. Comm’r of Soc. Sec., 846 F. App’x 749, 752 (11th Cir. 2021).
Social Security Ruling (“SSR”) 16-3p, effective March 28, 2016, eliminates the
use of the term “credibility” as it relates to assessing the claimant’s complaints of
subjective symptoms and clarifies that the ALJ “will consider any personal observations
of the individual in terms of how consistent those observations are with the individual’s
statements about his or her symptoms as well as with all of the evidence in the file.”
SSR 16-3p, 2016 WL 1119029, *7 (Mar. 16, 2016). An ALJ rendering findings regarding
a claimant’s subjective symptoms may consider a variety of factors, including: the
claimant’s daily activities; symptom location, duration, frequency, and intensity;
precipitating and aggravating factors; type, dosage, effectiveness, and side effects of
medication taken to alleviate the symptoms; and other factors concerning functional
limitations and restrictions due to symptoms. See 20 C.F.R. §§ 404.1529(c)(3), (4),
SSR 16-3p further explains that the ALJ’s decision “must contain specific reasons
for the weight given to the individual’s symptoms, be consistent with and supported by
the evidence, and be clearly articulated so the individual and any subsequent review can
assess how the adjudicator evaluated the individual’s symptoms.” 2016 WL 1119029 at
*9; see also Wilson, 284 F.3d at 1225 (If an ALJ discredits a claimant’s subjective
testimony, the ALJ “must articulate explicit and adequate reasons for doing so.”).
In pertinent part, the ALJ assessed the following impact of Johnson’s PTSD visà-vis the RFC determination:
In analyzing this claim, I note that the claimant has several severe mental
impairments as set forth above, including depressive disorder, PTSD, and
alcohol addiction disorder, but they are not so severe as to be disabling.
In 2019 and 2020, the bulk of the claimant’s treatment at the VA was for
his right hip condition rather than for any mental concerns. . . . The
claimant’s mother filled out a Third Party Function Report regarding the
claimant. She wrote that she spends all day with the claimant, and they
talk. She wrote that the claimant has no problems with his memory,
completing tasks, concentration, understanding, or following instructions.
By her account, he can pay attention for two hours at a time and is good
at following written and spoken instructions. She reported that the
claimant gets along well with authority figures, as long as they do not
trigger his PTSD. Further, the claimant has never been fired or laid off
from a job because of problems with other people. The claimant can
handle changes in routine adequately and apparently does not need any
special reminders to take care of his personal needs and grooming. She
indicated further that he does not need help or reminders to take his
medicine and that he can concentrate sufficiently to prepare his own
meals, perform household chores, drive a car, and go shopping in stores
once a week. Finally, the claimant can reportedly concentrate sufficiently
to pay bills, count change, handle a savings account, use a checkbook, and
fill out money orders. . . .
In his function report, the claimant in [sic] gave roughly the same account
as his mother, except that he unequivocally wrote that he gets along well
with authority figures and that he gets out in public to go to church once
a week. The claimant’s other responses to other questions in his function
report were identical to the answers covered in his mother’s Third Party
Function Report, detailed above. . . .
Further, I note that, in his testimony regarding PTSD, the claimant
acknowledged that throughout the period during which he worked in the
National Guard from 2004 to 2006 and was on active duty with the
military from 2006 through 2008, he was always stationed in the United
States. He was never stationed overseas or in any combat situations.
Consequently, I have concluded that the record fails to reflect any combat
duty as a basis for the PTSD. . . . In addition, in spite of his diagnosis of
PTSD based on earlier experiences from 2004 to 2008 (specifically, an
apparent car accident in 2004), the claimant was evidently still able to work
and earn at above substantial gainful activity levels from 2014 through
2018, at Eissmann Automotive North America. . . .
Although the ALJ does not recount Johnson’s nightmares and sleep disturbances
specifically, the ALJ articulated specific reasons for discounting Johnson’s subjective
testimony concerning the overall intensity and severity of his PTSD and depression
symptoms. The court finds substantial evidence in the record supports the ALJ’s
In completing the VA disability questionnaire on June 20, 2019, Dr. Fischer
reviewed the VA medical evidence of Johnson’s PTSD and depression symptoms. Dr.
Fischer heeded the effects PTSD and depression had upon Johnson (Tr. 708-11),
specifically noting Johnson’s PTSD causes “[o]ccupational and social impairment with
occasional decrease in work efficiency and intermittent periods of inability to perform
occupational tasks. . . .” (Tr. 203, 703). However, Dr. Fischer also concluded that
notwithstanding the PTSD, Johnson “generally function[ed] satisfactorily, with normal
routine behavior, self-care and conversation.” (Id).
The medical evidence generally supports Dr. Fischer’s assessment. The medical
evidence records Johnson’s complaints about nightmare and sleep disturbances on
February 15, 2018 (Tr. 349); August 14, 2019 (Tr. 636, 647); October 17, 2019 (Tr. 574);
December 18, 2019 (Tr. 567); March 19, 2020 (Tr. 521); and April 6, 2020 (Tr. 512).
However, despite the February 15, 2018, medical evidence recording Johnson “had
nightmares every night,” it also reflected “he [was] down to 2 per month that bother
him less.” (Tr. 349). The August 14, 2019, medical evidence demonstrates Johnson
declared “his body [was] getting used to the decreased sleep . . . and it d[id not] bother
him as bad as it did.” (Tr. 328). The March 19, 2020, medical evidence records Johnson
as experiencing only “some sleep problems” despite his frequent nightmares. (Tr. 521).
And on the subsequent April 6, 2020, evaluation, although Johnson reported only two
hours of sleep per 24-hour-period, he declared his sleep quality was “even though [he
did not] sleep much,” and he did not “feel tired” when he awakened. (Tr. 512). He
further described having “all right” energy. (Id.).
To be sure, the medical evidence also chronicles the sleep medication prescribed
for Johnson’s sleep disturbances and nightmares, spanning a period from at least June
2019 to August 2020. (See Tr. 376-78, 513-15, 517, 550-51, 559, 561, 610, 620, 631-32,
650). However, that same record portrays Johnson did not consistently take his
medication, including during a several-month period in the second half of 2019 when
Johnson regrettably confronted his mother’s illness and death. (Tr. 515, 530-31, 559,
561, 581). Johnson’s history of noncompliance with medication prescribed to alleviate
his nightmares and sleep disturbances blunts his claim that those alleged symptoms
significantly affected his functioning. C.f. Grier v. Colvin, 117 F. Supp. 3d 1335, 1336
(N.D. Ala. 2015) (“The Commissioner may deny benefits for the failure to follow
treatment when the claimant, without good reason, fails to follow a prescribed course
of treatment that could restore the ability to work.” (citing Lucas v. Sullivan, 918 F.2d
1567, 1571 (11th Cir. 1990))).
Furthermore, Johnson described the advent of PTSD “symptoms around 2008,”
(tr. 211), yet as the ALJ noted, he obtained and held multiple jobs since experiencing
such symptoms. (Tr. 239, 242-47). Moreover, Johnson declared in his Function Report
that an employer has never fired him or laid him off. (Tr. 235). Indeed, Johnson claims
his employer discharged him from his last job in 2018 due to excessive absences related
to medical appointments, not for excessive daytime sleepiness due to his nightmares
and sleep disturbances. (Tr. 211, 711). Therefore, substantial evidence supports the
ALJ’s RFC determination as to any functions purportedly affected by Johnson’s
nightmares and sleep disturbances.
Johnson also contends the “ALJ does not address or explain why Dr. Estock’s
[and Dr. Sims’s] opinion[s] regarding limited ability to interact with coworkers and
supervisors with non threatening supervision and infrequent, gradual changes in work
routine were left out of the RFC.” (Doc. 16 at 21; Doc. 18 at 8). In his ruling, the ALJ
Dr. Robert Estock reviewed the claimant’s records and opined that he
experiences moderate limitations due to mood disorder. . . . Dr. Peter
Sims also reviewed the claimant’s records and concluded that a
combination of mood disorder, personality disorder, and trauma related
disorder causes moderate limitations to functioning. . . . Dr. Estock’s
opinion is somewhat consistent and persuasive. His failure to identify
trauma related disorder as a severe problem undermines its consistency,
however, since the majority of the mental health related evidence concerns
this condition. It is partially persuasive. I find Dr. Sims’ opinion is more
persuasive, but I altered his proposed limitations to better reflect the
findings of moderate difficulties with functioning.
“‘For claims filed . . . on or after March 27, 2017,’ an [ALJ] must ‘not defer or
give any specific evidentiary weight, including controlling weight, to any medical
opinion(s).” Harner v. Soc. Sec. Admin., Comm’r, 38 F.4th 892, 897 (11th Cir. 2022) (first
alteration in original) (quoting 20 C.F.R. § 404.1520c(a)). “Instead, the new regulation
provides several factors for determining what weight to give a . . . medical opinion.”
Id. “Those factors include the supportability of the medical opinion, its consistency
with other record evidence, the physician’s relationship with the claimant, the
physician’s specialty, and other relevant information, such as the physician’s familiarity
with the other record evidence and with making a claim for disability.” Id. (citing 20
C.F.R. § 404.1520c(c)(1)-(5)). An ALJ must only explain the role of the supportability
and consistency factors in evaluating a medical opinion and may explain how he or she
considered the other factors. 20 C.F.R. § 404.1520c(b)(2).
As recounted by counsel for Johnson, both Dr. Estock and Dr. Sims determined
Johnson “is able to interact on a limited basis with the public and coworkers and can
accept non-threatening direct supervision.” (Tr. 76, 92). In addition, they concluded
that “[c]hanges in [Johnson’s] work place should be infrequent and gradually
introduced.” (Id.). The ALJ altered their “proposed limitations to better reflect the
findings of moderate difficulties with functioning.” (Tr. 19). Thus, the ALJ’s RFC
determination reflects Johnson “can acceptably relate with coworkers and supervisors
on an occasional basis but should have no direct contact with the public and would
work better with things than with people; and can adapt to occasional simple work
changes in routine.” (Tr. 14).
Substantial evidence supports the ALJ’s decision to diverge from Dr. Estock’s
and Dr. Sim’s proposed limitations because, as stated previously, Johnson described the
advent of PTSD “symptoms around 2008,” (tr. 211), yet he obtained and held multiple
jobs since experiencing such symptoms. (Tr. 239, 242-47). Johnson also concurred in
his Function Report that he “get[s] along” with authority figures, and he reported never
experiencing a discharge from a job due to “problems getting along with other people.”
In addition, substantial evidence exists for the ALJ to discount Dr. Estock’s
opinion. As the ALJ explained, Dr. Estock’s “failure to identify trauma related disorder
as a severe problem [for Johnson] undermines” his medical opinion. (Tr. 19). To wit,
Dr. Estock only diagnosed degenerative disc disease and depression as severe problems
for Johnson. (Tr. 71). However, the medical evidence demonstrates Johnson’s
treatment for PTSD since December 4, 2017. (Tr. 303-08, 329-30, 337, 405, 429, 43833
446, 450-454, 460, 502, 511-17, 519-522, 529-36, 558-69, 572-75, 579-85, 634-37, 64653, 701-714). Furthermore, Dr. Sims determined Johnson severely suffers from a
trauma and stressor related disorder vis-à-vis PTSD, along with degenerative disc
disease, depression, and substance addiction. (Tr. 86-88).
Finally, Johnson avers that the ALJ found Gloria L. Sellman’s, M.D., and
Thomas G. Amason’s, M.D., medical opinions “mostly persuasive.”
Specifically, the ALJ opined
Drs. Gloria Sellman and Thomas Amason reviewed the claimant’s records
and concluded that the claimant is limited to light exertion with frequent
postural movements (but no climbing of ladders) and must avoid all
exposure to hazards. . . . These opinions are consistent with the evidence
showing right hip problems and obesity. However, I added additional
postural limitations to accommodate the effects of the claimant’s
combination of ailment on his gait and mobility. In addition, I added the
need for a cane based on Dr. Qureshi’s statement. These opinions are
(Id.). Johnson contends that the “ALJ does not mention or consider the specialty of
these physicians as an anesthesiologist and pediatrician, specialties not involved in
treatment of orthopedic or sleep related medical diagnoses, as called for under 20 C.F.R.
§ 404.1527[c](c)(4).” (Doc. 18 at 9).5
Title 20 C.F.R. § 404.1520c(c)(4) states,
The medical opinion or prior administrative medical finding of a medical
source who has received advanced education and training to become a
specialist may be more persuasive about medical issues related to his or
“For claims filed . . . on or after March 27, 2017, [§ 404.1520c applies]. For claims filed before March
27, 2017, the rules in § 404.1527 apply.” 20 C.F.R. § 404.1520c. Johnson filed his claim on September
10, 2019, thus § 404.1520c applies. (Tr. 179-80).
her area of specialty than the medical opinion or prior administrative
medical finding of a medical source who is not a specialist in the relevant
area of specialty.
Dr. Sellman and Dr. Amason maintain positions as medical consultants. “A
medical consultant is a member of a team that makes disability determinations in a State
agency . . . , or who is a member of a team that makes disability determinations for [the
SSA] when [the SSA] make[s] disability determinations.” 20 C.F.R. § 404.1616. “The
medical consultant completes the medical portion of the case review and any applicable
residual functional capacity assessment about all physical impairment(s) in a claim.” Id.
“The opinions of agency [medical] consultants may be considered medical
opinions, and their findings and evidence are treated similarly to the medical opinion of
any other source.” Gordon v. Saul, No. 8:18-CV-829-T-SPF, 2019 WL 4254470, at *5
(M.D. Fla. Sept. 9, 2019) (citing 20 C.F.R. §§ 404.1513a(b), 416.913a(b)). Pursuant to
this regulatory guidance, the ALJ did not err in considering Dr. Sellman’s and Dr.
Amason’s medical opinions and findings.
Substantial evidence also supports the ALJ’s reliance upon Dr. Sellman’s and Dr.
The VA on August 22, 2019, found Johnson had “[r]ight
trochanteric bursitis” and “[m]ild to moderate degenerative arthropathy involving the
right hip joint superiorly and axially, without marrow edema or subchondral cyst
formation.” (Tr. 467). In addition, the VA found no evidence of an acute fracture,
avascular necrosis, acetabular labral tear, or significant joint effusion. (Id.). Johnson
then reported to the VA on April 14, 2020, that his hip injection from January 2, 2022,
had been 100% effective in alleviating his hip pain. (Tr. 438).
Moreover, “[t]he record demonstrates that the ALJ did not unconditionally
adopt those non-treating opinions because the ALJ found that [Johnson] was more
limited than those opinions concluded.” Cooper v. Comm’r of Soc. Sec., 521 F. App’x 803,
807 (11th Cir. 2013). Johnson points to no other medical evidence to undermine the
persuasiveness of Dr. Sellman’s and Dr. Amason’s medical opinions and findings. In
fact, Johnson states “there are no examining or treating source medical statements in
the record providing an opinion as to physical RFC.” (Doc. 18 at 8-9).
Therefore, the ALJ did not err in his assessment of Johnson’s RFC in this regard
For the foregoing reasons, the court AFFIRMS the Commissioner’s decision.
The court will enter a separate final judgment.
DONE this 15th day of September, 2022.
HERMAN N. JOHNSON, JR.
UNITED STATES MAGISTRATE JUDGE
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