Johnson v. Social Security Administration, Commissioner

Filing 14

MEMORANDUM OPINION. Signed by Judge Abdul K Kallon on 2/26/2014. (PSM)

FILED
2014 Feb-26 AM 09:30
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
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LINDA JOYCE JOHNSON,
Plaintiff,
vs.
CAROLYN W. COLVIN,
COMMISSIONER OF SOCIAL
SECURITY
ADMINISTRATION,
Defendant.

Civil Action Number
2:13-cv-1345-AKK

MEMORANDUM OPINION
Linda Joyce Johnson brings this action pursuant to section 205(g) of the
Social Security Act (“the Act”), 42 U.S.C. §§ 405(g) and 1383(c)(3), seeking
review of the final adverse decision of the Commissioner of the Social Security
Administration (“SSA”). Doc. 1. This court finds that the Administrative Law
Judge’s (“ALJ”) decision—which has become the decision of the
Commissioner—is supported by substantial evidence, and, therefore, will
AFFIRM the decision denying benefits.
I. Procedural History
Johnson filed an application for supplemental security income on November

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2, 2010, and an application for period of disability and disability insurance
benefits on November 3, 2010, alleging a disability onset date of October 4, 2010,
based on arthritis, hepatitis C, depression, alcoholism, a right knee PCL tear,
bilateral carpal tunnel syndrome, and HBP. (R. 22, 125, 132, 153). After the SSA
denied her application, Johnson requested a hearing. (R. 86, 104–14). The ALJ
held a hearing on April 11, 2012. (R. 22, 36). Thereafter, the ALJ denied
Johnson’s claim, which became the final decision of the Commissioner when the
Appeals Council refused to grant review. (R. 1–3, 30). Johnson then filed this
action pursuant to 42 U.S.C. § 1383(c)(3). Doc. 1.
II. Standard of Review
The only issues before this court are whether the record contains substantial
evidence to sustain the ALJ’s decision, see 42 U.S.C. § 405(g); Walden v.
Schweiker, 672 F.2d 835, 838 (11th Cir. 1982), and whether the ALJ applied the
correct legal standards, see Lamb v. Bowen, 847 F.2d 698, 701 (11th Cir. 1988);
Chester v. Bowen, 792 F.2d 129, 131 (11th Cir. 1986). Title 42 U.S.C. §§ 405(g)
and 1383(c) mandate that the Commissioner’s “factual findings are conclusive if
supported by ‘substantial evidence.’” Martin v. Sullivan, 894 F.2d 1520, 1529
(11th Cir. 1990). The district court may not reconsider the facts, reevaluate the
evidence, or substitute its judgment for that of the Commissioner; instead, it must
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review the final decision as a whole and determine if the decision is “reasonable
and supported by substantial evidence.” See id. (citing Bloodsworth v. Heckler,
703 F.2d 1233, 1239 (11th Cir. 1983)).
Substantial evidence falls somewhere between a scintilla and a
preponderance of evidence; “[i]t is such relevant evidence as a reasonable person
would accept as adequate to support a conclusion.” Martin, 849 F.2d at 1529
(quoting Bloodsworth, 703 F.2d at 1239) (other citations omitted). If supported by
substantial evidence, the court must affirm the Commissioner’s factual findings
even if the preponderance of the evidence is against the Commissioner’s findings.
See Martin, 894 F.2d at 1529. While the court acknowledges that judicial review
of the ALJ’s findings is limited in scope, it notes that the review “does not yield
automatic affirmance.” Lamb, 847 F.2d at 701.
III. Statutory and Regulatory Framework
To qualify for disability benefits, a claimant must show “the inability to
engage in any substantial gainful activity by reason of any medically determinable
physical or mental impairment which can be expected to result in death or which
has lasted or can be expected to last for a continuous period of not less than twelve
months.” 42 U.S.C. § 423(d)(1)(A); 42 U.S.C. § 416(i). A physical or mental
impairment is “an impairment that results from anatomical, physiological, or
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psychological abnormalities which are demonstrated by medically acceptable
clinical and laboratory diagnostic techniques.” 42 U.S.C. § 423(d)(3).
Determination of disability under the Act requires a five step analysis. 20
C.F.R. §§ 404.1520(a)-(f), 416.920(a)-(f). Specifically, the Commissioner must
determine in sequence:
(1)

whether the claimant is currently unemployed;

(2)

whether the claimant has a severe impairment;

(3)

whether the impairment meets or equals one listed by the Secretary;

(4)

whether the claimant is unable to perform his or her past work; and

(5)

whether the claimant is unable to perform any work in the national
economy.

McDaniel v. Bowen, 800 F.2d 1026, 1030 (11th Cir. 1986). “An affirmative
answer to any of the above questions leads either to the next question, or, on steps
three and five, to a finding of disability. A negative answer to any question, other
than step three, leads to a determination of ‘not disabled.’” Id. at 1030 (citing 20
C.F.R. § 416.920(a)-(f)). “Once a finding is made that a claimant cannot return to
prior work the burden shifts to the Secretary to show other work the claimant can
do.” Foote v. Chater, 67 F.3d 1553, 1559 (11th Cir. 1995) (citation omitted).

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IV. The ALJ’s Decision
In performing the five step analysis, the ALJ initially determined that
Johnson had not engaged in substantial gainful activity since October 4, 2010, the
alleged onset date, and, therefore, Johnson met Step One. (R. 24). Next, the ALJ
found that Johnson satisfied Step Two because she suffered from the severe
impairments of “degenerative disc disease of the cervical and lumbar spine, a
history of bilateral carpal tunnel syndrome, a history of substance abuse, and
obesity.” Id. The ALJ then proceeded to the next step and found that Johnson
failed to satisfy Step Three because she “does not have an impairment or
combination of impairments that meets or medically equals the severity of one of
the listed impairments.” (R. 25). Although the ALJ answered Step Three in the
negative, consistent with the law, see McDaniel, 800 F.2d at 1030, the ALJ
proceeded to Step Four where he determined that:
[T]he claimant has the residual functional capacity to perform light
work as defined in 20 CFR 404.1567(b) and 416.967(b) except that
she experiences moderate pain with its moderate effect on her ability
to concentrate on an occasional basis in an 8-hour workday. She can
frequently climb stairs or ramps, balance, stoop, crouch, reach,
handle, finger, and feel, but can occasionally kneel or crawl, and can
never climb ladders, ropes or scaffolds.
(R. 25). At the time of the ALJ’s decision, Johnson was 54 years old with the
equivalent of a high school education and past relevant work experience as a
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licensed practical nurse. (R. 28–29, 125). Next, the ALJ determined that Johnson
“is unable to perform any past relevant work.” (R. 28). After considering
Johnson’s age, education, work experience, and RFC, the ALJ determined in Step
Five that “there are jobs that exist in significant numbers in the national economy
that [Johnson] can perform.” (R. 29). Consequently, the ALJ found that Johnson
“has not been under a disability, as defined in the [] Act, from October 4, 2010,
through the date of [the ALJ’s] decision.” (R. 30).
V. Analysis
The court turns now to Johnson’s contentions that the ALJ failed to (1)
properly follow the “slight abnormality” standard in determining Johnson’s severe
impairments; and (2) give proper weight to the opinion of Dr. Jeremy Allen. See
doc. 12 at 4–14. The court addresses each contention in turn.
A.

The ALJ properly followed the “slight abnormality” standard when he
failed to find Johnson’s degenerative disc disease of the thoracic
spine to be a severe impairment.

Johnson contends that the ALJ erred when he “failed to follow the ‘slight
abnormality’ standard in not finding [] Johnson’s degenerative disc disease of the
thoracic spine to be a severe impairment.” Doc. 12 at 3. The court first notes that
Johnson failed to list degenerative disc disease of the thoracic spine as a condition
that limits her ability to work. (R. 153). Regardless, the ALJ’s finding that this
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impairment is not “severe” is supported by substantial evidence.
An impairment must be more than “a slight abnormality or a combination of
slight abnormalities that causes no more than minimal functional limitation.” 20
C.F.R. § 416.924(c). However, the only evidence Johnson cites to support her
assertion that her degenerative disc disease of the thoracic spine is more than a
“slight abnormality” is a diagnostic image from October 4, 2010, that shows
“moderate degenerative changes.” (R. 207). All other medical records reference
lower back and neck pain, but never mention Johnson’s thoracic spine. For
example, one report on October 21, 2010, only addresses Johnson’s lumbar and
cervical spine. (R. 230). Other reports from March 9, 2011, only mention “low
back pain.” (R. 333, 351). In light of this evidence, the ALJ did not err in failing to
list degenerative disc disease of the thoracic spine as a severe impairment. See
Wilson v. Apfel, 179 F.3d 1276, 1278 (11th Cir. 1999) (affirming an ALJ’s finding
that an impairment was not severe where substantial medical evidence showed that
the claimant “manifested few symptoms of the disease”).
Alternatively, even if the ALJ erred in failing to include degenerative disc
disease of the thorasic spine as a severe impairment, “the error was harmless
because the ALJ concluded that [Johnson] had a severe impairment: and that
finding is all that step two requires.” Heatly v. Commissioner of Social Sec., 382
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Fed. App’x. 823, 824–25 (11th Cir. June 11, 2010) (citing Jamison v. Bowen, 814
F.2d 585, 588 (11th Cir. 1987)).
Lastly, the ALJ did not fail to consider the effects of Johnson’s degenerative
disc disease of the thoracic spine in the RFC findings. In fact, the ALJ explicitly
noted that “[t]he severity of back pain alleged is not consistent with the diagnostic
imaging conducted on October 4, 2010 and October 8, 2010, which revealed some
moderate degenerative changes in the spine, but no acute or significant process.”
(R. 27). Even considering the degenerative disc disease of the thoracic spine, the
record fails to establish that Johnson is disabled. Accordingly, the ALJ’s
determination is supported by substantial evidence.
B.

The ALJ gave proper weight to Dr. Allen’s opinion.

Johnson next contends that the ALJ failed to provide good cause for his
rejection of Dr. Jeremy Allen’s opinion. Doc. 12 at 7–14. “[T]he testimony of a
treating physician must be given substantial or considerable weight unless ‘good
cause’ is shown to the contrary.” Lewis v. Callahan, 125 F.3d 1436, 1440 (11th
Cir. 1997) (citing MacGregor v. Bowen, 786 F.2d 1050, 1053 (11th Cir. 1986)).
“‘Good cause’ exists when the: (1) treating physician’s opinion was not bolstered
by the evidence; (2) evidence supported a contrary finding; or (3) treating
physician’s opinion was conclusory or inconsistent with the doctor’s own medical
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records.” Phillips v. Barnhart, 357 F.3d 1232, 1241 (11th Cir. 2004) (citing Lewis,
125 F.3d at 1440). “When electing to disregard the opinion of a treating physician,
the ALJ must clearly articulate its reasons.” Id. (citing Lewis, 125 F.3d at 1440).
Johnson visited Dr. Allen three times. The first visit occurred on February 4,
2011. (R. 181). Thereafter, Dr. Allen prepared a report on March 9, 2011,
assessing Johnson’s RFC. (R. 332–33). In the report, Dr. Allen opined that
Johnson could sit for four hours and stand or walk for one hour during an eighthour work day. (R. 333). Dr. Allen also stated that Johnson could never climb,
could rarely push or pull, stoop, reach, or work around hazardous machinery, and
would be absent for two days per month as a result of her impairments. Id.
Johnson’s second and third visits to Dr. Allen occurred on May 27, 2011, and
September 28, 2011. (R. 342–43, 369–70).
The ALJ clearly articulated his reasons for giving Dr. Allen’s RFC
assessment little weight:
Dr. Allen’s March 9, 2011 assessment of [Johnson’s] pain, however, is
contradicted by her [sic] May 27, 2011 treatment notes from a routine
examination which indicated [Johnson] was in no pain at the time of her
evaluation. Dr. Allen’s opinions as to [Johnson’s] limitations and
severity of [Johnson’s] pain is afforded little weight as it is inconsistent
with his treating records and the medical evidence of record as a whole,
which shows no objective evidence of an impairment capable of giving
rise to disabling pain.

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(R. 28). Substantial evidence supports the ALJ’s reasoning. Dr. Allen’s March 9,
2011 assessment lists conclusory diagnoses in support of its findings. See (R. 333)
(listing multiple trauma, trochanteric bursitis, carpal tunnel, degenerative joint
disease, low back pain, and chronic hepatitis C). Further, Dr. Allen’s records from
Johnson’s May 27, 2011 visit indicate that Johnson’s musculoskelatal examination
was marked as “normal,” and Johnson’s “Pain” was marked as zero. Johnson
argues that this visit also includes diagnoses of low back pain, bursitis,
osteoarthritis, lumbar radiculopathy, and degenerative joint disease. Doc. 12 at 8.
However, it appears as though this list of ailments merely refers to the diagnoses
Dr. Allen made during Johnson’s February 4, 2011 visit, but Johnson does not
provide records from that visit. (R. 342). In other words, Dr. Allen’s records do
not provide the information to support the limitations in the March 9, 2011 report.
Thus, based on Dr. Allen’s records, the substantial evidence supports the ALJ’s
determination to assign little weight to Dr. Allen’s opinion.
Johnson also argues that “the ALJ’s statement that the record ‘shows no
objective evidence of an impairment capable of giving rise to disabling pain’ is
simply incorrect.” Doc. 12 at 8 (quoting (R. 28)). However, as the ALJ notes,
“[t]he severity of back pain alleged is not consistent with diagnostic imaging
conducted on October 4, 2010 and October 8, 2010, which revealed some
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moderate degenerative changes in the spine, but no acute or significant process.”
(R. 27, 207–08, 256–59). Thus, Dr. Allen’s opinion is inconsistent with the record
as a whole. Accordingly, substantial evidence supports the ALJ’s determination.
Alternatively, even if the ALJ failed to articulate his reasons for discrediting
the opinion of Dr. Allen, no basis exists to reverse the ALJ because Dr. Allen
formulated his opinion after only one visit by Johnson. The case law is clear that
the opinion of a one-time examiner is not entitled to the same degree of deference
as a treating physician. McSwain v. Bowen, 814 F.2d 617, 619 (11th Cir. 1987).
This is particularly true when the examiner’s opinion is contradicted by other
medical evidence, as Dr. Allen’s opinion is here. Wainwright v. Comm’r of Soc.
Sec. Admin., 2007 WL 708971, at *2 (11th Cir. Mar. 9, 2007). Accordingly, the
ALJ committed no error in assigning little weight to Dr. Allen’s opinion, even if
he did not properly articulate his reasons for doing so.
VI. Conclusion
Based on the foregoing, the court concludes that the ALJ’s determination
that Johnson is not disabled is supported by substantial evidence, and that the ALJ
applied proper legal standards in reaching this determination. Therefore, the
Commissioner’s final decision is AFFIRMED. A separate order in accordance
with the memorandum of decision will be entered.
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Done the 26th day of February, 2014.

________________________________
ABDUL K. KALLON
UNITED STATES DISTRICT JUDGE

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