Johnson v. Social Security Administration, Commissioner

Filing 13

MEMORANDUM OPINION. Signed by Judge Abdul K Kallon on 04/19/13. (CVA)

FILED
2013 Apr-19 AM 11:36
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
NORTHWESTERN DIVISION
JARVIS D. JOHNSON,
Plaintiff,
vs.
SOCIAL SECURITY
ADMINISTRATION,
COMMISSIONER,
Defendant.

)
)
)
)
)
)
)
)
)
)
)

Civil Action Number
3:12-cv-2438-AKK

MEMORANDUM OPINION
Plaintiff Jarvis D. Johnson (“Johnson”) brings this action pursuant to
Section 205(g) of the Social Security Act (“the Act”), 42 U.S.C. § 405(g), seeking
review of the final adverse decision of the Commissioner of the Social Security
Administration (“SSA”). 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, AFFIRMS the decision denying
benefits.
I. Procedural History
Johnson filed his applications for Title II disability insurance benefits and
Title XVI Supplemental Security Income on April 19, 2010, alleging a disability
Page 1 of 12

onset date of June 1, 2006 due to back and leg pain, poor vision, and arthritis in
his hands. (R. 130-144, 195). After the SSA denied his application on July 29,
2010, Johnson requested a hearing. (R. 56-57, 84). At the time of the hearing on
June 23, 2011, Johnson was 52 years old, had a tenth grade education, and past
relevant light and unskilled work as a fast food worker. (R. 24, 172, 205).
Johnson has not engaged in substantial gainful activity since June 1, 2006. (R. 19,
223).
The ALJ denied Johnson’s claim on August 19, 2011, which became the
final decision of the Commissioner when the Appeals Council refused to grant
review on September 20, 2011. (R. 1-5, 26). Johnson then filed this action
pursuant to section 1631 of the Act, 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
Page 2 of 12

(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
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 impairments 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
Page 3 of 12

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
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). 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).
Page 4 of 12

IV. The ALJ’s Decision
In performing the Five Step sequential analysis, the ALJ initially
determined that Johnson had not engaged in substantial gainful activity since his
alleged onset date and therefore met Step One. (R. 19). Next, the ALJ
acknowledged that Johnson’s severe impairment of chronic back pain with
radiation into the left leg met Step Two. (R. 20). The ALJ then proceeded to the
next step and found that Johnson did not satisfy Step Three since he “does not
have an impairment or combination of impairments that meets or medically equals
the severity of one of the listed impairments.” (R. 21). 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 Johnson
had the residual functional capacity (“RFC”) to “perform the full range of medium
work.” (R. 21). In light of Johnson’s RFC, the ALJ determined that Johnson was
“capable of performing past relevant work as a fast food worker.” (R. 24).
Therefore, because the ALJ answered Step Four in the negative, the ALJ
determined that Johnson is not disabled. (R. 25); see also McDaniel, 800 F.2d at
1030.
V. Analysis
Johnson states in his Complaint that he seeks “judicial review of a decision
Page 5 of 12

of the Defendant adverse to the Plaintiff.” Doc. 1 at 1. The court has reviewed the
entire record and the ALJ’s decision and finds no error. Therefore, for the reasons
discussed below, the court finds that the ALJ’s decision is supported by
substantial evidence.
A.

Severe vs. non-severe impairments
Again, Johnson alleges disability because of chronic back and leg pain, poor

vision, and arthritis. The ALJ determined that Johnson’s chronic back and leg
pain are severe impairments under 20 C.F.R. §§ 404.1520(c) and 416.920(c), but
that Johnson’s poor vision and arthritis are non-severe.1 (R. 20, 21). Presumably,
Johnson contends that the ALJ erred in failing to find that Johnson’s poor vision
and arthritis are severe impairments. However, Johnson failed to present
sufficient evidence to the ALJ to support his claim. In fact, based on a review of
the scarce medical record before the court, the ALJ’s finding is supported by
substantial evidence.
As it relates to Johnson’s alleged vision impairment, the record contains

1

The ALJ properly assigned “little weight” to non-examining physician Dr. Robert
Helipern’s opinion that Johnson’s back and leg pain were non-severe because “the evidence at
the hearing level shows the claimant’s back and leg pain causes more than minimal limitations
on his ability to do work activity.” (R. 24, 429). The ALJ also found that Johnson’s “medically
determinable mental impairment of estimated mild mental retardation does not cause more than
minimal limitation in the claimant’s ability to perform basic mental work activities and is
therefore non-severe.” (R. 20). The court declines to address this issue, however, because
Johnson did not claim mild mental retardation as a basis for disability.
Page 6 of 12

only two examinations, neither of which supports Johnson’s contentions. The first
examination occurred in 1999 at the Limestone Correctional Facility and it
showed Johnson’s vision at 20/70 in his left eye and 20/25 in his right eye. (R.
342). The second examination occurred in 2010 when consulting examiner Dr.
Patricia Auxier performed a visual examination and recorded Johnson’s vision as
20/50 in his left eye and 20/20 in his right eye. (R. 21, 422). Based on these
examinations, another consulting examiner Dr. M. Clarke Woodfin, Jr. noted that
Johnson “has [a] near glasses prescription only.”2 (R. 342, 389). In short, the
record fails to support Johnson’s allegation of disabling vision. Therefore, the
ALJ’s finding that Johnson’s vision is non-severe is supported by substantial
evidence.
Similarly, the record fails to support Johnson’s contentions that he suffers
from disabling arthritis. As the ALJ properly noted, Dr. Woodfin noted “no
arthritic changes . . . in his hands” and full range of motion “in all joints without
apparent discomfort, specifically including the shoulders and upper extremities,”
and Dr. Auxier reported normal dexterity, strength, and grip in the upper
extremities. (R. 390, 423). Nothing in Drs. Woodfin’s and Auxier’s evaluations
2

While the ALJ assigned “little weight” to Dr. Woodfin’s opinion because his treatment
notes regarding Johnson’s pain are inconsistent with his opinion, as discussed infra in section B.,
the court nonetheless considers Dr. Woodfin’s objective assessments of Johnson’s vision and
arthritis since it is consistent with the record as a whole.
Page 7 of 12

or any other documents in the record supports Johnson’s contention that he has
disabling arthritis. Therefore, the ALJ’s finding that Johnson’s arthritis is a nonsevere impairment is supported by substantial evidence.
B.

Johnson’s RFC is supported by substantial evidence
The ALJ determined that Johnson has an RFC to perform a full range of

medium work, including his past relevant work as a fast food worker. (R. 24).
Presumably, Johnson disagrees with this RFC. However, the meager medical
evidence fails to support Johnson’s contention that he has disabling pain.
Johnson’s medical record begins with the health record from the Alabama
Department of Corrections (“ADOC”), which, unfortunately for Johnson, does not
support his disability claim. As the ALJ correctly noted, “while in prison
[Johnson] did not seek pain medication or treatment in regards to any type of
pain.” (R. 23). Rather, the ADOC record consists primarily of Johnson’s mental
evaluations, urological consultations, and an eye examination. (R. 326-383).
Furthermore, Johnson testified that he worked in the kitchen without restrictions
during his incarceration from 2006-2009. (R. 37, 50).
The rest of the medical record also fails to support the pain Johnson alleges.
For example, in January 2010, Dr. Woodfin reported that Johnson is without
tenderness or deformity in his spine, “sat 10 minutes . . . without getting up and
Page 8 of 12

moving around,” had an “erect” gait without a limp, “arises from sitting and sits
down in a normal fashion at [a] normal speed,” “moves about the room without
apparent physical limitation,” “stands well on either leg alone,” walks well in
tandem and on his toes and walks fair on his heels, and “goes from sitting to
supine to sitting by contracting the abdominal musculature, not by turning to one
side to let himself up or down with the arms as someone with a bad back problem
might do.” (R. 390). Basically, according to Dr. Woodfin, Johnson had “a painfree examination, by all appearances.” (R. 390). In light of Dr. Woodfin’s
findings, the ALJ correctly gave Dr. Woodfin’s opinion that Johnson’s back pain
“would seem to be an avoidance-type back, e.g., if the claimant avoids frequent
bending and heavy lifting he should get along fairly well” “little weight” because
the opinion “appears to be inconsistent with his examination and notations.” (R.
24, 390, 391).
Finally, in July 2010, Dr. Auxier evaluated Johnson and reported that
Johnson had no lumbar spine spasms or deformities, a slow and deliberate gait
with a limp, the ability to “partially squat down and get back up” but cannot heel
or toe walk, decreased strength in the “left lower extremity at 3/4 compared to 4/4
on the right,” normal range of motion in the hips, knees, and ankles, and 80%
flexion in the lumbar spine. (R. 423). Consequently, Dr. Auxier diagnosed
Page 9 of 12

Johnson with “chronic back pain with radiation down into his left leg with mild
atrophy associated with the left calf.” (R. 424). Although the ALJ failed to assign
weight to Dr. Auxier’s opinion, the court notes that there is nothing in the
diagnoses that is inconsistent with the ALJ’s finding that Johnson can perform
medium work and his past relevant work as a fast food worker. Therefore, based
on the record before the court, the ALJ’s opinion is supported by substantial
evidence.
C.

Johnson’s credibility
Finally, the ALJ considered also Johnson’s credibility and found that

Johnson’s alleged limitations “appear to be very inconsistent with his daily
activities and thus do not lend to the credibility of the claimant’s allegations.” (R.
23). The court agrees. As the ALJ noted, Johnson stated in a functional report
that he watches television, attends church regularly, plays cards with friends,
cooks meals, and mows the yard. (R. 23, 249, 257). Also, Johnson testified that
he picks up cans and sells them, lives alone, and works for a neighbor by cleaning
her backyard after her dog, shaping her hedges, vacuuming her car, and planting
her flowers. (R. 23-24, 40). As the ALJ pointed out, these activities are generally
inconsistent with Johnson’s contention of disabling pain. To make matters worse
for Johnson, as the ALJ stated, Johnson testified that he “could take a part time
Page 10 of 12

job” and has not succeeded in obtaining one because “[t]hey tell me well I’m an
ex-convict, the jobs I’m trying to get they won’t hire ex-convicts.” (R. 22, 49).
Johnson’s inability to get work because of his status as a felon, while unfortunate,
does not establish that he has a disability. Finally, Johnson also hurt his disability
claim when he testified that he tells prospective employers that he can only work
part-time hours to ensure that he does not adversely impact his disability claim:
“[I] told them that I’m trying to draw this [disability] here. I can’t make more than
I draw and if I get a part time job, about 15-20 hours I would be all right.” (R. 50).
Contrary to Johnson’s contentions in his disability claim, it is clear from
Johnson’s testimony that he has the physical ability to work and, in fact, does so
for his neighbor. To the extent that Johnson is unable to obtain regular
employment, his own testimony makes clear that it is either because of his attempt
to manipulate the system to receive disability payments or because some
employers are put off by his status as a felon. To no surprise, based on the
inconsistencies between Johnson’s testimony and his claim and the failure of the
record to demonstrate that Johnson’s impairments are disabling, the ALJ found
Johnson’s statements lacked credibility. (R. 23, 24). The court sees no reason to
disturb this finding because it is supported by substantial evidence.

Page 11 of 12

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. The final decision
of the Commissioner is, therefore, AFFIRMED. A separate order in accordance
with this memorandum of decision will be entered.
Done the 19th day of April, 2013.
________________________________
ABDUL K. KALLON
UNITED STATES DISTRICT JUDGE

Page 12 of 12