Johnston v. Astrue
MEMORANDUM OPINION AND ORDER entered, Upon consideration of the administrative record and the memoranda of the parties, it is ORDERED that the decision of the Commissioner be AFFIRMED and that this action be DISMISSED, as further set out. Signed by Magistrate Judge Bert W. Milling, Jr on 7/11/2012. (clr)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
BRENDA G. JOHNSTON,
MICHAEL J. ASTRUE,
Commissioner of Social Security,:
CIVIL ACTION 11-0692-M
MEMORANDUM OPINION AND ORDER
In this action under 42 U.S.C. § 405(g), Plaintiff seeks
judicial review of an adverse social security ruling which
denied a claim for disability insurance benefits (Docs. 1, 13).
The parties filed written consent and this action has been
referred to the undersigned Magistrate Judge to conduct all
proceedings and order the entry of judgment in accordance with
28 U.S.C. § 636(c) and Fed.R.Civ.P. 73 (see Doc. 18).
argument was waived in this action (Doc. 19).
consideration of the administrative record and the memoranda of
the parties, it is ORDERED that the decision of the Commissioner
be AFFIRMED and that this action be DISMISSED.
This Court is not free to reweigh the evidence or
substitute its judgment for that of the Secretary of Health and
Human Services, Bloodsworth v. Heckler, 703 F.2d 1233, 1239
(11th Cir. 1983), which must be supported by substantial
Richardson v. Perales, 402 U.S. 389, 401 (1971).
substantial evidence test requires "that the decision under
review be supported by evidence sufficient to justify a
reasoning mind in accepting it; it is more than a scintilla, but
less than a preponderance."
Brady v. Heckler, 724 F.2d 914, 918
(11th Cir. 1984), quoting Jones v. Schweiker, 551 F.Supp. 205
(D. Md. 1982).
At the time of the administrative hearing, Plaintiff was
forty-two years old, had completed four years of college
education (Tr. 171), and had previous work experience as a
janitor and a nursing assistant (Tr. 48).
In claiming benefits,
Plaintiff alleges disability due to degenerative disc disease,
bipolar disorder, and obesity (Doc. 13 Fact Sheet).
The Plaintiff filed a protective application for disability
benefits on July 17, 2008 (Tr. 152-56).
Benefits were denied
following a hearing by an Administrative Law Judge (ALJ) who
determined that Johnston was capable of performing past relevant
work as a janitor or housekeeper (Tr. 24-33).
requested review of the hearing decision (Tr. 13-20) by the
Appeals Council, but it was denied (Tr. 1-4).
Plaintiff claims that the opinion of the ALJ is not
supported by substantial evidence.
(1) The ALJ did not properly consider the
opinions and conclusions of her treating physician; (2) the ALJ
did not properly consider her obesity; (3) the ALJ improperly
discredited her testimony; and (4) she is unable to perform
light work (Doc. 13).
Defendant has responded to—and denies—
these claims (Doc. 14).
The relevant medical evidence of record
On September 17, 2008, Johnston was examined by
Psychologist Nina E. Tocci who found her posture and gait normal
and her motor activity unremarkable; her affect was appropriate,
normal, and stable (Tr. 244-48).
Plaintiff was oriented in four
spheres; thought content was appropriate to mood and
Johnston told that Tocci that “[s]he has crying
spells everyday, prefers to isolate, and has difficulty getting
to sleep and staying asleep secondary to auditory
hallucinations” (Tr. 247).
range of intelligence.
Johnston seemed to have average
Tocci diagnosed Plaintiff as having
bipolar disorder with a guarded prognosis.
examination summary was as follows:
The mental status examination revealed
a 40-year-old woman in some distress. Mrs.
Johnston reported that she experiences
episodes of leaving home, driving to distant
locations, arriving to the locations, but
not able to comprehend her goal or purpose,
feelings of euphoria with grandiosity about
her finances, expansive mood, lack of sleep,
and auditory hallucinations. Her erratic
behavior contributed to a felony conviction.
Mrs. Johnston served about two years in
prison and was recently released. She was
given psychotropic medication while in
prison but is not able to afford refills.
It is important to note that her medication
regime is not one that should be
discontinued abruptly. Without appropriate
and immediate treatment, she will continue
to have difficulty making appropriate
decisions, maintaining her self and her
children, and performing job tasks with
A psychiatric review technique form was completed by nonexamining Psychologist Donald E. Hinton on September 25, 2008 in
which he indicated that Johnston suffered from an affective
disorder (bipolar disorder) which would mildly restrict her
activities of daily living, cause moderate difficulties in
maintaining social functioning and cause moderate difficulties
in maintaining concentration, persistence, or place (Tr. 24962).
Hinton also completed a mental residual functional
capacity (hereinafter RFC) assessment in which he indicated that
Plaintiff would be moderately limited in her ability to
understand and remember detailed instructions, carry out
detailed instructions, maintain attention and concentration for
extended periods, interact appropriately with the general
public, and respond appropriately to changes in the work setting
It was also the Psychologist’s opinion that
Johnston should have minimal contact with the general public and
there should be only infrequent changes in the workplace.
On October 4, 2008, Plaintiff was seen by Dr. Malaika
Hakima who noted a “relatively normal, sort of a waddle gait
secondary to obesity” before the examination while during the
examination, it was a slow, guarded, waddling gait (Tr. 269; see
generally Tr. 268-71).
Johnston could squat halfway down.
doctor made detailed notes regarding range of motion
(hereinafter ROM) measures in the spine, hips, knees, ankles,
shoulders, elbows, and wrists; Hakima noted “paravertebral
muscle spasms in the lumbar area, mostly on the right side and
some trigger point tenderness in the trapezius area on the right
side” (Tr. 270).
Plaintiff had full strength in the right hand,
but only 3/5 in the left; muscle bulk, tone and strength were
within normal limits for all extremities.
There was decreased
pinprick sensation in both lower and in the upper left
extremity; deep tendon reflexes were normal in all extremities.
The doctor’s diagnosis was “[r]ecurrent muscle spasms of the
lumbar spine with chronic low back pain and cervical
radiculopathy, probably secondary to degenerative disk disease”
On November 4, 2008, x-rays showed mild degenerative
changes in the lumbar spine; the cervical spine was normal (Tr.
On November 18, 2008, a physical RFC was completed by a
non-medical, non-examining Decisionmaker on behalf of the Social
Security Administration which indicated that Johnston was
capable of lifting and carrying up to fifty pounds occasionally
and up to twenty-five pounds frequently (Tr. 276-83).
opined that Plaintiff could stand, walk, or sit up to six hours
in an eight-hour day; she would be able to use both foot and
The Decisionmaker indicated that Johnston could
balance, kneel, crouch, and crawl frequently and climb stairs or
stoop occasionally, but could never climb a ladder or
Plaintiff was seen at the Mobile County Board of Health on
March 5, 2009 by Dr. Thomasina H. Sharpe for complaints of
neuropathic pain and arthralgias (Tr. 285-96).
that Johnston was in no acute distress; a motor exam
demonstrated no dysfunction.
The doctor’s assessment was knee
joint pain, elevated blood pressure, menopausal disorder,
hyperlipoproteinemia, morbid obesity, diabetic peripheral
neuropathy type II, arthropathy, backache, and neuralgia (Tr.
On April 2, 2009, Dr. Sharpe again noted no acute
distress and that everything was normal (Tr. 288-89).
15, Johnston reported that she was not feeling tired or poorly,
had no headaches, chest pain or discomfort, no abdominal pain or
localized joint pain, and was not depressed; the doctor’s
assessment was esophageal reflux, irritable bowel syndrome, and
inflammatory myopathy (myositis) (Tr. 287-88).
On September 4,
2009, Sharpe noted pain localized to one or more joints,
esophageal reflux, hypersecretory gastropathy, menopausal
disorder, and inflammatory myopathy (Tr. 285-86).
23, Johnston complained of right leg pain; the doctor noted left
hip pain on ambulation and made the following assessment:
backache, bipolar disorder (manic with psychotic features), and
anxiety disorder NOS (Tr. 301-02).
On December 17, 2009, Dr.
Sharpe completed a physical capacities evaluation (hereinafter
PCE) in which she indicated that Plaintiff was capable of
lifting and carrying up to twenty pounds occasionally and ten
pounds frequently and that she could sit for four hours and
stand or walk for two hours during an eight-hour day (Tr. 299).
The doctor further found that Johnston was capable of gross and
fine manipulation frequently and that she could use arm and leg
controls, climb ladders, balance, bend, stoop, and reach
occasionally; she could only rarely operate a motor vehicle and
could never work with or around hazardous machinery.
indicated that Plaintiff’s impairments would cause her to miss
more than four days per month; she specifically listed
Johnston’s impairments as borderline diabetes, bipolar disorder,
chronic pain, arthritis, neuralgia, possible fibromyalgia, and
irritable bowel syndrome.
The doctor also completed a pain form
which stated that Johnston experienced pain to an extent that it
distracted her from daily activities, that physical activity
would greatly increase her pain, and that pain medication side
effects would limit her effectiveness at work (Tr. 298).
At the hearing before the ALJ, Johnston testified that she
was forty-two years old, five foot, four inches tall, and
weighed 232 pounds; although she had a driver’s license, she was
unable to drive (Tr. 40-42).
She had received an associate
degree from the Southeast College of Technology in medical
assisting; she had an additional sixty-four hours of classes in
nursing at Bishop State (Tr. 44-45).
She stated that her memory
is bad and that she could not remember her medical problems on
some days (Tr. 46).
Plaintiff had work experience as a contract
laborer, a janitor doing both light and heavy labor, and a
nursing assistant (Tr. 47-52).
Johnston stated that she was
being treated for fibromyalgia, arthritis, lower back pain,
problems with her legs and back, and bipolar manic depression
She took medications for her psychological problems
which affected her ability to concentrate but she had quit
seeing the psychiatrist and taking those medications several
years earlier (Tr. 55-56).
Plaintiff takes Neurontin1 and
monthly shots of Darvocet2 and Flexeril3 for her fibromyalgia
Johnston testified that she can sit for thirty to
forty minutes, walk only about twenty minutes because of pain in
her right hip and leg and lower back; she can stand for fifteen
minutes (Tr. 61-62, 65).
Johnston testified that she stayed in
bed most of the time; she does not clean, cook, do laundry, or
shop (Tr. 65).
She only leaves the house once a month (Tr. 66).
Error! Main Document Only.Neurontin is used in the treatment of
Physician's Desk Reference 2110-13 (52nd ed. 1998).
Error! Main Document Only.Propoxyphene napsylate, more commonly
known as Darvocet, is a class four narcotic used “for the relief of
mild to moderate pain” and commonly causes dizziness and sedation.
Physician's Desk Reference 1443-44 (52nd ed. 1998).
Error! Main Document Only.Flexeril is used along with “rest and
physical therapy for relief of muscle spasm associated with acute,
painful musculoskeletal conditions.” Physician's Desk Reference 145557 (48th ed. 1994).
Plaintiff can lift about ten pounds (Tr. 67).
She stated that
her pain medications cause memory loss, dizziness, drowsiness,
and forgetfulness (Tr. 67).
She has depression ten-to-twelve
days a month where she does not get out of bed and cries all day
long; she is unable to dress herself (Tr. 67).
is undergoing the manic side of her disorder, she has auditory
hallucinations telling her to hurt herself or family members
After summarizing the medical evidence of record, the ALJ
determined that Plaintiff had the residual functional capacity
(RFC) to perform a reduced range of light work and could do some
of her previous work (Tr. 28, 33).
The ALJ determined that
although Johnston had impairments, her testimony regarding her
limitations was not credible (Tr. 29, 32).
The ALJ gave
significant weight to the opinion of the non-medical, nonexamining Decisionmaker and the non-examining Psychologist
Hinton; he discredited the opinions of Dr. Sharpe (Tr. 31-32).
This concludes the evidence of record.
In bringing this action, Plaintiff first claims that the
ALJ did not properly consider the opinions and conclusions of
her treating physician, Dr. Sharpe (Doc. 13, pp. 6-10).
Court notes that "although the opinion of an examining physician
is generally entitled to more weight than the opinion of a nonexamining physician, the ALJ is free to reject the opinion of
any physician when the evidence supports a contrary conclusion."
Oldham v. Schweiker, 660 F.2d 1078, 1084 (5th Cir. 1981);4 see
also 20 C.F.R. § 404.1527 (2011).
The ALJ, in rejecting Dr. Sharpe’s opinion, stated as
This opinion is not well supported by the
doctor’s examination/treatment notes. Dr.
Sharpe provided very conservative treatment
in the form of analgesics and antiinflammatory medication (See Exhibits 10F
and 11F). Dr. Sharpe never recommended
physical therapy, rehabilitation, surgery or
any other more aggressive treatment. Id.
This opinion is not consistent with the
medical evidence as a whole, which indicates
the claimant went more than 10 years without
treatment and only began receiving
conservative treatment after she applied for
benefits in this case. This opinion is not
consistent with the opinion of the State
agency disability consultant. The doctor
apparently relied quite heavily on the
subjective report of symptoms and
limitations provided by the claimant, and
seemed to uncritically accept as true most,
if not all, of what the claimant reported.
The Eleventh Circuit, in the en banc decision Bonner v. City
of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981), adopted as
precedent decisions of the former Fifth Circuit rendered prior to
October 1, 1981.
The ALJ also pointed out inconsistencies in Dr.
Sharpe’s notes and her conclusions and that “very few of Dr.
Sharpe’s treatment notes reflect objective clinical observations
and none include laboratory test results” (Tr. 29).
The Court finds substantial support for the ALJ’s
discrediting of Dr. Sharpe’s conclusions as the doctor’s medical
notes do not support the limitations suggested.
regularly reported that Plaintiff was in no acute distress;
furthermore, the physician’s records do not support the extreme
pain suggested by Sharpe.
Finally, the Court notes that the
ALJ’s determination of Johnston’s RFC does not vary from
Sharpe’s physical capacities evaluation to a great degree (see
Tr. 28; cf. Tr. 299) and is consistent with the reports of Dr.
Hakima and the non-examining, non-medical Decisionmaker.6
Plaintiff’s claim is without merit.
Johnston also claims that the ALJ did not properly consider
The ALJ went on to provide theories as to other possible reasons
for Dr. Sharpe’s conclusions, but the Court finds no purpose in
discussing the ALJ’s speculation (see Tr. 31).
The Court is aware that the ALJ gave significant weight to the
opinion of the Decisionmaker (Tr. 31). The Court is also aware that
the opinion of a nonexamining physician Ais entitled to little weight
and taken alone does not constitute substantial evidence to support an
administrative decision.@ Swindle v. Sullivan, 914 F.2d 222, 226 n.3
(11th Cir. 1990) (citing Broughton v. Heckler, 776 F.2d 960, 962 (11th
Cir. 1985). Nevertheless, the Court finds, that the ALJ’s
determination in this regard was, at most, only harmless error as
there was other evidence to support the ALJ’s opinion.
her obesity (Doc. 13, pp. 15-17).
In Social Security Ruling
(hereinafter SSR) 02-1p, the Social Security Administration
issued a ruling entitled Evaluation of Obesity which examines
the analysis for determining the following:
whether a person is
obese (based on a formula known as the Body Mass Index); whether
the obesity is a medically determinable impairment; and whether
the obesity is severe.
The latter determination is made by
determining whether “it significantly limits an individual’s
physical or mental ability to do basic work activities.”
The Court notes that the ALJ found that Johnston’s obesity
was a severe impairment (Tr. 26).
He went on to cite SSR 02-1p
and state that he had considered “the impact obesity has on
limitation of function including the claimant’s ability to
perform routine movement and necessary physical activity within
the work environment;” he also noted that the combination of
impairments might be greater than their sum individually (Tr.
The ALJ, nevertheless, concluded that Plaintiff did “not
have an impairment or combination of impairments that meets or
medically equals one of the listed impairments in 20 C.F.R. Part
404, Subpart P, Appendix 1 (20 C.F.R. 414.1520(d), 404.1525 and
404.1526)” (Tr. 26).
The Court notes that this specific language has been upheld
by the Eleventh Circuit Court of Appeals as sufficient
consideration of the effects of the combinations of a claimant's
Jones v. Department of Health and Human Services,
941 F.2d 1529, 1533 (11th Cir. 1991) (the claimant does not have
“an impairment or combination of impairments listed in, or
medically equal to one listed in Appendix 1, Subpart P,
Regulations No. 4").
The Court further notes that no doctor has
specifically linked Plaintiff’s obesity to an inability to work.
As Plaintiff is ultimately responsible for proving disability,
i.e., an inability to work, see 20 C.F.R. § 404.1512(a) (2011);
see also Doughty v. Apfel, 245 F.3d 1274, 1278 (11th Cir. 2001),
the Court can find no error in the ALJ’s stating that he
considered Johnston’s obesity and finding that she had not
demonstrated an inability to work.
Plaintiff also claims that the ALJ improperly discredited
More specifically, Johnston asserts that the ALJ
erred in finding that her daily activities and lack of treatment
disqualify her from disability consideration (Doc. 13, pp. 1720).
In his determination, the ALJ noted that the Plaintiff’s
allegations of constant neck and low back pain were unsupported
by the medical evidence, specifically noting that Dr. Sharpe’s
examination notes did not support her complaints of pain even on
the dates that she specifically complained of pain (Tr. 29).
The ALJ further noted that there was a ten-year gap in medical
evidence and no evidence of treatment until after she sought
disability even though the precipitating event, a motor vehicle
accident, had occurred fifteen years earlier (Tr. 29, 32).
ALJ also noted Johnston’s seemingly malingering behavior
reflected in the examination notes of Dr. Hakima (Tr. 30).
ALJ noted that Plaintiff was getting no treatment for her
bipolar disorder and that the conclusions reached by
consultative Psychologist Tocci seemed to be based on subjective
complaints (Tr. 30).
The ALJ noted inconsistencies in the
Plaintiff’s reporting of her daily activities over a very short
period of time (Tr. 32).
The ALJ also noted that Johnston’s
asserted disability date was at a time when she was in prison
and was connected to no particular medical event (Tr. 32).
The Court finds substantial support for the ALJ’s rejection
of Plaintiff’s testimony regarding her impairments.
correctly noted inconsistencies in the activities of daily
The ALJ correctly noted a lack of treatment.
more important, though, is that the ALJ’s determination that the
medical evidence did not support Johnston’s assertions of severe
limitations is supported by substantial evidence.
Plaintiff’s final claim is that she is unable to perform
light work (Doc. 13, pp. 10-14).
Light work has been defined as
Light work involves lifting no more
than 20 pounds at a time with frequent
lifting or carrying of objects weighing up
to 10 pounds. Even though the weight lifted
may be very little, a job is in this
category when it requires a good deal of
walking or standing, or when it involves
sitting most of the time with some pushing
and pulling of arm or leg controls. To be
considered capable of performing a full or
wide range of light work, you must have the
ability to do substantially all of these
activities. If someone can do light work,
we determine that he or she can also do
sedentary work, unless there are additional
limiting factors such as loss of fine
dexterity or inability to sit for long
periods of time.
20 C.F.R. § 404.1567(b) (2011).
In his decision, the ALJ determined that Plaintiff had the
residual functional capacity (RFC) to perform light work except
that she was “limited to work which will only require the
understand, remember and carry out short/simple
instructions for at least 2 hour periods without special
supervision in a traditional work environment; have minimal
contact with the general public; and adjust to infrequent
changes in the workplace” (Tr. 28).
In arguing this claim, Johnston relies on the PCE completed
by Dr. Sharpe and the fact that the ALJ gave significant weight
to the opinion of the non-medical, non-examining Decisionmaker
(Doc. 13, pp. 10-14).
However, the Court has previously found
substantial support for the ALJ’s rejection of the limitations
suggested by the treating physician (see pp. 10-12).
has also found that the ALJ’s reliance on the opinion of the
Decisionmaker to be only harmless error as there was other
evidence of record to support his decision (see p. 12, n.6).
The Court finds it unnecessary to revisit those particular
Plaintiff has not demonstrated that she is
unable to perform light work.
The Court acknowledges the scant amount of evidence in this
Nevertheless, the Court found substantial evidence to
support the ALJ’s rejection of Dr. Sharpe’s conclusions of
extreme limitations as well as Johnston’s own testimony
regarding her abilities.
As noted before, ultimately the burden
is on Plaintiff to prove that she is disabled.
See 20 C.F.R. §
416.912(a) (2011); see also Doughty v. Apfel, 245 F.3d 1274,
1278 (11th Cir. 2001).
She has not met this burden.
Johnston has raised four different claims in bringing this
All of those claims are without merit.
consideration of the entire record, the Court finds "such
relevant evidence as a reasonable mind might accept as adequate
to support a conclusion."
Perales, 402 U.S. at 401.
it is ORDERED that the Secretary's decision be AFFIRMED, see
Fortenberry v. Harris, 612 F.2d 947, 950 (5th Cir. 1980) and
that this action be DISMISSED.
Judgment will be entered by
DONE this 11th day of July, 2012.
s/BERT W. MILLING, JR.
UNITED STATES MAGISTRATE JUDGE
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