Johnson v. Social Security Administration

Filing 14

ORDER denying Johnson's 2 request for relief and affirming the Commissioner's decision. Signed by Magistrate Judge J. Thomas Ray on 10/06/2014. (rhm)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF ARKANSAS
EASTERN DIVISION
Brenda Kay Johnson
v.

Plaintiff
CASE NO. 2:14CV00011 JTR

Carolyn W. Colvin, Acting Commissioner,
Social Security Administration

Defendant

ORDER AFFIRMING THE COMMISSIONER
Brenda Kay Johnson seeks judicial review of the denial of her application for
disability insurance benefits (DIB). Johnson last worked in 2007 as a teacher aide at
a daycare facility.1 Johnson applied for DIB on July 15, 2011, with an alleged onset
date of October 31, 2007.2 Johnson’s date last insured (DLI) is December 31, 2012.3
Johnson bases disability on high blood pressure, gall stones, pancreatitis, and issues
with her thyroid, heart, vision, hearing, knees, back, left hand, right shoulder and arm.4
The Commissioner’s decision. The Commissioner’s ALJ determined that
Johnson has not engaged in substantial gainful activity since the alleged onset date.5

1

SSA record at pp. 37-39 & 154.

2

Id. at p. 130.

3

Id. at p. 160.

4

Id. at p. 175.

5

Id. at p. 14.
1

Johnson has severe impairments - osteoarthritis of the knees, mild degenerative joint
disease and hypertension.6 None of Johnson’s severe impairments meet the listings,
and Johnson can perform the full range of medium work.7 The ALJ held that Johnson
can perform past relevant work as a janitor, lacer and teacher aide.8 Johnson’s
application was denied.9
After the Commissioner’s Appeals Council denied a request for review, the
ALJ’s decision became a final decision for judicial review.10 Johnson filed this case
to challenge the decision. In reviewing the decision, the Court must determine whether
substantial evidence supports the decision and whether the ALJ made a legal error.11

6

Id.

7

Id. at p. 15.

8

Id. at p. 18.

9

Id. at pp. 18-19.

10

See Anderson v. Sullivan, 959 F.2d 690, 692 (8th Cir. 1992) (stating, “the
Social Security Act precludes general federal subject matter jurisdiction until
administrative remedies have been exhausted” and explaining that the appeal
procedure permits claimants to appeal only final decisions).
11

See 42 U.S.C. § 405(g) (requiring the district court to determine whether the
Commissioner’s findings are supported by substantial evidence and whether the
Commissioner conformed with applicable regulations); Long v. Chater, 108 F.3d 185,
187 (8th Cir. 1997) (“We will uphold the Commissioner’s decision to deny any
applicant disability benefits if the decision is not based on legal error and if there is
substantial evidence in the record as a whole to support the conclusion that the
claimant was not disabled.”).
2

Johnson’s allegations. Johnson maintains that (1) the ALJ’s RFC
determination is not supported by substantial evidence; and (2) the ALJ’s credibility
analysis is flawed.
Substantial evidence is “less than a preponderance but . . . enough that a
reasonable mind would find it adequate to support the conclusion.”12 For substantial
evidence to exist in this case, a reasonable mind must accept the evidence as adequate
to support the ALJ’s denial of benefits.13
RFC determination. Johnson maintains that the ALJ’s RFC determination is
not supported by substantial evidence. The ALJ held that Johnson has the RFC to
perform medium work.14 Substantial evidence supports that determination.
With respect to Johnson’s knee pain, the evidence suggests that it is controlled
with conservative treatment. Over the course of the medical records, 2004-2013,
Johnson was administered two steroid injections and prescribed meloxicam.15
Although Johnson testified that she still takes meloxicam “as needed,” the prescription

12

Jones v. Astrue, 619 F.3d 963, 968 (8th Cir. 2010) (internal quotations and
citations omitted).
13

Britton v. Sullivan, 908 F.2d 328, 330 (8th Cir. 1990).

14

SSA record at p. 15.

15

Id. at pp. 401-402 & 445.
3

has not been refilled since 2011.16 It seems Johnson’s main source of treatment for her
knee pain is over the counter pain relievers that she takes only two times a week.17
Conservative treatment has consistently been found to support denials of disability.18
Every single radiological study of Johnson’s knees contained in the medical
records is normal. From 2010 to 2011, four radiological studies were performed.19 A
September 15, 2010, x-ray of Johnson’s right knee revealed that the joint space was
maintained and there was no fracture, dislocation or significant joint effusion.20 An
April 21, 2011, x-ray of both knees found normal joint spaces and mineralization, and
intact patellae that were normally located and configured.21 The study was negative.22
An MRI of Johnson’s right knee was performed on August 10, 2011, and was also
negative.23 The final x-ray of both knees was conducted in September of the same

16

Id. at pp. 50-51 & 254.

17

Id. at p. 51.

18

See Perks v. Astrue, 687 F.3d 1086, 1092 (8th Cir. 2012); Gowell v. Apfel, 242
F.3d 793, 796 (8th Cir. 2001); Black v. Apfel, 143 F.3d 383, 386 (8th Cir. 1998).
19

SSA record at pp. 359, 365, 438 & 441.

20

Id. at p. 359.

21

Id. at p. 365.

22

Id.

23

Id. at p. 441.
4

year, and revealed no significant degenerative changes and no significant reduction
of the joint spaces.24 The radiological studies of Johnson’s knees support the ALJ’s
RFC.
The record further establishes that Johnson sought only episodic care for her
knee pain. Between May 2008 and September 2010, Johnson complained of knee pain
only four times.25 In 2011 and 2012, the records are void of any complaints of knee
pain or treatments for osteoarthritis. This supports the denial of Johnson’s
application.26
The treatment records provide additional support for the RFC determination.
Although some notes observed tenderness and swelling in Johnson’s knees,27 the
majority of the notes establish that the effects of Johnson’s pain are neither moderate
nor severe. In a May 8, 2008, note, Johnson’s treating physician observed that

24

Id. at p. 438.

25

Id. at pp. 307, 322, 325 & 346.

26

See Gwathney v. Chater, 104 F.3d 1043, 1045 (8th cir. 1997) (failing to seek
medical assistance for alleged physical and mental impairments contradicted
claimant’s allegations of disabling conditions and supported unfavorable decision);
Ostronski v. Chater, 94 F.3d 413, 419 (8th Cir. 1996) (complaints of disabling pain
and functional limitations are inconsistent with the failure to take prescription pain
medication or to seek regular medical treatment for symptoms).
27

SSA record at pp. 322, 401 & 402.
5

Johnson exhibited a full range of motion and her knees were not swollen or tender.28
A September 14, 2010, note indicates that there was no swelling or redness, no flexion
deformity, no crepitations, Johnson exhibited a full range of motion, and the leg
examinations were unremarkable.29 Further, the McMurray30 and drawer31 tests were
both negative.32 In March 2011, Johnson’s treating physician noted that although
Johnson complained of right knee pain, the knee was not swollen or tender.33
Approximately a month later, it was noted that Johnson had no varus34 or valgus35

28

Id. at p. 325.

29

Id. at p. 307.

30

The McMurray test is a “rotation of the tibia on the femur to determine injury
to meniscal structures.” Stedman’s Medical Dictionary, 27th Edition 2000, 403610
31

The drawer test, or drawer sign, is conducted during a knee examination and
is “the forward or backward sliding of the tibia under applied stress, which indicate
laxity or tear of the anterior (forward slide) or posterior (backward slide) cruciate
ligaments of the knee.” Stedman’s Medical Dictionary, 27th Ed. 2000, 373770.
32

SSA record at p. 307.

33

Id. at p. 321.

34

Varus is defined as “bent or twisted inward toward the midline of the limb or
body.” Stedman’s Med. Dictionary 431950 (27th ed.).
35

Valgus is defined as “bent or twisted outward from the midline or body.”
Stedman’s Med. Dictionary 430800 (27th ed.).
6

instability; exhibited negative ballottement,36 anterior drawer, posterior drawer, and
quadriceps active tests; there was only mild crepitus;37 and no joint effusion.38, 39
Throughout the medical records, Johnson also complained of right shoulder
pain.40 The records, however, establish that treatment for her shoulder was
conservative. As established above, Johnson was prescribed meloxicam,41 but that
prescription has not been refilled since 2011.42 Johnson testified that she takes over
the counter pain relievers approximately two times a week.43
As with Johnson’s knees, the radiological reports relating to her shoulder reveal
nothing abnormal. A September 15, 2010, x-ray identified no fracture or dislocation,

36

Ballottement is “a diagnostic maneuver for detecting the presence of a floating
mass in the body cavity.” 1-B Attorneys’ Dictionary of Med. B-13892.
37

Crepitus, or crepitation, is the “noise or vibration produced by rubbing bone
or irregular degenerated cartilage surfaces together as in arthritis and other
conditions.” Stedman’s Med. Dictionary 94460 (27th ed.).
38

Joint effusion is “increased fluid in synovial cavity of a joint.” Stedman’s
Med. Dictionary 125240 (27th ed.).
39

SSA record at p. 402.

40

Id. at pp. 302, 307, 326, 430, 466 & 484.

41

Id. at p. 303.

42

Id. at p. 254.

43

Id. at p. 51.
7

and found that the acromioclavicular distance was maintained.44
Further, Johnson only sought episodic treatment for her shoulder. The first
complaint came in 2006.45 Johnson did not complain of shoulder pain again until
2010.46 Johnson next sought treatment nearly two years later in 2012.47 This weighs
against Johnson’s allegations of disabling shoulder pain.
The evidence establishes that Johnson’s hypertension is also controlled with
conservative treatment. Johnson has been prescribed the same two medications,
lisinopril and bisoprolol, since 2008.48 She still takes both medications today.49
Additionally, the record contains no evidence of serious or even moderate side effects
stemming from Johnson’s hypertension.
The opinion evidence provides additional support for the RFC determination.
In November 2010, a state physician examined Johnson and found that Johnson had
a normal range of motion in her knees and shoulders.50 Johnson exhibited negative
44

Id. at p. 361.

45

Id. at p. 326.

46

Id. at p. 307.

47

Id. at p. 466.

48

Id. at pp. 249-255.

49

Id. at p. 49.

50

Id. at p. 315.
8

straight leg raising in her right and left legs.51 Her reflexes were normal, no edema was
observed, and Johnson could stand/walk without assistive devices.52 As Johnson
points out, this physician opined that Johnson is limited in her ability to stand and
walk because of her right knee.53 The ALJ recognized this, but gave the physician’s
testimony only some weight because the radiological reports, and the physician’s own
findings during the examination, do not support the stand/walk limitation.54
The record also contains opinions from two additional state physicians. In
January 2012, a state physician reviewed the medical evidence and determined that
it supports a finding of “not severe” due to the lack of a significant medically
determinable impairment.55 This conclusion was affirmed by a separate state physician
in February 2012.56
Johnson’s reported daily activities also support the RFC. In the Function
Report, Johnson maintains that she cooks meals, walks to the post office, makes her

51

Id. at p. 316.

52

Id. at pp. 316-317.

53

Id. at p. 317.

54

Id. at p. 17.

55

Id. at p. 452.

56

Id. at p. 459.
9

bed and does laundry.57 She is able to go out alone, and either walks or rides in a car.58
Once a month, for one or two hours, Johnson shops for groceries, toiletries, cleaning
items and clothes.59 She goes to church and visits her mother on a regular basis.60
During the hearing Johnson testified that she is able to pick up and carry forty pounds
in her home, and can push and pull a recliner for repositioning.61, 62
A reasonable mind would accept the evidence as adequate to support the ALJ’s
RFC. The RFC is supported by substantial evidence.
Credibility. Johnson further asserts that the ALJ erred in the credibility
determination because (1) the ALJ did not give examples of Johnson’s daily activities
referenced in the decision; and (2) the ALJ mistakenly relied on the fact that no
physician indicated Johnson was disabled.
After reviewing the medical record, the ALJ determined that Johnson was not

57

Id. at pp. 194 & 196.

58

Id. at p. 197.

59

Id.

60

Id. at p. 198.

61

Id. at pp. 55-56.

62

The testimony gets confusing following Johnson’s statement that she can lift
forty pounds, and she seems to distance herself from this statement after further
questioning from her attorney. The fact remains, however, that she does state she can
lift forty pounds and carry that amount of weight from room to room in her home.
10

credible to the extent that her statements were inconsistent with the residual functional
capacity assessment.63 For support the ALJ gave the following reasons: (1) Johnson
described daily activities which were not limited to the extent one would expect, given
the complaints of disabling symptoms and limitations; (2) although Johnson received
treatment for the allegedly disabling impairments, that treatment was essentially
routine and/or conservative in nature; and (3) the record does not contain any opinions
from treating or examining physicians indicating that the claimant is currently
disabled.64
Johnson asserts that the ALJ erred in failing to give examples of the daily
activities that were not as limited as expected. This argument, however, is not
persuasive because the ALJ is not required to give examples. As Johnson points out,
when making a credibility determination, the ALJ must give reasons for discrediting
a claimant’s testimony, set forth the inconsistencies and discuss the Polaski factors.65,
66

The ALJ did all of these things. As established above, he specifically set out his

reasons for discrediting Johnson. He also addressed inconsistencies between

63

SSA record at p. 16.

64

Id. at p. 18.

65

Beckley v. Apfel, 152 F.3d 1056, 1060 (8th Cir. 1998).

66

Polaski v. Heckler, 739 F.2d 1320, 1322 (8th Cir. 1984).
11

Johnson’s allegations of disabling pain and the medical records, and discussed the
Polaski factors.67 No more is required.
Johnson maintains that the absence of an opinion from a treating physician
finding her disabled does not constitute substantial evidence supporting the credibility
determination. Johnson is correct. The fact that a treating physician has not opined as
to whether Johnson is disabled is not alone enough to support the ALJ’s credibility
determination.68 The ALJ, however, did not rely on this fact alone. In making his
credibility determination he reviewed the medical treatment notes, prescribed
treatments, radiological testing, reported daily activities and physician opinions. No
error was committed.
Conclusion. Substantial evidence supports the ALJ’s decision. The ALJ made
no legal error. For these reasons, the court DENIES Johnson’s request for relief
(docket entry # 2) and AFFIRMS the Commissioner’s decision.
It is so ordered this 6th day of October, 2014.

___________________________________
UNITED STATES MAGISTRATE JUDGE

67

SSA record at pp. 15-18.

68

Hutsell v. Massanari, 259 F.3d 707, 712 (8th Cir. 2001).
12