Johnson v. Social Security Administration

Filing 18

MEMORANDUM OPINION AND ORDER affirming the decision of the Commissioner; pltf's complaint 2 is denied; judgment will be entered accordingly. Signed by Magistrate Judge Beth Deere on 8/14/13. (vjt)

Johnson v. Social Security Administration

Doc. 18

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
PINE BLUFF DIVISION
GEORGE JOHNSON, JR.
V.

PLAINTIFF

CASE NO.: 5:12CV00216 BD

CAROLYN W. COLVIN, Acting Commissioner,
Social Security Administration1

DEFENDANT

MEMORANDUM OPINION AND ORDER
Plaintiff George Johnson, Jr., appeals the final decision of the Commissioner of the
Social Security Administration (the “Commissioner”) denying his claim for Disability
Insurance benefits (“DIB”) under Title II of the Social Security Act (the “Act”). For
reasons set out below, the decision of the Commissioner is AFFIRMED.
I.

Background
On March 8, 2010, Mr. Johnson protectively filed for DIB, alleging disability

beginning on June 26, 2008, due to depression and problems with his back, wrist, ankle,
and shoulders. (Tr. 121-123, 128) Mr. Johnson’s claims were denied initially and upon
reconsideration. At his request, an Administrative Law Judge (“ALJ”) held a hearing on
August 31, 2011, at which Mr. Johnson appeared with his attorney. (Tr. 34) At the
hearing, the ALJ heard testimony from Mr. Johnson and a vocational expert (“VE”). (Tr.
34-59)

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On February 14, 2013, Carolyn W. Colvin became the Acting Commissioner of
the Social Security Administration. She has been substituted for named Defendant
Michael J. Astrue under Fed.R.Civ.P. 25.

Dockets.Justia.com

The ALJ issued a decision on October 31, 2011, finding that Mr. Johnson was not
disabled under the Act. (Tr. 19-30) On April 17, 2012, the Appeals Council denied Mr.
Johnson’s request for review, making the ALJ’s decision the Commissioner’s final
decision. (Tr. 1-6)
Mr. Johnson was thirty-nine years old at the time of the administrative hearing.
(Tr. 38) He had a twelfth grade education and lived with his mother. (Tr. 38)
Mr. Johnson testified that on a normal day, he would get up around 7 a.m., stretch
to loosen his back, and eat breakfast. (Tr. 48) After breakfast, he would exercise a little
bit, watch television, and maybe read and listen to music. (Tr. 48) He would help work
around the house. He could also drive. (Tr. 48)
Mr. Johnson testified that he stretched or took naproxen to relieve his pain. (Tr.
50) He did not experience any negative side effects from his medication. (Tr. 41) Mr.
Johnson never sought treatment at a pain management clinic. (Tr. 53) His physician said
his ankles were healed and that Mr. Johnson would have to learn to cope with his pain.
(Tr. 40)
At the hearing, Mr. Johnson admitted that while collecting unemployment, and
certifying that he was looking for work, he did not actually look for work. (Tr. 58) He
stated that he had to do it to pay child support. (Tr. 58)

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II.

Decision of the Administrative Law Judge
The ALJ followed the required sequential analysis to determine: (1) whether the

claimant was engaged in substantial gainful activity; (2) if not, whether the claimant had a
severe impairment; (3) if so, whether the impairment (or combination of impairments)
met or equaled a listed impairment; and (4) if not, whether the impairment (or
combination of impairments) prevented the claimant from performing past relevant work;
and (5) if so, whether the impairment (or combination of impairments) prevented the
claimant from performing any other jobs available in significant numbers in the national
economy. 20 C.F.R. § 404.1520(a)-(g) (2005).
The ALJ found that Mr. Johnson had not engaged in substantial gainful activity
since his alleged disability onset date. (Tr. 21) And he found that Mr. Johnson had the
following severe impairments: degenerative disc disease of the lumbar spine, status-post
bilateral ankle fracture, and degenerative joint disease of the bilateral shoulders statuspost surgery. (Tr. 21-23) The ALJ also found, however, that Mr. Johnson did not have
an impairment or combination of impairments meeting or equaling an impairment listed
in 20 C.F.R. Part 404, Subpart P, Appendix 1 (20 C.F.R. § 404.1526). (Tr. 23)
The ALJ determined that Mr. Johnson had the residual functional capacity
(“RFC”) to perform light work, with occasional lifting and carrying up to 20 pounds,
frequent lifting and carrying of 10 pounds. (Tr. 23) Mr. Johnson could stand, walk, or sit
for 6 hours in an 8-hour workday, limited by occasional climbing of ladders, ropes, and

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scaffolds, occasional stooping, kneeling, and crouching, and frequent overhand reaching
and handling. (Tr. 23-28)
The ALJ determined that Mr. Johnson’s RFC would preclude performance of his
past relevant work as a meat cutter, metal fabricator, and order filler. (Tr. 28) After
considering VE testimony, the ALJ determined that Mr. Johnson could perform
significant jobs existing in the national economy. (Tr. 28-29) Accordingly, the ALJ
found that Mr. Johnson was not disabled. (Tr. 29)
III.

Analysis
A.

Standard of Review

In reviewing the Commissioner’s decision, this Court must determine whether
there is substantial evidence in the record as a whole to support the decision. Boettcher v.
Astrue, 652 F.3d 860, 863 (8th Cir. 2011); 42 U.S.C. § 405(g). Substantial evidence is
“less than a preponderance, but sufficient for reasonable minds to find it adequate to
support the decision.” Id. (citing Guilliams v. Barnhart, 393 F.3d 798, 801 (8th Cir.
2005)).
In reviewing the record as a whole, the Court must consider both evidence that
detracts from the Commissioner’s decision and evidence that supports the decision; but,
the decision cannot be reversed, “simply because some evidence may support the opposite
conclusion.” Id. (citing Pelkey v. Barnhart, 433 F.3d 575, 578 (8th Cir. 2006)).

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B.

Plaintiff’s Arguments for Reversal

Mr. Johnson argues that the ALJ’s decision was not supported by substantial
evidence because: (1) the ALJ erred in his assessment of Mr. Johnson’s RFC; and (2) the
ALJ failed to explain the weight given to the medical evidence. (#14)
C.

Residual Functional Capacity

The ALJ bears the primary responsibility for assessing a claimant’s RFC.
Wildman v. Astrue, 596 F.3d 959, 969 (8th Cir. 2010). It is the claimant’s burden,
however, to prove RFC. Baldwin v. Barnhart, 349 F.3d 549, 556 (8th Cir. 2003).
Despite continuing pain, substantial evidence supports the ALJ’s determination that Mr.
Johnson could perform the physical demands of light work.
Mr. Johnson was injured on the job and participated in work-related physical
therapy. On December 22, 2008, a work conditioning evaluation showed that Mr.
Johnson had “excellent potential to obtain the goal of returning to work within the Heavy
physical demand capacity level.” (Tr. 276) At that time, Mr. Johnson could occasionally
lift and carry at least 40 pounds and frequently lift and carry at least 30 pounds. (Tr. 277)
He could frequently sit, stand, walk, climb stairs, reach, stoop, kneel, crouch, and crawl.
(Tr. 277)
On January 16, 2009, Mr. Johnson was able to meet the physical demands of his
heavy work, with pain after three hours of work conditioning activities. (Tr. 295) He

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was able to manage his back pain with stretching and heat. The recommendation was to
return to regular work progressing from 4-6 hours to 6-8 hours as needed. (Tr. 295)
On June 16, 2009, Mr. Johnson had excellent range of motion in his right ankle
and good range of motion on the left, with slight tenderness. (Tr. 312) His back was
tender, but without radiating symptoms and with negative straight leg raises. (Tr. 312)
Mr. Johnson saw Jacob Strong, M.D., on July 17, 2009. An MRI showed
degenerative changes at Mr. Johnson’s L5-S1 spine with an annular tear, mild L4-L5 and
L5-S1 spondylosis, and questionable right L5 pars defect. (Tr. 368) There was no
evidence of atrophy or asymmetry in Mr. Johnson’s back. (Tr. 368) His range of motion
was limited and uncomfortable with flexion and extension, but full and pain free with
rotation to the right and left. (Tr. 368) After noting Mr. Johnson’s pain, Dr. Strong
recommended that Mr. Johnson continue his home exercise program and continue
medium work duty. (Tr. 369) Mr. Johnson declined an epidural for his back pain at that
time. (Tr. 369) He was taking naproxen regularly, which helped, and hydrocodone
intermittently. (Tr. 367)
Mr. Johnson saw Dr. Strong again on August 14, 2009. (Tr. 310-311) Mr.
Johnson was directed to continue home exercise and medium work duty. (Tr. 311)
A physical residual functional capacity assessment, completed by state agency
physicians on August 14, 2010, found that Mr. Johnson could perform a wide range of
medium work. (Tr. 336-343)

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On October 13, 2010, Mr. Johnson saw Christine Scott, M.D., with complaints of
pain. (Tr. 365-366) Mr. Johnson noted a history of pain and reported walking for
exercise. (Tr. 365) Dr. Scott prescribed naproxen for pain and diagnosed Mr. Johnson
with lumbago. (Tr. 366) Mr. Johnson saw Dr. Scott again on November 16, 2010,
complaining of increased pain. (Tr. 363-364) He asked for hydrocodone, but Dr. Scott
instead increased the naproxen, since Mr. Johnson had responded to it. (Tr. 363) Followups noted pain and continued naproxen use. (Tr. 360)
The record clearly supports Mr. Johnson’s complaints of continued pain. Despite
this pain, however, substantial evidence shows that he retained the RFC to perform light
work.
In addition to pain medication, Mr. Johnson took antidepressant medication for his
depression. (Tr. 322-334, 370-372, 387-390) Mr. Johnson testified that, due to
depression, he did not like dealing with, or being around, people. (Tr. 46) The ALJ did
not find any nonexertional limitations when determining Mr. Johnson’s RFC. (Tr. 23-28)
The record supports the ALJ’s determination that Mr. Johnson’s depression did not
significantly limit his mental abilities to do basic work activities. (Tr. 21-23)
On July 23, 2010, state agency psychologist Regina Pyke, Ph.D., completed a
psychiatric review technique regarding Mr. Johnson’s mental disorders. (Tr. 322-335)
Dr. Pyke found that Mr. Johnson suffered from depression and anxiety but that they were
“not severe.” (Tr. 322, 325, 327) After reviewing the medical records, Dr. Pyke found

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no episodes of decompensation, no restriction of daily activities, no difficulties in
maintaining concentration, persistence, or pace, and only mild difficulties in maintaining
social functioning. (Tr. 332, 334)
Mr. Johnson’s brother-in-law reported that Mr. Johnson regularly attended church,
but had a very low tolerance for people. (Tr. 161-162) Mr. Johnson reported that he
could shop in stores by himself, and attend church a few times a week, but generally kept
to himself. (Tr. 202-203) Mr. Johnson had no problem getting along with family, but had
problems with other people who did not “like [him] because the way [he] handle[d] and
[did] things.” (Tr. 204) He had never been fired from a job because of problems getting
along with other people. (Tr. 205)
A psychological evaluation, a psychiatric evaluation, and treatment notes
evidenced minimal, if any, functional limitations related to depression. (Tr. 350-358,
371-377, 387-390) Mr. Johnson tolerated Prozac without any problems. (Tr. 371, 379)
He stated that his anxiety and depression would lessen if he were more financially stable.
(Tr. 388) A clinical psychologist, Steven Berger, Ph.D., found that Mr. Johnson’s mood
would heighten if his financial and employment instability were alleviated. (Tr. 390)
The only evidence Mr. Johnson noted in support of his argument that his
depression was severe is a comment from Dr. Berger stating that Mr. Johnson’s social
isolation might impact his ability to get along with co-workers. (#14, at pp. 20-21) (Tr.
390) Despite this comment, substantial evidence in the record supports the ALJ’s RFC

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determination. Mr. Johnson did not meet his burden of showing that his depression
significantly limited his mental abilities to do basic work activities.
D.

Medical Evidence

Mr. Johnson argues that the ALJ failed to explain the weight given to the medical
evidence. (#14) He states that reports by Dr. Brewer and Dr. Berger showed that he
could not perform light work. (#14, at pp. 19-21)
As noted, the ALJ’s RFC determination was supported by substantial evidence.
“Substantial evidence” does not mean there was no contrary evidence. Rather, evidence
is “substantial” if reasonable minds find it adequate to support the decision, even if some
evidence supports an opposite conclusion. Boettcher, 652 F.3d at 863.
The reports by Dr. Brewer and Dr. Berger provide some evidence of additional
limitations that were not in the ALJ’s RFC determination. (Tr. 387-390, 391-399) Dr.
Berger noted that Mr. Johnson’s social isolation might impact his ability to get along with
co-workers. (Tr. 390) This possible limitation was not supported by the overall record.
Dr. Brewer noted possible exertional limitations and a slight limp. (Tr. 394-395)
Dr. Brewer found, however, that Mr. Johnson’s range of motion in his neck, back, leg
raises, shoulders, elbows, forearms, wrists, hips, knees, ankles, feet, hands, and fingers
were all within the normal range. (Tr. 392-393) Dr. Brewer found mild weakness to
normal strength in grip and pinch. Objective imaging did not evidence any acute
findings. (Tr. 396-399)

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Although this evidence provides some support for Mr. Johnson’s argument, the
overall record strongly supports the ALJ’s determination that Mr. Johnson could perform
light work with no nonexertional limitations. Accordingly, the ALJ did not commit
reversible error when discussing the medical record.
E.

Step Five Finding

The ALJ’s decision contains a significant discrepancy. The ALJ found that Mr.
Johnson had the RFC to perform light work. (Tr. 23-28) In his decision, however, the
ALJ listed jobs requiring an RFC for medium work. (Tr. 29) Mr. Johnson did not raise
this issue, so it is waived. Regardless, the VE provided significant numbers of jobs in the
light work category that Mr. Johnson could perform during the VE’s testimony. (Tr. 5657) The ALJ’s error in opinion writing was harmless because the record provides
significant number of jobs in the national economy that Mr. Johnson could perform.
IV.

Conclusion
The Court has reviewed all of the evidence in the record, including the objective

medical evidence, the opinions of physicians, and the hearing transcript. There is
sufficient evidence in the record as a whole to support the Commissioner’s determination
that George Johnson, Jr., retained the residual functional capacity to perform jobs existing
in significant numbers in the economy.

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Accordingly, his appeal is DENIED, and the Clerk of Court is directed to close the
case, this 14th day of August, 2013.

___________________________________
UNITED STATES MAGISTRATE JUDGE

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