Johnson v. Commissioner of Social Security

Filing 21

OPINION AND ORDER. The decision of the Commissioner is AFFIRMED. The Clerk of the Court is directed to enter judgment consistent with this opinion and, thereafter, to close the file. Signed by Magistrate Judge Douglas N. Frazier on 6/28/2017. (CAS)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
CHARLES JOHNSON,
Plaintiff,
v.

Case No: 8:16-cv-413-T-DNF

COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
_____________________________
OPINION AND ORDER
Plaintiff, Charles Johnson, seeks judicial review of the final decision of the Commissioner
of the Social Security Administration (“SSA”) denying his claim for Supplemental Security
Income (“SSI”). The Commissioner filed the Transcript of the proceedings (hereinafter referred
to as “Tr.” followed by the appropriate page number), and the parties filed legal memoranda setting
forth their respective positions. For the reasons set out herein, the decision of the Commissioner
is AFFIRMED pursuant to § 205(g) of the Social Security Act, 42 U.S.C. § 405(g).
I.

Social Security Act Eligibility, Standard of Review, Procedural History, and the
ALJ’s Decision

A. Social Security Act Eligibility
The law defines disability as the inability to do 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. §§ 416(i), 423(d)(1)(A), 1382(a)(3)(A); 20 C.F.R. §§ 404.1505, 416.905. The
impairment must be severe, making the claimant unable to do his previous work, or any other

substantial gainful activity which exists in the national economy. 42 U.S.C. §§ 423(d)(2),
1382(a)(3); 20 C.F.R. §§ 404.1505-404.1511, 416.905-416.911.
B. Standard of Review
The Commissioner’s findings of fact are conclusive if supported by substantial evidence.
42 U.S.C. § 405 (g). “Substantial evidence is more than a scintilla and is such relevant evidence
as a reasonable person would accept as adequate support to a conclusion. Even if the evidence
preponderated against the Commissioner’s findings, we must affirm if the decision reached is
supported by substantial evidence.” Crawford v. Comm’r, 363 F.3d 1155, 1158 (11th Cir. 2004)
(citing Lewis v. Callahan, 125 F.3d 1436, 1439 (11th Cir. 1997)); Martin v. Sullivan, 894 F.2d
1520, 1529 (11th Cir. 1990). In conducting this review, this Court may not reweigh the evidence
or substitute its judgment for that of the ALJ, but must consider the evidence as a whole, taking
into account evidence favorable as well as unfavorable to the decision. Martin v. Sullivan, 894
F.2d 1329, 1330 (11th Cir. 2002); Foote v. Chater, 67 F.3d 1553, 1560 (11th Cir. 1995). However,
the District Court will reverse the Commissioner’s decision on plenary review if the decision
applied incorrect law, or if the decision fails to provide sufficient reasoning to determine that the
Commissioner properly applied the law. Keeton v. Dep’t of Health & Human Servs., 21 F.3d 1064,
1066 (11th Cir. 1994).

The Court reviews de novo the conclusions of law made by the

Commissioner of Social Security in a disability benefits case. Social Security Act, § 205(g), 42
U.S.C. § 405(g).
The ALJ must follow five steps in evaluating a claim of disability. 20 C.F.R. §§ 404.1520,
416.920. At step one, the claimant must prove that he is not undertaking substantial gainful
employment.

Doughty v. Apfel, 245 F.3d 1274, 1278 (11th Cir. 2001), see 20 C.F.R. §

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404.1520(a)(4)(i). If a claimant is engaging in any substantial gainful activity, he will be found
not disabled. 20 C.F.R. § 404.1520(a)(4)(i).
At step two, the claimant must prove that he is suffering from a severe impairment or
combination of impairments. Doughty, 245 F.3d at 1278, 20 C.F.R. § 1520(a)(4)(ii). If the
claimant’s impairment or combination of impairments does not significantly limit his physical or
mental ability to do basic work activities, the ALJ will find that the impairment is not severe, and
the claimant will be found not disabled. 20 C.F.R. § 1520(c).
At step three, the claimant must prove that his impairment meets or equals one of
impairments listed in 20 C.F.R. Pt. 404, Subpt. P. App. 1; Doughty, 245 F.3d at 1278; 20 C.F.R. §
1520(a)(4)(iii). If he meets this burden, he will be considered disabled without consideration of
age, education and work experience. Doughty, 245 F.3d at 1278.
At step four, if the claimant cannot prove that his impairment meets or equals one of the
impairments listed in Appendix 1, he must prove that his impairment prevents him from
performing his past relevant work. Id. At this step, the ALJ will consider the claimant’s RFC and
compare it with the physical and mental demands of his past relevant work. 20 C.F.R. §
1520(a)(4)(iv), 20 C.F.R. § 1520(f). If the claimant can still perform his past relevant work, then
he will not be found disabled. Id.
At step five, the burden shifts to the Commissioner to prove that the claimant is capable of
performing other work available in the national economy, considering the claimant’s RFC, age,
education, and past work experience. Doughty, 245 F.3d at 1278; 20 C.F.R. § 1520(a)(4)(v). If
the claimant is capable of performing other work, he will be found not disabled. Id. In determining
whether the Commissioner has met this burden, the ALJ must develop a full and fair record
regarding the vocational opportunities available to the claimant. Allen v. Sullivan, 880 F.2d 1200,

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1201 (11th Cir. 1989). There are two ways in which the ALJ may make this determination. The
first is by applying the Medical Vocational Guidelines (“the Grids”), and the second is by the use
of a vocational expert. Phillips v. Barnhart, 357 F.3d 1232, 1239 (11th Cir. 2004). Only after the
Commissioner meets this burden does the burden shift back to the claimant to show that he is not
capable of performing the “other work” as set forth by the Commissioner. Doughty v. Apfel, 245
F.3d 1274, 1278 n.2 (11th Cir. 2001).
C. Procedural History
Plaintiff filed an application for SSI on April 15, 2013, alleging a disability onset date of
March 1, 1992. (Tr. 145-50). Plaintiff’s application was denied initially on August 5, 2013, and
upon reconsideration on September 18, 2013. (Tr. 75-78, 79-82). Plaintiff requested a hearing
and, on March 19, 2015, an administrative hearing was held before Administrative Law Judge
Christopher Messina (“the ALJ”). (Tr. 34-53). At the hearing, Plaintiff amended his alleged onset
date to May 23, 2013, the day he turned 50 years old. (Tr. 37). On May 13, 2015, the ALJ entered
a decision finding that Plaintiff was not under a disability since April 15, 2013, the date the
application was filed. (Tr. 19-32). Plaintiff filed a request for review which the Appeals Council
denied on January 7, 2016. (Tr. 1-7). Plaintiff initiated this action by filing a Complaint (Doc. 1)
on February 22, 2016. The case is now ripe for review pursuant to 42 U.S.C. § 405(g).
D. Summary of the ALJ’s Decision
At step one of the sequential evaluation, the ALJ found that Plaintiff had not engaged in
substantial gainful activity since May 23, 2013, the alleged onset date. (Tr. 21). At step two, the
ALJ found that Plaintiff had the following severe impairments: disc herniation in the lumbar spine,
essential hypertension, and asthma. (Tr. 21). At step three, the ALJ found that Plaintiff did not

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have an impairment or combination of impairments that meets or medically equals the severity of
any of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. (Tr. 22).
Before proceeding to step four, the ALJ found that Plaintiff had the residual functional
capacity (“RFC”) to
perform light work as defined in 20 CFR 404.967(b) meaning that the
claimant can lift twenty pounds occasionally and ten pounds frequently.
The claimant can also stand and walk for six hours of an eight-hour
workday and sit for six hours of an eight-hour work day. In addition, the
claimant can never climb ladders, ropes, or scaffolds; can occasionally
perform postural activities; and must avoid concentrated exposure to
pulmonary irritants.
(Tr. 22). At step four, the ALJ found that Plaintiff had no past relevant work. (Tr. 26).
At step five, the ALJ relied on the testimony of a vocational expert to find that considering
Plaintiff’s age, education, work experience, and RFC, there are jobs that exist in significant
numbers in the national economy that Plaintiff can perform. (Doc. 26-27). Specifically, the ALJ
found that Plaintiff can perform the requirements of such jobs as bakery laborer, cloth hand
trimmer, and egg washer. (Tr. 27). The ALJ concluded that Plaintiff had not been under a disability
since April 15, 2013, the date he filed his application. (Tr. 27).
II.

Analysis
Plaintiff raises three issues on appeal: (1) whether the ALJ erred by failing to fully and

fairly develop the record concerning Plaintiff’s alleged illiteracy; (2) whether substantial evidence
supports the ALJ’s RFC finding; and (3) whether substantial evidence supports the ALJ’s
credibility finding. The Court will address each issue in turn.
1) Whether the ALJ erred by failing to fully and fairly develop the record concerning
Plaintiff’s alleged illiteracy.
Plaintiff argues that the ALJ erred by failing to fully and fairly develop the record
concerning his alleged illiteracy. (Doc. 19 p. 10-12). Plaintiff contends that while he can read
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basic words, he qualifies as illiterate under the SSA’s regulations. (Doc. 19 p. 11-12). Plaintiff
contends that the ALJ should have sent Plaintiff for an evaluation of his reading and writing
abilities to determine if he was illiterate and the ALJ’s failure to do so warrants remand. (Doc. 19
p. 12). In response, Defendant argues that Plaintiff’s argument lacks merit because substantial
evidence indicates that Plaintiff was literate. (Doc. 20 p. 5).
In this case, given the ALJ’s finding that Plaintiff could perform a limited range of light
work, that he has no past relevant work, and that he is closely approaching advanced age, a finding
that Plaintiff is illiterate would entail a finding of disability pursuant to the Grids. 20 C.F.R. Part
404, Subpt. P, App. 2, rule 202.09. Thus, the relevant question is whether substantial evidence
supports the ALJ’s finding that Plaintiff is literate.
“Illiteracy” is defined by the Social Security Act as follows:
Illiteracy means the inability to read or write. We consider someone
illiterate if the person cannot read or write a simple message such as
instructions or inventory lists even though the person can sign his or her
name. Generally, an illiterate person has had little or no formal schooling.
20 C.F.R. § 416.964. Illiteracy is not a nonexertional limitation. Wolfe v. Chater, 86 F.3d 1072,
1078 (11th Cir. 1996). Rather, literacy is a component of the education category under the grids
and, as such, the ALJ bears the burden of proof on the matter. Hood v. Astrue, 2010 WL 1223885,
at *5 (M.D. Fla. Mar. 24, 2010).
In his decision, the ALJ found that Plaintiff has a limited education and is able to
communicate in English. (Tr. 26). The ALJ explained that he reached this decision because “[t]he
claimant testified that he completed an eleventh grade education and can read and write basic
sentences in English. (Hr’g Test. At 2:10pm). I find that the claimant is limited to reading simple
words and short phrases.” (Tr. 27).

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The Court finds that substantial evidence supports the ALJ’s determination. Plaintiff’s
May 20, 2013 Disability Report indicates that he can read and understand English, and write more
than just his name in English. (Tr. 195). Furthermore, at the March 19, 2015 ALJ hearing, the ALJ
asked Plaintiff if he was able to read and write and Plaintiff testified that he could “read basic
stuff,” including street signs. (Tr. 38, 44). Plaintiff demonstrated his ability to read at the ALJ
hearing, by reading something in the room that contained the message “do not shut down.” (Tr.
44). Plaintiff further testified that he could read the easy words in a newspaper and could
comprehend what he read in a newspaper article. (Tr. 44-45).
In reaching this decision, the Court has taken into account Plaintiff’s school records and
standardized tests scores from 30 years ago. While these records certainly demonstrate that
Plaintiff had far from mastered the reading and writing skills expected of an 11 th grader at that
time, they do not demonstrate that Plaintiff was incapable of reading or writing a simple message
as required by the Social Security Act’s definition of illiterate. 20 C.F.R. § 416.964. Accordingly,
the Court finds that the ALJ did not err by failing to fully and fairly develop the record with respect
to Plaintiff’s alleged illiteracy.
2) Whether substantial evidence supports the ALJ’s RFC finding.
Plaintiff argues that the ALJ’s RFC finding is not supported by substantial evidence as the
medical evidence of record demonstrates that Plaintiff is more limited than found by the ALJ.
(Doc. 19 p. 12-15). The fourth step in the evaluation process requires the ALJ to determine the
plaintiff's RFC and based on that determination, decide whether the plaintiff is able to return to
his/her previous work. McCruter v. Bowen, 791 F.2d 1544, 1547 (11th Cir.1986). The
determination of RFC is within the authority of the ALJ and along with the Plaintiff's age,
education, and work experience, the RFC is considered in determining whether the Plaintiff can

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work. Lewis, 125 F.3d at 1440 (citing 20 C.F.R. § 404.1520(f)). The RFC assessment is based
upon all the relevant evidence of a Plaintiff's remaining ability to do work despite her impairments.
Phillips v. Barnhart, 357 F.3d 1232, 1240 (11th Cir. 2004); Lewis, 125 F.3d at 1440 (11th
Cir.1997) (citing 20 C.F.R. § 404.1545(a)). That is, the ALJ must determine if the Plaintiff is
limited to a particular work level, using all relevant medical and other evidence in the case.
Phillips, 357 F.3d at 1238 (citing 20 C.F.R. § 404.1567).
In this case, the Court finds that substantial evidence supports the ALJ’s RFC finding. For
example, consultative examiner Anand K. Rao, M.D. examined Plaintiff on July 24, 2013, and
found that, although Plaintiff’s back and spine were “certainly abnormal” and he demonstrated
some restricted movements, Plaintiff’s flexion at the lumbar spine was 75 degrees, and extension
was normal. (Tr. 24, 269). He could raise his legs 60 degrees on each side, could walk without
any assistive devices, had a slightly abnormal gait, could bend well, and get up from the chair and
table with a moderate amount of difficulty. (Tr. 269). Dr. Rao opined that although Plaintiff has
definite back problems, he could still do a moderate amount of work (Tr. 270). Dr. Rao further
opined that Plaintiff “cannot lift more than 50-65 pounds at a time. Otherwise, he does not have
any significant physical disability at this time” (Tr. 270).
Plaintiff contends that Dr. Rao’s opinion that Plaintiff could still do a moderate amount of
work is ambiguous and could mean that Plaintiff was only capable of performing a moderate
amount of sedentary work. The Court rejects this reading of Dr. Rao’s opinion given that Dr. Rao
only specified that Plaintiff cannot lift more than 50-65 pounds at a time and that Plaintiff had no
other significant physical disability.
The ALJ noted that Plaintiff has not pursued treatment for his back conditions other than
management with pain medications. (Tr. 23-24). The ALJ noted that the November 5, 2013 record

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from Saqib Khan, M.D. indicates Plaintiff declined the epidural procedures he recommended. (Tr.
24, 540-41). There is also no evidence that Plaintiff pursued David Ivan Croteau, M.D.’s referral
for him to see a neurosurgeon. (Tr. 24, 46). In addition, March 2014 examination records indicate
Plaintiff had a steady gait with normal range of motion. (Tr. 24, 589, 607, 616). Moreover, State
agency medical consultant P.S. Krishnamurthy, M.D. opined that claimant had the RFC to perform
a reduced range of light work (Tr. 25, 65-73).
The ALJ noted that although Plaintiff had mild symptoms from uncontrolled hypertension
at one point, Dr. Croteau noted that with medication, the claimant’s symptoms at decreased, that
Plaintiff had excellent control of his blood pressure, and that Plaintiff was experiencing no side
effects due to medication. (Tr. 24). Further, the ALJ noted that Plaintiff’s asthma was treated
conservatively with inhalants and Plaintiff was encouraged to make lifestyle changes. (Tr. 25).
In his brief, Plaintiff cites to various diagnosis in support of his argument that the ALJ’s
RFC is not supported by substantial evidence. For example, Plaintiff notes that an MRI done on
October 6, 2013, shows that the disc at L4-5 abutted the descending nerve roots and caused mild
to moderate bilateral neural foraminal stenosis; that there was a central annular tear causing mild
central canal stenosis; and that the disc at L5-S1 caused minimal neural from stenosis and abutted
the descending left nerve roots. (Doc. 19 p. 13) citing (Tr. 711). Plaintiff notes that Dr. Croteau
described these findings as “significant” and “extensive” pathology. (Doc. 19 p. 13-14) citing (Tr.
309, 311). Plaintiff notes that in taking Plaintiff’s history, Dr. Croteau noted that Plaintiff had
back pain if he stood for too long. (Doc. 19 p. 14) citing (Tr. 291). In addition, Plaintiff notes that
Dr. Khan, the pain management doctor, indicated that Plaintiff’s back pain was aggravated by
walking and standing and relieved by laying down to rest, that Plaintiff was leaning to the right
and walking with difficulty, that Plaintiff had decreased pin prick and temperature at L4-5 and L5-

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S1 distribution on the right, that there was tenderness paraspinal at the facet joints, spasms,
tenderness, trigger points, and range of motion decrease in the lumbar spine; and that Plaintiff had
bilaterall tenderness and decreased range of motion in the sacroiliac joints, and lumbar and thoracic
fact joint tenderness. (Doc. 19).
This evidence does not demonstrate that the ALJ’s RFC finding is not supported by
substantial evidence. While Plaintiff cites to various diagnosis, he has failed to demonstrate that
these impairments result in functional limitations greater than found by the ALJ. See Moore v.
Barnhart, 405 F.3d 1208, 1213 n. 6 (11th Cir. 2005) (“the mere existence of these impairment
does not reveal the extent to which they limit her ability to work or undermine the ALJ’s
determination in that regard.”).
Finally, the Court rejects Plaintiff’s argument that the ALJ’s RFC finding is not supported
by substantial evidence because the ALJ improperly gave great weight to the opinion of agency
non-examining, non-treating physician Dr. P.S. Krishnamurthy. While Plaintiff is correct that Dr.
Krishnamurthy gave his opinion in September of 2013, prior to the MRI evidence and Plaintiff’s
visits to pain management specialist Dr. Kahn, this fact does not mean it was improper for the ALJ
to accord great weight to the opinion. The ALJ’s decision demonstrates that the he considered the
evidence subsequent to Dr. Krishnamurthy’s opinion, and determined that Dr. Krishnamurthy’s
opinion was supported by the medical record, “including the claimant’s spasms and tenderness of
the lower back and slightly abnormal gait.” (Tr. 25).
By finding that substantial evidence supported the ALJ’s RFC determination the Court
does not mean that there is no evidence that runs contrary to the ALJ’s conclusions. As noted
above, however, substantial evidence “is such relevant evidence as a reasonable person would
accept as adequate support to a conclusion” and “[e]ven if the evidence preponderated against the

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Commissioner’s findings, we must affirm if the decision reached is supported by substantial
evidence.” Crawford, 363 F.3d at 1158. Here, the ALJ’s decision is supported by such evidence
that a reasonable person would accept as adequate. Plaintiff has failed to carry his burden on
demonstrating disability. Accordingly, the Court will not disturb the ALJ’s findings
3) Whether substantial evidence supports the ALJ’s credibility finding.
Plaintiff argues that ALJ’s credibility finding was not supported by substantial evidence
because the ALJ erroneously described Plaintiff’s physical examination findings concerning his
back pain as “minimal.” (Doc. 19 p. 16).

Plaintiff contends that there was significant

documentation supporting Plaintiff’s complaints of back pain. (Doc. 19 p. 17).
To establish disability based on testimony of pain and other symptoms, a plaintiff must
satisfy two prongs of the following three-part test: “(1) evidence of an underlying medical
condition; and (2) either (a) objective medical evidence confirming the severity of the alleged pain;
or (b) that the objectively determined medical condition can reasonably be expected to give rise to
the claimed pain.” Wilson v. Barnhart, 284 F.3d 1219, 1225 (11th Cir. 2002) (citing Holt v.
Sullivan, 921 F.3d 1221, 1223 (11th Cir. 1991)). After an ALJ has considered a plaintiff’s
complaints of pain, the ALJ may reject them as not credible, and that determination will be
reviewed to determine if it is based on substantial evidence. Moreno v. Astrue, 366 F. App’x 23,
28 (11th Cir. 2010) (citing Marbury v. Sullivan, 957 F.2d 837, 839 (11th Cir. 1992).
If an ALJ discredits the subjective testimony of a plaintiff, then he must “articulate explicit
and adequate reasons for doing so. [citations omitted] Failure to articulate the reasons for
discrediting subjective testimony requires, as a matter of law, that the testimony be accepted as
true.” Wilson v. Barnhart, 284 F.3d at 1225. “A clearly articulated credibility finding with
substantial supporting evidence in the record will not be disturbed by a reviewing court.” Foote

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v. Chater, 67 F.3d 1553, 1562 (11th Cir. 1995)). The factors an ALJ must consider in evaluating a
plaintiff’s subjective symptoms are: “(1) the claimant's daily activities; (2) the nature and intensity
of pain and other symptoms; (3) precipitating and aggravating factors; (4) effects of medications;
(5) treatment or measures taken by the claimant for relief of symptoms; and other factors
concerning functional limitations.” Moreno v. Astrue, 366 F. App’x at 28 (citing 20 C.F.R. §
404.1529(c)(3)).
Here, the ALJ found that Plaintiff's medically determinable impairments could reasonably
be expected to cause some of the alleged symptoms, but that Plaintiff’s statements concerning the
intensity, persistence, and limiting effects of those symptoms “are not entirely credible for the
reasons explained in this decision.” (Tr. 23). The ALJ explained that although Plaintiff stated his
back impairment restricted his ability to sit, stand, walk, and perform postural limitations, and the
imaging study showed some limitations, treatment for his back condition has been conservative,
he has only a slightly abnormal gait, and he has not pursued treatment other than management with
pain medications. (Tr. 23-24, 269-70, 291, 311, 345, 374, 540-46, 607, 616, 710-11). Furthermore,
Plaintiff alleged that he could no longer work primarily due to his gradual-onset back impairment,
but he did not have a work history to show a contrast in physical ability. (Tr. 23).
Further, the ALJ noted that the medical records document that Plaintiff has had asthma
since birth and that his asthma has not posed significant restrictions on his exertional levels with
appropriate medication. (Tr. 23). Specifically, Plaintiff’s treating physicians have treated
Plaintiff’s asthma conservatively with inhalants and encouragement to make lifestyle changes. (Tr.
25, 271, 291, 342, 345). Plaintiff told Dr. Croteau that he felt that his asthma was well-controlled
(Tr. 25, 291). At Dr. Rao’s consultative examination, Plaintiff’s lungs were clear. (Tr. 25, 269).
Plaintiff continued to receive asthma medications while incarcerated and after his release from jail,

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continued his asthma treatments with Dr. Croteau. (Tr. 25, 453, 489, 553, 555, 557, 616). While
Plaintiff had episodes of wheezing, his overall asthma treatment was consistent and conservative
over time, without multiple acute exacerbations or hospitalizations. (Tr. 25, 271, 291, 342, 345,
453, 489, 595, 603, 607).
In addition, although Plaintiff had mild symptoms from uncontrolled hypertension at one
period, Dr. Crouteau’s records indicate that Plaintiff’s symptoms decreased with medication,
Plaintiff had excellent control of his blood pressure, and had no side effects from the medication.
(Tr. 24). Plaintiff also had no shortness of breath, chest pain or dyspnea, and his blood pressure
reading was normal, 121/81 mmHg. (Tr. 24, 276, 278). As of July 2013, Dr. Croteau noted that
Plaintiff’s blood work looked “excellent.” (Tr. 24, 374, 378). Plaintiff’s blood pressure was also
normal at Dr. Rao’s consultative examination. (Tr. 24, 269). Although Plaintiff had a few instances
of elevated blood pressure during the October 2013 to February 2015 period, overall, the records
indicated that Plaintiff was asymptomatic and his hypertension was well controlled by medications
and monitored with blood work as ordered by his treating physician. (Tr. 24-25, 269, 276, 278,
311, 345, 374, 378, 511, 573, 607, 691).
The ALJ sufficiently explained his reasoning for finding Plaintiff not entirely credible. The
ALJ’s reasoning was supported by substantial evidence. Accordingly, the Court will not disturb
the ALJ’s finding on appeal.
III.

Conclusion

The decision of the Commissioner is AFFIRMED. The Clerk of the Court is directed to
enter judgment consistent with this opinion and, thereafter, to close the file.

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DONE and ORDERED in Fort Myers, Florida on June 28, 2017.

Copies furnished to:
Counsel of Record
Unrepresented Parties

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