Johnson v. Commissioner of Social Security

Filing 20

OPINION AND ORDER. The decision of the Commissioner of Social Security is AFFIRMED. Clerk DIRECTED to enter judgment accordingly. Signed by Chief Judge Philip P Simon on 12/5/13. (cer)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
FORT WAYNE DIVISION
CHARLES JOHNSON, JR.,
Plaintiff,
v.
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.

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Case No. 1:12CV00412-PPS

OPINION AND ORDER
Charles Johnson, Jr. seeks review of the Social Security Administration’s decision to deny
his application for Disability Insurance Benefits and Supplemental Security Income. Johnson
claims he has been disabled since December 31, 2007 due to numbness on his right side and a
pinched nerve in his back. Following a hearing before an ALJ, his application for benefits was
denied. The ALJ concluded that Johnson was not disabled because he could perform a significant
number of jobs in the national economy. This decision is supported by substantial – or at least
substantial enough – evidence. Therefore, the agency decision is AFFIRMED.
BACKGROUND
The relevant facts in this case are sufficiently presented in the agency record and ALJ
decision, so only a brief summary of the highlights is warranted here. Johnson was born on
February 26, 1961. (R. at 23.) He has limited education ending somewhere between the 6th and
9th grades, including some special education classes. (Id. at 62, 354, 377.) He has a learning
disorder and presents with borderline intellectual functioning. (Id. at 72.) Johnson worked as a
general laborer and machine operator from 1997 to 2007. (Id. at 43, 254.) He earned varying
amounts during that time, and in the last two full years of employment (2005 and 2006), he earned
about $36,000 per year. (Id. at 182.) Over the course of his working career, Johnson switched

jobs for various reasons. For example, he says that in one instance, he got stuck in a machine
when his back locked up and he had to quit (Id. at 43); in another, he was terminated when his
then-employer switched to computers which he was not qualified to work on (Id. at 44); and in yet
a different job, he was unable to work after being arrested and incarcerated at the Miami
Correctional Facility in Bunker Hill, Indiana. (Id. at 200, 349-50.)
Johnson originally applied for DIB and SSI in June 2009, claiming that he suffered from a
disability caused by numbness on his right side and a pinched nerve in his back. (Id. at 69, 200.)
These applications were denied, (id. at 69), and Johnson filed a timely request for a hearing. (Id.)
He appeared pro se at the hearing before the ALJ (though he is represented by counsel in these
proceedings). (Id. at 35.)
The ALJ undertook the standard five-step disability analysis mandated by 20 C.F.R.
§§404.1520, 416.920. She first found that Johnson has not engaged in substantial gainful activity
since the alleged onset date, December 31, 2007. (R. at 71.) The ALJ’s analysis then moved to
Step Two, where she found Johnson had the following severe impairments: lumbar degenerative
disc disease; hepatitis C; hypertension; anxiety disorder; major depressive disorder; borderline
intellectual functioning; learning disorder; and history of substance abuse. (Id. at 72.) The ALJ
found at Step Three that Johnson did not have one of the listed impairments or a combination of
impairments that would automatically make him disabled for DBI and SSI purposes. (Id. at 72.)
At Step Four, she determined that his residual functional capacity (“RFC”) precluded him from
performing any past relevant work. (Id. at 82.) However, at Step Five, the ALJ concluded that
even taking into account the reduced RFC and Johnson’s age, education, and work experience,
“there are jobs that exist in significant numbers in the national economy that [Johnson] can
perform.” (Id. at 82.) As such, the ALJ found him not to be disabled. (Id.) The SSA upheld the

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decision at the final agency review stage on September 13, 2012. (Id. at 1-6.) Johnson initiated
judicial review proceedings on November 16, 2012. (DE 1.)
Johnson faults the ALJ’s decision for three principal reasons. First, he contends that the
ALJ improperly ignored that his advanced age puts him in a qualifying category for disability.
Second, he says that the ALJ discounted the medical examinations by the Disability
Determinations Bureau. Finally, Johnson argues that the ALJ erred when she failed to factor his
mental health and intellectual functioning limitations into his credibility assessment in a positive
way, rather than in a negative way. For the reasons discussed below, none of these objections
warrants remand or reversal.
DISCUSSION
I must defer to any factual determinations made by the ALJ and affirm her decision if
substantial evidence supports it. See 42 U.S.C. § 405(g); Craft v. Astrue, 539 F.3d 668, 673 (7th
Cir. 2008). Substantial evidence is “such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971). “In other
words, so long as, in light of all the evidence, reasonable minds could differ concerning whether
the claimant is disabled, we must affirm the ALJ's decision denying benefits.” Schmidt v. Astrue,
496 F.3d 833, 842 (7th Cir. 2007) (internal brackets omitted).
“To determine if substantial evidence exists, the court reviews the record as a whole but is
not allowed to substitute its judgment for the ALJ's by reconsidering facts, reweighing evidence,
resolving conflicts in evidence, or deciding questions of credibility.” Jens v. Barnhart, 347 F.3d
209, 212 (7th Cir. 2003) (internal quotations omitted). An ALJ is not required to discuss every
single piece of evidence or testimony presented; instead, he or she “must provide a ‘logical bridge’
between the evidence and [his or her] conclusions.” Getch v. Astrue, 539 F.3d 473, 480 (7th Cir.

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2008). Credibility determinations are especially entitled to deference because the ALJ has a
crucial opportunity to observe the claimant’s testimony (and I don’t). See Jones v. Astrue, 623
F.3d 1155, 1160 (7th Cir. 2010). Finally, rather than nitpick the ALJ’s opinion for inconsistencies
or contradictions, I must give it a commonsensical reading during judicial review and reverse
credibility determinations only if they are patently wrong. Id.
Johnson’s Age-Related Arguments
Now on to Johnson’s specific arguments. He offers two age-related objections to the
ALJ’s decision. First, he says that his advanced age puts him in a qualifying category for
disability. (DE 13 at 6-7.) Second, Johnson argues that the wrong age was considered by the
vocational expert during his consideration of the hypothetical questions asked by the ALJ. Id.
Neither of these is persuasive.
With respect to his advanced age, it is true that Johnson was only 46 at the alleged onset
date of December 31, 2007, which is considered a “Younger person.” See 20 C.F.R. § 404.1563.
But by the time of the June 9, 2011 hearing, Johnson had turned fifty, which puts him in the
category of a “person closely approaching advanced age.” Id. So there’s little dispute that he
should have been evaluated as someone in the latter category.
And that’s what the ALJ did. To be sure, there is an inconsistency in the ALJ’s opinion.
She first erroneously stated that Johnson was a 46 year-old person. But yet the ALJ went on to
say that Johnson “is defined as an individual closely approaching advanced age,” (R. at 86),
meaning that she plainly knew that he was over the age of fifty. So what is to be made of this
inconsistency? Nothing, I believe, since the ALJ clearly applied the correct – and more lenient –
standard for Johnson’s age at the time of the hearing. More particularly, she used the correct
corresponding rule, Medical-Vocational Rule 202.10, 20 C.F.R. § 404 app. 2 (“Closely

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approaching advanced age”), as a framework for her analysis. (R. at 86.) So any error – and it
seems best described as a scrivener’s error – in the ALJ’s interpretation of what constitutes an
individual “approaching advanced age” and whether Johnson fell in that classification is harmless
at best; at the end of the day, she put Johnson in the right category and applied the right standard.
See McKinzey v. Astrue, 641 F.3d 884, 892 (7th Cir. 2011) (holding that an ALJ’s harmless error is
insufficient basis for remand); Spiva v. Astrue, 628 F.3d 346, 353 (7th Cir. 2010) (same).

Johnson’s second principal age-related contention is that the age the ALJ instructed the
vocational expert to consider during her analysis at the hearing was erroneous. The best thing to
say about this assertion is that it isn’t supported by the record. During the hearing, which was
attended throughout by the vocational expert, Johnson testified that he was fifty years old. (R. at
41.) When the ALJ then asked the vocational expert the standard job-related hypothetical
questions, she prefaced them with the following admonition: “I’d like for you to assume an
individual the claimant’s age....” (R. at 57.) It seems pretty clear to me that this meant for the
vocational expert to assume that the hypothetical individual was fifty years old. I understand that
Johnson disagrees with that, and he thinks that the vocational expert used the age of 46 as a basis
for the hypothetical. Yet he doesn’t point me to any indication in the record that this was the case.
Therefore, he has not met his burden on this issue. See, e.g., Allord v. Astrue, 631 F.3d 411, 416
(7th Cir. 2011).
Opinion of an Independent Physician
Johnson’s next argument is that the ALJ improperly discounted the opinion of a Disability
Determination Bureau doctor (Dr. Kenneth Bundza, Ph.D.), even though the physician was an
independent (and presumably neutral and unbiased) examining source. (DE 13 at 6-7.) It’s true,
of course, that an ALJ should evaluate every medical opinion in the record, regardless of where it

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comes from. See 20 C.F.R. § 404.1527(c); see also McKinzey v. Astrue, 641 F.3d 884, 891 (7th
Cir. 2011) (holding that an ALJ must address every medical opinion offered by the state). But that
doesn’t mean every opinion is treated equally. Instead, there’s a distinct hierarchy in the universe
of medical sources issuing disability opinions.
The various sources of medical opinions are classified into three types: (1) treating
sources, which are medical sources with a history of an ongoing treatment relationship with the
claimant; (2) nontreating sources, which have examined the claimant but do not have an ongoing
treatment relationship; and (3) nonexamining sources, which have not examined the claimant but
provide medical or other opinions. See 20 C.F.R. § 404.1502; see also Simila v. Astrue, 573 F.3d
503, 514 (7th Cir. 2009) (distinguishing between treating and nontreating sources). For obvious
reasons, treating sources are given the most deference, and therefore their opinions are generally
accorded controlling weight. See 20 C.F.R. § 1527(c)(2); see also Simila, 573 F.3d at 514. As
noted below, there’s no suggestion that Dr. Bundza – or anyone else in this case – was a treating
source.
Nontreating and nonexamining sources come next. An ALJ determines how to weigh their
opinions by considering the following factors: (1) whether the source actually examined the
applicant; (2) how long and often the source provided treatment, as well as the nature and extent
of the treatment; (3) the amount of evidence the source provides to support his or her opinion; (4)
the consistency of the source’s opinion with the other evidence in the record; (5) whether the
source is opining in a field in which he or she is specialized; and (6) any factors brought to the
attention of the ALJ, by the claimant or others, or of which the ALJ is aware, that tend to support
or contradict the opinion. Id. at 1527(c); see also Simila, 573 F.3d at 514 (explaining nontreating
analysis generally).

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No single source will (necessarily) be dispositive. “Administrative law judges are not
bound by any findings made by State agency medical or psychological consultants, or other
program physicians or psychologists.” 20 C.F.R. § 404.1527(e)(2)(I). “Unless a treating source’s
opinion is given controlling weight, the administrative law judge must explain in the decision the
weight given to the opinions…” 20 C.F.R. § 404.1527(e)(2)(ii).
Johnson argues that Dr. Bundza’s opinion should be given “just as much weight as the
remainder of Mr. Johnson’s medical evidence and testimony.” (DE 13 at 6-7.) The ALJ’s job is
not to treat all medical evidence the same, however, but to assess the medical evidence and
determine how much weight different opinions and findings should be given. And based on her
opinion, the ALJ seems to have done just that.
During her Step 4 analysis, the ALJ specifically evaluated whether the claimant had a
mental impairment that met the criteria of Listing 12.05 (Mental Retardation). (Id. at 74.) During
that analysis, the ALJ expressly discounted Dr. Bundza’s opinion and gave more weight to a
contradictory opinion from Dr. Maura Clark, Ph.D., which the ALJ explained was more consistent
with the record. (Id. at 79.) The ALJ further indicated that she was minimizing Dr. Bundza’s
opinion vis-a-vis the other opinions proffered during Johnson’s incarceration and its aftermath at
Park Center because those “records of treatment and evaluation fail to suggest that significant
cognitive deficits (as demonstrated during Dr. Bundza’s testing) were suspected.” (Id. at 74.) The
ALJ concluded by noting that – even assuming Dr. Bundza’s IQ testing results were valid – the
mental impairment criteria of Listing 12.05 were still not met, because no records supported the
onset of the impairment before age 22. (Id.)
The ALJ’s opinion demonstrates that she appropriately assessed the weight to be given Dr.
Bundza’s findings, considering the appropriate factors under §1527(c), and that she then gave an

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adequate explanation of the reasons for discounting Dr. Bundza’s conclusions. I certainly can’t
say she was patently wrong. Johnson’s argument presents no basis for reversing the ALJ’s

decision.
That’s not Johnson’s only objection to how the ALJ treated the state doctors’ opinions. He
also argues in a similar vein that the ALJ improperly rejected findings by the State agency when
she discounted the opinion that he was limited to standing/walking for two hours per day (with
other postural maneuvers limited to occasional performance) and that he had trouble following
basic instructions. (DE 13 at 7.)
These arguments are misguided as well, though for a different reason. First, the opinion
that Johnson was limited to standing/walking for two hours per day was not rejected by the ALJ,
but rather incorporated into the RFC and the hypothetical that the ALJ asked the vocational
expert. (R. at 60, 75.) Johnson similarly misstates or misunderstands the findings of Dr. Clark.
(DE 7 at 13.) In fact, Dr. Clark didn’t find that Johnson couldn’t follow basic instructions;
instead, she simply concluded that “[t]his claimant has a work history which argues against
intelligence limiting [his] ability to perform simple tasks.” (R. at 377.) In other words, she found
that his work history suggested that he could undertake simple or repetitive tasks, which at least
implies an ability to take instruction.
The bottom line in this case is that substantial evidence in the record supports the
conclusion that the ALJ gave thoughtful, careful analysis to all medical sources in the record and
weighed those sources appropriately. It’s not my job to reweigh the evidence. See Kasarsky v.
Barnhart, 335 F.3d at 543 (holding that a court sitting on judicial review should not “reweigh the
evidence, resolve conflicts, decide questions of credibility, or substitute our own judgment”);
Clifford v. Apfel, 227 at 869 (7th Cir. 2000).

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The Implication of Johnson’s Inconsistent Testimony at Hearing
Johnson’s final argument is that the ALJ misinterpreted the inconsistencies in his
administrative hearing testimony. Instead of being germane to his credibility, Johnson says, the
inconsistencies underscore his cognitive deficiency and actually supported his claim that he is
suffering from significant mental disability. (DE 13 at 7.)
Perhaps that’s one way to look at it. But it’s not the only way. And I can only reverse a
credibility determination – which this essentially was – if it is patently wrong. See Jones, 623
F.3d at 1160. In this case, the ALJ concluded that the multiple and significant inconsistencies in
Johnson’s testimony and in the record rendered that testimony less than credible. (R. at 77-78.) I
can’t say that she was patently wrong to do so; indeed, I’d probably be inclined to reach the same
conclusion if I were in her seat.
At the end of the day, one of the most important things an ALJ can do – at least as far as
my review is concerned – is enunciate specific reasons for his or her credibility finding. See
Arnold v. Barnhart, 473 F.3d 816, 822 (7th Cir. 2007) (citing SSR 96–7p). “In determining
credibility an ALJ must consider several factors, including the claimant's daily activities, [his]
level of pain or symptoms, aggravating factors, medication, treatment, and limitations….” Villano
v. Astrue, 556 F.3d 558, 562 (7th Cir. 2009). This is for a good reason – I can only determine
whether an ALJ did his or her job if I can understand the ALJ’s basic thought process. “The
finding must be supported by the evidence and must be specific enough to enable the claimant and
a reviewing body to understand the reasoning. Where the credibility determination is based upon
objective factors rather than subjective considerations, we have greater freedom to review the
ALJ’s decision.” Craft v. Astrue, 539 F.3d 668, 678 (7th Cir. 2008) (internal citations omitted).

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The ALJ in this case certainly gave me enough details to understand why she came out the
way she did on the question of Johnson’s credibility. She specifically observed that “[m]uch of
the testimony conflicted with the objective evidence, and as such, it cannot be accorded full
persuasive weight. Furthermore, general credibility is undermined.” (R. at 77.) Indeed, Johnson
concedes that numerous inconsistencies occurred, though he puts a different spin on them. (DE 13
at 6-7.) The inconsistencies specifically noted by the ALJ provide a plausible – and therefore
sufficient – basis for the ALJ to conclude that Johnson’s testimony wasn’t credible.
CONCLUSION
After a careful review of the parties’ briefs and the administrative record, I have concluded
that substantial evidence in the record supports the ALJ’s finding that Johnson is not disabled.
ACCORDINGLY:
The final decision of the Commissioner of Social Security denying plaintiff Charles
Johnson, Jr.’s applications for disability insurance benefits and for supplemental security income
benefits under Titles II and XVI of the Social Security Act is AFFIRMED.
The Clerk shall enter judgment accordingly.
SO ORDERED.
ENTERED: December 5, 2013.
s/ Philip P. Simon
PHILIP P. SIMON, CHIEF JUDGE
UNITED STATES DISTRICT COURT

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