Johnson v. Commissioner of Social Security

Filing 18

OPINION AND ORDER: The final decision of the Commissioner of Social Security denying plaintiff Ricky A. Johnson's application for Social Security Disability benefits is REVERSED AND REMANDED for further proceedings consistent with this opinion. The Clerk shall enter judgment in favor of plaintiff and against defendant. Signed by Judge Philip P Simon on 3/19/18. (ksp)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION

RICKY A. JOHNSON,

)
)
Plaintiff,
)
)
vs.
)
)
NANCY BERRYHILL, Acting Commissioner )
of the Social Security Administration,1
)
)
Defendant.
)

3:17CV46-PPS

OPINION AND ORDER

Ricky A. Johnson is a 57-year-old man who left school in the eighth grade and
has worked as a construction laborer and a factory machine operator. [AR at 183, 176,
197.]2 He stopped working on November 27, 2012, just prior to a second surgery on his
cervical spine. [AR at 176, 182.] He had also previously had a surgery on his lumbar
spine in 2007. [AR at 54.] Citing pain in his back and neck, and difficulty lifting and
gripping, Johnson applied for Social Security disability benefits. [AR at 190, 54.]
Johnson had a hearing before a Social Security administrative law judge on July
9, 2015, at which Johnson appeared and gave testimony. [AR at 36-72.] The ALJ issued

1

On January 23, 2017, Nancy Berryhill became the Acting Commissioner of Social Security.
Fed.R.Civ.P. 25(d) provides for Berryhill’s automatic substitution in place of her predecessor, Carolyn
Colvin.
2

The administrative record [AR] is found in the court record at docket entry 10, and consists of
1074 pages. I will cite to its pages according to the Social Security Administration’s Bates stamp numbers
rather than the court’s Electronic Case Filing page number.

a written decision denying Johnson’s claim for benefits on July 23, 2015. [AR 20-35.]
The ALJ found that Johnson has severe impairments of degenerative disc disease of the
lumbar and cervical spines, status post lumbar fusion and cervical fusion, arthritis of
the left acromioclavicular joint, depression and anxiety. [AR at 22.] The ALJ concluded
that Johnson‘s severe impairments do not conclusively establish disability by meeting
or medically equaling the severity of the listed impairments in 20 CFR Part 404, Subpart
P, Appendix 1. [Id. at 23.] The ALJ also found that Johnson possessed the residual
functional capacity to perform light work with limitations, that he was capable of
performing jobs that exist in significant numbers in the national economy, and that
Johnson is not disabled. [AR at 25, 34, 35.] The Social Security Administration’s
Appeals Council denied Johnson’s request for further review. [AR at 1.] This case is
Johnson’s appeal from the denial of disability insurance benefits.
Standard of Review
Johnson asks me to reverse the ALJ’s decision or remand the case for further
proceedings by the Social Security Administration. My review of the ALJ’s decision is
deferential. I must affirm it if it is supported by substantial evidence, meaning “‘such
relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.’” McKinzey v. Astrue, 641 F.3d 884, 889 (7th Cir. 2011) (citation omitted). I
cannot reweigh the evidence or substitute my judgment for that of the ALJ. Minnick v.
Colvin, 775 F.3d 929, 935 (7th Cir. 2015). But these standards do not mean that I “will
simply rubber-stamp the Commissioner’s decision without a critical review of the
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evidence.” Clifford v. Apfel, 227 F.3d 863, 869 (7th Cir. 2000). “In rendering a decision, an
ALJ is not required to provide a complete and written evaluation of every piece of
testimony and evidence, but ‘must build a logical bridge from the evidence to his
conclusion.’” Minnick v. Colvin, 775 F.3d 929, 935 (7th Cir. 2015), quoting Schmidt v.
Barnhart, 395 F.3d 737, 744 (7th Cir. 2005).
Medical Opinion Evidence
Johnson’s first challenge to the ALJ’s decision is that his treatment of various
medical opinion evidence was faulty. Medical opinions are considered by the ALJ in
formulating a claimant’s residual functional capacity. RFC is the disability term for the
description of what a claimant is able to do despite functional limitations from medical
impairments, and represents the Commissioner’s determination of the individual’s
“capacity to perform work-related physical and mental activities.” POMS DI
24510.001(A)(1).
In this case, the ALJ found that Johnson had the RFC:
to perform light work as defined in 20 CFR 404.1567(b) except than he can
only occasionally climb ramps and stairs, balance, stoop, kneel, crouch,
and crawl, but never climb ladders, ropes, or scaffolds. He can do no
more than occasional head turning or looking up or down. He can
perform frequent fingering and feeling bilaterally, but have no exposure
to hazards such as wet, uneven terrain or unprotected heights. Due to
moderate limitations in social functioning, the claimant is limited to
frequent interaction with coworkers and the general public and only
occasional interaction with supervisors.
[AR at 25.]
Under §404.1567(b):
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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.
By its silence on certain capabilities, the ALJ’s RFC suggests no limits on Johnson’s
ability to sit, walk or stand, and an ability to frequently lift or carry 10 pounds, and to
lift up to 20 pounds. In rendering this RFC opinion, the ALJ gave great weight to (that
is, agreed with and adopted) the conclusions of state agency medical consultant Dr. J.
Sands, who completed an RFC assessment on June 17, 2013. [AR at 31-32, 78-80.] The
ALJ offers no explanation for favoring Dr. Sands’ opinion over that of other doctors
with differing opinions about Johnson’s capabilities.
The ALJ had the benefit of a number of medical opinions in arriving at his RFC
assessment. One of Johnson’s treating physicians is Dr. Julian Ungar-Sargon, a
neurologist and specialist in pain management. Dr. Ungar-Sargon provided a Medical
Source Statement in which he offered his opinions about Johnson’s work-related
limitations. Dr. Ungar-Sargon concluded that Johnson could only rarely lift or carry up
to 10 pounds, and could never lift or carry more, based on severe carpal tunnel
syndrome as shown on EMG. [AR at 996.] Due to chronic lumbar spine issues shown
on EMG, Dr. Ungar-Sargon opined that Johnson could sit 2 hours at a time and a total of
3 hours in an 8-hour work day, and that Johnson could stand or walk for an hour at a
time and a total of 2 hours in an 8-hour work day. [AR at 997.] Dr. Ungar- Sargon said
that Johnson could rarely reach overhead and otherwise could never reach, handle,
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finger, feel, push or pull, and that he could only rarely operate foot controls. [AR at 998,
999.]
“A treating physician’s opinion on the nature and severity of a medical condition
is entitled to controlling weight if it is well supported by medical findings and is
consistent with other evidence in the record.” Gerstner v. Berryhill, 879 F.3d 257, 261 (7th
Cir. 2018), citing 20 C.F.R. §404.1527(c)(1). Where an ALJ does not give a treating
doctor’s opinion controlling weight, he must base the weight afforded on regulatory
factors including “the treatment relationship’s length, nature, and extent; the opinion’s
consistency with other evidence; the explanatory support for the opinion; and any
specialty of the treating physician.” Gerstner, 879 F.3d at 263. When the ALJ declines to
give a treating doctor’s opinion controlling weight, he must articulate “good reasons”
for doing so. Brown v. Colvin, 845 F.3d 247, 252 (7th Cir. 2016). The ALJ did not give Dr.
Ungar-Sargon’s assessment “controlling weight or even great weight.” [AR at 32.]
Here the ALJ’s explanation for the lesser weight given Dr. Ungar-Sargon’s
assessment includes the fact that his treatment relationship with Johnson was only 3
months long. [AR at 32.] Nonetheless, Dr. Ungar-Sargon was the only treater from
whom the ALJ had this kind of RFC assessment opinion, and the ALJ had expressly
discounted two other medical opinions on the ground that they were not from doctors
who had treated Johnson. [AR at 29, 31.] In his discussion of the weight of Dr. UngarSargon’s opinion, the ALJ does not expressly acknowledge that the doctor is a specialist
(neurology and pain management), which tends to increase the weight to be given his
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conclusions. 20 C.F.R. §416.927(c)(5) (“We generally give more weight to the opinion of
a specialist about medical issues related to his or her area of specialty than to the
opinion of a source who is not a specialist.”)
Based on his knowledge of Johnson’s history, test results and current condition,
Dr. Ungar-Sargon was willing to opine “within a reasonable degree of medical
probability as to past limitations” that Johnson’s functional limitations were present as
of November 27, 2012. [AR at 1002.] The ALJ is critical of Dr. Ungar-Sargon’s lack of
“firsthand knowledge of the claimant’s functional abilities dating back to the alleged
onset date.” [AR at 32.] As Johnson points out, however:
It is well-settled that the “treating physician rule” applies to retrospective
diagnoses, those relating to some prior time period during which the
diagnosing physician may or may not have been a treating source, as well
as to contemporaneous ones....This means that a retrospective diagnosis
by a treating physician is entitled to controlling weight unless it is
contradicted by other medical evidence or “overwhelmingly compelling”
non-medical evidence.
Martinez v. Massanari, 242 F.Supp.2d 372, 377 (S.D.N.Y. 2003) (internal citations
omitted). The Seventh Circuit has held: “There can be no doubt that medical evidence
from a time subsequent to a certain period is relevant to a determination of a claimant’s
condition during that period.” Halvorsen v. Heckler, 743 F.2d 1221, 1225 (7th Cir. 1984).
The ALJ identifies no medical or other evidence to suggest that Johnson’s medical
condition or its limiting effects were different in 2015 than they had been as of his
claimed onset date of November 27, 2012.

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The ALJ’s justification for discounting Dr. Ungar-Sargon’s opinion concludes
with his assertion that “the overall evidence, including Dr. Ungar-Sargon’s own
treatment records, does not support such restrictive limitations.” [AR at 32.] The
sweeping allusion to the “overall evidence” is not further explained, and no contrary
evidence is identified or cited. As to the doctor’s own records, the ALJ points to tests
ordered by Dr. Ungar-Sargon, suggesting that although the results “showed some
abnormalities, they were only moderately abnormal.” [Id.] The ALJ cannot
persuasively pitch his own (unexplained) interpretation of “moderately abnormal” test
results against those of a medical specialist who cited test results in giving opinions
about a patient’s limitations. ALJs must “rely on expert opinions instead of
determining the significance of particular medical findings themselves.” Moon v.
Colvin, 763 F.3d 718, 722 (7th Cir. 2014). See also Goins v. Colvin, 764 F.3d 677, 680 (7th Cir.
2014) (rejecting ALJ’s interpretation of MRI results).
I conclude that the ALJ failed to provide the necessary “good reasons” for
discounting Dr. Ungar-Sargon’s opinions about Johnson’s functional capacities. Brown,
845 F.3d at 252. The ALJ’s proffered explanation does not demonstrate that Dr. UngarSargon’s assessments were not “well supported by medical findings” or were
“inconsistent with other substantial evidence in the record.” Id.
Johnson also challenges the ALJ’s discounting of the opinion of consultative
examiner Dr. Gregory French. Dr. French’s opinion was that Johnson had no limitations
sitting, walking or standing, as the ALJ found. Dr. French’s opinion was also that
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Johnson could only lift or carry less than 10 pounds, which the ALJ disagreed with.
Now Johnson faults the ALJ for disagreeing with that aspect of Dr. French’s assessment.
Dr. French is one of the physicians whom the ALJ discounted because he was merely
“an examining source as opposed to a treating source.” [AR at 29.] The vacuity of this
reasoning is demonstrated by the fact that the ALJ discounted the only treating medical
source, but gave great weight to a medical source who did not treat OR examine
Johnson, but only reviewed the file (Dr. Sands).
Again the ALJ refers to the “overall evidence,” this time citing Johnson’s
successful recovery from lumbar surgery and “some improvement” after his second
neck surgery. [AR at 29.] What those circumstances have to do with the ability to lift
and carry is unclear. Dr. French had himself found Johnson’s bilateral upper extremity
fine motor abilities diminished as well as the strength of Johnson’s hands. [AR at 353.]
To say that the “overall evidence does not support such a restrictive limitation
regarding lifting and carrying” is to overlook entirely the contrary opinion of the one
treating physician in the file, Dr. Ungar-Sargon, and the medical evidence (test results)
supporting it. [Id.] Other medical evidence is also consistent with Dr. French’s
conclusion about Johnson’s ability to lift and carry. Johnson’s primary care physician,
Dr. Hoff, noted in March 2013 that Johnson suffered from paresthesias of the fourth and
fifth fingers on both hands. [AR at 356.] And the ALJ himself notes “the presence of
some hand numbness” even after the final spinal surgery. [AR at 29, 326.] For these

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reasons, the ALJ’s weighing of Dr. French’s opinion is not well supported by the
explanation he offers.
The ALJ found Johnson to have severe impairments of depression and anxiety.
[AR at 22.] In determining RFC limitations relative to these conditions, the ALJ had
before him the opinions of two psychologists who examined Johnson in June 2015,
Anthony Conger, Ph.D. and Judith Dygdon, Ph.D. [AR Exh. 15F.] The evaluation
performed by Dr. Conger and Dr. Dygdon was undertaken at the request of Johnson’s
attorney for purposes of his disability application. [AR at 1034.] It involved the
doctors’ review of Johnson’s medical records, an interview with Johnson, and the
administration of a battery of tests of behavioral, cognitive and personality functioning.
[AR at 1033.] Dr. Conger and Dr. Dygdon produced a detailed 16-page report [AR at
1033-1048], and completed the Social Security Administration’s form “Psychiatric
Review Technique,” in which they presented their opinion that Johnson’s impairments
met Listings 12.04 (for depressive, bipolar and related disorders) and 12.06 (for anxiety
and obsessive-compulsive disorders). [AR at 1050.] For each category of functional
limitation known as the “B” criteria, Dr. Conger and Dr. Dygdon found Johnson to have
higher degree of limitation than the ALJ ultimately concluded. [AR at 1053.] The ALJ
gave “little weight” to the findings of Dr. Conger and Dr. Dygdon. [AR at 31.]
Johnson challenges the ALJ’s reasons for discounting Dr. Conger and Dr.
Dygdon’s conclusions. The ALJ cites the fact that they were not a “treating source” but
only an “examining source” who saw Johnson on one occasion. [AR at 31.] Again, this
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reliance on the hierarchy of opinion evidence rings false when the ALJ gave the greatest
weight to the state agency consultant, Dr. Sands, who neither treated nor examined
Johnson. Without further explanation, the ALJ dismisses Dr. Conger and Dr. Dygdon’s
report on the grounds that “the findings in their own exam” and “the totality of the
evidence” do not support their opinions. [AR at 31.] These conclusory justifications
that fail to identify and explain the contradictory evidence are an inadequate basis for
the ALJ’s discounting the doctors’ conclusions. Finally, the ALJ refers to Johnson’s
relative lack of mental health treatment. [AR at 31.] But he did so without “considering
possible reasons (the claimant)...may not comply with treatment or seek treatment
consistent with the degree of his or her complaints,” as required by Social Security
Ruling 16-3p. See also Beardsley v. Colvin, 758 F.3d 834, 840 (7th Cir. 2014). For all these
reasons, the ALJ’s discounting of Dr. Conger and Dr. Dygdon’s opinions lacks both
substantial evidence and adequate explanation.
The Commissioner’s support of the ALJ’s decision provides no argument for the
sufficiency of the ALJ’s treatment of these various medical opinions. [AR 15 at 3-5.]
Instead, the brief merely recaps what the ALJ said about each opinion, without
responding to Johnson’s arguments or offering any discussion of why the ALJ’s analysis
was adequate. [Id.] I clearly don’t find the sufficiency of the ALJ’s handling of the
medical source opinions to be self-evident, as the Commissioner’s response suggests.
Instead, I conclude that a lack of substantial evidence and explanation for the weight

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given to each of the four opinions requires a remand for further consideration of those
opinions and their impact on the RFC assessment.
Credibility of Johnson’s Statements about his Subjective Symptoms
Next Johnson argues that the ALJ’s reasons for not fully accepting Johnson’s
statements about his symptoms are “legally insufficient and unsupported by the
record.” [[DE 15 at 19.] Finding Johnson’s statements “not fully credible,” the ALJ cited
“medical records that show only improvement of his symptoms after his surgeries and
that his chronic neck and back pain is well-controlled and stable with medication.” [AR
at 33.] Because the case is being remanded on the grounds previously discussed for
further consideration of Johnson’s RFC, the Commissioner will have a new opportunity
to evaluate the credibility of Johnson’s claims about his symptoms.
Furthermore, the reevaluation can take into account the additional medical
evidence submitted at the Appeals Council level that was too late to be considered by
the ALJ. [AR at 272, 2.] This evidence, not included in the record before me, is
described as the report from an EMG done on October 19, 2015 plus additional records
from treating physician Dr. Ungar-Sargon that Johnson contends support his subjective
complaints. [Id.] This evidence may be pertinent to a reconsideration of the ALJ’s
conclusion that Johnson’s statements about the intensity, persistence and limiting effects
of his symptoms were not entirely credible because the “totality of the evidence” did
not fully support them. [AR at 26.]

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Johnson’s Non-Severe Impairments and Sustainability
Next Johnson challenges the ALJ’s analysis of his COPD and hypothyroidism,
which the ALJ identified as non-severe impairments. [DE 15 at 20; AR at 23.] It is true
that in making an RFC assessment, the Commissioner is required to consider the
combined effect of all impairments, both severe and non-severe. Social Security Ruling
96-8p; Yurt v. Colvin, 758 F.3d 850, 860 (7th Cir. 2014). In determining that these two
conditions have “no more than a minimal impact on the claimant’s ability to perform
basic work activities,” the ALJ cited medical records for his conclusion that both the
COPD and hypothyroidism are stable with Johnson’s treatment. [AR at 23.] He found
that the COPD caused “only intermittent complaints of shortness of breath and
wheezing” and that x-rays showed no active disease. [Id.] The ALJ cited labwork
showing Johnson’s thyroid function within normal limits. [Id.] Johnson does not
dispute these observations and conclusion, but argues that the ALJ erred by failing to
consider whether these non-severe conditions, singly or in combination with his other
impairments, warranted additional limitations in the RFC.
The argument is made without citations to evidence of record. The plaintiff
offers no support for his suggestion that “potential environmental limitations” were
warranted due to Johnson’s COPD or that additional psychosocial limitations needed to
be considered based on nothing more than Johnson’s brief testimony linking agitation
and tears to hyperthyroidism. [DE 15 at 21.] This “perfunctory and undeveloped
argument...unsupported by pertinent authority” is entirely unpersuasive, even if
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considered on its merits rather than deemed waived. Crespo v. Colvin, 824 F.3d 667, 674
(7th Cir. 2016) (perfunctory and undeveloped arguments, and arguments unsupported
by pertinent authority, are waived).
The same is true of Johnson’s argument that the ALJ “did not properly address
whether Mr. Johnson had limitations that prevented him from sustaining a 40-hour
workweek.” [DE 15 at 22.] Johnson merely generally asserts that “the weight of the
evidence” suggested a need for a “sustainability” analysis, but cites no evidence in
support of this contention, which I therefore reject as perfunctory and undeveloped.
Identifying the Applicable Medical-Vocational Rule
Finally, Johnson contends that when the ALJ considered Johnson’s ability to
perform work, the ALJ did not correctly identify the applicable “rule” or “grid” in the
medical-vocational guidelines. [DE 15 at 22.] The ALJ concluded that Johnson’s
limitations impeded his ability to “perform all or substantially all of the requirements
of” the category of “light work,” but nonetheless determined based on the testimony of
the vocational expert that Johnson is “capable of making a successful adjustment to
other work that exists in significant numbers in the national economy.” [AR at 34, 35.]
Johnson now suggests that the ALJ should have given additional consideration
to whether his “exertional capacity is so reduced from the regulatory definition that it
supports a finding that there remains little more than the occupational base for the
lower rule.” [DE 15 at 23.] If this had resulted in an analysis of available “sedentary
work” of which Johnson is capable, he would have been found disabled. [Id. at 24.]
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This argument fundamentally depends on the assessment of Johnson’s RFC. Because
that determination will be revisited on remand, I need not proceed further with a ruling
on the issue now raised.
Conclusion
An ALJ must build a logical bridge from the evidence to his conclusion. Brown v.
Colvin, 845 F.3d at 251; Ghiselli v. Colvin, 837 F.3d 771, 778 (7th Cir. 2016). Because the
ALJ’s decision lacked a coherent explanation of the weight he afforded the medical
opinions of a treating physician, a consultative examiner, and medical and
psychological consultants, I can’t affirm his assessment of Ricky Johnson’s residual
functional capacity. Lopez ex rel. Lopez v. Barnhart, 336 F.3d 535, 539 (7th Cir. 2003) (“the
decision cannot stand if it lacks evidentiary support or an adequate discussion of the
issues”). Johnson has demonstrated that the ALJ’s findings and conclusions about the
severity of his impairments and his residual functional capacity are not supported by
substantial evidence. Even using the applicable deferential standard of review, I
conclude that the ALJ’s determinations are not supported by relevant evidence such as
a reasonable mind might accept as adequate to support his conclusions. Moore, 743 F.3d
at 1120-21. The Commissioner’s final decision denying Johnson’s application for
disability benefits will be reversed and remanded for further consideration.
ACCORDINGLY:

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The final decision of the Commissioner of Social Security denying plaintiff Ricky
A. Johnson’s application for Social Security Disability benefits is REVERSED AND
REMANDED for further proceedings consistent with this opinion.
The Clerk shall enter judgment in favor of plaintiff and against defendant.

SO ORDERED.
ENTERED: March 19, 2018.
/s/ Philip P. Simon
PHILIP P. SIMON, JUDGE

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