Johnson v. Social Security Administration, Commissioner of

Filing 19

MEMORANDUM AND ORDER: The judgment of the Commissioner is affirmed pursuant to sentence four of 42 U.S.C. § 405(g). Signed by U.S. District Senior Judge Sam A. Crow on 8/6/14. (mb)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

DEBORAH J. JOHNSON,
Plaintiff,
vs.

Case No. 13-1215-SAC

CAROLYN W. COLVIN,
Acting Commissioner of
Social Security,
Defendant.

MEMORANDUM AND ORDER
This is an action reviewing the final decision of the
Commissioner of Social Security denying the plaintiff disability
insurance benefits and supplemental security income payments.
The matter has been fully briefed by the parties.
I.

General legal standards
The court's standard of review is set forth in 42 U.S.C.

§ 405(g), which provides that "the findings of the Commissioner
as to any fact, if supported by substantial evidence, shall be
conclusive."

The court should review the Commissioner's

decision to determine only whether the decision was supported by
substantial evidence and whether the Commissioner applied the
correct legal standards.
(10th Cir. 1994).

Glenn v. Shalala, 21 F.3d 983, 984

Substantial evidence requires more than a

scintilla, but less than a preponderance, and is satisfied by

1

such evidence that a reasonable mind might accept to support the
conclusion.

The determination of whether substantial evidence

supports the Commissioner's decision is not simply a
quantitative exercise, for evidence is not substantial if it is
overwhelmed by other evidence or if it really constitutes mere
conclusion.

Ray v. Bowen, 865 F.2d 222, 224 (10th Cir. 1989).

Although the court is not to reweigh the evidence, the findings
of the Commissioner will not be mechanically accepted.

Nor will

the findings be affirmed by isolating facts and labeling them
substantial evidence, as the court must scrutinize the entire
record in determining whether the Commissioner's conclusions are
rational.
1992).

Graham v. Sullivan, 794 F. Supp. 1045, 1047 (D. Kan.

The court should examine the record as a whole,

including whatever in the record fairly detracts from the weight
of the Commissioner's decision and, on that basis, determine if
the substantiality of the evidence test has been met.

Glenn, 21

F.3d at 984.
The Social Security Act provides that an individual shall
be determined to be under a disability only if the claimant can
establish that they have a physical or mental impairment
expected to result in death or last for a continuous period of
twelve months which prevents the claimant from engaging in
substantial gainful activity (SGA).

The claimant's physical or

mental impairment or impairments must be of such severity that
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they are not only unable to perform their previous work but
cannot, considering their age, education, and work experience,
engage in any other kind of substantial gainful work which
exists in the national economy.

42 U.S.C. § 423(d).

The Commissioner has established a five-step sequential
evaluation process to determine disability.

If at any step a

finding of disability or non-disability can be made, the
Commissioner will not review the claim further.

At step one,

the agency will find non-disability unless the claimant can show
that he or she is not working at a “substantial gainful
activity.”

At step two, the agency will find non-disability

unless the claimant shows that he or she has a “severe
impairment,” which is defined as any “impairment or combination
of impairments which significantly limits [the claimant’s]
physical or mental ability to do basic work activities.”

At

step three, the agency determines whether the impairment which
enabled the claimant to survive step two is on the list of
impairments presumed severe enough to render one disabled.

If

the claimant’s impairment does not meet or equal a listed
impairment, the inquiry proceeds to step four, at which the
agency assesses whether the claimant can do his or her previous
work; unless the claimant shows that he or she cannot perform
their previous work, they are determined not to be disabled.
the claimant survives step four, the fifth and final step
3

If

requires the agency to consider vocational factors (the
claimant’s age, education, and past work experience) and to
determine whether the claimant is capable of performing other
jobs existing in significant numbers in the national economy.
Barnhart v. Thomas, 124 S. Ct. 376, 379-380 (2003).
The claimant bears the burden of proof through step four of
Nielson v. Sullivan, 992 F.2d 1118, 1120 (10th

the analysis.
Cir. 1993).

At step five, the burden shifts to the

Commissioner to show that the claimant can perform other work
that exists in the national economy.

Nielson, 992 F.2d at 1120;

Thompson v. Sullivan, 987 F.2d 1482, 1487 (10th Cir. 1993).

The

Commissioner meets this burden if the decision is supported by
substantial evidence.

Thompson, 987 F.2d at 1487.

Before going from step three to step four, the agency will
assess the claimant’s residual functional capacity (RFC).

This

RFC assessment is used to evaluate the claim at both step four
and step five.

20 C.F.R. §§ 404.1520(a)(4), 404.1520(e,f,g);

416.920(a)(4), 416.920(e,f,g).
II.

History of case
On May 26, 2011, administrative law judge (ALJ) Evelyn M.

Gunn issued her decision (R. at 19-33).

The Appeals Council

granted the request for review, and on April 11, 2013 issued the
final decision of the Commissioner (R. at 9-12).

The Appeals

Council noted that plaintiff had been found to be disabled as of
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February 25, 2009; thus, the only issue before them was whether
plaintiff was disabled prior to that date (R. at 10).
Plaintiff alleges that she had been disabled since
September 20, 2002 (R. at 19).

Plaintiff is insured for

disability insurance benefits through December 31, 2007 (R. at
21).

At step one, the ALJ found that plaintiff did not engage

in substantial gainful activity since the alleged onset date (R.
at 22).

At step two, the ALJ found that plaintiff had the

following severe impairments: substance abuse, chronic neck
pain, left arm pain, and degenerative disc disease (R. at 22).
At step three, the ALJ determined that plaintiff’s impairments
meet listed impairment 12.04 (affective disorders), 12.06
(anxiety related disorders) and 12.09 (substance addiction
disorders) (R. at 23).
If plaintiff stopped the substance use, plaintiff would
still have a severe impairment or combination of impairments.
However, the ALJ found that if plaintiff stopped substance use,
she would not have a severe mental impairment (R. at 24).

At

step three, if plaintiff stopped substance use, plaintiff would
not have an impairment that would meet or equal a listed
impairment (R. at 26).1
After determining plaintiff’s RFC (R. at 26-27), the ALJ
determined at step four that plaintiff is unable to perform past
1

The remaining findings are based on whether plaintiff stopped the substance use (R. at 26-33).
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relevant work (R. at 31).

At step five, the ALJ found that

plaintiff could perform work that exists in significant numbers
in the national economy (R. at 32).

Therefore, the ALJ

concluded that plaintiff was not disabled (R. at 33).
III.

Did the ALJ err in the weight accorded to the opinions of

Dr. Jonas, a psychiatrist who testified at the hearing, when
determining the severity of plaintiff’s mental impairments and
in making the RFC findings?
Plaintiff argues that the ALJ erred at step two in finding
that plaintiff’s impairments were nonsevere.
proof at step two is on the plaintiff.

The burden of

See Nielson v. Sullivan,

992 F.2d 1118, 1120 (10th Cir. 1993)(the claimant bears the
burden of proof through step four of the analysis).

A

claimant’s showing at step two that he or she has a severe
impairment has been described as “de minimis.”

Hawkins v.

Chater, 113 F.3d 1162, 1169 (10th Cir. 1997); see Williams v.
Bowen, 844 F.2d 748, 751 (10th Cir. 1988)(“de minimis showing of
medical severity”).

A claimant need only be able to show at

this level that the impairment would have more than a minimal
effect on his or her ability to do basic work activities.2
Williams, 844 F.2d at 751.

However, the claimant must show more

2

Basic work activities are “abilities and aptitudes necessary to do most jobs,” 20 C.F.R. § 404.1521(b)[416.921(b)],
including “walking, standing, sitting, lifting, pushing, pulling, reaching, carrying or handling; seeing, hearing, and
speaking; understanding, carrying out, and remembering simple instructions; use of judgment, responding
appropriately to supervision, coworkers, and usual work situations; and dealing with changes in a routine work
setting.” Social Security Ruling 85-28, 1985 WL 56856 at *3; Langley v. Barnhart, 373 F.3d 1116, 1123 (10th Cir.
2004).
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than the mere presence of a condition or ailment.

If the

medical severity of a claimant’s impairments is so slight that
the impairments could not interfere with or have a serious
impact on the claimant’s ability to do basic work activities,
the impairments do not prevent the claimant from engaging in
substantial work activity.

Thus, at step two, the ALJ looks at

the claimant’s impairment or combination of impairments only and
determines the impact the impairment would have on his or her
ability to work.
Cir. 1997).

Hinkle v. Apfel, 132 F.3d 1349, 1352 (10th

A claimant must provide medical evidence that he or

she had an impairment and how severe it was during the time the
claimant alleges they were disabled.

20 C.F.R. § 404.1512(c),

§ 416.912(c).
Even assuming plaintiff met his burden of proving that
plaintiff had a severe mental impairment, the issue before the
court would be whether it is reversible error if the ALJ fails
to list all the severe impairments at step two.

In Brescia v.

Astrue, 287 Fed. Appx. 626, 628-629 (10th Cir. July 8, 2008),
the claimant argued that the ALJ improperly determined that
several of her impairments did not qualify as severe
impairments.

The court held that once an ALJ has found that

plaintiff has at least one severe impairment, a failure to
designate another as “severe” at step two does not constitute
reversible error because, under the regulations, the agency at
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later steps considers the combined effect of all of the
claimant’s impairments without regard to whether any such
impairment, if considered separately, would be of sufficient
severity.

In Hill v. Astrue, 289 Fed. Appx. 289, 291-292 (10th

Cir. Aug. 12, 2008), the court held that once the ALJ finds that
the claimant has any severe impairment, he has satisfied the
analysis for purposes of step two.

The ALJ’s failure to find

that additional alleged impairments are also severe is not in
itself cause for reversal.

However, the ALJ, in determining

plaintiff’s RFC, must consider the effects of all of the
claimant’s medically determinable impairments, both those he
deems “severe” and those “not severe.”
The ALJ relied on the testimony of Dr. Jonas to find that
the medical record does not support the diagnoses of bipolar
disorder or obsessive-compulsive disorder (R. at 22, 24).
Plaintiff points out that medical treatment records include a
psychiatric evaluation which diagnosed plaintiff with obsessivecompulsive personality disorder in 2005 (R. at 461-463), and
treatment notes which diagnosed bipolar disorder in 2006 (R. at
219, 451).

These diagnoses were made on other occasions as well

(e.g., R. at 495, August 2007).

However, Dr. Jonas provided

detailed explanations in support of his testimony that the
evidence did not support a diagnosis of bipolar disorder, and
his testimony that it is not really clear that the diagnosis of
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obsessive-compulsive disorder has led to significant functional
impairments (R. at 876, 883-885).
The court will not reweigh the evidence or substitute its
judgment for that of the Commissioner.

Hackett v. Barnhart, 395

F.3d 1168, 1173 (10th Cir. 2005); White v. Barnhart, 287 F.3d
903, 905, 908, 909 (10th Cir. 2002).

Although the evidence may

support a contrary finding, the court cannot displace the
agency’s choice between two fairly conflicting views, even
though the court may have justifiably made a different choice
had the matter been before it de novo.

Oldham v. Astrue, 509

F.3d 1254, 1257-1258 (10th Cir. 2007).
The medical record does show diagnoses of bipolar disorder
and obsessive-compulsive disorder; Dr. Jonas, in his testimony,
acknowledged those diagnoses, but stated his reasons for finding
that the diagnosis of bipolar disorder was not supported by the
records (R. at 876, 883).

The ALJ could reasonably rely on the

testimony of Dr. Jonas in finding that the record does not
support the diagnosis of bipolar disorder.
Although the ALJ found that Dr. Jonas opined that the
record does not support the diagnosis of obsessive-compulsive
disorder (R. at 24), Dr. Jonas in his testimony actually
indicated that it is not really clear that the obsessivecompulsive disorder has led to significant functional

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impairments (R. at 884).

However, Dr. Jonas clearly considered

the impact, if any, of the obsessive-compulsive disorder when
offering his opinions regarding plaintiff’s RFC,

and the ALJ

gave “considerable” weight to his opinions (R. at 30).
In making her RFC findings, the ALJ stated that she
considered all symptoms and the extent to which these symptoms
can reasonably be accepted as consistent with the objective
medical evidence and other evidence; the ALJ also stated that
she considered the opinion evidence (R. at 27).

In fact, the

ALJ discussed each of the medical opinions, and set forth her
reasons for the relative weight accorded to those opinions (R.
at 30-31).

In light of the fact that the ALJ found other severe

impairments at step two, considered all symptoms and evidence
when making her RFC findings, considered all of plaintiff’s
impairments, and gave great weight to the opinions of Dr. Jonas,
who considered plaintiff’s obsessive-compulsive disorder, the
court finds that the ALJ’s determination that the record does
not support the diagnosis of obsessive-compulsive disorder is
not reversible error.
The next issue is whether the ALJ erred by giving
considerable weight to the opinions of Dr. Jonas in making his
RFC findings.

The ALJ found that, absent substance use,

plaintiff would not have a severe mental impairment (R. at 24).
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At the hearing, Dr. Jonas was asked about plaintiff’s mental RFC
absent alcohol.

He stated that there is no clear description of

an impairment in the areas listed on the mental medical source
statement form (R. at 887).

He testified that, absent alcohol,

she should have her normal baseline capacity to do the things
that she typically did, including waitressing, tending bar and
doing construction related tasks (R. at 887-888).

Dr. Jonas

noted that Dr. Cohen found no evidence of cognitive impairment
(R. at 889).

Dr. Jonas found no limitation in concentration,

persistence, or pace, no limitation in social interaction, and
no limitation in adaptation to a work environment (R. at 890891).

Dr. Jonas specifically discussed the opinions rendered by

Edna Hamera, ARNP, on a form dated January 9, 2009 (R. at 599600), and Dr. Cohen on July 17, 2007 (R. at 398-400).

Dr. Jonas

testified that the limitations expressed by ARNP Hamera were not
supported by the medical record, and explained the basis for his
opinion (R. at 885-887), and he also testified that he did not
agree with the limitations expressed by Dr. Cohen, again
explaining the basis for his conclusions (889-891).
Three mental RFC assessments were prepared on the plaintiff
which were before the ALJ: (1) Dr. Cohen, a non-examining
medical source, July 17, 2007 (R. at 398-400), (2) treatment
provider ARNP Hamera, ARNP, January 9, 2009 (R. at 599-600), and

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(3) treatment provider Dr. Killam, January 27, 2009 (R. at 774775).

The ALJ gave greater weight to the testimony of Dr.

Jonas, and gave little weight to these other opinions.

As the

ALJ correctly stated, none of the medical opinions, with the
exception of Dr. Jonas, considered the extent of plaintiff’s
impairments absent alcohol abuse.
specific question (R. at 30).
evidence.

Only Dr. Jonas addressed that

The court will not reweigh the

The ALJ could reasonably rely on the testimony of Dr.

Jonas in making his mental RFC findings, especially in light of
the fact that only Dr. Jonas testified about plaintiff’s
limitations absent alcohol or drug use.
IV.

Did the ALJ err in finding plaintiff’s alcohol dependence

material to a determination of disability?
In 1996, Congress passed Public Law 104-121.

It added the

following language to 42 U.S.C. § 423(d)(2):
(C) An individual shall not be considered to
be disabled for purposes of this title if
alcoholism or drug addiction would (but for
this subparagraph) be a contributing factor
material to the Commissioner’s determination
that the individual is disabled.

20 C.F.R. § 404.1535 (disability insurance) and § 416.935 (SSI)
are identical, and are the implementing regulations governing
this issue.

The implementing regulations make clear that a

finding of disability is a condition precedent to an application
of §423(d)(2)(C).

The Commissioner must first make a
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determination that the claimant is disabled.

He must then make

a determination whether the claimant would still be found
disabled if he or she stopped abusing alcohol or drugs.

If so,

then the alcohol or drug use is not a contributing factor
material to the finding of disability.

If however, the

claimant’s remaining impairments would not be disabling without
the alcohol or drug abuse, then the alcohol or drug abuse is a
contributing factor material to the finding of disability.

The

ALJ cannot begin to apply §423(d)(2)(C) properly when he has not
yet made a finding of disability.

Drapeau v. Massanari, 255

F.3d 1211, 1214-1215 (10th Cir. 2001).

In other words, an ALJ

must first conduct the five-step inquiry without separating out
the impact of alcoholism or drug addiction.

If the ALJ finds

that the claimant is not disabled under the five-step inquiry,
then the claimant is not entitled to benefits and there is no
need to proceed with the analysis under §§ 404.1535 or 416.935.
If the ALJ finds that the claimant is disabled and there is
medical evidence of his or her drug addiction or alcoholism,
then the ALJ should proceed under §§ 404.1535 or 416.935 to
determine if the claimant would still be found disabled if he or
she stopped using alcohol or drugs.

Bustamante v. Massanari,

262 F.3d 949, 955 (9th Cir. 2001).
Dr. Jonas testified regarding plaintiff’s mental RFC
without alcohol.

As noted above, he testified that she would
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have her normal baseline capacity to do prior work, and the
evidence further suggested she would not have many functional
impairments (R. at 887-888).

He stated that she is very much

more intact after she becomes sober, and that there is no clear
description of an impairment when she is sober (R. at 887).

Dr.

Jonas noted that Dr. Cohen found no evidence of cognitive
impairment (R. at 889).

Dr. Jonas further stated that, absent

alcohol, plaintiff would have no limitation in concentration,
persistence, and pace, no limitation in social interaction, and
no limitation in adaptation (R. at 889-891).

There is no

medical opinion testimony disputing this opinion by Dr. Jonas
regarding plaintiff’s impairments when not abusing alcohol.

The

court finds that substantial evidence supported the
determination by the ALJ that plaintiff could perform
substantial gainful activity absent alcohol abuse.
V.

Did the ALJ err in her credibility analysis?
Credibility determinations are peculiarly the province of

the finder of fact, and a court will not upset such
determinations when supported by substantial evidence.

However,

findings as to credibility should be closely and affirmatively
linked to substantial evidence and not just a conclusion in the
guise of findings.
Cir. 1995).

Kepler v. Chater, 68 F.3d 387, 391 (10th

Furthermore, the ALJ cannot ignore evidence

14

favorable to the plaintiff.

Owen v. Chater, 913 F. Supp. 1413,

1420 (D. Kan. 1995).
When analyzing evidence of pain, the court does not require
a formalistic factor-by-factor recitation of the evidence.

So

long as the ALJ sets forth the specific evidence he relies on in
evaluating the claimant’s credibility, the ALJ will be deemed to
have satisfied the requirements set forth in Kepler.

White v.

Barnhart, 287 F.3d 903, 909 (10th Cir. 2002); Qualls v. Apfel,
206 F.3d 1368, 1372 (10th Cir. 2000).

Furthermore, the ALJ need

not discuss every relevant factor in evaluating pain testimony.
Bates v. Barnhart, 222 F. Supp.2d 1252, 1260 (D. Kan. 2002).

An

ALJ must therefore explain and support with substantial evidence
which part(s) of claimant’s testimony he did not believe and
why.

McGoffin v. Barnhart, 288 F.3d 1248, 1254 (10th Cir.

2002).

It is error for the ALJ to use standard boilerplate

language which fails to set forth the specific evidence the ALJ
considered in determining that a claimant’s complaints were not
credible.
2004).

Hardman v. Barnhart, 362 F.3d 676, 679 (10th Cir.

On the other hand, an ALJ’s credibility determination

which does not rest on mere boilerplate language, but which is
linked to specific findings of fact fairly derived from the
record, will be affirmed by the court.
910.

15

White, 287 F.3d at 909-

The court will not reweigh the evidence or substitute its
judgment for that of the Commissioner.

Hackett v. Barnhart, 395

F.3d 1168, 1173 (10th Cir. 2005); White v. Barnhart, 287 F.3d
903, 905, 908, 909 (10th Cir. 2002).

Although the court will

not reweigh the evidence, the conclusions reached by the ALJ
must be reasonable and consistent with the evidence.

See Glenn

v. Shalala, 21 F.3d 983, 988 (10th Cir. 1994)(the court must
affirm if, considering the evidence as a whole, there is
sufficient evidence which a reasonable mind might accept as
adequate to support a conclusion).
the sufficiency of the evidence.

The court can only review

Although the evidence may

support a contrary finding, the court cannot displace the
agency’s choice between two fairly conflicting views, even
though the court may have justifiably made a different choice
had the matter been before it de novo.

Oldham v. Astrue, 509

F.3d 1254, 1257-1258 (10th Cir. 2007).
The court has carefully reviewed the arguments of the
parties, and finds that substantial evidence supports the ALJ’s
credibility findings.

Although plaintiff points out certain

pieces of evidence that may not support the ALJ’s credibility
findings (Doc. 10 at 26-28), defendant’s brief points to
evidence that does support the ALJ’s credibility findings (Doc.
17 at 7-8).

Dr. Jonas testified that, based on his review of

the records, that plaintiff is very much more intact when sober,
16

and that there is no clear description of a mental impairment
when sober (R. at 887).

The court will not reweigh the

evidence.
IT IS THEREFORE ORDERED that the judgment of the
Commissioner is affirmed pursuant to sentence four of 42 U.S.C.
§ 405(g).
Dated this 6th day of August 2014, Topeka, Kansas.

s/Sam A. Crow
Sam A. Crow, U.S. District Senior Judge

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