Johnson v. Social Security Administration, Commissioner of

Filing 23

MEMORANDUM AND ORDER: The court shall affirm defendant's decision to deny plaintiff's application for benefits (see order for details). Signed by District Judge Richard D. Rogers on 10/6/14. (meh)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
KATISHA MARIE JOHNSON,
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of the
Social Security Administration,
Defendant.

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Case No. 13-1422-RDR

MEMORANDUM AND ORDER
On July 8, 2011, plaintiff filed applications for social
security disability insurance benefits and supplemental security
income benefits. These applications alleged a disability onset
date of June 24, 2011.

On February 28, 2013, a hearing was

conducted upon plaintiff’s applications.

The administrative law

judge (ALJ) considered the evidence and decided on July 8, 2013
that plaintiff was not qualified to receive benefits.
decision has been adopted by defendant.

This

This case is now before

the court upon plaintiff’s motion to reverse and remand the
decision to deny plaintiff’s applications for benefits.
I.

STANDARD OF REVIEW
To

establish

qualify
that

for
he

or

disability
she

was

benefits,
“disabled”

a

claimant

under

the

must
Social

Security Act, 42 U.S.C. § 423(a)(1)(E), during the time when the
claimant had “insured status” under the Social Security program.

See Potter v. Secretary of Health & Human Services, 905 F.2d
1346, 1347 (10th Cir. 1990); 20 C.F.R. §§ 404.130, 404.131.

To

be “disabled” means that the claimant is unable “to engage in
any

substantial

determinable

gainful

physical

or

activity
mental

by

reason

impairment

of

any

which

.

medically
.

.

has

lasted or can be expected to last for a continuous period of not
less than 12 months.”

42 U.S.C. § 423(d)(1)(A).

For supplemental security income claims, a claimant becomes
eligible in the first month where he or she is both disabled and
has an application on file.

20 C.F.R. §§ 416.202-03, 416.330,

416.335.
The court must affirm the ALJ’s decision if it is supported
by substantial evidence and if the ALJ applied the proper legal
standards.
2004).

Rebeck v. Barnhart, 317 F.Supp.2d 1263, 1271 (D.Kan.

“Substantial evidence” is “more than a mere scintilla;”

it is “such relevant evidence as a reasonable mind might accept
as adequate to support a conclusion.”

Id., quoting Richardson

v. Perales, 402 U.S. 389, 401 (1971).

The court must examine

the record as a whole, including whatever in the record fairly
detracts from the weight of the defendant’s decision, and on
that

basis

decide

defendant’s decision.
Cir.

1994)

(quoting

if

substantial

evidence

supports

the

Glenn v. Shalala, 21 F.3d 983, 984 (10th
Casias

v.

Secretary

of

Health

Services, 933 F.2d 799, 800-01 (10th Cir. 1991)).
2

&

Human

The court may

not reverse the defendant’s choice between two reasonable but
conflicting views, even if the court would have made a different
choice if the matter were referred to the court de novo.

Lax v.

Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007) (quoting Zoltanski
v. F.A.A., 372 F.3d 1195, 1200 (10th Cir. 2004)).
II.

THE ALJ’S DECISION (Tr. 11-24).
There is a five-step evaluation process followed in these

cases which is described in the ALJ’s decision.

(Tr. 12-13).

First, it is determined whether the claimant is engaging in
substantial gainful activity.

Second, the ALJ decides whether

the claimant has a medically determinable impairment that is
“severe” or a combination of impairments which are “severe.”

At

step three, the ALJ decides whether the claimant’s impairments
or

combination

of

impairments

meet

or

medically

equal

the

criteria of an impairment listed in 20 C.F.R. Part 404, Subpart
P, Appendix 1.

Next, the ALJ determines the claimant’s residual

functional capacity and then decides whether the claimant has
the residual functional capacity to perform the requirements of
his or her past relevant work.

Finally, at the last step of the

sequential evaluation process, the ALJ determines whether the
claimant is able to do any other work considering his or her
residual

functional

capacity,

experience.

3

age,

education

and

work

In
should

this
be

case,

denied

evaluation

the

on

ALJ

the

process.

decided

basis

The

of

ALJ

plaintiff’s
the

fifth

determined

application

step

that

of

the

plaintiff

maintained the residual functional capacity to perform jobs that
exist in significant numbers in the national economy.
The

ALJ

decision.

made

the

First,

following

plaintiff

specific

meets

findings

the

in

insured

her

status

requirements for Social Security benefits through December 31,
2011.

Second, plaintiff did not engage in substantial gainful

activity

after

June

24,

2011,

disability.

Third,

plaintiff

impairments:

morbid

obesity;

the
has

alleged
the

onset

date

following

degenerative

disc

and

of

severe
joint

disease of the lumbar spine; status/post left peroneal tendon
repair;

edema

headaches;

mild

of

the

lower

degenerative

extremities;
joint

chronic

recurrent

in

bilateral

disease

the

knees; depression; and a history of learning disorder.
plaintiff

does

not

have

an

impairment

or

Fourth,

combination

of

impairments that meet or medically equal the listed impairments
in 20 C.F.R. Part 404, Subpart P, Appendix 1.

Fifth, plaintiff

has the residual functional capacity to perform sedentary work
as

defined

plaintiff

in
can

20

C.F.R.

lift

20

404.1567(a)
pounds

and

416.967(a)

occasionally

and

10

except
pounds

frequently; can sit for at least 30 minutes at a time and would
then need to stand briefly; can stand for 15-20 minutes at a
4

time;

should

never

occasionally

climb

climb

ladders,

ramps

and

ropes

stairs,

or

scaffolds;

balance,

stoop,

can

kneel,

crouch and crawl; can understand simple and some intermediate
instructions, and has the ability to carry out simple and some
intermediate instructions with adequate pace and persistence;
and should not work with the general public.
Finally,

the

ALJ

determined

that

plaintiff

is

able

to

perform substantial gainful employment in the form of such jobs
as:
ALJ

final assembler, optical; and taper-circuit layout.
based

this

decision

in

part

upon

answers

given

The
by

a

vocational expert.
III.
PLAINTIFF’S ARGUMENTS
DECISION TO DENY BENEFITS.

DO

NOT

WARRANT

REVERSING

THE

Plaintiff’s opening brief lists two arguments in support of
her claim that the denial of benefits should be reversed and
remanded:

first,

weight

a

to

that

treating

the

ALJ

failed

provider,

to

Dr.

assign

Mark

D.

analytical
Goodman,

a

psychologist; and second, that the ALJ failed to identify by
name
given

the

state

psychological

significant

credibility

weight.

analysis

is

consultants
A

raised

third

whose

argument

somewhat

opinions
relating

fleetingly

in

were
to
the

summary of the opening brief, and a broad, but cursory challenge
to the substantiation in support of the ALJ’s decision is also

5

contained

in

the

summary.

The

court

shall

address

these

arguments in order.
A.
The ALJ’s failure to assign analytical weight to a
treating psychologist’s opinion does not require reversal.
Plaintiff’s first argument is that the ALJ failed to assign
analytical weight to the opinion of a treating source, Dr. Mark
D. Goodman.

Plaintiff made several visits to Dr. Goodman in the

second half of 2011.

(Tr. 622, 638-663, 669, 700-721).

Dr.

Goodman initially diagnosed plaintiff with major depression, but
later changed his diagnosis to dysthymia with bipolar features.
Reports from the visits indicate that plaintiff had poor selfesteem and that she felt lonely, worried, pessimistic, insecure
and

helpless.

She

had

problems

with

concentration,

anger,

irritability, and general unhappiness. Plaintiff’s obesity and
financial

challenges

Plaintiff

was

led

not

to

some

delusional

portion

of

according

these

feelings.

Dr.

Goodman.

to

Plaintiff reported that she took care of her four children and
that she did chores, shopping and laundry.
visited with relatives and friends.

Id.

(Tr. 701).

She also

For a brief spell in

October 2011, plaintiff’s children were removed from her home
temporarily
unclean.

by

state

Naturally,

agents
this

because

was

quite

plaintiff’s
upsetting

to

home

was

plaintiff.

But, a month later, she reported to Dr. Goodman that she had had
a very good Thanksgiving (Tr. 721) and some weeks earlier, on

6

August 8, 2011, plaintiff told Dr. Goodman that things were
going “relatively well for her overall.”
listed

plaintiff’s

plaintiff

was

GAF

from

53

visiting

him.1

to

Dr.

the

(Tr.712).
upper

Goodman

did

Dr. Goodman

fifties
not

while

make

any

detailed findings regarding plaintiff’s functional limitations
in such areas as: understanding instructions; getting along with
fellow workers or supervisors; being able to concentrate; or the
ability to complete a normal workday.
The ALJ concluded that plaintiff had mild difficulties in
the

activities

impairments.
had

moderate

concentration,

of

daily

(Tr. 15-16).
difficulties
persistence

living

because

of

her

mental

She also determined that plaintiff
in
or

social
pace.

functioning
(Tr.

16).

and
The

in
ALJ

summarized plaintiff’s initial session with Dr. Goodman in July
2011 (Tr. 18) and referenced the doctor’s reports from October
and November 2011 later in her decision.

(Tr. 19).

There is

no indication in the decision that the ALJ disagreed with Dr.
Goodman’s findings.
The ALJ’s decision gave significant weight to the mental
residual

functional

psychological

capacity

consultants

assessments

which,

1

the

ALJ

of

state

concluded,

agency
were

A GAF score of 51 to 60 “indicates ‘moderate symptoms,’ or ‘moderate
difficulty in social, occupational, or school functioning.’”
Royal v.
Astrue, 2007 WL 1475276 *1 (10th Cir. 2007)(quoting American Psychiatric
Association, Diagnostic and Statistical Manual of Mental Disorders, Fourth
Edition (2000)).

7

“consistent with the evidence of record, including the testimony
from [plaintiff] that she is able to work with depression and
her learning disability.”

(Tr. 22).

The ALJ did not name the

consultants, but identified their assessments as Exhibits D4A
and

D8A.

These

assessments

indicated

that

plaintiff

was

moderately limited in her ability to maintain concentration for
extended

periods

and

in

her

ability

to

carry

out

detailed

instructions, and that she was moderately limited in her ability
to

interact

with

the

general

public.

The

assessments

also

concluded that plaintiff was not significantly limited in the
following areas:

in her ability to carry out very short and

simple instructions; in her ability to perform activities within
a schedule; in being able to maintain regular attendance and be
punctual; in her capacity to sustain an ordinary routine without
special supervision; in the ability to make simple work-related
decisions;

in

relating

appropriately

with

coworkers;

in

accepting instructions and criticism from supervisors; and in
her capacity to maintain socially appropriate behavior.

(Tr.

90-91, 130-31).
Plaintiff

contends

that

the

ALJ

erred

by

not

assigning a weight to the opinion of Dr. Goodman.

expressly
But, the

authorities cited by plaintiff involve situations in which the
opinion of a treating doctor conflicted with the RFC assessment
of the ALJ or with medical evidence relied upon by the ALJ.
8

For

instance, plaintiff cites SSR-96-8p which provides:

“If the RFC

assessment conflicts with an opinion from a medical source, the
adjudicator must explain why the opinion was not adopted.”
WL

374184

at

*7

(emphasis

added).

Plaintiff

also

1996
cites:

Martinez v. Astrue, 422 Fed.Appx. 719 (10th Cir. 2011); Knight v.
Astrue, 388 Fed.Appx. 768, 771 (10th Cir. 7/21/2010); Victory v.
Barnhart, 121 Fed.Appx. 819, 825 (10th Cir. 2/4/2005); Hamlin v.
Barnhart, 365 F.3d 1208, 1215 (10th Cir. 2004); and Watkins v.
Barnhart, 350 F.3d 1297, 1300 (10th Cir. 2003).

In each of these

cases, the ALJs were alleged either to have failed to properly
evaluate medical evidence from a treating physician which was
contrary to the conclusions drawn by the ALJs or to have failed
to discuss or refer to such evidence altogether.

We agree with

defendant that these cases are distinguishable here where the
ALJ discussed Dr. Goodman’s treatment of plaintiff and where
there

is

no

indication

that

Dr.

contrary to the findings of the ALJ.
Fed.Appx.

843,

847

(10th

Cir.

Goodman’s

conclusions

are

See Roybal v. Astrue, 224

5/22/2007)(the

need

to

weigh

evidence is weakened when the evidence is not unfavorable to the
ALJ’s conclusions); see also, Mays v. Colvin, 739 F.3d 569, 57879 (10th Cir. 2014)(failure to discuss and weigh state agency
medical consultants’ opinions is harmless where the opinions do
not conflict with the ALJ’s RFC findings).

9

Plaintiff’s
discuss

Dr.

reply

brief

Goodman’s

accuses

the

notation

ALJ

that

of

failing

plaintiff

to

cried

uncontrollably during a visit in which she told Dr. Goodman that
state officers and the police took her children away because her
home was filthy.

Doc. No. 22, p. 3.

discussed in the ALJ’s decision.

But, this incident is

(Tr. 19).

Plaintiff’s reply

brief also argues that the ALJ failed to discuss Dr. Goodman’s
remark after one visit on October 12, 2011, that it would be
important for plaintiff to work on her personal hygiene because
she had a pronounced foul body odor.

(Tr. 718).

correct

mentioned

that

decision.

this

notation

is

not

Plaintiff is
in

the

ALJ’s

This was the only time that plaintiff’s personal

hygiene is mentioned as an issue by Dr. Goodman.

In other

reports, Dr. Goodman stated that plaintiff bathed daily and took
pride in her appearance (Tr. 701), and that she was clean and
adequately dressed and groomed (Tr. 703).

The court agrees with

defendant that a one-time observation regarding personal hygiene
does not indicate a severe restriction in plaintiff’s ability to
care for herself or in plaintiff’s social functioning.

We note

as well the ALJ rated plaintiff as moderately limited in social
functioning

which

seems

consistent

with

Dr.

Goodman’s

GAF

scores.
An ALJ is obliged to discuss uncontroverted evidence which
he does not rely upon and significantly probative evidence which
10

Clifton v. Chater, 79 F.3d 1007, 1009-10 (10th Cir.

he rejects.
1996).

But, such evidence must have significance to the issues

in the case.

See Mays, 739 F.3d at 576-77 (rejecting argument

of selective review of the evidence where plaintiff does not
show the ALJ ignored significantly probative evidence); KeyesZachary v. Astrue, 695 F.3d 1156, 1166 (10th Cir. 2012)(technical
omissions from ALJ’s discussion do not dictate reversal); Wilson
v.

Astrue,

602

F.3d

1136,

1148

(10th

Cir.

2010)(ALJ

is

not

required to reference everything in the administrative record,
including

entry

reports

from

mental

health

therapists).

Plaintiff has not demonstrated that the ALJ ignored significant
evidence in this case.
B.
The ALJ adequately identified the state agency
psychological consultants whose opinions were given significant
weight.
Plaintiff’s

second

argument

to

reverse

and

remand

the

decision to deny benefits is that the ALJ failed to adequately
explain her decision because she did not identify by name the
“[s]tate
residual

agency

psychological

functional

“significant weight.”

capacity
(Tr. 22)

consultants”
assessments”

whose
were

“mental
given

Plaintiff fails to cite case

authority or regulations which hold that reference to exhibit
numbers and the “mental residual capacity assessments” in those
exhibits is legally insufficient to explain an ALJ’s decision.
In this instance, we find that the ALJ’s decision is clear and
11

capable of meaningful review.

Therefore, the court shall deny

plaintiff’s second argument to reverse and remand.
C. The ALJ’s credibility analysis of plaintiff’s testimony
satisfies the legal standard.
In

the

summary

to

plaintiff’s

opening

brief,

plaintiff

argues that the ALJ ignored plaintiff’s credible testimony that
her ability to stand was limited to 15 to 20 minutes before she
would have to sit down to seek relief.

But, that limitation is

contained in the ALJ’s RFC formulation.

The ALJ found that

plaintiff could “stand for 15-20 minutes at a time.”

(Tr. 16).

Plaintiff acknowledges this but contends that the ALJ did not
include

plaintiff’s

extended

period.

acknowledged
decision.

need
The

plaintiff’s
(Tr.

21).

to

sit

court
need
The

down

rejects
to

court

after
this

alternate
agrees

standing
point.
positions

with

for

an

The

ALJ

in

her

defendant

that

plaintiff’s need to sit after standing for 15-20 minutes at a
time is implicitly reflected in the ALJ’s RFC findings.
Plaintiff also argues in the summary to her opening brief
that the ALJ ignored her testimony that she needed to elevate
her legs eight to ten times daily, sometimes for 30 minutes.
The ALJ acknowledged plaintiff’s complaints of ankle pain and
bilateral leg edema as well as other aspects of plaintiff’s
testimony at page 17 of the record and in other portions of the
decision.

The ALJ made a finding that plaintiff’s statements

12

regarding the intensity, persistence and limiting effects of her
symptoms were not entirely credible.

(Tr. 17).

The ALJ did not

expressly discuss plaintiff’s alleged need to elevate her legs.
But,

she

did

activities,

note

that

including

plaintiff

household

was

able

chores

to

and

perform

caring

children, with no more than a mild limitation.

daily

for

four

(Tr. 17).

The

ALJ noted that plaintiff had no complaints of left ankle pain or
other problems during a February 2010 doctor’s visit following
ankle

surgery.

September

2011

(Tr.

18).

The

examination,

ALJ

also

plaintiff

noted

reported

that

in

a

intermittent

lower extremity edema occurring three times a week for which
plaintiff

was

on

Lasix

management

and

examination found trace peripheral edema.

that

a

doctor’s

(Tr. 19).

The ALJ

referenced soft tissue edema found during an examination in May
2012 (Tr. 19) and swelling of the foot and lower leg on July 24,
2012,

but

noted

that

there

was

no

edema

found

during

examinations conducted in June and July 2012 (Tr. 20).

other

Exhibits

cited by the ALJ referenced later doctor’s examinations which
reported that there was no edema.

(Tr. 20, citing exhibits D31F

and D32F).
The ALJ stated that she reviewed the evidence, including
plaintiff’s allegations and testimony.

(Tr. 22).

The ALJ also

recognized that a claimant’s symptoms can sometimes suggest a
greater level of severity of impairment than can be shown by the
13

objective medical evidence alone.
ALJ

listed

factors

she

(Tr. 20).

considered

in

In this vein, the

evaluating

plaintiff’s

credibility, including activities of daily living; the location,
duration

and

effectiveness
pain.

frequency
of

of

pain

medication

(Tr. 20-21).

and

and

other

other

symptoms;

measures

to

and

the

alleviate

The ALJ referred to her review of the

evidence and plaintiff’s ability to perform daily activities,
including

chores

and

child

care,

regarding plaintiff’s credibility.

to

support

her

(Tr. 17-18).

conclusions

It is implicit

in the ALJ’s decision that this review of the evidence led the
ALJ to conclude that plaintiff’s alleged need to elevate her
legs eight to ten times daily was not credible.
The court believes the ALJ’s review of the evidence and
explanation of her decision are sufficiently clear for the court
to meaningfully review the ALJ’s credibility analysis.

It is

not required that an ALJ designate every statement that he or
she finds credible and every statement which he or she finds
incredible.

Keyes-Zachary,

695

F.3d

at

1169-70.

It

is

sufficient if an ALJ indicates the extent to which he or she
credits the alleged limiting effects of a claimant’s symptoms
and

explains

determination.
794,

800

(10th

the

factors

considered

in

making

that

Id.; see also, Moua v. Colvin, 541 Fed.Appx.
Cir.

2013)(use

of

boilerplate

language

in

credibility analysis does not require reversal when the ALJ’s
14

decision refers to specific evidence).

The court believes the

ALJ accomplished that in her decision by listing plaintiff’s
limitations in the RFC findings and discussing the evidence and
reasons that support the RFC findings, including the evidence
relating to edema and ankle pain.
D.
Plaintiff’s broad challenge to the substantiation for
the ALJ’s decision does not merit reversal of the decision to
deny benefits.
Finally, plaintiff suggests that if the court scrutinizes
or examines the entire record, the court will find that evidence
has been ignored by the ALJ or that substantial evidence does
not support the ALJ’s decision.

Doc. No. 16, p. 29.

For the

most part, however, plaintiff does not specify what evidence was
ignored or why substantial evidence does not support the ALJ’s
decision.

Where plaintiff has been specific, the court has

already discussed and ruled upon plaintiff’s arguments.

Beyond

that, the court will not address plaintiff’s undeveloped attack
upon the decision to deny benefits.

See Mays, 739 F.3d at 575-

76.
IV.

CONCLUSION
In conclusion, for the above-stated reasons the court shall

affirm defendant’s decision to deny plaintiff’s application for
benefits.

15

IT IS SO ORDERED.
Dated this 2nd day of October, 2014, at Topeka, Kansas.

s/RICHARD D. ROGERS
Richard D. Rogers
United States District Judge

16