Johnson v. Commissioner of Social Security

Filing 19

MEMORANDUM OPINION AND ORDER by Magistrate Judge H. Brent Brennenstuhl on 2/4/2019: The final decision of the Commissioner is AFFIRMED. IT IS FURTHER ORDERED that judgement is GRANTED for the Commissioner. cc: counsel (JM)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
OWENSBORO DIVISION
CIVIL ACTION NO. 4:18-CV-00076-HBB
BRANDON LEWIS JOHNSON

PLAINTIFF

VS.
NANCY A. BERRYHILL, Acting
Commissioner of Social Security

DEFENDANT

MEMORANDUM OPINION AND ORDER
BACKGROUND
Before the Court is the complaint (DN 1) of Brandon Johnson seeking judicial review of
the final decision of the Commissioner pursuant to 42 U.S.C. § 405(g). Both the Plaintiff (DN 13)
and Defendant (DN 18) have filed a Fact and Law Summary. For the reasons that follow, the
undersigned orders that judgment be granted in favor of the commissioner.
Pursuant to 28 U.S.C. § 636(c) and Fed.R.Civ.P. 73, the parties have consented to the
undersigned United States Magistrate Judge conducting all further proceedings in this case,
including issuance of a memorandum opinion and entry of judgment, with direct review by the
Sixth Circuit Court of Appeals in the event an appeal is filed (DN 11). By Order entered July 23,
2018 (DN 12), the parties were notified that oral arguments would not be held unless a written
request therefor was filed and granted. No such request was filed.
FINDINGS OF FACT
Plaintiff filed an application for a period of disability and disability insurance benefits on
October 2, 2014 (Tr. 27). Johnson alleged that he became disabled on September 1, 2014 as a
result of back pain, pinched nerve in left leg, depression, chronic pain, headaches, Attention Deficit

Hyperactive Disorder, neck pain, numbness in left leg, anxiety (Tr. 105). Administrative Law
Judge Maribeth McMahon (AALJ@) conducted a hearing on June 1, 2017 via video conference from
Paducah, Kentucky. Plaintiff appeared from Madisonville, Kentucky and is represented by Brent
Yonts. Also present and testifying was James Adams, M.A., an impartial vocational expert.
In a decision dated November 21, 2017, the ALJ evaluated this adult disability claim
pursuant to the five-step sequential evaluation process promulgated by the Commissioner (Tr. 2741). At the first step, the ALJ found Plaintiff has not engaged in substantial gainful activity since
September 1, 2014, the alleged onset date (Tr. 29). At the second step, the ALJ determined that
Plaintiff=s degenerative disc disease, right-sided hearing loss, depression, anxiety, and attention
deficit hyperactivity disorder (ADHD) are Asevere@ impairments within the meaning of the
regulations (Tr. 29). At the third step, the ALJ concluded that Plaintiff does not have an
impairment or combination of impairments that meets or medically equals one of the listed
impairments in Appendix 1 (Tr. 30).
At the fourth step, the ALJ found Plaintiff has the residual functional capacity to perform
light work (Tr. 32). More specifically, the ALJ found that Plaintiff can lift or carry 20 pounds
occasionally and 10 pounds frequently; stand or walk with normal breaks for 6 hours in an 8-hour
workday; push or pull consistent with lifting or carrying weights. He can perform frequent
overhead reaching bilaterally. He can occasionally push or pull with lower extremities, He can
never climb ladders, ropes or scaffolds, but can occasionally climb ramps and stairs. He can
occasionally stoop, kneel, crouch, and crawl. He can frequently balance. He should avoid
concentrated exposure to vibrations and loud noises. He is able to understand, remember and carry
out simple instructions. He is able to maintain attention and concentration for the time required to
complete simple tasks. He is able to work in coordination with or in proximity to others without

being distracted by them. He can complete a normal workweek without excessive interruptions
from psychologically based symptoms. He is able to respond appropriately to supervisors and
coworkers but can have only occasional contact with the public. He is able to adapt to routine
changes and avoid hazards in a work setting with routine support and structure. (Tr. 32). Relying
on testimony from the vocational expert, the ALJ found that Plaintiff is unable to perform any of
his past relevant work as a coal miner, lineman, material handler, and tree cutter (Tr. 40).
The ALJ proceeded to the fifth step where he considered Plaintiff=s residual functional
capacity, age, education, and past work experience as well as testimony from the vocational expert
(Tr. 40). The ALJ found that Plaintiff is capable of performing a significant number of jobs that
exist in the national economy (Tr. 40). Therefore, the ALJ concluded that Plaintiff has not been
under a Adisability,@ as defined in the Social Security Act, from September 1, 2014 through the
date of the decision (Tr. 41).
Plaintiff timely filed a request for the Appeals Council to review the ALJ=s decision (Tr.
204-205). The Appeals Council denied Plaintiff=s request for review of the ALJ=s decision (Tr. 1).
CONCLUSIONS OF LAW
Standard of Review
Review by the Court is limited to determining whether the findings set forth in the final
decision of the Commissioner are supported by Asubstantial evidence,@ 42 U.S.C. § 405(g); Cotton
v. Sullivan, 2 F.3d 692, 695 (6th Cir. 1993); Wyatt v. Sec’y of Health & Human Servs., 974 F.2d
680, 683 (6th Cir. 1992), and whether the correct legal standards were applied. Landsaw v. Sec’y
of Health & Human Servs., 803 F.2d 211, 213 (6th Cir. 1986). ASubstantial evidence exists when
a reasonable mind could accept the evidence as adequate to support the challenged conclusion,
even if that evidence could support a decision the other way.@ Cotton, 2 F.3d at 695 (quoting

Casey v. Sec’y of Health & Human Servs., 987 F.2d 1230, 1233 (6th Cir. 1993)). In reviewing a
case for substantial evidence, the Court Amay not try the case de novo, nor resolve conflicts in
evidence, nor decide questions of credibility.@ Cohen v. Sec’y of Health & Human Servs., 964
F.2d 524, 528 (6th Cir. 1992) (quoting Garner v. Heckler, 745 F.2d 383, 387 (6th Cir. 1984)).
As previously mentioned, the Appeals Council denied Plaintiff=s request for review of the
ALJ=s decision (Tr. ____). At that point, the ALJ=s decision became the final decision of the
Commissioner. 20 C.F.R. §§ 404.955(b), 404.981, 422.210(a); see 42 U.S.C. § 405(h) (finality of
the Commissioner’s decision). Thus, the Court will be reviewing the decision of the ALJ, not the
Appeals Council, and the evidence that was in the administrative record when the ALJ rendered
the decision. 42 U.S.C. § 405(g); 20 C.F.R. § 404.981; Cline v. Comm’r of Soc. Sec., 96 F.3d
146, 148 (6th Cir. 1996); Cotton v. Sullivan, 2 F.3d 692, 695-696 (6th Cir. 1993).
The Commissioner’s Sequential Evaluation Process
The Social Security Act authorizes payment of Disability Insurance Benefits and
Supplemental Security Income to persons with disabilities. 42 U.S.C. §§ 401 et seq. (Title II
Disability Insurance Benefits), 1381 et seq. (Title XVI Supplemental Security Income). The term
Adisability@ is defined as an
[I]nability to engage in 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 (12)
months.
42 U.S.C. §§ 423(d)(1)(A) (Title II), 1382c(a)(3)(A) (Title XVI); 20 C.F.R. §§ 404.1505(a),
416.905(a); Barnhart v. Walton, 535 U.S. 212, 214 (2002); Abbott v. Sullivan, 905 F.2d 918, 923
(6th Cir. 1990).

The Commissioner has promulgated regulations setting forth a five-step sequential
evaluation process for evaluating a disability claim. See AEvaluation of disability in general,@ 20
C.F.R. §§ 404.1520, 416.920. In summary, the evaluation proceeds as follows:
1)

Is the claimant engaged in substantial gainful activity?

2)

Does the claimant have a medically determinable
impairment or combination of impairments that satisfies the
duration requirement and significantly limits his or her
ability to do basic work activities?

3)

Does the claimant have an impairment that meets or
medically equals the criteria of a listed impairment within
Appendix 1?

4)

Does the claimant have the residual functional capacity to
return to his or her past relevant work?

5)

Does the claimant’s residual functional capacity, age,
education, and past work experience allow him or her to
perform a significant number of jobs in the national
economy?

Here, the ALJ denied Plaintiff=s claim at the fifth step.
Challenged Findings
1. The ALJ Unconstitutionally Applied the Medical-Vocational Guidelines (grid rules).
It appears that Johnson is challenging the constitutionality of the Medical Vocational
Guidelines, otherwise known as grid rules, as applied to his application for Social Security
benefits. He argues that he was unconstitutionally discriminated against because of his age. (DN
13-1 PageID# 784).
At the fifth step in the Commissioner’s Sequential Evaluation Process, The ALJ
appropriately considered Johnson’s residual functional capacity, age, education, and work
experience in conjunction with the Medical Vocational Guidelines (Tr. 40). The ALJ found that
Johnson could perform light work with certain limitations. The grid rules require different

standards to be met to support a finding that a claimant is disabled based on that claimant’s age.
Medical-Vocational Guidelines, 20 CFR Part 404, Subpart P, Appendix 2. The use of grid rules
as a framework to decide Social Security disability cases is not inconsistent with the Social
Security Act. Heckler v. Campbell, 461 U.S. 458, 467-68 (1983). The Sixth Circuit has held that
the grid rules do not unfairly discriminate against a claimant based on age. Kirk v. Sec’y of Health
& Human Servs., 667 F.2d 524 (6th Cir. 1981), cert. denied, 461 U.S. 957 (1983). Johnson cites
no case law to support his contention that the grid rules are unconstitutional. Nor does he present
any evidence from the record that the ALJ inappropriately applied the grid rules to unfairly deny
him benefits “essentially because of his youth.” He merely asserts that he was 31 years old at the
alleged onset date of disability and recites the ALJ’s determination of his Residual Functional
Capacity at Step Four and his jobs he can perform at Step Five. Johnson’s argument is entirely
without merit.
Johnson adds that the ALJ incorrectly applied the grid rules to (DN 13-1 PageID # 785).
He argues the ALJ contradicts herself by “conflat[ing] sedentary and light work and the
requirements” (Id.). Johnson misconstrues the ALJ’s finding. If a claimant=s age, education,
previous work experience, and residual functional capacity do not coincide with all the criteria of
a particular Grid Rule, the Commissioner is limited to using the Grid Rule as a framework in the
decision-making process and must make a non-guideline determination based on the testimony of
a vocational expert. 20 C.F.R. §§ 404.1566(e), 416.966(e); Born, 923 F.2d at 1174; Varley v.
Sec’y of Health & Human Servs., 820 F.2d 777, 779 (6th Cir. 1987); Kirk v. Sec’y of Health &
Human Servs., 667 F.2d 524, 531, 535 (6th Cir. 1981), cert. denied, 461 U.S. 957 (1983). In this
situation a vocational expert will be “able to determine the size of the remaining occupational base,
cite specific jobs with the individual’s residual functional capacity, and provide a statement of the

incidence of those jobs in the region of the individual’s residence or in several regions of the
country.” Wright v. Massanaari, 321 F.3d 611, 615-16 (6th Cir. 2003). That is precisely what
happened here. The ALJ relied on the testimony of the Vocational Expert to determine that
Johnson is capable of performing light work with some limitations. In other words, he can perform
some light and some sedentary work. Johnson mistakes this finding for conflating light and
sedentary work, somewhat incredulously arguing, the ALJ has required him to work more hours
“than there are in a day” (DN 13-1 PageID # 785). Contrary to Johnsons claims, the ALJ
appropriately used the grid rules as guidelines. She based her finding of jobs that Johnson can
perform on the testimony of the vocational expert. This constitutes substantial evidence. See
Bradford v. Sec’y, Dep't. of Health & Human Servs., 803 F.2d 871, 874 (6th Cir. 1986). Therefore,
this Court may not disturb the ALJ’s decision.
2. Vocational Expert’s Opinion
Johnson contends the ALJ ignored the vocational expert’s opinion that he was disabled
(DN PageID # 786). The record does not support Johnson’s assessment of the vocational expert’s
opinion. The vocational expert testified that Johnson could not complete any of his past relevant
work. However, that is not the definition of disabled as defined by the Social Security Act. A
person is disabled if they are unable to “engage in any substantial 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. §§ 423(d)(1)(A) (Title II), 1382c(a)(3)(A) (Title XVI); 20 C.F.R. §§ 404.1505(a),
416.905(a). The VE testified that Johnson could complete jobs at the light and sedentary level,
specifically, Bagging Salvage (light, SVP 1), Collator Operator, (light SVP 2), Warehouse Checker

(light, SVP 2), Puller-through or Turner (Sedentary, SVP 1), Dial Marker (Sedentary, SVP 2),
Patcher (Sedentary, SVP 2) (Tr. 88-92).
Johnson seems to argue that the nature of the ALJ’s hypotheticals to the vocational expert
at his hearing were prejudicial and indicative of a decision based purely on his age. There is
nothing in the record to support this claim. As explained in the previous section, if a claimant
cannot perform substantially all of the exertional demands of work at a given level of exertion, the
medical-vocational rules are used as a framework for decision making. The ALJ reasonably
determined that Johnson could not perform the full range of light work given his limitations (Tr.
41). Therefore, her opinion adopted the vocational expert’s answers to hypotheticals inquiring if
jobs existed in significant numbers in the national economy that Johnson could perform given his
age, education, work experience, and residual functional capacity. See 20 CFR 404.1569(a). This
the correct application of the law.
A vocational expert's testimony can constitute substantial evidence to support the
Commissioner=s finding that a plaintiff is capable of performing a significant number of jobs
existing in the local, regional, and national economies, Bradford v. Sec’y, Dep't. of Health &
Human Servs., 803 F.2d 871, 874 (6th Cir. 1986) (per curiam), so long as a vocational expert's
testimony is based on a hypothetical question which accurately portrays the plaintiff's physical and
mental impairments. Varley v. Sec’y of Health & Human Servs., 820 F.2d 777, 779 (6th Cir.
1987). A hypothetical question is not erroneous where at least one doctor substantiates the
information contained therein. Hardaway v. Sec’y of Health & Human Servs., 823 F.2d 922, 92728 (6th Cir. 1987) (per curiam). The ALJ’s hypotheticals more than satisfied this standard, and
her opinion ultimately adopted the testimony of the VE (Tr. 42). Johnson begrudges the ALJ’s
decision not to discuss all the hypotheticals proposed at the hearing (DN 13-1 PageID # 787).

However, these hypotheticals were based on the medical source statements of Dr. Chappell and
Dr. Jungblom. The ALJ afforded no weight to these opinions when determining Johnson’s residual
functional capacity and provided good reasons for doing so (Tr. 38-39). See Cole v. Astrue, 661
F.3d 931, 939 (6th Cir. 2011). Thus, the hypotheticals raised by Johnson were irrelevant to the
ALJ’s finding of whether Johnson was disabled at Step Five in the Sequential Evaluation Process.
Johnson’s argument is without merit.
3. The ALJ Disregarded Evidence
Johnson argues that the ALJ erroneously failed to consider certain medical evidence in her
opinion. To some extent, this argument permeates Johnson’s entire brief. However, he explicitly
mentions that the ALJ did not mention hearing loss in her posed hypotheticals, nor did she factor
in all the proposed vocational limitations in the medical source statements by Dr. Chappell and Dr.
Jungblom (DN 13-1 PageID # 788).
First, the record does not support Johnson’s claims. The ALJ considered Johnson’s hearing
loss due to Meniere’s disease a severe impairment (Tr. 29). She also addressed it when assessing
Johnson’s residual functional capacity (Tr. 35). As a result, she recommended that he avoid any
concentrated exposure to loud noises (Tr. 35).
Johnson’s argument concerning medical source statements is equally without merit. It is
based on a fundamental misunderstanding of the standard of review that binds this Court. The
undersigned is limited to reviewing whether the ALJ’s opinion is based on substantial evidence.
If so, no further inquiry is permitted. This is true even if substantial evidence would support the
opposite conclusion. Cotton v. Sullivan, 2 F.3d 692, 695 (6th Cir. 1993); Wyatt v. Sec’y of Health
& Human Servs., 974 F.2d 680, 683 (6th Cir. 1992). Johnson argues that the ALJ erroneously
ignored medical source statements from Dr. Chappell and Dr. Jungblom. This is incorrect.

The regulations require Administrative Law Judges to evaluate every medical opinion in
the record. 20 C.F.R. §§ 404.1527(c); 416,927(c).1 The process of assigning weight to medical
opinions in the record begins with a determination whether to assign controlling weight to the
medical opinion of the treating source. 20 C.F.R. §§ 404.1527(c); 416,927(c). If controlling
weight is not assigned to the treating source’s opinion, the Administrative Law Judge must
consider the factors in paragraphs (c)(1)-(6) of this section in deciding how much weight to accord
each of the medical opinions in the record, including the medical opinion from the treating source.
20 C.F.R. §§ 404.1527(c); 416.927(c). The Commissioner is required to provide “good reasons”
for discounting the weight given to a treating-source opinion.

Id. § 404.1527(c)(2).

The

procedural requirements to assign weight to the opinion of a treating source and provide “good
reasons” for that weight serves both to ensure adequacy of review and to give the claimant a better
understanding of the disposition of his case. Cole v. Astrue, 661 F.3d 931, 939 (6th Cir. 2011)
(citing Rogers v. Comm’r, 486 F.3d 234, 242 (6th Cir. 2007)).
The ALJ fully complied with these procedural requirements when determining Johnson’s
residual functional capacity at step four. The ALJ considered Dr. Chappell as a treating source
and afforded the opinion no weight (Tr. 38). The ALJ noted that Dr. Chappell is a family
practitioner and her opinions were inconsistent with the rest of the medical evidence in the record,
even her own treatment notes. (Tr. 38). The ALJ considered Dr. Chappell’s opinion that Johnson
was disabled, but correctly noted this is a question left to the commissioner (Tr. 38).
Dr. Jungblom’s opinion was also afforded no weight. Dr. Jungblom performed a one-time
psychological evaluation of Johnson in September 2015 (Tr. 36). Dr. Jungblom was not a treating

Effective March 26, 2012, the numbering of the treating physician rules changed. Section
416.927(d)(2) became 416.927(c)(2), and section 404.1527(d)(2) became 404.1527(c)(2).

1

source, and therefore was not evaluated for controlling weight. The ALJ afforded her opinion no
weight because it was inconsistent with the rest of the medical record (Tr. 36). State agency mental
consultants opined Johnson was able to perform a range of simple work. The ALJ determined this
was consistent with the medical evidence in the record and adopted their opinion (Tr. 39). Thus,
the ALJ’s findings were based on substantial evidence. See Atterbery v. Sec’y of Health & Human
Servs., 871 F.2d 567, 570 (6th Cir. 1989) (Opinions of a non-examining State agency
psychological adviser that are consistent with the evidence of record represent substantial evidence
to support the Administrative Law Judge=s findings).
Notably, Johnson has failed to present any argument addressing the weight given to the
various medical opinions in the record. He complains that the ALJ “ignored” evidence in the
record. But the discussion above makes clear that is not accurate. The ALJ considered all the
medical opinions, including those preferred by Johnson - Dr. Chappell and Dr. Jungblom. The
ALJ afforded these decisions no weight and provided good reasons for doing so in accordance
with Social Security Regulations. See Cole v. Astrue, 661 F.3d 931, 939 (6th Cir. 2011). Johnson
does nothing more than attempt to elevate medical opinions that support his preferred outcomes.
He does not address the ALJ’s methods for assigning weight to the various medical opinions when
assessing his RFC. This suggests a misunderstanding of the role of this Court. This Court may
not conduct a de novo review of Johnson’s case, it may simply determine if the ALJ has supported
her opinion with substantial evidence. If she has, the undersigned must uphold that decision, even
if substantial evidence supports the opposite conclusion. Cotton v. Sullivan, 2 F.3d 692, 695 (6th
Cir. 1993); Wyatt v. Sec’y of Health & Human Servs., 974 F.2d 680, 683 (6th Cir. 1992). Johnson
has not attempted to argue that the ALJ erroneously assigned weight to the medical opinions in the
record. Therefore, he has waived that argument. See United States v. Layne, 192 F.3d 556, 566

(6th Cir.1999) (quoting McPherson v. Kelsey, 125 F.3d 989, 995-96 (6th Cir.1997)); see also
Brindley v. McCullen, 61 F.3d 507, 509 (6th Cir.1995) (observing that A[w]e consider issues not
fully developed and argued to be waived.@).
ORDER
IT IS HEREBY ORDERED that the final decision of the Commissioner is AFFIRMED.
IT IS FURTHER ORDERED that judgement is GRANTED for the Commissioner.

February 4, 2019

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