Johnson v. Saul

Filing 22

ORDER affirming the Commissioner's decision. CASE CLOSED. Signed by Magistrate Judge Jane M. Virden on 5/6/22. (jla)

Case: 3:21-cv-00055-JMV Doc #: 22 Filed: 05/06/22 1 of 8 PageID #: 1031

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
OXFORD DIVISION
JAMIE MARIE JOHNSON

PLAINTIFF

v.

CIVIL ACTION NO. 3:21-cv-55-JMV

COMMISSIONER OF
SOCIAL SECURITY

DEFENDANT
ORDER

This matter is before the court on Plaintiff’s complaint [1] for judicial review of the
Commissioner of the Social Security Administration’s denial of an application for supplemental
security income and disability insurance benefits. The undersigned held a hearing on May 3, 2022
[20]. Having considered the record, the administrative transcript, the briefs of the parties, the oral
arguments of counsel and the applicable law, the undersigned finds the Commissioner’s decision is
supported by substantial evidence and that said decision should be affirmed.
Standard of Review
The Court’s review of the Commissioner’s final decision that Plaintiff was not disabled
is limited to two inquiries: (1) whether substantial evidence supports the Commissioner’s
decision; and (2) whether the decision comports with relevant legal standards. See 42 U.S.C. §
405(g); Greenspan v. Shalala, 38 F.3d 232, 236 (5th Cir. 1994). When substantial evidence
supports the Commissioner’s findings, they are conclusive and must be affirmed. See 42 U.S.C.
§ 405(g); Richardson v. Perales, 402 U.S. 389, 401 (1971). The Supreme Court has explained:
The phrase “substantial evidence” is a “term of art” used throughout administrative
law to describe how courts are to review agency factfinding. Under the substantialevidence standard, a court looks to an existing administrative record and asks
whether it contains sufficient evidence to support the agency’s factual
determinations. And whatever the meaning of “substantial” in other contexts, the
threshold for such evidentiary sufficiency is not high. Substantial evidence . . . is
more than a mere scintilla. It means—and means only—such relevant evidence as

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a reasonable mind might accept as adequate to support a conclusion.
Biestek v. Berryhill, 139 S. Ct. 1148, 1154 (2019) (emphasis added) (citations and internal
quotations and brackets omitted).
Under the substantial evidence standard, “[t]he agency’s findings of fact are conclusive
unless any reasonable adjudicator would be compelled to conclude to the contrary.” Nasrallah
v. Barr, 140 S. Ct. 1683, 1692 (2020) (citations and internal quotations omitted). In applying
the substantial evidence standard, the Court “may not re-weigh the evidence in the record, nor
try the issues de novo, nor substitute [the Court’s] judgment for the [Commissioner’s], even if
the evidence preponderates against the [Commissioner’s] decision.” Bowling v. Shalala, 36 F.3d
431, 434 (5th Cir. 1994). A finding of no substantial evidence is appropriate only if no credible
evidentiary choices or medical findings exist to support the decision. See Johnson v. Bowen, 864
F.2d 340, 343-44 (5th Cir. 1988).
Statement of the Case
Plaintiff protectively filed an application in the present matter on April 4, 2019, alleging
his disability commenced on June 5, 2018. She was forty (40) years old on the alleged disability
onset date, and she was a “younger person” throughout the relevant period, from her alleged
disability onset date through the date of the ALJ’s decision. She has a GED and past relevant work
experience as a car rental clerk, convenience store/retail stocker/supervisor, cashier, and daycare
worker.
The application was denied initially and upon reconsideration. Plaintiff filed a timely
request for a hearing. A telephonic hearing was held by ALJ Gregory A. Maddox on October 20,
2020. Plaintiff, her attorney, and Elizabeth Wheeler, impartial vocational expert, appeared at the
hearing. The ALJ issued an Unfavorable Decision in this cause on November 13, 2020.

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The ALJ evaluated Plaintiff’s claims pursuant to the five-step sequential evaluation
process. At step one, the ALJ found that Plaintiff had not engaged in substantial gainful activity
since her alleged onset date of June 5, 2018. At step two, the ALJ found that the Plaintiff had the
following “severe” impairments: degenerative disc disease of the lumbar spine, disorders of the
cervical spine, bone lesion of the left proximal tibia, osteoarthritis, undifferentiated connective
tissue disease, plantar fasciitis, and obesity. At step three, the ALJ found that none of Plaintiff’s
impairments, either alone or in combination, met or equaled the criteria of an impairment at 20
C.F.R. Pt. 404, Subpt. P, App. 1 (the Listings).
The ALJ then assessed Plaintiff’s RFC and found that she retained the ability to perform a
range of sedentary work, except she can lift/carry ten pounds occasionally and five pounds
frequently; stand/walk for four hours, and sit for six hours, in an eight-hour day; frequently finger,
handle, and reach; occasionally climb ramps and stairs, balance, stoop, kneel, drive, or work
around machinery or vibration; and never climb ladders or scaffolds, crouch, crawl, or work
around heights.
At step four, the ALJ found that the Plaintiff is unable to perform any past relevant work.
The ALJ also found that transferability of job skills was not material to the determination of
disability. However, at step five, the ALJ found that Plaintiff was capable of making a successful
adjustment to other work that exists in significant numbers in the national economy, such as a
clerk, general office clerk, and document preparer. Accordingly, the ALJ found Plaintiff not
disabled and denied her applications for DIB and SSI.
The Appeals Council issued an Order dated January 20, 2021, which affirmed the ALJ’s
Unfavorable Decision, thereby making it the decision of the Commissioner and the Social Security
Administration for purposes of judicial review under the Social Security Act.
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Discussion
The Plaintiff raises two issues on appeal: 1) whether the ALJ failed to properly consider
all of the evidence of the record; and 2) whether substantial evidence supports the ALJ’s RFC
findings which did not include time “off task or away from the workstation” for the Plaintiff. For
the reasons explained in greater detail below, the Court finds that the ALJ’s decision was supported
by substantial evidence and should be affirmed.
A. Alleged Failure to Properly Consider All of the Evidence
It is indisputable that an ALJ must consider all of the record evidence and cannot “pick and
choose” only the evidence that supports his position. Loza v. Apfel, 219 F.2d 378, 393 (5th Cir.
2000).
The ALJ explicitly notes that he considered the results of an MRI of the lumbar spine that
was performed in December 2018. He notes that “Doctors obtained an MRI of the lumbar spine in
December 2018, wherein resulting images notes some degenerative changes with desiccation of
the L4 and L5 disc. In addition, similar images of the cervical spine identified mild degenerative
disc disease at C6-C7. (Exhibit 12F)” (Tr. 20). Here, the Plaintiff alleges that the ALJ’s failure to
also explicitly note consideration of a September 18, 2020, CT scan of Plaintiff’s lumbar spine
“caused great prejudice to this Plaintiff.” Pl’s Brief [15] at 5. Notably, the September 18, 2020,
CT scan, while not explicitly mentioned by the ALJ, is contained within the same exhibit cited by
the ALJ: 12F. (TR. 20).
This Court finds that the September 2020 CT scan is not materially or substantially
different from the December 2018 MRI. While Plaintiff relies heavily upon the fact that the
findings included “mild to moderate intervertebral disc space narrowing indicating disc
degeneration at the L5-S1 level,” the impression, as analyzed by the radiologist, Gayle Waitches,

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included that the degenerative changes remained “mild.” (Tr. 842-43). Further, the ALJ found
degenerative disc disease and disorders of the cervical spine to be severe impairments. He had also
incorporated specific limitations to Plaintiff’s RFC related to these severe impairments.
Plaintiff urges the Court to find that remand is appropriate as it was in Perry v.
Commissioner, 3:20-cv-116-MPM-DAS. In Perry, Judge Sanders reasoned that “[i]t is perfectly
appropriate for an ALJ to list abilities and limitations that vary from any expert opinion, precisely
because the ALJ is required to consider all of the evidence in the record, including lay testimony.
It is quite another matter, however, for an ALJ to assess an RFC when substantial, apparently
significant medical records have not been subjected to any expert review and no expert opinion
relating to the records is in the record.” See Perry, 3:20-cv-116-MPM-DAS, [24] at 7-8.
The undersigned agrees with Judge Sanders’ reasoning. However, here, the September
2020 CT that Plaintiff is requesting the Court remand the case over is not a “substantial, apparently
significant” medical record because it so closely resembles the December 2018 MRI. Both the
September 2020 CT and the December 2018 MRI contained “mild” findings. An important
distinction between this case and Perry is that here, the record reveals that following the December
2018 MRI showing Plaintiff’s mild degenerative disc disease, Plaintiff appeared for a consultive
examination in July 2019 with Dr. Jim Adams. Dr. Adams found that the Plaintiff had no sensory
or motor deficits, walked with a normal, unassisted gait, could elevate on heels and toes minimally
and squat minimally, complained of pain with lumbar flexion, and rose with difficulty from a
supine position. (TR. 326-28). However, Dr. Adams noted that his exam findings did not suggest
lumbar radiculopathy. (TR. 328).
Disability is not established by an impairment’s existence, but by the functional limitations
the impairment causes. See Hames v. Heckler, 707 F.2d 162, 165 (5th Cir. 1983). Therefore, during

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the hearing, counsel for Plaintiff was questioned regarding what functional limitations, if any,
worsened following the July 2019 CE. Counsel for Plaintiff referenced the transcript citations in
her brief, which included that Plaintiff reported symptoms overall worsening to Dr. Eddleman on
December 21, 2019 (TR 550), reported swelling to her hands in April 2020 (TR 633), and reported
that she was continuing to have severe back and neck pain that limits her mobility (TR 816).
However, the Court notes that each of these are subjective complaints made to providers. To the
contrary, the medical records reveal that in August 2019, Plaintiff saw rheumatologist Kirk
Eddleman, M.D., who observed a normal gait and a normal range of motion throughout without
any obvious weakness. (TR. 336). Then, at a follow-up appointment on April 9, 2020, the
examination showed a normal range of motion and normal gait, but due to complaints of joint pain
and stiffness, Plaintiff was referred to pain management. (TR 739).
Put simply, there is no evidence before this Court tending to show that Plaintiff’s functional
limitations worsened following the consultive examination in July 2019 or that substantial
evidence does not support the ALJ’s decision of not disabled. Plaintiff’s imagining and
examinations were generally characterized by good functioning and mild abnormalities.
Nonetheless, to account for Plaintiff’s complaints of pain and some examinations showing an
abnormal gait or painful range of motion, the ALJ determined that Plaintiff’s spine conditions
limited her to being able to stand or walk for four hours, and sit for six hours, in an eight-hour day
with postural limitations. (TR. 23-24).
Plaintiff has failed to show that she was prejudiced by the ALJ’s lack of articulation of a
particular piece of diagnostic evidence, which the Agency uses only to establish a medical
abnormality, especially where the ALJ accepted, recognized, and found the medical abnormality
the evidence establishes to be severe. It is for these reasons that the Court finds that Plaintiff’s first

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assignment of error to be without merit.
B. The RFC Assessment
The RFC assessment is based on “all of the relevant medical and other evidence” (20 C.F.R.
§ 416.945(a)(3)), including, but not limited to, medical history, medical signs, and laboratory
findings; the effects of treatment; and reports of daily activities, lay evidence, recorded
observations, medical source statements, and work evaluations. SSR 96-8p, 1996 SSR LEXIS 5,
at *13-14. The ALJ has the authority and duty to weigh the evidence and reach any conclusion
supported by substantial evidence. Gonzales v. Astrue, 231 F. App’x 322, 324 (5th Cir. 2007),
citing Holman v. Massanari, 275 F.3d 43 (5th Cir. 2001). “Remand is only appropriate ‘where
there is no indication the ALJ applied the correct standard.” Id. (citation omitted). The burden is
on the party claiming error to demonstrate not only that an error is present, but also that it affected
her “substantial rights.” Shinseki v. Sanders, 556 U.S. 396, 407 (2009). To carry weight, subjective
statements must be corroborated by objective findings. Harrell v. Bowen, 862 F.2d471, 481 (5th
Cir. 1988); SSR 96-8p, 1996 WL 374181, at *5.
Here, Plaintiff argues that the ALJ committed reversible error by not including in the RFC
time off-task or away from the workstation in order to accommodate her assertions of pain and
morning stiffness. Here, the Court is not persuaded that the ALJ failed to properly formulate the
RFC due to Plaintiff’s subjective complaints of pain. “It is the responsibility of the ALJ to interpret
‘the medical evidence to determine [a claimant’s] capacity for work.” Fontenot v. Colvin, 661 F.
App’x 274, 277 (5th Cir. 2016). It is not for this Court to disturb the ALJ’s RFC findings if the
substantial evidence threshold has been met, as it has here.
Conclusion
In this case, the “mild” condition that was established by the December 2018 MRI and

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confirmed by the September 2020 CT was found to be a “severe” impairment by the ALJ.
Nonetheless, the functional limitations caused by this impairment were found by the ALJ to be
non-disabling. The ALJ’s formulation of the RFC accounted for Plaintiff’s “severe” impairments
and his finding of not disabled was supported by substantial evidence. Thus, the Commissioner’s
decision should be and is hereby affirmed.
SO ORDERED this, the 6th day of May, 2022.
/s/ Jane M. Virden
United States Magistrate Judge

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