Johnson v. Colvin
ORDER. The Commissioner's decision is reversed and the case is remanded for further proceedings consistent with this Order. Signed on 7/7/17 by District Judge Nanette K. Laughrey. (Matthes Mitra, Renea)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MISSOURI
ANITA MARIE JOHNSON,
NANCY A. BERRYHILL,
of Social Security,
Case No. 4:16-cv-00952-NKL
Plaintiff Anita Marie Johnson appeals the Commissioner of Social Security’s final
decision denying her application for disability and disability insurance benefits under the Social
Security Act. The decision is reversed and remanded for further proceedings.
Johnson was born in 1956. She worked for an auto auction from 2000 until 12/7/2011,
when she alleges she became disabled. The Administrative Law Judge held a hearing on
3/4/2015 and denied her application on 5/22/2015, and the Appeals Council denied her request
for review on 8/1/2016. Johnson’s date last insured was 12/31/2016, so she must establish
disability on or before that date to qualify for benefits. In this appeal, Johnson argues that the
ALJ’s conclusions at Steps 2 and 4 of the sequential analysis were unsupported.
Mental health history
Johnson was treated through Tri-County Mental Health Services from September 2008
through February 2010, where she was seen by Shahbaz Khan, M.D., a psychiatrist, and
counselors. She discontinued treatment and was discharged from care as “moderately improved”
with a diagnosis of “Bipolar II.” Tr. 256. At the time of discharge, she was taking Lamictal,
Abilify, and Wellbutrin, and was noted to be medication compliant. Id.
In May 2014, Johnson established care with Khursheed Zia, M.D., a psychiatrist, whom she
continued to see through March 2015. At her initial evaluation, Johnson reported that she had been
getting mental health services “all her life and been given different diagnoses[,]” and had “been
depressed for the last 45 years.” Tr. 324. She said she had been off of her psychiatric medications
for a long time and that some of the medications made her catatonic. She reported three suicide
attempts and having been abused in the past, that she experienced symptoms of depression every day,
and that a demon lived inside her who wanted to kill her. Id.
Dr. Zia noted that Johnson was
cooperative, her behavior was unremarkable, her memory was intact, and she had fair judgment and
insight, logical thought processes, and realistic self-perception.
However, she was
struggling with depression, anxiety, and anger problems, and appeared “a little delusional[.]” Id. He
diagnosed Johnson with major depression, recurrent, chronic, and personality disorder not otherwise
specified, and prescribed Risperdal, Celexa, and Klonopin. Tr. 319. In August 2014, Johnson was
not doing well and reported that she had called the crisis line because she did not want to commit
suicide. Her mood was irritable and depressed. Dr. Zia added lithium to her medications. In January
2015, the doctor diagnosed Johnson with recurrent depressive psychosis, personality disorder not
otherwise specified, alcohol abuse, and pathological gambling, and renewed her prescriptions for
lithium, Celexa, and Klonopin. Tr. 396. In March 2015, the doctor renewed Johnson’s prescriptions
and listed the same diagnoses as in January 2105, but noted that her alcohol abuse and pathological
gambling were improved.
Johnson saw a counselor, Randell Wilson, from March 2014 through February 2015. In June
2014, she told Wilson that she needed disability because she could not work around a lot of people
and still be able to function. Tr. 316. In February 2015, she told Wilson that she was doing better,
but having some anxiety due to an approaching disability hearing.
In January 2016, after the ALJ’s decision in this case, Johnson saw a social worker, Shannon
Johnston, LCSW. Johnson said she was returning for services due to major depressive disorder
based on multiple factors including health problems, difficulty working, and failed disability
attempts, and that she had been hearing demons saying “hateful” things to her, such as calling her a
failure. Tr. 28. She said she had had three, psychiatric hospitalizations in the past but that they were
not for suicide attempts. Her father had died six months earlier and she was grieving. She worried
about homelessness, and lack of insurance and finances. She was not having problems with alcohol
or gambling. She complained of low back and shoulder pain. The counselor’s Assessment was
major depressive disorder, recurrent, in remission, unspecified, chronic; alcohol abuse,
uncomplicated, improved; pathological gambling, improved; and personality disorder, unspecified
symptoms. Tr. 30-31. The counselor noted that Johnson needed a psychiatric evaluation.
Johnson had a heart attack in October 2011. She was diagnosed with ischemic heart
disease, treated with stents and medications, and encouraged to stop smoking and participate in
cardiac rehabilitation. At a follow-up visit with her cardiologist in November 2011, Johnson was
doing well from a cardiac standpoint. However, she was emotionally stressed and upset about
returning to work “too early,” explaining that she had a coworker who created a lot of stress and
anxiety for her. Tr. 284. She denied any physical reasons for being unable to return to work. Id.
In November 2014, Johnson saw Sherry Howell, D.O., about diabetes, arthralgias, and
hypertension. Johnson said she had been off her diabetes medications, glyburide and Novolog,
for a year. She said she had pain that radiated from the spine to the hips, joint tenderness, and
numbness and tingling in the legs. She said that her hips and low back ached after standing and
bending, her shoulders and neck hurt after working overhead, and that she spent much of the day
in bed due to pain. Tr. 382. In assessing range of joint motion on musculoskeletal exam, the
doctor noted “mild pain” with motion. Tr. 386. Gait was normal and a scour test of both hips
was negative. 1
Id. Johnson had “inappropriate mood and affect” but was oriented.
Dr. Howell assessed chronic neck, low back, and hip pain, and ordered x-rays and a blood test
for rheumatoid factor. The doctor also assessed chronic diabetes mellitus, uncontrolled, and
chronic coronary artery disease. The hip x-rays showed mild, degenerative findings. Tr. 400.
Johnson saw Dr. Howell for follow up on 1/5/2015. On physical exam, the doctor noted
that “all extremities move well without deficits” and that Johnson had normal gait. Tr. 393. The
doctor did not prescribe any medications, other treatments, or tests for Johnson’s neck, back, or
hips. Tr. 394.
On 3/9/2016, Johnson saw Daniel Purdom, M.D., for diabetes and abdominal pain. The
doctor noted abdominal tenderness on exam. His Assessment was low back pain, hypertension,
and Type 2 diabetes mellitus with hyperglycemia. He prescribed ibuprofen for the back pain, and
aspirin, Crestor, cyclobenzaprine, and Lisinopril. Johnson next saw Dr. Purdom on 4/28/2016,
for diabetes, body aches, arthritis, headaches, and back pain. Her diabetes was noted to be stable
and she was compliant with her medication, but complained of chest pain, diarrhea, fatigue,
weight gain, foot ulcers, and heartburn.
On musculoskeletal exam, the doctor noted right
shoulder tenderness and reduced range of motion, and right hip tenderness with moderate pain
upon motion. Scoring of a questionnaire that Johnson filled out rated her as having mild
depression. The Assessment was unspecified hip pain, Type 2 diabetes mellitus without
complication, and bilateral shoulder pain. The doctor ordered labs and prescribed Crestor and
cyclobenzaprine. Johnson already had an active prescription for Klonopin. Lab results dated
5/9/2016 showed a slightly elevated rheumatoid factor but a negative screen for antibodies
associated with autoimmune diseases.
A negative scour test suggests that there is no defect in the articular cartilage of
the hip. http://medical-dictionary.thefreedictionary.com/hip+scouring+test.
On 9/12/13, Nina Epperson, M.S., performed a psychological evaluation, including
cognition testing. Tr. 299-300. Mental status exam revealed fair hygiene, fair eye contact,
irritability, tangential thought with content focused on an incident with a coworker at a previous
job, depressed mood, irritable affect, trouble falling and staying asleep, average range of
intelligence, and intact insight and judgment. Diagnoses were mood disorder NOS, rule out
personality disorder, and GAF 55. Epperson opined that Johnson was able to understand and
remember simple instructions, sustain concentration and persist with routine tasks, and manage
funds in her best interest, but had mild impairment regarding her interpersonal skills and
difficulty adapting to changes in her environment. Johnson preferred to work alone due to issues
with irritability and anger. The ALJ gave Epperson’s opinions “partial” weight. Tr. 61.
Kala Danushkodi, M.D., a board certified physical medicine and rehabilitation specialist,
evaluated Johnson on 9/17/13. Tr. 303-307. Her chief complaints were low back pain, neck
pain, depression, and bipolar disorder. She reported that she sustained a violent sexual encounter
between 1988-1990 which resulted in torn neck muscles and other physical injuries. She
complained of intermittent pain in her neck and low back, and that she was unable to sit, stand,
or walk for prolonged periods of time; of tingling and numbness in her hands and feet; and of
migraine headaches that left her bedbound at least once a month. She reported difficulty coping
with stress and pain, which was aggravated by emotional issues, and frequent crying episodes
and high anxiety, with symptoms related to PTSD. She was able to perform light household
chores. She smoked less than a pack per day. Medications included Ativan, glyburide, aspirin,
and vitamins. Physical examination revealed positive Tinel’s sign in the left wrist, diminished
sensation in the fingertips, flattening of lumbar lordosis, mild tenderness of the lower sacrum,
negative straight leg raising, normal range of motion in all extremities, normal gait, ability to
heel and toe walk without difficulty, normal lumbar flexion and extension, good strength in the
upper and lower extremities, normal grip strength, and ability to squat without support.
Impressions included low back pain, bipolar disorder, depression and anxiety. Dr. Danushkodi
opined that there were no sitting restrictions, and that Johnson could stand and walk with
periodic rest breaks, and lift up to 20 pounds. The doctor recommended obtaining a disability
opinion from a psychiatrist. The ALJ gave Dr. Danushkodi’s opinions “partial” weight. Tr. 62.
Stanley Hutson, Ph.D., prepared a Psychiatric Review Technique assessment on
10/4/2013. Tr. 88-94. Hutson opined that Johnson had mild restriction of activities of daily
living, moderate difficulties maintaining social functioning, and mild difficulties maintaining
concentration, persistence, or pace. He further opined that Johnson had moderate difficulties
maintaining attention and concentration for extended periods, working in coordination with or
proximity to others without being distracted by them, accepting instructions and responding
appropriately to criticism from supervisors, getting along with co-workers or peers without
distracting them or exhibiting behavioral extremes, and responding appropriately to changes in
the work place. Hutson noted that Johnson was distracted by people and may have some
difficulty with attention and concentration; would benefit from limited social demands; has some
difficulty coping with work conflict and demands; has been able to adapt in the past in a low
stress work setting; and could understand and follow instructions. He also noted that Johnson
had taken college courses in 2013.
A vocational expert, Alissa Smith, testified at the hearing before the ALJ and stated that
her opinion was consistent with the Dictionary of Occupational Titles. Smith classified Johnson’s
past relevant work as follows: security guard, DOT 372.667-038, specific vocational preparation
(SVP) level 3, semi-skilled, light exertional level as classified but actually performed by Johnson
as medium; driver, DOT 913.663-018, SVP level 3, semi-skilled, classified as medium exertional
level but actually performed by Johnson as light; and final inspector, DOT 806.678-018, SVP
level 4, semi-skilled, light. Smith added that Johnson’s part-time work as a cleaner would be
classified as a housekeeper, DOT 323.687-014, SVP level 2, light. The ALJ asked Smith about a
hypothetical claimant of Johnson’s age, education, training, and work experience, and who could
do light work, lift and carry 20 and ten pounds, and stand and walk for six of eight hours, but
who could not perform work involving intense interpersonal relationships. Smith testified that
the individual could perform Johnson’s past work as a final inspector. However, if the individual
was limited to sedentary work, she could not perform any past work. If the individual had to take
frequent, unscheduled breaks due to health problems, then no competitive work would be available.
Johnson’s reports and hearing testimony
In her adult function report dated 9/20/2013, Johnson stated that on a good day she would
get up, have breakfast, go for a short walk to the library to look for a job, and go through her
boxes of “stuff.” Tr. 220. On a bad day, she might have to take pain medications and would try
to stay focused. She stated that she could not stand or sit more than ten minutes at a time, it took
her a long time to perform personal care and household chores, and she needed reminders and
encouragement. She could go out and shop on her own, but sometimes took someone with her in
case of panic or anxiety. She was not responsible with money. She read daily, made jewelry,
and sometimes visited friends at their houses. She stated that she had arthritis and could not lift
anything more than ten or 15 pounds. Repeated lifting caused “pain, headache, migraine.”
Tr. 225. She could walk a half mile before having to rest about 15 to 30 minutes, and was
“trying to build up” her “stamina.” Id. She could pay attention for ten to 15 minutes, follow
written instructions well, and follow spoken instructions depending on the nature of the
instructions. Id. She was “force[d]” to retire from the auto auction due to a negative manager
whom “no one could get along” with. Tr. 226. She stated she could not handle any “neg.
stress.” Id. She included a list of traumatic events that had happened throughout her life, to
herself and family members. Tr. 232.
At the March 2015 hearing before the ALJ, Johnson testified that she graduated from
high school, and had taken two years of college courses funded by Vocational Rehabilitation. At
the time of the hearing, she was working 20 hours per week doing office cleaning, a job she had
started in December 2013. She worked five nights per week, in four-hour shifts. From 2000 to
2011, Johnson worked for the Kansas City Auto Auction, where she did vehicle registration, then
worked as a driver, and then worked in the security department.
Johnson testified that when she gets up in the morning, she makes coffee, may do dishes
or laundry and then go back to bed for a couple of hours, then gets up for a couple of hours,
cooks dinner, and goes to work. She can drive but cannot afford a car. She testified that she
cannot work full time now because of pain that she experiences in her hips and neck. She stated
that she has pain when reaching overhead, walking upstairs, walking more than one block and
back, lifting more than ten pounds, sitting for more than 20 minutes, or from migraine brought
on by lifting.
Johnson further testified that because of her 2011 heart attack, she takes baby aspirin
daily. She has problems with anxiety when she goes out, but can grocery shop with a companion
or go to self-service stores or the library, and takes Lithium, Clonazepam, and Klonopin. She
said that she has uncontrolled, type 2 diabetes. When her blood glucose is low she gets sweaty
and faint. At the time of the hearing, her doctor had prescribed a new medication for her
diabetes. She has not tested her blood glucose at work and did not know if her diabetes caused
other symptoms. She also testified that she has a history of bilateral carpal tunnel surgery. She
said she sometimes has weakness in the hands, and the left hand will sometimes “draw up in a
claw.” Doc. 79. She does “physical therapy[,] self-prescribed.” Id.
The ALJ’s decision
The ALJ found that during the relevant period, Johnson had severe impairments of
bipolar disorder and “neck/back pain/degenerative disk disease.” Tr. 56. Johnson did not claim
to meet any Listings, and the ALJ did not find that she met any.
The ALJ found that Johnson has the residual functional capacity to perform:
[T]he full range of light work as defined in 20 CFR 404.1567(b)
except that the claimant cannot have intense personal relationships.
Tr. 58. The ALJ concluded that Johnson was capable of performing past relevant work as a final
inspector, DOT 806.687-018, SVP level 4, semi-skilled, light, Tr. 63, and denied benefits.
Johnson argues that reversal and remand for award of benefits is necessary because the
ALJ failed to identify hip pain, ischemic heart disease, uncontrolled diabetes, and carpal tunnel
syndrome as severe impairments at Step 2 of the sequential analysis. She further argues that in
determining the RFC at Step 4, the ALJ failed to properly weigh the medical opinion evidence,
perform a function-by-function analysis, or factor in hip pain and ischemic heart disease.
Finally, Johnson argues that the ALJ improperly found that she could perform past relevant work
as a final inspector, DOT 806.678-01. As discussed below, Johnson’s arguments concerning
Steps 2, and RFC at Step 4, fail but that reversal and remand for further proceedings is necessary
with respect to the ALJ’s determination concerning ability to do past relevant work.
The Court’s review of the Commissioner’s decision is limited to a determination of
whether the decision is supported by substantial evidence on the record as a whole. Milam v.
Colvin, 794 F.3d 978, 983 (8th Cir. 2015). Substantial evidence is less than a preponderance but
enough that a reasonable mind might accept as adequate to support the Commissioner’s
conclusion. Id. The Court must consider evidence that both supports and detracts from the
Commissioner’s decision but cannot reverse the decision because substantial evidence also exists
in the record that would have supported a contrary outcome, or because the Court would have
decided the case differently. Andrews v. Colvin, 791 F.3d 923, 928 (8th Cir. 2015). If the Court
finds that the evidence supports two inconsistent positions and one of those positions represents
the Commissioner’s findings, then the Commissioner’s decision must be affirmed. Wright v.
Colvin, 789 F.3d 847, 852 (8th Cir. 2015).
The Step 2 determination
Johnson argues that reversal is necessary because the ALJ failed at Step 2 to identify
several impairments that are severe: hip pain, ischemic heart disease, uncontrolled diabetes, and
carpal tunnel syndrome. The argument fails.
To demonstrate severe impairment at Step 2, a claimant must demonstrate that the
impairment is medically determinable and more than minimally affects her ability to perform
Kirby v. Astrue, 500 F.3d 705, 707 (8th Cir. 2007); 20 C.F.R.
§ 404.1251. The ALJ expressly recognized Johnson’s report of arthralgia in the hips, but noted
that imaging performed in November 2014 showed only mild degenerative changes. The rest of
the medical record is consistent with the ALJ’s decision to find no severe impairment of hip
pain. A physical exam performed in September 2013 showed that Johnson had normal range of
motion of the hips and could squat without difficulty, and had normal gait. She in fact started
working as an office cleaner a few months later, in December 2013. A physical exam in January
2015 showed that “all extremities move[d] well without deficits” and that Johnson had normal
gait, Tr. 393, and no medications or other treatments were prescribed for Johnson’s hips. At an
exam in April 2016, the doctor noted right hip tenderness and moderate pain on motion. The
diagnosis was unspecified hip pain, but the doctor did not prescribe medication or any other
treatment, and did not order any tests. Overall, the medical record in fact shows very few doctor
visits, and that Johnson was never prescribed medication stronger than ibuprofen for pain, when
she was prescribed pain medication at all.
The ALJ also noted Johnson’s 2011 diagnosis of ischemic heart disease and
hospitalization, but that she had been treated and discharged as stable, denied any unstable
symptoms after the episode and returned to work, that she continues to smoke, and that she does
not receive any ongoing treatment after the incident, apart from taking baby aspirin daily.
Further, Johnson’s medical records do not reflect ongoing treatment relating to carpal
tunnel syndrome. She points out that in September 2013, she had a positive Tinel’s sign, or
tingling sensation, in the left wrist on exam, and diminished sensation in the fingertips, but she
has not demonstrated how the findings relate to more than minimal difficulty in performing work
functions. As noted, she in fact began doing office cleaning work at the end of December. She
testified that she sometimes experiences weakness in the wrists and that the left hand sometimes
draws up like a claw, but her physical examinations performed in September 2013, as well as in
January 2015, showed normal grip strength and no difficulties in moving her extremities, and her
medical records reflect no complaints that her left hand draws up.
Johnson testified that she might feel sweaty and faint if her blood glucose was too low,
but did not testify how frequently it happened, or that it ever caused her difficulty working. She
said she has never tested her blood glucose at work, and that her doctor had recently started a
new diabetes medication.
Johnson failed to carry her burden of demonstrating that hip pain, ischemic heart disease,
uncontrolled diabetes, or carpal tunnel syndrome were severe impairments at Step 2, and
substantial evidence supports the exclusion of such impairments at that step. Therefore, the
ALJ’s findings with respect to severe impairments will not be disturbed.
The RFC determination
Weight given the opinion evidence
Johnson argues that the ALJ did not properly weigh the opinions of three experts, Nina
Epperson, Dr. Danushkodi, and Dr. Hutson, and that the RFC is therefore not properly supported
by medical evidence. She adds that the ALJ erroneously gave significant weight to the Single
Decision Maker, and reversal is therefore necessary. The arguments fail.
Residual functional capacity is what a claimant can still do despite physical or mental
limitations. 20 C.F.R. § 404.1545(a); Masters v. Barnhart, 363 F.3d 731, 737 (8th Cir. 2004);
Social Security Ruling 96-8p, 1996 WL 374184, *5 (July 2, 1996). An ALJ must formulate the
RFC based on all of the relevant, credible evidence of record. See Perks v. Astrue, 687 F.3d
1086, 1092 (8th Cir. 2012) (“Even though the RFC assessment draws from medical sources for
support, it is ultimately an administrative determination reserved to the Commissioner.”)
(quoting Cox v. Astrue, 495 F.3d 614, 619 (8th Cir. 2007)). The RFC determination must be
supported by substantial evidence, including at least some medical evidence. Dykes v. Apfel, 223
F.3d 865, 867 (8th Cir. 2000). Evidence relevant to the RFC determination includes medical
records, observations of treating physicians and others, and a claimant’s own description of her
limitations. McKinney v. Apfel, 228 F.3d 860, 863 (8th Cir. 2000) (citation omitted). The
claimant has the burden to prove her RFC. Pearsall v. Massanari, 274 F.3d 1211, 1217 (8th Cir.
Factors considered in weighing medical opinion evidence include the length of the
treatment relationship and frequency of examination, nature and extent of the treatment
relationship, supportability of the opinion including medical signs and laboratory findings,
consistency with the record as a whole, specialization of the medical source, and other factors
such as the source’s understanding of the disability programs. 20 C.F.R. § 404.1527; 20 C.F.R.
§ 404.927. The opinion of a consulting examiner may be considered “in determining the nature
and severity of a claimant's impairment.” Charles v. Barnhart, 375 F.3d 777, 783 (8th Cir. 2004)
(citing Harris v. Barnhart, 356 F.3d 926, 931 (8th Cir. 2004), and 20 C.F.R.
§§ 404.1527(f)(2)(iii), 416.927(f)(2)). The opinion of a non-examining, state agency consultant
is also considered and may be given greater weight than the opinions of treating or examining
sources. 20 C.F.R. § 404.1527(c); SSR 96-6p, 1996 WL 374180, at *1 and 3 (July 2, 1996). An
ALJ may even determine a claimant’s RFC without a specific medical opinion, if there is
sufficient medical evidence in the record. Stallings v. Colvin, 2015 WL 1781407 (W.D. Mo.
Nina Epperson, M.S.
Epperson performed a psychological evaluation in September 2013, which the ALJ gave
only partial weight. Johnson argues, and Commissioner Berryhill agrees, that the ALJ incorrectly
held Epperson, a licensed psychologist, was not an acceptable medical source. See 20 C.F.R.
404.1513(a)(2) (acceptable medical sources include licensed psychologists).
ALJ’s decision to give the opinion partial weight is supported by substantial evidence on the
whole record, and Johnson cannot demonstrate prejudice in any event.
The mental status exam that Epperson performed revealed fair hygiene, fair eye contact,
irritability, tangential thought with content focused on an incident with a coworker at a previous
job, depressed mood, irritable affect, trouble falling and staying asleep, average range of
intelligence, and intact insight and judgment. Diagnoses were mood disorder not otherwise
specified, rule out personality disorder, and GAF 55. Tr. 300. Epperson opined that Johnson
was able to understand and remember simple instructions, sustain concentration and persist with
routine tasks, and manage funds in her best interest, but had mild impairment regarding her
interpersonal skills and difficulty adapting to changes in her environment.
She noted that
Johnson preferred to work alone due to issues with irritability and anger. In giving the opinion
partial weight, the ALJ stated that the social restrictions were supported, but that the record did
not support limiting Johnson to simple instructions. Tr. 61. The ALJ explained that a limitation
on intense, personal relationships would account for Johnson’s irritability and issues in
interacting with others. Id. The ALJ then added that as a licensed psychologist, Epperson was
not an acceptable medical source. Id.
Johnson argues that the ALJ should have given more weight to Epperson’s opinion that
Johnson could understand and remember no more than simple instructions, and therefore limit
her RFC to routine tasks with no changes in the work environment. However, Epperson’s
evaluation does not provide support for such a limitation, nor is it consistent with the record. A
May 2014 evaluation performed by Johnson’s psychiatrist, Dr. Zia, eight months after the one
performed by Epperson, reflects that Johnson’s memory was intact, and that she had fair judgment
and insight, and logical thought processes. In June 2014, Johnson told her counselor that she needed
disability because she could not work around a lot of people, not that she had difficulty with more
than simple instructions. At the March 2015 hearing before the ALJ, Johnson did not identify any
difficulty with understanding and remembering more than simple instructions. In fact, when asked at
the hearing what prevented her from working full time, Johnson identified no mental issues, only
Substantial evidence on the whole record supports the ALJ’s decision to give
Epperson’s opinion only partial weight.
Furthermore, Johnson cannot demonstrate that the ALJ’s conclusion resulted in any
prejudice. As noted above, the ALJ first explained that the record did not support the limitation
The ALJ’s additional and erroneous holding that Epperson was not an
acceptable medical source did not affect the outcome. Therefore, it does not merit reversal. See
Pfizer v. Apfel, 169 F.3d 566, 569 (8th Cir. 1999) (an error in opinion-writing does not support
reversal if the error has no effect on the outcome) (citing McGinnis v. Chater, 74 F.3d 873, 875
(8th Cir. 1996)).
Johnson argues that the ALJ should not have rejected Dr. Danushkodi’s opinion that she
needed periodic rest breaks in relation to standing and walking. She further argues that the ALJ
should have accounted for the doctor’s finding on physical exam of a positive Tinel’s sign and
diminished sensation in the fingertips, even though the doctor “did not address any limitations as
to [these] findings[.]” Doc. 18, p. 20. The arguments fail.
When Dr. Danushkodi, a board certified physical medicine and rehabilitation specialist,
evaluated Johnson in September 2013 her chief complaints were low back pain, neck pain,
depression, and bipolar disorder. She reported having intermittent pain in her neck and low back
and that she was unable to sit, stand, or walk for prolonged periods of time; had tingling and
numbness in her hands and feet; and at least once a month had a migraine and was bedbound.
She admitted that she could perform light household chores. She reported difficulty coping with
stress and pain, and that she had frequent crying episodes and high anxiety, and symptoms
related to PTSD.
Physical examination revealed positive Tinel’s sign in the left wrist;
diminished sensation in the fingertips; flattening of lumbar lordosis; mild tenderness of the lower
sacrum; negative straight leg raise; normal range of motion in all extremities; normal gait; ability
to heel and toe walk without difficulty; normal lumbar flexion and extension; good strength in
the upper and lower extremities; normal grip strength; and the ability to squat without support.
Dr. Danushkodi’s impressions included low back pain, bipolar disorder, depression, and anxiety.
He opined that there were no sitting restrictions, and that Johnson could stand and walk with
periodic rest breaks, and lift up to 20 pounds. He recommended obtaining a disability opinion
from a psychiatrist.
The ALJ gave Dr. Danushkodi’s opinion partial weight, explaining that the doctor did not
provide a residual functional capacity with respect to standing and walking, or explain why
periodic rest breaks were required given the unremarkable physical findings. The ALJ’s decision
is supported by substantial evidence on the whole record. Although Johnson reported problems
with standing and walking for prolonged periods, almost all of the doctor’s physical exam
findings relating to Johnson’s ability to stand and walk were unremarkable. Although doctor did
note a flattening of lumbar lordosis and mild tenderness of the lower sacrum, he did not explain
how such findings were related to standing, walking, and a need for rest breaks. The record also
shows that after September 2013, when Dr. Danushkodi performed his evaluation, Johnson was
able to begin working part time as an office cleaner, and that overall, she had very few doctor
visits, physical exams showed normal or mild findings, and she was never prescribed medication
stronger than ibuprofen for pain, when she was prescribed pain medication at all. The ALJ
nonetheless gave Johnson the benefit of any doubt by accommodating her complaint of back pain
with a limitation to light work.
Johnson also states that “the ALJ did not account for and Dr. Danushkodi did not address
any limitations as to his own findings” of a positive Tinel’s sign in the left wrist and diminished
sensation in the fingertips, and the ALJ’s decision is therefore “unsupported by
Dr. Danushkodi’s opinions”. Doc. 18, p. 20. The doctor performed the consultative exam for
the purpose of identifying limitations. That he did not find limitations related to the positive
Tinel’s sign and diminished sensation in the fingertips is consistent with the conclusion that such
findings simply were mild and not significant.
Johnson does not even suggest what the
limitations would be. Johnson’s argument therefore fails.
Substantial evidence on the whole record supports the ALJ’s decision to give
Dr. Danushkodi’s opinion partial weight.
Johnson argues that the decision must be reversed because the ALJ failed to state how
much weight he gave the opinion of Dr. Hutson, who prepared a Psychiatric Review Technique
assessment on behalf of the State on 10/4/2013, and that the ALJ did not account for all of
Dr. Hutson’s opinions. The argument fails.
Dr. Hutson prepared a Psychiatric Review Technique assessment in October 2013. He
opined that Johnson had mild restriction of activities of daily living, moderate difficulties
maintaining social functioning, and mild difficulties maintaining concentration, persistence, or
pace. He further opined that Johnson had moderate difficulties maintaining attention and
concentration for extended periods, working in coordination with or proximity to others without
being distracted by them, accepting instructions and responding appropriately to criticism from
supervisors, getting along with co-workers or peers without distracting them or exhibiting
behavioral extremes, and responding appropriately to changes in the work place. Hutson noted
that Johnson was distracted by people and may have some difficulty with attention and
concentration; would benefit from limited social demands; has some difficulty coping with work
conflict and demands; has been able to adapt in the past in a low stress work setting; and could
understand and follow instructions. He also noted that Johnson had taken college courses in
The ALJ states that he considered the “State evaluation” and in the following sentence
refers to Dr. Hutson. Tr. 62 (fourth paragraph). The ALJ also noted evidence that is inconsistent
with the doctor’s opinions, such as that Johnson made the non-credible claim in her adult
function report that she was in a “totally paralyzing” state of depression, notwithstanding that she
was working as an office cleaner; that Johnson attended college as recently as 2013; and that the
record contains unremarkable mental status exams. Tr. 62 (fourth, fifth, and sixth paragraphs)
and Tr. 63 (first paragraph). Summarizing, the ALJ stated that he “[gave] the State assessments
significant weight,” but then stated that Johnson’s “socialization limitation had been addressed in
the” RFC finding, and that he (the ALJ) did “not find, given the unremarkable mental status
examinations in the record, that [Johnson] would have any more than mild concentration,
persistence, and pace restrictions.” Tr. 63 (first paragraph).
Johnson argues that the ALJ should have given significant weight to Dr. Hutson’s
opinion that she needed a low stress work setting, required a socially isolated job, and would be
limited in her ability to respond appropriately to changes in the work setting, and further argues
that the ALJ should have expressly stated why he did not give those opinions significant weight.
Doc. 18, pp. 18-19. Johnson states that the RFC’s limitation of no intense personal relationships
does not account for Dr. Hutson’s opinions. However, an RFC finding is based on all of the
relevant evidence, including medical records, observations of treating physicians and others, and
a claimant’s own description of her limitations, and need not be based on a specific medical
opinion. Perks v. Astrue, 687 F.3d 1086 (8th Cir. 2012). Moreover, an arguable deficiency in
opinion writing technique is not grounds for reversal when that deficiency has no bearing on the
outcome. Robinson v. Sullivan, 956 F.2d 836, 841 (8th Cir. 1992). As discussed above, Dr. Zia,
Johnson’s psychiatrist, found in May 2014 that her memory was intact, and that she had fair
judgment and insight, and logical thought processes. In June 2014, Johnson told her counselor that
she needed disability because she could not work around a lot of people. At the March 2015 hearing
before the ALJ, Johnson testified that she could not work full time due to physical limitations and did
not identify mental limitations that prevented her from working full time. Even Dr. Hutson opined
that Johnson could follow and understand instructions, and would have no more than mild
difficulties maintaining concentration, persistence, or pace. The ALJ’s decision that Johnson
must avoid jobs involving intense personal relationships is supported by substantial evidence on
the whole record. Any failure of the ALJ to more specifically and expressly address the reasons
why he did not give more weight to all parts of Dr. Hutson’s opinion does not change the
The Single Decision Maker
Johnson also argues that reversal is necessary because the ALJ improperly relied on the
opinion of the Single Decision Maker. The argument fails.
In the same section of the decision discussing Dr. Hutson’s opinion, the ALJ noted that a
Single Decision Maker had restricted Johnson to medium exertional-level work because of prior
cardiac issues, but the ALJ also notes that Johnson’s “medical condition was…stable” and she
“did not have pain or limitations due to” cardiac impairment. Tr. 62 (sixth paragraph). In the
following paragraph of the same section of the decision, the ALJ stated that he gave the “State
assessments significant weight[.]”
Tr. 63 (first paragraph). The ALJ then states that he
“agree[s]” Johnson’s condition is not disabling, but that he would limit her to light work, given
the imaging of her cervical and lumbar spine, and cardiac history. Id. Continuing, the ALJ
stated that Johnson’s “socialization limitation had been addressed in” the RFC finding, and that
he did “not find, given the unremarkable mental status examinations in the record, that [Johnson]
would have any more than mild concentration, persistence, and pace restrictions.” Id.
As Johnson points out, and the Commissioner does not dispute, a Single Decision Maker
is a lay person and not an acceptable medical source, so his or her opinion cannot be given any
weight. Dewey v. Astrue, 509 F.3d 447, 449 (8th Cir. 2007); 20 C .F.R. §§ 404.1527(a)(2) and
416.927(a)(2). If an ALJ relies on such an opinion and there is no other medical evidence in the
record to support the ALJ’s determination of the RFC, then reversal may be warranted. Lauer v.
Apfel, 245 F.3d 700, 704 (8th Cir. 2001).
Reversal is not warranted here.
Notwithstanding the ALJ’s reference to the Single
Decision Maker’s opinion about medium exertion in one paragraph, and statement in the
following paragraph that he would give the “State assessments significant weight,” it does not
appear that the ALJ actually gave the Single Decision Maker’s decision significant weight, let
alone relied on it in any way, in making the RFC determination. The ALJ assessed a light-work
limitation; stated that Johnson’s socialization limitation (no intense personal relationships) had
already been addressed; and then found that Johnson had no more than mild restrictions in
concentration, persistence, and pace, which was part of Dr. Hutson’s opinion. As discussed
more extensively above, substantial evidence on the whole record including medical evidence
supports the RFC determination. Under the circumstances, reversal is not necessary because the
Court concludes that notwithstanding the ALJ’s reference to the Single Decision Maker, Johnson
did not suffer any prejudice.
Johnson further argues that reversal is necessary because the ALJ did not expressly
perform a function-by-function analysis with respect to her ability to lift, walk, stand, push, and
pull at the light exertional level. Doc. 18, p. 13 (citing SSR 96-8p, ¶ 4). However, the lack of an
explicit function-by-function analysis does not require remand where the “ALJ’s analysis . . .
affords an adequate basis for meaningful judicial review, applies the proper legal standards, and
is supported by substantial evidence such that additional analysis would be unnecessary or
superfluous.” Cichocki v. Astrue, 729 F.3d 172, 177 (2nd Cir. 2013). See also Samons v. Astrue,
497 F.3d 813, 821-22 (8th Cir. 2007) (an ALJ’s failure to address a question that should have
been addressed does not mandate reversal; reversal is necessary only if the failure prejudices the
claimant), and Robinson v. Sullivan, 956 F.2d 836, 841 (8th Cir. 1992) (an arguable deficiency in
opinion writing technique is not grounds for reversal when that deficiency had no bearing on the
outcome). The ALJ expressly considered Johnson’s reports that her pain was no more than
intermittent, negative findings on physical exam by her physicians, her work history including
that at the time of the hearing she was working part-time doing office cleaning, that she did not
take narcotic medication for pain, and that she was able to perform a full range of daily activities.
The ALJ also expressly considered the expert opinion of Dr. Danushkodi, the
physical medicine and rehabilitation specialist. Tr. 62. The doctor’s findings on physical exam
were largely normal, and she expressly opined that Johnson could lift 20 pounds and had no
sitting restrictions. Furthermore, Johnson stated in her Adult Function Report that she could
walk a half mile and was trying to build up her stamina, and that she retired from her job at the
auto auction because of a negative manager. The ALJ’s decision that Johnson could perform
light work is supported by substantial evidence on the whole record, such that additional analysis
would be unnecessary.
Consideration of hip pain and ischemic heart disease
Johnson also argues that in determining RFC, the ALJ failed to consider hip pain and
ischemic heart disease. It is an ALJ’s responsibility to review the evidence as a whole, resolve
any inconsistencies, and make an RFC determination that reflects a claimant’s credible
limitations. Roberts v. Apfel, 222 F.3d 466, 469 (8th Cir. 2000). As discussed above, the ALJ
considered Johnson’s complaints of pain and, giving her the benefit of the doubt, limited her to
light work to account for any physical limitations relating to pain. Tr. 62. Johnson identified no
symptoms or limitations at all related to ischemic heart disease, but the ALJ noted that the light
work limitation would account for any residual effects of her cardiac history. Tr. 63. Johnson’s
argument therefore fails.
Findings regarding Johnson’s ability to do past relevant work
Finally, Johnson argues that reversal is necessary because in finding that she could
perform previous work as a “final inspector,” the ALJ identified the wrong kind of “final
inspector.” The Court concludes that reversal and remand is warranted with respect to this
The Vocational Expert attended Johnson’s hearing before the ALJ and heard Johnson
testify that she had worked at an auto auction, first in vehicle registration, then as a driver, and
then in the security department. Tr. 73. The VE also testified that she had reviewed the
vocational exhibits. Tr. 80. Johnson’s Work History Report, dated 9/15/2013 and in evidence as
Exhibit 3E, includes Johnson’s description of her job in vehicle registration: “mostly registering
vehicles for sale—doing thorough vehicle inspection + also authorizing vehicles/people on/off
property.” Tr. 214. She further stated that the job involved walking, standing, sitting, climbing,
stooping, kneeling, crouching, crawling, handling and grasping, and writing, typing, or handling
small objects. She also stated that the job involved lifting ten pounds at the most, and frequently
lifting less than ten pounds, and that she had no supervisory responsibilities. Id.
The ALJ asked the VE to classify Johnson’s previous work experience, and the VE
identified: (1) security guard, DOT number 372.667-038; (2) driver, DOT number 913.663-018;
and (3) “final inspector,” DOT number “806.687-018,” “light.” Tr. 81. In classifying the third
job, the VE specifically testified that the job she was referring to was “automobile inspector at
the auto auction.” Id. The ALJ then asked the VE a hypothetical question about a person of
Johnson’s age, education, and work experience, who could do light work, and stand and walk
five to six hours out of an eight-hour day, but must avoid intense personal relationships. The VE
testified that the person could perform only the “final inspector” job. Tr. 82. The VE also stated
that her opinions were consistent with the Dictionary of Occupational Titles. Tr. 80. The ALJ
accordingly found that Johnson could perform her prior work as a “final inspector, [DOT
number] 806.687-018” and that such work did not require the performance of work beyond
Johnson’s RFC. Tr. 63. The ALJ did not proceed to make any alternative findings at Step 5
about Johnson’s ability to perform any other kind of work existing in significant numbers in the
Generally, if a claimant can perform her past relevant work, either as she performed it or
as the work is performed in the national economy, then she is not considered disabled. 20 C.F.R.
§ 404.1520(a)(4). Johnson states, and the Commissioner does not dispute, that DOT number
“806.687-018” for “final inspector” cited by the VE in her testimony, and the ALJ cited in his
decision, is the DOT number for a final inspector who works in an auto manufacturing setting.
Job number 806.687-018, “Final Inspector (auto. mfg.)[,] alternate titles: checker,” is described
in the DOT as follows:
Inspects completed motor vehicle for conformance to
specifications: Examines vehicle for installation of specified
accessories, such as radio, heater, and defroster. Tests operation of
windows, doors, lights, and controls on instrument panel.
Examines seats, headlining, and door paneling for spots or tears in
upholstery, and car exterior for chips and scratches on painted
surfaces. Records defects on checklist. May inspect components of
vehicle and be designated Chassis Inspector (auto. mfg.); Trim
Inspector (auto. mfg.).
http://www.occupationalinfo.org/80/806687018.html. The parties do not disagree that the DOT
job number 806.687-018 is classified as light exertional level, within Johnson’s RFC
As Johnson points out, the vehicle registration job as she performed it at the auto auction
is different than the job the VE identified by DOT number, in that Johnson was responsible for
“authorizing vehicles/people on/off” the property. DOT number 806.687-018 does not include
such job duties. On the other hand, the VE expressly stated that in classifying Johnson’s past
work, she was classifying a final inspector at the auto auction.
The ALJ then asked a
hypothetical question, properly phrased in terms of Johnson’s background, who could do light
work, and stand and walk five to six hours out of an eight-hour day, but must avoid intense
Generally, where a hypothetical question precisely sets forth all of a claimant's physical
and mental impairments, a vocational expert's testimony constitutes substantial evidence
supporting the ALJ's decision.
Robson v. Astrue, 526 F.3d 389, 392 (8th Cir. 2008).
Furthermore, an ALJ may find a claimant able to perform past relevant work if the claimant
retains the ability to perform the functional requirements of the job as she actually performed it,
or as generally required by employers in the national economy. Samons v. Astrue, 497 F.3d 813,
821–22 (8th Cir. 2007) (citing Martin v. Sullivan, 901 F.2d 650, 653 (8th Cir. 1990)); 20 C.F.R.
The problem in the case before this Court is that the record, including the VE’s testimony
and the ALJ’s decision, are simply too unclear to conclude that Johnson has not been prejudiced
by the reference to DOT job number 806.687-018. The VE explicitly testified that she was
referring to the job of final inspector at an auto auction, but also explicitly gave the DOT number
of a final inspector job in auto manufacturing. Although Johnson provided a short description in
her work history report about how she actually performed the job, which included some kind of
interaction with people, there was no other evidence about what the interaction involved, and the
DOT job that the VE identified did not include duties involving interactions with people.
Moreover, the VE did not explain whether she was classifying the job as actually performed by
Johnson, or as generally performed. The ALJ also broadly stated that Johnson’s past relevant
work as a final inspector, DOT number 806.687-018, was within Johnson’s RFC, but did not
explain how. Because the record and the ALJ’s decision are unclear, the Court is left in the
position of trying to connect the dots, and deciding whether those connections matter. Under the
circumstances, the Court cannot conclude that the ALJ’s citation of DOT job number 806.687018 does not reflect a prejudicial error.
Accordingly, the decision is reversed and remanded for further proceedings consistent
with this Order, to clarify Johnson’s ability to perform past relevant work at Step 4 and, if
appropriate and necessary to resolution of the application, to make a determination at Step 5.
The Commissioner’s decision is reversed and the case is remanded for further
proceedings consistent with this Order.
s/ Nanette K. Laughrey
NANETTE K. LAUGHREY
United States District Judge
Dated: July 7, 2017
Jefferson City, Missouri
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