Johnson v. Social Security Administration

Filing 22

OPINION AND ORDER by Magistrate Judge Frank H McCarthy (Affirming the Commissioner's decision) (tjc, Dpty Clk)

UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF OKLAHOMA
RICKY M. JOHNSON,

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PLAINTIFF,
vs.

CASE NO. 17-CV-152-FHM

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NANCY A. BERRYHILL,1 Deputy Commissioner
or Operations, performing the duties and
functions not reserved to the Commissioner of
Social Security,
DEFENDANT.

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OPINION AND ORDER
Plaintiff, Ricky M. Johnson, seeks judicial review of a decision of the Commissioner
of the Social Security Administration denying disability benefits.2 In accordance with 28
U.S.C. § 636(c)(1) & (3), the parties have consented to proceed before a United States
Magistrate Judge.
Standard of Review
The role of the court in reviewing the decision of the Commissioner under 42 U.S.C.
§ 405(g) is limited to a determination of whether the decision is supported by substantial
evidence and whether the decision contains a sufficient basis to determine that the

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Ms. Berryhill, Deputy Commissioner for Operations, is leading the Social Security
Administration pending the nomination and confirmation of a Commissioner. Pursuant to Federal Rule
of Civil Procedure 25(d), Deputy Commissioner for Operations Berryhill should be substituted as the
defendant in this action. No further action need be taken to continue this suit by reason of the last
sentence of the Social Security Act, 42 U.S.C. § 405(g).
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Plaintiff Ricky M. Johnson’s application was denied initially and upon reconsideration. A
hearing before an Administrative Law Judge (ALJ) Lantz McClain was held October 23, 2015. By
decision dated December 2`, 2015, the ALJ entered the findings which are the subject of this appeal.
The Appeals Council denied Plaintiff’s request for review on February 22, 2017. The decision of the
Appeals Council represents the Commissioner's final decision for purposes of further appeal. 20 C.F.R.
§§ 404.981, 416.1481.

Commissioner has applied the correct legal standards. See Briggs ex rel. Briggs v.
Massanari, 248 F.3d 1235, 1237 (10th Cir. 2001); Winfrey v. Chater, 92 F.3d 1017 (10th
Cir. 1996); Castellano v. Secretary of Health & Human Servs., 26 F.3d 1027, 1028 (10th
Cir. 1994). Substantial evidence is more than a scintilla, less than a preponderance, and
is such relevant evidence as a reasonable mind might accept as adequate to support a
conclusion. Richardson v. Perales, 402 U.S. 389, 401, 91 S. Ct. 1420, 1427, 28 L. Ed.2d
842 (1971) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). The
court may neither reweigh the evidence nor substitute its judgment for that of the
Commissioner. Casias v. Secretary of Health & Human Servs., 993 F.2d 799, 800 (10th
Cir. 1991). Even if the court would have reached a different conclusion, if supported by
substantial evidence, the Commissioner’s decision stands. Hamilton v. Secretary of Health
& Human Servs., 961 F.2d 1495 (10th Cir. 1992).
Background
Plaintiff was 55 years old on the alleged date of onset of disability and 57 on the date
of the denial decision. Plaintiff has a high school education and his past work experience
includes contractor, homebuilder, newspaper carrier, and oiler. [R. 30, 53]. Plaintiff claims
to have become disabled as of January 27, 2014 due to emphysema, chronic obstructive
pulmonary disease, bone spurs in knees, weak heart, arthritis, shortness of breath,
hypertension, thyroid, sleep apnea, and dead nerves in right knee. [R. 227].
The ALJ’s Decision
The ALJ found that Plaintiff has severe impairments relating to chronic obstructive
pulmonary disease (COPD), hypertension, obesity, and a history of knee pain. [R. 24].

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The ALJ found hypothyroidism, sleep apnea, and history of right wrist pain non-severe
impairments. [R. 24]. The ALJ determined that Plaintiff has the residual functional capacity
to perform less than the full range of medium work. Specifically, Plaintiff can occasionally
lift and/or carry 50 pounds, frequently lift and/or carry 25 pounds, stand and/or walk at least
6 hours in an 8-hour workday, and sit at least 6 hours in an 8-hour workday. Plaintiff
should avoid concentrated exposure to things such as fumes, odors, dust, and gases. [R.
26]. The ALJ determined that Plaintiff was unable to perform his past relevant work as a
contractor, homebuilder, newspaper carrier, and oiler. [R. 30]. Further, based on the
testimony of the vocational expert, the ALJ determined that there are a significant number
of jobs in the national economy that Plaintiff could perform. [R. 31]. Accordingly, the ALJ
found Plaintiff was not disabled. The case was thus decided at step five of the five-step
evaluative sequence for determining whether a claimant is disabled. See Williams v.
Bowen, 844 F.2d 748, 750 52 (10th Cir. 1988) (discussing five steps in detail).
Plaintiff’s Allegations
Plaintiff asserts that the ALJ: 1) failed to properly consider Plaintiff’s obesity; 2)
failed to properly consider the treating physician’s opinion; 3) failed to properly consider
Plaintiff’s allegations; and 4) erroneously found that a significant number of jobs exist that
the Plaintiff can perform as this finding is not supported by substantial evidence. [Dkt. 18,
p. 3].
Analysis
Consideration of Obesity
Plaintiff contends that the RFC does not include the limitations on Plaintiff’s ability

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to stand and walk which the ALJ found resulted from Plaintiff’s obesity. Plaintiff bases this
contention on the ALJ’s finding that Plaintiff’s obesity “somewhat reduce[d]” Plaintiff’s
ability to stand and walk while the RFC included the ability to stand and walk at least 6
hours in an 8 hour workday. Since this is the same number of hours standing and walking
as heavy work, Plaintiff argues the reduction to medium work was no reduction at all.
The court finds that the ALJ clearly considered Plaintiff’s obesity and its effect on
Plaintiff’s ability to stand and walk as the ALJ specifically said that Plaintiff’s somewhat
reduced ability was accounted for in the RFC. However, the ALJ did not explain exactly
how Plaintiff’s ability was somewhat reduced. Plaintiff assumes it was a finding that the
number of hours Plaintiff could stand and walk was reduced.

That is not the only

reasonable reading of the ALJ’s decision. It could be that Plaintiff’s ability to stand and
walk was reduced in the sense that he could not stand or walk for 6 hours in an 8 hour
workday if he was required to lift and carry the weight required for heavy work, but could
do so with the weight required for medium work. The court finds that Plaintiff’s assumption
that the ALJ’s finding that Plaintiff’s ability to stand and walk was “somewhat reduce[d]”
necessarily required an RFC limitation on the number of hours Plaintiff could stand and
walk is not supported by the record and is directly contrary to the ALJ’s statement that the
RFC accounted for these limitations.
The court finds that the ALJ thoroughly considered Plaintiff’s obesity, found it to be
a severe impairment, discussed it throughout his decision, and accounted for its limitations
in the RFC assessment. Thus, no error is found.
Opinion of Treating Physician
Plaintiff argues that the ALJ failed to properly consider the opinion of treating
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physician James D. Rutter, M.D. Plaintiff contends that the reasons given by the ALJ for
rejecting Dr. Rutter’s opinion are not supported by substantial evidence. Further, that the
ALJ failed to consider the regulatory factors. [Dkt. 18, p. 9]. A treating physician's opinion
is accorded controlling weight if it is well-supported by medically acceptable clinical or
laboratory diagnostic techniques and is not inconsistent with other substantial evidence in
the record. 42 U.S.C. §§ 404.1527, 416.927. However, if the opinion is deficient in either
of these respects, it is not given controlling weight. When an ALJ decides to disregard a
medical report by a claimant's physician, he must set forth specific, legitimate reasons for
his decision. In determining what weight to give a medical opinion not given controlling
weight, an ALJ must consider: (1) the length of treatment and frequency of examination;
(2) the nature and extent of the treatment relationship; (3) the degree the opinion is
supported by medical evidence; (4) consistency between the opinion and the record; (5)
whether the physician specializes in the area on which the opinion is given; and (6) any
other factors to support or contradict the opinion. Watkins v. Barnhart, 350 F.3d 1297,
1301 (10th Cir. 2003).
Dr. Rutter treated Plaintiff from May 16, 2014, through June 9, 2015. On July 29,
2014, he filled out a Medical Source Opinion of Residual Functional Capacity opining that
Plaintiff, during an 8-hour work day, could stand and walk for 2 to 3 hours, and could
frequently lift/carry 15 pounds. Dr. Rutter found Plaintiff’s limitations were not due to pain
but concluded Plaintiff had COPD/breathing problems that were triggered by allergens or
irritants and should avoid dust, chemicals, and high humidity. Plaintiff’s obesity was found
to exacerbate his physical condition. [R. 387]. The ALJ made the following findings
pertaining to Dr. Rutter’s opinion:
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The undersigned however accords little weight to this medical
source statement. First, Dr. Rutter totally neglected to provide
any objective findings or identify any specific medical evidence
upon which he based his opinion. Secondly, because he
specifically stated the claimant’s limitations were not the result
of pain, then his opinion reasonably had to be based upon
claimant’s breathing alone and his extreme exertional
limitations are not supported by the claimant (sic) moderate
pulmonary defects (5F, Pg. 17). Lastly, Dr. Rutter’s opined
lifting limitation of 15 pounds is wholly inconsistent with the
claimant’s own statement to the consultative examiner that he
could lift 50 pounds (10F).
[R. 29].
Treatment notes of Dr. Rutter do not address any functional limitations resulting from
COPD, obesity, knee or shoulder pain, nor do they support the limitations contained in his
opinion. Dr. Rutter, in fact, discussed with Plaintiff the benefits of mild to moderate walking
in an effort to help with pulmonary status, appropriate diet, and exercise. [R. 362, 376, 434,
437]. Further, Plaintiff only took over-the-counter medications for his knee and shoulder
pain. [R. 360, 363, 366, 374, 378, 381, 432, 435, 437, 438]. The ALJ clearly considered
Dr. Rutter’s opinion, however, determined it was reasonably based on Plaintiff’s moderate
pulmonary defects which do not support the extreme exertional limitations. [R. 29]. The
ALJ specifically acknowledged Plaintiff had breathing and walking limitations, thus he
limited him to medium work with no concentrated exposure to fumes, odors, dust, and
gases. [R. 26]. This RFC finding is consistent with two state agency physicians, whose
physical assessments were given great weight by the ALJ. [R. 29, 93-95, 116-118]. The
evidence relied upon by the ALJ is evidence a reasonable mind could accept as adequate
to support a conclusion, and the evidence relied upon by the ALJ is not overwhelmed by
other record evidence. The court finds no error in the ALJ’s treatment of Dr. Rutter’s
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opinion.
Consideration of Plaintiff’s Allegations
Plaintiff argues the ALJ’s analysis of his subjective complaints consisted of
conclusory statements without linkage to specific evidence. [Dkt. 18, p. 9-10]. “Credibility
determinations are peculiarly the province of the finder of fact, and [the court] will not upset
such determinations when supported by substantial evidence. However, findings as to
credibility should be closely and affirmatively linked to substantial evidence and not just a
conclusion in the guise of findings.” Hackett v. Barnhart, 395 F.3d 1168, 1173 (10th Cir.
2005)(citation, brackets, and internal quotation marks omitted).
The ALJ thoroughly discussed the medical record including Plaintiff’s complaints of
knee pain and breathing problems. [R. 26-29]. The ALJ noted pulmonary function tests
revealed only mild to moderate obstructive lung defect. [R. 27-28, 389, 415]. On October
11, 2014, consultative examiner, David Wiegman, M.D., found Plaintiff’s lungs clear to
auscultation bilaterally. [R. 422-424]. The ALJ also noted that Plaintiff did not require
oxygen to keep his oxygen level above 90 percent during a 6 minute walking test. [R. 28].
Plaintiff reported that he was unable to walk very far, however, he was able to walk
continuously at a moderate pace for 6 minutes during the pulmonary function studies. Xrays revealed joint spaces were preserved and only trace development of osteophyte of
tibial plateau. [R. 28]. Dr. Wiegman found Plaintiff had a normal steady gate and did not
have problems walking in or out of the office. [R. 28].
The ALJ determined that Plaintiff did not receive the type of medical treatment one
would expect for an allegedly disabled person and that his claims of disabling limitations
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were not fully credible. [R. 28]. Although Plaintiff had medically determinable impairments,
none were severe enough to prevent Plaintiff from participating in substantial gainful
activity. [R. 29]. The court finds the ALJ properly linked his credibility finding to the record,
therefore, there is no reason to deviate from the general rule to accord deference to the
ALJ’s credibility determination.
Step Five Determination
Plaintiff argues the ALJ’s step five determination that he was able to perform the two
representative jobs testified to by the vocational expert and relied upon by the ALJ is in
error.

Plaintiff also argues that the vocational expert either did not consider the

environmental limitations given by the ALJ in his hypothetical questions or her response
conflicts with the Dictionary of Occupational Titles (DOT). [Dkt. 18, p. 11]. Further, Plaintiff
contends the ALJ’s finding that there are a significant number of jobs that Plaintiff can
perform is not supported by substantial evidence. [R. 26].
Plaintiff claims he is unable to perform the representative jobs of janitor and machine
packager because they would require him to work around pulmonary irritants which would
exceed the ALJ’s RFC limitation to avoid exposure to fumes, odors, dust, and gases. [Dkt.
18, p. 11-12]. The court has reviewed the descriptions in the Dictionary of Occupational
Titles (DOT) for each occupation identified by the vocational expert. [R. 31]. The DOT’s
description for janitor and machine packager indicates that there is no exposure to weather,
toxic caustic chemicals, or other environmental conditions. The job janitor, however, does
include, “cleaning lint, dust, oil, and grease from machines, overhead pipes, and conveyors,
using brushes, airhoses, or steam cleaner,” which may be inconsistent with the RFC
assessment.

Dictionary of Occupational Titles (4th ed., 1991)(DOT), 381.687-018
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(G.P.O.), 1991 WL 673258. Eliminating this one occupation leaves the job of machine
packager which has 178,000 representative jobs in the national economy.
Plaintiff claims that he is unable to perform the job of machine packager because
working around paper, boxes, glue, ink, and various products would produce dust and
fumes. Further, not all of the 178,000 machine packaging jobs in the national economy
would meet the environmental limitations in the ALJ’s RFC assessment and depending on
the reduction of the jobs needed to satisfy RFC assessment, a significant number of jobs
might not exist. [Dkt. 18, p. 11-12]. The DOT describes the job of machine packager as:
“Tends machine that performs one or more packaging
functions, such as filling, marking, labeling, banding, tying,
packing, or wrapping containers: Starts machine and observes
operation to detect malfunctions of machine. Stops machine
and reports malfunction to supervisor.
Makes minor
adjustments or repairs, such as opening valves, changing
forming and cutting dies, setting guides, or clearing away
damaged product containers. Inspects filled container to
ensure that product is packaged according to specifications.
May feed product to conveyors, hoppers, or other feeding
devices and unload packaged product. May replenish
packaging supplies such as wrapping paper, plastic sheet,
boxes, cartons, glue, ink, or labels. May mount supplies on
spindles or place supplies in hopper or other feeding devices.
May position and hold container in machine and depress pedal,
press button, or move lever to clean, glue, label, sew, or staple
container. May cut stencils and stencil information on
container, such as lot number or shipping destination. May
tally number of units of product packaged or record
information, such as size, weight, and type of products
packaged...”
Machine packager (DOT #920.685-078), 1991 WL 687492.
There is nothing contained in the DOT description of machine packager that would
support Plaintiff’s argument. The court finds that while Plaintiff may be unable to perform
the representative job of janitor, the job of machine packager would not exceed the ALJ’s
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RFC limitations. Further, there is no conflict between the vocational expert’s testimony and
the DOT that needs resolving. Finally, there are 178,000 machine packager jobs in the
national economy. Since there is no reason to reduce that number, the court finds this to
be a significant number of jobs. Thus, the ALJ's reliance on the VE's testimony was proper.
CONCLUSION
The court finds that the ALJ evaluated the record in accordance with the legal
standards established by the Commissioner and the courts. The court further finds there
is substantial evidence in the record to support the ALJ’s decision. Accordingly, the
decision of the Commissioner finding Plaintiff not disabled is AFFIRMED.
SO ORDERED this 11th day of April, 2018.

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