Johnson v. Carolyn W. Colvin
ORDER AFFIRMING THE COMMISSIONER'S DECISION. Signed by Magistrate Judge Tu M. Pham on 4/12/2018. (Pham, Tu)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
CAROLYN W. COLVIN,
COMMISSIONER OF SOCIAL
ORDER AFFIRMING THE COMMISSIONER’S DECISION
Before the court is plaintiff Vernice Johnson’s appeal from
insurance benefits under Title II and Title XVI of the Social
Security Act (“Act”), 42 U.S.C. §§ 401 et seq.
On May 27, 2016,
the parties consented to the jurisdiction of the United States
magistrate judge pursuant to 28 U.S.C. § 636(c).
March 13, 2017.
(ECF No. 8.)
For the reasons set forth below, the decision
of the Commissioner is affirmed.
Carolyn W. Colvin was the Acting Commissioner of Social Security
at the time this case was filed.
On April 11, 2013, and March 25, 2013, Johnson applied for
disability benefits under Title II and Title XVI of the Act.
(R. at 177, 182.)
Johnson alleged disability beginning February
28, 2013, due to diabetes and high blood pressure.
(R. at 182,
The Social Security Administration (“SSA”) denied these
applications initially and upon reconsideration.
(R. at 70–71,
At Johnson’s request, a hearing was held before an
Administrative Law Judge (“ALJ”) on March 10, 2015.
On April 9,
2015, the ALJ issued a decision denying Johnson’s request for
because she retained the residual functional capacity (“RFC”) to
perform jobs that exist in significant numbers in the national
(R. at 9–26.)
On January 19, 2016, the SSA’s Appeals
Therefore, the ALJ’s decision became the final decision for the
Subsequently, on March 23, 2016, Johnson
filed the instant action.
(ECF No. 1.)
Johnson argues that (1)
the ALJ gave improper weight to the opinion of medical examiner
Paul Brown, Ph.D., (2) the ALJ should have considered the effect
of Johnson’s obesity upon her RFC, (3) the ALJ should not have
given any weight to Johnson’s GAF score, and (4) the ALJ erred
by not including a function-by-function assessment in the RFC
CONCLUSIONS OF LAW
Standard of Review
Under 42 U.S.C. § 405(g), a claimant may obtain judicial
review of any final decision made by the Commissioner after a
hearing to which she or he was a party.
“The court shall have
power to enter, upon the pleadings and transcript of the record,
a judgment affirming, modifying, or reversing the decision of
the Commissioner of Social Security, with or without remanding
the cause for a rehearing.”
42 U.S.C. § 405(g).
making the decision.
Id.; Burton v. Comm'r of Soc. Sec., No.
16-4190, 2017 WL 2781570, at *2 (6th Cir. June 27, 2017); Cole
v. Astrue, 661 F.3d 931, 937 (6th Cir. 2011); Rogers v. Comm’r
of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007).
evidence is more than a scintilla of evidence but less than
preponderance and is “such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.”
Sec’y of Health & Human Servs., 667 F.2d 524, 535 (6th Cir.
1981) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)).
reviewing court must examine the evidence in the record as a
whole and “must ‘take into account whatever in the record fairly
detracts from its weight.’”
Abbott v. Sullivan, 905 F.2d 918,
923 (6th Cir. 1990) (quoting Garner v. Heckler, 745 F.2d 383,
Shalala, 40 F.3d 789, 794 (6th Cir. 1994) (quoting Smith v.
Sec’y of Health & Human Servs., 893 F.2d 106, 108 (6th Cir.
Similarly, the court may “not try the case de novo,
Ulman v. Comm’r of Soc. Sec., 693 F.3d 709, 713
(6th Cir. 2012) (quoting Bass v. McMahon, 499 F.3d 506, 509 (6th
The Commissioner, not the court, is charged with
the duty to weigh the evidence and to resolve material conflicts
in the testimony.
Walters v. Comm’r of Soc. Sec., 127 F.3d 525,
528 (6th Cir. 1997); Crum v. Sullivan, 921 F.2d 642, 644 (6th
Cir. 1990); Prater v. Comm'r of Soc. Sec., No. 114CV01221STATMP,
2017 WL 2929479, at *1 (W.D. Tenn. July 10, 2017).
The Five-Step Analysis
The Act defines disability as the “inability to engage in
determinable physical or mental impairment which can be expected
to result in death or which has lasted or can be expected to
42 U.S.C. § 423(d)(1).
Additionally, section 423(d)(2) of the
An individual shall be determined to be under a
disability only if his physical or mental impairment
or impairments are of such severity that he is not
only unable to do his previous work but cannot,
considering his age, education, and work experience,
engage in any other kind of substantial gainful work
which exists in the national economy, regardless of
whether such work exists in the immediate area in
which he lives, or whether a specific job vacancy
exists for him, or whether he would be hired if he
applied for work.
For purposes of the preceding
sentence (with respect to any individual), “work which
exists in the national economy” means work which
exists in significant numbers either in the region
where such individual lives or in several regions of
establishing an entitlement to benefits.
Oliver v. Comm’r of
Soc. Sec., 415 F. App’x 681, 682 (6th Cir. 2011).
burden is on the claimants to prove they have a disability as
defined by the Act.
Siebert v. Comm’r of Soc. Sec., 105 F.
App’x 744, 746 (6th Cir. 2004) (citing Walters, 127 F.3d at
529); see also Born v. Sec’y of Health & Human Servs., 923 F.2d
1168, 1173 (6th Cir. 1990).
If the claimant is able to do so,
the burden then shifts to the Commissioner to demonstrate the
existence of available employment compatible with the claimant’s
disability and background.
Born, 923 F.2d at 1173; see also
Griffith v. Comm’r of Soc. Sec., 582 F. App’x 555, 559 (6th Cir.
Entitlement to social security benefits is determined by a
five-step sequential analysis set forth in the Social Security
See 20 C.F.R. §§ 404.1520, 416.920.
claimant must not be engaged in substantial gainful activity.
See 20 C.F.R. §§ 404.1520(b), 416.920(b).
Second, a finding
must be made that the claimant suffers from a severe impairment.
third step, the ALJ determines whether the impairment meets or
Impairments contained in the Social Security Regulations.
20 C.F.R. §§ 404.1520(d), 404.1525, 404.1526, 416.920(d).
the impairment satisfies the criteria for a listed impairment,
the claimant is considered to be disabled.
On the other hand,
if the claimant’s impairment does not meet or equal a listed
determines that the claimant can return to past relevant work,
then a finding of not disabled must be entered.
But if the
ALJ finds the claimant unable to perform past relevant work,
claimant can perform other work existing in significant numbers
in the national economy.
See 20 C.F.R. §§ 404.1520(a)(4)(v),
Further review is not necessary if it
is determined that an individual is not disabled at any point in
20 C.F.R. §§ 404.1520(a)(4),
Weight of Dr. Brown’s Opinion
Johnson argues that the ALJ should have given Dr. Brown’s
opinion greater weight.
On October 31, 2012, Johnson received a
clinical history, made clinical observations, and administered
In his description of the examination,
Dr. Kennon noted multiple times that Johnson appeared to be
exaggerating her symptoms and malingering.
(R. at 316–19.)
observed that she had a greater ability to socialize than she
computation level despite her acknowledgement that managed her
own money and had a tenth grade education, and that she could
communicate in a logical and goal-directed fashion even though
she claimed to know basic concepts such as the shape of a ball.
Dr. Kennon concluded that, while she tested as profoundly
mentally retarded, her test results were invalid due to her
obvious falsification of her answers.
(R. at 319.)
Dr. Brown examined Johnson on June 27, 2013.
(R. at 381.)
Dr. Brown disagreed with Dr. Kennon’s opinion, observing that
attempt to answer the questions put to her.
(R. at 387.)
administering the Wechsler Adult Intelligence Scale and the Wide
Range Achievement Test, Dr. Brown concluded that Johnson was
depressed, possessed an IQ of 52, had mild mental retardation,
and had very poor reading, language, and math skills.
He also assigned her a GAF score of 45 to 50.
examination of Johnson, Dr. Womack gave Dr. Brown’s opinion very
functional capacity that were not severe enough to result in
finding her disabled.
(R. at 82.)
When determining Johnson’s RFC, the ALJ considered these
and other medical opinions.
The ALJ reviewed the results of Dr.
Brown’s examination and opinion; the ALJ gave both the results
and the opinion little weight due to its inconsistencies with
Dr. Kennon’s examination and opinion, such as Johnson’s ability
to list two colors of the flag for Dr. Kennon but not for Dr.
(R. at 19.)
Johnson argues that the ALJ erred by giving Dr. Brown’s
opinion little weight because he provided no concrete reasons
for his decision and should have credited the objective findings
of Dr. Brown over the subjective opinion of Dr. Kennon.
depending upon the opinion’s source.
20 C.F.R. § 404.1527(a)(2).
Norris v. Comm'r of Soc.
Sec., 461 F. App'x 433, 439 (6th Cir. 2012).
For this reason,
controlling weight, she or he must give “good reasons” for doing
Austin v. Comm'r of Soc. Sec., 714 F. App'x 569, 573 (6th
However, ALJs do not have the same obligation when
weighing medical opinions from non-treating sources.
2016)(finding that ALJs are exempted from the “reasons-giving
requirement” when weighing medical opinions from non-treating
sources), and Reeves v. Comm'r of Soc. Sec., 618 F. App'x 267,
273 (6th Cir. 2015)(same), and Karger v. Comm'r of Soc. Sec.,
414 F. App'x 739, 744 (6th Cir. 2011)(same).
But see SSR 96-8p,
1996 WL 374184, *7 (S.S.A. July 2, 1996) (“The RFC assessment
must always consider and address medical source opinions.
the RFC assessment conflicts with an opinion from a medical
source, the adjudicator must explain why the opinion was not
adopted.”); SSR 96-5p, 1996 WL 374183, *5 (S.S.A. July 2, 1996)
(“Adjudicators must weigh medical source statements under the
rules set out in 20 [C.F.R. §§] 404.1527 and 416.927, providing
Consequently, because Dr. Brown was not a treating
source, the ALJ did not need to explain the reasons behind the
weight he gave to Dr. Brown’s opinion.
Furthermore, the ALJ’s reason for giving the opinion little
weight, that it was inconsistent with other opinions, was a
404.1527(c)(4)(“Generally, the more consistent a medical opinion
is with the record as a whole, the more weight we will give to
that medical opinion.”); see also Justice v. Comm'r Soc. Sec.
Admin., 515 F. App'x 583, 588 (6th Cir. 2013) (“In a battle of
the experts, the agency decides who wins.”).
Thus, the court
requirements when assigning a weight to Dr. Brown’s opinion.
Effect of Obesity on RFC
Johnson argues that the ALJ violated Social Security Ruling
02-1p by failing to consider her obesity when crafting her RFC
There is little information concerning Johnson’s
obesity in her medical records.
The records document her weight
as ranging from 210 pounds to 252 pounds.
337–40, 342, 344, 346.)
(R. at 290, 315, 326,
On February 3, 2013, a nurse at Haywood
Park Community Hospital observed that Johnson appeared obese but
also appeared to ambulate independently.
(R. at 327.)
consulting physicians mentioned Johnson’s weight when assessing
(R. at 44, 47, 51, 72, 80.)
The court has not found
and Johnson has not identified any further evidence relating to
claimants’ RFC because it could alter their ability to function
in an exertional or social capacity.
34686281, *6 (S.S.A. Sept. 12, 2002).
See SSR 02-1p, 2002 WL
However, the ruling “does
not mandate a particular mode of analysis” for ALJs assessing
how obesity impacts a claimant’s RFC.
F. App'x 408, 411 (6th Cir. 2006).
Bledsoe v. Barnhart, 165
The Sixth Circuit has held
that ALJs meet the requirements of SSR 02-1p if they credit
Miller v. Comm'r of Soc. Sec., 811 F.3d
825, 835 (6th Cir. 2016)(quoting
Coldiron v. Comm’r of Soc.
Sec., 391 F. App’x 435, 443 (6th Cir. 2010)).
But see Shilo v.
Comm'r of Soc. Sec., 600 F. App’x 956, 959 (6th Cir. 2015)
determinations . . . .”).
Here, the ALJ gave great weight to
the opinions of the two medical consultants who may not have
reference Johnson’s weight several times.
The court finds this
to be sufficient consideration of obesity.
See Coldiron, 391 F.
claimant’s weight as indicative that the source had considered
the claimant’s obesity); Bledsoe, 165 F. App'x at 412 (finding
that an ALJ considered a claimant’s obesity because the ALJ
contained the caption “alleged impairment: obesity”).
Proper use of GAF Scores
Johnson claims that the ALJ should not have considered her
GAF score as a basis for reducing the severity of her mental
Johnson a GAF score of 45 to 50.
The ALJ mentioned this score
in his order, but there is no indication that the ALJ relied on
it either to increase or decrease the severity of Johnson’s
mental health impairments.
On top of which, ALJs are allowed to
essential to the RFC's accuracy,’ it nevertheless ‘may be of
considerable help to the ALJ in formulating the RFC.’” (quoting
Howard v. Comm'r of Soc. Sec., 276 F.3d 235, 241 (6th Cir.
Thus, the court finds that the ALJ did not err by
mentioning Johnson’s GAF score.
Function-by-Function Requirement of RFC Analysis
reversible error by failing to include a function-by-function
assessment of all exertional and nonexertional factors impacting
her RFC as required by SSR 96-8p.
In his analysis of Johnson’s
RFC, the ALJ noted that Johnson claimed her impairments affected
tasks, concentrate, and understand and follow instructions.
The ALJ then considered the objective medical records
related to Johnson’s diabetes and hypertension, the exertional
descriptions of her daily activities.
(R. at 17–18.)
perform medium work as defined in 20 [C.F.R. §§] 404.1567(c) and
416.967(c) except she is limited to only simple, routine tasks
with occasional interpersonal contact with coworkers, the public
(R. at 16.)
The SSA requires ALJs to “first identify the [claimant’s]
functional limitations or restrictions and assess his or her
work-related abilities on a function-by-function basis” before
assigning the claimant an exertional level of work.
8p, 1996 WL 374184, *1.
See SSR 96-
However, there is a difference “between
what an ALJ must consider and what an ALJ must discuss in a
Delgado v. Comm'r of Soc. Sec., 30 F. App'x
542, 547–48 (6th Cir. 2002).
While ALJs must consider each
function individually, they are “not required to discuss each
function” in their decisions.
Lundby v. Comm'r of Soc. Sec.,
No. 16-13508, 2018 WL 1516915, at *6 (E.D. Mich. Mar. 28, 2018);
Pendergrass v. Berryhill, No. 1:16-CV-145, 2018 WL 1460867, at
*10 (E.D. Tenn. Mar. 23, 2018); Kees v. Comm'r of Soc. Sec., No.
3:16-CV-488-DJH-DW, 2018 WL 1411021, at *4 (W.D. Ky. Mar. 20,
2018); Long v. Comm'r of Soc. Sec., No. 3:16-CV-03089-TMP, 2018
WL 456209, at *13 (N.D. Ohio Jan. 16, 2018).
Instead, the ALJs
must “articulate how the evidence in the record supports the RFC
sustained work-related activities, and explain the resolution of
any inconsistencies in the record.”
Delgado, 30 F. App'x at 548
(Table), No. 00-1995, slip op. 5 (3d Cir. Dec. 19, 2000)); Rudd
v. Comm'r of Soc. Sec., 531 F. App'x 719, 729 (6th Cir. 2013).
examined the evidence in the record, determined what limitations
impaired Johnson’s ability to work, and resolved inconsistencies
in the record.
It is also evident from the ALJ’s description of
limitations before assigning her an RFC to perform medium work.
Thus, the court finds that the
ALJ complied with procedural
requirements when assessing Johnson’s RFC.
For the foregoing reasons, the Commissioner’s decision that
Johnson is not disabled is affirmed.
IT IS SO ORDERED.
s/ Tu M. Pham
TU M. PHAM
United States Magistrate Judge
April 12, 2018
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