Johnson v. Commissioner, Social Security Administration

Filing 28

MEMORANDUM OPINION - Having found that the record supports the finding of the ALJ, the decision of the Commissioner is AFFIRMED and this action is DISMISSED. Signed by Judge Rodney Gilstrap on 3/29/2017. (ch, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
MARSHALL DIVISION
VELMA JOHNSON
v.
COMMISSIONER, SOCIAL
SECURITY ADMINISTRATION

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Case No. 2:15-CV-2097-JRG-RSP

MEMORANDUM OPINION

On October 6, 2014, Administrative Law Judge Kelley Day issued a decision finding that
Petitioner Velma Louise Johnson was not disabled within the meaning of the Social Security Act
from August 31, 2011 through the date of the decision. Ms. Johnson, who was 61 with a high
school education at that time, was found to be suffering from severe impairments including obesity
and osteoarthritis. These impairments resulted in restrictions on her ability to work, and she had
not engaged in any substantial gainful activity since at least August 31, 2011. Before that time she
had worked as a childcare worker.
After reviewing the medical records and receiving the testimony at the hearing, the ALJ
determined that Petitioner had the residual functional capacity (RFC) to perform the full range of
light work, as defined in the Social Security Regulations, except that she could do no climbing,
and only occasionally balance, kneel, crouch, and crawl, and only frequently stoop.
Considering Petitioner’s RFC, the ALJ relied upon the testimony of a Vocational Expert
and found that Petitioner had the residual functional capacity to perform her past relevant work as
a childcare worker as that job is described in the Dictionary of Occupational Titles published by
the Department of Labor. This resulted in a finding of no disability. Petitioner appealed this

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finding to the Appeals Council, which denied review on October 13, 2015. Petitioner timely filed
this action for judicial review seeking remand of the case for award of benefits.
This Court's review is limited to a determination of whether the Commissioner's final
decision is supported by substantial evidence on the record as a whole and whether the
Commissioner applied the proper legal standards in evaluating the evidence. See Martinez v.
Chater, 64 F.3d 172, 173 (5th Cir.1995); Greenspan v. Shalala, 38 F.3d 232, 236 (5th Cir.1994),
cert. denied, 514 U.S. 1120, 115 S.Ct. 1984, 131 L.Ed.2d 871 (1995). Substantial evidence is more
than a scintilla, but can be less than a preponderance, and is such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion. Ripley v. Chater, 67 F.3d 552, 555 (5th
Cir.1995). A finding of no substantial evidence will be made only where there is a “conspicuous
absence of credible choices” or “no contrary medical evidence.” Abshire v. Bowen, 848 F.2d 638,
640 (5th Cir.1988) (citing Hames v. Heckler, 707 F.2d 162, 164 (5th Cir.1983)). In reviewing the
substantiality of the evidence, a court must consider the record as a whole and “must take into
account whatever in the record fairly detracts from its weight.” Singletary v. Bowen, 798 F.2d 818,
823 (5th Cir.1986).
Plaintiff raises a single issue on this appeal:
1. The ALJ erred in finding that Ms. Johnson can perform past relevant work as a childcare
worker, DOT Code 359.677-018, light, SVP2.
Analysis:
Other than making the unsupported argument that the ALJ failed to develop and fully
explain her findings, Petitioner’s sole argument is that Petitioner’s use of a walker prevents her
from performing the job of childcare worker, her past relevant work. The first problem with this
argument is that both the ALJ and the doctor found that she did not require the walker.
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Dr.

Wener’s report notes that Petitioner was seen walking without difficulty, and without the walker,
from her car to the office and back. Tr. 13. The other findings of Dr. Wener’s examination,
including the ability to pick up objects from the floor, the absence of muscle spasm, and a moderate
to full range of motion, all support this finding.
While the opinion of this particular ALJ is far from thorough, considering the record as a
whole, the Court finds that substantial evidence supports the above findings and that they provide
ample support for the ALJ to discount the very broad statements of disability by the Petitioner.
Conclusion:
Having found that the record supports the finding of the ALJ, the decision of the
Commissioner is AFFIRMED and this action is DISMISSED.

So Ordered this
Mar 29, 2017

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