Johnson v. Colvin

Filing 10

MEMORANDUM OPINION AND ORDER Denying 7 First MOTION for Summary Judgment , Granting 9 MOTION for Summary Judgment (Signed by Judge Gray H. Miller) Parties notified. (sclement, 4) Modified on 6/11/2014 (sclement, 4).

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
MELISSA A. JOHNSON,

Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of the Social
Security Administration,

Defendant.

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CiVIL ACTION H-13-I013

MEMORANDUM OPINION & ORDER

Pending before the court is plaintiff Melissa A. Johnson's ("Johnson") motion for summary
judgment. D kt. 7. Also pending is a cross-motion for summary judgment filed by defendant Carolyn
W. Colvin, the Acting Commissioner ofthe Social Security Administration (the "Commissioner").
Dkt. 9. After considering the motions, responsive briefing, record evidence, and applicable law, the
court finds that Johnson's motion (Dkt. 7) should be DENIED, and the Commissioner's motion
(Dkt. 9) should be GRANTED. The Commissioner's decision is AFFIRMED.

I. BACKGROUND
Johnson filed this action pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3) for judicial review
of an unfavorable decision by the Commissioner regarding Johnson's claim for disability insurance
benefits under Title II of the Social Security Act (the "Act").

A.

Medical History
Johnson was born on January 8,1980. Tr. at 33.' In 1996, Johnson suffered a workplace

back injury while working at a grocery store. Id. at 133. She thereafter went to physical therapy for

I "Tr." refers to the certified administrative transcript filed as Docket Entry No.4 in the record of this appeal
on July 17,2013. Dkt.4.

a sustained period of time, and in May 2001, Dr. Bruce Weiner performed back surgery on Johnson.

Id. at 131-33; see also id. at 458-59 (describing a decompression laminectomy and facetectomy
perfonned in 2001). Beginning in 2009, Johnson was prescribed several medications: Buspar,
Prozac, and Xanax for anxiety and depression; Flexeril and Robaxin for muscle spasms; Morphine
and Percocet for chronic pain; and Ambien for difficulties sleeping. Id. at 129, 164. In 2009 and
2010, Johnson's physician Dr. Jeffrey Cannella administered three epidural inj ections in Johnson's
lower lumbar spine and provided her with monthly counseling sessions. Id. at 130.

B.

Application to the Social Security Administration
On August 14, 2010, Johnson applied for disability insurance benefits, claiming a disabling

back injury, arthritis, depression, limited mobility, chronic pain, sleep deprivation due to pain,
arachnoiditis, uncontrolled bladder issues, and disorder of the spine and musculoskeletal system.

Id. at 126. Her alleged onset date is September 29, 2005, and her date last insured is June 30, 2009.
Id. at 123. Johnson listed multiple side effects resulting from her medications, including weight
gain, heartburn, sleepiness, dry mouth, and "bad dreams." Id. at 151, 156.
On October 29, 2010, her benefits application was denied. Id. at 52-56. On January 3,2011,
Johnson requested reconsideration. Id. at 57-58. Her application was reconsidered and subsequently
denied on April 14, 2011. Id. at 59-62. Johnson requested a hearing on June 9, 2011. Id. at 65.

C.

Hearing
Johnson's hearing was conducted on November 30,2011 in Houston, Texas, and presided

over by administrative law judge Susan Soddy (the "ALl"). Id. at 26. Johnson testified that she
earned a GED and worked as a front desk clerk at a hotel from 2002 to 2005. Id. at 35-36. Johnson
claimed that she left the position because her manager was "[giving her] a hard time." Id. at 38. She
also stated that she lived in a one-story house with her husband and nephew. Id. at 32-33. She did

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not have legal custody of her eleven-year-old nephew, and his living with Johnson was a temporary
arrangement. Id. at 33.
Regarding her physical ailments, Johnson reported that she experienced problems with her
back, which in tum affected her neck, shoulders, and lower extremities. !d. at 39. As a result, she
could not sit or stand for more than approximately twenty minutes, and she reported numbness and
pain in her legs. Id. at 40. Johnson could not walk more than 200 feet without stopping. Id. She
was prescribed and used a cane. Id. at 34-35. Johnson states that she experienced several side
effects from her medications, including fatigue, dizziness, and nausea. Id. at 41.
Regarding her daily activities, Johnson testified that she performed certain household chores,
such as straightening the bed, doing the laundry, wiping counters, and retrieving mail from the
mailbox. Id. at 41. She also drove a vehicle. Id. at 43. On the other hand, she had difficultly
performing personal hygiene activities like washing her hair. Id. at 42-43. In addition, Johnson took
several "cat naps" per day. Id. at 43. Johnson attributed her fatigue to "[t]he medication." Id.
Having reviewed the record and heard Johnson's testimony, the vocational expert, Herman
Litt, testified that Johnson's past employment as a front desk clerk constituted semi-skilled work
performed at a light level of exertion. Id. at 45-46. The ALl posed a hypothetical question to Mr.
Litt regarding whether an individual of Johnson's age, education level, and work experience, who
could perfonn light work yet could not climb ropes, ladders, or scaffolds and needs a cane for
ambulation, would be able to perform Johnson's past work. Id. at 46. Mr. Litt affirmed that the
hypothetical individual would be able to work as a front desk clerk, as well as an order clerk, charge
account clerk, or optical goods worker. Id. at 46-47.

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D.

Administrative Law Judge's Decision
On January 27, 2012, the AU determined that Johnson was not disabled and denied her

application for disability benefits. ld. at 12. Initially, the AU found that Johnson did not engage
in substantial gainful activity and had a severe impairment known as degenerative disc disease of
the lumbar spine. ld. at 17. However, at step three of the disability analysis the AU determined that
Johnson did not have "an impairment or combination of impairments that met or medically equaled
the severity" of an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix A. Id. at 19 (citing
20 C.F.R. §§ 404. 1520(d), 404.1525, 404.1526). Furthermore, the AU held that Johnson had the
residual functional capacity to perform light work and could perform her past relevant work as a
front desk clerk. ld. at 19-22.
The AU also determined that Johnson's anxiety and depression were not severe impairments
as they "cause[ d] no more than minimally vocationally relevant limitations." ld. at 17 (citing 20
C.F.R. § 404. 1520(a), (c)). The AU noted four instances in which a primary care physician or
orthopedic doctor described Johnson as "fully oriented," possessing normal insight and judgment,
and exhibiting "an appropriate mood and affect." ld. at 17-18. The AU also highlighted that there
was no evidence that Johnson visited a mental health professional to treat her claimed anxiety and
depression. ld. at 18. However, the AU acknowledged that Johnson's primary care physician
prescribed medications for these conditions. ld. at 17.
In reaching the decision regarding Johnson's anxiety and depression, the AU also evaluated
the four functional areas set forth in section 12.00C of the Listing oflmpairments. ld. at 18 (citing
20 C.F.R., Part 404, Subpart P, App. 1). First, the AU held that Johnson's anxiety and depression
did not limit the activities of her daily living as she was able to independently take care of herself,
her home, and her nephew. ld. Second, Johnson was able to function socially. ld. Third, there was
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no evidence that Johnson suffered from any "limitation in concentration, persistence or pace." ld.
By contrast, Johnson was able to manage her finances, follow instructions, and complete tasks. ld.
Fourth, there was no evidence that Johnson experienced episodes of decompensation. ld.; see also
20 C.F.R., Part 404, Subpart P, App. 1 (defining episodes of decompensation as "exacerbations or
temporary increases in symptoms or signs accompanied by a loss of adaptive functioning").
Upon learning ofthe AU's denial, Johnson requested a review of the decision. Tr. at 1. On
February 4, 2013, the Appeals Council denied Johnson's request. ld. at 3. Consequently, the AU's
denial became the final decision of the Commissioner. ld. On April 8, 2013, Johnson filed an
original complaint before this court to appeal the Commissioner's decision. Dkt. 1.
II.

LEGAL STANDARD

The court's review of a final decision by the Commissioner denying disability benefits is
limited to the determination of whether: (1) the AU applied proper legal standards in evaluating the
record; and (2) substantial evidence in the record supports the decision. Waters v. Barnhart, 276
F.3d 716, 718 (5th Cir. 2002).
In order to obtain disability benefits, a claimant bears the burden of proving she is disabled
within the meaning of the Act. Wren v. Sullivan, 925 F.2d 123, 125 (5th Cir. 1991). Under the
applicable legal standard, a claimant is disabled if she is unable "to engage in any substantial gainful
activity by reason of any medically determinable physical or mental impairment ... which has lasted
or can be expected to last for a continuous period of not less than twelve months." 42 U.S.C.

§ 423(d)(I)(a); see also Greenspan v. Shalala, 38 F.3d 232,236 (5th Cir. 1994). The existence of
such a disabling impairment must be demonstrated by "medically acceptable clinical and laboratory
diagnostic" findings. 42 U .S.c. § 423( d)(3), (d)(5)(A); see also Jones v. Heckler, 702 F.2d 616, 620
(5th Cir. 1983).

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To determine whether a claimant is capable of performing any "substantial gainful activity,"
the regulations provide that disability claims should be evaluated according to the following
sequential five-step process:
(1) a claimant who was working, engaging in a substantial gainful activity, will not
be found to be disabled no matter what the medical findings are; (2) a claimant will
not be found to be disabled unless [s]he has a "severe impairment;" (3) a claimant
whose impairment meets or is equivalent to [a Listing] will be considered disabled
without the need to consider vocational factors; (4) a claimant who is capable of
performing work that [s]he has done in the past must be found "not disabled;" and
(5) if the claimant is unable to perform h[er] previous work as a result of h[er]
impairment, then factors such as h[ er] age, education, past work experience, and
residual functional capacity must be considered to determine whether [s ]he can do
other work.
Bowlingv. Shalala, 36 F.3d 431,435 (5th Cir. 1994); see also 20 C.F.R. §§ 404.1520,416.920. The

claimant bears the burden of proof on the first four of the above steps, while the Commissioner bears
it on the fifth. Crowley v. Apfel, 197 F .3d 194, 198 (5th Cir. 1999). The analysis stops at any point
in the process upon a finding that the claimant is disabled or not disabled. Greenspan, 38 F.3d at
236.
The widely accepted definition of "substantial evidence" is "that quantum of relevant
evidence that a reasonable mind might accept as adequate to support a conclusion." Carey v. Apfel,
230 F.3d 131, 135 (5th Cir. 2000).

It is "something more than a scintilla but less than a

preponderance." /d. The Commissioner has the responsibility of deciding any conflict in the
evidence. /d. If the findings of fact contained in the Commissioner's decision are supported by
substantial record evidence, they are conclusive, and the court must affirm. 42 U.S.c. § 405(g);
Selders v. Sullivan, 914 F.2d 614,617 (5th Cir. 1990). Only ifno credible evidentiary choices of

medical findings exist to support the Commissioner's decision should the court overturn it. Johnson
v. Bowen, 864 F .2d 340, 343-44 (5th Cir. 1988). In applying this standard, the court should review
the entire record, but the court may not reweigh the evidence, decide issues de novo, or substitute
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the court's judgment for the Commissioner's judgment. Brown v. Apfel, 192 F .3d 492, 496 (5th Cir.
1999). In other words, the court should defer to the decision of the Commissioner as much as
possible without making its review meaningless. Id.
III. ANALYSIS

In her motion for summary judgment, Johnson argues that the Commissioner failed to
consider the side effects resulting from her medications, which "precluded her ability to maintain
the high degree of mental acuity required in the front desk clerk position." Dkt. 7 at 5. Johnson also
argues that the Commissioner failed to properly evaluate her anxiety and depression. Id. at 6.
Namely, the Commissioner should have evaluated the "non-exertional" impairments resulting from
her anxiety and depression, such as her ability to interact with other people and to concentrate for
long periods of time. Id. at 7-8. By contrast, the Commissioner argues that the AU's decision,
including the finding that Johnson's anxiety and depression were not severe, was supported by
substantial evidence. Dkt. 9-1 at 5-13.
With regard to Johnson's first point of error, the court finds that the AU considered the side
effects ofJohnson's medications for her claimed impairments. The AU acknowledged that Johnson
was prescribed midcation to treat her anxiety and depression at various times from 2007-2009. Id.
at 17. The AU also stated in her decision that she had "considered all symptoms and the extent to
which these symptoms can reasonably be accepted as consistent with the objective medical
evidence." Id. at 19; Griego v. Sullivan, 940 F.2d 942,944-45 (5th Cir. 1991) (holding that the AU
has discretion to discredit subjective complaints when inconsistent with an assessment of the
objective medical evidence). Taken together, these statements show that the AU fully considered
Johnson's medications, including the reported side effects thereof, in her disability detennination.
See Wildburv. Areo Chern. Co., 974 F.2d 631, 645 (5th Cir. 1992) (rejecting the notion that a court's
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"failure to expressly list or refer to each factual and legal argument ... means that the court did not
consider [them]"); see also Prince v. Barnhart, 418 F. Supp. 2d 863,868 (E.D. Tex. 2005) (holding
that the ALl's acknowledgment both that a bone spur was an alleged impairment and that the All
had a duty to consider all symptoms, despite being followed by no explicit finding, "connotes that
[the All] found plaintiff s alleged bone spur not to rise to the level of an impairment"); cf Shave
v. Apfel, 238 F.3d 592,595 (5th Cir. 2001) (underscoring the importance of the context surrounding
a decision when the All does not explicitly discuss a factor).
Second, Johnson argues that the All's step-two finding that Johnson's mental impairments
were not severe is unsupported by substantial evidence. This argument, however, is belied by the
court's deferential review ofthe record. The AU recognized that Johnson complained of depression
to her physician in February 2007, and that she received prescriptions for her anxiety and depression
in 2009. Tr. at 17. The AU further explained that Johnson's pain specialist prescribed pain
medication between 2009 and 2011. ld. at 21. However, the All also cited record evidence
containing physicians' observations that Johnson had normal judgment and insight, appropriate
mood and affect, and was fully oriented to time, place, and person. ld. at 17-18. In 2010 and 2011,
a psychologist and psychiatrist examined Johnson and found that she had no severe mental
impairments during the relevant period. ld. at 307-19, 399. Accordingly, the AU's step-two
finding of non-severe mental impairments is supported by substantial evidence and will not be
disturbed.
Further, when determining if a claimant has a severe impairment, the AU must determine
the severity of a combination of impairments. Crowley, 197 F.3d at 197 (citing 20 C.F.R. §
404.1520(c)). "If the AU finds a medically severe combination of impairments, 'the combined
impact of the impairments will be considered throughout the disability determination process. '"
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Loza v. Apfel, 219 F.3d 378,393 (5th Cir. 2000) (citing 20 C.F.R. § 404.1523). However, "only

those combined impairments found to be medically severe need to be considered." Prince, 418
F.Supp. 2d at 868. Here, although the AU referred to Johnson's anxiety and depression as
"medically determinable mental impairments," the AU also held, as explained above, that these
impairments were not severe. Tr. at 18. Thus, the AU was not required to consider the nonexertional impact of Johnson's anxiety and depression throughout the disability determination
process. See Loza, 219 F.3d at 393; Prince, 418 F. Supp. 2d at 868.
Finding that the ALl's decision is supported by substantial evidence and sufficiently
articulated, the court must affirm the Commissioner's denial of benefits in this case.
IV.

CONCLUSION

Johnson's motion for summary judgment (Dkt. 7) is DENIED, and the Commissioner's
cross-motion for summary judgment (Dkt. 9) is GRANTED. The Commissioner's decision is
AFFIRMED. The court will enter a separate judgment consistent with this order.

Signed at Houston, Texas on June 11, 2014.

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