Johnson v. Colvin

Filing 11

MEMORANDUM OPINION denying Claimant's 9 BRIEF IN SUPPORT OF JUDGMENT ON THE PLEADINGS, granting Defendant's 10 BRIEF IN SUPPORT OF DEFENDANT'S DECISION, affirming the final decision of the Commissioner, and dismissing this matter from the docket of this Court. Signed by Magistrate Judge Dwane L. Tinsley on 3/31/2015. (cc: counsel of record) (tmh)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
CHARLESTON
JOHN SCOTT JOHNSON,
Plaintiff,
v.

CIVIL ACTION NO. 2:13-CV-23854

CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Defendant.

MEMORANDUM OPINION
This is an action seeking review of the decision of the Commissioner of Social Security
denying Claimant’s application for disability insurance benefits (DIB) under Title II of the Social
Security Act. This case is presently pending before the court on cross-motions for judgment on
the pleadings. Both parties have consented to a decision by the United States Magistrate Judge.
Claimant, John Scott Johnson, filed an application for disability insurance benefits (DIB)
on February 5, 2010. The claim was denied initially on August 3, 2010, and upon reconsideration
on November 12, 2010. Claimant filed a request for hearing on November 16, 2010. A hearing
was held on January 11, 2012, in Huntington, West Virginia. The Administrative Law Judge
(ALJ) denied Claimant’s application on February 24, 2012.

The Appeals Council denied

Claimant’s request for review on November July 24, 2013. Claimant filed a complaint for review
of the decision in federal court September 27, 2013 (ECF No. 1).
Under 42 U.S.C. ' 423(d)(5), a claimant for disability has the burden of proving a
disability. See Blalock v. Richardson, 483 F.2d 773, 774 (4th Cir. 1972). A disability is defined
as the "inability to engage in any substantial gainful activity by reason of any medically

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determinable impairment which can be expected to last for a continuous period of not less than 12
months . . . ." 42 U.S.C. ' 423(d)(1)(A).
The Social Security Regulations establish a "sequential evaluation" for the adjudication of
disability claims. 20 C.F.R. ' 404.1520 (2013). If an individual is found "not disabled" at any
step, further inquiry is unnecessary. Id. ' 404.1520(a). The first inquiry under the sequence is
whether a claimant is currently engaged in substantial gainful employment. Id. ' 404.1520(b).
If the claimant is not, the second inquiry is whether claimant suffers from a severe impairment.
Id. ' 404.1520(c).

If a severe impairment is present, the third inquiry is whether such

impairment meets or equals any of the impairments listed in Appendix 1 to Subpart P of the
Administrative Regulations No. 4. Id. ' 404.1520(d). If it does, the claimant is found disabled
and awarded benefits. Id. If it does not, the fourth inquiry is whether the claimant's impairments
prevent the performance of past relevant work. Id. '' 404.1520(e). By satisfying inquiry four,
the claimant establishes a prima facie case of disability. Hall v. Harris, 658 F.2d 260, 264 (4th
Cir. 1981). The burden then shifts to the Commissioner, McLain v. Schweiker, 715 F.2d 866,
868-69 (4th Cir. 1983), and leads to the fifth and final inquiry: whether the claimant is able to
perform other forms of substantial gainful activity, considering claimant's remaining physical
and mental capacities and claimant's age, education and prior work experience. 20 C.F.R. '
404.1520(f) (2013). The Commissioner must show two things: (1) that the claimant, considering
claimant’s age, education, work experience, skills and physical shortcomings, has the capacity to
perform an alternative job, and (2) that this specific job exists in the national economy.
McLamore v. Weinberger, 538 F.2d 572, 574 (4th Cir. 1976).
In this particular case, the ALJ determined that Claimant satisfied the first inquiry
because he has not engaged in substantial gainful activity during the period of time from his
alleged onset date of January 1, 2008, through his date last insured (DLI) of June 1, 2008 (Tr. at
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15). Under the second inquiry, the ALJ found that Claimant suffers from the severe impairments
of post traumatic and degenerative arthritis, chronic neck/back pain and depression. (Id.) At the
third inquiry, the ALJ concluded that Claimant=s impairments do not meet or equal the level of
severity of any listing in Appendix 1.

The ALJ then found that Claimant has a residual

functional capacity for sedentary work with a sit/stand option, as well as no overhead reaching
with the dominant right hand/arm; no pushing/pulling with the dominant right arm; no
limitations on use of the left arm; only occasional bending, stooping, squatting, kneeling,
crouching or crawling; no exposure to heights; occasional climb stairs; no phone work; and no
concentration exposure to dust, fumes, odors or extreme temperature changes. Mentally, he
should have only occasional contact with co-workers with no tandem tasks and have no contact
with people (Tr. at 19). The ALJ held that Claimant was unable to perform any past relevant
work (Tr. at 23). Nevertheless, the ALJ concluded that Claimant could perform jobs such as
laminator, type/copy examiner and ink printer (Tr. at 24).
Scope of Review
The sole issue before this court is whether the final decision of the Commissioner
denying the claim is supported by substantial evidence. In Blalock v. Richardson, substantial
evidence was defined as
Aevidence which a reasoning mind would accept as sufficient to
support a particular conclusion. It consists of more than a mere
scintilla of evidence but may be somewhat less than a
preponderance. If there is evidence to justify a refusal to direct a
verdict were the case before a jury, then there is 'substantial
evidence.=@
Blalock v. Richardson, 483 F.2d 773, 776 (4th Cir. 1972) (quoting Laws v. Cellebreze, 368 F.2d
640, 642 (4th Cir. 1966)). Additionally, the Commissioner, not the court, is charged with
resolving conflicts in the evidence. Hays v.Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990).

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Nevertheless, the courts Amust not abdicate their traditional functions; they cannot escape their
duty to scrutinize the record as a whole to determine whether the conclusions reached are
rational.@ Oppenheim v. Finch, 495 F.2d 396, 397 (4th Cir. 1974).
A careful review of the record reveals the decision of the Commissioner is supported by
substantial evidence.
Claimant=s Background
Claimant was thirty-nine years old when his insured status expired on June 30, 2008.
Claimant has a high school education and past relevant work experience as a roofer, construction
laborer, dishwater and cleaner (Tr. at 23). At the time of the hearing, on January 11, 2012,
Claimant worked part-time at Cracker Barrel washing dishes for “about 21 hours a week” (Tr. at
46). Claimant’s wife had been without work for approximately 4 months prior to the hearing. By
the time of the hearing, Claimant’s wife had obtained employment. Id.
Claimant possesses a current driver’s license (Tr. at 49). He testified to driving 22
minutes or more to the hearing.

He was previously on home confinement in 2009 for

participating in an altercation (Tr. at 50). Claimant testified to receiving unemployment for over
a year in or around 2009 (Tr. at 51).
The Medical Record
The court has reviewed all evidence of record, including the medical evidence of record,
and will discuss it further below as necessary.
Claimant=s Challenges to the Commissioner=s Decision
Claimant asserts that the decision of the Administrative Law Judge (ALJ) is not
supported by substantial evidence (ECF No. 9). Claimant asserts that “his testimony is entitled
to full credibility because his exertional and non-exertional impairments are disabling in nature.
Neglecting to properly analyze the evidence and the [Claimant’s] veracity, the Administrative
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Law Judge instead relied on hackneyed credibility ‘boilerplate’ and regurgitated that the
[Claimant’s]…’statements concerning the intensity, persistence and limiting effects of these
symptoms are not credible…’” Claimant further asserts that the ALJ did not fairly and
reasonably evaluate [his] credibility in light of the medical evidence, statutory law, applicable
Social Security Rulings and Regulations, and current case law. Lastly, Claimant asserts that the
ALJ erred by failing “to consider the requirements of SSR 96-9p: Policy Interpretation Ruling
Titles II and XVI: Determining Capability To Do Other Work-Implications of a Residual
Functional Capacity for Less Than a Full Range of Sedentary Work in as much as the ALJ found
Claimant limited to less than a full range of sedentary work” (ECF No. 9).
Defendant asserts that substantial evidence supports the ALJ’s finding that Claimant
could perform the limited range of sedentary work identified by the vocational expert (ECF No.
10). Defendant asserts that the ALJ fully explained in her decision why she did not find
Claimant fully credible.

Defendant further asserts that the ALJ pointed out that Claimant

continued to work full-time performing manual labor around the relevant period, therefore, she
“amply discussed” her reasons for not finding Claimant’s subjective complaints fully credible.
Lastly, Defendant asserts that not one treating or examining source placed any work-related
limitations on Claimant.
Discussion
Claimant had two surgeries to his right shoulder area, a right shoulder arthroscopic
reconstruction in 2003 associated with mild glenohumeral arthritis, and a resurfacing arthroplasty
in August 2005 for progression of Claimant’s pain complaints. On October 27, 2005, Luis E.
Bolano, M.D., noted that Claimant was 2.5 months post-operation and was doing well without
any complaints (Tr. at 461). Claimant demonstrated full range of motion with little pain and
exhibited good strength. Id.
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On November 20, 2007, Claimant was seen by Rockford Meadows, M.D., with
University Physicians & Surgeons, in Huntington, West Virginia, and denied “focal weakness,
clumsiness of hands, but did state that he had neuropathic pain that radiated to his arms
bilaterally” (Tr. at 16). Claimant’s post reconstructive surgery to his right should was stable
“with his current narcotic regimen, which allows him to maintain full-time employment in
manual labor.”
In January 2008, Claimant returned for a follow-up visit with Dr. Meadows presenting
complaints of chronic pain. Claimant reported to be working full time (Tr. at 227). In April
2009, approximately one year after Claimant’s insured status had expired, Claimant saw Scott
Davis, M.D., with University Physicians and Surgeons, complaining of neck pain which radiates
across to his right shoulder. Claimant reported experiencing “sharp stabbing pain” (Tr. at 210).
Claimant reported that he had not experienced an injury but had “started back to work with
construction company.” Id. Claimant denied significant weakness, numbness, tingling,
paresthesia or dropping objects. Claimant requested a prescription of Lortab.
Claimant saw Dr. Meadows again in April of 2010, at which time he reported that he was
feeling fine. On August 3, 2010, Frank Roman, Ed.D., conducted a Psychiatric Review
Technique and reported insufficient evidence prior to Claimant date of last insured (DLI). On
November 10, 2010, A Rafael Gomez, M.D., conducted a case analysis which reported that there
was insufficient evidence prior to the date last insured in June of 2008, to assess this case. On
November 11, 2010, Paula J. Bickham, Ph.D., reviewed Dr. Roman’s Psychiatric Review
Technique and all the evidence in the file and affirmed the review as written (Tr. at 300).
Credibility
A two-step process is used to determine whether a claimant is disabled by pain. First,

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objective medical evidence must show the existence of a medical impairment that reasonably
could be expected to produce the pain alleged. 20 C.F.R. '' 404.1529(b) and 416.929(b) (2014);
SSR 96-7p, 1996 WL 374186 (July 2, 1996); see also, Craig v. Chater, 76 F.3d 585, 594 (4th
Cir. 1996). If such an impairment is established, then the intensity and persistence of the pain
and the extent to which it affects a claimant=s ability to work must be evaluated. Craig, 76 F.3d
at 595. When a claimant proves the existence of a medical condition that could cause pain, Athe
claimant=s subjective complaints [of pain] must be considered by the Secretary, and these
complaints may not be rejected merely because the severity of pain cannot be proved by
objective medical evidence.@ Mickles v. Shalala, 29 F.3d 918, 919 (4th Cir. 1994). Objective
medical evidence of pain should be gathered and considered, but the absence of such evidence is
not determinative. Hyatt v. Sullivan, 899 F.2d 329, 337 (4th Cir. 1990). A claimant=s symptoms,
including pain, are considered to diminish his capacity to work to the extent that alleged
functional limitations are reasonably consistent with objective medical and other evidence. 20
C.F.R. '' 404.1529(c)(4) and 416.929(c)(4) (2014). Additionally, the regulations provide that:
[w]e will consider all of the evidence presented, including information about your
prior work record, your statements about your symptoms, evidence submitted by
your treating, examining, or consulting physician or psychologist, and
observations by our employees and other persons. . . . Factors relevant to your
symptoms, such as pain, which we will consider include:
(i) Your daily activities;
(ii) The location, duration, frequency, and intensity of your pain or other
symptoms.
(iii) Precipitating and aggravating factors;
(iv) The type, dosage, effectiveness, and side effects of any medication
you take or have taken to alleviate your pain or other symptoms;
(v) Treatment, other than medication, you receive or have received for
relief of your pain or other symptoms;
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(vi) Any measures you use or have used to relieve your pain or other
symptoms (e.g., lying flat on your back, standing for 15 or 20 minutes every hour,
sleeping on a board, etc.); and
(vii) Other factors concerning your functional limitations and restrictions
due to pain or other symptoms.
20 C.F.R. '' 404.1529(c)(3) and 416.929(c)(3) (2014).
SSR 96-7p repeats the two-step regulatory provisions:
First, the adjudicator must consider whether there is an underlying
medically determinable physical or mental impairment(s)--i.e., an impairment(s)
that can be shown by medically acceptable clinical and laboratory diagnostic
techniques--that could reasonably be expected to produce the individual=s pain or
other symptoms. * * * If there is no medically determinable physical or mental
impairment(s), or if there is a medically determinable physical or mental
impairment(s) but the impairment(s) could not reasonably be expected to produce
the individual=s pain or other symptoms, the symptoms cannot be found to affect
the individual=s ability to do basic work activities.
Second, once an underlying physical or mental impairment(s) that could
reasonably be expected to produce the individual=s pain or other symptoms has
been shown, the adjudicator must evaluate the intensity, persistence, and limiting
effects of the individual=s symptoms to determine the extent to which the
symptoms limit the individual=s ability to do basic work activities. For this
purpose, whenever the individual=s statements about the intensity, persistence, or
functionally limiting effects of pain or other symptoms are not substantiated by
objective medical evidence, the adjudicator must make a finding on the credibility
of the individual=s statements based on a consideration of the entire case record.
SSR 96-7p, 1996 WL 374186, at *2. 416.920(c).
Craig and SSR 96-7p provide that although an ALJ may look for objective medical
evidence of an underlying impairment capable of causing the type of pain alleged, the ALJ is not
to reject a claimant=s allegations solely because there is no objective medical evidence of the pain
itself. Craig, 76 F.3d at 585, 594; SSR 96-7p, 1996 WL 374186, at *2 (Athe adjudicator must
make a finding on the credibility of the individual=s statements based on a consideration of the
entire case record@). For example, the allegations of a person who has a condition capable of

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causing pain may not be rejected simply because there is no evidence of Areduced joint motion,
muscle spasms, deteriorating tissues [or] redness@ to corroborate the extent of the pain. Craig,
76 F.3d at 595. Nevertheless, Craig does not prevent an ALJ from considering the lack of
objective evidence of the pain or the lack of other corroborating evidence as factors in his
decision. The only analysis which Craig prohibits is one in which the ALJ rejects allegations of
pain solely because the pain itself is not supported by objective medical evidence.
Claimant asserts that:
Based on the evidence of record, it is apparent that the exacting
requirements of the Social Security Disability Reform Act of 1984
have been met. This “mutually supportive test” was recognized in
Coffman v. Bowen, 829 F.2d 514 (4th Cir. 1987), and should be
applied in the instant case to allow the Plaintiff the ability to satisfy
the rigors of 42 U.S.C. § 423(d)(5)(A). The standards enunciated
in the Reform act are as follows:
An individual’s statement as to pain or other symptoms shall not
alone be conclusive evidence of disability as defined in this
section; there must be medical signs and findings, established by
medically acceptable clinical or laboratory diagnostic techniques,
which show the existence of a medical impairment that results
from anatomical, physiological or psychological abnormalities
which could reasonably be expected to produce the pain or other
symptoms alleged and which when considered with all evidence
required to be furnished under this paragraph (including statements
of the individual or his physician as to the intensity and persistence
of such pain or other symptoms which may reasonably be accepted
as consistent with the medical signs and findings) would lead to a
conclusion that the individual is under a disability. Objective
medical evidence of pain or other symptoms established by
medically acceptable clinical or, laboratory techniques (for
example, deteriorative nerve or muscle tissue), must be considered
in reaching a conclusion as to whether the individual is under a
disability.

Social Security Ruling 96-7p provides:
It is not sufficient for the adjudicator to make a single, conclusory
statement that “the individual’s allegations have been considered”
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or that “the allegations are (or are not) credible.” It is also not
enough for the adjudicator simply to recite the factors that are
described in the regulations for evaluating symptoms. The
determination or decision must contain specific reasons for the
finding on credibility, supported by the evidence in the case record,
and must be sufficiently specific to make clear to the individual
and to any subsequent reviewers the weight of the adjudicator gave
to the individual’s statements and the reasons for that weight.
In the present matter, Claimant asserts that the ALJ used “boilerplate” credibility
language which warrants a remand (ECF No. 9). Claimant assert that the “boilerplate” language
provides no basis to determine what weight the ALJ gave Claimant’s testimony.
The ALJ’s thorough credibility analysis spans over approximately four pages in the
ALJ’s decision (Tr. at 19-23). The ALJ compared and contrasted Claimant’s assertions and
testimony. The ALJ discussed Claimant working as an iron worker around the relevant time
period of his alleged disability onset (Tr. at 22). The ALJ discussed the opinion evidence of
record and stated that “the only opinions of record are those of the state agency medical
consultants, who after review of the evidence of record as a whole, found insufficient evidence
prior to his date last insured to assess any impairment of limitation” (Tr. at 23). The ALJ
concluded by stating that she has “granted the claimant the maximum benefit of the doubt in
regard to his right shoulder problems and neck/back pain,” therefore she limited him to less than
a full range of sedentary level exertion. Id.

Substantial Evidence on the Record as a Whole
A[Judicial] review of a decision of the Commissioner . . . in a disability benefits case is
limited to determining whether the Commissioner=s decision is supported by substantial evidence
on the record as a whole.@. Raney v. Barnhart, 396 F.3d 1007, 1009 (8th Cir. 2005). While not
required to discuss every piece of evidence, an ALJ should discuss evidence that, if believed,

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could lead to a finding of disability. Barrett v. Barnhart, 355 F.3d 1065, 1068 (7th Cir. 2004); 20
C.F.R. ' 404.1523 (2013); Golembiewski v. Barnhart, 322 F.3d 912, 918 (7th Cir. 2003) (per
curiam); Draper v. Barnhart, 425 F.3d 1127, 1130 (8th Cir. 2005) (Determination of whether
substantial evidence supports decision in social security disability case requires reviewing court
to consider not only evidence in the record that supports Commissioner=s determination, but also
any evidence that detracts from that conclusion.); Randall v. Sullivan, 956 F.2d 105, 109 (5th Cir.
1992) (In reviewing the Social Security Commissioner=s denial of Supplemental Security Income
(SSI) benefits for a disability, the court may not examine only the evidence favorable to the
Commissioner; it must also examine contrary evidence.); Clifton v. Chater, 79 F.3d 1007, 1010
(10th Cir. 1996) (AIn addition to discussing the evidence supporting his decision in a social
security disability benefits case, the ALJ must discuss the uncontroverted evidence he chooses
not to rely upon, as well as significantly probative evidence he rejects.@).
In the present case, the ALJ considered the evidence of record as a whole and concluded
that Claimant failed to demonstrate disability.
Vocational Expert
While questions posed to the vocational expert must fairly set out all of claimant=s
impairments, the questions need only reflect those impairments that are supported by the record.
See Chrupcala v. Heckler, 829 F.2d 1269, 1276 (3d Cir. 1987). Additionally, the hypothetical
question may omit non-severe impairments, but must include those which the ALJ finds to be
severe. Benenate v. Schweiker, 719 F.2d 291, 292 (8th Cir. 1983).
The Fourth Circuit has held, “We recognize that not every nonexertional limitation or
malady rises to the level of a nonexertional impairment, so as to preclude reliance on the grids.”
Grant v. Schweiker, 699 F.2d 189 (4th Cir. 1983). The proper inquiry under Grant is whether the

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nonexertional condition affects an individual’s residual functional capacity to perform work of
which he is exertionally capable.
In the present case, the ALJ asked the vocational expert (VE) to provide the exertional
level for jobs Claimant has performed (Tr. at 79). The VE stated that a roofer is at medium
exertion and construction laborer is at heavy exertion. Id. The VE stated that Claimant’s file
indicated that he has lifted over 100 pounds at times, therefore the VE stated the position of
construction site cleaner is very heavy exertion. The VE stated that the position of dishwasher is
customarily medium in exertion.
The ALJ asked the VE to assume “a hypothetical individual of the claimant’s age,
education and work experience who can work at the level, but requires a sit/stand option with no
overhead reaching with the dominant right hand and arm, no pushing or pulling with the
dominant right arm, no limitations on use of the left arm, only occasional bending, stooping,
squatting, kneeling, crouching or crawling, no work at heights; only occasional stairs, no
concentrated exposure to dust, fumes, odors or extreme temperature changes and no phone work.
Would any of claimant’s past work be available?” (Tr. at 80-81). The VE testified that Claimant
could not perform any of his previous positions (Tr. at 81).
The ALJ then asked the VE if there is “Any other work available in the national or local
economy?” The VE answered yes and provided the examples of light exertional, unskilled work
of monitoring a machine: collator operator, DOT number 208.685-014 with 55,000 positions
nationally and 615 positions for the region (Tr. at 82). The VE additionally stated the example
of photographic machine operation, recognized under DOT number 207.685-018 with 85,000
positions nationally and 1,375 positions in the region. Id.
The ALJ asked the VE to consider the same hypothetical individual and include the

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following additional limitations: only occasional contact with coworkers, with no tandem tasks
and no contact with the public. The ALJ asked if the jobs identified as available would change.
The VE testified that the additional limitations would not have an effect on the samples provided.
The ALJ asked the VE to identify jobs that would be available if the same hypothetical
individual’s exertion level was changed to sedentary (Tr. at 83). The VE stated that the change
in exertional level would change the jobs available to a laminator, recognized under DOT
number 690.685-258 with 73,025 positions available nationally and 925 positions available
regionally. Id. The VE also stated that a copy examiner is recognized under DOT number
979.687-026, sedentary, with 72,500 positions available nationally and 875 available regionally.
Lastly, in the VE’s sampling of jobs available, he stated that the position of monitoring the
machine is sedentary and recognized under DOT number 652-685-038, with 71,000 positions
available nationally and 775 positions available regionally.
The ALJ asked the VE what are the customary allowable absences for positions identified
by the VE at either the light or sedentary level. Id. The VE testified that “If a person would miss
more than two days a month consistently, that would not be tolerated.” The ALJ asked the VE
what are the customarily allowable breaks? (Tr. at 84). The VE testified that in positions
working with things rather than with the public, customarily allowed is a 15 minute break in the
a.m., 30-45 minute break for lunch and an additional 15 minutes in the late afternoon. The VE
provided that if the position involves a job working with the general public would just have one
break of half an hour to 45 minutes for lunch.
Claimant’s counsel asked the VE if full credibility were given to everything Claimant
testified to and was substantiated by objective medical evidence, would Claimant be able to
engage in any of the jobs provided by the VE above (Tr. at 85). The VE answered “No, sir.”

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Conclusion
The court finds that the ALJ’s decision is supported by substantial evidence. The ALJ’s
decision does contain a thorough explanation of his credibility findings in keeping with the
applicable regulation, case law and social security ruling. 20 C.F.R. § 404.1529(b)(2014); SSR
96-7p, 1996 WL 374186 (July 2, 1996); Craig v. Chater, 76 F.3d 585, 594 (4th Cir. 1996). In the
ALJ’s analysis of Claimant’s credibility, she compares and contrasts Claimant’s assertions and
the evidence of record as a whole.
After a careful consideration of the evidence of record, the Court finds that the
Commissioner’s decision is supported by substantial evidence. Accordingly, by Judgment Order
entered this day, Claimant’s Brief in Support of Judgment on the Pleadings is DENIED,
Defendant’s Brief in Support of Defendant’s Decision is GRANTED, the final decision of the
Commissioner is AFFIRMED and this matter is DISMISSED from the docket of this Court.
The Clerk of this Court is directed to provide copies of this Order to all counsel of record.
Enter: March 31, 2015.

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