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Johnson v. Berryhill

United States District Court, N.D. Alabama, Middle Division

July 24, 2019

LINDA TOMLIN JOHNSON, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          MEMORANDUM OPINION

          John E. Ott, Chief United States Magistrate Judge.

         Plaintiff Linda Tomlin Johnson appeals from the decision of the Commissioner of the Social Security Administration (the “Commissioner”) denying her application for disability insurance benefits (“DIB”) under the Social Security Act (“SSA”). (Doc. 1).[1] Johnson timely pursued and exhausted her administrative remedies, and the Commissioner's decision is ripe for review pursuant to 42 U.S.C. § 405(g). For the reasons discussed below, the court finds that the Commissioner's decision is due to be affirmed.[2]

         I. Procedural History

         Johnson was sixty years old at the time of the decision. (R. 20, 95-96).[3]She graduated from high school and has past work experience as a waitress. (R. 121-22, 288). She alleges disability based on cellulitis, anxiety, abdominal pain, an irregular heartbeat, and flesh-eating bacteria. (R. 287).

         Johnson protectively filed an application for a period of disability and DIB on May 5, 2015, alleging that she became disabled on April 29, 2015. (R. 11, 154, 243-46). Her application was denied initially, (R. 154), and Johnson requested a hearing before an Administrative Law Judge (“ALJ”), (R. 178). A video hearing was held on August 9, 2017. (R. 89-123). Following the hearing, the ALJ denied her claim. (R. 8-25). Johnson appealed the decision to the Appeals Council (“AC”). After reviewing the record, the AC declined to further review the ALJ's decision. (R. 1-7). That decision became the final decision of the Commissioner and is now ripe for review. See Frye v. Massanari, 209 F.Supp.2d 1246, 1251 (N.D. Ala. 2001) (citing Falge v. Apfel, 150 F.3d 1320, 1322 (11th Cir. 1998)).

         II. Statutory and Regulatory Framework

         To establish her eligibility for disability benefits, a claimant must show “the inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than twelve months.” 42 U.S.C. §§ 416(i)(1)(A), 423(d)(1)(A); see also 20 C.F.R. § 404.1509. The Social Security Administration employs a five-step sequential analysis to determine an individual's eligibility for disability benefits. 20 C.F.R. § 404.1520(a).

         First, the Commissioner must determine whether the claimant is engaged in “substantial gainful activity.” Id. “Under the first step, the claimant has the burden to show that []he is not currently engaged in substantial gainful activity.” Reynolds-Buckley v. Comm'r of Soc. Sec., 457 Fed.Appx. 862, 863 (11th Cir. 2012).[4] If the claimant is engaged in substantial gainful activity, the Commissioner will determine the claimant is not disabled. 20 C.F.R. § 1520(a)(4)(i). At the first step, the ALJ determined Johnson has not engaged in substantial gainful activity since April 29, 2015, the alleged onset date.[5] (R. 13).

         If a claimant is not engaged in substantial gainful activity, the Commissioner must next determine whether the claimant suffers from a severe physical or mental impairment or combination of impairments that has lasted or is expected to last for a continuous period of at least twelve months. 20 C.F.R. § 1520(a)(4)(ii). An impairment “must result from anatomical, physiological, or psychological abnormalities which can be shown by medically acceptable clinical and laboratory diagnostic techniques.” See Id. at § 404.1521. Furthermore, it “must be established by medical evidence consisting of signs, symptoms, and laboratory findings, not only by [the claimant's] statement of symptoms.” Id.; see also 42 U.S.C. § 423(d)(3). An impairment is severe if it “significantly limit[s the claimant's] physical or mental ability to do basic work activities.” 20 C.F.R. § 404.1522(a).[6] “[A]n impairment can be considered as not severe only if it is a slight abnormality which has such a minimal effect on the individual that it would not be expected to interfere with the individual's ability to work, irrespective of age, education, or work experience.” Brady v. Heckler, 724 F.2d 914, 920 (11th Cir. 1984); see also 20 C.F.R. § 404.1521. A claimant may be found disabled based on a combination of impairments, even though none of his individual impairments alone is disabling. 20 C.F.R. § 404.1520. The claimant bears the burden of providing medical evidence demonstrating an impairment and its severity. Id. at § 404.1521. If the claimant does not have a severe impairment or combination of impairments, the Commissioner will determine the claimant is not disabled. Id. at § 404.1520(a)(4)(ii). At the second step, the ALJ determined Johnson has the following severe impairments: degenerative joint disease of the cervical spine, degenerative disc disease of lumbar and thoracic spine, and obesity. (R. 14). The ALJ specifically found her anxiety, mitral valve prolapse, and cellulitis with status post septicemia to be nonsevere. (R. 14-16).

         If the claimant has a severe impairment or combination of impairments, the Commissioner must then determine whether the impairment meets or equals one of the “Listings” found in 20 C.F.R. Part 404, Subpart P, Appendix 1. 20 C.F.R. §§ 404.1520(a)(4)(iii) & (d); 404.1525; 404.1526. The claimant bears the burden of proving his or her impairment meets or equals one of the Listings. Reynolds-Buckley, 457 Fed.Appx. at 863. If the claimant's impairment meets or equals one of the Listings, the Commissioner will determine the claimant is disabled. 20 C.F.R § 404.1520(a)(4)(iii) and (d). At the third step, the ALJ determined Johnson did not have an impairment or combination of impairments that meet or medically equal the severity of one of the Listings. (R. 16).

         If the claimant's impairment does not meet or equal one of the Listings, the Commissioner must determine the claimant's residual functional capacity (“RFC”) before proceeding to the fourth step. 20 C.F.R. § 404.1520(e). A claimant's RFC is the most she can do despite his impairment. See Id. at § 404.1520. At the fourth step, the Commissioner will compare the assessment of the claimant's RFC with the physical and mental demands of the claimant's past relevant work. Id. at § 404.1520(a)(4)(iv). “Past relevant work is work that [the claimant] [has] done within the past 15 years, that was substantial gainful activity, and that lasted long enough for [the claimant] to learn to do it.” Id. § 404.1560(b)(1). The claimant bears the burden of proving that her impairment prevents him from performing her past relevant work. Reynolds-Buckley, 457 Fed.Appx. at 863. If the claimant is capable of performing her past relevant work, the Commissioner will determine the claimant is not disabled. 20 C.F.R. § 404.1520(a)(4)(iv) & (f).

         Before proceeding to the fourth step, the ALJ determined Johnson has the RFC to perform a limited range of light work as defined in 20 C.F.R. § 404.1567(b). (R. at 16-19). More specifically, the ALJ found Johnson had the following limitations with regard to light work:

the claimant can occasionally climb ramps and stairs, stoop, kneel, and crouch. She should never climb ladders, ropes or scaffolds, nor should she crawl. The claimant can have only occasional exposure to vibration as well as hazards such as unprotected heights and dangerous machinery.

(Id.). At the fourth step, the ALJ determined Johnson was capable of performing her past relevant work as a waitress. (Id. at 19-20). With this determination, the inquiry ended. Id. at § 404.1520(a)(4)(iv). The ALJ found Johnson had not been under a disability as defined by the SSA since April 29, 2015. (R. 20).

         III. Standard of Review

         Review of the Commissioner's decision is limited to a determination whether that decision is supported by substantial evidence and whether the Commissioner applied correct legal standards. Crawford v. Comm'r of Soc. Sec., 363 F.3d 1155, 1158 (11th Cir. 2004). A district court must review the Commissioner's findings of fact with deference and may not reconsider the facts, reevaluate the evidence, or substitute its judgment for that of the Commissioner. Ingram v. Comm'r of Soc. Sec. Admin., 496 F.3d 1253, 1260 (11th Cir. 2007); Dyer v. Barnhart, 395 F.3d 1206, 1210 (11th Cir. 2005). Rather, a district court must “scrutinize the record as a whole to determine whether the decision reached is reasonable and supported by substantial evidence.” Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983) (internal citations omitted). Substantial evidence is “such relevant evidence as a reasonable person would accept as adequate to support a conclusion.” Id. It is “more than a scintilla, but less than a preponderance.” Id. A district court must uphold factual findings supported by substantial evidence, even if the preponderance of the evidence is against those findings. Miles v. Chater, 84 F.3d 1397, 1400 (11th Cir. 1996) (citing Martin v. Sullivan, 894 F.2d 1520, 1529 (11th Cir. 1990)).

         A district court reviews the Commissioner's legal conclusions de novo. Davis v. Shalala, 985 F.2d 528, 531 (11th Cir. 1993). “The [Commissioner's] failure to apply the correct law or to provide the reviewing court with sufficient reasoning for determining that the proper legal analysis has been conducted mandates reversal.” Cornelius v. Sullivan, 936 F.2d 1143, 1145-46 (11th Cir. 1991).

         IV. Discussion

         Johnson makes four arguments in favor of remand. First, she contends the Appeals Council failed to review new, material, and chronologically relevant evidence from her treating physician. Second, Johnson asserts that the ALJ failed to show good cause for rejecting the opinion of her treating physician. Third, Johnson argues the ALJ's finding that she can perform her past relevant work is not supported by substantial evidence and is not in accordance with proper legal standards. Finally, she contends that the ALJ did not comply with SSR 96-8P in formulating her RFC. The court addresses each argument below.

         A. Evidence Submitted to Appeals Council

         Johnson first argues that the Appeals Council failed to adequately consider the additional evidence she submitted along with her request for review. (Doc. 12 at 13-22). Johnson lists this evidence as including medical records from Riverview Regional Medical Center dated September 3, 2015, Dr. Henry Born's Clinic dated November 18, 2015 to April 11, 2018, and Gadsden Regional Medical Center dated March 15, 2017. (Id. at 13). She also complains that the Council failed to review and consider the medical source statements from Dr. Born dated April 11, 2018. (Id.). The Commissioner argues that the decision is due to be affirmed because the Council did not err in failing to consider the evidence because the medical source statements did not create a reasonable probability of changing the outcome of the ALJ's decision. (Doc. 18 at 4-11). The Commissioner further argues that because Johnson has not challenged the Council's conclusions that the other medical records would not change the outcome of the decision, this aspect of the claim is abandoned. (Id. at 5, n.2). The court agrees with the Commissioner.

         As a general matter, a claimant is entitled to present evidence at each stage of the administrative process. Hargress v. Comm'r of Soc. Sec., 883 F.3d 1302, 1308 (11th Cir. 2018). If a claimant presents evidence after the ALJ's decision, the Appeals Council must consider it if it is new, material, and chronologically relevant. See Washington v. Soc. Sec. Admin., 806 F.3d 1317, 1320 (11th Cir. 2015); Ingram v. Comm'r of Soc. Sec. Admin., 496 F.3d 1253, 1261 (11th Cir. 2007). Evidence is material if a reasonable possibility exists that the evidence would change the administrative result. Washington, 806 F.3d at 1321. New evidence is chronologically relevant if it “relate[s] to the period on or before the date of the [ALJ's] hearing decision.” 20 C.F.R. § 404.970(c), 416.1470(c) (2016). The Appeals Council must grant the petition for review if the ALJ's “action, findings, or conclusion is contrary to the weight of the evidence, ” including the new evidence. Ingram, 496 F.3d at 1261 (quotation marks omitted).

         At issue here are two forms completed by Johnson's treating physician, Dr. Henry Born, that Johnson submitted to the Appeals Council.[7] (R. 2, 87-88). The first is a “physical capacity form, ” dated April 11, 2018. (R. 87). The second is a “mental health source statement, ” also dated April 11, 2018. (R. 88). The Appeals Council concluded that this new evidence did not relate to the period at issue, and, therefore, it did not affect the decision. (R. 2). The court first addresses the physical capacity form and then moves on to the mental health source statement.

         The one-page physical capacity form describes Johnson's conditions as “degenerative arthritis, mitral valve prolapse, [and] anxiety.” (R. 87). The form describes the side effects Johnson experiences from her medications as “fatigue” and “lethargy.” (Id.). As far as limitations, Dr. Born circled the following on the form concerning her physical capacities: Johnson can sit for two hours, stand for less than 30 minutes, and would be expected to lay down, sleep or sit with legs propped for two hours in an 8-hour day. (Id.). It further states Johnson would be expected to be off task 30% in an 8-hour day and would miss 6 days in a 30-day period due to physical symptoms. (Id.). The form states the limitations exist back to April 15, 2015, and are expected to last twelve or more months. (Id.).

         As conceded by the Commissioner, “Dr. Born's opinion regarding Plaintiff['s] physical limitations is arguably chronologically relevant” because the form stated the limitation applied to the time before the ALJ's decision and Dr. Born treated Plaintiff during the relevant time. (Doc. 18 at 6). The Commissioner argues, however, that the conclusion by the Appeals Council is essentially harmless error because Dr. Born's opinion concerning Johnson's physical ...


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