Johnson v. Commissioner, SSA ( 2019 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT March 1, 2019
_________________________________
Elisabeth A. Shumaker
Clerk of Court
RICKY M. JOHNSON,
Plaintiff - Appellant,
v. No. 18-5058
(D.C. No. 4:17-CV-00152-FHM)
COMMISSIONER, SSA, (N.D. Okla.)
Defendant - Appellee.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before BRISCOE, MORITZ, and EID, Circuit Judges.
_________________________________
Ricky M. Johnson appeals from the district court’s order denying his
application for Social Security disability benefits and supplemental security income
benefits. Exercising jurisdiction under 28 U.S.C. § 1291 and 42 U.S.C. § 405(g),
we affirm.
I. BACKGROUND
Johnson, who had previously worked as a pipeline equipment oiler, a
newspaper carrier, and a homebuilder and building contractor, filed for benefits in
*
After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
submitted without oral argument. This order and judgment is not binding precedent,
except under the doctrines of law of the case, res judicata, and collateral estoppel. It
may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1
and 10th Cir. R. 32.1.
July 2014. According to Johnson, he became disabled in January 2014, due to
shortness of breath, various pulmonary and cardiac concerns, and arthritic-type knee
pain.
Following the administrative denial of his claims, Johnson requested a hearing
before an administrative law judge (ALJ). The ALJ concluded that he was not
disabled and the Appeals Council denied review. On appeal to the district court, the
parties consented to the jurisdiction of a magistrate judge, who affirmed the
Commissioner’s decision.
A. Medical Evidence
From January to March 2014, Johnson made several trips to urgent care with
complaints of joint pain, a cough and shortness of breath due to acute bronchitis and
asthma. The diagnoses included congestive heart failure, shortness of breath,
arthritis, and edema. Johnson took ibuprofen for pain and used a nebulizer for his
acute bronchitis.
In April 2014, Johnson was diagnosed with sleep apnea. His response to
treatment—a CPAP machine—“was nothing less than spectacular,” Aplt. App.,
Vol. 4 at 332, and resulted in improved quality of sleep and daytime energy.
In May 2014, Johnson was evaluated at the Oklahoma Heart Institute. He had
some edema in his legs, but his breathing was normal and his lungs were clear. He
demonstrated normal muscle strength and all cardiac tests were normal or negative.
He was advised to continue taking his medications, including diuretics for edema,
and using his sleep apnea machine.
2
May 2014 is also when Johnson went to James Rutter, M.D., “to establish
care.” Id. at 366. Dr. Rutter noted that Johnson had “mild” chronic obstructive
pulmonary disease (COPD), and “seem[ed] to be doing ok[ay] on” his medication.
Id. Dr. Rutter’s examinations in May and June 2014, showed normal breathing
rhythm and depth, normal heart and lung sounds, and no edema. Chest x-rays
showed clear lungs and a normal heart size. A pulmonary function test performed on
June 26, 2014, showed “moderate” obstruction, id. at 389, with Johnson maintaining
oxygen levels of 94% to 97% on room air while walking for six minutes at a
“continuous, moderate pace,” id. at 390.
When Johnson saw Dr. Rutter in July 2014, Johnson said that ibuprofen helped
his joint pain, and reported exercising once or twice a week. Dr. Rutter encouraged
him do “mild to moderate walking to help with [his] pulmonary status.” Id. at 362.
Just a week later, however, Dr. Rutter filled out a form in connection with Johnson’s
disability proceedings titled “MEDICAL SOURCE OPINION OF RESIDUAL
FUNCTIONAL CAPACITY.” Id. at 387. Dr. Rutter checked off and/or circled
several items concerning Johnson’s purported work limitations in an eight-hour work
day. Specifically, Dr. Rutter said Johnson could not stand and/or walk for more than
two to three hours, and could lift only 15 pounds frequently. Dr. Rutter explicitly
excluded pain as the reason for the standing, walking, and lifting restrictions. He
also said that Johnson needed to avoid dust, chemicals, and high humidity. Although
he noted that Johnson’s obesity exacerbated his physical conditions, he did not add
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any detail. Significantly, even though Dr. Rutter was asked to describe the medical
findings to support his assessment, he left that section of the form blank.
On July 29, 2014, Dr. Rutter signed a “Handicapped Parking Placard
Application” for Johnson. Id. at 399. As grounds, Dr. Rutter checked a box stating
that Johnson “[c]annot walk 200 feet without stopping to rest.” Id.
At a check-up in August 2014, Johnson reported knee pain, but Dr. Rutter did
not prescribe any pain medications. Johnson’s exhaling was prolonged with
decreased force, but his breathing rhythm and depth were normal, and his heart and
lung sounds were also normal. Dr. Rutter continued Johnson’s medications.
X-rays taken of Johnson’s knees on October 1, 2014, were primarily normal
and a pulmonary function test on October 2, 2014, showed “minimal” obstruction,
id. at 415.
Nevertheless, Johnson told David Wiegman M.D., who performed a
consultative physical examination on October 11, 2014, that he could walk only
about 100 yards due to “shortness of breath and knee pain,” and his knee pain limited
him to standing for no “more than about 20 minutes.” Id. at 422. Further, Johnson
estimated that he could “lift [no] more than about 50 pounds.” Id.
Dr. Wiegman found that Johnson had full strength in his arms, legs, and grip,
and a normal range of motion of his arms and legs. “Back and neck exams were
normal with normal range of motion and no significant pain.” Id. at 423. “There is
no edema.” Id. Dr. Wiegman also observed that Johnson “had a normal symmetric
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steady gait. He did not have any problems walking in and out [of] the office today,
[although] [h]e did have difficulty walking on his toes and heels separately.” Id.
The state agency medical consultant, James Metcalf, M.D., reviewed the
medical evidence and issued a report on October 22, 2014. He opined that Johnson
had the physical ability to lift and/or carry 50 pounds occasionally and 25 pounds
frequently, stand and/or walk about six hours in an eight-hour workday, and sit about
six hours in an eight-hour workday. Essentially, Dr. Metcalf opined that Johnson
could perform “medium work,” which “involves lifting no more than 50 pounds at a
time with frequent lifting or carrying of objects weighing up to 25 pounds.”
20 C.F.R. § 404.1567(c).1 Dr. Metcalf further opined that Johnson should avoid
concentrated exposure to various environmental conditions such as fumes, odors,
dusts, gases, poor ventilation, and humidity.
At an office visit in December 2014, Dr. Rutter told Johnson to continue his
medications and come back in six months. Later that month, state agency medical
consultant William Oehlert, M.D., reviewed the updated medical evidence and
reaffirmed that Johnson could perform “medium work,” but should avoid prolonged
exposure to various pulmonary irritants and humidity. Dr. Oehlert expressly
considered and rejected Dr. Rutter’s July 21, 2014, opinion that contained the severe
1
Citations to 20 C.F.R. part 404, which cover disability income benefits, have
parallel citations at 20 C.F.R. part 416, which cover supplemental security income
benefits. This order and judgment does not cite the parallel supplemental security
income regulations.
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restrictions because “[t]he opinion is without substantial support from other evidence
of record, which renders it less persuasive.” Aplt. App., Vol. 2 at 119.
The relevant medical evidence ends with Dr. Rutter’s notes from Johnson’s
June 9, 2015, office visit during which he told Johnson to continue his medications
and come back in six months.
B. Johnson’s Testimony
According to Johnson, he stopped working as a pipeline equipment oiler,
where he had to stand, walk, climb, and/or crouch for at least nine hours a day,
because his knees bothered him, and he “couldn’t breathe,” id., Vol. 2 at 42. He said
that he could only stand or walk for only about 15 minutes before his right leg started
to ache. High humidity was a problem for him as well, along with dust and grass
clippings. He spent most days sitting down, doing some walking around the yard,
and said “I piddle around in my workshop a little bit if I feel like doing that.” Id.
at 49.
C. The ALJ’s Decision
The ALJ found that Johnson had the severe impairments of COPD,
hypertension, obesity, and a history of knee pain, and could perform “less than the
full range of medium work,” id. at 26. Specifically, the ALJ found that Johnson had
the residual functional capacity (RFC) to “occasionally lift and/or carry 50 pounds,
frequently lift and/or carry 25 pounds, stand and/or walk at least 6 hours in an 8-hour
workday, and sit at least 6 hours in an 8-hour workday. [He] should avoid
concentrated exposure to such things as fumes, odors, dust and gases.” Id. In his
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hypothetical question to the vocational expert (VE), the ALJ acknowledged that
Johnson also could not perform work involving “concentrated exposure to humidity.”
Id. at 54.
The ALJ discounted Johnson’s subjective complaints of disability because his
testimony was inconsistent with the evidence. Also, the ALJ gave “little weight” to
Dr. Rutter’s July 24, 2014, opinion, primarily because it was unsupported and
inconsistent with the evidence. Id. at 29. At step five, and based on the VE’s
testimony, the ALJ found that there were jobs existing in significant numbers in the
national economy, namely janitor and machine packager, that Johnson could perform,
and he therefore was not disabled.
II. STANDARD OF REVIEW
“We review the Commissioner’s decision to determine whether the factual
findings are supported by substantial evidence in the record and whether the correct
legal standards were applied.” Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007)
(internal quotation marks omitted).
Substantial evidence is such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion. It requires more than a scintilla,
but less than a preponderance. We consider whether the ALJ followed the
specific rules of law that must be followed in weighing particular types of
evidence in disability cases, but we will not reweigh the evidence or
substitute our judgment for the Commissioner’s.
Id. (citations and internal quotation marks omitted).
Moreover, “[t]he possibility of drawing two inconsistent conclusions from the
evidence does not prevent an administrative agency’s findings from being supported
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by substantial evidence.” Id. (internal quotation marks omitted). “We may not
displace the agency’s choice between two fairly conflicting views, even though the
court would justifiably have made a different choice had the matter been before it de
novo.” Id. (brackets and internal quotation marks omitted).
III. ANALYSIS
A. Obesity
As his first assignment of error, Johnson argues that the ALJ failed to properly
consider his obesity in formulating his RFC, particularly its effects in combination
with his COPD. We disagree.
Social Security Ruling 02-1p, 2002 WL 34686281 (Sept. 12, 2002), provides
guidance on how an ALJ should evaluate a claimant’s obesity. It does not mandate
any additional restrictions or a finding of disability; rather, it provides that in
assessing RFC, an ALJ should consider “any functional limitations resulting from the
[claimant’s] obesity,” in addition to any limitations resulting from any other
impairments. Id. at *7. The ALJ did just that.
In the present case, [Johnson’s] obesity is not such as to prevent
ambulation, reaching, or postural maneuvers. It does, though, in
combination with [his] other impairments, somewhat reduce [his] ability to
stand, walk, lift and carry. A reduction in capacity to work at the medium
exertional range with some further appropriate work restrictions is therefore
warranted. These limitations are accounted for in the residual functional
capacity as determined herein.
Aplt. App., Vol. 2 at 26. Those “further appropriate work restrictions” preclude work
environments where Johnson would have “concentrated exposure to such things as
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fumes, odors, dust and gases,” id., and “humidity,” as explained by the ALJ in his
hypothetical question to the VE, id. at 54.
Second, Drs. Metcalf and Oehlert, to whose opinions the ALJ in some
instances afforded “great weight,” id. at 29, noted Johnson’s height, weight, and body
mass index in reaching their conclusions that he could perform “medium work.”
In Howard v. Barnhart, 379 F.3d 945, 948 (10th Cir. 2004), we held that there
was no error where, among other things, the ALJ discussed the “possible
ramifications” of the claimant’s obesity. Further, there was no error where, among
other things, the ALJ’s RFC determination was supported by an examining
physician’s report that considered the claimant’s obesity. See id. Those
circumstances pertain here, and as such, there was no error.
B. Treating Physician
In determining Johnson’s RFC, the ALJ afforded “little weight” to the July 21,
2014, form filled out by Dr. Rutter that contained the severe limitations previously
discussed. Johnson argues that the ALJ failed to give this opinion from his treating
physician the “deference to which it is entitled.” Aplt. Opening Br. at 18. This is
another way of saying that the ALJ should have afforded Dr. Rutter’s opinion
controlling weight.2 Again, we disagree.
Generally, an ALJ gives more weight to the opinion of the claimant’s treating
physician. 20 C.F.R. § 404.1527(c)(2) (“If . . . a treating source’s opinion on the
2
Based on the unanimous opinions of Drs. Rutter, Metcalf, and Oehlert that
Johnson should avoid concentrated exposure to various pulmonary irritants and
humidity, the ALJ placed this limitation on his work environment.
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issue(s) of the nature and severity of your impairments(s) is well-supported by
medically acceptable clinical and laboratory diagnostic techniques and is not
inconsistent with the other substantial evidence in your case record, we will give it
controlling weight.”). When, however, an ALJ gives something less than controlling
weight to a treating physician’s opinion, he is required to apply certain factors “in
determining the weight to give the opinion.” Id. These factors include (1) the length
of the treatment relationship and (2) the nature and extent of the treatment
relationship. See id. § 404.1527(c)(2)(i),(ii). “The more a medical source presents
relevant evidence to support an opinion, particularly medical signs and laboratory
findings, the more weight we will give that medical opinion. The better an
explanation a source provides for an opinion, the more weight we will give that
opinion.” Id. § 404.1527(c)(3).
The ALJ gave Dr. Rutter’s opinion “little weight” primarily because he did not
“provide any objective findings or identify any specific medical evidence upon which
he based his opinion.” Aplt. App., Vol. 2 at 29. This finding is supported by
substantial evidence.
First, Dr. Rutter and Johnson did not have a lengthy relationship. Second, on
the form that Dr. Rutter completed that contained the checkmarks and circles noting
Johnson’s limitations, he failed to answer the question about what medical findings
supported his assessment. Third, Dr. Rutter did nothing more than check a box on an
application for a handicapped placard. This is not the type of evidence on which to
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base a disability finding, particularly in light of the fact that it is inconsistent with the
medical evidence.
Also, Dr. Rutter’s opinion is not corroborated by his own treatment notes or
the other medical evidence. In this regard, we note that “[g]enerally, the more
consistent an opinion is with the record as a whole, the more weight we will give to
that opinion.” § 404.1527(c)(4).
As a preliminary matter, the limitations Dr. Rutter noted on Johnson’s ability
to stand, walk, lift, and carry were necessarily based on breathing problems, because
he specifically stated they were not due to pain. But as the ALJ explained, the
“extreme exertional limitations [noted by Dr. Rutter] are not supported by
[Johnson’s] moderate pulmonary defects.” Aplt. App., Vol. 2 at 29.
For example, Dr. Rutter’s notes characterized Johnson’s COPD as “mild.” Id.,
Vol. 4 at 366. Further, the tests ordered by Dr. Rutter showed Johnson’s lungs were
clear, his pulmonary function was only “moderate[ly]” obstructed, id., at 389, and he
was able to maintain oxygen saturation levels of 94% to 97% on room air while
walking at a “continuous, moderate pace” for six minutes,” id. at 390.
Likewise, the ALJ reasonably discounted Dr. Rutter’s opinion to the extent
that it limited Johnson to frequently lifting and/or carrying 15 pounds. Johnson
himself told Dr. Wiegman that he could lift up to 50 pounds and there is no objective
evidence to support the 15-pound limitation. We have concluded that it is reasonable
for an ALJ to discount a treating physician’s opinion about how much a claimant can
lift where the opinion is not supported by any objective clinical findings and the
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claimant reported that he could lift more. See Williamson v. Barnhart, 350 F.3d
1097, 1099 (10th Cir. 2003).
According to the Commissioner, Johnson’s remaining arguments “suggest[]
the ALJ should have discussed various other potentially relevant factors in evaluating
Dr. Rutter’s opinion.” Aplee. Resp. Br. at 27. As to this issue, the ALJ did not need
to expressly discuss every relevant factor. Like the claimant in Oldham v. Astrue,
509 F.3d 1254, 1258 (10th Cir. 2007), Johnson “cites no law, and we have found
none, requiring an ALJ’s decision to apply expressly each of the six relevant factors
in deciding what weight to give a medical opinion.”
Last, we agree with the Commissioner that we must reject Johnson’s
alternative interpretations of the evidence, because this would require us to reweigh
the evidence and substitute our judgment for the Commissioner’s, which is something
we cannot do. See Lax, 489 F.3d at 1084.
C. Subjective Complaints
According to Johnson, the ALJ unreasonably discounted his testimony about
how his COPD impacted his ability to walk and stand and about the severity of his
pain. We conclude that the ALJ applied the correct law and his decision is supported
by substantial evidence.
At the hearing, Johnson testified that his knees “just have a lot of pain in them.
And I’ve got a dead nerve in my right leg that burns and stings and feels like I’m
getting poked with needles all the time. I just can’t stand on it very long.” Aplt.
App., Vol. 2 at 43. More specifically, he said that he could stand or walk without
12
significant pain only for “[a]bout 15 minutes.” Id. The only way to ease the pain
was to “sit down and get off of it for a little while,” which was “[a]bout 30 minutes at
a time.” Id. The pain also caused problems with balance, and Johnson described
falling in his yard about a month before his hearing. As to his COPD, Johnson said
“I just can’t breathe real good. It takes a lot out of me to try to breathe,” especially
in high humidity and cold weather. Id. at 45.
Evaluation of subjective symptoms is “peculiarly the province of the [ALJ],
and [we] will not upset such determinations when supported by substantial evidence.”
Hackett v. Barnhart, 395 F.3d 1168, 1173 (10th Cir. 2005) (internal quotation marks
omitted). Still, there are several factors the ALJ should consider in making such
determinations. Under 20 C.F.R. § 404.1529(c)(4), an ALJ considers the claimant’s
“statements about the intensity, persistence, and limiting effects of [his] symptoms,
and . . . will evaluate [his] statements in relation to the objective medical evidence
and other evidence in reaching a conclusion as to whether [he is] disabled.”
With respect to Johnson’s breathing problems, the objective medical evidence
established that he had “mild” to “moderate” symptoms, and several clinical
examination findings were normal with respect to his heart sounds, lung sounds,
breathing rhythm, and deep breathing.
Other factors that the ALJ can consider in evaluating a claimant’s subjective
complaints include treatment, medication, and the frequency, duration, and intensity
of symptoms. See id. § 404.1529(c)(3)(ii),(iv)-(v). The record demonstrates, and the
ALJ noted, that Johnson had only one acute pulmonary event, which improved after
13
out-patient treatment with a nebulizer, and his cardio-pulmonary status improved
with medications and an apnea machine.
The record similarly supports the ALJ’s finding that Johnson’s knee pain and
leg pain were less limiting than he claimed. Treatment records established that
Johnson took ibuprofen intermittently for joint pain. Several clinical examination
findings were normal with respect to Johnson’s gait and strength, and he was able to
walk at a “continuous moderate pace” during a six-minute walking test with no
reported difficulties. Aplt. App., Vol. 4 at 390.
Last, Johnson either ignores the ALJ’s record-based reasons for discounting
Johnson’s subjective complaints, or urges this court to reweigh the evidence and
substitute our judgment for the Commissioner’s, which we cannot do. See Lax,
489 F.3d at 1084.
D. Jobs
At the final step in his disability evaluation, the ALJ determined that Johnson
was not disabled because although he could not perform his past relevant work, there
were two jobs existing in significant numbers in the national economy that he could
perform: janitor and machine packager. Johnson argues that this conclusion is
wrong for several reasons, and the case must remanded for further findings. We
disagree.
First, we reject Johnson’s hyper-technical reading of the transcript and
concomitant contention that the ALJ’s hypothetical to the VE did not contain all of
the limitations assessed by the ALJ—it did.
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Second, the jobs of janitor and machine packager do not involve concentrated
exposure to pulmonary irritants or humidity. As to both jobs, the Dictionary of
Occupational Titles (DOT) says that humid conditions are either not present or only
present occasionally, and neither job involves concentrated exposure to such things
as fumes, odors, dust and gases. Although an ALJ must address “an apparent
unresolved conflict between [vocational expert] . . . evidence and the DOT” before
relying on the VE’s expert testimony, SSR 00-4p, 2000 WL 1898704, at *2 (Dec. 4,
2000), there was no conflict between the VE’s testimony and the DOT.
Third, giving Johnson the benefit of any doubt that the janitor job might
involve concentrated exposure to humidity, there were still a significant number of
machine packager jobs in the national economy—178,000—that Johnson could
perform. Relatedly, Johnson argues that the ALJ failed to consider a downward
adjustment to the number of machine packager jobs available due to his advanced
age, citing 20 C.F.R. Pt. 404, Subpt. P, App. 2, § 202.06. Section 202.06, however,
applies only to light work. And the grids governing medium work would dictate “not
disabled” for someone of Johnson’s age and educational and vocational background.
Moreover, because Johnson had both strength limitations (medium work) and
nonexertional limitations (pollutants and humidity), and a finding of “disabled” could
not be made on his strength limitations alone, “the rule(s) reflecting the individual’s
maximum residual strength capabilities, age, education, and work experience provide
a framework for consideration of how much the individual’s work capability is
further diminished in terms of any types of jobs that would be contraindicated by the
15
nonexertional limitations.” Id. § 200.00(e)(2). The ALJ followed § 200.00(E)(2)
when he asked the VE whether jobs existed in the national economy for an individual
of Johnson’s age, education, work experience, and residual functional capacity.
We conclude that the ALJ properly relied on the testimony of the VE to
conclude that there were a significant number of jobs in the national economy that
Johnson could perform with his limitations.
IV. CONCLUSION
We affirm the district court’s order upholding the Commissioner’s denial of
benefits.
Entered for the Court
Mary Beck Briscoe
Circuit Judge
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