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Johnson v. Berryhill

United States District Court, W.D. Wisconsin

April 4, 2019

AMY JOHNSON, Plaintiff,
v.
NANCY BERRHILL, Acting Commissioner of Social Security, Defendant.

          OPINION AND ORDER

          JAMES D. PETERSON DISTRICT JUDGE.

         Plaintiff Amy Johnson seeks judicial review of a final decision of defendant Nancy Berryhill, Acting Commissioner of the Social Security Administration, finding Johnson not disabled within the meaning of the Social Security Act. The administrative law judge (ALJ), John Martin, concluded that Johnson's spinal disorder was a severe impairment, but that Johnson retained the capacity to perform the full range of light work, including her past jobs as machine operator, machine inspector, and floral designer.[1]

         Johnson says that the ALJ erred in the following ways: (1) failing to consider the effect of her spinal disorder and nonsevere impairments in combination; (2) mishandling the medical opinion evidence; (3) conducting a faulty analysis of her subjective complaints; and (4) failing to adequately support the conclusion that she could perform her previous jobs.

         The ALJ's decision was not flawless, but it was supported by substantial evidence and it built a “logical bridge” between the evidence and the ALJ's conclusions, which is all that is required. Stephens v. Berryhill, 888 F.3d 323, 327 (7th Cir. 2018). So the court will affirm the agency's decision and cancel the oral argument scheduled for April 18, 2019.

         ANALYSIS

         A. Combination of impairments

         Johnson says that the ALJ failed to assess the combined effects of her spinal disorder with her nonsevere impairments, such as hypothyroidism and microscopic colitis. She doesn't challenge the ALJ's finding that her colitis is well-controlled by medication and she doesn't dispute the commissioner's contention that none of the other nonsevere impairments subjected her to greater limitations than what the ALJ found. But she says that the ALJ committed reversible error because he didn't include a separate discussion in his decision about the effects of her impairments in combination.

         It is true that an ALJ is required to consider the “combined effects of the applicant's impairments . . ., including impairments that considered one by one are not disabling.” Williams v. Colvin, 757 F.3d 610, 613 (7th Cir. 2014). But it is also true that a claimant is not entitled to relief on appeal if she “does not identify medical evidence that would justify further restrictions.” Loveless v. Colvin, 810 F.3d 502, 508 (7th Cir. 2016). See also Hoy v. Astrue, 390 Fed.Appx. 587, 592 (7th Cir. 2010) (rejecting argument that the ALJ failed to consider effect of impairments in combination when the plaintiff “only speculate[d] about the effect of these conditions on him”). So Johnson must do more than simply point to ways in which the ALJ's opinion could have been improved. Because Johnson doesn't identify any way in which her nonsevere impairments, either individually or combined with spinal disorder, would justify further restrictions, this is not a ground for remand.

         B. Medical opinions

         The ALJ considered several medical opinions that were in the record, including those from Johnson's treating physicians from 2007 and 2009 (Jane Stark and Joseph Hebl), her physical therapists from 2014 and 2015 (Melissa Wold and Darrin Schober), a spine specialist from 2014 (James Freeman), state agency physicians who conducted a review of the records in 2014 and 2015 (Mina Korshidi and Ronald Shaw), and her nurse practitioner from 2014 to 2016 (Denise Toperzer). The ALJ gave “great weight” to the opinions of the treating physicians, the physical therapists, the spine specialist, and the state agency physicians. He gave “some weight” to statements from treating physicians in 2008 that Johnson could return to work. He gave “little weight” to the opinion of the nurse practitioner.

         The ALJ also noted statements of three other treating physicians without assigning them particular weight: (1) in 2011, Seeman Rahman refused Johnson's request for “a disability parking permit” because Johnson didn't meet the criteria for disability; (2) in 2015, David Junker gave Johnson a “one-day work excuse” after she said that she “was doing fine” but strained her back putting up a Christmas tree; and (3) in 2015, Gary Gasser reviewed Johnson's MRI and concluded that it “showed normal alignment without instability and mild to moderate disc disease.” R. 21 (citing R. 1624-39).[2]

         Johnson challenges the ALJ's handling of the medical opinion evidence on the following grounds: (1) he gave inadequate reasons for discounting the nurse practitioner's opinion; (2) his reliance on the opinions of the treating physicians was misplaced because the opinions were outdated; (3) he disregarded portions of the opinions of the spinal specialist and physical therapists; and (4) his reliance on the state agency physician opinions was misplaced because they didn't have access to all of the medical records. The court will consider each objection in turn.

         1. Nurse practitioner

         Toperzer submitted a letter dated May 2016, in which she wrote the following: (1) “[i]t has been difficult for [Johnson] to stand or sit in any one position for a length of time, severely limiting her ability to . . . work;” (2) Johnson “has been unable to maintain employment because of her medical needs”; (3) Johnson's colitis “flares up quite frequently with uncontrollable diarrhea; and (4) Johnson “is unable to pursue work even on a part-time basis and should be considered disabled.” R. 771. In giving this opinion little weight, the ALJ made three observations: (1) it did not come from an “acceptable medical source”; (2) Torperzer appeared to be relying solely on Johnson's subjective statements; and (3) the opinion was conclusory. Johnson challenges each of these grounds.

         Johnson is correct than ALJ may not reject a medical opinion simply because it doesn't come from an “acceptable medical source, ” such as a physician. See Voigt v. Colvin, 781 F.3d 871, 878 (7th Cir. 2015). But it is one factor that the ALJ may take into account. See, e.g., Winsted v. Berryhill, 915 F.3d 466, 472 (7th Cir. 2019). Because the ALJ gave other reasons, this was not an error.

         As for the ALJ's assessment that Toperzer relied solely on Johnson's subjective complaints, that is a legitimate ground to reject a medical opinion. Bates v. Colvin, 736 F.3d 1093, 1100 (7th Cir. 2013). Johnson says that it was speculative for the ALJ to conclude that Toperzer didn't rely on objective evidence, but Toperzer didn't cite any objective evidence in her letter. Rather, she simply listed Johnson's reported symptoms. Although Johnson's brief includes a string citation of records related to her appointments with Toperzer, see Dkt. 13, at 10, Johnson doesn't point to any specific examples of tests or any other objective evidence that Toperzer relied on to make an assessment.

         As for the ALJ's view that Toperzer's opinion was not persuasive because it was conclusory, the court sees no error. Toperzer provided no foundation for any of her opinions. In her reply brief, Johnson says that the ALJ should have given Toperzer an opportunity to clarify her opinion, but Johnson forfeited that argument by failing to raise it in her opening brief. Brown v. Colvin, 661 Fed.Appx. 894, 895 (7th Cir. 2016) (plaintiff “waived . . . arguments by not developing them and by raising them for the first time only in his reply brief”). Regardless, the ALJ was entitled to discount Toperzer's opinion for relying solely on Johnson's subjective complaints.

         2. Treating physicians

         Johnson says that that the ALJ shouldn't have relied on any opinions that relate to her condition before her 2013 alleged disability onset date. The commissioner says that it was reasonable for the ALJ to take those opinions into account because it is undisputed that the cause of Johnson's spinal disorder is a 2007 back injury. In reply, Johnson says that her condition has worsened since 2007, but she cites no evidence to support that assertion. Under those circumstances, it was not unreasonable for the ALJ to consider the older opinions, particularly because they were consistent with other opinions in the record. Hamlin v. Barnhart, 365 F.3d 1208, 1223 n.15 (10th Cir. 2004) (medical opinions predating disability period at issue “are nonetheless part of [the claimant's] case record, and should [be] considered by the ALJ”); Olszewski v. Comm'r of Soc. Sec., No. 12-13508, 2013 WL 5488447, at *4 (E.D. Mich. Sept. ...


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