Johnson v. O'Malley (CONSENT)

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF ALABAMA

SOUTHERN DIVISION

JENNIFER JOHNSON, )

)

Plaintiff, )

)

v. ) CASE NO. 1:23-cv-340-JTA

) (WO)

MARTIN J. O’MALLEY, )

Commissioner of Social Security, )

)

Defendant. )

MEMORANDUM OPINION AND ORDER

Pursuant to 42 U.S.C. § 405(g), the claimant, Jennifer Johnson, brings this action to

review a final decision by the Commissioner of Social Security (“Commissioner”). (Doc.

No. 1.)1 The Commissioner denied Johnson’s claim for a Period of Disability and Disability

Insurance Benefits (“DIB”). The Court construes Johnson’s brief in support of her

Complaint (Doc. No. 8) as a motion for summary judgment and the Commissioner’s brief

in opposition to the Complaint (Doc. No. 14) as a motion for summary judgment. The

parties have consented to the exercise of dispositive jurisdiction by a magistrate judge

pursuant to 28 U.S.C. § 636(c). (Docs. No. 16, 17.)

After careful scrutiny of the record and the motions submitted by the parties, the

Court finds that Johnson’s motion for summary judgment is due to be GRANTED, the

Commissioner’s motion for summary judgment is due to be DENIED, the decision of the

1 Document numbers as they appear on the docket sheet are designated as “Doc. No.”

Commissioner is due to be REVERSED, and this matter is due to be REMANDED for

further proceedings pursuant to sentence four of 42 U.S.C. § 405(g).

I. PROCEDURAL HISTORY AND FACTS

Johnson is an adult female with a college education and prior work experience as a

residential care aide. (R. 15, 20.)2 She alleged a disability onset date of October 1, 2017,

due to major depression; anxiety; arthritis in the knees, toes, and fingers; diabetes; high

blood pressure; trichophagia; trichotillomania; chronic stress; back pain; and ADHD. (R.

13, 16, 222.)

On February 18, 2021,3 Johnson protectively filed a Title II application (42 U.S.C.

§§ 401, et seq.) for a period of disability and DIB. (R. 202.) Each of these claims was

denied initially and upon reconsideration. (R. 11, 101, 112.) Johnson requested an

administrative hearing on March 16, 2022. (R. 11, 116.) Following an administrative

hearing, the Administrative Law Judge (“ALJ”) denied Johnson’s request for a period of

disability and DIB in a decision dated October 5, 2022. (R. 10–21.)

Johnson requested review by the Appeals Council, and it denied review. (R. 1–7.)

Consequently, the hearing decision became the final decision of the Commissioner. See 42

U.S.C. § 405(g); Doughty v. Apfel, 245 F.3d 1274, 1278 (11th Cir. 2001) (citation omitted)

(“When as in this case, the ALJ denies benefits and the [Appeals Council] denies review,

[the court] reviews[s] the ALJ’s decision as the Commissioner’s final decision.”).

2 Citations to the administrative record are consistent with the transcript of administrative proceedings filed

in this case. (See Doc. No. 7.)

3 The Administrative Law Judge states that Johnson originally filed for DIB on March 3, 2020, (see R. 11),

however the record indicates Johnson filed her application on February 18, 2021. (R. 202.)

On May 24, 2023, Johnson filed this action seeking review of the Commissioner’s

final decision. (Doc. No. 1.) The parties have briefed their respective positions. (Docs. No.

8, 14, 15.) This matter is ripe for review.

II. STANDARD OF REVIEW

Judicial review of disability claims is limited to whether the Commissioner’s

decision is supported by substantial evidence and whether the correct legal standards were

applied. 42 U.S.C. § 405(g); Dyer v. Barnhart, 395 F.3d 1206, 1210 (11th Cir. 2005). The

court “must scrutinize the record as a whole to determine if the decision reached is

reasonable and supported by substantial evidence.” Schink v. Comm’r of Soc. Sec., 935

F.3d 1245, 1257 (11th Cir. 2019) (citations omitted). “Substantial evidence” is more than

a mere scintilla and is “such relevant evidence as a reasonable person would accept as

adequate to support a conclusion.” Crawford v. Comm’r of Soc. Sec., 363 F.3d 1155, 1158

(11th Cir. 2004) (quoting Lewis v. Callahan, 125 F.3d 1346, 1349 (11th Cir. 1997)). Even

if the Commissioner’s decision is not supported by a preponderance of the evidence, the

findings must be affirmed if they are supported by substantial evidence. Id. at 1158-59; see

also Martin v. Sullivan, 894 F.2d 1520, 1529 (11th Cir. 1990). The court may not find new

facts, reweigh evidence, or substitute its own judgment for that of the Commissioner.

Bailey v. Soc. Sec. Admin., Comm’r, 791 F. App’x 136, 139 (11th Cir. 2019); Phillips v.

Barnhart, 357 F.3d 1232, 1240 n.8 (11th Cir. 2004); Dyer, 395 F.3d at 1210. However, the

Commissioner’s conclusions of law are not entitled to the same deference as findings of

fact and are reviewed de novo. Ingram v. Comm’r of Soc. Sec. Admin., 496 F.3d 1253, 1260

(11th Cir. 2007).

Sentence four of 42 U.S.C. § 405(g) authorizes the district court to “enter, upon the

pleadings and transcript of the record, a judgment affirming, modifying, or reversing the

decision of the Commissioner of Social Security, with or without remanding the cause for

a rehearing.” 42 U.S.C. § 405(g). The district court may remand a case to the Commissioner

for a rehearing if the court finds “either . . . the decision is not supported by substantial

evidence, or . . . the Commissioner or the ALJ incorrectly applied the law relevant to the

disability claim.” Jackson v. Chater, 99 F.3d 1086, 1092 (11th Cir. 1996).

III. STANDARD FOR DETERMINING DISABILITY

An individual who files an application for DIB must prove that she is

disabled. See 20 C.F.R. § 404.1505. The Act defines “disability” as the “inability to do 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 12 months.” 42 U.S.C. § 423(d)(1)(A); 20

C.F.R. § 405.1505(a).

Disability under the Act is determined under a five-step sequential evaluation

process. 20 C.F.R. § 404.1520. The evaluation is made at the hearing conducted by the

ALJ. See Washington v. Comm’r of Soc. Sec., 906 F.3d 1353, 1359 (11th Cir. 2018). First,

the ALJ must determine whether the claimant is currently engaged in substantial gainful

activity. 20 C.F.R. § 404.1520(b). “Substantial gainful activity” is work activity that

involves significant physical or mental activities. 20 C.F.R. § 404.1572(a). If the ALJ finds

that the claimant is engaged in substantial gainful activity, the claimant cannot claim

disability. 20 C.F.R. § 404.1520(b). Second, the ALJ must determine whether the claimant

has a medically determinable impairment or a combination of impairments that

significantly limit the claimant’s ability to perform basic work activities. 20 C.F.R. §

404.1520(c). Absent such impairment, the claimant may not claim disability. Id. Third, the

ALJ must determine whether the claimant meets or medically equals the criteria of an

impairment listed in 20 C.F.R. § 404, Subpart P, Appendix 1 (20 C.F.R. §§

404.1520(d), 404.1525, and 404.1526). If such criteria are met, then the claimant is

declared disabled. 20 C.F.R. § 404.1520(d).

If the claimant has failed to establish that she is disabled at the third step, the ALJ

may still find disability under the next two steps of the analysis. At the fourth step, the ALJ

must determine the claimant’s residual functional capacity (“RFC”), which refers to the

claimant’s ability to work despite her impairments. 20 C.F.R. § 404.1520(e). The ALJ must

determine whether the claimant has the RFC to perform past relevant work. 20 C.F.R. §

404.1520(f). If it is determined that the claimant is capable of performing past relevant

work, then the claimant is not disabled. 20 C.F.R. § 404.1560(b)(3). If the ALJ finds that

the claimant is unable to perform past relevant work, then the analysis proceeds to the fifth

and final step. 20 C.F.R. § 404.1520(g)(1).

In this final analytical step, the ALJ must decide whether the claimant is able to

perform any other relevant work corresponding with her RFC, age, education, and work

experience. 20 C.F.R. § 404.1560(c). Here, the burden of proof shifts from the claimant to

the ALJ in proving the existence of a significant number of jobs in the national economy

that the claimant can perform given her RFC, age, education, and work experience. 20

C.F.R. §§ 404.1520(g), 404.1560(c). See Hale v. Bowen, 831 F.2d 1007, 1011 (11th Cir.

1987) (“The burden then shifts to the Secretary to show the existence of other jobs in the

national economy which, given the claimant’s impairments, the claimant can perform.”).

To determine the existence of other jobs which the claimant can perform, the ALJ may rely

on the testimony of a vocational expert (“VE”). Winschel v. Comm’r of Soc. Sec., 631 F.3d

1176, 1180 (11th Cir. 2011).

IV. ADMINISTRATIVE DECISION

Within the structure of the sequential evaluation process, the ALJ found that

Johnson had not engaged in substantial gainful activity since the alleged onset date. (R.

13.) The ALJ determined that Johnson suffers from the following severe impairments that

significantly limit her ability to perform basic work activities: anxiety, depression, bilateral

knees, and obesity. (Id.) Nevertheless, the ALJ concluded that Johnson does not have an

impairment or combination of impairments that meets or medically equals the severity of

one of the listed impairments in 20 C.F.R. § 404, Subpart P, Appendix 1. (R. 14.)

After consideration of the record, the ALJ determined that Johnson has the RFC to

perform light work as defined in 20 C.F.R. § 404.1567(b), except

[Johnson] can lift and carry 10 pounds frequently and 20 pounds

occasionally. She can sit for six hours, stand for six hours and walk for six

hours. [Johnson] is able to perform simple, routine and repetitive tasks and

can perform simple work-related decisions. She can occasionally interact

with supervisors, coworkers and the public. [Her] time off task includes the

ability to perform simple, routine and repetitive tasks.

(R. 16.) In determining the RFC, the ALJ found that Johnson’s statements regarding the

intensity, persistence, and limiting effects of her symptoms are “not entirely consistent”

with the medical evidence and other evidence of record. (R. 17.)

Nevertheless, the ALJ concluded, considering Johnson’s age, education, work

experience, and RFC, she is not capable of performing her past work as a residential care

aide. (R. 20.) The ALJ further concluded that Johnson had not been under a disability from

October 1, 2017, to October 5, 2022, the date of the ALJ decision. (R. 21.) The ALJ found

that based on the application for a period of disability and DIB, Johnson is not disabled

under sections 216(i) and 223(d) of the Social Security Act. (R. 21.)

V. DISCUSSION

Johnson presents three arguments in this appeal. (Doc. No. 8 at 1.) First, she argues

the ALJ failed to account for the possibility of good days and bad days, which affected the

RFC and VE questioning. (Id.) Second, Johnson argues the ALJ failed to properly consider

her physical impairments, including plantar fasciitis, arthritis of the feet, and urinary

problems. (Id.) Third, she argues the Appeals Council failed to properly consider new and

material evidence. (Id.)

Upon a thorough review of the record and the parties’ submissions, the Court finds

Johnson’s second argument warrants reversal and remand for further proceedings.

A. ALJ’s Failure to Consider Some of Johnson’s Physical Ailments

Johnson argues the ALJ failed to properly consider some of her physical ailments,

including her plantar fasciitis, arthritis of the feet, and urinary problems. (Doc. No. 8 at

10.)4 She complains the ALJ’s decision makes no mention of her urinary problems or foot

4 While Johnson did not raise her plantar fasciitis or urinary issues as an impairment in her application for

DIB, she did testify to both during the hearing. (R. 56, 64, 68.) A claimant must allege an impairment either

in their application or at the hearing before the ALJ. Sullivan v. Comm’r of Soc. Sec., 694 F. App’x 670,

671 (11th Cir. 2017).

ailments. (Id. at 10, 12.) Johnson argues by failing to address these impairments,5 the ALJ

failed to craft an RFC which accurately represents what Johnson can reasonably do. (Id. at

11, 13.)

The Commissioner acknowledges the ALJ failed to expressly address Johnson’s foot

ailments and urinary issues. (Doc. No. 14 at 8–9.) However, the Commissioner argues the

ALJ’s failure to consider Johnson’s urinary problems is harmless because the record shows

no evidence that her urinary problems would affect her ability to work. (Id. at 9.) The

Commissioner further argues the ALJ implicitly considered Johnson’s foot ailments when

considering her knee impairments. (Id. at 8.)

The RFC assesses the claimant’s remaining ability to do work despite her

impairments and any related symptoms. 20 C.F.R. § 404.1545(a)(1). When assessing a

claimant’s RFC, the ALJ must consider “all impairments, severe and non-severe.” Schink

v. Comm’r of Soc. Sec., 935 F.3d 1245, 1268 (11th Cir. 2019) (citing Bowen v. Heckler, 748

F.2d 629, 634–35 (11th Cir. 1984)). The ALJ determines RFC “based on all of the relevant

medical and other evidence.” 20 C.F.R. § 404.1545(a)(3).6 However, if an ALJ fails to

consider all impairments when evaluating the RFC, then their decision is not supported by

substantial evidence. Pupo v. Comm’r Soc. Sec. Admin., 17 F.4th 1054, 1064 (11th Cir.

5 Johnson refers to both her plantar fasciitis and urinary issues as “impairments,” but does not analyze

whether they meet the definition of impairment under 20 C.F.R. § 404.1521. However, the Commissioner

does not argue that Johnson’s plantar fasciitis or urinary issues are not impairments. As such, the

undersigned assumes, without holding, that her plantar fasciitis and urinary issues meet the definition of

impairment under 20 C.F.R. § 404.1521.

6 Although the ALJ does not need to discuss every piece of evidence, he must consider the claimant’s

“medical condition as a whole.” Dyer v. Barnhart, 395 F.3d 1206, 1211 (11th Cir. 2005); see also 20 C.F.R.

§ 404.1523(c) and Social Security Ruling 96-8p.

2021) (citing Schink, 935 F.3d at 1269). Even if an ALJ states that he has considered all

symptoms, but his decision shows he did not, then the “overall assessment of the claimant’s

RFC” is inadequate. Id.

In Pupo, the claimant suffered from stress urinary incontinence. Pupo, 17 F.4th at

1059. The ALJ did not identify the claimant’s incontinence as a severe impairment at Step

2, and did not consider her urinary incontinence while conducting his RFC assessment. Id.

at 1059, 1064–65. Although the ALJ stated that he considered “all symptoms” while

determining the claimant’s RFC, the Eleventh Circuit concluded his “decision

demonstrates that he did not.” Id. at 1064. The Eleventh Circuit noted that while the ALJ

considered other impairments in his RFC determination, he “failed to mention any impact

that her incontinence might have had on her RFC during the relevant time period.” Id. at

1065. The Circuit highlighted that this was “particularly troubling” given the medical

record which contained numerous examples of the claimant receiving treatment for her

incontinence issues. Id. The Circuit concluded that substantial evidence did not support the

ALJ’s RFC determination because the ALJ “did not adequately consider [the claimant’s]

incontinence in assessing her RFC.” Id. at 1066.

Similarly to Pupo, Johnson’s urinary problems are well supported in the medical

record. In 2018, Johnson saw a urologist for recurrent urinary tract infections. (R. 332.)

She underwent a cystoscopy and received corporeal shock wave lithotripsy. (R. 374, 359.)

In 2021, Johnson saw a urologist for urinary frequency, urgency, and leaking. (R. 681.) She

was diagnosed with chronic urethritis. (R. 681.) To treat her recurrent urinary tract

infections, Johnson was placed on long-term antibiotic therapy that provided no relief. (R.

681, 753.) Johnson reported urinary incontinence issues over the past six years and

eventually went to physical therapy for her incontinence issues. (R. 753.) In 2022, a

urologist prescribed medication to help with Johnson’s urinary frequency. (R. 772.)

Johnson testified at the hearing about her urinary issues, noting she “has problems with

[her] bladder and [her] kidneys[,]” has “kidney stones[,]” “has to constantly go to the

bathroom at nighttime and it hurts her body[,]” has problems with leakage, and has to wear

protective garments. (R. 64.)

The medical record also supports Johnson’s claim of foot ailments. In 2019, Johnson

went to the doctor for foot pain, reporting that pain had been present for three years and

that her shoe inserts were not helping. (R. 565.) She was diagnosed with plantar fasciitis,

recommended for physical therapy, and was prescribed ViscoHeels. (R. 526, 529.)

Eventually, Johnson received a prescription for custom orthotics. (R. 535, 595.) In 2020,

Johnson returned to the doctor reporting foot pain. (R. 516.) X-rays revealed osteoarthritic

degenerative changes, and Johnson was diagnosed with arthritis in both of her feet. (R.

517, 518.) At the hearing, Johnson testified about the pain in her feet (R. 61, 62, 64, 65,

and 68), even noting her toes were currently numb (R. 61).

Despite the evidence in the medical record and Johnson’s testimony at the hearing,

the ALJ failed to mention Johnson’s urinary issues or plantar fasciitis at all in his opinion.

(See R. 11-21.) He mentioned the arthritis in her toes merely in passing while listing her

impairments. (R. 16.) Much like in Pupo, the ALJ stated that he “considered all symptoms”

when determining Johnson’s RFC. (R. 16.)7 However, his decision demonstrates that he

did not. While an ALJ need not discuss every piece of evidence (see Dryer, 395 F.3d at

1211), the ALJ has a duty to “make specific and well-articulated findings as to the effect

of the combination of impairments.” Walker v. Brown, 826 F.2d 996, 1001 (11th Cir. 1987)

(reversing and remanding because the ALJ made specific reference to some, but not all the

claimant’s physical impairments during the RFC determination.) As part of that duty, the

ALJ must consider “all impairments, severe and non-severe” when determining a

claimant’s RFC. Schink, 935 F.3d at 1268. Here, the ALJ made specific reference to some

of Johnson’s physical ailments during his RFC determination, but failed to mention

Johnson’s urinary problems, plantar fasciitis, or arthritis of the feet.

The Commissioner argues the ALJ’s failure to consider Johnson’s urinary issues is

harmless because the record shows no evidence that her urinary problems would affect her

ability to work. (Doc. No. 14 at 9.)

The burden of showing that an error is harmful “normally falls upon the party

attacking the agency’s determination.” Shineski v. Sanders, 556 U.S. 396, 409 (2009). Here,

Johnson has met her burden. While Johnson did testify that her urinary issues caused her

7 Although the Eleventh Circuit in the past has held this language is enough to demonstrate the ALJ

considered all necessary evidence, the Eleventh Circuit more recently held this statement is not sufficient

when the ALJ’s decision demonstrates they did not consider all symptoms. See Pupo, 17 F.4th at 1064

(“[A]lthough the ALJ stated he ‘considered all symptoms,’ his decision demonstrates that he did not.”);

Schink, 935 F.3d at 1269 (“[A]lthough the ALJ stated he ‘considered all symptoms’ when assessing

[claimant’s] RFC, the content of his decision demonstrates he did not.”); contra Tuggerson-Brown v.

Comm’r of Soc. Sec., 572 F. App’x 949, 952 (11th Cir. 2014) (per curiam) (citing Wilson v. Barnhart, 284

F.3d 1219, 1224–25 (11th Cir. 2002)) (“Under our precedent, [statements that the ALJ considered all

symptoms] are enough to demonstrate that the ALJ considered all necessary evidence.”).

to go to the bathroom frequently at night (R. 64), Johnson argues that this would still affect

her ability to work during the day and thus is material to the outcome of the case. (Doc.

No. 15 at 2.) Johnson reported that she does not get much sleep at night (R. 62), which

leads to her napping two or three times during the day for an hour each nap (R. 66). She

also stated that she has “to go to the bathroom a lot,” and that it hurts her body. (R. 64.)

During the hearing, the VE was asked whether an individual who took 15-minute breaks

every hour due to bathroom visits would be employable in the jobs he identified. (R. 73).

The VE responded the person would not keep the jobs identified because they would be

off-task 25% of the time. (Id.) As Johnson argues, the ALJ’s failure to consider her urinary

issues could impact the VE’s job determination at step five if her urinary issues caused her

to be off-task for approximately 2 hours each day. Thus, the ALJ’s failure to consider her

urinary issues was not harmless.

The Commissioner further argues that the ALJ implicitly considered Johnson’s foot

impairments when he discussed Johnson’s knee impairments. (Doc. No. 14 at 8.) While

addressing Johnson’s knee impairment, the ALJ did note that the medical record showed

that Johnson had a “normal gait” and was “able to stand without difficulty.” (R. 18.)

However, the ALJ has a duty to make specific findings about the effect of the combination

of impairments. Walker, 826 F.2d at 1001 (emphasis added). Here, the ALJ made no

mention of how Johnson’s foot impairments, in combination with her knee impairments,

might affect her ability to work. Even if the ALJ considered Johnson’s foot impairments

“sub silentio and implicitly found they imposed no significant limitations,” the Court is

unable to rely on an implicit finding when determining if the proper legal analysis was

applied because an “ALJ’s failure to provide the reviewing court with sufficient reasoning

for determining that the proper legal analysis has been conducted mandates reversal in its

own right.” Schink, 935 F.3d at 1269 (quotations omitted).

Eleventh Circuit precedent clearly establishes that when an ALJ fails to consider all

impairments when determining a claimant’s RFC, the RFC determination is not supported

by substantial evidence. See Pupo, 17 F.4th at 1065; Schink, 935 F.3d at 1269 (holding the

ALJ’s RFC assessment inadequate because the ALJ failed to assess how the claimant’s

depression, mania, and anger affected his ability to work); Arce v. Comm’r Soc. Sec., No.

23-11315, 2024 WL 36061, at *2 (11th Cir. Jan. 3, 2024) (reversing and remanding because

the ALJ failed to consider the claimant’s mental impairments when assessing the RFC); see

also Core v. Kijakazi, No. 3:21-cv-64-SMD, 2022 WL 4116986, at *4 (M.D. Ala. Sept. 9,

2022) (holding that the ALJ’s RFC determination was not supported by substantial

evidence because the ALJ failed to consider the claimant’s urological issues); Fournier v.

Kijakazi, No. 1:20-cv-862-SMD, 2022 WL 2257046, at *4 (M.D. Ala. June 23, 2022)

(holding that the ALJ’s RFC determination was not supported by substantial evidence

because the ALJ failed to consider the claimant’s cyclical vomiting).

Here, the ALJ failed to consider Johnson’s urinary issues, plantar fasciitis, and foot

arthritis when determining her RFC. Because it does not appear that the ALJ considered all

of Johnson’s impairments, this Court cannot conclude that the RFC determination is

supported by substantial evidence. As such, this case is due to be reversed and remanded

for further consideration of Johnson’s RFC.

B. Other Arguments

Because the case is being remanded to the Commissioner for further consideration,

the Court need not address Johnson’s remaining arguments. See Jackson v. Bowen, 801

F.2d 1291, 1294 n.2 (11th Cir. 1986) (stating that where remand is required, it may be

unnecessary to review other issues raised) (citations omitted); see also McClurkin v. Soc.

Sec. Admin., 625 F. App’x 960, 963 n.3 (11th Cir. 2015) (finding no need to analyze other

issues when case must be reversed due to other dispositive errors); see Arce, 2024 WL

36061, at *2 (“Because remand is necessary, we do not reach Arce’s remaining arguments

and offer no opinion as to whether the ALJ erred with respect to those issues.”). On remand,

however, the Commissioner should reassess the entire record, providing sufficient reasons

and readily identifiable evidentiary support for his decision under the applicable law.8

Diorio v. Heckler, 721 F.2d 726, 729 (11th Cir. 1983) (holding that, on remand, the ALJ

must reassess the entire record) (citation omitted).

VI. CONCLUSION

For the reasons stated, the Court finds that the decision of the Commissioner is not

supported by substantial evidence. Therefore, it is ORDERED as follows:

1. Johnson’s motion for summary judgment (Doc. No. 8) is GRANTED.

2. The Commissioner’s motion for summary judgment (Doc. No. 14) is

DENIED.

3. The decision of the Commissioner is REVERSED.

8 In reversing the Commissioner’s decision, the Court expresses no opinion regarding Johnson’s entitlement

to disability. The Court here holds only that the ALJ’s decision demonstrates error requiring reversal.

4. This matter is REMANDED for further proceedings pursuant to sentence

four of 42 U.S.C. § 405(g).

A separate judgment will issue.

DONE this 10th day of September, 2024.

JERWSHA T. ADAMS

UNIZED STATES MAGISTRATE JUDGE

15