Johnson v. Social Security Administration, No. 3:2015cv00220 - Document 13 (E.D. Ark. 2016)
Court Description: MEMORANDUM OPINION AND ORDER finding substantial evidence on the record to support the ALJ's findings. Accordingly, Johnson's complaint is dismissed, all requested relief is denied, and judgment will be entered for the Commissioner. Signed by Magistrate Judge Patricia S. Harris on 4/15/2016. (jak) (Docket text modified on 4/15/2016 to correct the description of the document filed).(jak)
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Johnson v. Social Security Administration Doc. 13 IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS JONESBORO DIVISION MICHAEL JOHNSON v. PLAINTIFF NO. 3:15-cv-00220 PSH CAROLYN W. COLVIN, Act ing Commissioner of t he Social Securit y Administ rat ion DEFENDANT MEMORANDUM OPINION AND ORDER Plaint iff Michael Johnson (“ Johnson” ) commenced t he case at bar by filing a complaint pursuant t o 42 U.S.C. 405(g). In t he complaint , he challenged t he final decision of t he Act ing Commissioner of t he Social Securit y Administ rat ion (“ Commissioner” ), a decision based upon findings made by an Administ rat ive Law Judge (“ ALJ” ). Johnson maint ains t hat t he ALJ’ s findings are not support ed by subst ant ial evidence on t he record as a whole and offers t wo reasons why. 1 Johnson first maint ains t hat t he ALJ commit t ed error at st ep t hree of t he sequent ial evaluat ion process. Johnson maint ains t hat his int ellect ual impairment meet s List ing 12.05C, and t he ALJ erred when he failed t o so find. At st ep t hree, t he ALJ must det ermine whet her a claimant ’ s impairment , when 1 The quest ion for t he Court is whet her t he ALJ’ s findings are support ed by subst ant ial evidence on t he record as a whole. “ Subst ant ial evidence means less t han a preponderance but enough t hat a reasonable person would find it adequat e t o support t he decision.” See Boet t cher v. Ast rue, 652 F.3d 860, 863 (8t h Cir. 2011). Dockets.Justia.com considered individually and in combinat ion wit h his ot her impairment s, meet s or equals a list ed impairment . See Raney v. Barnhart , 396 F.3d 1007 (8t h Cir. 2005). The det erminat ion is a medical one, see Cockerham v. Sullivan, 895 F.2d 492 (8t h Cir. 1990), and t he claimant bears t he burden of showing t hat his impairment meet s or equals a list ed impairment , see Pyland v. Apfel, 149 F.3d 873 (8t h Cir. 1998). List ing 12.05 addresses int ellect ual disabilit y, formerly referred t o as ment al ret ardat ion. The int roduct ory paragraph of List ing 12.05 explains t hat t he disabilit y encompasses “ significant ly subaverage general int ellect ual funct ioning wit h deficit s in adapt ive funct ioning init ially manifest ed during t he development al period,” t hat is, t he evidence demonst rat es or support s onset of t he impairment before t he claimant ’ s t went y-second birt hday. A claimant meet s or equals List ing 12.05 by sat isfying t he requirement s of t he int roduct ory paragraph and one of four paragraphs cont ained in t he list ing. Paragraph C, or 12.05C, requires proof of a valid verbal, performance, or full scale IQ of 60 t hrough 70 and a physical or ot her ment al impairment imposing an addit ional and significant work-relat ed limit at ion of funct ion. The formal diagnosis of an int ellect ual disabilit y is not required. The ALJ is not obligat ed, t hough, t o accept a claimant ’ s IQ scores and may rej ect scores t hat are inconsist ent wit h t he record. See Clark v. Apfel, 141 F.3d 1253 (8t h Cir. 1998). “ Indeed t est result s of t his sort should be examined t o assure consist ency wit h daily act ivit ies and behavior.” See Id. at 1255 [int ernal quot at ions and cit at ion omit t ed]. The evidence relevant t o Johnson’ s int ellect ual abilit ies reflect s t hat in June of -2- 2011, he was seen by Dr. Kennet h Hobby, Ph.D., (“ Hobby” ) for an int ellect ual and ment al diagnost ic evaluat ion. See Transcript at 487-502. Johnson report ed, int er alia, t hat he at t ended school t hrough t he sixt h grade and earned primarily Cs and Ds. He also report ed having been fired from a j ob once because of an inabilit y t o read. Hobby administ ered Wechsler Adult Int elligence Scale-Third Edit ion (“ WAIS-III” ) t est ing, and t he result s indicat ed t hat Johnson has a verbal IQ of sevent y-one, a performance IQ of sevent y-four, and a full scale IQ of sixt y-nine. Hobby observed, t hough, t hat “ [t ]he t est scores seem[ed] t o be a lit t le bit low indicat ion of [Johnson’ s] current funct ioning ...” See Transcript at 496. Wit h respect t o t he effect s of Johnson’ s impairment on his adapt ive funct ioning, Hobby found t he following: 1. How do mental impairments interfere with this person’s day to day adaptive functioning? ... [Johnson] report ed being able t o drive a car on familiar roads and he has a license. He said he could drive on unfamiliar rout es, but he t ries not t o. He said he can drive alone for dist ances up t o 20 miles from home. He report s t he following problems wit h being able t o shop adequat ely for groceries, clot hing, and personal it ems: None. He report s t he following problems wit h being able t o use a checkbook t o pay bills: he can’ t writ e one. He report s t he following problems wit h being able t o make change and purchase t hings at t he st ore wit h cash: None. He report s t hat he part icipat es in t he following social groups: Immediat e family, church. On a t ypical day he get s up at 7-8 a.m. During t he day he wat ches TV, helps his fat her, works on cars, and helps out around t he yard. In regard t o [act ivit ies of daily living], his report ed MENTAL impairment DOES NOT appear t o significant ly impact an independent level of feeding himself, bat hing, self-care, personal hygiene, and dressing. 2. Capacity to communicate and interact in a socially adequate manner? ... -3- [Johnson] report s get t ing along wit h his parent s. He report s not get t ing along well wit h his siblings. He report s not associat ing wit h neighbors. In school, poor relat ionships were report ed wit h his t eachers and his schoolmat es. He report ed poor relat ionships wit h his childhood playmat es. Only slight limit at ions were not ed in [Johnson’ s] current capacit y t o communicat e and int eract in a socially adequat e manner because he is int rovert ed. There were no discrepancies bet ween alleged inadequacies and t he int erpersonal skill level demonst rat ed during t he int erview. 3. Capacity to communicate in an intelligible and effective manner? [Johnson’ s] grammar was adequat e for communicat ing informat ion on at least a basic work-like t ask. [He] did not seem t o have any difficult y underst anding inst ruct ions given by t he examiner. There seemed t o be level of underst anding t hat would enable [Johnson] t o respond t o very basic normal inst ruct ions. 4. Capacity to cope with the typical mental/ cognitive demands of basic work-like tasks? [Johnson] has slight limit at ions in t he abilit y t o underst and, carry out and remember basic work-like t asks. [He] would probably respond adequat ely t o work pressure in a work-like set t ing if he was mot ivat ed, could do t he work, and t he work wasn’ t t imed. 5. Ability to attend and sustain concentration on basic tasks? Slight limit at ions were observed in [Johnson’ s] abilit y t o at t end and sust ain concent rat ion on basic work-like t asks. 6. Capacity to sustain persistence in completing tasks? [Johnson] seemed ... able t o persist at t he t asks during t he int erview. He should be able t o ment ally persist on appropriat e skill level work-like t asks for an 8 hour day if he was mot ivat ed, could do t he work, and t he work wasn’ t t imed. 7. Capacity to complete work-like tasks within an acceptable time frame? -4- The pace at which [Johnson] worked was slower t han normal and st eady and appropriat e for complet ing basic work-like t asks if he didn’ t have t o adhere t o st rict t ime limit s. See Transcript at 497-498. Hobby diagnosed Johnson wit h a learning disorder and borderline int ellect ual funct ioning accompanied by dependent personalit y t rait s. Dr. Sheri Simon, Ph.D., (“ Simon” ) reviewed Johnson’ s medical records. See Transcript at 507-510. Simon opined t hat Johnson does not have marked limit at ions in adapt ive funct ioning and is capable of performing simple, rout ine, repet it ive t asks. Simon opined t hat Johnson can perform work where “ int erpersonal cont act is incident al t o work performed, e.g., assembly work; complexit y of t asks is learned and performed by rot e, few variables, lit t le j udgment ; [and] supervision required is simple, direct , and concret e (unskilled).” See Transcript at 509. Simon’ s opinions were lat er affirmed by Dr. Susan Daughert y, Ph.D., (“ Daughert y” ). See Transcript at 557. Johnson represent ed in his disabilit y document s t hat he is capable of spending t ime wit h ot hers, alt hough it t ypically involves merely wat ching t elevision or sit t ing out side. See Transcript at 271. He denied having any problems get t ing along wit h family, friends, or neighbors. See Transcript at 272. He represent ed t hat he cannot pay at t ent ion for very long, is not good at following writ t en inst ruct ions, is “ okay” wit h following spoken inst ruct ions, does not get along well wit h aut horit y figures, and does not handle st ress or changes in his rout ine well. See Transcript at 272-273. Johnson t est ified during t he administ rat ive hearing about his int ellect ual -5- disabilit y. See Transcript at 53-69. He t est ified t hat he can read “ some” and writ e “ all right ” but has difficult y spelling. See Transcript at 54. He can add and subt ract but requires a calculat or t o do so. When asked why he cannot work, he report ed, in part , t hat he has difficult y get t ing along wit h some people and has t rouble t aking direct ions. Johnson t akes medicat ion for anxiet y, but t he medicat ion makes him sleepy. A t ypical day consist s primarily of seeing his children t o and from school and rest ing at t he home he shares wit h one of his parent s. Johnson has no close friends, rarely socializes, and occasionally at t ends church. The ALJ found at st ep t wo t hat Johnson’ s severe impairment s include a learning disorder and borderline int ellect ual funct ioning. At st ep t hree, t he ALJ found t hat t he impairment s do not meet or equal a list ed impairment . The ALJ acknowledged t hat WAISIII t est ing indicat ed t hat Johnson has a full scale IQ of sixt y-nine. The ALJ found, t hough, t hat t he score is not a t rue reflect ion of Johnson’ s adapt ive funct ioning, and t he ALJ discount ed t he score. 2 The ALJ t hen assessed Johnson’ s residual funct ional capacit y and, in doing so, gave significant weight t o t he findings made by Hobby. The ALJ also gave “ significant evident iary weight ” t o t he findings of Simon, whose findings were affirmed by Daughert y. See Transcript at 20. The ALJ found t hat Johnson can perform light work but wit h t he following non-exert ional limit at ions: ... work is limit ed so t hat int erpersonal cont act is incident al t o t he work 2 There is no disput e t hat Johnson’ s int ellect ual disabilit y manifest ed before his t went y-second birt hday and t hat he has ot her impairment s imposing addit ional and significant work-relat ed limit at ions. -6- performed; t he complexit y of 1-2 st ep t asks can be learned and performed by rot e wit h few variables and lit t le j udgment ; supervision required is simple, direct , and concret e for t he worker; SVP 1-2 level j obs t hat can be learned wit hin 30 days; work limit ed t o reasoning levels 1-2; work does not require excellent reading and writ ing skills; work not t o require more t han occasional changes t o t he workplace set t ing. See Transcript at 15. Subst ant ial evidence on t he record as a whole support s t he ALJ’ s finding at st ep t hree. Specifically, t he ALJ could and did find t hat t he result s obt ained from WAIS-III t est ing are not a t rue reflect ion of Johnson’ s adapt ive funct ioning and t he scores could t herefore be discount ed. Inst ead, t he ALJ could and did find t hat Johnson’ s int ellect ual disabilit ies are not so severe as t o prevent him for performing all work-like t asks. The Court so finds for four reasons. First , t he result s of WAIS-III t est ing are t he product of Hobby’ s first and only evaluat ion of Johnson. “ A one-t ime evaluat ion by a non-t reat ing psychologist is not ent it led t o cont rolling weight .” See Clark v. Apfel, 141 F.3d at 1256 [cit ing Loving v. Depart ment of Healt h and Human Services, 16 F.3d 967, 971 (8t h Cir. 1994)]. Second, not wit hst anding t he foregoing, Hobby quest ioned t he result s of WAIS-III t est ing. Hobby recognized t hat Johnson scored poorly but observed t hat , given his “ adapt ive behavior, work hist ory, and background informat ion,” see Transcript at 495, t he result s are not a t rue indicat ion of his funct ioning. Hobby inst ead believed t hat Johnson is performing in t he borderline int ellect ual funct ioning range. Third, t he result s of WAIS-III t est ing are inconsist ent wit h t he adapt ive funct ioning -7- findings made by Hobby, Simon, and Daughert y. For inst ance, Hobby observed t hat alt hough Johnson has some limit at ions in his abilit y t o underst and, carry out , and remember basic work-like t asks, Johnson would “ probably respond adequat ely t o work pressure in a work-like set t ing if he was mot ivat ed, could do t he work, and t he work wasn’ t t imed.” Simon, like Hobby, opined t hat Johnson has some limit at ions. Simon, t hough, opined t hat t he evidence does not support marked impairment in Johnson’ s adapt ive funct ioning, and Daughert y affirmed Simon’ s opinion. Fourt h, Johnson’ s self-report s and t est imony undermine t he validit y of WAIS-III t est ing. He report ed few limit at ions caused by an int ellect ual disabilit y. Specifically, he t est ified t hat he can read “ some” and writ e “ all right ” but has difficult y spelling. He can add and subt ract but requires a calculat or t o do so. He is capable of spending t ime wit h ot hers and can at t end t o his personal care. Given t he foregoing, t he ALJ could and did find t hat Johnson does not have a valid full scale IQ of 60 t hrough 70. The ALJ could and did t herefore find t hat Johnson’ s int ellect ual disabilit y does not meet or equal List ing 12.05C. Johnson offers a second reason why t he ALJ’ s findings are not support ed by subst ant ial evidence on t he record as a whole. Johnson maint ains t hat t he assessment of his residual funct ional capacit y was erroneous because his “ chronic back pain keeps him from engaging in t he prolonged walking and st anding necessary t o perform light work.” See Document 11 at CM/ ECF 16. The ALJ is required t o assess t he claimant ’ s residual funct ional capacit y, which is -8- a det erminat ion of “ t he most a person can do despit e t hat person’ s limit at ions.” See Brown v. Barnhart , 390 F.3d 535, 538-39 (8t h Cir. 2004). The assessment is made using all of t he relevant evidence in t he record, but t he assessment must be support ed by some medical evidence. See Wildman v. Ast rue, 596 F.3d 959 (8t h Cir. 2010). As a part of assessing t he claimant ’ s residual funct ional capacit y, t he ALJ is required t o evaluat e t he claimant ’ s subj ect ive complaint s. See Pearsall v. Massanari, 274 F.3d 1211 (8t h Cir. 2001). The ALJ does so by considering t he medical evidence and evidence of t he claimant 's “ daily act ivit ies; durat ion, frequency, and int ensit y of pain; dosage and effect iveness of medicat ion; precipit at ing and aggravat ing fact ors; and funct ional rest rict ions.” See Id. at 1218 [cit ing Polaski v. Heckler, 739 F.2d 1320 (8t h Cir. 1984)]. The medical evidence relevant t o Johnson’ s abilit y t o walk and st and reflect s t hat in March of 2010, he was seen for a healt h classificat ion and rest rict ion evaluat ion upon ent ering t he cust ody of t he Arkansas Depart ment of Correct ion (“ ADC” ). See Transcript at 430-440. His past surgical hist ory was recorded and included surgery in 2006 t o remove a t umor from his spinal cord. 3 Abnormalit ies were not ed in his back, and t he at t ending medical professional made t he following observat ions: “ [l]imit ed [range of mot ion] wit h forward bending,” “ [o]nly able t o bend 30 degrees,” and “ [u]nable t o perform squat / walk or heel/ t oe ambulat ion.” See Transcript at 433. Johnson sought medical at t ent ion for back pain on several occasions during his 3 Johnson t est ified during t he administ rat ive hearing t hat he had a period of paralysis following t he surgery, but he event ually regained t he abilit y t o walk. See Transcript at 55-56. -9- incarcerat ion. See Transcript at 460 (03/ 31/ 2010), 461 (04/ 02/ 2010), 448-449 (04/ 16/ 2010), 446 (04/ 20/ 2010), 458-459 (05/ 04/ 2010), 454 (05/ 29/ 2010), 450-451 (11/ 09/ 2010). The progress not es reflect , int er alia, t hat he had a slow gait and a limit ed range of mot ion. He was placed on rest rict ions, i.e., he was excused from work for a period of t ime and inst ruct ed not t o part icipat e in sport s or yard call, and prescribed medicat ion. In June of 2010, Johnson was seen for a review of his healt h classificat ion. See Transcript at 430-431, 452. He was observed t o have a “ large midline surgical scar back t horacic” and was capable of flexing t hirt y degrees. See Transcript at 430. His limit at ions were such t hat he was rest rict ed from work assignment s t hat required t he following: “ prolonged crawling, st ooping, running, j umping, walking, or st anding;” “ st renuous physical act ivit y for periods in excess of [four] hours;” and “ handling [and] lift ing heavy mat erials in excess of [t en pounds] or requiring overhead work for a period in excess of [t wo] hours.” See Transcript at 430. Aft er Johnson was released from t he cust ody of t he ADC, he present ed t o an ARCare clinic in Sept ember of 2011 t o est ablish care and be seen for his chronic back pain. See Transcript at 529-530. Dr. Henry Allen, M.D., (“ Allen” ) observed t hat Johnson had a normal range of mot ion in his spine and no limb abnormalit ies. Allen diagnosed Johnson wit h back pain and prescribed mediat ion. Allen also referred Johnson t o St . Bernards Medical Cent er for a CT scan. In Sept ember of 2011, a CT scan of Johnson’ s back was performed at St . Bernards -10- Medical Cent er. See Transcript at 543-549. The scan of his cervical spine revealed “ [l]eft uncovert ebral j oint hypert rophy at C6-C7 result [ing] in mild left neuroforaminal narrowing” and some st raight ening of t hat port ion of his spine. See Transcript at 545. The scan of his t horacic spine revealed “ no acut e fract ure or malalignment ” of t hat port ion of his spine. See Transcript at 546. The scan of his lumbar spine revealed a “ [s]mall disc bulge at L4-L5" wit h chronic ost eophyt osis but ot herwise no severe nerve root compression or severe st enosis was observed. See Transcript at 548. In Oct ober of 2011, Johnson present ed t o a hospit al emergency room complaining of back pain brought about when he at t empt ed t o lift a couch. See Transcript at 535-542. He report ed t hat t he pain radiat ed down his right leg and up int o his neck. An examinat ion indicat ed t hat he had a full range of mot ion, and a CT scan of his t horacic spine revealed no acut e abnormalit ies. A CT scan of his lumbar spine revealed, t hough, “ [d]egenerat ive disc wit h broadly bulging annulus at L4-L5 and mild cent ral canal st enosis,” see Transcript at 541. There was no frank exit ing nerve compromise. Id. Johnson was diagnosed wit h t horacic back pain and low back pain and prescribed medicat ion. The medical record is silent unt il August of 2013 when Johnson present ed t o Dr. Clarence Kemp, M.D., (“ Kemp” ) t o est ablish care and be seen for chronic back pain. See Transcript at 565-566. Kemp’ s progress not es are unremarkable. He not ed, int er alia, t hat Johnson appeared t o have normal st rengt h in bot h legs. Kemp diagnosed back pain and prescribed medicat ion. -11- Johnson saw Kemp on at least five subsequent occasions for chronic back pain. See Transcript at 562-564 (09/ 25/ 2013), 559-561 (11/ 19/ 2013), 586-587 (02/ 12/ 2014), 583585 (06/ 06/ 2014), 574-576 (09/ 23/ 2014). At t he February 2014 visit , Johnson report ed difficult y walking due t o back pain and t he onset of colder weat her. By June of t hat year, t hough, he report ed being able t o walk a mile a day wit h his children. Kemp repeat edly not ed t enderness in Johnson’ s back and prescribed medicat ion. Dr. Karmen Hopkins, M.D., (“ Hopkins” ) reviewed Johnson’ s medical records. See Transcript at 479-486. Hopkins opined t hat Johnson is capable of performing light work wit h post ural limit at ions. Hopkins’ opinion was lat er affirmed by Dr. Bill Payne, M.D., (“ Payne” ). See Transcript at 550. The non-medical evidence relevant t o Johnson’ s abilit y t o walk and st and is cont ained, in part , in a pain form, funct ion report s, and a work hist ory report . See Transcript at 227, 229 (pain form), 232-239, 267-274 (funct ion report s), 219-226 (work hist ory report ). In t he pain form, he represent ed t hat he experiences const ant pain in his back and right leg. He represent ed t hat he can walk only about fift y feet before experiencing pain, can st and for only about t went y t o t hirt y minut es before experiencing pain, and can only sit for about t went y t o t hirt y minut es before experiencing pain. In t he funct ion report s, Johnson represent ed t hat a t ypical day consist s primarily of seeing his children t o and from school and rest ing at t he home he shares wit h one of his parent s. Johnson can at t end t o his personal care but cannot prepare any meals, can do no house or yard work, and his hobbies are limit ed t o reading magazines. -12- In t he work hist ory report , Johnson list ed no past employment . The summary of his FICA earnings reflect s t hat he has never had any subst ant ial gainful act ivit y; in fact , t he summary reflect s t hat bet ween 1976 and 2012, he only once earned more t han a t housand dollars in a year. See Transcript at 201. 4 Johnson t est ified during t he administ rat ive hearing, and his t est imony largely conformed t o t he represent at ions made in his disabilit y document s. See Transcript at 5369. He t est ified t hat he was born on Oct ober 22, 1976, and is five feet , t en inches t all and weighs 270 pounds. He at t ribut ed his inabilit y t o work t o, int er alia, t he pain he experiences in his back. Medicat ion helps ease his pain, and he occasionally wears a brace on his back. The ALJ found at st ep t wo t hat Johnson’ s severe impairment s include “ remot e spinal t umor removal, back pain, [and] obesit y.” See Transcript at 12. The ALJ assessed Johnson’ s residual funct ional capacit y and found t hat he can perform light work but wit h t he following exert ional limit at ions: “ no climbing ladders, ropes, scaffolds; not more t han occasional performance of each remaining post ural funct ion; no exposure t o unprot ect ed height s and hazards in t he workplace.” See Transcript at 15. In making t he finding, t he ALJ gave “ significant evident iary weight ” t o t he opinions offered by Hopkins, and affirmed by Payne, because t he medical professionals “ t horoughly evaluat ed t he obj ect ive medical evidence ...” See Transcript at 19. 4 Johnson represent s t hat he previously received disabilit y benefit s. The benefit s were t erminat ed when he was incarcerat ed. -13- Subst ant ial evidence on t he record as a whole support s t he ALJ’ s assessment of Johnson’ s residual funct ional capacit y. Specifically, t he ALJ could and did find t hat Johnson is capable of performing t he walking and st anding requirement s of light work, albeit wit h some addit ional exert ional limit at ions. 5 The Court so finds for t hree reasons. First , t he medical evidence indicat es t hat Johnson’ s back impairment improved over t ime. As t he ALJ could and did find, Johnson showed cont inual improvement since t he t umor on his spine was removed. For inst ance, when Johnson was seen for an ADC healt h classificat ion and rest rict ion evaluat ion in March of 2010, abnormalit ies were not ed in his back, he had a limit ed range of mot ion wit h forward bending, he could only bend t hirt y degrees, and he was unable t o squat / walk or heel/ t oe ambulat ion. By t he t ime Johnson saw Allen in Sept ember of 2011, t hough, Johnson had a normal range of mot ion in his spine and no limb abnormalit ies. Allen’ s observat ions are consist ent wit h t hose made by Kemp, who saw Johnson from August of 2013 t hrough at least Sept ember of 2014. For inst ance, Kemp observed t hat Johnson appeared t o have normal st rengt h in bot h legs. It is t rue t hat CT scans revealed t hat Johnson had some disc bulging and mild cent ral canal st enosis at L4-L5 and some j oint hypert rophy at C6-C7. The ALJ could and did credit t hose t est result s and limit Johnson t o light work wit h some addit ional exert ional limit at ions. 5 Light work involves, int er alia, a good deal of walking and st anding most of t he t ime. See 20 C.F.R. 404.1567(b). In Frankl v. Shalala, 47 F.3d 935, 937 (8t h Cir. 1995), t he Court of Appeals observed t hat “ [l]ight work requires t hat a claimant be capable of [walking or st anding] for a t ot al of six hours out of an eight -hour workday.” -14- Second, t he opinions of t he st at e agency physicians are consist ent wit h t he assessment of Johnson’ s residual funct ional capacit y. Alt hough Hopkins’ opinion, which Payne affirmed, is not ent it led t o great weight , t he opinion is ent it led t o some weight . See Mabry v. Colvin, 2016 WL 827183 (8t h Cir. March 3, 2016) (ALJ may rely, in part , on opinion of st at e agency physician). There is no evidence t he ALJ gave t he opinion inappropriat e weight , and he did not err in relying, in part , on t he opinion. Third, t he non-medical evidence is capable of more t han one accept able int erpret at ion, and t he ALJ’ s int erpret at ion is one of t he accept able int erpret at ions. 6 As t he ALJ could and did find, Johnson experiences some back pain but not t o t he degree he alleges. The ALJ considered t he medical evidence in so finding, and his considerat ion of it was not improper. He could and did find t hat t he medical evidence does not support Johnson’ s complaint of disabling back pain. The ALJ also considered Johnson’ s daily act ivit ies. Alt hough Johnson t est ified t hat he does very lit t le during a t ypical day, t he record does not support such a severe limit at ion of his daily act ivit ies. The ALJ also considered Johnson’ s use of medicat ion, and it appears t o have been rout ine and/ or conservat ive during recent t imes. Alt hough t he ALJ gave lit t le ment ion t o t he remaining Polaski v. Heckler fact ors, he did not commit reversible error in doing so. The evidence relevant t o t hose fact ors is minimal and does not support Johnson’ s assert ion of disabling 6 It is t rue t hat t he ALJ did not specifically cit e Polaski v. Heckler, but his failure t o do so is not reversible error. The ALJ is not required t o cit e or even “ explicit ly discuss” each Polaski v. Heckler fact or. See St rongson v. Barnhart , 361 F.3d 1066, 1072 (8t h Cir. 2004). “ It is sufficient if he acknowledges and considers t hose fact ors before discount ing a claimant ’ s subj ect ive complaint s.” See Id. -15- pain. Johnson fault s t he ALJ for failing t o obt ain an opinion from an examining or t reat ing physician on t he quest ion of Johnson’ s work-relat ed limit at ions. The ALJ did not commit reversible error in failing t o obt ain such an opinion as subst ant ial evidence on t he record as a whole support s t he assessment he made of Johnson’ s residual funct ional capacit y. On t he basis of t he foregoing, t he Court finds t hat t here is subst ant ial evidence on t he record as a whole t o support t he ALJ’ s findings. Accordingly, Johnson’ s complaint is dismissed, all request ed relief is denied, and j udgment will be ent ered for t he Commissioner. IT IS SO ORDERED t his15t h day of April, 2016. UNITED STATES MAGISTRATE JUDGE -16-
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