Sandy A. Johnston v. Kenneth S. Apfel

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 99-3063
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Sandy A. Johnston, *
*
Appellant, *
*
v. * Appeal from the United States
* District Court for the
Kenneth S. Apfel, Commissioner, * Western District of Missouri
Social Security Administration, *
*
Appellee. *
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Submitted: March 3, 2000

Filed: April 7, 2000
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Before McMILLIAN, BOWMAN and LOKEN, Circuit Judges.
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McMILLIAN, Circuit Judge.

Sandy A. Johnston appeals from a final order entered in the District Court1 for
the Western District of Missouri affirming the decision of the Social Security
Administration denying her claim for supplemental security income (SSI) benefits under
Title XVI of the Social Security Act, 42 U.S.C. § 1381 et seq. Johnston v. Apfel, No.
97-1083-CV-W-66BA-SSA (W.D. Mo. Mar. 11, 1999) (district court order). For

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The Honorable William A. Knox, United States Magistrate Judge for the
Western District of Missouri.
reversal, Johnston argues that the ALJ erred in (1) using the wrong standard at step two
of the sequential analysis to evaluate the severity of her impairments and in finding that
she did not suffer from a severe impairment or combination of impairments, (2) finding
her thyroid-related eye disease did not meet Listing 9.02(A), and (3) discounting her
credibility in evaluating the severity of her subjective complaints. For the reasons
discussed below, we affirm the order of the district court.

The district court had jurisdiction to review the final decision of the Social
Security Administration under 42 U.S.C. § 1383(c)(3) (judicial review of final decision
of Social Security Administration under Title XVI). We have appellate jurisdiction
under 28 U.S.C. § 1291.

Johnston applied for SSI benefits in July 1995, claiming that she became
disabled in January 1995 due to complications from hyperthyroidism (Grave’s disease)
(she was diagnosed with hyperthyroidism in May 1995) and heart problems. Her
application was denied initially and on reconsideration. She then requested a hearing
before an administrative law judge (ALJ). After the hearing, the ALJ found that
Johnston did not suffer from a severe impairment and denied her claim. The Appeals
Council affirmed the decision of the ALJ. Johnston then sought judicial review in
federal district court. The district court affirmed the decision of the ALJ. This appeal
followed.

Johnston was born in 1959. (She was 37 years old at the time of the
administrative hearing in 1996.) She has a 12th grade education and has completed
vocational training in data entry. She has worked in the past as a telemarketer, file
clerk, office clerk, student nurse’s aide, housekeeper, and cashier. She is divorced and
the mother of twins (they were 2 years old in 1996).

As noted above, Johnston filed an application for SSI benefits in July 1995,
claiming that she became disabled in January 1995 due to complications from

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hyperthyroidism and heart problems. She complained of the following symptoms and
medication side effects-- headaches, blurred vision, double vision, chest pain,
forgetfulness, mood swings, panic attacks, uncontrollable and unpredictable crying
spells, body aches, swelling, weight gain, fatigue, and inability to concentrate.
Johnston has been working since 1975; however, as noted by the ALJ, her employment
record is sporadic. She has not worked at any one job for more than a few months at
a time (her longest period of employment was for 7 months). Most of her jobs lasted
only 1 to 4 months. The ALJ found that her work history reflected little or no
motivation to work. Her husband supported her during their marriage; she never earned
more than $3,500 in any year and apparently earned as little as $100 per year for most
years.

Johnston underwent successful treatment (radio-iodine ablation therapy which
deactivated the thyroid gland) for her hyperthyroidism and takes a synthetic thyroid
hormone. It took several months to adjust the dosage, but her thyroid level is now
normal. Johnston has eye problems caused by her hyperthyroidism, specifically, active
thyroid-related orbitopathy, periorbital swelling, exophthalmos (protrusion of the
eyeballs), fat herniation in the lids, and chronic exposure keratitis (due to the protrusion
of her eyeballs, she cannot completely close her eyelids and her eyes dry out and
become irritated). In February 1996 an ophthalmologist found that Johnston’s eye
condition had stabilized within the prior 4-6 months and recommended corrective eye
surgery, but apparently Johnston was reluctant to undergo surgery and has not had the
eye surgery.

Johnston also complained of nervousness and anxiety. She was initially
diagnosed with probable panic disorder and anxiety disorder and was prescribed
medications. According to the ALJ, the medications corrected her symptoms within
days, and she reported improvement of energy, sleep, concentration, and anxiety,
school was going well, and no panic attacks or crying spells.

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 In February 1996 Johnston underwent cardiac tests (x-ray, EKG,
echocardiogram). The test results were normal or unremarkable. She does have
occasional sinus brachycardia (slowness of the heart beat or pulse), but it was
apparently not related to her hyperthyroidism.

At the administrative hearing, Johnston testified that, after treatment for her
hyperthyroidism, she began to experience panic attacks and have problems
concentrating. She testified that the panic attacks are unpredictable and occur several
times a day despite her medication. She testified that she has a problem sitting still due
to nervousness and that she has unpredictable crying spells several times a month. Her
daily activities include a little cooking, very light housework and taking care of her
daughter. Her sister helps her by cleaning her house, shopping, and taking her daughter
to day care. (The father has been taking care of her son.) She listens to the radio
because she cannot focus well enough to watch TV or read. Because she believes her
anxiety and panic attacks are aggravated by crowds, Johnston spends much of her time
at home. She rarely drives because of her vision problems. She handles her own
money. She testified that her biggest problems were fatigue and her eyes.

At step 1 of the sequential analysis, the ALJ found that Johnston had not engaged
in substantial gainful activity since January 1995 (the alleged onset date of her
disability). Proceeding to step 2, the ALJ found that her hyperthyroidism and visual
impairments could be expected to last a continuous period of 12 months, but that there
was no evidence that these impairments imposed any significant limitations upon her
ability to do basic work activities and were therefore not “severe.” See decision of
ALJ, slip op. at 5. In addition, the ALJ found that there was no evidence that her other
impairments (sinus brachycardia, panic attacks, anxiety disorder) were expected to last
for a continuous period of 12 months or currently imposed any significant limitations
upon her ability to do basic work activities. See id. For these reasons, the ALJ
concluded that plaintiff did not have a “severe” impairment and therefore was not
“disabled” (for purposes of SSI benefits). Because the ALJ found no severe

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impairment, the ALJ did not proceed to step 3 to consider whether Johnston’s
impairment or impairments met Listing 9.02(A) (for thyroid condition with progressive
exophthalmos or protrusion of the eyeballs as measured by exophthalmometry). See
20 C.F.R. Part 404, subpart P, app. 1, § 9.02A.

Johnston requested review by the Appeals Council. The Appeals Council denied
review. Johnston then sought judicial review in federal district court. The parties filed
motions for summary judgment. The district court granted summary judgment in favor
of the government. The district court found that substantial evidence on the record as
a whole supported the finding of the ALJ that Johnston’s physical and mental
impairments did not have more than a minimal, if any, effect on her ability to work and
therefore she did not have a severe impairment or combination of impairments. See
district court order, slip op. at 7-9. The district court noted that it took Johnston’s
treating physician several months to adjust her hormone medication dosage and that her
symptoms of racing heart beat, blurred vision, and inability to concentrate could be
directly traced to her fluctuating hormone levels. See id. at 7. The district court also
noted that, although Johnston suffered from thyroid-related orbitopathy, her doctor had
prescribed eye drops for her dry eye condition. She did have a slight deficit in ocular
motility and imperfect eye coordination that resulted in occasional double vision.
However, the district court noted that her visual acuity remained good, she had no color
vision abnormalities, and she had no optic nerve compromise or visual loss as a result
of her thyroid problems, and that, after her hormone medication dosage had been
adjusted, her eye disease had stabilized and she was a candidate for corrective eye
surgery. See id.

The district court also found that Johnston did not meet Listing 9.02(A) for
thyroid disorders with progressive exophthalmos as measured by exophthalmometry.
See id. The district court noted that the medical evidence did not show that she
suffered from progressive exophthalmos. See id. The medical evidence instead
showed that her thyroid-related orbitopathy had stabilized with the adjustment of her

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hormone medication. See id. at 8. The district court also found that Johnston’s anxiety
problems only mildly limited functioning and had been treated successfully with
medication. See id.

The district court also found that substantial evidence on the record as a whole
supported the finding of the ALJ that Johnston’s subjective complaints were
inconsistent with the medical record, her daily activities, and her work history. See id.
The district court noted that, with one exception, Johnston did not complain about any
medication side effects to her treating physicians. See id. The ALJ noted that no
physician, treating or otherwise, expressed any opinion that Johnston was disabled; no
treating physician placed any specific restrictions on her activities; and disability
determination service physicians indicated that she had no exertional, postural, visual,
communicative or environmental limitations within 12 months of the diagnosed onset
of her thyroid disease. See decision of ALJ, slip op. at 4. The ALJ also noted that the
symptoms related to her diagnosed panic disorder and anxiety disorder had improved
with medication within days and there was no evidence that her mental impairments
were expected to last for a continuous period of 12 months. See id. This appeal
followed.

Johnston first argues that the ALJ used the wrong standard at step 2 of the
sequential evaluation analysis to evaluate the severity of her impairments. As noted
above, the ALJ found that Johnston’s physical and mental impairments were not severe
because there was no evidence that they imposed “any significant limitations” upon her
ability to do basic work activities. Johnston argues that the correct standard at step 2
is not “any significant limitation” but instead the lesser standard of “no more than a
minimal effect” on the ability to work. See, e.g., Nguyen v. Chater, 75 F.3d 429, 431
(8th Cir. 1996) (holding sequential evaluation analysis may only be terminated at step
2 when impairment or combination of impairments would have no more than a minimal
effect on claimant’s ability to work, citing Henderson v. Sullivan, 930 F.2d 19, 21 (8th
Cir. 1991)). Although the ALJ’s decision referred to the “no significant limitation”

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standard instead of the “no more than a minimal effect” standard, any error was
harmless because it is undisputed that the district court used the correct “more than a
minimal effect” standard. See district court order, slip op. at 8-9 (holding substantial
evidence on the record as a whole supports ALJ’s decision that plaintiff’s physical and
mental conditions had no more than “minimal, if any, effect” on her ability to work);
district court order denying post-judgment motions, slip op. at 1 (May 25, 1999) (noting
that Johnston acknowledged that the district court used the correct standard in
upholding the ALJ’s decision).

Johnston next argues that the ALJ erred in finding that she did not suffer from
a severe impairment or combination of impairments. We will uphold the decision of
the ALJ (which was affirmed by the Appeals Council and is the final decision of the
Commissioner of the Social Security Administration) if it is supported by substantial
evidence on the record as a whole. See, e.g., Williams v. Sullivan, 960 F.2d 86, 89
(8th Cir. 1992) (defining substantial evidence as that which a reasonable mind might
accept as adequate to support the Secretary’s conclusion).

We hold that the ALJ’s finding is supported by substantial evidence on the
record as a whole. The medical record showed that Johnston underwent successful
treatment for her thyroid disease and has had normal thyroid levels since taking
synthetic thyroid hormone. Some of her symptoms (problems with heart rate, blurred
vision and inability to concentrate) were directly related to her fluctuating hormone
levels before her doctor adjusted her medication dosage. Johnston’s eye problems
were related to her thyroid disease and responded to treatment. The medical record
showed that she has good visual acuity, no color vision abnormalities, no optic nerve
compromise, and no visual loss as a result of her thyroid condition. The medical record
also showed that Johnston’s thyroid-related eye disease was not progressive and had
stabilized by February 1996.

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 The medical record also showed that Johnston’s heart problems were not severe.
Her tests were normal, and the brachycardia (low heart rate) was probably due to
anxiety. The medical record also showed that Johnston’s panic and anxiety disorders
were not severe and were probably due to anxiety about the recommended corrective
eye surgery and that her symptoms had responded to medication. In May 1996
Johnston reported improvement in her symptoms (improved sleep, energy and
concentration, felt better about self, school was going well). As noted below, the
inconsistencies between Johnston’s subjective complaints, the medical record and her
daily activities supported the ALJ’s finding that her impairments were not severe.
Johnston was the primary caregiver for her young daughter (the father was taking care
of the son); she did some housework, shopping, and cooking; she handled her own
money; and she was attending school.

Johnston did not meet the requirements of Listing 9.02(A). Next, Johnston
argues that her thyroid-related eye disease met the requirements in Listing 9.02(A) and
therefore she has a severe impairment for purposes of the sequential evaluation
analysis. (The ALJ stopped at step 2 and therefore did not consider whether she met
the requirements of Listing 9.02(A).)

Listing 9.02(A) requires progressive exophthalmos (the abnormal protrusion of
the eyeball), caused by thyroid disorder, as verified by exophthalmometry
measurements. The medical record showed that Johnston’s exophthalmos was not
progressively worsening because, although her eye measurements increased between
June and August 1995, the measurements decreased in September 1995 and did not
change much between October 1995 and February 1996, at which time the
ophthalmologist concluded that her eye disease had stabilized with no optic
compromise or visual loss.

Johnston next argues that the ALJ improperly discounted her credibility in
evaluating the severity of her subjective complaints. For example, she argues that the

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ALJ improperly discounted her blurred and double vision and exophthalmos. She also
argues that the medications prescribed for the vision problems and her panic and
anxiety attacks caused dizziness, lightheadedness and agoraphobia. She also argues
that her vision problems, heart problems, anxiety and panic attacks, and inability to
concentrate significantly restricted her daily activities and that she required the
assistance of family members to take care of her household and her children. She also
argues that the ALJ erred in finding that her work history showed little or no motivation
to work. She argues that her earnings were low because she depended upon her
husband for financial support during the marriage.

We hold that the ALJ properly discounted Johnston’s credibility in evaluating
the severity of her subjective complaints. See Polaski v. Heckler, 739 F.2d 1320 (8th
Cir. 1984) (subjective complaints of pain). The inconsistencies between her subjective
complaints, the medical record and her daily activities supported the ALJ’s finding that
her impairments were not severe. The medical record showed that her thyroid disease
had been successfully treated, her vision problems had responded to treatment and her
thyroid-related eye disease had stabilized, her panic and anxiety disorders had
responded to medication, and her heart problems were probably related to her anxiety
disorder (her cardiac tests were normal or unremarkable). There was no evidence that
she had reported the dizziness, lightheadedness or agoraphobia to her doctors (with one
exception). Finally, the record showed that her daily activities included handling her
own finances, some cooking, some housekeeping, taking care of her young daughter,
some reading and watching television, and attending classes.

Accordingly, we affirm the order of the district court.

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A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.

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