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Johnson v. Heckler

August 9, 1984


Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. No. IP 81 634 C -- William E. Steckler, Judge.

Coffey and Flaum, Circuit Judges, and Campbell, Senior District Judge.*fn*

Author: Coffey

COFFEY, Circuit Judge

Plaintiff appeals the denial of Disability Insurance Benefits ("D.I.B.") and Supplemental Security Income ("S.S.I."). The Secretary of Health and Human Services denied appellant's claim because the administrative law judge found that Johnson was able to return to her past relevant work at Indianapolis Public Schools ("I.P.S.") as a school bus attendant for handicapped and emotionally disturbed children. The district court, adopting the report of a magistrate, held that the Secretary's decision was not supported by sufficient evidence but denied benefits on the ground that Johnson's impairments did not prevent her from performing sedentary work. We reverse the district court's finding of insufficient evidence and affirm the judgment of the Secretary.


The plaintiff based her claim of disability on severe pain in her lower back and legs and or disabling ulcerations on her legs. Johnson who was 54 at the time she filed her disability claim was 5'3" in height and weighed 234 pounds.

Johnson's work history includes six years as a school bus attendant*fn1 (ending upon the date she claimed disability); two years as a factory fuel-pump assembler; and five years as a manager of an ice cream parlor. Johnson completed the seventh grade before leaving school at the age of 16.

The record reflects that Johnson was examined by seven physicians during a period from June 1977 until June 1980. Dr. Joseph Randolph, who began treating Johnson after a fall in a school bus, recited in April of 1978 that from his examination Johnson suffered from a permanent partial impairment of 5 percent of the person. Johnson was treated by Dr. Paul Strange in May and June 1979 for stasis dermatitis. Dr. Strange found that Johnson had the functional capacity to lift 20 pounds and frequently carry 10 pounds, could have extended periods of walking or standing for two hours in an eight-hour day, but could do no bending, stooping, pushing, or climbing. Dr. Strange found that Johnson's ulcerations were recurrent. Dr. Strange concluded that Johnson's impairments were not severely disabling and that she had the residual functional capacity to perform sedentary work. Dr. Strange's findings were made six days before Johnson filed her claim.

Johnson, together with her medical records were examined by several other physicians after filing her claim. Dr. Warren Tucker, who did not examine Johnson but reviewed the report of Dr. Strange at the request of the Indiana Disability Determination Division, agreed with Dr. Strange's findings that Johnson could stand or walk for two hours in an eight-hour day and that Johnson retained the functional capacity for sedentary work, stating that she could lift up to 10 pounds with occasional walking or standing, but no pushing, pulling or climbing. Dr. Betty Ray, who examined Johnson, diagnosed venous insufficiency with stasis dermatitis of several years duration, degenerative arthritis of the lower back and possible noctural asthma. She found that, although Johnson complained of wheezing, her lungs were clear. Dr. Ray concluded that Johnson could lift or carry 20 pounds, could stand or walk for extended periods of two hours and could sit for extended periods of two hours. Dr. Arcadio Alarcorn treated Johnson from May through October of 1980 for asthmatic wheezing, right shoulder pain, high blood pressure and a cysto rectocele. X-rays of Johnson's knees revealed changes compatible with mild or early changes of degenerative arthritis bilaterally. At the time of the examination no active chest disease was present. Dr. Thomas Lord, who also examined Johnson in 1980, concluded that she suffered from obesity, spondylolisthesis, mild to moderate chronic obstructive lung diseases which were aggravated by obesity, stasis dermatitis and varicose veins. Dr. Lord concluded that Johnson was not permanently or totally disabled, although she was somewhat limited, more on the basis of her obesity than on any other cause. Finally, Johnson was examined by Dr. James Browning in June of 1980. Dr. Browning diagnosed obesity, moderate incompetent varicose veins in both legs with minimal brawny edema and moderate pulmonary emphysema. He found that Johnson had the residual functional capacity for medium work stating that she could sit for eight hours, stand for four hours, and walk for two; continuously lift and carry 10 pounds, frequently lift 20 pounds and occasionally lift up to 25 pounds but never more; use both her feet for repetitive movements; frequently bend, and occasionally squat, crawl, climb, and reach. He found no work-related environmental restrictions. In the examinations made in the last year before the denial of the claims, no doctor found that Johnson was unable to work. Several found that she has the residual functional capacity for performing at least sedentary work.

At the time she filed her claims, June 20, 1979, Johnson was on a leave of absence from her job as a bus attendant for special education students. She testified at the hearing before an administrative law judge that she took the job so that she could be off her feet but that she had to be alert and ready to assist the children at all times, even if the bus was moving. Her duties consisted of carrying the students' books and crutches, pushing a wheelchair, caring for the children when they had seizures, walking with the students who were using walkers or crutches to assist them if they fell and assisted the children in buckling seat belts. At one point Johnson testified that she would lift a child who needed assistance. At another point she testified that the bus driver lifted the children while she got the wheelchair for the child. Johnson further testified that she pushed wheelchairs, was required to pick up papers or books and reached occasionally to help children. She did no squatting nor walking nor climbing except to enter the bus. In a prehearing exhibit she stated that the job involved three hours of walking, two hours of standing, one hour of sitting, frequent bending, occasional reaching, and no lifting or carrying. Johnson alleged that, because of pain in her legs and body, a breathing problem, and trouble with her varicose veins which occasionally would "pop" when she was on her feet too long, she had trouble getting up and down, in and out of the school bus and climbing the 22 stairs to punch her time card four times a day.

Johnson testified that, at the time of the hearing, she did very little housework but did make the bed, did the dishes, did some dusting and ran the sweeper (pushing with her left hand). She cannot do anything involving reaching. She drives about ten miles three or more times per week to a health spa for therapy on her shoulder, and does some grocery shopping. She goes to church twice on Sundays and sometimes during the week.

Johnson's prior jobs at a dry-cleaning establishment in 1970-73 and 1978-79, involved standing, lifting up to 40 pounds, carrying and bending. She also checked the money at the close of the day and deposited it in a safe. Her job as the manager of an ice cream parlor, which she held from 1963 to 1969, required frequent lifting, 80 to 90 pounds, mopping, filling the ice cream case, keeping the store in order, assisting customers, and taking inventory.

Johnson's initial applications for benefits were denied in July of 1979. Her petitions for reconsideration were affirmed. Johnson petitioned for a consolidated hearing before an administrative law judge who likewise denied her application for benefits after a hearing. The Appeals Council adopted the decision of the administrative law judge and denied Johnson's request for review.

The administrative law judge, who found Johnson to be "an individual approaching advanced age, with a limited education and previous work experience in semi-skilled work," found that Johnson suffers from stasis dermatitis and incompetent varicose veins in both legs with brawny edema, high blood pressure, chronic obstructive pulmonary emphysema, obesity and aches, pains and limitations in motion due to degenerative arthritis. The ALJ concluded that none of Johnson's impairments, either singly or in combination with one another, either met or were the medical equivalent of any of the Listings in the Listing of Impairments found in Title II of the Social Security Act and, therefore, did not automatically qualify her as disabled. Johnson was fifteen pounds too light to meet the obesity requirement and the administrative law judge rejected Johnson's argument that the listing for chronic venous insufficiency, Listing 4.12,*fn2 may be satisfied by a showing of recurrent ulceration that was not persistent. The administrative law judge assumed, arguendo, that Johnson was correct in treating the "recurrent or persistent ulceration" in the disjunctive and found that Johnson's problems were not frequent enough to be considered ...

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