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Johnson v. Commissioner of Social Security

United States District Court, C.D. Illinois, Rock Island Division

February 17, 2015

JANIS MARIE JOHNSON, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

REPORT AND RECOMMENDATION

JONATHAN E. HAWLEY, Magistrate Judge.

Now before the Court is the Plaintiff's, Janis Marie Johnson's, Motion for Summary Judgment (Doc. 10) and the Commissioner of Social Security's, Carolyn W. Colvin's, Motion for Summary Affirmance (Doc. 13). The Plaintiff appeals from the denial of her application for Social Security Disability Insurance Benefits under Title II of the Social Security Act. 42 USC § 405(g). This matter has been referred for a Report and Recommendation. Text Order entered March 11, 2014. The Motions are fully briefed, and for the reasons stated herein, the Court recommends that the Commissioner's Motion for Summary Affirmance be GRANTED and the Plaintiff's Motion for Summary Judgment be DENIED.[1]

I

On June 14, 2006, Johnson filed a Title II application for disability insurance benefits. (AR 99). In her application, Johnson alleged disability beginning on January 10, 2005. (AR 99). Her earnings records showed that the claimant had acquired sufficient quarters of coverage to remain insured through June 30, 2006. (AR 11, 741). The claim was denied initially on September 28, 2006, and was then denied upon reconsideration on December 8, 2006. On January 22, 2007, Johnson filed a timely request for hearing concerning her application for disability insurance benefits. (AR 64). A hearing was held before the Honorable John M. Wood (ALJ) on April 8, 2009, during which time Johnson was represented by a non-attorney. (AR 24). Following the hearing, the ALJ rendered an unfavorable decision on June 25, 2009. (AR 11-19). Johnson's request for review by the Appeals Council was denied on March 19, 2010. (AR 1). Johnson thereafter filed the matter in the United States District Court for the Central District of Illinois. After the parties entered into a joint stipulation for remand to the Commissioner, the Court entered an order remanding the case under sentence 4 of 42 USC § 405(g) and reversing the agency's decision on February 18, 2011. (AR 831). The Court ordered that upon remand, the agency was to consider the combined impact of all of Johnson's impairments and weight, to consider medical evidence of record including medical source opinions, and to consider Johnson's credibility. (AR 831). The Court further ordered that, if necessary, the Appeals Council had to remand the case for further development before an ALJ. (AR 831).

On September 22, 2011, the Appeals Council remanded the case back to an ALJ. (AR 837-39). A supplemental hearing was held before the same ALJ, Wood, on May 1, 2012, during which time Johnson was represented by an attorney. (AR 760). Following the supplemental hearing, on May 18, 2012 the ALJ determined that Johnson was not disabled through the date last insured (June 30, 2006). (AR 750). The Appeals Council refused to assume jurisdiction in a decision dated September 11, 2013. See (Doc. 10-1 at pg. 3).[2] Thus, the ALJ's decision of May 18, 2012 is the final decision of the Commissioner. Johnson filed the instant civil action seeking review of the ALJ's decision on November 7, 2013.

II

At the time she applied for benefits, Johnson was a 50 year old married woman living with her husband in Roseville, Illinois. (AR 99-101). She received an Associate Degree in nursing and previously worked as a Registered Nurse. (AR 27, 890-93). She has been diagnosed with fibromyalgia, a degenerative back disorder, obesity, and depression. (AR 135, 425, 252, 666). She was employed as a nurse at the time she resigned in January 2005. (AR 28). In 2006, during the period under review, the Plaintiff worked briefly at Cottage Home Options, a home health agency, as a pediatric nurse taking care of children in their homes. (AR 28). She stayed at Cottage Home Options for only a matter of weeks until she stopped that work. (AR 28).

At the first hearing before the ALJ on April 8, 2009, Johnson testified that she resigned from the job she had in 2005 because she was battling depression and could not get it resolved. (AR 29). She testified that she had become friends with her boss, but then her boss began to act towards Johnson as if Johnson could do nothing right. (AR 33). Johnson testified that she stuck it out with that boss for three months but her boss's treatment towards her contributed to her leaving her job in January 2005. (AR 33). She testified that the depression hung on for another year after she quit her job in January 2005. (AR 34). Johnson testified that her depression finally resolved itself after about two and a half years. (AR 31). She also testified that the medicine combination of Elavil and nortriptyline took four months on that drug combination, and her depression finally got straightened out. (AR 32). She said she was put on nortriptyline in November of 2005. (AR 34).

She testified that she left her job in 2006 due to back pain. Specifically, the Plaintiff testified that she woke up on March 20, 2006 with back problems and that her back has been in pain ever since. (AR 29-30). At the time of the hearing, April 2009, Johnson said that she was in constant pain from the time she woke up in the morning to the time she went to bed at night. (AR 29). She said she could not sit for very long, and that she laid down most of the day because she could not sit in the recliner anymore or a soft chair of any kind. (AR 29). Though she was once an organist at her church, Johnson testified that she had to resign from that due to her back pain. (AR 35). She said she was not even able to attend church because of the sciatic pain but that Dr. McManus started her on lidocaine patches so that she was able to sit a little better and was able to go back to church three out of four weeks. (AR 36). She also testified to previous treatments for her back pain including cortisone shots, the first in March 2006, epidurals, the first in June 2006, and physical therapy. (AR 38). None of which, she said, worked. (38).

Johnson testified that she backed off from regular housework after she had a Discogram[3] on January 2, 2007, and that maybe even before then she had backed off from regular housework. (AR 37). She said that it was after the date of the Discogram that seemed to be the cutoff of most activities for her. (AR 37). She also testified that on August 21, 2007, she tried pelvic traction at physical therapy which made her back pain even worse and the pain became constant. (AR 30-31). On November 9, 2007, a spinal cord stimulator was surgically implanted in Johnson's back, which she said provided her 20% relief. (AR 40). Finally, the Plaintiff testified, "I always get up and around and do stuff because if I don't the pain is worse. I have to get some - you know I have to move. Whether it be, you know, doing laundry or some dishes or something. I can't just lay in bed." (AR 41). She said that she did maybe one load of laundry per day because the more she would bend and stretch, the worse her back and leg pain would get. (AR 41).

At the supplemental hearing before the ALJ on May 1, 2012, Johnson did not provide any further testimony. (AR 760-76). Rather, ALJ Wood posed his hypothetical questions to the Vocational Expert (VE), George Paprocki (Paprocki). The ALJ posed as his first hypothetical question to Paprocki:

[A]ssume the past work same as the claimant's; exertional capacity limited to light work; no climbing of ladders, ropes, or scaffolds; other postural functions could be performed occasionally; only occasional pushing or pulling with the lower extremities; need to avoid concentrated exposure to extreme temperatures; need to avoid exposure to environmental hazards such as unprotected heights and dangerous machinery; limitation to the performance of simple or repetitive tasks that involve little or no change in work routine.

(767). Paprocki responded that Johnson's past work would be out. (AR 767). The ALJ asked Paprocki to add the vocational factor of "closely approaching advanced age." The ALJ asked whether, with regard to all of "those vocational factors, " there would have been any unskilled, light jobs in the national and/or regional economy that such a person could have performed with no transfer ability of skills. (AR 768). Paprocki replied that the following were representative jobs that could be performed by such a person: housekeeping cleaner; office helper; and photocopy machine operator. (AR 768-70). The ALJ further questioned whether those representative jobs provided one with the opportunity to be able to meet the competitive work production standards of an employer on a per shift as opposed to a per hour basis. (AR 770). Paprocki responded that, "Basically, that's the case" and that there would be some latitude for speeding up, slowing down, and doing jobs differently. (AR 771). The ALJ also asked whether there was any latitude with regard to how the representative jobs were performed with regard to alternating sitting and standing to any extent other than what is normally associated with light work. (AR 771-72). Paprocki responded that the cleaning jobs would not have much in the way of any latitude beyond anything other than standing posture. (AR 772).

III

In his written decision, the ALJ applied the standard five-step sequential evaluation process and ultimately found that Johnson was not disabled through the last date she was insured, June 30, 2006. (AR 750). The ALJ determined that Johnson satisfied Step One because she had not engaged in substantial gainful activity during the period since her alleged onset date of January 10, 2005. (AR 743). At Step Two, the ALJ found that Johnson suffered from the following severe impairments: fibromyalgia, a degenerative back disorder, obesity, and depression. (AR 743). At Step Three, the ALJ found that the claimant did not have an impairment or combination of impairments that met or medically equaled the severity of one of the listed impairments. (AR 743-44). Specifically, the ALJ found that Johnson's back condition did not satisfy Listing 1.04 (Disorders of the spine) because Johnson retained the ability to ambulate and perform fine and gross movements effectively and because the record did not establish the requisite items.[4] (AR 744). The ALJ further found that that Johnson's mental impairment did not meet or medically equal the criteria of listing 12.04 (Affective Disorders) where Johnson did not meet the "paragraph B" criteria. (AR 744). The ALJ determined that Johnson had mild restriction in activities of ...


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