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Johnson v. Colvin

United States District Court, D. Kansas

March 30, 2015

DIEMETRIUS JOHNSON, Plaintiff,
v.
CAROLYN W. COLVIN, Commissioner of Social Security, Defendant.

MEMORANDUM AND ORDER

J. THOMAS MARTEN, Chief District Judge.

Plaintiff Diemetrius Johnson has applied for Social Security disability benefits. His application was denied by the Administrative Law Judge (ALJ) on March 14, 2012, a decision affirmed by the Appeals Council on July 19, 2013. Johnson advances three allegations of error in the present appeal: (1) that the ALJ failed to consider the findings of treating provider Christopher Ebberwein (Ph.D.), (2) that the ALJ erred in relying on the assessment of Dr. Gerald Siemsen, who in turn simply ratified the assessment of the single decisionmaker, and (3) the medical source statement of Dr. Moser supports the finding that Johnson cannot stoop, thereby eliminating any possibility of employment. The court finds no error and affirms the decision of the Commissioner.

Plaintiff-claimant Johnson was born in 1970, and has stated that he became disabled beginning January 15, 2007. He has a high school education, and has been employed as a cook, a washing machine operator, and a temporary worker. He has cited a variety of ailments, including fibromyalgia, bursitis, arthritis, migraines, and depression. The detailed facts of the case, which are incorporated herein, are set forth independently in the ALJ's opinion (Dkt. 11-2, Tr. 16-27), the brief of Johnson (Dkt. 16, at 3-60), and the Commissioner. (Dkt. 21, at 2-10).

Johnson first applied for benefits on May 12, 2008. On January 22, 2010, the ALJ found that Johnson could not return to his old work, but could perform other work and therefore was not disabled. This court subsequently affirmed the decision of the Commissioner. Johnson v. Astrue, No. 11-1112-JWL (D. Kan. July 25, 2012) (Dkt. 22). Johnson then reapplied for benefits, adjusting the disability onset date to January 20, 2010. Johnson was last insured for benefits on September 30, 2010. Accordingly, the relevant period for the case is January 20 to September 30, 2010.

The ALJ concluded that Johnson suffered from the impairments of obesity, fibromyalgia, migraines, bilateral carpal tunnel, degenerative disk disease, and depression, but that these, whether individually or in combination, did not meet the severity of any of the impairments listed in 20 C.F.R. Part 404, Subpart P, App. 1, 20 C.F.R. §§ 404.1520(d), 404.1525, and 404.1526. (Tr. 16-18). Johnson retained the ability to lift 20 pounds occasionally and 10 pounds frequently. He can push or pull the same weight, but he should only occasionally climb ladders, ropes or scaffolds. He must avoid extreme heat and dangerous moving machinery. He can perform frequent, but not continuous, fingering and handling, and can do jobs with simple instructions and which do not require frequent or close public contact. With normal breaks, he can stand or walk for about six hours out of a standard workday, or sit for an equivalent period. (Tr. 18-19). The ALJ further determined that Johnson retained the residual functional capacity (RFC) to perform the full range of light work, and that his non-exertional limitations were not substantial. (Tr. 28). As a result, there remain a significant number of jobs which Johnson is able to perform. ( Id. )

The Commissioner determines whether an applicant is disabled pursuant to a five-step sequential evaluation process (SEP) pursuant to 20 C.F.R. §§ 404.1520 and 416.920. The applicant has the initial burden of proof in the first three steps: he must show that he is engaged in substantial gainful activity, that he has a medically-determinable, severe ailment, and whether that impairment matches one of the listed impairments of 20 C.F.R. pt. 404, subpt P., app. 1. See Ray v. Bowen, 865 F.2d 222, 224 (10th Cir. 1989). If a claimant shows that he cannot return to his former work, the Commissioner has the burden of showing that he can perform other work existing in significant numbers in the national economy. 20 C.F.R. § 404.1520(f). See Channel v. Heckler, 747 F.2d 577, 579 (10th Cir. 1984).

The court's review of the Commissioner's decision is governed by 42 U.S.C. 405(g) of the Social Security Act. Under the statute, the Commissioner's decision will be upheld so long as it applies the "correct legal standard, " and is supported by "substantial evidence" of the record as a whole. Glenn v. Shalala, 21 F.3d 983, 984 (10th Cir. 1994).

Substantial evidence means more than a scintilla, but less than a preponderance. It is satisfied by evidence that a reasonable mind might accept to support the conclusion. The question of whether substantial evidence supports the Commissioner's decision is not a mere quantitative exercise; evidence is not substantial if it is overwhelmed by other evidence, or in reality is a mere conclusion. Ray, 865 F.2d at 224. The court must scrutinize the whole record in determining whether the Commissioner's conclusions are rational. Graham v. Sullivan, 794 F.Supp. 1045, 1047 (D. Kan. 1992).

This deferential review is limited to factual determinations; it does not apply to the Commisioner's conclusions of law. Applying an incorrect legal standard, or providing the court with an insufficient basis to determine that correct legal principles were applied, are grounds for reversal. Frey v. Bowen, 816 F.2d 508, 512 (10th Cir. 1987).

As a preliminary matter, the court notes that plaintiff presents three specific assertions of error (Dkt. 16 at 61, 66, 69, presented as "Argument I, " "Argument II, " and "Argument III"), all of which are addressed below. However, the plaintiff also asserts - in passing as a "Summary Argument" - that the ALJ improperly assessed his credibility, finding him to be "a blatant liar, " a determination which "is founded on hubristic assumptions." ( Id. at 60). The plaintiff's argument is indeed "summary, " in the sense that plaintiff makes no attempt to go beyond this purely conclusory allegation.

The court finds no basis for finding erroneous the ALJ's assessment that Johnson was not fully credible. Rather, the ALJ's opinion reflects a thoughtful and measured assessment of the entire record. The ALJ explicitly considered Johnson's credibility in light of "the entire case record." (Tr. 19). This evidence was measured against the standards for assessment set forth in 20 C.F.R. § 404.1929(c), 416.929(c), and S.S.R. 96-7p, specifically:

1) the claimant's activities of daily living, 2) the location, duration, frequency, and intensity of pain or other symptoms, 3) precipitating and aggravating factors, 4) the type, dosage, effectiveness, and side effects of medications taken to alleviate pain or other symptoms, 5) treatment, other than medication, for relief of pain or other symptoms, 6) any measures other than medication used to relieve pain or other symptoms, and 7) any other factors concerning functional limitations and restrictions due to pain or other symptoms produced by medically determinable impairments.

(Tr. 19)

Here, the ALJ noted multiple facts which undercut Johnson's credibility. For example, Johnson has stated that he has been unable to lift more than 10 pounds since 2009. However, the medical record indicates that on one occasion (Exh. 5F), Johnson reported injuring himself while exercising by lifting weights of 50 to 60 pounds. The ALJ noted that "[t]he only reported consequence" of the incident "was some discomfort in his shoulders." (Tr. 19). More importantly, the ALJ ...


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