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Johnson v. Berryhill

United States District Court, S.D. Indiana, Indianapolis Division

March 1, 2017

DAVID A. JOHNSON, Plaintiff,
v.
NANCY A. BERRYHILL[1], Acting Commissioner of the Social Security Administration, Defendant.

          ORDER ADOPTING THE MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION AS MODIFIED

          TANYA WALTON PRATT, JUDGE United States District Court

         Plaintiff David Johnson (“Mr. Johnson”) appeals the Administrative Law Judge's decision denying his application for Supplemental Security Income under Title XVI of the Social Security Act (“the Act”). Pursuant to 28 U.S.C. § 636, the Court referred the matter to the Magistrate Judge, who submitted his Report and Recommendation on December 2, 2016, recommending that the decision of the Defendant Commissioner of the Social Security Administration (“the Commissioner”) be affirmed. (Filing No. 26.) Mr. Johnson timely filed objections to the Magistrate Judge's Report and Recommendation (Filing No. 27), and the Commissioner did not file a response. For the reasons set forth below, the Court OVERRULES Mr. Johnson's objections and ADOPTS the Magistrate Judge's Report and Recommendation AS MODIFIED, AFFIRMING the decision of the Commissioner.

         I. BACKGROUND

         A. Procedural History.

         Mr. Johnson filed an application for Disability Insurance Benefits on October 1, 2012, and an application for Supplemental Security Income on October 2, 2012, alleging an onset of disability date of March 25, 2012. (Filing No. 14-2 at 20.) Mr. Johnson alleges disability due to fibromyalgia and degenerative disc disease. (Filing No. 14-2 at 22-24.) His applications were denied initially and upon reconsideration. (Filing No. 14-2 at 20.) Mr. Johnson filed a timely written request for a hearing, which was held on November 5, 2013 before Administrative Law Judge Hortensia Haaversen (“the ALJ”). (Filing No. 14-2 at 20.) The ALJ issued a decision on May 30, 2014, denying the application. (Filing No. 14-2 at 17.) Thereafter, the Appeals Council denied Mr. Johnson's request for review, making the ALJ's decision the final decision of the Commissioner for purposes of judicial review. (Filing No. 14-2 at 2.) Mr. Johnson timely filed an appeal with this Court on February 23, 2016. (Filing No. 16.)

         On November 18, 2016, the undersigned referred this case to Magistrate Judge Mark J. Dinsmore for a report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B). (Filing No. 25.) On December 2, 2016, the Magistrate Judge filed his Report and Recommendation (Filing No. 26) and on December 16, 2016, Mr. Johnson filed an Objection. (Filing No. 27.)

         B. Relevant Medical History.

         A few specific elements of Mr. Johnson's medical history are relevant here, and the Court limits its discussion to those. Mr. Johnson saw his treating physician, Dr. Varsha Nagarsenker, on a number of occasions during the relevant time period. On May 31, 2011, Mr. Johnson complained of back pain, joint pain, swelling, weakness, and paresthesias. (Filing No. 14-7 at 297.) Dr. Nagarsenker observed weakness in several extremities, paraspinal tenderness, cervical spine spasm, and severe tenderness in the cervical and lumbar spine. (Filing No. 14-7 at 297.) On August 31, 2011, Mr. Johnson again saw Dr. Nagarsenker, and complained of fatigue, pain, joint swelling, muscle cramps, stiffness, and paresthesias. (Filing No. 14-7 at 295.) He reported that on bad days, he could not sit for more than five or ten minutes at a time without having to change positions. (Filing No. 14-7 at 295.) Dr. Nagarsenker noted paraspinal tenderness and spasms in the spine, grip strength of 4/5, and some difficulty balancing. (Filing No. 14-7 at 295.)

         Mr. Johnson saw consultative examiner Dr. Wallace Gasiewicz on November 27, 2012. Dr. Gasiewicz reviewed the medical documentation provided by the Social Security Administration and performed a physical examination of Mr. Johnson. (Filing No. 14-7 at 88.) Dr. Gasiewicz recorded that Mr. Johnson self-reported that an “EMG showed polyneuropathy” and that an “MRI showed white matter abnormalities.” (Filing No. 14-7 at 88.) Dr. Gasiewicz found that “[m]uscle strength and tone are normal, ” and that “[g]rip strength was normal at 5/5 bilaterally.” (Filing No. 14-7 at 90.) He found that Mr. Johnson had “the ability to pick up a coin and button a shirt.” (Filing No. 14-7 at 90.) He concluded that although Mr. Johnson presented using a cane, “[c]linical evidence does not support use of an ambulatory aid.” (Filing No. 14-7 at 90.) He concluded that Mr. Johnson's “Romberg [test] indicates that he is acting…it is a classical response of a malingerer.” (Filing No. 14-7 at 90-91.) Dr. Gasiewicz also stated that he “[has] no laboratory evidence of any muscle or nerve disease, ” and that he “would like to see his alleged positive EMG and MRI.” (Filing No. 14-7 at 91.) Dr. Gasiewicz also stated that he was “not sure if [Mr. Johnson] understands his history or is embellishing what he can.” (Filing No. 14-7 at 90.)

         Mr. Johnson again visited Dr. Nagarsenker in March of 2013. He complained of constant pain all over, that certain days were worse than others, and that he was “dysfunctional” on bad days. (Filing No. 14-8 at 398.) He reported that he could not cook or clean, so his wife “did everything.” (Filing No. 14-8 at 398.) He stated that his wife had to help him button his clothes and tie his shoes. (Filing No. 14-8 at 398-99.) Mr. Johnson also reported that he could not sit for longer than 20 minutes and could not stand for more than 10 minutes. (Filing No. 14-8 at 398.) Dr. Nagarsenker observed decreased range of motion in Mr. Johnson's right and left shoulders, left ankle, and back. (Filing No. 14-8 at 399.) She also observed decreased strength in the right and left hip and back spasms. (Filing No. 14-8 at 399.) In her treatment notes, she stated, “I don't think he can have gainful employment and am surprised he has been denied disability.” (Filing No. 14-8 at 399.)

         Mr. Johnson testified at his disability hearing. He testified that he lives with his wife, who is disabled, and his elderly mother. (Filing No. 14-2 at 74.) He stated that, regarding outdoor work at his home, “I do what gets done, ” including mowing the lawn with a riding lawnmower and picking up sticks. (Filing No. 14-2 at 75; Filing No. 14-2 at 87.) He also stated that he helps around the house by folding laundry and changing lightbulbs. (Filing No. 14-2 at 76.) He testified that he works on cars when he is able. (Filing No. 14-2 at 88.)

         C. The ALJ's Decision.

         Using the five-step sequential evaluation set forth by the Social Security Administration in 20 C.F.R. § 404.1520(a)(4), the ALJ ultimately concluded that Mr. Johnson is not disabled. (Filing No. 14-2 at 31.) At step one of the analysis, the ALJ found that Mr. Johnson meets the insured status requirements of the Act through June 30, 2013 and has not engaged in substantial gainful activity[2] since his amended alleged onset date of May 25, 2012. (Filing No. 14-2 at 22.) At step two of the analysis, the ALJ found that Mr. Johnson has the following severe impairments: fibromyalgia and degenerative disc disease of the cervical spine status post prior fusion. (Filing No. 14-2 at 22.)

         At step three, the ALJ found that Mr. Johnson does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments. (Filing No. 14-2 at 23.) The ALJ considered various listings, but ultimately found that Mr. Johnson did not meet any of them. (Filing No. 14-2 at 23.) After step three but before step four, the ALJ found that Mr. Johnson has the Residual Functional Capacity (“RFC”) to work as follows:

…perform light work as defined in 20 CFR 404.1567(b) and 416.967(b), except that: he can lift, carry, push, or pull 20 pounds occasionally and 10 pounds frequently; he can stand and walk about 6 hours in an 8 hour day and sit 6 hours; he can occasionally balance, stoop, crouch, kneel, and climb stairs or ramps, and he can do no crawling and no climbing of ladders, scaffolds or ropes…

(Filing No. 14-2 at 24.) In making his RFC determination, the ALJ stated that he was placing significant weight on the opinion of Dr. Gasiewicz, and little weight on the opinion of ...


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