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Johnstone v. Berryhill

United States District Court, N.D. Indiana, Fort Wayne Division

April 3, 2018




         Plaintiff Kelly E. (Raske) Johnstone seeks review of the final decision of the Commissioner of the Social Security Administration (Commissioner) denying her application for disability and disability insurance benefits. The Plaintiff argues that the Commissioner wrongfully denied her Social Security Disability benefits and erred by overemphasizing her daily living activities, failing to identify scoliosis as a severe impairment, failing to adequately consider the combined effects of her impairments, and failing to credit her lengthy work history.


         On October 28, 2013, the Plaintiff filed a Title II application for a period of disability and disability insurance benefits and, on October 22, 2013, filed a Title XVI application for supplemental security income, alleging disability beginning on August 23, 2012. (R. 22.) Her claim was denied initially on March 11, 2014, and upon reconsideration on April 12, 2014. (Id.) On September 3, 2015, the Plaintiff appeared with counsel and testified at a hearing before an administrative law judge (ALJ), along with her uncle, Ken Kitchen. (Id.) Amy Kutschback, a vocational expert (VE), also appeared and testified at the hearing. (Id.) On October 29, 2015, the ALJ denied the Plaintiff's application, finding she was not disabled as of her alleged onset date. (R. 22-39.) On February 28, 2017, the ALJ's decision became the final decision of the Commissioner when the Appeals Council denied the Plaintiff's request for review of the ALJ's decision. (R. 1-4.)

         On April 29, 2017, the Plaintiff filed this claim in federal court against the Acting Commissioner of the Social Security Administration.


         Disability is defined as the “inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A). To be found disabled, a claimant must demonstrate that her physical or mental limitations prevent her from doing not only her previous work, but also any other kind of gainful employment that exists in the national economy, considering her age, education, and work experience. § 423(d)(2)(A).

         An ALJ conducts a five-step inquiry in deciding whether to grant or deny benefits. 20 C.F.R. § 404.1520. The first step is to determine whether the claimant no longer engages in substantial gainful activity (SGA). Id. In the case at hand, the ALJ found that the Plaintiff has been unable to engage in SGA since her alleged onset date, September 15, 2014. (R. 24.)

         In step two, the ALJ determines whether the claimant has a severe impairment limiting her ability to do basic work activities under § 404.1520(c). In this case, the ALJ determined that the Plaintiff had multiple severe impairments, including degenerative disc disease, obesity, affective disorder, and learning disorder. (R. 24.) ALJ found that these impairments caused more than minimal limitations in the Plaintiff's ability to perform the basic mental and physical demands of work. (Id.) The ALJ found that the Plaintiff's other alleged impairments, including cellulitis in the long finger, scoliosis, and anxiety and depression were not severe impairments. (R. 25, 29.)

         Step three requires the ALJ to “consider the medical severity of [the] impairment” to determine whether the impairment “meets or equals one of the [the] listings in appendix 1 . . . .” § 404.1520(a)(4)(iii). If a claimant's impairment(s), considered singly or in combination with other impairments, rise to this level, there is a presumption of disability “without considering [the claimant's] age, education, and work experience.” § 404.1520(d). But, if the impairment(s), either singly or in combination, fall short, the ALJ must proceed to step four and examine the claimant's “residual functional capacity” (RFC)-the types of things she can still do physically, despite her limitations-to determine whether she can perform “past relevant work, ” § 404.1520(a)(4)(iv), or whether the claimant can “make an adjustment to other work” given the claimant's “age, education, and work experience.” § 404.1520(a)(4)(v).

         The ALJ determined that the Plaintiff's impairments did not meet or equal any of the listings in Appendix 1 and that she had the RFC to perform light work as defined in 20 C.F.R. 404.1567(b) and 416.967(b) except she can:

Lift, carry, push, and pull 20 pounds occasionally and 10 pounds frequently; sit 6 out of 8 hours; stand and or walk 6 out of 8 hours; occasionally climb ramps and stairs but never climb ladders, ropes or scaffolding; occasionally balance[, ] stoop, kneel, crouch, and crawl; avoid unprotected heights and avoid concentrated exposure to dangerous or hazardous machinery, meaning machinery that has exposed moving parts that are used to cut or grind and that fails to stop when human contact is lost, or machinery that has an open flame or hot surfaces that would burn someone if they fell onto them. The claimant can work in the same building as these machines, but cannot work with or around them. The claimant can understand, remember, and carry out rote or routine instructions or tasks that require the exercise of little independent judgment or decision-making and can be learned from a short demonstration up to 30 days, but cannot make judgments or decisions for more complex or detailed types of tasks, such as analyzing compiled data, directing or planning others' activities, supervising employees, or performing tasks that vary from day to day and require new learning on an unpredictable basis. She must work in a stable setting where there is little change in terms of tools used, the processes employed, or the setting itself, and change, where necessary, is introduced gradually. While all competitive employment has production requirements, should not work in an environment that is stringently production or quota-based, and thus may not perform fast paced assembly line work. She can meet production requirements that allow her to sustain a flexible and goal oriented pace. The claimant can only have occasional and superficial contact with the general public and would not be able to perform a job that entailed work-related interaction and conversations with the general public. Lastly, she should work where supervisors are onsite, readily available, and make periodic checks on workers and are always in the immediate area.

(R. 28.)

         After analyzing the record, the ALJ concluded that the Plaintiff was not disabled as of her alleged onset date. The ALJ evaluated the objective medical evidence and the Plaintiff's subjective complaints and found that the Plaintiff's medically determinable impairments could reasonably be expected to cause some of the alleged symptoms. (R. 30.) But, the ALJ found that the Plaintiff's testimony and prior statements regarding the intensity, persistence, and limiting effects of these symptoms were “not entirely credible.” (Id.) The Plaintiff testified regarding her work history, which included a cashier position she held for seven years prior to 2012, a cashier position she held for two months in 2012, and that she was looking for work at the time of her hearing. (R. 29.) She testified that “she could stand for only about 10 consecutive minutes and she often alternated sitting and standing.” (Id.) The Plaintiff stated she was able to manage her personal care, sweep her floors with breaks, cook meals, did laundry once a week, washed dishes with breaks, and shopped for groceries once a month. (R. 30.) The Plaintiff's uncle testified that she had a history of ...

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