Johnson v. Commissioner of Social Security

Filing 16

ORDER re 2 Complaint filed by Elizabeth D Johnson. The Court finds that a remand for an award of benefits is appropriate. Signed by Senior Judge Donald E O'Brien on 2/7/13. (djs)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
WESTERN DIVISION
ELIZABETH D. JOHNSON,
Plaintiff,

No. 12-CV-4052-DEO

v.
ORDER

MICHAEL J. ASTRUE,
Commissioner of Social
Security,
Defendant.

____________________

I.

INTRODUCTION
This matter is before the Court pursuant to Elizabeth

Johnson’s (hereinafter Ms. Johnson’s) Complaint, requesting
disability benefits under Title II of the Social Security Act
(the “Act”), 42 U.S.C. §§ 401 et seq.

This Court has

authority to review the final decision of the Commissioner of
Social Security (Commissioner) pursuant to 42 U.S.C. § 405(g).
The parties appeared by phone for hearing on December 18,
2012.

After

hearing,

the

Court

took

advisement and now enters the following.

the

matter

under

II.

FACTUAL BACKGROUND
At the time of the hearing, Ms. Johnson was a 25 year old

woman residing in Spencer, Iowa. At that time, she was single
but lived with her boyfriend. She has an 11th grade education
and completed a 72 hour program to become a certified nurse
assistant.

She has a limited employment history, working as

a nursing assistant and in various retail settings.

It is

undisputed in the record that Ms. Johnson has several severe
mental

disorders,

including

anxiety

disorder

and

bipolar

disorder.
III.

PROCEDURAL HISTORY
On April 28, 2010, Ms. Johnson filed an application for

disability insurance benefits under Title II of the Social
Security Act (“Act”), 42 U.S.C. §§ 401 et seq.
56, 58, 138-41.
supplemental

Docket #7, p.

Ms. Johnson also filed an application for

security

income

benefits

(“SSI”)

based

on

disability under Title XVI of the Act, 42 U.S.C. §§ 1381 et
seq. Tr. 57, 59, 142-45.

The claims were denied initially

(Tr. 78-80), and on reconsideration (Tr. 86-94).

On December

23, 2011, following a hearing, an administrative law judge
(“ALJ”) found plaintiff was not under a disability as defined
2

in the Act (Tr. 8-24).
making

the

ALJ’s

The Appeals Council declined review,

decision

Commissioner (Tr. 1-5).

the

final

decision

of

the

Ms. Johnson then filed the present

complaint.
Under the authority of the Social Security Act, the
Social Security Administration has established a five-step
sequential

evaluation

process

for

determining

individual is disabled and entitled to benefits.
404.1520.

The five successive steps are:

whether

an

20 C.F.R. §

(1) determination

of whether a plaintiff is engaged in “substantial gainful
activity,” (2) determination of whether a plaintiff has a
“severe medically determinable physical or medical impairment”
that lasts for at least 12 months, (3) determination of
whether a plaintiff’s impairment or combination of impairments
meets or medically equals the criteria of a listed impairment,
(4) determination of whether a plaintiff’s Residual Functional
Capacity

(RFC)

indicates

an

incapacity

to

perform

the

requirements of his past relevant work, and (5) determination
of whether, given a Plaintiff’s RFC, age, education and work
experience, a plaintiff can “make an adjustment to other
work.”

20 C.F.R. § 404.1520(4)(I-v).

3

At step one, if a plaintiff is engaged in “substantial
gainful activity” within the claimed period of disability,
there

is

no

disability

404.1520(a)(4)(I).

during

that

time.

20

C.F.R.

§

At step 2, if a plaintiff does not have a

“severe medically determinable physical or mental impairment”
that lasts at least 12 months, there is no disability.
C.F.R. § 404.1520(a)(4)(ii).
impairments

meet

or

20

At step 3, if a plaintiff’s

medically

equal

the

criteria

of

an

impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix
1,

and

last

at

least

12

months,

a

plaintiff

is

deemed

disabled. 20 C.F.R. § 404.1520(e). Before proceeding to step
4

and

5,

the

ALJ

must

determine

Functional Capacity [RFC].
still

do”

despite

404.1545(a)(1).

their

a

plaintiff’s

Residual

RFC is the “most” a person “can
limitations.

20

C.F.R.

§

The RFC an ALJ assigns a plaintiff has been

referred to as the “most important issue in a disability case
. . . .” Malloy v. Astrue, 604 F. Supp. 2d 1247, 1250 (S.D.
Iowa 2009) (citing McCoy v. Schweiker, 683 F.2d 1138, 1147
(8th Cir. 1982)(en banc)). When determining RFC, the ALJ must
consider

all

of

the

relevant

evidence

and

all

of

the

Plaintiff’s impairments, even those which are not deemed

4

severe, as well as limitations which result from symptoms,
such as pain.

20 C.F.R. § 404.1545(a)(2) and (3).

An ALJ

“may not simply draw his own inferences about a plaintiff’s
functional

ability

from

medical

reports.”

Strongson

v.

Barnhart, 361 F.3d 1066, 1070 (8th Cir. 2004).
At step 4, if, given a plaintiff’s RFC, a plaintiff can
still

perform

disability.

their

past

relevant

work,

20 C.F.R. § 404.1520(a)(4)(iv).

there

is

no

At step 5, if,

given a plaintiff’s RFC, age, education, and work experience,
plaintiff can make an adjustment to other work, there is no
disability.

20

416.920(a)(4)(v).

C.F.R.

§§

404.1520(a)(4)(v)

and

This step requires the ALJ to provide

“evidence” that a plaintiff could perform “other work [that]
exists in significant numbers in the national economy.”
C.F.R. § 404.1560(c)(2).

20

In other words, at step 5, the

burden of proof shifts from a plaintiff to the Commissioner of
the S.S.A..

Basinger v. Heckler, 725 F.2d 1166, 1168 (8th

Cir. 1984).

The ALJ generally calls a Vocational Expert (VE)

to aid in determining whether this burden can be met.
In this case, the ALJ applied the appropriate methodology
and determined that:

5

The Claimant meets the insured status
requirements ... [and] has not engaged in
substantial gainful activity since February
25, 2012...The claimant has the following
severe
impairments:
bipolar
disorder;
depression;
panic
disorder
(without
agoraphobia); generalized anxiety disorder;
post-traumatic stress disorder; attention
deficit hyperactivity disorder (combative
type); borderline personality disorder;
obesity; and chronic low back pain...
Tr. 13.
The claimant does not have an impairment or
combination of impairments that meets or
medically equals the severity of one of the
listed
impairments
...
The
claimant
testified ... her weight is approximately
250 pounds. The claimant’s corresponding
body mass index is 45.7, is Level III
obesity... but there is no indication that
the claimant’s obesity, alone or in
combination with any other impairment,
given rise to a condition of listing-level
severity. The severity of the claimant’s
mental impairments, considered singly and
in combination, do not meet or medically
equal the criteria of listings 12.02,
12.04, 12.06, and 12.08. In making this
finding, the undersigned has considered
whether the “paragraph B” criteria are
satisfied...the undersigned cannot find the
claimant’s mental impairments cause more
than mild restriction in activities of
daily living...the undersigned finds that
the claimant’s mental impairments cause
mild restriction in social functioning,
there is no medical evidence these symptoms
rise to even a “moderate” level of
limitations...While the undersigned finds
moderate restriction in concentration,
6

persistence or pace, there is no medical
evidence these symptoms rise to a “marked”
level
of
limitations,
nor
did
the
claimant’s
testimony
support
such
a
finding...As
for
episodes
of
decompensation,
the
claimant
has
experienced
no
episodes
of
decompensation...Although records indicate
two periods of inpatient mental health
treatment subsequent to the claimant’s
alleged
disability
onset
date,
each
admission appears to have last only a few
days.
Because the claimant’s mental
impairments do not cause at least two
“marked” limitations or one “marked”
limitation and “repeated” episodes of
decompensation, each of extended duration,
the
“paragraph
B”
criteria
are
not
satisfied.
Tr. 14-16.
After careful consideration of the entire
record, the undersigned finds that the
claimant has the residual functional
capacity to perform light work...In making
this
finding,
the
undersigned
has
considered all symptoms and the extent to
which these symptoms can reasonably be
accepted as consistent with the objective
medical evidence and other evidence...After
careful consideration of the evidence, the
undersigned finds that the claimant’s
medically determinable impairments could
reasonably be expected to cause the alleged
symptoms;
however,
the
claimant’s
statements
concerning
the
intensity,
persistence and limiting effects of these
symptoms are not credible to the extent
they are inconsistent with the above
residual
functional
capacity
assessment...At the hearing, both the
7

claimant and her representative made
reference to notes as to the claimant’s
inability to work from both Dr. Segreto and
Clifford McNaughton, MD, adding that they
have
excused
her
from
work
since
2009...However, such statements were given
little weight by the undersigned.
These
opinions are quite conclusory, providing
very little explanation of the evidence
relied on in forming the opinion.
Tr. 17-19.
IV.

STANDARD OF REVIEW
This

Court's

role

in

review

of

the

ALJ's

decision

requires a determination of whether the decision of the ALJ is
supported by substantial evidence on the record as a whole.
See 42 U.S.C. § 405(g); Finch v. Astrue, 547 F.3d 933, 935
(8th

Cir.

2008).

Substantial

evidence

is

less

than

a

preponderance but enough that a reasonable mind might find it
adequate to support the conclusion in question.

Juszczyk v.

Astrue, 542 F.3d 626, 631 (8th Cir. 2008) (citing Kirby v.
Astrue, 500 F.3d 705, 707 (8th Cir. 2007)).

This Court must

consider both evidence that supports and detracts from the
ALJ's decision.

Karlix v. Barnhart, 457 F.3d 742, 746 (8th

Cir. 2006) (citing Johnson v. Chater, 87 F.3d 1015, 1017 (8th
Cir. 1996)).

In applying this standard, this Court will not

reverse the ALJ, even if it would have reached a contrary
8

decision, as long as substantial evidence on the record as a
whole supports the ALJ's decision.

Eichelberger v. Barnhart,

390 F.3d 584, 589 (8th Cir. 2004).

The ALJ's decision shall

be reversed only if it is outside the reasonable "zone of
choice."

Hacker v. Barnhart, 459 F.3d 934, 936 (8th Cir.

2006) (citing Culbertson v. Shalala, 30 F.3d 934, 939 (8th
Cir. 1994)).
This Court may also ascertain whether the ALJ's decision
is based on legal error.
(8th Cir. 2001).

Lauer v. Apfel, 245 F.3d 700, 702

If the ALJ applies an improper legal

standard, it is within this Court's discretion to reverse
his/her decision.

Neal v. Barnhart, 405 F.3d 685, 688 (8th

Cir. 2005); 42 U.S.C. 405(g).
V.

ISSUES
In her brief, Ms. Johnson presents one primary issue,

that the ALJ erred in determining that she was not under a
disability as contemplated by Listings §§ 12.02, 12.04, 12.06,
and 12.08.

Ms. Johnson argues she has a mental impairment as

contemplated by the Listings.

9

VI.

ANALYSIS
In

order

for

a

plaintiff

to

qualify

for

disability

benefits, they must demonstrate they have a disability as
defined in the Social Security Act [hereinafter the Act]. The
Act defines a disability as an:
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).
A.

Credibility

Although Ms. Johnson did not make a credibility argument
in her brief, during the hearing her attorney argued that the
record supports her testimony and the ALJ erred in determining
that she did not testify credibility about the effects of her
condition.
“In order to assess a claimant's subjective complaints,
the ALJ must make a credibility determination by considering
the claimant's daily activities; duration, frequency, and
intensity of the pain; precipitating and aggravating factors;
dosage, effectiveness and side effects of medication; and
10

functional restrictions.” Mouser v. Astrue, 545 F.3d 634, 638
(8th

Cir.

2008).

The

ALJ

may

not

discount

subjective

complaints solely because they are not supported by objective
medical evidence.

See O'Donnell v. Barnhart, 318 F.3d 811,

816 (8th Cir. 2003).
subjective

However, “[a] disability claimant's

complaints

inconsistencies

in

of

the

pain

record

complaints into question.”

may
as

a

be

discounted

whole

bring

if

those

Gonzales v. Barnhart, 465 F.3d

890, 895 (8th Cir. 2006).
During the hearing, Ms. Johnson testified that she is
unable to work primarily because of the symptoms of her mental
health impairments.

As discussed in the ALJ’s opinion, Ms.

Johnson stated that when she last tried to work in 2009, she
lasted only 1 day because she felt she was being judged by
others and because she would “freeze” and not know what to do
when customers came to her counter.

Regarding her prior

employment, Ms. Johnson testified that it was too much stress
and that she could not get along with her coworkers.

She also

testified about the dramatic impact her medications have on
her ability to function.

11

As discussed above, the ALJ determined that Ms. Johnson’s
testimony was not credible, even though it was supported by
the statements of her significant other, and the opinions of
of her treating physicians such as Dr. McNaughton.1
finds

that

Ms.

Johnson’s

testimony

was

The Court

supported

by

substantial evidence in the record as a whole and should have
been considered credible by the ALJ.
B.

Mental Impairment

Ms. Johnson’s central argument is that the ALJ should
have found that she has an impairment under the “Paragraph B”
criteria.2

Ms.

Johnson

argues

that

has

both

marked

restrictions on her activities of daily living and repeated
episodes of decompensation.

In her brief, Ms. Johnson states

that:

1

See Tr. 425 where Dr. McNaughton states that
“Elizabeth is unable to maintain employment due to a medical
condition.”
2

The Paragraph B criteria requirements are:
B. Resulting in at least two of the following:
1. Marked restriction of activities of daily living; or
2. Marked difficulties in maintaining social
functioning; or
3. Marked difficulties in maintaining concentration,
persistence, or pace; or
4. Repeated episodes of decompensation, each of
extended duration.
12

The record as a whole shows that plaintiff
has had extreme difficulty with social
functioning for years. That is the essence
of
Dr.
McNaughton’s
Mental
Status
Examination on June 5, 2011... “Attention
and concentration are diminished. Insight
and judgment are somewhat impaired. This
patient has a lot of avoidant behaviors
that I think arise out of her strong social
anxiety and general anxiety features.
Although there are no specific OCD rituals
identified, she is very much a ruminant
worrier.
She very much gets stuck on
worries of social failure or work failure
and this immobilizes her. Diagnosis: Axis
I: Social anxiety disorder, severe, with
avoidant behaviors, Generalized anxiety
features, Panic episodes, no specific
agoraphobic
locations,
Post
traumatic
stress disorder, Depressive disorder, NOS,
Rule out bipolar mood disorder features;
Axis II: Very strong borderline personality
disorder features; Axis III: Obesity,
possible hypertension, chronic insomnia;
Axis IV: Psychosocial Stressors; severe rejection by family of origin, sexual abuse
by mom’s boyfriend, her own finance,
occupation, and housing issues; Axis V:
Current GAF is 40 to 45 (Tr. 447).
Dr.
McNaughton is the hands on specialist
treating
plaintiff
in
the
months
immediately preceding her hearing.
Docket #9, p. 7-8.
Ms. Johnson also argues that the ALJ should have found
that

she

has

met

the

criteria

13

for

repeated

episodes

of

Decompensation.3

Ms.

Johnson

argues

that

she

had

three

episodes of hospitalizations in 2009, as well as repeatedly
low

GAF

scores,

that

the

ALJ

should

repeated episodes of decompensation.

have

considered

as

The Plaintiff argues

that the ALJ too narrowly interpreted the definition of
repeated episodes of decompensation.

3

See paragraph C.4. of Section 12.00 - Mental
Disorder of the Listing of Impairments which states: 4.
Episodes of decompensation are exacerbations or temporary
increases in symptoms or signs accompanied by a loss of
adaptive functioning, as manifested by difficulties in
performing activities of daily living, maintaining social
relationships, or maintaining concentration, persistence, or
pace. Episodes of decompensation may be demonstrated by an
exacerbation in symptoms or signs that would ordinarily
require increased treatment or a less stressful situation
(or a combination of the two). Episodes of decompensation
may be inferred from medical records showing significant
alteration in medication; or documentation of the need for a
more structured psychological support system (e.g.,
hospitalizations, placement in a halfway house, or a highly
structured and directing household); or other relevant
information in the record about the existence, severity, and
duration of the episode. The term repeated episodes of
decompensation, each of extended duration in these listings
means three episodes within 1 year, or an average of once
every 4 months, each lasting for at least 2 weeks. If you
have experienced more frequent episodes of shorter duration
or less frequent episodes of longer duration, we must use
judgment to determine if the duration and functional effects
of the episodes are of equal severity and may be used to
substitute for the listed finding in a determination of
equivalence.
14

The Defendant argues that the ALJ correctly applied the
relevant factors in determining that Ms. Johnson is not
suffering an impairment under the Listings. Specifically, the
Defendant states that:
Contrary to plaintiff’s argument, the ALJ
appropriately analyzed the evidence of
plaintiff’s mental impairments, including
appropriately considering plaintiff’s GAF
scores, and appropriately performed the
technique for analyzing mental impairments
(Tr. 14-23).
Plaintiff is indeed taking
medications, but the ALJ was required to do
more than look at a list of medications
before finding plaintiff to be disabled.
The ALJ properly evaluated the record as a
whole, including what the medical and other
evidence
showed
about
plaintiff’s
medications, functioning, and ability to
concentrate (Tr. 14-23).
Substantial
evidence fully supports the ALJ’s findings,
which thus should be affirmed.
Docket #10, p. 7-8.
The Defendant goes onto argue that simply because the
Plaintiff suffers a mental impairment does not mean she is
disabled under the Code. See Buckner v. Astrue, 646 F.3d 549,
557 (8th Cir. 2011), stating that “[A]lthough Buckner was
diagnosed with depression and anxiety, substantial evidence on
the record supports the ALJ's finding that his depression and
anxiety was not severe.”

15

It is undisputed in this case that Ms. Johnson has severe
mental impairments, and that she has regularly treated for
them.

She is on numerous medications and has been repeatedly

hospitalized. The fighting issue is whether those impairments
qualify her for disability under the guidelines outlined in
the parties’ arguments, discussed above.
record

as

whole,

the

Court

determination

regarding

supported

substantial

by

the

is

After reviewing the

persuaded

Paragraph

evidence,

B

that

the

criteria

considering

ALJ’s

is

not

both

the

medical evidence and Ms. Johnson’s testimony.
It

is

equally

clear

that

substantial

support

a

finding

that

Ms.

Johnson

has

evidence
both

does

marked

restrictions on her activities of daily living and repeated
episodes of decompensation.

Dr. McNaughton’s medical reports

demonstrate that Ms. Johnson has severe restrictions on daily
living.

She has been repeatedly hospitalized, at times with

suicidal ideation.

The medical records are also supported by

Ms. Johnson’s testimony.
The ALJ found that Ms. Johnson did not have repeated
episodes of decompensation because she did not have “repeated
episodes of decompensation, each of extended duration, means

16

three episodes within 1 year, or an average of once every 4
months, each lasting for at least 2 weeks.” However, as noted
by the Plaintiff, Paragraph C.4. of Section 12.00 states that,
“if you have experienced more frequent episodes of shorter
duration or less frequent episodes of longer duration, we must
use judgment to determine if the duration and functional
effects of the episodes are of equal severity and may be used
to substitute for the listed finding in a determination of
equivalence.”

The ALJ erred by relying only on the strict

guidelines set out earlier in that section, and not the
judgment portion quoted above.

Ms. Johnson has had numerous

instances of decompensation.

As stated in Ms. Johnson’s

brief, she had three hospitalization in 2009, with GAF scores
between 15 and 30.4
that

Ms.

Johnson

concentration,

Nearly all the medical records indicate
has

persistence

some
and

difficulty
pace.5

As

maintaining
noted

in

4

Dr.

See for example Dr. Segreto’s evaluation dated June
24, 2010, noting that Ms. Johnson only had a GAF score of 28
upon admission and GAF score of 40 upon discharge. Tr. 403.
5

See for example, Dr. McNaughton’s notes from
05/15/2011, stating that “Attention and concentration are
adequate for the interview but somewhat distractable and
insight and judgment are still somewhat impaired...the
diagnosis remains the same.” Tr. 371. See also Dr.
17

McNaughton’s

notes

on

July

21,

2011,

Ms.

Johnson’s

concentration is so poor that she has trouble completing
household chores.

Tr. 444.

It is clear to the Court that

those incidents meet the definition outlined in paragraph C.4.
Accordingly,

Ms.

Johnson

has

satisfied

the

Paragraph

B

criteria.
VII.

CONCLUSION
The Court has the authority to reverse a decision of the

Commissioner,

"with

or

without

remanding

the

cause

for

rehearing," but the Eighth Circuit has held that a remand for
award of benefits is appropriate only where "the record
‘overwhelmingly supports'" a finding of disability. 42 U.S.C.
405(g); Buckner v. Apfel, 213 F.3d 1006, 1011 (8th Cir. 2000).
In this case, the Court finds that a remand for an award of
benefits is appropriate.

Ms. Johnson’s testimony along with

medical records reveal repeated instances of decompensation.
Accordingly, Ms. Johnson has satisfied the criteria discussed
above and the record overwhelmingly supports a finding of
disability.
Delperdang’s evaluation on 10/05/2010 noting that Ms.
Johnson suffers from acute, chronic and uncontrolled
anxiety. Tr. 394.
18

Application for attorney fees pursuant to the Equal
Access to Justice Act, 28 U.S.C. § 2412 (EAJA), must be filed
within thirty (30) days of the entry of final judgment in this
action.

Thus, unless this decision is appealed, if Johnson’s

attorney wishes to apply for EAJA fees, it must be done within
thirty (30) days of the entry of the final judgment in this
case.
IT IS SO ORDERED this 7th day of February, 2013.

__________________________________
Donald E. O’Brien, Senior Judge
United States District Court
Northern District of Iowa

19