Johnson v. Asture

Filing 22

MEMORANDUM OPINION. Signed by Magistrate Judge Paul W. Grimm on 4/20/12. (dass, Deputy Clerk)

UNITED STATES DISTRICT COURT
DISTRICT OF MARYLAND
CHAMBERS OF
PAUL W. GRIMM
CHIEF UNITED STATES MAGISTRATE JUDGE

101 W. LOMBARD STREET
BALTIMORE, MARYLAND 21201
[phone]
[phone] FAX

April 20, 2012
Timothy E. Mering, Esq.
Mering & Schlitz, LLC
343 N. Charles Street, 3rd Fl.
Baltimore, MD 21201
Alex S. Gordon, AUSA
36 South Charles Street
4th Floor
Baltimore, MD 21201
Re: Donna Jean Johnson v. Michael J. Astrue, Commissioner
of Social Security, PWG-09-3284
Dear Counsel:
Pending before the undersigned, by the parties’ consent,
are
Cross-Motions
for
Summary
Judgment
concerning
the
Commissioner’s
decision
denying
Ms.
Johnson’s
claim
for
Supplemental Security Income (“SSI”).(ECF Nos. 8,14,21). This
Court must uphold the Commissioner’s decision if it is supported
by substantial evidence and if proper legal standards were
employed. 42 U.S.C. § 405(g); Craig v. Chater, 76 F.3d 585, 589
(4th Cir. 1996); Coffman v. Bowen, 829 F.2d 514, 517 (4th Cir.
1987). A hearing is unnecessary. Local Rule 105.6.
For the
reasons that follow, this Court DENIES the Commissioner’s Motion
and GRANTS the Plaintiff’s Alternative Motion for Remand.
Ms. Donna Jean Johnson (sometimes referred to as “Ms.
Johnson,” “Plaintiff”, or “Claimant”) filed an application for
SSI on January 25, 2006, alleging that she was disabled due to
a
bipolar
disorder,
schizophrenia,
depression,
rheumatoid
arthritis, borderline intellectual functioning (“BIF”), and
degenerative disc disease of the lumbar spine. (Tr. 15, 62).
Her claim was denied initially and upon reconsideration. (Tr.
31-33).
A
hearing
was
held
before
Robert
W.
Young,
Administrative Law Judge, (“ALJ”) on July 28, 2008.
The ALJ
denied Ms. Johnson’s claim in a decision dated March 4, 2009,
concluding at step one of the sequential evaluation that
Claimant had not engaged in substantial gainful activity (“SGA”)

since her alleged disability onset date. At steps two and three
the ALJ found that Claimant’s affective disorder, degenerative
disc disease and polysubstance abuse disorder all were “severe”
impairments, and when considered in combination, they met
Listings 12.04 and 12.09.
The ALJ also found that, provided Claimant stopped
substance abuse, her remaining limitations would cause more than
a minimal impact on ability to perform work activity, but that
they no longer would meet, or medically, equal a listing.
The
ALJ found Claimant retained the RFC to perform a range of light
work. (Tr. 18). Based on Ms. Johnson’s RFC, and after receiving
testimony from a vocational expert (“VE”), the ALJ found
although she was precluded from performing any past relevant
work (“PRW”), there was work available in the local and national
economies that she could perform such as a mail sorter, a
handpacker, and general office clerk. (Tr. 23).
Accordingly,
the ALJ found that Ms. Johnson was not disabled. (Tr. 13-23).
On October 19, 2009, the Appeals Council denied Ms. Johnson’s
request for review, making her case ready for judicial review.
(Tr. 5-8).
Ms. Johnson presents several arguments in support of her
contention that the Commissioner’s final decision should be
reversed, or in the alternative, remanded. For the reasons that
follow, I find the ALJ’s decision is not supported by
substantial evidence and therefore a remand for further
proceedings is necessary.
Claimant’s primary argument is that the ALJ erred at step
two. Specifically, she contends that the ALJ failed to discuss
all of the relevant medical evidence regarding her rheumatoid
arthritis and borderline intellectual functioning (“BIF”)in
determining what “severe” impairments she had. At step two, the
ALJ found:
“[T]he claimant has the following severe combination of
impairments: an affective disorder, degenerative disc
disease of the lumbar spine, and substance abuse
disorder.(Finding of Fact No. 2, Tr. 15).
The Commissioner acknowledges that the ALJ failed to discuss
Claimant’s rheumatoid arthritis and BIF at step two, but contends
the error was harmless since the ALJ properly considered these
impairments in determining Claimant’s RFC. See Def. Mem., pp. 1722. After careful review of the record, it is evident that the
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ALJ’s
discussion
and
analysis
failed
to
recognize
these
additional impairments and their resulting limitations on
claimant’s ability to perform work.
This error warrants a
remand.
A state agency consulting source diagnosed Ms. Johnson with
rheumatoid arthritis. Dr. Djorde Gikic stated that Ms. Johnson
suffered from pain in her knees, legs, and ankles due to
rheumatoid arthritis. The doctor also noted the presence of an
inflammatory process in Ms. Johnson’s joints as well as puffiness
and tenderness of her ankles. (Tr. 209).
When discussing Dr.
Gikic’s report however, the ALJ inaccurately stated that Dr.
Gikic noted that Ms. Johnson “alleged” a diagnosis of rheumatoid
arthritis, and noted that Ms. Johnson had a full range of motion
in her joints. (Cf. Tr. 19-20, 209). The ALJ’s characterization
of Dr. Gikic’s report is inaccurate and omits specific factual
findings that support a finding that Claimant has rheumatoid
arthritis.
With
respect
to
Claimant’s
borderline
intellectual
functioning, Dr. Shabse Kurland administered the Weschler Adult
Intelligence Scale III test to her on June 15, 2006. Dr. Kurland
concluded that Ms. Johnson was functioning at the second grade
level in reading, the third grade level in spelling, and the
fifth grade level in arithmetic.
Additionally, Dr. Kurland
stated that Ms. Johnson likely had a verbal cognitive processing
problem which had never been dealt with and that she functioned
at the extremely low performance level in verbal tasks and
average in nonverbal tasks. See Exhibit 6F (Tr. 212). The ALJ
noted Dr. Kurland’s testing in his decision, but never discussed
whether
Ms.
Johnson’s
borderline
intellectual
functioning
constituted a severe impairment. (Tr. 20).
The findings of Dr. Gikic and Dr. Kurland support Claimant’s
allegations that her rheumatoid arthritis and BIF impacted her
ability to perform work, but they were not discussed by the ALJ
at step two of his decision. This was improper in light of SSR
96-8p.
Errors such as those which occurred at step two in this
case inevitably infect the ALJ’s analysis at the subsequent
steps. Therefore, I am unable to determine without speculation
whether the ALJ considered or simply overlooked these additional
impairments at any step of the sequential evaluation. The Court
cannot determine whether findings are supported by substantial
evidence unless the agency clearly indicates the weight given all
the relevant evidence. Gordon v. Schweiker, 725 F.2d 231 (4th Cir.
1984) see also SSR 96-8p.
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Furthermore, the ALJ failed to discuss all the evidence with
respect to Ms. Johnson’s mental RFC.
The ALJ stated that she
could perform “simple work related tasks with minimal interaction
with others.” (Tr. 18).
This was not an adequate assessment.
Hilton v. Barnhart 2006 WL 4046076 (D. Kan.) citing Wiederholt v.
Barnhart, 121 Fed. Appx. 833 (10th Cir. 2005)(the relatively
broad unspecified nature of the description “simple” does not
adequately incorporate the more specific findings required).
Equally important is the ALJ’s failure to discuss what
weight he accorded the Mental Residual Functional Capacity
Assessment completed by the state agency physician, Dr. Evelyn
Edmunds. See Exhibit 9-F (Tr. 21, 322-323).
On June 22, 2006,
Dr. Edmunds reviewed Ms. Johnson’s records and stated that Ms.
Johnson was “moderately” limited in her abilities to:
1) understand and remember detailed instructions;
2) carry out detailed instructions;
3) maintain attention and concentration for extended
periods;
4) work in coordination with or proximity to others
without being distracted by them;
5) complete a normal work-day without interruptions
from psychologically based symptoms and to perform at a
consistent pace without an unreasonable number and
length of rest periods;
6) accept instructions from and respond appropriately
to criticism from supervisors; and
7) respond appropriately to changes in the work setting.
See Exhibit 9-F (Tr. 232-233).
The RFC assessment must always consider and address medical
source opinions. If the RFC assessment conflicts with an opinion
from a medical source, the adjudicator must explain why the
opinion was not adopted. SSR 96-8p (1996 WL 374184, *7)
(S.S.A.))(emphasis added). The ALJ summarized Dr. Edmunds report
but he did not discuss how it was weighed in determining
Claimant’s RFC. (Tr. 21). All limits on work related activities
resulting from the mental impairment must be described in the
mental RFC assessment.
SSR 85-16 Residual Functional Capacity
for Mental Impairments (1985 WL 56855, *2) (S.S.A.)).
The
moderate limitations found by Dr. Edmunds are clearly relevant to
unskilled work, but how this evidence was considered was not
discussed by the ALJ in his decision. In fact when these precise
limitations were included in the hypothetical presented to the
VE, the VE stated no competitive work existed for such an
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individual who had the limitations referred to in Exhibit 9F.(Tr. 21, 573). The ALJ failed to explain whether, and/or why,
he was discrediting the VE’s testimony in response to questions
that included the detailed assessment of “moderate” mental
limitations in seven different areas. (Tr. 23-23, 232-233, 573).
Since Dr. Edmunds’ report was not adequately discussed by the
ALJ-–and since the ALJ did not perform the function-by-function
assessment described in SSR 96-8p5—and the VE’s testimony that a
person with the same limitations as those found by Dr. Edmunds
was not discredited the undersigned has no way of knowing whether
the ALJ properly considered this evidence and consequently
whether this evidence supports, or conflicts with, the ALJ’s
finding regarding Ms. Johnson’s RFC and her ability to perform
work.
Thus, for the reasons given, this Court GRANTS Ms. Johnson’s
Alternative Motion for Remand and DENIES the Commissioner’s
Motion for Summary Judgment. A separate Order shall issue.
_________/s/____________
Paul W. Grimm
United States Magistrate Judge

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SSR 96-8p, in relevant part, states: Initial failure to consider
an individual’s ability to perform the specific work-related
functions could be critical to the outcome of a case. (1996 WL
374184, *3 (S.S.A.))
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