Johnson v. Commissioner, Social Security

Filing 20

MEMORANDUM. Signed by Magistrate Judge Paul W. Grimm on 1/23/12. (c/m 1/23/12 apls, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
JOSEPH T. JOHNSON
v.

:

CIVIL ACTION NO. PWG-10-3139

:
MICHAEL J. ASTRUE,
COMMISSIONER OF SOCIAL
SECURITY

:
:

MEMORANDUM
Joseph T. Johnson, (sometimes referred to as “Claimant” or
“Mr. Johnson”) filed this action seeking judicial review under
42 U.S.C. § 405(g) of the final decision of the Commissioner of
Social

Security

Insurance

benefits

denying
(“DIB”)

his

applications

and

for

Disability

Supplemental

Security

Income

("SSI"). Pending is the Defendant’s Motion for Summary Judgment2.
(ECF No. 18).

By consent of the parties, this case was referred

to me pursuant to 28 U.S.C. § 636(c) and Local Rule 301.
No. 12).

(ECF

For the reasons that follow, I find that the decision

2

On January 20, 2011, a scheduling order was entered and
Plaintiff’s Motion for Summary Judgment was due August 20, 2010.
As of the date of this Memorandum, and despite the Court’s
issuance of a Rule 12 letter, Plaintiff has not filed a Motion
for Summary Judgment, nor has he filed a Memorandum in
opposition to the Commissioner’s motion for Summary Judgment.
(ECF Nos. 16,17,18). Regardless of Mr. Johnson’s failure to file
a Motion for Summary Judgment, this Court is required to review
the ALJ’s conclusions and determine whether they are legally
correct. See Meyers v. Califano, 611 F.2d 980, 982 (4th Cir.
1980).
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of the Commissioner should be affirmed. No hearing is necessary.
Local Rule 105.
I. PROCEDURAL HISTORY
On April 3, 2008, Mr. Johnson filed applications for DIB and
SSI benefits with an alleged onset date of December 14, 2007, as
a result of an ankle injury/fracture. (Tr. 60, 135-145).
applications
(Tr. 72-84).

were

denied

initially,

and

upon

His

reconsideration.

At his request, a hearing was held before an

Administrative Law Judge (“ALJ”), the Honorable William F. Clark,
on March 17, 2010, and Mr. Johnson, who was not represented by
counsel3, appeared and testified. (Tr. 30-52).

In a decision

dated March 19, 2010, the ALJ found that Mr. Johnson was not
disabled within the meaning of the Act. (Tr. 60-67). On October
29, 2010, the Appeals Council denied Mr. Johnson’s request for
review,

thereby

adopting

the

ALJ’s

decision

as

the

“final

decision” of the Commissioner.(Tr. 1-3).
II. ALJ’S DECISION

3

Mr. Johnson was not represented by counsel at the first
administrative hearing on January 8, 2010, and he was notified
by the ALJ of his right to have a representative. (Tr. 11-14).
The hearing was rescheduled by the ALJ for March 17, 2010 in
order to allow Mr. Johnson to retain counsel.(Tr. 18-22). At
the rescheduled hearing Mr. Johnson chose to proceed without
representation. (Tr. 29-31). In this Court he is a pro-se
plaintiff. On November 16, 2010, Mr. Johnson requested that
counsel be appointed for him. His request was denied. (ECF No.
6, 11). Considering the type, complexity of this case and the
merits of plaintiff’s claim, his most recent request for
appointment of counsel is also DENIED. (ECF No. 17). See
Whisenaut v. Yuam, 739 F.2d 160, 163 (4th Cir. 1984).
2

The ALJ evaluated Mr. Johnson’s claims for benefits using
the sequential processes set forth in 20 C.F.R. §§ 404.1520,
416.9920. (Tr. 60-67).

At step one, the ALJ found that he had

not engaged in substantial gainful activity. (Tr. 12).

At step

two, the ALJ found that Mr. Johnson’s fractured ankle did not
constitute a severe impairment as that term is defined in the
Commissioner’s Regulations. (Tr. 17).

While the analysis could

have ended there, the ALJ alternatively found that even if Mr.
Johnson’s ankle injury was a severe impairment at step three, he
did not have an impairment that met, or equaled in severity, any
of listed impairments found in the Commissioner’s Regulations.
(Tr. 63-65). Next, the ALJ determined that Mr. Johnson retained
the residual functional capacity (“RFC”)to perform less than a
full

range1

of

light

work

as

it

is

§§404.1567(b) and 416.967(b). (Tr. 65).

defined

in

20

CFR

Based on his RFC, the

ALJ next found that Mr. Johnson was unable to perform any of his
past relevant work (“PRW”). Based on his RFC, age, education,
and after receiving testimony from a vocational expert (“VE”),
the ALJ found that there was work available in the local and
national

economies

which

Claimant

1

could

perform.

(Tr.

66).

The ALJ found Mr. Johnson was limited as follows: he was
limited to unskilled work; he required a sit/stand option; he
could not climb ropes or ladders; and he had to avoid exposure
to hazardous moving machinery and unprotected heights. (Tr. 65).
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Accordingly,

the

ALJ

determined

that

Mr.

Johnson

was

not

disabled.
III. STANDARD OF REVIEW
The Commissioner’s decision must be upheld if supported by
substantial evidence which is more than a scintilla, but less
than a preponderance, and sufficient to support a conclusion in a
reasonable mind. See 42 U.S.C. §405(g) (1998); see also King v.
Califano, 599 F.2d 597 (4th Cir. 1979); Teague v. Califano, 560
F.2d 615 (4th Cir. 1977); Laws v. Celebrezze, 368 F.2d 640 (4th
Cir.

1966).

determine

This

Court

credibility,

may
or

not

weigh

substitute

conflicting
its

judgment

evidence,
for

the

Commissioner’s. See Hays v. Sullivan, 907 F.2d 1453, 1456 (4th
Cir. 1990). Although deferential, this standard of review does
not require acceptance of a determination by the Commissioner
which

applies

an

improper

standard,

or

misapplies

the

law.

See Coffman v. Bowen, 829 F.2d 514, 517 (4th Cir. 1987). Following
its

review

this

Court

may

affirm,

modify

or

reverse

the

Commissioner, with or without a remand. See 42 U.S.C.§405(g);
Melkonyan v. Sullivan, 501 U.S. 89 (1991).
IV. DISCUSSION
The

Defendant

decision

is

affirmed.

asserts

supported

by

that

the

substantial

Commissioner’s

evidence

and

final

should

be

After careful review of the entire record and the

ALJ’s decision, I agree with the Commissioner.
In

this

case,

after

finding

that

Mr.

Johnson

had

not

engaged in any substantial gainful activity (“SGA”) since his
4

alleged onset date, the ALJ was required to determine whether
Mr. Johnson suffered from any medically determinable impairments
that were “severe”, as that term is defined in the Regulations.
First and foremost, it must be noted that the Claimant bears the
burden of proving that an impairment is severe. Pass v. Chater,
65 F.3d 1200, 1203 (4th Cir. 1995).
thoroughly

discussed

Mr.

In his decision, the ALJ

Johnson’s

medical

records

and

found

that his ankle fracture did not constitute a severe impairment
since Mr. Johnson had not produced substantial evidence that his
ankle

fracture

significantly

limited

his

ability

to

perform

basic work activities for a period lasting more than 12 months.
(Tr. 64).

Alternatively, however, the ALJ continued with the

sequential

evaluation

and

assumed

fracture was a severe impairment.

that

Mr.

Johnson’s

ankle

At step three, the ALJ found

that Mr. Johnson’s ankle fracture did not meet or medically
equal

a

listing.

Next,

the

ALJ

determined

that

Mr.

Johnson

retained the RFC to perform a range of light work. (Tr. 64-65).
The ALJ found Mr. Johnson was limited as follows: he was limited
to unskilled work; he required a sit/stand option; he could not
climb

ropes

or

ladders;

and

he

should

avoid

exposure

to

hazardous moving machinery and unprotected heights. (Tr. 65).
Based

on

Mr.

Johnson’s

age,

education,

and

RFC,

and

after

receiving testimony from a vocational expert (“VE”), the ALJ
found

there

was

work

available
5

in

the

local

and

national

economies that Mr. Johnson could perform.

Accordingly the ALJ

found that he was not disabled. (Tr. 60-67).
The

medical

evidence

in

the

administrative

record

shows

that in December 2007, Mr. Johnson sustained a fracture while he
was incarcerated. He was treated at Carroll Hospital Center by
Dr. Steven Breiter, where Mr. Johnson’s x-ray films were reviewed
and a fiberglass splint was applied to his leg. (Tr. 253).

Upon

his release from prison, Mr. Johnson was seen at Mercy Medical
Center.

Mr. Johnson was examined by Dr. Kathryn Pebras on March

28, 2008.

Dr. Pebras noted that Mr. Johnson’s x-rays showed a

healing fracture. (Tr. 247-248).

Two state agency physicians,

Dr. Rudin and Dr. Totoonchie, reviewed Claimant’s medical records
and

both

completed

physical

residual

functional

capacity

assessment forms and stated, among other things, that Mr. Johnson
could perform work that was medium level in exertion, but that he
could only balance occasionally. (Tr. 261-266, 268-274).

Medical

records from Total Health Care dated July 2008, stated that Mr.
Johnson was complaining of an ankle sprain.
In

addition

to

the

medical

records,

(Tr. 278-280).
the

ALJ’s

decision

included an analysis of the subjective evidence presented by
Claimant, including his function reports discussing his daily
activities, and his testimony at the hearing. (Tr. 63-65).
After review of the entire record, I find that the ALJ’s
finding that Mr. Johnson’s ankle pain was not totally disabling
is supported by substantial evidence. For example in his function
report, Mr. Johnson stated that his daily activities included
exercising his ankle, shopping for food at the market, cooking,
6

and taking care of his laundry and appointments.
201).

Mr.

Johnson

also

testified

that

he

(Tr. 164-166,

takes

tramadol,

naproxen, and motrin for his ankle pain. (Tr. 35, 227).
The Court’s independent review of the entire administrative
record

in

this

case

leads

to

the

conclusion

that

the

ALJ’s

finding that Mr. Johnson is not disabled as contemplated by the
Regulations and can perform a range of light work is supported by
substantial evidence. In presenting hypotheticals to the VE, the
ALJ instructed the VE to consider a hypothetical individual with
the same education, age, and past relevant work experience as Mr.
Johnson who could perform unskilled work at the light exertional
level. However this individual also had to be able to sit or
stand at will, could never climb ladders, ropes, or scaffolds,
and could not work at unprotected heights, or around hazardous
moving machinery.

With these limitations, the VE testified that

there were jobs in the local and national economies such as an
assembler, a copier operator, and a cashier. (Tr. 50).
I conclude that the ALJ’s RFC is consistent with, and is
supported by the state agency physicians’ findings and the record
as

a

whole,

including

Mr.

Johnson’s

reports

of

daily

living

2
activities .

V. CONCLUSION
Because the ALJ's decision is supported by substantial
evidence, the Commissioner's Motion for Summary Judgment will be

2

Mr. Johnson stated in his function report that he could lift 60 pounds. (Tr.
168).
7

granted and the Claimant's Motion will be denied.

A separate

Order will issue.

/S/
______________________________
Paul W. Grimm
United States Magistrate Judge
DATED:___1/23/12__

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