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Johnson v. Commissioner of Social Security

December 3, 2009

RE: JOHNSON
v.
COMMISSIONER OF SOCIAL SECURITY



The opinion of the court was delivered by: William J. Martini Judge

MARTIN LUTHER KING JR. FEDERAL BLDG. & U.S. COURTHOUSE 50 WALNUT STREET, P.O. BOX 419 NEWARK, NJ 07101-0419 (973) 645-6340

LETTER OPINION

Dear Counsel:

Plaintiff Myra Johnson ("Johnson") brings this action pursuant to 42 U.S.C. § 405(g) of the Social Security Act, seeking review of a final determination by the Commissioner of Social Security ("Commissioner") denying her application for Supplemental Security Income ("SSI"). There was no oral argument. Fed. R. Civ. P. 78. For the following reasons, the Commissioner's decision is AFFIRMED.

I. BACKGROUND AND PROCEDURAL HISTORY

Plaintiff is a 42 year old female suffering from severe cardiac, pulmonary, and renal impairments. (Pl. Cmplt. at 2). She was 38 at the time she first applied for SSI. (R. 20). She has a 9th grade education and has not worked since the 1980s. (R. 308, 10). She first sought medical care for her current ailments in October 2005. (R. 17). She alleges chest pains, dizziness, and shortness of breath. (R. 310). She takes 12 or 13 medications but has been non-compliant in the past. (R. 111, 166-67).

Due to Plaintiff's condition, she does not leave her home except to go to doctors' appointments. (R. 317). She alleges that she can only walk about half a block before she needs to rest for 10 to 15 minutes. (R. 312). Therefore, she spends most of her day sitting and watching television. (R. 310, 316). She has 10 children, several of whom visit her most afternoons to clean, bring her food, and take care of anything else she may need. (R. 111, 316). Plaintiff previously used both cocaine and heroin. (R. 317). She alleges that she is currently on methadone and has not used either cocaine or heroin in about 13 or 14 years. (Id.). However, two drug tests performed two weeks apart in October 2005 yielded a positive result for cocaine. (R. 191, 195, 207, 211).

Medical records show that Plaintiff was diagnosed with ischemic cardiomyopathy exacerbated by substance abuse, exacerbation of congestive heart failure, renal insufficiency, and hypertension in November 2005. (R. 110-113). Plaintiff sought emergency room care for complaints related to shortness of breath on four occasions in October and November 2005 but not since. (R. 166, 180, 204, 255). She also sought emergency room care on three additional occasions between December 2005 and June 2007, for alcohol intoxication, sunburn, and chest pains. (R. 237, 250, 262, 293). The results of an EKG following the visit for chest pain were within normal limits and the cardiac workup was negative. (R. 253). The attending physician concluded that the "nature of [Plaintiff's] pain" was "very atypical." (R. 294).

In February 2006, Dr. R.C. Patel, a consultative internist, diagnosed Plaintiff with hypertension, chest pain, chronic asthma, and a history of congestive heart failure in the past. (R. 227). He noted that Plaintiff was in no acute distress and walked unassisted with a normal gait. (R. 226-227). He found that her pulmonary function was completely within normal limits and that her complaints of chest pain were "atypical." (R. 18, 232).

In April 2006, a state-agency physician opined that Plaintiff could occasionally lift up to twenty pounds, frequently lift up to ten pounds, stand and/ or walk up to six hours in an eight hour workday, sit approximately six hours in an eight hour workday, and had no restrictions on her ability to push or pull. (R. 276).

A February 2008 report from Dr. Mandeep Oberoi indicates that Plaintiff has been his patient since December 2005, and that she suffered from hypertension, hyperlipidemia, cardiomyopathy, cardiac arrhythmias, congestive heart failure, and renal insufficiency. (R. 288). He concluded that Plaintiff could not lift or walk for long periods and stated that he did not believe she was able to work. (R. 289). A March 2008 report by the same doctor stated that Plaintiff could carry 5 to 10 pounds, could stand and/or walk for 2 to 3 hours in an 8 hour workday, and, while the report said sitting was not affected by the impairment, could sit for 3 to 4 hours in an 8 hour workday. (R. 283- 286).

At a hearing in March 2008, vocational expert Rocco J. Meola was called to testify and answer questions posed by an Administrative Law Judge ("ALJ"). (R. 319). The ALJ asked the expert to consider a hypothetical individual of the same age and educational background as Plaintiff, with no past relevant work experience, with a residual functional capacity ("RFC") for lifting and carrying objects weighing up to ten pounds, sitting up to six hours, and standing and walking for up to two hours in an eight hour day, who could not be exposed to pulmonary irritants. (Id.). The expert concluded that such an individual would be able to perform the jobs of assembler, bench worker, document preparer, or sorter, jobs which exist in significant numbers in the regional economy. (R. 319-320). The ALJ then asked the expert if those same jobs would exist if the individual also had to take frequent breaks to catch her breath. (R. 320). The expert replied that if the person had to take frequent breaks, it would eliminate all such jobs. (Id.).

Plaintiff applied for SSI on November 18, 2005, alleging disability since October 1, 2005. Her claim was denied initially on April 12, 2006, and upon reconsideration on September 27, 2006. Plaintiff subsequently sought and obtained an administrative hearing, which was held on March 13, 2008 before Administrative Law Judge ("ALJ") Richard L. DeSteno. The ALJ engaged in the typical five step process for determining whether an individual is disabled pursuant to the Social Security Act. Her findings at each step were as follows: (1) Plaintiff has not engaged in substantial gainful activity since November 18, 2005, (2) Plaintiff has "severe impairments involving heart and renal disease and asthma," (3) Plaintiff does not have an impairment or combination of impairments that meets or medically equals any of the listed impairments in 20 C.F.R. Part 404 that result in a presumption of disability, (4) Plaintiff has the RFC to perform sedentary work with environmental limitations and has no qualifying prior relevant work experience in the past 15 years, and (5) there are jobs that exist in significant numbers in the national economy that Plaintiff can perform. (R. 15-16, 20).

The Appeals Council affirmed the ALJ's decision on August 5, 2008. Plaintiff appealed to the District Court, filing a complaint on October 2, 2008. Defendant answered the complaint on August 3, 2008. Plaintiff then filed a brief with this Court on July 2, 2009, arguing that "substantial evidence exists in the administrative record to support a finding of disability."*fn1 (Pl. Br. at 1). Specifically, Plaintiff alleges that (1) the ALJ was biased against Plaintiff's attorney, (2) the ALJ failed to combine Plaintiff's impairments when considering medical equivalence and the C.F.R. listing at Step 3, (3) the ALJ's determination of RFC at Step 4 is not supported by substantial evidence, (4) the ALJ did not properly consider Plaintiff's subjective complaints of pain, and (5) ...


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