                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


1-28-2008

Johnson v. Comm Social Security
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-4641




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                                                    NOT PRECEDENTIAL
                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                _______________

                                     No. 06-4641
                                   _______________

                                  ANN G. JOHNSON,

                                           Appellant

                                            v.

                      COMMISSIONER OF SOCIAL SECURITY
                               _______________

                    On Appeal from the United States District Court
                              for the District of New Jersey
                                 (D.C. No. 05-cv-04059)
                     District Judge: Honorable Mary Little Cooper
                                    _______________

                      Submitted Under Third Circuit LAR 34.1(a)
                                  January 7, 2008

                   Before: FUENTES and JORDAN, Circuit Judges
                           and O’NEILL*, District Judge.

                               (Filed: January 28, 2008)
                                   _______________

                              OPINION OF THE COURT
                                  _______________

JORDAN, Circuit Judge.

_______________
   *Honorable Thomas N. O’Neill, Jr., United States District Court Judge for the Eastern
District of Pennsylvania, sitting by designation.
       Ann G. Johnson appeals the order of the United States District Court for the

District of New Jersey affirming the final decision of the Commissioner of Social

Security (the “Commissioner”) denying her application for Disability Insurance Benefits

(“DIB”) under Title II of the Social Security Act (the “Act”) and denying her application

for Supplemental Security Income (“SSI”) under Title XVI of the Act. Johnson alleges

that the District Court erred in finding that substantial evidence supported the

Commissioner’s decision that Johnson was not disabled from June 20, 2000 (her alleged

disability onset date) through March 25, 2005 (the date of the ALJ’s decision denying

benefits). Specifically, Johnson alleges that the ALJ failed to sufficiently explain why he

concluded that Johnson’s impairments did not meet or equal the requirements in the

Listing of Impairments, Appendix 1 to Subpart P, 20 C.F.R. Part 404, that the ALJ lacked

an evidentiary basis for his assessment of Johnson’s residual functional capacity, and that

he improperly evaluated Johnson’s subjective complaints. For the following reasons, we

will affirm the District Court’s decision.

I.     Background

       Because we write primarily for the benefit of the parties, we set forth only those

facts pertinent to the issues before us on appeal. Johnson filed a claim for SSI on June 20,

2000, and applied for DIB on December 11, 2002. She claimed that she stopped working

on December 29, 1999, and became unable to work because of her disabilities on June 1,

2000. Johnson stated that her ability to work is limited by back and neck pain resulting



                                             2
from multiple car accidents and two spinal fusions. She claims that the pain prevents her

from lifting, bending, sitting, reaching and walking for “any length of time.”

       Johnson’s applications were denied initially and upon reconsideration. She filed a

request for a hearing before an ALJ, which resulted in the issuance of an Order of

Dismissal due to her failure to appear at the hearing. She then filed a request for review

with the Appeals Council, and the Council vacated and remanded the matter to the ALJ.

After a hearing on December 8, 2004, the ALJ issued a decision on March 25, 2005,

finding that Johnson was not disabled1 under the Act, and therefore, not entitled to DIB or

SSI.2 Johnson appealed the decision to the Appeals Council, but it denied her request for

review on June 17, 2005. Accordingly, the ALJ’s decision denying benefits was adopted

as the Commissioner’s final decision. On appeal, the District Court affirmed the

Commissioner’s denial of Johnson’s claim. Johnson timely appealed to this Court.

II.    Discussion3

  1
   Disability is defined as the “inability to engage in any substantial gainful activity by
reason of any medically determinable physical and 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). In order to be disabled,
an individual’s “physical or mental impairment or impairments are of such severity that
[the individual] is not only unable to do his [or her] previous work but cannot,
considering his [or her] age, education, and work experience, engage in any other kind of
substantial gainful work which exists in the national economy ... .” 42 U.S.C. § 423
(d)(2)(A).
  2
   The ALJ did, however, find that Johnson met the nondisability requirements set forth
in Section 216(I) of the Act to receive DIB through March 25, 2005.
  3
   The District Court had jurisdiction pursuant to 42 U.S.C. §§ 405(g) and 1383(c). We
have jurisdiction pursuant to 28 U.S.C. § 1291. A District Court’s review of the
                                             3
       An ALJ must engage in a five-step sequential evaluation process in determining

whether a person is disabled under the Act. 20 C.F.R. § 404.1520 (a)(4). The first step

requires that the individual not be gainfully employed. 20 C.F.R. § 404.1520 (a)(4)(I).

The second step requires that the individual’s impairments qualify as “severe.” 20 C.F.R.

§ 404.1520 (a)(4)(ii). The third step requires that the individual’s impairments meet or

equal one of the listings in Appendix 1 and the duration requirement. 20 C.F.R.

§ 404.1520 (a)(4)(iii). The fourth step is an assessment of the claimant’s residual

functional capacity, which includes an inquiry into whether the claimant can perform her

past relevant work. 20 C.F.R. § 404.1520 (a)(4)(iv). The fifth step involves an analysis

of whether the claimant, taking into consideration her residual functional capacity, age,

education and work experience, can make an adjustment to other work. 20 C.F.R.

§ 404.1520 (a)(4)(v).

       In conducting the five-step evaluation, the ALJ first found that Johnson was not

gainfully employed. Second, he found Johnson’s impairments of chronic back pain

syndrome and chronic low back pain syndrome to be severe. Third, the ALJ concluded

that Johnson’s impairments did not meet the specific criteria of any impairment in the




Commissioner’s denial of disability benefits is limited to determining whether the
findings of fact are supported by substantial evidence. 42 U.S.C. § 405(g). We also
examine the record to determine whether the ALJ’s decision was supported by substantial
evidence. Reefer v. Barnhart, 326 F.3d 376, 379 (3d Cir. 2003). In Social Security cases,
we have defined “substantial evidence” as “‘more than a mere scintilla. It means such
relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.’” Id. (quoting Smith v. Califano, 637 F.2d 968, 970 (3d Cir. 1981)).
                                             4
Listing of Impairments, Appendix 1 to Subpart P, 20 C.F.R. § 404. Fourth, in

consideration of the medical records, Johnson’s testimony, Johnson’s symptoms,

Johnson’s subjective complaints and Johnson’s daily activities and restrictions, the ALJ

found that Johnson did not retain the residual functional capacity to perform the

requirements of her past occupation. Fifth, in consideration of her residual functional

capacity, age, education, relevant past work experience, and the vocational expert’s

testimony, the ALJ concluded that Johnson was capable of performing a wide range of

sedentary work and was, therefore, not disabled.

       A.     Sufficiency of ALJ’s Explanation at Third Step of Disability Evaluation

       Johnson first alleges that the ALJ erred in failing to provide sufficient explanation

for his conclusion that her impairments do not satisfy any of the Listings at step three of

the sequential evaluation, and that his finding that she did not meet or equal Listing 1.04

was erroneous. As the District Court ruled, the ALJ did provide sufficient explanation for

his finding, and there was substantial evidence in the record to support the conclusion that

Johnson failed to meet or equal Listing 1.04.

       Johnson specifically contends that the ALJ erred by failing to (1) describe the

requirements of the listings used to analyze her claim, (2) explain why he chose to

analyze her claim under those listings, and (3) explain why her impairments did not meet

the requirements of those listings. Contrary to Johnson’s argument, the ALJ provided

sufficient explanation for his conclusion that Johnson was not disabled. As we stated in

Jones v. Barnhart, 364 F.3d 501, 505 (3d Cir. 2004), there is no particular language or

                                             5
format that an ALJ must use in his or her analysis as long as there is “sufficient

development of the record and explanation of findings to permit meaningful review.” In

this case, the ALJ’s opinion not only sets forth the facts used in rendering his decision,

but it also provides a thorough examination of the medical evidence.

       The ALJ stated that he considered Listings 1.00 ff. and 11.00 ff., paying particular

attention to Listings 1.04 and 11.18, which deal with spinal disorders and cerebral trauma,

respectively. He undertook a detailed analysis of Johnson’s medical history, according

weight to Johnson’s subjective complaints as well as to the opinions of her physicians and

the state agency medical consultants. The ALJ then found that Johnson’s testimony

regarding her impairments was not credible because “her testimony seemed overly vague,

dramatic and exaggerated considering the objective medical findings, and she needed

much prompting and leading by her representative.” (Administrative Record (“A.R.”) at

24-25.) The ALJ further reviewed the medical findings of three physicians who examined

Johnson and provided opinions contradictory to her testimony. Finally, the ALJ

concluded that Johnson was not disabled because her impairments are “not attended,

singly or in combination, with the specific clinical signs and diagnostic findings required

to meet or equal the requirements set forth in the Listings of Impairments ... . In this

regard we note that no treating or examining physician has mentioned findings equivalent

in severity to the criteria of any listed impairment.” (A.R. at 20.)

       With respect to Listing 1.04, we conclude that there is substantial evidence in the

record to support the ALJ’s conclusion that Johnson’s impairments do not meet or equal

                                              6
the criteria in Listing 1.04.4 In Jones, we emphasized that “‘[f]or a claimant to show his

impairment matches a listing, it must meet all of the specified medical criteria. An

impairment that manifests only some of those criteria, no matter how severely, does not

qualify.’” Id. at 504 (quoting Sullivan v. Zelby, 439 U.S. 521, 530 (1990) (emphasis in

original)). Although Johnson’s impairments exhibit some of the specified medical

criteria, as the District Court noted, there is substantial evidence in support of the ALJ’s

conclusion that her impairments fail to satisfy the entire set of criteria in 1.04 because

there is no evidence of motor loss to satisfy Listing 1.04A, no evidence of spinal

arachnoiditis to satisfy Listing 1.04B, and contradictory evidence regarding an inability to

ambulate effectively, which is required to satisfy Listing 1.04C. Furthermore, only one of

three physicians who examined Johnson opined that she was disabled.5 Therefore, the

District Court was correct in concluding that the ALJ’s finding was supported by

substantial evidence.

       B.     ALJ’s Evidentiary Basis for Assessment of Johnson’s Residual
              Functional Capacity

       Johnson argues that the ALJ failed to provide an evidentiary basis for his

conclusion that Johnson “retains the residual functional capacity to lift and carry up to


  4
   Johnson does not argue that the ALJ erred in finding that her impairments do not meet
or equal the criteria established in Listing 11.00 ff.
  5
    Although Dr. Glastein stated that Johnson was permanently disabled, Dr. Bagner
found that his objective findings did not correlate with her need for a cane or subjective
difficulties, and Dr. Patashnik concluded that she was not in acute distress and was only
limited in activities requiring prolonged walking, standing, repetitive bending, and lifting.
                                              7
twenty pounds occasionally and ten pounds frequently, sit for six hours and stand and/or

walk for two hours in an eight hour workday, and occasionally climb stairs, balance,

kneel, crouch, crawl or stoop.” (A.R. at 28.) We disagree. In his analysis of the medical

evidence, the ALJ stated that he rejected Dr. Glastein’s conclusion that Johnson was

permanently disabled because it contradicted the preponderance of the evidence.6 Dr.

Banger noted in 2000 that Johnson did not use a cane or crutches, was able to dress and

undress herself, was not uncomfortable while seated, experienced no motor abnormality,

and had normal range of motion in her shoulders, elbows, forearms, wrists, hips, knees,

and ankles. In 2002, Johnson told Dr. Potashnik that she could take care of her personal

needs, drive her car, and walk two blocks before resting. Furthermore, during Dr.

Patashnik’s examination, she could dress and undress without assistance, get on and off

the examination table without difficulty, successfully toe-and- heel walk, and demonstrate

full range of motion. She was only found to be limited with respect to prolonged walking

and standing.

       The ALJ considered two state agency physicians’ determinations in 2000 and 2001

that Johnson could occasionally lift and carry twenty pounds, frequently lift and carry ten

pounds, stand and walk six hours, sit six hours in an eight-hour work day, and

occasionally climb stairs or ramps, balance, stoop, kneel, crouch, and crawl. Dr. Banger



  6
   The ALJ also stated that he accorded “little weight” to Dr. Glastein’s opinion because
Dr. Glastein failed to distinguish between Johnson’s symptoms from two recent car
accidents and her persistent symptoms from the alleged degenerative disease.
                                             8
agreed with these findings in 2004, only differing in that he believed Johnson could sit for

an unlimited period of time and stand and walk at least two hours in an eight-hour

workday. Because the ALJ’s conclusions regarding Johnson’s residual functional

capacity are supported by substantial evidence in the record, we affirm the decision of the

District Court.

       C.     Johnson’s Subjective Complaints

       Johnson maintains that the ALJ failed to accord serious consideration to her

subjective complaints of pain, and thus, violated the Commissioner’s “pain protocol.”

The ALJ, however, specifically recognized Johnson’s subjective complaints in his

opinion, and concluded that her testimony was vague, exaggerated, coached, and contrary

to the medical evidence in the record.7 The ALJ provided a thorough analysis of the

medical evidence in the record and rendered a decision that, while contrary to Dr.

Glastein’s opinion, was based upon evidence found in the reports of the other physicians

who examined Johnson. See Adorno v. Shalala, 40 F.3d 43, 48 (3d Cir. 1994) (“The ALJ

must review all the medical findings and other evidence presented in support of the

attending physician’s opinion of total disability. In doing so, the ALJ must weigh the



  7
    This conclusion was supported by Dr. Banger’s opinion that Johnson’s subjective
complaints failed to correlate with his objective findings that Johnson had full range of
motion, was not uncomfortable while seated, and had no atrophy in the muscles in her
lower extremities. It was also supported by Dr. Glastein’s opinion that Johnson’s lumbar
decompression and spinal fusion were successful, and that home exercises could be used
to treat any persistent neck and back pain. Finally, the ALJ noted that Johnson herself
testified that over-the-counter pain medications were effective in relieving her pain.
                                             9
relative worth of a treating physician’s report against the reports submitted by other

physicians who have examined the claimant.”) (citations omitted). In light of the above

facts, we hold that the District Court was correct in deciding that substantial evidence

supported the ALJ’s decision.

III.   Conclusion

       For the foregoing reasons, the judgment of the District Court entered on

September 1, 2006 will be affirmed.




                                             10
