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Johnson v. Commissioner of Social Security

September 15, 2008


The opinion of the court was delivered by: Craig M. Kellison United States Magistrate Judge


Plaintiff, who is proceeding pro se, brings this action for judicial review of a final decision of the Commissioner of Social Security under 42 U.S.C. § 405(g). Pursuant to the consent of the parties, this case is before the undersigned for final decision on plaintiff's motion for summary judgment (Docs. 40, 43) and defendant's cross-motion for summary judgment (Doc. 41).


Plaintiff applied for social security benefits on October 12, 2004. In her application, plaintiff claims that her disability began on October 1, 2004. Plaintiff claims her disability consists of a combination of breathing problems due to chronic obstructive pulmonary disease (COPD), and leg and back pain. Plaintiff's claim was initially denied. Following denial of her request for reconsideration, plaintiff requested an administrative hearing, which was held on May 9, 2006, before Administrative Law Judge ("ALJ") John M. Bodley. In his October 25, 2006, decision, the ALJ made the following findings:

1. The claimant filed applications for a Period of Disability, Disability Insurance Benefits, and Supplemental Security Income (SSI) benefits on October 12, 2004, alleging "disability," beginning on October 1, 2004.

2. Examination of the claimant's earnings record discloses that she was insured for Title II Disability Insurance Benefits on October 1, 2004, the alleged onset of "disability" date, and remains so insured through at least December 31, 2010.

3. The claimant has not engaged in substantial gainful activity (SGA) since October 1, 2004. Her current part-time work as a home telemarketer is not generating earnings sufficient to raise the presumption of SGA (see text).

4. The claimant's "severe" impairment is chronic obstructive pulmonary disease (COPD). It is agree[d] with the State Agency Medical Consultant (and Dr. Beech) that there is no medically-determinable impairment of record to explain complaints of leg pain. In addition, despite the claimant's rather bizarre missives, there is no evidence of any medically-determinable mental impairment (see Exhibit 9E).

5. The claimant has no impairment or combination of impairments meeting or equaling in severity any impairment set forth in the Listing of Impairments in Appendix 1, Subpart P, Regulations No. 4.

6. I[t] is found that the claimant retains the following residual functional capacity (RFC): From an exertional standpoint, she is limited to "light" work activities, as defined at 20 CFR 404.1567(b), 416.967(b) (see also SSR 96-8p), with the proviso that the claimant should avoid concentrated exposure to fumes, odors, dusts, gases, and poor ventilation. There are no other non-exertional limitations (20 CFR 404.1545, 416.945). The claimant's symptom allegations to the contrary are not credible or reliable for the reasons set forth in the body of this decision. The testimony of the lay witnesses was contrived, biased, and basically a repetition of the claimant's allegations which are grossly exaggerated and not at all credible.

7. The claimant reported that she is now 49 years old, received a high school education, is literate, and has past relevant work (PRW) as a landscaper, motel maid, and home telemarketer.

8. Given the above-noted RFC, it is agreed with the State Agency that the claimant has failed to meet the burden of showing that her pulmonary impairment prevents her from doing her PRW as a home telemarketer. She admittedly is able to do this job part-time, and no reason is seen in this record why she cannot do the job on a full-time basis. It is therefore found that the claimant [is] "not disabled" at the fourth sequential step (20 CFR 404.1520(f), 416.920(f)).

9. The claimant was not under a "disability" within the meaning of the Act at any time on or before the date of this decision.

(CAR at 19). After the Appeals Council declined review on January 24, 2007, this appeal followed.


The certified administrative record ("CAR") contains the following:

(1) Medical records dated November 4, 2003 from Northern California Research Corporation (CAR 196-206);

(2) Medical records covering the period from December 3, 2003 to January 6, 2004 from Med 7 Urgent Care Facility (CAR 207-13);

(3) Internal Medicine Consultive Examination dated November 29, 2004 by MDSI Physician Group, Jenna Beech, M.D. (CAR 214-18);

(4) Medical report dated January 13, 2005 by Marvin Gatz, M.D. (CAR 219-24);

(5) Residual Functional Capacity Assessment-Physical (DDS) dated December 14, 2004 (CAR 225-34);

(6) Medical records dated March 29, 2005 from Donald Rifas, M.D. (CAR 235-38); and

(7) Medical records dated May 16, 2006 from the UC Davis Medical Center (CAR 239-239A).

Relevant Medical Records: 2003 On November 4, 2003, plaintiff had a Pulmonary Function Test. The report indicates a moderate obstructive pulmonary impairment, "indicated by the finding of a moderate reduction in the forced expired volume in one second as a [percentage] of the forced vital capacity (FEV1/FVC). The degree of functional impairment reflected by the reduction in forced expired volume in the first second (FEV1) is found to be mild." (CAR at 196).

Plaintiff was seen on December 3, 2003 at the Urgent Care Center by Dr. Dean Kim. Dr. Kim noted that plaintiff brought in a pulmonary function test, which indicated mild Chronic Obstructive Pulmonary Disease (COPD). Dr. Kim diagnosed plaintiff with COPD, but did not indicate any treatment, follow-up, or limitations. Plaintiff was simply instructed to recheck as needed.


There are medical records indicating that plaintiff was seen on January 6, 2004 at the Urgent Care Center by Dr. Kim, but there are no medical notes from that visit. The medical record simply states her chief complaint was "PP" and "COLD," and gives plaintiff's weight. The only other notation, beyond Dr. Kim's signature, is "VOID."

On November 29, 2004, plaintiff had a comprehensive internal medicine evaluation by Dr. Jenna Beech. Plaintiff's chief complaints were breathing and leg pain. Dr. Beech noted she had a copy of the pulmonary function test from November 2003. Petitioner indicated that she has become increasingly short of breath over the past 20 years, including the inability to walk distances further than two blocks, and becoming short of breath when talking. She also indicated increased leg pain, "right greater than left calf pain" which is worse with standing and better with sitting. Plaintiff stated she was able to do her own hygiene, cook, do dishes, vacuum, and laundry with frequent breaks. All of plaintiff's medications were over-the-counter, and she was not on any prescription medication. Dr. Beech noted plaintiff did not speak with significantly shortened sentences. On examination, Dr. ...

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