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John Johnson v. Commissioner of Social

March 29, 2011


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


Plaintiff, who is proceeding with retained counsel, 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 written consent of all parties, this case is before the undersigned as the presiding judge for all purposes, including entry of final judgment. See 28 U.S.C. § 636(c). Pending before the court are plaintiff's motion for summary judgment (Doc. 20) and defendant's cross-motion for summary judgment (Doc. 26).


Plaintiff applied for social security benefits on December 30, 2005. In the application, plaintiff claims that disability began on December 1, 2005. Plaintiff claims that disability is caused by a combination of "obstructive airway disease, asthma, a football size hernia, lipomas, low-average to borderline intellectual functioning, and obesity" which causes "debilitating symptoms including pain, fatigue, shortness of breath, difficulty reading and writing, and moderate limitations in concentration, persistence, and pace." Plaintiff's claim was initially denied. Following denial of reconsideration, plaintiff requested an administrative hearing, which was held on February 11, 2008, before Administrative Law Judge ("ALJ") Sandra K. Rogers. In a July 23, 2008, decision, the ALJ concluded that plaintiff is not disabled based on the following relevant findings:

1. The claimant has the following severe impairments: asthma, unrepaired abdominal hernia, an low-average to borderline intellectual functioning;

2. The claimant does not have an impairment or combination of impairments that meets or medically equals an impairment listed in the regulations;

3. The claimant has the residual functional capacity to perform the full range of light work; and

4. Considering the claimant's age, education, work experience, and residual functional capacity, [the Medical-Vocational Guidelines direct a conclusion that] there are jobs that exist in significant numbers in the national economy that the claimant can perform.

After the Appeals Council declined review on October 8, 2009, this appeal followed.


The certified administrative record ("CAR") contains the following evidence, summarized chronologically below:

January 28, 2006 -- Plaintiff completed a Daily Activities Questionnaire. Plaintiff stated that he could only walk for extremely short distances before tiring and that he requires use of a cane. He also stated that he cannot lift anything heavier than five pounds. According to plaintiff, he does no house cleaning, laundry, or yard work. He does not drive a car. Plaintiff stated that he sleeps at most three hours and that has gone several days without being able to sleep at all.

February 22, 2006 -- Agency examining psychologist James A. Wakefield, Jr., performed a psychodiagnostic evaluation of plaintiff. Dr. Wakefield recited the following background history:

John is a 45-year-old man who reports respiratory problems, asthma, and a hernia. No medical or school records were available for review.

John reports that he lives with his sister and niece. He spends the day "trying to get air." It is hard for him to breathe, and he takes Albuterol, Asmacort, and Proventil. He has trouble sleeping at night. John went to school to the 12th grade and attended remedial classes in high school. He used to go fishing but cannot go anymore due to his breathing machine. His last job was mowing a lawn a few years ago.

The doctor administered a number of psychological tests and reported the following summary and recommendations:

John is an anxious, immature-behaving 45-year-old man who reports respiratory problems, asthma, and a hernia. His intellectual ability was measured in the deficient range, although some characteristics of his responses suggest malingering. Also, his breathing treatment during the session appeared to be more for the examiner's benefit than in response to respiratory distress during the session, although the breathing machine may actually be needed at other times. Since no record showing a developmental disability during childhood was available, borderline intellectual functioning is provisionally diagnosed. Medical and school records would be helpful for clarifying this case.

Dr. Wakefield gave an Axis I diagnosis of malingering and assigned a global assessment of functioning ("GAF") score of 65 out of 100. The doctor continued his impressions as follows:

John presents himself as not able to handle money, although stronger ability in this area is suspected. His appearance is adequate. John can follow simple work rules, although his ability to complete more complicated procedures is uncertain due to reduced effort. John is able to interact with co-workers, supervisors, and the public at a minimally acceptable level. He is able to sit, stand, walk, move about, handle objects, hear, speak, and travel adequately. John's ability to reason and make occupational, personal, and social decisions in his best interest is presented as deficient. His social and behavioral functioning are immature. John's concentration, persistence, and pace are deficient.

March 1, 2006 -- Diagnostic imaging was performed incident to complaints of abdominal pain. The imaging showed a "questionable mild herniation lateral to the right side of the abdominal wall." No acute abnormality was noted.

June 22, 2006 -- Agency examining doctor Philip Seu, M.D., performed a comprehensive internal medicine evaluation of plaintiff. Dr. Seu noted the following history:

1. Asthma: The claimant states that he has had asthma since age 15. He has shortness of breath daily. He is on several different medications as well as Albuterol nebulizer, which he uses to treat his symptoms. He states this can occur at rest, exacerbated by physical exertion such as walking about half a block. He reports that he cannot sleep flat. He sleeps upright in a chair and he wakes up several times during the night. He had to go to the emergency room several times this year and most recently 3-4 weeks ago. He has never been hospitalized for asthma attacks.

2. Abdominal hernia: The claimant developed an abdominal wall hernia approximately 14 years ago and [it] has progressively increased in size. It is now approximately the size of a football. The hernia is through a previous right lower quadrant appendectomy incision. He complains of pain from the hernia. . . .

As to daily activities, plaintiff reported that he stays inside most of the time due to chronic shortness of breath. On physical examination, Dr. Seu noted plaintiff's weight at 242 pounds. The doctor observed wheezing in the left base lobe of the lungs. Plaintiff's incision hernia was soft and non-tender. Plaintiff used no assistive devices. The doctor diagnosed "[s]evere asthma" and a "[m]assive incisional abdominal wall hernia." Dr. Seu provided the following functional assessment:

The number of hours the claimant should be able to stand or walk in an eight-hour workday is about six hours with hourly breaks. This limitation is due to asthma as well [as] a large abdominal hernia.

The number of hours the claimant should be able to sit in an eight-hour day is six hours.

Assistive device: The claimant does not require any assistive device for ...

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