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Johnson v. Berryhill

United States District Court, E.D. Kentucky, Central Division, Lexington

March 7, 2017

VICKY L. JOHNSON, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security[1], Defendant.

          MEMORANDUM OPINION AND ORDER

          Danny C. Reeves United States District Judge.

         This matter is pending for consideration of cross-motions for summary judgment filed by Plaintiff Vicky L. Johnson (“Johnson”) [Record No. 12] and Nancy A. Berryhill, Acting Commissioner of Social Security (“the Commissioner”). [Record No. 14] Having reviewed the record, and for the reasons that follow, the Commissioner's motion will be granted. Conversely, the relief sought by Johnson will be denied.

         I.

         Johnson applied for supplemental security income and a period of disability and disability insurance benefits in February 2013, alleging an onset disability date of December 31, 2008.[2] [Tr. 180] After being denied benefits initially and upon reconsideration, Johnson requested an administrative hearing. [Tr. 11, 102-09, 112-26] Thereafter, Administrative Law Judge (“ALJ”) Bonnie Kittinger issued a written opinion concluding that Johnson was not disabled under the Social Security Act (“Act”). [Tr. 94] Johnson subsequent request for review by the Appeals Council was denied. [Tr. 1] She has now exhausted her administrative remedies and this case is ripe for this Court's review pursuant to 42 U.S.C. § 1383(c).

         On the forms completed in connection with her application for benefits, Johnson listed having worked: 40 hours per week as a dispatcher for a trucking company from 1993 to 1995; 40 hours per week in “light industrial, ran machines, ” through “temp services” from 1996 to 1999; 40 hours per week doing “factory work inspection” for temp services; and 15 hours per week as a cashier for Gold Star Chili. [Tr. 213] For one position, Johnson identified her job title as “secretary”. She reported working as a secretary for a fencing business for 40 hours per week at $10/hour from 2004 to May of 2008. [Tr. 213] Likewise, in another form Johnson identified working for 40 hours per week at $10/hour for a fencing business from January 2004 to January 2008, listing her job title as “Secretary.” [Tr. 242] She described this position in more detail on this form, stating that she “answered [the] phone, took messages, faxed job bids, insurance forms, [and] cleaned [the] office.” [Tr. 243] Johnson also confirmed that she engaged in “writing, complete[d] reports, ” or performed similar duties. [Id.] She then reported lifting and carrying “papers . . . to [the] file cabinet, fax machine[, ] copier, ” but asserted having lifted no more than 10 pounds. [Id.] For 2004, Johnson identified earnings of $7, 263.00 from self-employment. [Tr. 200] However, for 2005, 2006, 2007, and 2008, she listed no earnings.

         Johnson was 60 years of age at the time of the administrative hearing. [Tr. 16] Additionally, she has a high school education and completed one year of college where she studied criminal justice. [Id.] Johnson claims she became unable to work due to pain in her hip, back, and leg that caused discomfort while sitting or standing for extended periods. [Tr. 20] At the beginning of the administrative hearing, Johnson's attorney confirmed that he had reviewed the record and had no objections. [Tr. 14] The ALJ then asked whether the record was complete. Counsel replied that he had requested the records of a new primary care physician, but did not indicate any other concerns. [Tr. 14]

         Johnson testified that her last job was with Goldstar Chili, but that she had been let go because she “wasn't catching on to the register” and she “didn't move as fast as they wanted [her] to.” [Tr. 19] Prior to this position, she worked for a fencing business. [Tr. 20] The ALJ and Johnson had the following exchange regarding Johnson's work for the fencing business:

Q: Were you a secretary?
A: Yes. I was the, well, secretary and kind of runner for parts and things like that.
Q: Okay. And what was the heaviest thing you lifted on that job?
A: I would say probably 20, 30 pounds.
Q: What would have weighed 20 or 30 pounds?
A: You know, a part, like a tractor part, a tire part, inch ...

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