United States District Court, D. Connecticut
RULING AND ORDER ON PENDING MOTIONS
A. BOLDEN UNITED STATES DISTRICT JUDGE
October 2, 2017, Heidi Johnson (“Plaintiff”)
filed this administrative appeal under 42 U.S.C. §
405(g), 1383(c)(3), and the Due Process Clause of the Fifth
Amendment to the United States Constitution against Nancy A.
Berryhill, Acting Commissioner of Social Security
(“Defendant” or “Acting
Commissioner”), seeking this Court's review of the
decision of the Social Security Administration
(“SSA”) denying her claim for Title II and Title
XVI disability benefits under the Social Security Act.
Complaint (“Compl.”), ECF No. 1.
Johnson moves to reverse the decision of the Acting
Commissioner. First Mot. to Reverse the Decision of the
Commissioner (“Pl. Mot. to Reverse”), ECF No. 19.
She also asks the Court to consider her claims in light of
the Supreme Court's Appointments Clause decision,
Lucia v. S.E.C., 138 S.Ct. 2044, 2046 (2018). Notice
of New Authority, ECF No. 30.
Acting Commissioner moves the Court to affirm her decision,
Mot. to Affirm the Decision of the Comm'r (“Def.
Mot. to Affirm”), ECF No. 26; and dismiss
Plaintiff's Appointments Clause claim, Mot. to Dismiss
Pls. Appointments Clause Claim, ECF No. 35.
reasons set forth below, the Court now
GRANTS Ms. Johnson's motion to reverse
the decision of the Acting Commissioner, ECF No. 19;
DENIES the Acting Commissioner's motion
to affirm the decision; and GRANTS the
Acting Commissioner's motion to dismiss Ms. Johnson's
Appointments Clause claim, Mot. to Dismiss Pls. Appointments
Clause Claim, ECF No. 35.
FACTUAL AND PROCEDURAL BACKGROUND
August 3, 1961, Heidi May Johnson worked in various positions
at Wal-Mart, from June 1998 until March 2014. Tr. at 230;
Transcript of the Administrative Record (“Tr.”),
ECF Nos. 15-2-15-14, at 96. From January 2010 to March 2014,
Ms. Johnson also worked as home health aide for Companions
& Homemakers. Id.
September 16, 2013, Ms. Johnson allegedly injured her right
neck, shoulder, and arm while working for Companions &
Homemakers and lifting a non-ambulatory patient from a bed to
a wheelchair. Disability Report, Tr. 236. Ms. Johnson
allegedly received worker's compensation for the injury
for roughly six months. Id.
February, March, and April of 2014, Ms. Johnson was allegedly
hospitalized for fainting, seizures, and tremors. Transcript
of Hearing before Administrative Law Judge Louis Bonsangue
(“ALJ Hearing”), Tr. 55; Disability Report, Tr.
232. Ms. Johnson allegedly tried to return to work at
Wal-Mart after her hospitalizations, she allegedly seized and
could not perform work. Tr. at 74; Disability Report, Tr.
237. Since then, Ms. Johnson has allegedly experienced four
to five psychogenic seizures per month. Tr. at 58-59,
72-73; see also Hartford Hospital, Psychology
Progress Notes, Tr. 1162-75.
November 24, 2014, Ms. Johnson allegedly underwent surgery to
remove “an acute right subdural hematoma.”
Psychiatric Consultation, Tr. 1266. Shortly after that
surgery, she underwent speech, occupational, and physical
therapy, including training in the use of a walker.
Rehabilitation Admission, Tr. 1269-70. She then was admitted
to Crestfield Rehabilitation Center for assistance with a
variety of self-care skills, including how to choose
clothing, food, and activities. SLP Evaluation & Plan of
Treatment, Tr. 1351-52. At that time, Ms. Johnson was
considered a risk for falls, compromised general health,
dehydration, and further decline in function. Id. at
Johnson allegedly cannot drive due to her seizures, and
cannot cook or clean like she did before the seizures.
Disability Report, Tr. 237; Work History Report, Tr. 245
(“I have also had to give up driving.”);
Activities of Daily Living, Tr. 246 (reporting that she can
go to the grocery store and doctor's appointments only
when she can get a ride); Note of John Schifferdecker, M.D.,
Tr. 1407 (Feb. 12, 2015, “Please be advised that Ms.
Heidi Johnson is under my care . . . . suffers from
convulsions and due to this is unable to drive.”).
Because of the injury she sustained as a home health aide,
Ms. Johnson allegedly does not have full strength or range of
motion on her upper right side. Work History Report, Tr. 253
(“I am unable to . . . lift laundry baskets.”);
Activities of Daily Living, Tr. 249 (reporting that she uses
her non-dominant left hand for chores such as dusting and
that she has trouble holding the ink dabber for BINGO).
24, 2014, Ms. Johnson summarized the impact of her conditions
I used to be able to work two jobs and go places without
asking for a ride. My life has changed completely because of
my seizures. I never know when I will have one until the very
last minute. Someone has to carry my laundry, my groceries
and take me every where I need to go. I am no longer
independent. My seizures flared up at church last week and I
missed half the service! The seizures also affect me
financially, since I am unable to work or drive. I am not
able to go where I want, when I want. I've lost my
freedom to do what I used to.
of Daily Living, Tr. 253.
August 26, 2014, the Social Security Administration denied
Ms. Johnson's claim for disability benefits for
“non-epileptic seizures, vasovagal syncope, peripheral
neuropathy, herniated discs . . ., arthritis, Type II
Diabetes Mellitus, Hyperlipidemia[, ] Hypomagnesmia and
Palpitations.” Decision on Claim for Disability
Insurance Benefits, Tr. at 121-24.
September of 2014, Ms. Johnson requested reconsideration of
her claim. Tr. at 133. On December 15, 2014, the Social
Security Administration again denied Ms. Johnson's claim
for disability insurance benefits. Tr. at 130-32.
January 9, 2015, Ms. Johnson requested a hearing by an
Administrative Law Judge (“ALJ”). Request for
Hearing, Tr. at 133. On June 13, 2016, Ms. Johnson's
appeal was heard by ALJ Bonsangue. ALJ Hearing. Ms. Johnson
was nearly 55 years old at the hearing. Tr. 96.
hearing, Ms. Johnson explained that seizure medication had
helped to control the seizures in the top part of her body,
but she still had leg seizures roughly twice a week. ALJ
Hearing, Tr. 58-60. She also reported episodes of fainting
two to three times per month. ALJ Hearing, Tr. 72-73. Ms.
Johnson stated that she had to elevate her legs for around
thirty to sixty minutes twice a week to alleviate swelling.
Id. at 62-63. Ms. Johnson reported using a cane much
of the time, but testified that she was able to navigate the
stairs of her home and take out the trash without a cane.
Id. at 66-67. Ms. Johnson also described recurrent
shoulder pain and hand tremors that occurred three to four
times per week. Id. at 68-70.
Johnson told the ALJ that she did not feel she could use a
keyboard, but she could shop for groceries and get her
groceries from the bus to the house. Id. at 70-72.
She noted, though, that she had passed out and fallen when
getting off of the bus a month before the hearing.
Id. at 74-75. In her memorandum of law, Ms. Johnson
also explained to the ALJ, that, in addition to her
non-epileptic seizure disorder, upper right side and right
hand impairments, and chronic health conditions (e.g., Type
II Diabetes Mellitus), she suffers from learning
disabilities. Claimant's Mem. of Law in Supp. of a
Disability Finding, Tr. 294, 297. Ms. Johnson allegedly
earned a special education certificate, not a high school
also heard from a vocational expert who holds a Master's
degree in Education, with a specialization in rehabilitation
counseling. Resume of Vocational Expert, Tr. 287-88. He
testified that Ms. Johnson's Wal-Mart positions had
ranged from light to medium exertion and from unskilled to
low level semi-skilled. ALJ Hearing, Tr. 79-80. He testified
that her home health aid job would be classified as a medium
exertion semi-skilled position. Id. at 80-81. The
ALJ asked the vocational expert to consider whether a
hypothetical person of Ms. Johnson's age, education
level, past relevant work, limited to light exertional lift
with only occasional climbing, stooping, kneeling, crouching,
crawling, or overhead reaching with the right upper
extremity, could perform any of the work that Ms. Johnson had
previously performed. Id. at 81-82.
vocational expert testified that this person could perform
the jewelry sales person, stock checker position, and
cashier/checker positions that Ms. Johnson had performed at
Wal-Mart. Id. at 82. The vocational expert then
testified that there were over one million jobs nationwide
with a comparable exertional and skill level as the ALJ's
hypothetical. Id. at 83-84. The ALJ asked the
vocational expert how his answer would change if the
hypothetical worker could reach in any directly only
occasionally. Id. at 84-85.The vocational expert
testified that that restriction “would preclude any of
[Ms. Johnson's] past work . . . . and it would also
preclude the positions that [the vocational expert had]
outlined at the unskilled level.” Id. at 86.
The ALJ then asked about a person that could reach, but had
to use a cane. Id. at 87. The vocational expert
stated that the Dictionary of Occupational Titles did not
discuss canes, Tr. 87, but that, in his experience doing job
placement, this limitation would preclude the stock checker
and jewelry sales positions, but not a seated cashier
position. Id. at 87-88. If the cane was needed for
balance, the vocational expert felt that no light work could
be performed, including a cashier position. Id. at
89. The ALJ added that the hypothetical worker might have
four to five seizures per month without warning, to which the
vocational expert responded:
First off, my experience is that frequent seizure activity on
the job is not well-tolerated . . . . Your hypothetical
essentially talks about five times a month absences . . . .
That's well above average absence which is about seven
and three-quarters days per year and I have queried employers
and most employers can't tolerate more than one to as
high as 1.25 days monthly. So your five a month would not be
Id. at 91.
August 2, 2016, the ALJ issued an unfavorable decision.
Notice of Decision - Unfavorable (“ALJ
Decision”), Tr. at 23-36. The ALJ determined that Ms.
Johnson's last insured date was December 31, 2019. ALJ
Decision, Tr. 28.
One, the ALJ determined that Ms. Johnson had not engaged in
substantial gainful activity since February 18, 2014. Tr. 28.
Two, the ALJ determined that Ms. Johnson had several
“severe impairments: non-epileptic seizure disorder,
degenerative disc disease of the cervical and lumbar spines,
cervicalgia and right rotator cuff tendonitis with an
impingement syndrome and obesity (20 CFR 404.1520(c)).”
Three, the ALJ found that Ms. Johnson “does not have an
impairment or combination of impairments that meets or
medically equals the severity of one of the listed
impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR
404.1520(d), 404.1525 and 404.1526)”, Tr. 29, and that
Ms. Johnson had the residual functional capacity to perform
light work with certain limitations, Tr. 30.
Four, the ALJ determined that Ms. Johnson “is capable
of performing past relevant work as a cashier checker”
and that this “work does not require the performance of
work-related activities precluded by the claimant's
residual functional capacity (20 CFR 404.1565).”
Five, the ALJ concluded that Ms. Johnson “has not been
under a disability, as defined in the Social Security Act,
from February 18, 2014, through the date of this decision (20
CFR 404.1520(f)).” Tr. 36.
August 2, 2016, Ms. Johnson requested agency review of the
ALJ's decision. Notice of Appeals Council Action, Tr. 1.
August 18, 2016, Dr. Sadaf Khorasanizadeh, M.D., a
neurologist that had treated Ms. Johnson since 2014, wrote a
letter for her appeal stating that he did “not expect
complete recovery to the point that patient can return to
work.” Sadaf Khorasanizadeh, Letter re: Social Security
Appeal, Tr. at 22.
September 8, 2017, the Social Security Appeals Council
affirmed the ALJ's decision. Notice of Appeals Council
Action, Tr. 1-3.
October 2, 2017, Ms. Johnson filed this appeal. Compl.
December 12, 2017, Defendant filed an Answer and the
administrative record. Answer, ECF No. 15.
March 8, 2018, Ms. Johnson moved to reverse the decision of
the Acting Commissioner, arguing that the ALJ: (1) failed to
develop the record; (2) mechanically applied the age criteria
of the Medical-Vocational Guidelines; (3) failed to establish
whether Ms. Johnson's cashier checker position was past
relevant work; (4) incorrectly found that Ms. Johnson could
perform light work; (5) incorrectly found that Ms. Johnson
could reach in all directions with her dominant hand; (6)
incorrectly reached decisions about the intensity,
persistence, and limiting effects of Ms. Johnson's
symptoms; (7) failed to acknowledge or comply with the
treating physician rule; and (8) failed to develop the record
or resolve an inconsistency as to Ms. Johnson's education
level. Mem. of Law in Supp. of Mot. for Order Reversing the
Comm'ners Decision (“Pl. Mem. of Law”), ECF
Johnson further argued that the Social Security Appeals
Council mechanically applied the age criteria of the
Medical-Vocational Guidelines, id. at 5, and that
the Commissioner failed to provide regional job numbers,
failed to demonstrate a significant number of jobs
nationally, and had an insufficient evidentiary basis for the
job estimates. Id. at 20-22.
4, 2018, Ms. Johnson informed the Court that the Social
Security Administration had granted her December 7, 2017
Social Security disability benefits application with an onset
date of August 3, 2016, the day after the ALJ denial. Notice
of Grant of Pl.'s Subsequent Application, ECF No. 21.
19, 2018, the Commissioner moved to affirm the decision. Def.
Mot. to Affirm.
18, 2018, Ms. Johnson filed a reply to Defendant's motion
to affirm. Pl.'s Reply to Def.'s Mem. of Law in Supp.
for an Order Affirming the ...