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Johnson v. Saul

United States District Court, W.D. Wisconsin

August 23, 2019

ANDREW SAUL, Commissioner of the Social Security Administration, Defendant.



         Plaintiff Emily Johnson seeks judicial review of a final decision of defendant Andrew Saul, Commissioner of the Social Security Administration, finding Johnson not disabled within the meaning of the Social Security Act. Johnson contends that the administrative law judge, Deborah Giesen, erred by: (1) failing to adequately consider whether she satisfied Listing 12.04 for depressive, bipolar, and related disorders; (2) conducting a flawed analysis of her credibility; (3) failing to give due weight to her hospitalizations for self-harm and suicidal ideation; (4) giving more weight to the state agency consultants than to Johnson's treatment providers; and (5) failing to adequately consider her global assessment function score (GAF).[1]

         The court rejects each of these contentions and will affirm the commissioner's decision. The oral argument scheduled for August 29, 2019, is cancelled.


         Johnson applied for disability benefits in 2015 when she was 28, alleging that she had been disabled since 2012. In an April 2018 decision, the ALJ found that Johnson suffered from three severe impairments: anxiety disorder, depressive disorder, and borderline personality disorder. (The ALJ also found that Johnson suffered from several nonsevere impairments, but they aren't the subject of Johnson's appeal, so the court won't consider them.) In light of Johnson's impairments, the ALJ found in her residual functional capacity assessment (RFC) that Johnson could perform the full range of all exertional levels but limited her to “simple, routine tasks and low stress work where changes are infrequent.” R. 21.[2] Johnson could have “occasional interaction with coworkers and supervisors and no interaction with the public.” Id. Relying on the testimony of a vocational expert, the ALJ found that Johnson couldn't perform her past job as a customer complaint clerk on a full-time basis but that she could perform jobs as an industrial cleaner, a laundry laborer, and a small products assembler.

         A. Listing 12.04

         An ALJ must find that a claimant is disabled if the claimant's impairments meet or are “medically equal” in severity to an impairment on the list of pre-determined disabling impairments. Curvin v. Colvin, 778 F.3d 645, 650 (7th Cir. 2015); 20 C.F.R. § 404.1529(d)(3). It is the plaintiff's burden to show that she meets a listing. Eskew v. Astrue, 462 Fed.Appx. 613, 616 (7th Cir. 2011); Knox v. Astrue, 327 Fed.Appx. 652, 655 (7th Cir. 2009).

         In this case, Johnson says that the ALJ erred in her analysis of Listing 12.04, which is for “depressive, bipolar and related disorders.” See 20 C.F.R. § Pt. 404, Subpt. P, App. 1, § 12.04. That listing has three groups of criteria, which are called “A, ” “B, ” and “C.” The ALJ assumed that Johnson satisfied the “A” criteria, so the court need not discuss those.

         As for the “B” criteria, a claimant must have a “marked” limitation in two or an “extreme” limitation in one of the following areas of mental functioning: (1) understanding remembering, or applying information; (2) interacting with others; (3) concentrating, persisting, or maintaining pace; and (4) adapting or managing oneself. The ALJ found that Johnson had mild or moderate limitations for each area; Johnson contends that the ALJ should have found that she had marked or extreme limitations in all four areas. As for the “C” criteria, the claimant's “mental disorder” must be “serious and persistent” and medically treated and result in “marginal adjustment.” The ALJ assumed that Johnson had received medical treatment for a serious and persistent medical disorder, but the ALJ found that the disorder had not resulted in marginal adjustment. R. 20.

         In his opposition brief, the commissioner says that Johnson hasn't identified any errors in the ALJ's analysis; rather, she simply disagrees with the ALJ's conclusions and is asking the court to reweigh the evidence, which is not permitted. Walker v. Berryhill, 900 F.3d 479, 482- 83 (7th Cir. 2018). The commissioner also says that any challenge to the ALJ's conclusion about Listing 12.04 fails because the ALJ gave great weight to the opinions of the consulting psychiatrists, neither of whom found that Johnson's impairments meet or equal that listing. See Scheck v. Barnhart, 357 F.3d 697, 700 (7th Cir. 2004) (rejecting plaintiff's contention that he met or equaled a listing when two consultants rejected that view).

         Johnson doesn't meaningfully respond to the commissioner's arguments. See Bonte v. U.S. Bank, N.A., 624 F.3d 461, 466 (7th Cir. 2010) (“Failure to respond to an argument . . . results in waiver.”). In fact, Johnson mentions Listing 12.04 only once in her reply brief.

         Specifically, Johnson says that that the record doesn't support the ALJ's finding that she “does not need reminders to take her medication.” R. 19. She points to a statement in 2015 from a treatment provider: “Emily has a history of taking medications inconsistently. She does not believe setting an alarm will help this, as she says she has tried that before and it did not help.” R. 694. Johnson says that the factual error undermines the ALJ's finding that she didn't have a marked or extreme limitation in concentration, persistence, or pace under the B.3 criteria.

         Johnson doesn't explain how difficulty with remembering to take her medications relates to concentration, persistence, or pace. Rather, it appears to relate to Johnson's memory. And the ALJ rejected a view that Johnson had marked or extreme memory limitations because mental status exams showed that Johnson had “intact recent and remote memory.” R. 19. Johnson doesn't challenge that finding. So even if it is true that Johnson has had difficulty remembering to take her medication, the court isn't persuaded that it is enough to show that the ALJ erred in finding that Johnson doesn't have a marked or extreme limitation. And the court agrees with the commissioner that Johnson's remaining arguments about the listing are simply criticisms of the way the ALJ weighed the evidence. Because this court cannot second guess the ALJ's determinations regarding the importance of particular evidence, Johnson's argument under Listing 12.04 fails.

         B. ...

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