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Johnson v. Berryhill

United States District Court, W.D. Virginia, Big Stone Gap Division

February 23, 2017

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

          MEMORANDUM OPINION

          Pamela Meade Sargent United States Magistrate Judge.

         I. Background and Standard of Review

         Plaintiff, Brian M. Johnson, (“Johnson”), filed this action challenging the final decision of the Commissioner of Social Security, (“Commissioner”), denying his claims for disability insurance benefits, (“DIB”), and supplemental security income, (“SSI”), under the Social Security Act, as amended, (“Act”), 42 U.S.C.A. §§ 423 and 1381 et seq. (West 2011 & West 2012). Jurisdiction of this court is pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3). This case is before the undersigned magistrate judge upon transfer by consent of the parties pursuant to 28 U.S.C. § 636(c)(1). Neither party has requested oral argument; therefore, this case is ripe for decision.

         The court's review in this case is limited to determining if the factual findings of the Commissioner are supported by substantial evidence and were reached through application of the correct legal standards. See Coffman v. Bowen, 829 F.2d 514, 517 (4th Cir. 1987). Substantial evidence has been defined as “evidence which a reasoning mind would accept as sufficient to support a particular conclusion. It consists of more than a mere scintilla of evidence but may be somewhat less than a preponderance.” Laws v. Celebrezze, 368 F.2d 640, 642 (4th Cir. 1966). “‘If there is evidence to justify a refusal to direct a verdict were the case before a jury, then there is “substantial evidence.”'” Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990) (quoting Laws, 368 F.2d at 642).

         The record shows that Johnson protectively filed his applications for DIB and SSI on February 13, 2012, alleging disability as of August 1, 2010, due to fibromyalgia; degenerative disc disease; social anxiety; depression; gastroesophageal reflux disease, (“GERD”); irritable bowel syndrome, (“IBS”); arthritis in his knees; a torn tendon of the left ankle; osteoarthritis; and high blood pressure. (Record, (“R.”), at 213-22, 238, 241.) The claims were denied initially and upon reconsideration. (R. at 70-79.) Johnson then requested a hearing before an administrative law judge, (“ALJ”). (R. at 80.) The ALJ held a hearing on July 9, 2014, [2] at which Johnson was represented by counsel. (R. at 40-59.)

         By decision dated July 16, 2014, the ALJ denied Johnson's claims. (R. at 15-28.) The ALJ found that Johnson met the nondisability insured status requirements of the Act for DIB purposes through December 31, 2013. (R. at 17.) The ALJ found that Johnson had not engaged in substantial gainful activity since August 1, 2010, the alleged onset date.[3] (R. at 17.) The ALJ found that the medical evidence established that Johnson had severe impairments, namely degenerative disc disease of the cervical, thoracic and lumbar spine; major depressive disorder, recurrent, moderate; generalized anxiety disorder with panic attacks, specified; social anxiety disorder; and adjustment disorder with depressed mood, but he found that Johnson did not have an impairment or combination of impairments that met or medically equaled one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. (R. at 17-18.) The ALJ found that Johnson had the residual functional capacity to perform simple, unskilled, light work[4] that did not require more than frequent contact with co-workers, supervisors and the public; that did not require more than occasional postural activities; and that did not require him to climb ladders, ropes or scaffolds or to work around concentrated exposure to work hazards. (R. at 19.) The ALJ found that Johnson was unable to perform his past relevant work. (R. at 26.) Based on Johnson's age, education, work history and residual functional capacity and the testimony of a vocational expert, the ALJ found that a significant number of other jobs existed in the national economy that Johnson could perform, including jobs as a general cashier, a cafeteria attendant and a housekeeper/cleaner. (R. at 26-27.) Thus, the ALJ concluded that Johnson was not under a disability as defined by the Act, and was not eligible for DIB or SSI benefits. (R. at 27-28.) See 20 C.F.R. §§ 404.1520(g) 416.920(g) (2016).

         After the ALJ issued his decision, Johnson pursued his administrative appeals, (R. at 8-11), but the Appeals Council denied his request for review. (R. at 1-5.) Johnson then filed this action seeking review of the ALJ's unfavorable decision, which now stands as the Commissioner's final decision. See 20 C.F.R. §§ 404.981, 416.1481 (2016). This case is before this court on Johnson's motion for summary judgment filed June 9, 2016, and the Commissioner's motion for summary judgment filed July 11, 2016.

         II. Facts

         Johnson was born in 1974, (R. at 213, 217), which classifies him as a “younger person” under 20 C.F.R. §§ 404.1563(c), 416.963(c). Johnson obtained his general education development, (“GED”), diploma and has past work experience as a pharmacy stock clerk; a delivery or moving van driver; a cutting machine operator; a route sales driver; and an auto parts clerk. (R. at 54.) Johnson testified that he was able to work two years earlier. (R. at 43.) He stated that he would have started his “social security case earlier, ” but he was “draw[ing] out” his unemployment and hoping he would get back surgery. (R. at 43.) Johnson stated that his right leg would “go out on” him. (R. at 44.) He stated that he used a cane full-time, unless he was at home. (R. at 44.) Johnson stated that his treating physician, Dr. Kanwal, did not write him a prescription for using a cane, but told him to “go ahead and use” it. (R. at 44-45.)

         On his function report, dated November 14, 2012, Johnson stated that he could walk a mile, but needed to rest 25 minutes before starting again. (R. at 261.) He prepared his own meals daily and could do laundry, dust, sweep, mop, wash dishes and clean the toilet. (R. at 258.) He went outside every day; mowed the grass; drove; shopped twice monthly for an hour; and handled his finances. (R. at 259.) He reported that he read, watched television and talked to his friends on the phone. (R. at 260.) Johnson indicated that he used a cane, but clearly indicated that it was not prescribed. (R. at 262.)

         Adrian Bentley Hankins, a vocational expert, also was present and testified at Johnson's hearing. (R. at 53-58, 208-10.) Hankins was asked to consider a hypothetical individual of Johnson's age, education and work history, who would be limited to simple, unskilled, light work that did not require more than occasional postural activities; that did not require climbing ropes, ladders, scaffolds or working around concentrated exposure to hazards; and that did not require more than frequent contact with co-workers, supervisors and the public. (R. at 55.) Hankins stated that the individual could perform jobs existing in significant numbers in the national economy, including those of a general cashier, a cafeteria attendant and a housekeeper/cleaner. (R. at 55.) Hankins was asked to consider the same individual, but who would require a sit/stand at will option. (R. at 56.) He stated that there would be jobs available that such an individual could perform, including jobs as a parking lot or gas station booth cashier, an electrical components assembler and a mail clerk. (R. at 56.)

         Hankins was asked to consider the same individual as identified in the first hypothetical, but who would be limited to sedentary[5] work. (R. at 56-57.) He stated that there would be jobs available that such an individual could perform, including jobs as an addressing clerk, a food and beverage order clerk and a hand pull sealer/packager. (R. at 56-57.) Hankins stated that it would be difficult for a person to maintain competitive employment should he be absent from work more than one day a month. (R. at 58.)

         In rendering his decision, the ALJ reviewed records from Wise County Public Schools; Frank Kupstas, Ph.D., a state agency psychologist; Rebecca Joslin, Ed.D., a state agency psychologist; Frontier Health, Inc.; Holston Medical Group; Bon Secours St. Mary's Norton; Lonesome Pine Hospital; Coeburn Hospital Clinic, Inc.; Dr. G.S. Kanwal, M.D.; Indian Path Medical Center; Holston Valley Hospital Medical Center; Norton Community Hospital; B. Wayne Lanthorn, Ph.D., a licensed clinical psychologist; Elizabeth A. Jones, M.A., a licensed senior psychological examiner; and Diane L. Whitehead, Ph.D., a licensed clinical psychologist.

         In November 2001, Johnson was seen at Frontier Health, Inc., for complaints of severe depression. (R. at 376-78.) Johnson stated that he was getting to the point to where he “could be dangerous.” (R. at 378.) He stated that he had not participated in counseling other than court-ordered anger management. (R. at 378.) Johnson failed to keep his scheduled appointments in December 2001 and January 2002. (R. at 370-71.) Johnson was next seen on July 1, 2002, with complaints of depression and panic attacks. (R. at 374-75.) On August 2, 2002, Johnson again complained of depression and panic attacks. (R. at 337-47.) James Kegley, M.S., diagnosed major depressive disorder, recurrent, moderate. (R. at 342.) Kegley assessed Johnson's then-current Global Assessment of Functioning, (“GAF”), [6]score at 55.[7] (R. at 342.) Kegely opined that Johnson had no functional limitations. (R. at 352.) Johnson participated in counseling on October 10, 2002. (R. at 366.) Kegley noted that Johnson was mildly depressed with a flat affect. (R. at 366.) On December 17, 2002, Johnson's case was closed due to noncompliance.[8] (R. at 353.)

         On December 10, 2003, an MRI of Johnson's cervical spine showed degenerative disc disease with mild broad-based disc with mild flattening of the thecal sac at the C3-4 disc space; mild central disc protrusion with flattening of the thecal sac and relative loss of the ventral cerebrospinal fluid space resulting in mild acquired central canal stenosis at the C4-5 disc space; and minimal left posterolateral disc protrusion with mild left neural foraminal stenosis at the C5-6 disc space. (R. at 382.) An MRI of Johnson's lumbar spine showed mild degenerative disc disease. (R. at 382-83.)

         On January 21 and 24, 2006, Johnson presented to the emergency room at Holston Valley Hospital Medical Center, (“Holston Valley”), with complaints of back pain. (R. at 748-56.) X-rays of Johnson's lumbar spine were normal. (R. at 751.) He was diagnosed with chronic back pain/strain. (R. at 748, 754.) On June 24, 2007, Johnson presented to the emergency room with complaints of back pain. (R. at 699-705.) Johnson was diagnosed with acute lumbar strain. (R. at 700.) On September 5, 2007, Johnson presented to the emergency room with complaints of back pain. (R. at 695-98.) He was diagnosed with chronic back pain. (R. at 695.) On January 5 and 8, 2008, Johnson presented to the emergency room with complaints of neck and shoulder pain. (R. at 679-87.) X-rays of Johnson's right shoulder were normal. (R. at 683.) He was diagnosed with thoracic muscle strain. (R. at 685.) On February 20, 2008, Johnson presented to the emergency room with complaints of right leg and back pain after falling down some steps. (R. at 668-75.) X-rays of Johnson's lumbar spine showed mild spondylosis of the lower thoracic spine; slight spondylosis involving the anterior endplate margins of the lower thoracic spine; and a normal lumbar spine. (R. at 674.) On April 18, 2009, Johnson presented to the emergency room with complaints of chronic back pain after falling in the shower. (R. at 652-57.) X-rays of Johnson's lumbar spine were normal. (R. at 657.) He was diagnosed with back strain. (R. at 653.)

         On September 14 and 16, 2010, Johnson presented to the emergency room at Holston Valley with complaints of right leg, thigh and hip pain after sleeping in a hospital chair. (R. at 621-29.) He was diagnosed with lumbar radiculopathy and right leg sprain. (R. at 622, 627.) On September 20, 2010, October 13 and 29, 2010, and January 16 and 30, 2011, Johnson presented to the emergency room with complaints of back pain. (R. at 591-600, 606-20.) He was diagnosed with low back pain and sciatica. (R. at 592, 597, 607, 612, 617.) On May 1, 18, 21 and 25, 2011, Johnson presented to the emergency room with complaints of neck pain. (R. at 569-90.) He was diagnosed with cervical radiculopathy and cervical nerve root compression syndrome. (R. at 575, 585.) X-rays of Johnson's cervical spine showed disc space narrowing at the C4-C5 disc space. (R. at 589.)

         On June 14, 2013, Johnson presented to the emergency room with complaints of right leg and back pain. (R. at 499-503.) Johnson denied extremity weakness. (R. at 499.) Johnson denied emotional or cognitive complaints. (R. at 501.) Upon examination, Johnson had no tenderness in his back; his neck was supple without significant adenopathy or mass; he had clear breath sounds bilaterally without rales, rhonchi or wheezing; he had no lower extremity weakness or sensory findings; he had normal strength and tones; his reflexes were equal and symmetrical; he walked without difficulty; he had adequate range of motion; he had no significant deformity of the lower back; he had right paravertebral ...


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