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Johnson v. Colvin

United States District Court, E.D. Missouri, Eastern Division

September 8, 2016

MARK JOHNSON, Plaintiff,
v.
CAROLYN COLVIN, Acting Commissioner of Social Security, Defendant.

          MEMORANDUM AND ORDER

          AUDREY G. FLEISSIG UNITED STATES DISTRICT JUDGE.

         This action is before the Court for judicial review of the final decision of the Commissioner of Social Security finding that Plaintiff Mark Johnson was not disabled as of the last date of his insured status, and, thus, not entitled to disability insurance benefits under Title II of the Social Security Act, 42 U.S.C. §§ 401-434. For the reasons set forth below, the decision of the Commissioner will be affirmed.

         BACKGROUND

         Plaintiff, who was born on September 26, 1957, was deemed 30% disabled by the Veterans' Administration (“VA”) effective August 4, 1981, due to a service related nervous condition (linked to the explosion on the deck of the USS Nimitz in May 1981 in which Plaintiff was injured and witnessed the death and dismemberment of friends). (Tr. 153.) Effective November 1, 1991, the VA determined that Plaintiff was 100% disabled. (Tr. 157.) Plaintiff filed his present application for Social Security disability benefits on September 24, 2007, alleging a disability onset date of June 1, 1985, due to paranoia, suicidal ideation, and anxiety attacks.[1] Plaintiff last met the earnings requirement for Social Security disability insurance purposes on December 31, 1987.

         After Plaintiff's application was denied at the initial administrative level, he requested a hearing before an Administrative Law Judge (“ALJ”), and such a hearing was held on September 2, 2009. By decision dated December 22, 2009, the ALJ found that from Plaintiff's alleged disability onset date through the date his insured status expired, [2]Plaintiff had the residual functional capacity (“RFC”) to perform a full range of work at all exertional levels, but was limited to simple work not requiring a lot of contact with others. Based on this RFC, the ALJ found that Plaintiff could perform his past relevant work as a post office worker. In the alternative, the ALJ found that Plaintiff was not disabled based on the Commissioner's Medical-Vocational Guidelines found at 20 C.F.R. Pt. 404, Subpart P, Appendix 2.

         The Appeals Council of the Social Security Administration denied Plaintiff's request for review, whereupon Plaintiff sought judicial review of the ALJ's decision. By Memorandum and Order dated March 1, 2013, this Court reversed and remanded the case to the Commissioner, on the grounds that the ALJ failed to make specific findings regarding the demands of Plaintiff's past work; and improperly relied on the Guidelines, without the testimony of a vocational expert (“VE”), to support the alternate finding. The Court also found that it was unclear whether the ALJ had considered the medical records from the three years immediately preceding Plaintiff's alleged disability onset date, and directed the ALJ, on remand, to do so and to make that consideration clear in the new decision. Johnson v. Astrue, 2013 WL 791856 (E.D. Mo. Feb. 13, 2013) (Magistrate Judge's Report and Recommendation, adopted by Order dated March 1, 2013).

         A second hearing was held before a different ALJ on August 2, 2013, at which Plaintiff and a VE testified. By decision dated November 26, 2013, the second ALJ found that during the relevant time period (June 1985 through December 1987), Plaintiff had the RFC to perform the full range of exertional work, with certain nonexertional limitations. Based on the testimony of the VE, the ALJ found that during this time period, Plaintiff could perform certain jobs that were available in the national economy, and that Plaintiff was, thus, not disabled under the Social Security Act. Plaintiff's request for review by the Appeals Council was denied on March 30, 2015. Plaintiff has thus exhausted all administrative remedies and the ALJ's November 26, 2013 decision stands as the final agency action now under review.

         Plaintiff argues that while the new ALJ described some of the pre-June 1985 medical records, the ALJ did not give this evidence the analysis it required, and did not even mention certain medical records from this period. Plaintiff also faults the ALJ for not mentioning the Third Party Report completed on October 18, 2007, by Plaintiff's wife who, at that point, had known Plaintiff for 23 years. Plaintiff argues that due to these errors, the ALJ's decision is not supported by substantial evidence in the record. Plaintiff asks that Court the direct the Commissioner to grant benefits for the relevant period, or alternatively, remand the case again.

         Medical Evidence and First Evidentiary Hearing

         The Court adopts Plaintiff's unopposed Statement of Uncontroverted Material Facts (Doc. No. 17-1) along with Defendant's unopposed Statement of Additional Material Facts (Doc. No. 20-2). Together, these facts present a fair and accurate summary of the medical record, with the following addition: At discharge from his psychiatric hospitalization from June 21 to June 28, 1982, Plaintiff was “considered competent in VA terms, ” was “not suicidal, ” had “no signs of any apparent thought disorder, ” had “no hallucinations, ” had “no delusions, ” and “could resume normal activities.” (Tr. 345).

         The Court also adopts the summary of the first evidentiary hearing as it appears in the Court's March 1, 2013 Memorandum and Order. The Court will discuss specific facts as they are relevant to the parties' arguments.

         Evidentiary Hearing of August 2, 2013 (Tr. 520-36)

         Upon questioning by the ALJ, Plaintiff testified that he could not remember his exact date of birth, but that the ALJ's suggestion of September 26, 1957, sounded correct. Plaintiff testified that he graduated from high school and started college, but did not complete his first year because he became upset when told that he could not learn to build bombs because he was black, and bomb-building was only for the “white techs.” Plaintiff testified that had not worked anywhere since 1998, and when asked what he was doing with his time, replied that he had been “staying drugged up by the Veterans Administration.” He denied telling the previous ALJ or anyone else that he was self-employed as a draftsman and was doing odd jobs, [3] and denied having had a problem with alcohol or street drugs, except in 1985 after someone shot him and hijacked his car. Since no one wanted to do anything about it, he took drugs “to numb [himself] up to kill [the hijacker].” When the ALJ asked about the minimal treatment he had received from the VA during the relevant period of June 1985 through December 1987, Plaintiff said that the VA had given him a medication that had almost killed him, and that his wife and orderlies had to subdue him; he stated that he was given a shot of Thorazine, and put into the psychiatric ward until he calmed down. But Plaintiff was not sure when this episode had happened.

         Upon questioning by his counsel, Plaintiff testified that he did not think he could work currently, or from 1985 to 1987, because he would “get upset and frustrated with people, ” would forget things, and would fall asleep several times a day. He rambled about injustices he had experienced and said he was angry about a lot of things he saw people doing that he felt showed disrespect for the law. He testified that he was getting approximately $2, 000 a month from the VA due to his being deemed 100% disabled.

         The ALJ asked the VE whether there were jobs that could be performed by an individual of Plaintiff's age (27 years old as of the alleged onset date) and education, with no past relevant work, who could understand, remember, and carry out at least simple instructions and non-detailed tasks; could respond appropriately to supervisors and co-workers in a task-oriented setting where contact with others was casual and infrequent; and could not perform work that included constant or regular contact with the general public or more than infrequent handling of customer complaints. The VE testified that such an individual could perform the jobs of cleaner and mail sorter.

         Plaintiff's counsel asked the VE whether the hypothetical individual could perform those jobs, or any other jobs, if he were “off-task 10% of the time, ” and the VE responded in the negative. The VE further testified that the individual would not be able to sustain employment if he had disruptive outbursts of anger directed at supervisors or coworkers. Plaintiff's counsel then observed that all through the hearing Plaintiff had been “kind of shaking” and asked Plaintiff about this. Plaintiff answered, “I shake like that because I had been thrown in an explosion.”

         ALJ's Decision of November ...


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