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Johnson v. Berryhill

United States District Court, W.D. Missouri, Western Division

July 7, 2017

NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.



         Plaintiff Anita Marie Johnson appeals the Commissioner of Social Security's final decision denying her application for disability and disability insurance benefits under the Social Security Act. The decision is reversed and remanded for further proceedings.

         I. Background

         Johnson was born in 1956. She worked for an auto auction from 2000 until 12/7/2011, when she alleges she became disabled. The Administrative Law Judge held a hearing on 3/4/2015 and denied her application on 5/22/2015, and the Appeals Council denied her request for review on 8/1/2016. Johnson's date last insured was 12/31/2016, so she must establish disability on or before that date to qualify for benefits. In this appeal, Johnson argues that the ALJ's conclusions at Steps 2 and 4 of the sequential analysis were unsupported.

         A. Mental health history

         Johnson was treated through Tri-County Mental Health Services from September 2008 through February 2010, where she was seen by Shahbaz Khan, M.D., a psychiatrist, and counselors. She discontinued treatment and was discharged from care as “moderately improved” with a diagnosis of “Bipolar II.” Tr. 256. At the time of discharge, she was taking Lamictal, Abilify, and Wellbutrin, and was noted to be medication compliant. Id.

         In May 2014, Johnson established care with Khursheed Zia, M.D., a psychiatrist, whom she continued to see through March 2015. At her initial evaluation, Johnson reported that she had been getting mental health services “all her life and been given different diagnoses[, ]” and had “been depressed for the last 45 years.” Tr. 324. She said she had been off of her psychiatric medications for a long time and that some of the medications made her catatonic. She reported three suicide attempts and having been abused in the past, that she experienced symptoms of depression every day, and that a demon lived inside her who wanted to kill her. Id. Dr. Zia noted that Johnson was cooperative, her behavior was unremarkable, her memory was intact, and she had fair judgment and insight, logical thought processes, and realistic self-perception. Tr. 319. However, she was struggling with depression, anxiety, and anger problems, and appeared “a little delusional[.]” Id. He diagnosed Johnson with major depression, recurrent, chronic, and personality disorder not otherwise specified, and prescribed Risperdal, Celexa, and Klonopin. Tr. 319. In August 2014, Johnson was not doing well and reported that she had called the crisis line because she did not want to commit suicide. Her mood was irritable and depressed. Dr. Zia added lithium to her medications. In January 2015, the doctor diagnosed Johnson with recurrent depressive psychosis, personality disorder not otherwise specified, alcohol abuse, and pathological gambling, and renewed her prescriptions for lithium, Celexa, and Klonopin. Tr. 396. In March 2015, the doctor renewed Johnson's prescriptions and listed the same diagnoses as in January 2105, but noted that her alcohol abuse and pathological gambling were improved.

         Johnson saw a counselor, Randell Wilson, from March 2014 through February 2015. In June 2014, she told Wilson that she needed disability because she could not work around a lot of people and still be able to function. Tr. 316. In February 2015, she told Wilson that she was doing better, but having some anxiety due to an approaching disability hearing.

         In January 2016, after the ALJ's decision in this case, Johnson saw a social worker, Shannon Johnston, LCSW. Johnson said she was returning for services due to major depressive disorder based on multiple factors including health problems, difficulty working, and failed disability attempts, and that she had been hearing demons saying “hateful” things to her, such as calling her a failure. Tr. 28. She said she had had three, psychiatric hospitalizations in the past but that they were not for suicide attempts. Her father had died six months earlier and she was grieving. She worried about homelessness, and lack of insurance and finances. She was not having problems with alcohol or gambling. She complained of low back and shoulder pain. The counselor's Assessment was major depressive disorder, recurrent, in remission, unspecified, chronic; alcohol abuse, uncomplicated, improved; pathological gambling, improved; and personality disorder, unspecified symptoms. Tr. 30-31. The counselor noted that Johnson needed a psychiatric evaluation.

         B. Medical history

         Johnson had a heart attack in October 2011. She was diagnosed with ischemic heart disease, treated with stents and medications, and encouraged to stop smoking and participate in cardiac rehabilitation. At a follow-up visit with her cardiologist in November 2011, Johnson was doing well from a cardiac standpoint. However, she was emotionally stressed and upset about returning to work “too early, ” explaining that she had a coworker who created a lot of stress and anxiety for her. Tr. 284. She denied any physical reasons for being unable to return to work. Id.

         In November 2014, Johnson saw Sherry Howell, D.O., about diabetes, arthralgias, and hypertension. Johnson said she had been off her diabetes medications, glyburide and Novolog, for a year. She said she had pain that radiated from the spine to the hips, joint tenderness, and numbness and tingling in the legs. She said that her hips and low back ached after standing and bending, her shoulders and neck hurt after working overhead, and that she spent much of the day in bed due to pain. Tr. 382. In assessing range of joint motion on musculoskeletal exam, the doctor noted “mild pain” with motion. Tr. 386. Gait was normal and a scour test of both hips was negative.[1] Id. Johnson had “inappropriate mood and affect” but was oriented. Id. Dr. Howell assessed chronic neck, low back, and hip pain, and ordered x-rays and a blood test for rheumatoid factor. The doctor also assessed chronic diabetes mellitus, uncontrolled, and chronic coronary artery disease. The hip x-rays showed mild, degenerative findings. Tr. 400.

         Johnson saw Dr. Howell for follow up on 1/5/2015. On physical exam, the doctor noted that “all extremities move well without deficits” and that Johnson had normal gait. Tr. 393. The doctor did not prescribe any medications, other treatments, or tests for Johnson's neck, back, or hips. Tr. 394.

         On 3/9/2016, Johnson saw Daniel Purdom, M.D., for diabetes and abdominal pain. The doctor noted abdominal tenderness on exam. His Assessment was low back pain, hypertension, and Type 2 diabetes mellitus with hyperglycemia. He prescribed ibuprofen for the back pain, and aspirin, Crestor, cyclobenzaprine, and Lisinopril. Johnson next saw Dr. Purdom on 4/28/2016, for diabetes, body aches, arthritis, headaches, and back pain. Her diabetes was noted to be stable and she was compliant with her medication, but complained of chest pain, diarrhea, fatigue, weight gain, foot ulcers, and heartburn. On musculoskeletal exam, the doctor noted right shoulder tenderness and reduced range of motion, and right hip tenderness with moderate pain upon motion. Scoring of a questionnaire that Johnson filled out rated her as having mild depression. The Assessment was unspecified hip pain, Type 2 diabetes mellitus without complication, and bilateral shoulder pain. The doctor ordered labs and prescribed Crestor and cyclobenzaprine. Johnson already had an active prescription for Klonopin. Lab results dated 5/9/2016 showed a slightly elevated rheumatoid factor but a negative screen for antibodies associated with autoimmune diseases.

         C. Expert opinions

         On 9/12/13, Nina Epperson, M.S., performed a psychological evaluation, including cognition testing. Tr. 299-300. Mental status exam revealed fair hygiene, fair eye contact, irritability, tangential thought with content focused on an incident with a coworker at a previous job, depressed mood, irritable affect, trouble falling and staying asleep, average range of intelligence, and intact insight and judgment. Diagnoses were mood disorder NOS, rule out personality disorder, and GAF 55. Epperson opined that Johnson was able to understand and remember simple instructions, sustain concentration and persist with routine tasks, and manage funds in her best interest, but had mild impairment regarding her interpersonal skills and difficulty adapting to changes in her environment. Johnson preferred to work alone due to issues with irritability and anger. The ALJ gave Epperson's opinions “partial” weight. Tr. 61.

         Kala Danushkodi, M.D., a board certified physical medicine and rehabilitation specialist, evaluated Johnson on 9/17/13. Tr. 303-307. Her chief complaints were low back pain, neck pain, depression, and bipolar disorder. She reported that she sustained a violent sexual encounter between 1988-1990 which resulted in torn neck muscles and other physical injuries. She complained of intermittent pain in her neck and low back, and that she was unable to sit, stand, or walk for prolonged periods of time; of tingling and numbness in her hands and feet; and of migraine headaches that left her bedbound at least once a month. She reported difficulty coping with stress and pain, which was aggravated by emotional issues, and frequent crying episodes and high anxiety, with symptoms related to PTSD. She was able to perform light household chores. She smoked less than a pack per day. Medications included Ativan, glyburide, aspirin, and vitamins. Physical examination revealed positive Tinel's sign in the left wrist, diminished sensation in the fingertips, flattening of lumbar lordosis, mild tenderness of the lower sacrum, negative straight leg raising, normal range of motion in all extremities, normal gait, ability to heel and toe walk without difficulty, normal lumbar flexion and extension, good strength in the upper and lower extremities, normal grip strength, and ability to squat without support. Impressions included low back pain, bipolar disorder, depression and anxiety. Dr. Danushkodi opined that there were no sitting restrictions, and that Johnson could stand and walk with periodic rest breaks, and lift up to 20 pounds. The doctor recommended obtaining a disability opinion from a psychiatrist. The ALJ gave Dr. Danushkodi's opinions “partial” weight. Tr. 62.

         Stanley Hutson, Ph.D., prepared a Psychiatric Review Technique assessment on 10/4/2013. Tr. 88-94. Hutson opined that Johnson had mild restriction of activities of daily living, moderate difficulties maintaining social functioning, and mild difficulties maintaining concentration, persistence, or pace. He further opined that Johnson had moderate difficulties maintaining attention and concentration for extended periods, working in coordination with or proximity to others without being distracted by them, accepting instructions and responding appropriately to criticism from supervisors, getting along with co-workers or peers without distracting them or exhibiting behavioral extremes, and responding appropriately to changes in the work place. Hutson noted that Johnson was distracted by people and may have some difficulty with attention and concentration; would benefit from limited social demands; has some difficulty coping with work conflict and demands; has been able to adapt in the past in a low stress work setting; and could understand and follow instructions. He also noted that Johnson had taken college courses in 2013.

         A vocational expert, Alissa Smith, testified at the hearing before the ALJ and stated that her opinion was consistent with the Dictionary of Occupational Titles. Smith classified Johnson's past relevant work as follows: security guard, DOT 372.667-038, specific vocational preparation (SVP) level 3, semi-skilled, light exertional level as classified but actually performed by Johnson as medium; driver, DOT 913.663-018, SVP level 3, semi-skilled, classified as medium exertional level but actually performed by Johnson as light; and final inspector, DOT 806.678-018, SVP level 4, semi-skilled, light. Smith added that Johnson's part-time work as a cleaner would be classified as a housekeeper, DOT 323.687-014, SVP level 2, light. The ALJ asked Smith about a hypothetical claimant of Johnson's age, education, training, and work experience, and who could do light work, lift and carry 20 and ten pounds, and stand and walk for six of eight hours, but who could not perform work involving intense interpersonal relationships. Smith testified that the individual could perform Johnson's past work as a final inspector. However, if the individual was limited to sedentary work, she could not perform any past work. If the individual had to take frequent, unscheduled breaks due to health problems, then no competitive work would be available.

         D. Johnson's reports and hearing testimony

         In her adult function report dated 9/20/2013, Johnson stated that on a good day she would get up, have breakfast, go for a short walk to the library to look for a job, and go through her boxes of “stuff.” Tr. 220. On a bad day, she might have to take pain medications and would try to stay focused. She stated that she could not stand or sit more than ten minutes at a time, it took her a long time to perform personal care and household chores, and she needed reminders and encouragement. She could go out and shop on her own, but sometimes took someone with her in case of panic or anxiety. She was not responsible with money. She read daily, made jewelry, and sometimes visited friends at their houses. She stated that she had arthritis and could not lift anything more than ten or 15 pounds. Repeated lifting caused “pain, headache, migraine.” Tr. 225. She could walk a half mile before having to rest about 15 to 30 minutes, and was “trying to build up” her “stamina.” Id. She could pay attention for ten to 15 minutes, follow written instructions well, and follow spoken instructions depending on the nature of the instructions. Id. She was “force[d]” to retire from the auto auction due to a negative manager whom “no one could get along” with. Tr. 226. She stated she could not handle any “neg. stress.” Id. She included a list of traumatic events that had happened throughout her life, to herself and family members. Tr. 232.

         At the March 2015 hearing before the ALJ, Johnson testified that she graduated from high school, and had taken two years of college courses funded by Vocational Rehabilitation. At the time of the hearing, she was working 20 hours per week doing office cleaning, a job she had started in December 2013. She worked five nights per week, in four-hour shifts. From 2000 to 2011, Johnson worked for the Kansas City Auto Auction, where she did vehicle registration, then worked as a driver, and then worked in the security department.

         Johnson testified that when she gets up in the morning, she makes coffee, may do dishes or laundry and then go back to bed for a couple of hours, then gets up for a couple of hours, cooks dinner, and goes to work. She can drive but cannot afford a car. She testified that she cannot work full time now because of pain that she experiences in her hips and neck. She stated that she has pain when reaching overhead, walking upstairs, walking more than one block and back, lifting more than ten pounds, sitting for more than 20 minutes, or from migraine brought on by lifting.

         Johnson further testified that because of her 2011 heart attack, she takes baby aspirin daily. She has problems with anxiety when she goes out, but can grocery shop with a companion or go to self-service stores or the library, and takes Lithium, Clonazepam, and Klonopin. She said that she has uncontrolled, type 2 diabetes. When her blood glucose is low she gets sweaty and faint. At the time of the hearing, her doctor had prescribed a new medication for her diabetes. She has not tested her blood glucose at work and did not know if her diabetes caused other symptoms. She also testified that she has a history of bilateral carpal tunnel surgery. She said she ...

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