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Johnson v. Astrue

July 21, 2010

DAVID JOHNSON, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: David Stewart Cercone United States District Judge

MEMORANDUM OPINION

I. INTRODUCTION

Plaintiff David Johnson ( "Johnson") brings the present action pursuant to 42 U.S.C. §405(g), seeking judicial review of the final determination of the Commissioner of Social Security (the "Commissioner") denying his application for Supplemental Security Income ("SSI") and disability insurance benefits (DIB) under Title II § 401-433 and Title XVI of the Social Security Act (the "Act")[42 U.S.C. §§ 1381-1382f]. Before this Court are cross-motions for summary judgment filed pursuant to Federal Rule of Civil Procedure 56. The record has been developed at the administrative level. For the foregoing reasons, this Court will grant Johnson's Motion for Summary Judgment (Doc. No. 8) and will deny the Commissioner's Motion for Summary Judgment (Doc. No. 10). The Commissioner's decision will be REVERSED and the case remanded solely for a calculation of the benefits owed to Johnson under Title II and XVI.

II. PROCEDURAL HISTORY

Johnson applied for SSI and DIB on April 30, 2007, alleging disability since December 13, 1998. R.15. Johnson alleged an inability to engage in any substantial gainful activity since December 13, 1998, when he fell off of a ladder while on duty as a grocery store manager. R. 151. Johnson's application was administratively denied on February 27, 2006. R. 3. Johnson responded on November 27, 2007, by timely filing a request for an administrative hearing. R. 44. On June 11, 2008, a hearing was held in Johnstown, Pennsylvania before Administrative Law Judge Patricia C. Henry (the "ALJ"). R. 352. Johnson, who was represented by counsel at the hearing, appeared and testified. R. 15. Testimony was also taken from Mark L. Heckman, an impartial vocational expert. R. 15. In a decision dated July, 18, 2008, the ALJ found that Johnson was not "disabled" within the meaning of the Act as Johnson could perform a range of unskilled, light work in jobs such as ticket seller, coupon redemption clerk, and information clerk. R. 25-26. On January 30, 2009, the Appeals Counsel denied Johnson's request for review, thereby making the ALJ's decision the final decision of the Commissioner in this case. R. 7-9.

Johnson commenced the present action on August 26, 2009, by filing a complaint against the Commissioner, seeking judicial review of the Commissioner's decision. Johnson and the Commissioner filed motions for summary judgment on December 4, 2009, and January 4, 2010, respectively. The motions are now before the Court.

III. STATEMENT OF THE CASE

The documentary record indicates that Johnson suffers from impairments that began on December 13, 1998 after Johnson, then thirty-nine and employed as a grocery store manager, missed a step while climbing a ladder and fell three to four feet landing on his left side and buttock. R. 151. Following the fall, Johnson sought treatment from Gregg Goldstrohm, M.D. and Gregory Bisignani, M.D. R. 150. Johnson complained of back pain and pain going down his right leg. R. 150. Following an MRI and additional visits in January 1999, Dr. Bisignani diagnosed Johnson with a herniated disk at T8-9, and referred Plaintiff to W. Timothy Ward, M.D. of UPMC Health System Department of Orthopaedic Surgery, for evaluation. R. 149. A medical record of this injury from Dr. Ward dated January 29, 1999, summarized the onset of Johnson's impairments. R. 151. Dr. Ward noted that shortly after Johnson's fall, Johnson reported left sided low back pain and self-reported bilateral rib cage discomfort. Tr. 151. Dr. Ward also noted that Johnson's cervical and lumbar spine MRIs did not suggest a ruptured disk and found nothing which explained Johnson's back pain. R. 151. Dr. Ward could find "no good explanation for Mr. Johnson's back pain." R. 152.

In February 1999, Neurosurgeon Parvis Bahgai, M.D., examined Johnson as well as previous diagnostic studies, and opined that Johnson had soft disk herniation at the left T8-9 level. R. 154. Dr. Bahgai performed a microdiskectomy of the T8-9 herniated disk. R. 166-67.

Following the microdiskectomy between February and July 1999, Johnson was treated on at least six occasions by Neurologist Carlos Marrero, M.D. R. 169-77. Because there were no noted complications from the microdiskectomy procedure, Dr. Marrero prescribed pain medication, including Lorcet, Soma and Lodine and recommended that Johnson perform total body resistance therapy once he fully recovered from the surgery. R. 169-77.

In September 1999, at the request of the Social Security Administration, Johnson underwent an independent medical examination and evaluation conducted by In-Bum Park, M.D.

R.178. Dr. Park noted that Johnson told him that, "he can tolerate sitting 20 minutes, walking 1-1/2 hour, and standing 1/2 hour." R. 178. Dr. Park observed that Johnson had full range of motion in both the upper and lower extremities and 4/5 strength in his lower extremities. R. 178, 180-81. Based on the examination and evaluation, Dr. Park concluded that Johnson's job capacity was "moderately limited." R. 179. He also noted that "the patient is unable to lift or carry anything. The patient is able to stand and walk less than one hour per day. The patient is able to sit less than 3 hours per (day). The patient is limited with pushing and pulling with the lower extremities. The patient cannot bend, kneel, stoop, crouch, balance or climb." R. 179.

In October 1999, state agency physician, Nghia Tran, M.D., assessed Johnson's residual functional capacity ("RFC") and concluded that Johnson would be able to perform light exertional work within six months. R. 182-187. Dr. Tran based this conclusion on factors such as Johnson could lift twenty pounds occasionally and ten pounds frequently; stand/walk for six hours in an eight-hour workday; and sit for approximately six hours in an eight-hour workday.

R. 183.

From January 2005 through January 2008, Johnson was treated by Lee J. Harmatz, a family practitioner. R. 224-65, 294-304. Dr. Harmatz noted that Johnson had chronic back pain and degenerative joint disease of the spine. R. 227, 229, 233. On April 20, 2007, Dr. Harmatz stated that he would grant Johnson disability for the next year. R. 221, 301.

In addition to treatment by his family practitioner, between November 2004 and November 2006, Johnson was examined by and occasionally received treatment from Chiropractor Alan Cappellini, D.C. R. 215-23. The treatments seemed to ease Johnson's pain as Dr. Cappellini noted that Johnson reported feeling better following treatment. R. 218-220. Dr. Cappellini also noted that Johnson was not taking any medication and had returned to function following his back surgery. R. 220-22.

In November 2005, Johnson's RFC was assessed again by another agency medical consultant. Tr. 204-11. This RFC had similar findings as the October 1999 assessment. The consultant determined that Johnson could lift twenty pounds occasionally and ten pounds frequently; stand for at least two hours in an eight-hour workday and sit for six hours in an eight-hour workday. R. 205.

On January 20, 2006, pain specialist John Park, M.D. examined Johnson who was complaining of pain across his lower back and legs. R. 212. Dr. Park noted that Johnson had full 5/5 strength in his extremities as well as full or almost full range of motion of the neck, shoulders, elbows, wrists, and knees. R. 213. Dr. Park opined that Johnson could lift and carry twenty pounds occasionally; sit for three hours or less per day and stand/walk for three hours or less per day. Like Dr. In-Bum Park's 1999 assessment, Dr. John Park concluded that Johnson's employment capacity was "moderately limited." R. 214.

On September 18, 2007, Dr. Cappellini referred Johnson to William Mitchell, M.D., a board certified Orthopedic Specialist. Following the initial examination through March 2008, Johnson had a monthly exam by Dr. Mitchell. R. 272. Dr. Mitchell administered a number of tests throughout Johnson's visits and concluded following the initial examination that Johnson had the functional capacity to perform less than eight hours of work per day. R. 272. Dr. Mitchell noted that Johnson was unable to work due to post-traumatic chronic low back pain, post-traumatic facet arthropathy L4-L5 and L5-S1 joint dysfunction lumbar spine and post-traumatic T8 facet syndrome thoracic spine. R. 271. Dr. Mitchell noted that these limitations prevented Johnson from bending, kneeling, stooping, and crouching. R. 273. He also noted that Johnson could occasionally lift and carry up to 100 pounds; could sit for three hours in an eight-hour workday and was capable of standing and walking four hours in an eight-hour workday. R. 272.

Dr. Mitchell noted that Johnson had baseline pain levels of 4/10 with an increase to 8/10 with activity. R. 321. Johnson's pain was noted to increase with ambulation, bending, arising from a seated position, sitting fifteen minutes, walking more than twenty to thirty minutes, sitting more than thirty minutes, lifting more than five pounds and riding in a car more than thirty to sixty minutes. R. 307, 311, 313, 321.

Johnson's only psychological examination was conducted by Psychologist Tim Bridges in October 2007. R. 274-80. Dr. Bridges described Johnson as pleasant and noted that he had never received psychiatric care. R. 275, 277-78. Johnson reported that he was having a positive reaction to his depression medication. Dr. Bridges noted that Johnson was capable of handling his own daily and financial affairs and ...


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