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Johnson v. Colvin

United States District Court, W.D. Pennsylvania

February 26, 2014

CHARLES TIMOTHY JOHNSON, Plaintiff,
v.
CAROLYN W. COLVIN, [1] Acting Commissioner of Social Security, Defendant.

OPINION

DAVID STEWART CERCONE, District Judge.

I. INTRODUCTION

Charles Timothy Johnson ("plaintiff") brings this action pursuant to 42 U.S.C. § 405(g) seeking judicial review of the final determination of the Commissioner of Social Security ("defendant") denying his applications for disability insurance benefits ("DIB") and supplemental security income ("SSI") under Titles II and XVI of the Social Security Act ("the Act"). 42 U.S.C. §§ 401-433, 1381-1382f. The record has been developed at the administrative level. The matter is before the court on cross-motions for summary judgment. (Docket Nos. 12, 14). For the reasons that follow, plaintiff's motion [12] will be denied and defendant's motion [14] will be granted.

II. PROCEDURAL HISTORY

Plaintiff applied for DIB and SSI on June 8, 2009, alleging that he had been disabled since October 17, 2007 due to prostate cancer, low back pain and depression. R. at 82, 179-180, 183-189. Both claims were denied on December 3, 2009. R. at 97. On December 10, 2009, plaintiff requested a hearing. R. at 97, 99-108. On May 24, 2011, a hearing was held before Administrative Law Judge ("ALJ") Brian Wood. R. at 31. The ALJ denied plaintiff's application for benefits on July 27, 2011. R. at 12-24. Plaintiff's request for review by the Appeals Council was denied on November 30, 2012. R. at 1-5. The instant action followed.

III. STATEMENT OF THE CASE

a. General background

Plaintiff was born on July 24, 1961, making him 46 years of age at the time of his alleged onset date and 49[2] years of age at the time of the hearing. R. at 12, 22, 34. Plaintiff served as a mechanic in the Army Reserve from June 1979 to June 1982. R. at 225. He had additional work experience as a concrete tester, a concrete pump supervisor, a newspaper stacker, a truck driver and an industrial cleaner but has not been employed since 2006. R. at 35-37, 225-232. Plaintiff was incarcerated from 2006 to 2009 for distribution of narcotics and upon release was sent to a half-way house. R. at 38-39, 464. He has a common-law wife who was employed at the time of the hearing. R. at 34-35. His source of income has been public assistance. R. at 34. Plaintiff completed high school. R. at 35.

A typical day for plaintiff consists of talking to his mother on the telephone, watching television, and occasional cleaning. R. at 47-48, 52, 465. At the time of the hearing plaintiff asserted that he could do little with regard to household chores, but he was able to prepare some types of food and wash his own dishes. R. at 49. Plaintiff attended church, but not every Sunday. R. at 50. He described himself as less tolerant than he used to be but still a "very friendly guy." R. at 51.

b. Mental treatment history

Plaintiff has a history of substance abuse and psychiatric treatment. R. at 1274. He reported that he attempted suicide in the 1980's. Id. Over the course of several years plaintiff periodically was treated for mental health issues at the Butler Pennsylvania Veterans Affairs hospital ("Butler VA"), where he received the following diagnoses: depression, chronic anxiety, substance addiction, and obsessive compulsive versus personality disorder. R. at 642, 1147-1148, 1259-1262, 1270.

On August 22, 2003, plaintiff screened negative for depression at Butler VA. R. at 895-896. An alcohol screening was also administered, with plaintiff scoring a three.[3] R. at 896. Plaintiff also was treated for cocaine dependency at this time. Id. Depression and alcohol screenings were both negative on January 8, 2004, and plaintiff stated that he had not had any alcohol in the past year. R. at 898-899. On January 28, 2004, plaintiff's depression and alcohol screenings remained negative. R. at 927.

Records indicate that plaintiff was suffering from depression on May 18, 2004. R. at 892. On February 8, 2006, plaintiff's depression screen was negative again but his alcohol screen was positive. R. at 931. Plaintiff telephoned Butler VA on November 13, 2006, asking to be admitted because his "mind [wasn't] acting right." R. at 991. Plaintiff denied that he was suicidal. Id. On March 16, 2009, plaintiff's depression and alcohol screens were negative. R. at 935, 983-987.

After his release from incarceration, plaintiff suffered from depression and chronic anxiety related to his cancer diagnosis. R. at 1149, 1151, 1169. On March 12, and June 17, 2010, plaintiff screened positive for moderate depression; his alcohol tests remained negative. R. at 1149, 1169-1170. Notes from those visits indicate he was alert, well groomed, coherent and did not suffer from psychotic symptoms or suicidal ideation. R. at 1149, 1171.

On March 18, 2011, plaintiff reported that he was suffering from increased anxiety as well as obsessing over cleaning and rechecking things in his home. R. at 1259-1260. His alcohol screen remained negative and his depressive disorder was in remission. R. at 1261-1262. Plaintiff was diagnosed with obsessive compulsive disorder versus personality disorder. R. at 1261.

T. David Newman, Ph.D., completed a consultative psychological evaluation of plaintiff on October 6, 2009. R. at 464. According to Dr. Newman's report, plaintiff walked one half mile to attend the appointment. Id. Dr. Newman found plaintiff to be a reasonably reliable informant. Id. Plaintiff stated that he was disabled from work due to back pain, cancer and depression. R. at 464. Nevertheless, he was able to do chores, go to the store and watch television. R. at 465. Dr. Newman found that Plaintiff: was not anxious, made a good degree of eye contact, spoke clearly, had no difficulty establishing a working rapport, had no history of perceptual disturbances, and was oriented in all spheres. Id. Plaintiff was diagnosed with crack cocaine dependence (in a controlled environment due to his parole from prison) and adjustment disorder with depressed mood. R. at 466. Dr. Newman concluded that plaintiff's abilities to understand, remember, and carry out instructions were not limited by his impairments. R. at 466-467. His abilities to respond appropriately to supervisors, co-workers, and work pressures were not limited either. R. at 466-467.

Grant W. Croyle, Ph.D., performed a consultative evaluation of plaintiff's medical records and thereafter completed an assessment of his mental residual functional capacity ("RFC") on October 9, 2010. R. at 469-472. Dr. Croyle found that the medical evidence established that plaintiff suffered from depressive disorder versus adjustment disorder with depressed mood and a history of cocaine dependence. R. at 471. He further found plaintiff's statements to be partially credible. Id. He assessed moderate limitations in plaintiff's abilities to perform activities within a schedule, maintain regular attendance, be punctual with customary tolerances, and respond appropriately to changes in the work setting. R at 469-470. Dr. Croyle opined that Dr. Newman's finding of no limitations in these areas was inconsistent with the record evidence. Id. Accordingly, Dr. Croyle granted only partial weight to the opinion of Dr. Newman. Id. He nevertheless concluded that plaintiff was able to meet the basic mental demands required for competitive work on a sustained basis despite the aforementioned limitations. Id.

c. Physical treatment history

Plaintiff was diagnosed with prostate cancer on November 5, 2007 while incarcerated. R. at 319-320, 502-503. At the time of diagnosis his prostate specific antigen ("PSA") level was 6.7.[4] R. at 293. On June 26, 2008, plaintiff completed a course of radiation therapy, after which his PSA level dropped to 3.6. Id. In 2009, plaintiff's PSA number was elevated and he was treated with implanted radiation seeds[5] and Zoladex.[6] R. at 41, 500, 1100, 1243. By March 1, 2010, plaintiff's PSA level had decreased to 0.5. R. at 1100. Bone scans conducted on August 3, 2009 and February 18, 2011 did not reveal any metastasis. R. at 1103, 1235-1236. Plaintiff asserted at the hearing that his prostate cancer was no longer in remission. R. at 42. His counsel clarified, however, that the medical records did not actually indicate that Plaintiff's cancer had returned, only that his PSA levels were elevated and he was receiving further treatment. R. at 42-43.

Plaintiff received treatment at the Butler VA on numerous occasions between August 22, 2003 and April 4, 2011. R. at 522-1291. Treatment notes from March 16, 2009 indicate that plaintiff suffered from mild degenerative changes in the lumbar spine but that his vertebral body heights and disc spaces were normal. R. at 445, 523. Although osteophytes[7] were present in Plaintiff's middle and lower spine, only mild degenerative changes were observed. Id. A Braden Scale[8] was completed during that visit and plaintiff was assessed with ratings of "walks frequently" and "no limitation" in the respective categories of activity[9] and mobility.[10] R. at 595. A bone scan conducted on August 3, 2009, again revealed only mild degenerative changes. R. at 1235-1236.

Plaintiff complained on April 21, 2010, that "[a]ll my bones hurt. Both legs hurt. I can hardly do stairs." R. at 1154. He noted that physical activity exacerbated his pain but that he was satisfied with his pain management. R. at 1156. On November 16, 2010, plaintiff appeared at the Butler VA for a checkup and again complained of back pain but stated that he did not have any new medical issues and he was content with his prescribed pain management. R. at 1286. Records from Butler VA also indicate that plaintiff was obese, with a body mass index ("BMI") of 36; he also had been diagnosed with Stage III chronic kidney disease. R. at 15, 1211, 1287.

Plaintiff began physical therapy for back and neck pain at Butler VA on February 2, 2010. R. at 1184-1185. Fifteen sessions were scheduled, eleven of which plaintiff attended. R. at 1162-1182. During plaintiff's second visit on February 4, 2010, he reported that his neck and back pain had improved. R. at 1184. Two weeks passed before plaintiff returned to physical therapy on February 18, 2010. Id. He reported increased back pain but attributed it to missing past sessions. Id. Over the course of the following sessions, from February 23 to March 9, 2010, plaintiff consistently reported that physical therapy had relieved some of his pain. R. at 1174-1178. On March 11, 2010, plaintiff stated that ...


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