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Johnson v. Colvin

United States District Court, S.D. New York

January 30, 2015

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

REPORT AND RECOMMENDATION

JAMES L. COTT, Magistrte Judge.

To The Honorable Colleen McMahon, United States District Judge

Pro se plaintiff Derick Johnson seeks judicial review of a final determination by the Commissioner of Social Security ("Commissioner"), denying his application for Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI"). The Commissioner has moved for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c), to which Johnson submitted no opposition. For the reasons set forth below, I recommend that the Commissioner's motion be denied, and the case be remanded to the Commissioner for further proceedings.[1]

I. BACKGROUND

A. Procedural History

Johnson filed an application for DIB on October 24, 2011. Administrative Record ("R.") at 97-100.[2] Johnson also filed an application for SSI on November 8, 2011. Id. at 88-96. Johnson claimed disability beginning on November 10, 2010 due to Human Immunodeficiency Virus ("HIV"), hypertension, and lower back pain. Id. at 109. The Social Security Administration ("SSA") denied both of his applications on January 9, 2012. Id. at 39-44. On February 29, 2012, Johnson filed a request for a hearing before an Administrative Law Judge ("ALJ"). Id. at 45-47. Appearing with a non-attorney representative, Johnson testified at a hearing held before ALJ Jerome Homblass on November 27, 2012. Id. at 20-31. The ALJ found that Johnson was not disabled and denied his claims in a written decision dated January 8, 2013. Id. at 8-19. The SSA Appeals Council received Johnson's request for a review of the ALJ's decision on February 25, 2013, id. at 5-7, and denied review on February 11, 2014, id. at 1-4, rendering the ALJ's determination the Commissioner's final decision.

Johnson timely commenced the current action on March 26, 2014, seeking judicial review of the Commissioner's decision pursuant to 42 U.S.C. ยงยง 405(g) and 1383(c)(3). See Complaint ("Compl.") (Dkt. No. 2). On September 22, 2014, the Commissioner filed her Answer and moved for judgment on the pleadings pursuant to Rule 12(c). See Notice of Motion for Judgment on the Pleadings (Dkt. No. 9); Memorandum of Law in Support of Judgment on the Pleadings (Dkt. No. 10). Johnson did not submit any response in opposition to the motion.

B. The Administrative Record

1. Johnson's Background

Johnson was born on November 20, 1963, and was 46 years old on the onset date of his alleged disability. R. at 88. Johnson lives in the Bronx, New York, has completed high school, and has never been married. Id. at 88-89, 110. In his application, Johnson described his work history, which includes various positions in warehouses, working as a mover for a moving company, and, most recently, working as a supermarket stock clerk from 2009 until 2010. Id. He stopped working at his most recent job because "it was slow." Id. at 109.

Johnson's claims for DIB and SSI are based on physical impairments: HIV, lower back pain, and hypertension. Id. Johnson was diagnosed as HIV positive in 1999, but does not take any medication for it. Id. at 112, 193. Johnson said that he began to experience lower back pain sometime in 2008, id. at 166, although he continued working until November 2010. Id. at 109. Johnson asserted that, as of November 2011, this lower back pain prevented him from "standing for long periods of time." Id. at 126. Finally, Johnson has high blood pressure, and has been taking medication for it at least since 2009. Id. at 166, 193. During his administrative hearing, Johnson also testified about knee pain which sometimes prevents him from getting out of bed. Id. at 25.

At his hearing and in his submissions to the SSA, Johnson described his daily activities. Id. at 20-31, 115-23. He said that he spends most of the day at home watching television and occasionally goes for walks in a park near his house. Id. at 30. He is able to take public transportation without assistance. Id at 27. Johnson also said that he regularly cooks; is able to shop, clean, and do his own laundry; and exercises and attends sports events and church. Id. at 115, 117, 119.

2. Medical Evidence

a. Treatment at Woodhull Medical and Mental Health Center

i. Inpatient Hospital Records

From September 12-19, 2011, Johnson underwent detoxification for heroin dependence at Woodhull Medical and Mental Health Center ("Woodhull"). Id. at 147-56, 161. At intake, Johnson had high blood pressure, but his cardiovascular and respiratory systems were normal. Id. at 151. A transthoracic echocardiogram performed during Johnson's hospitalization revealed normal cardiac function with mild hypertrophy in the left ventricle. Id. at 192. The doctor also noted that Johnson was morbidly obese. Id. at 151.

Johnson was discharged on September 19 with diagnoses of opiate dependence, HIV positive status, and hypertension. Id. at 148-49. His discharge papers noted that Johnson's Global Assessment of Functioning ("GAF") score was 65 and that his physical activity was not restricted. Id. at 149.[3]

ii. Santangelo Treatment Notes

The record also contains treatment notes from an outpatient visit at Woodhull on October 3, 2012 where Johnson was seen by Valerie Santangelo, a nurse practitioner. Id. at 191-201. In these notes, Santangelo reported that Johnson's last visit had been in October 2011, id. at 193, and it appears that he also saw Santangelo at that time. See id. at 157.

Santangelo observed that Johnson was diagnosed as HIV positive in 1999, but "never really went for any care mostly because he was told he did not need treatment." Id. at 193. However, she also indicated that Johnson "does not want [HIV] medications at this time due to social issues (and] housing problems." Id Santangelo noted that Johnson's previous CD4 count was 616, [4] his viral load was 1, 535, [5] and he is PPD positive.[6] Id. at 193-94. Johnson reported knee and back pain, including that, as a result of his weight gain, he "cannot even walk two blocks without sitting." Id. Accordingly, Santangelo referred Johnson to radiology for testing of his spine, the results of which were normal except for a "mild degenerative endplate osteophyte formation." Id. at 200. With respect to Johnson's hypertension, Santangelo advised him to continue taking his medication and discussed "lifestyle modifications" and a reference to a nutritionist. Id. at 194. Despite elevated blood pressure, Johnson's cardiovascular and respiratory systems were normal. Id. at 197. Finally, she noted that Johnson was "[t]rying hard to get back into care seeing psychiatry, " and referred him for a mental health evaluation. Id at 193-94.

iii. HIV Medical Report

Santangelo and Dr. Faisal Chaudhry completed an SSA form pertaining to Johnson called an "HIV Medical Report" dated October 5, 2012. Id. at 202-08. The report appears to have been completed by Santangelo with respect to Johnson's physical condition and by Dr. Chaudhry with respect to his mental condition.

Santangelo listed diagnoses of HIV positive status, hypertension, and back pain. Id. at 202. Santangelo noted an absolute CD4 count of 686, a T4/T8 ratio of 0.707, [7] and a viral load of 806. Id. at 203. She also noted that Johnson was not on medication for his HIV, but had not had any opportunistic infections. Id. Santangelo concluded that the effects of Johnson's conditions on his daily living activities were that his standing and walking were each limited by fatigue to two hours per day during an eight-hour day, he was limited to lift and carry up to 20 pounds for two blocks, and was not limited when sitting. Id. at 204. By contrast, with regard to Johnson's ability to perform work-related activities, Santangelo concluded that Johnson's ability to stand and/or walk was limited to six hours per day, he was limited to lift and carry a maximum of 25 pounds up to two hours per day, and could sit a maximum of six hours per day. Id. at 205. She found that he had no limitation in his ability to push and pull. Id. Santangelo also determined that Johnson had no limitations or difficulties in his ability to travel, understand, remember or carry out instructions, or respond in a professional setting. Id. at 204.

In the same HIV Medical Report, when evaluating Johnson's mental ability to perform work-related activities, Dr. Chaudhry concluded that Johnson had no limitations in understanding and memory or adaptation. Id. at 207. However, Dr. Chaudhry also found that Johnson "has mental health issues that interfere with [his] ability to be punctual" and "chronic pain issues [that) affect his ability to be relaxed and calm and to focus. He gets intermittent depression." Id. at 206-07. Dr. Chaudhry estimated that Johnson would be absent from work due to physical or mental problems approximately three times each month. Id. at 206.

b. Consultative Examinations

i. Dr. Christopher Flach

On December 6, 2011, Dr. Christopher Flach performed a consultative psychiatric evaluation of Johnson. Id. at 162-65. Johnson reported to Dr. Flach that he had no depressive symptoms, anxiety, or manic symptoms. Id. at 162. Dr. Flach observed that, during the examination, Johnson was cooperative, maintained good eye contact, was fluent in his speech, had a coherent and goal-directed thought-process, a neutral mood, and intact attention and concentration with fair insight and judgment. Id at 163-64. Dr. Flach also noted that Johnson seemed lethargic, his affect was flat, his cognitive functioning was below average, his recent and remote memory was moderately impaired, and his orientation was off by time (Johnson said the year was 1911). Id.

Dr. Flach determined that Johnson was able to perform activities of daily living, including cooking, cleaning, shopping, and managing his own funds, and was able to tend to his personal needs, including dressing and bathing. Id. at 164-65. As part of the medical source statement, Dr. Flach concluded that Johnson "can follow and understand simple tasks independently, " but has "mild problems" dealing with stress and maintaining attention and concentration. Id. at 164. He further reported that Johnson was "able to maintain a regular schedule, learn new tasks, perform complex tasks [and] make[] appropriate decisions and adequately relate to others." Id. Dr. Flach diagnosed Johnson with an adjustment disorder with "mixed emotions of anxiety and depression" and opiate dependence in "early full remission." Id.

ii. Dr. Vinod Thukral

That same day, Johnson also underwent a consultative physical examination by Dr. Vinod Thukral. Id. at 166-71. Dr. Thukral gave Johnson a "fair" prognosis and diagnosed him with "HIV disease by history, hypertension by history, lower backache by history, headache by history, ex-heroin abuse by history, and decreased visual acuity in the right eye upon examination." Id. at 169. With respect to his HIV, Johnson denied any history of opportunistic infections, hospital admissions, or complications. Id. at 166. Johnson also discussed his history of lower back pain, which he said is precipitated by standing for long periods, bending, lifting, pushing, and pulling. Id. Johnson described the pain as "dull" and "intermittent, " and said that he "gets some relief with rest and pain medication." Id. Dr. Thukral's examination of Johnson's lumbar spine revealed full flexion, extension and lateral flexion bilaterally, full rotary movement bilaterally, and negative straight leg-raising bilaterally. Id. at 168. Dr. Thukral noted that Johnson's blood pressure was elevated, and despite the fact that Johnson was asymptomatic, Dr. Thukral referred him to the emergency room for uncontrolled hypertension. Id. at 167.

Dr. Thukral noted that, during the physical examination, Johnson appeared to be in no acute distress. Id. Dr. Thukral observed that Johnson had a normal gait, was able to walk on his heels and toes without difficulty, squat fully, rise from his chair without difficulty, and did not need help changing or getting on and off the examination table. Id. Johnson reported that he could perform activities of daily living, including cooking, cleaning, shopping, doing laundry, showering, bathing, and dressing himself. Id. Dr. Thukral concluded that ...


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