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Johnson v. Commissioner of Social Security

United States District Court, S.D. New York

July 31, 2018




         Plaintiff Robert Johnson brings this action pursuant to § 1631(c)(3) of the Social Security Act (the Act), 42 U.S.C. § 1383(c)(3), seeking judicial review of a final determination of the Commissioner of Social Security (the Commissioner) denying his application for Supplemental Security Income (SSI). Both parties have moved for judgment on the pleadings. For the reasons set forth below, the Commissioner's motion is GRANTED and plaintiffs motion is DENIED.

         I. BACKGROUND

         A. Procedural Background

         Johnson filed an application for SSI on December 10, 2012, alleging disability since November 28, 2011. See Social Security Administration (SSA) Administrative Record (Dkt. No. 11) (hereinafter R.), at 252-61.[1] At the time of his application, Johnson was represented by the Law Offices of Kenneth Hiller, PLLC (the Hiller Firm). (R. 89-90, 94-95.) On March 29, 2013, Johnson's application was denied. (R. 96-99.) On April 2, 2013, Johnson requested a hearing before an Administrative Law Judge (ALJ). (R. 104.)

         On April 10, 2014, while his application was pending, Johnson was arrested and held at the Erie County Correctional Facility. (R. 50-51, 328.) He remained incarcerated, and hence ineligible for benefits, see 42 U.S.C. § 402(x), until January 4, 2016. (R. 224, 249.)

         On January 23, 2015, Johnson's attorneys withdrew from the case. (R. 204, 229.) After several postponements, [2] a video hearing before ALJ Sharon Seeley was held on June 29, 2015. (R. 45-78.) In addition to plaintiff, vocational expert David F. Festa testified at the hearing. (R. 70-76.)

         Prior to the hearing, in a letter dated May 24, 2015, Johnson requested that the ALJ issue subpoenas for testimony and/or documents to the Ffiller Firm, as well as the attorneys who represented him in three civil cases, several judges who presided over civil claims related to his detention, and the Erie County Correctional Facility Medical Department. (R. 322-29.) In her written decision, discussed below, the ALJ denied Johnson's request for subpoenas, stating that the record already contained the materials he sought. (R. 25, 50-51.) The ALJ specifically noted that Johnson's former counsel had submitted "documentation of Johnson's medical and mental health treatment records through May 21, 2014," before withdrawing from the case. (R. 25.)

         On February 26, 2016, the ALJ issued a decision finding Johnson not disabled. (R. 35.) Johnson appealed the ALJ's decision, represented by Kelly Laga of the Hiller Firm. (See R. 250.) In a March 31, 2016 letter to the Appeals Council, Laga requested review of the ALJ's decision and "an extension of time in order to submit [plaintiffs] legal arguments or additional evidence in this case." (R. 250.) On May 12, 2016, the Appeals Council granted counsel's request for an extension and gave plaintiff 25 days to submit any additional information that was "new and material to the issues considered in the hearing." (R. 11-12.) Johnson did not submit any new evidence. (See R. 6.) On May 23, 2017, the Appeals Council denied his request to review the ALJ's decision, making that decision final. (R. 1-7.)

         On July 24, 2017, Johnson filed this action, pro se, seeking judicial review of the ALJ's denial of his application. (Dkt. No. 2.) On December 21, 2017, the Commissioner moved pursuant to Fed.R.Civ.P. 12(c) for judgment on the pleadings. (Dkt. No. 13.) On January 3, 2018, Johnson filed a document entitled "memorandum of law in support of the plaintiffs motion for summary judg[ment] inter alia on the pleadings" (Dkt. No. 15), which I construe as a motion for judgment on the pleadings in his favor. See Coppedge v. United States, 369 U.S. 438, 444 n.5 (1962) (Courts should take "a liberal view of papers filed by indigent and incarcerated defendants."). Together with his brief, Johnson attached a medical report from an unknown medical provider dated January 21, 2016, as well as four receipts from a pharmacy dated November 10 and 13, 2017, indicating purchases of naproxen, tramadol, diclofenac, and a lidocaine patch. (Dkt. No. 16.)

         B. Personal Background

         Johnson was born on February 26, 1984, making him 28 on the date of his application. (R. 272.) He received a General Education Diploma (GED) in 2006 and took some college classes in business administration. (R. 276, 367.) Between November 2011, the alleged onset of his disability, and October 2012, Johnson worked as a temporary packager and loader, hotel housekeeper, and line cook at McDonald's. (R. 57-58, 276-77, 283-86, 399.) On October 29, 2012, during his employment with McDonald's, Johnson slipped and fell in a parking lot, injuring his neck, back and head. (See R. 478.) He stopped working after the injury. (R. 58.)

         In a Disability Report dated December 26, 2012, prepared in connection with his application for SSI, Johnson reported that he was disabled due to a lazy left eye, post-traumatic stress disorder (PTSD), back pain, and tenderness at the back of his head. (R. 275.) In a Function Report dated January 16, 2013, he stated that he was unable to sit or stand for long periods of time, walk long distances, bend, or lift heavy objects due to his pain. (R. 292, 296-97.) He also reported difficulty sleeping on his back, bathing, or tying his shoes. (R. 292.) However, he was able to cook, perform household chores such as ironing, dishwashing, cleaning and vacuuming, and shop for groceries once or twice per month by himself. (R. 293-95.) With respect to his mental state, Johnson reported that he had problems paying attention, was unable to finish what he started due to headaches and dizziness, and experienced headaches, neck pain and back problems when he was under stress. (Id.) Johnson reported that he left his house every day in order to attend doctor visits and group counseling. (R. 292, 294, 301.)

         Johnson also completed a questionnaire about his headaches. (R. 302.) He stated that he experienced headaches 10-12 times per month, 30-40 times per year, lasting 10-15 minutes each time. (Id.) He reported that the headaches caused him to feel dizzy, nauseous, and tense, with associated blurred vision, nausea, stress, pain, and imbalance of thought processing. (Id.) He took ibuprofen for the pain, which worked "[w]ithin 10 minutes" and provided relief for "1 [to] 2 hours." (Id.)


         A. Treatment Records Relating to Plaintiffs Physical Impairments

         1.Community Health Center of Buffalo

         On June 26, 2012, Johnson was seen at Community Health Center of Buffalo for a routine physical examination. (R. 363-64.) He reported that "he feels good and has no complaints." (R. 363.) Upon examination, Johnson appeared "well developed," "well-nourished," and "in no acute distress." (Id.) His eyes were "reactive to light and accommodation." (Id.) His neck was "supple" and had "a foil range of motion." (Id.) Neurological examination revealed normal strength in his extremities and "intact" sensation. (R. 364.)

         2. Erie County Medical Center (ECMC)

         On October 30, 2012, Johnson visited the emergency department of ECMC, complaining of neck, back, and head pain after his slip and fall the day before. (R. 444-47, 450.) On examination, Dr. Aaron Hilton, M.D., found tenderness over the paraspinous muscles connected to Johnson's cervical and thoracic spine, with intact sensation upon light touch and neurological strength of 4/5. (R. 446.) Dr. Hilton diagnosed muscle strain and advised Johnson to take over-the-counter pain medications such as Tylenol for relief and use a warm compress for muscle tightness or spasm. (R. 446, 450.)

         Johnson returned to the emergency room on December 29, 2012, complaining of low back pain. (R. 448.) The examiner noted that Johnson was "ambulatory" with foil muscle strength in the lower extremities. (R. 449.) Johnson was diagnosed with back pain. (R. 448.)

         On January 6, 2014, Johnson went to the ECMC emergency room again, complaining of pain in his neck, back, and pelvis, after falling from his bike. (R. 555.) He was observed to "ambulate[] with a steady gait." (R. 555-56.) The ER doctor diagnosed neck strain but released him without any restrictions on his activities. (R. 555, 557.) Johnson attended physical therapy sessions in February and March 2014 with physical therapist Laura Morey. (R. 550-52.) Johnson reported neck pain of 7/10 in intensity, primarily because of his most recent fall, but also due to "chronic neck and back pain" from his slip and fall in 2012. (R. 550-52.) At Johnson's final session, Morey observed that Johnson had a limited range of motion in the cervical spine but foil and pain-free ranges of motion in his upper extremities and full strength. (R. 550.)

         3. Chiropractic Evidence

         Johnson received chiropractic treatment from Dr. Scott Croce, D.C., in November and December 2012. (R. 427-43.) Dr. Croce found a reduced range of motion in Johnson's cervical and lumber spine and noted that he was unable to perform a partial squat or walk on heels and toes. (R. 437, 442.) He assessed that Johnson had a "total" but "temporary" disability. (R. 436, 441.)

         Johnson also received chiropractic treatment from Dr. John Ward, D.C., from January 16 to January 28, 2013. (R. 452-56.) Dr. Ward found a "palpable spasm of [the] paraspinal musculature with limited and painful [range of motion] of [the cervical and lumbar spine]." (R. 453.) Dr. Ward treated Johnson with joint manipulation of the cervical, thoracic, and lumbar spines and with moist heat, noting that Johnson "responded with slow improvement." (R. 454.)

         4. Radiographic Evidence

         On October 30, 2012, a CT scan of Johnson's head and x-rays of his cervical and thoracic spine performed by ECMC were negative (normal) (R. 444-46, 511), and Dr. Hilton of ECMC noted that there was a "low likelihood of traumatic injury." (R. 447.)

         On January 29, 2013, an MRI of the cervical spine, also performed by ECMC, revealed "mild straightening of the upper cervical lordosis" and focal central annular bulges at ¶ 5-C6, C6-C7, and C7-T1. (R. 457.) However, the vertebral bodies were normal in contour and signal intensity, the invertebral disc heights were preserved, the cervical cord was normal in contour and signal intensity, and there were no abnormalities detected at the craniocervical junction. (Id.) An MRI of the thoracic spine revealed "an s-shaped scoliosis" and "straightening of the normal thoracic kyphosis." (R. 459.) There was no evidence of disc herniation, canal stenosis, foraminal narrowing or arthritic change in either the cervical or lumbar spine. (R. 457, 459.)

         On February 19, 2013, x-rays of Johnson's lumbar and cervical spine, taken at IMA Disability Services, were negative (normal) and showed that the "height of the vertebral bodies and intervertebral disc spaces were relatively well maintained" with "pedicles intact throughout." (R. 470-71.)

         An MRI of Johnson's lumbar spine was performed on February 20, 2013. (R. 475, 479.) The MRI report itself does not appear in the record, but two workers' compensation examiners, Dr. Edward Simmons, M.D., and Dr. Zair Fishkin, M.D., later discussed its findings. Dr. Simmons observed on June 5, 2013, that the MRI showed patent central canal and neural foramen (indicating no compression), but mild to moderately increased STIR signal in the "right posterior illiac wing of uncertain etiology." (R. 475.)[3] Dr. Fishkin noted on July 1, 2013, that the MRI showed no evidence of disk herniation, spinal canal stenosis, or foraminal stenosis, but there was "concern for an underlying injury to right sacroiliac region," which required further evaluation. (R. 479.)

         B. Opinion Evidence Related to Plaintiffs Physical Impairments

         1.Consultative Examiner Dr. Hongbiao Liu

         Dr. Hongbiao Liu, M.D., performed a consultative examination on February 19, 2013. (R. 466.) Dr. Liu observed that Johnson had a normal gait and stance, did not use assistive devices, and could walk on his heels and toes with mild difficulty. (R. 467.) He did not need help getting on or off the exam table and could easily rise from a chair, but could only perform a partial squat due to low back pain. (Id.) His joints were stable and non-tender. (R 468.) He had no abnormality in his thoracic spine. (Id.) However, he had reduced ranges of movement in his cervical spine, with flexion/extension to 40 degrees, rotation to the left of 40 degrees and to the right of 75 degrees, and lateral rotation of 40 degrees. (Id.)[4] He had normal ranges of motion in the lumbar spine, except for a slightly reduced range of lateral flexion of 10 degrees. (Id.)[5]

         Dr. Liu diagnosed Johnson with chronic neck and low back pain and PTSD (to be "further evaluated by a psychiatrist"). (R. 466, 468-69.) He opined that Johnson "ha[d] mild limitation for prolonged walking, bending, kneeling, and overhead reaching." (R. 469.)

         2.Workers' Compensation Examiner Dr. Edward Simmons

         Dr. Simmons examined Johnson on June 5, 2013, in connection with his workers' compensation claim against McDonald's. (R. 472-76.) Johnson reported difficulty holding his head up due to neck pain, as well as difficulty sitting due to pain in his lower back. (R. 474.) During the examination, Dr. Simmons noted that Johnson "st[ood] with a guarded posture and ambulate[d] with a cautious gait pattern." (R. 475.) He had tenderness to palpation over the cervical, thoracic and lumbar spine, and coccyx and bilateral joints, reduced ranges of motion in the cervical spine, and visible paraspinal spasm when he moved his cervical spine. (Id.) However, Johnson had normal ranges of motion in the lumbar spine. (Id.) A neurological examination showed that Johnson had full strength in the bilateral upper extremities, physiologic (normal) reflexes, and an intact sensation upon light touch. (Id.)

         Dr. Simmons also reviewed previous imaging of Johnson's spine, as well as x-rays of the cervical and lumbar spine obtained that day. (R. 475.) The x-ray of the cervical spine was normal, while the x-ray of the lumbar spine revealed "facet anthropathy at ¶ 5-S1 with loss of disc height." (Id.) Dr. Simmons diagnosed Johnson with degenerative disc disease of the lumbar and cervical spine, muscle spasm, and spondylosis of the lumbar and cervical spine without myelopathy. (R. 476.) He also assessed that Johnson had "ongoing neck, mid and low back pain" and "a moderate to marked partial disability with regards to all work." (R. 475.)

         Dr. Simmons examined Johnson again on July 29, 2013. (R. 484-88.) Johnson reported worsening pain in the buttocks and continued pain in the neck, need for more frequent repositioning, and difficulty with prolonged standing and walking. (R. 485.) Upon examination, Dr. Simmons's findings remained unchanged from the last examination. (See id.) Dr. Simmons noted that a new MRI of the pelvis, dated July 22, 2013, revealed no fracture lines or abnormalities associated with the sacroiliac joints, but was "consistent with mild posttraumatic edema in the bilateral iliac bones." (R. 487.) He diagnosed spondylosis of the cervical and lumbar spine without myelopathy and pelvis-contus, and assessed that Johnson "ha[d] a total disability with regards to his regular work and a moderate to marked partial disability with regards to all work." (R. 487-88.)

         3. Dr. Azher Iqbal

         Dr. Azher Iqbal, M.D., saw Johnson on September 23, 2013, to assess whether he was an appropriate candidate for bilateral sacroiliac joint injections. (R. 512-14.) Dr. Iqbal noted that Johnson walked with a normal gait and his spinal contour was normal, although he had moderate tenderness in his sacroiliac joints bilaterally and tenderness to palpation in his lumbar spine. (R. 513.) His range of motion was "limited in flexion and extension due to pain." (Id.) Dr. Iqbal diagnosed Johnson with sacral disorder and recommended sacroiliac joint injections. (R. 514.) An injection was performed on October 2, 2013. (R. 521-22.) Dr. Iqbal noted that Johnson "tolerated the procedure well without apparent complications." (R. 521.)

         4.Workers' Compensation Examiner Dr. Zair Fishkin

         Dr. Fishkin examined Johnson on three occasions in connection with his workers' compensation claim against McDonald's. (R. 477-83, 491-509.) On July 1, 2013, Dr. Fishkin noted that Johnson was able to rise from a seated position and walk with a normal gait without assistive walking devices. (R. 480.) He observed that Johnson had full strength in his upper and lower extremities, normal range of motion in his lumbar spine, shoulders, elbows, wrists, hips, and ankles, full strength in his extremities, and a firm grip. (Id.) Johnson had a slightly reduced range of motion in the cervical spine, with flexion and extension of 45 degrees and lateral rotation of 60 degrees. (Id.)

         X-rays of the cervical spine obtained on July 1, 2013 were normal, with maintenance of the cervical disc heights, no evidence of cervical instability, patent neural foramina, satisfactory bone quality, and normal alignment at Cl and C2. (R. 481.) X-rays of the lumbar spine obtained that day were also normal and showed well-maintained disc space heights, satisfactory bone quality and no evidence of spondylolysis or spondylolisthesis. (Id.) Dr. Fiskin "tentative[ly]" diagnosed Johnson with C5-6 disc bulge, C6-7 ...

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