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JOHNSON v. CHATER

June 19, 1997

DAVID JOHNSON, Plaintiff,
v.
SHIRLEY S. CHATER, Commissioner of Social Security, Defendant.



The opinion of the court was delivered by: CASTILLO

 On February 13, 1995, an Administrative Law Judge (ALJ) denied David Johnson's application for Disability Insurance Benefits (DIB) and Supplemental Security Income (SSI) under the Social Security Act, 42 U.S.C. §§ 416(i), 423(d), 1381a, 1382c(a)(3)(A). He now appeals that decision in federal district court as permitted by 42 U.S.C. § 405(g), which grants federal courts the power to review the Social Security Commissioner's final decisions *fn1" via a federal civil action. The accepted procedural vehicle for obtaining judicial review of a social security benefits determination is a motion for summary judgment under Rule 56 of the Federal Rules of Civil Procedure, which both Johnson and the Commissioner have submitted here. *fn2" For the reasons that follow, we affirm the ALJ's decision.

 RELEVANT FACTS

 We begin with a brief overview of the facts, then move on to a more detailed review of the record. Johnson is a 35-year-old man who currently lives with his father and sister. He has at least a tenth grade education *fn3" and is capable of reading, writing, and basic math. Johnson's memory and intellect are within normal limits, although he testified that his grade school recommended placement in special education -- an option his father rejected. From 1979 (the year Johnson would have graduated from high school) until he left his most recent position in 1993, Johnson held jobs as a retail store janitor, hotel housekeeper, gas station attendant, hotel clerk, and food service worker.

 Johnson suffers a back malady stemming from a 1990 injury he sustained while working as a food service employee at United Airlines. After undergoing back surgery, Johnson returned to work and was placed on a "light duty" assignment to accommodate his reduced physical capacity. Although the surgery initially alleviated his back pain, the pain soon returned and intensified, accompanied by leg pain, to the point that Johnson claims he could no longer work in even a sedentary capacity. Johnson stopped working at United Airlines in early to mid-1993. *fn4" During the summer and fall of that year, Johnson received treatment for his back and leg pain, which included a short stint at a pain treatment center.

 In addition to his back ailments, Johnson suffers from an eye condition that limits his vision, and has been diagnosed with depression and a substance abuse disorder. Johnson's psychological problems did not surface until 1994, when he was hospitalized ten days in August and two days in September for alcohol and cocaine intoxication. He was diagnosed with polydrug dependence, manifested in acute toxic psychosis, and atypical affective disorder. Johnson's symptoms, which included depression, anxiety, and paranoia, diminished significantly with detoxification, and the acute toxic psychosis was resolved before Johnson's latest discharge. When asked at the administrative hearing whether he had mental impairments, Johnson mentioned that he possesses some "character defects," but did not report depression or substance abuse. In response to further questioning, he told the ALJ that he was no longer using drugs or alcohol, and that he had taken antidepressant medication for only a month and stopped. Other than the brief August and September 1994 hospitalizations, Johnson has never been under the care of a psychiatrist and has not since returned for inpatient psychiatric treatment.

 Johnson filed for SSI benefits on November 22, 1993 (with a protected filing date of September 15) and for DIB in February 1994, alleging that he had become disabled as a result of his back injury and the residual pain from surgery. His applications were denied on May 31, 1994 and June 21, 1994. Johnson filed a timely request for reconsideration, which was denied on October 6, 1994. Represented by counsel, he appeared before ALJ Bonny Barezky on January 23, 1995. She denied Johnson's applications for benefits in a ruling issued February 13, 1995, finding that Johnson was capable of performing his previous light duty job at United Airlines. Johnson next petitioned the Appeals Council to review the ALJ's decision; his request was denied on February 26, 1996. After the Council extended Johnson's time to appeal, he filed a complaint in this Court on June 12, 1996, requesting review of the Commissioner's final decision. Johnson does not contest the ALJ's decision as it relates to the functional restrictions of his physical impairments. Rather, he claims that the ALJ's decision denying benefits lacks substantial evidentiary support insofar as it ignores the limitations imposed by his mental impairments. We now consider the record to determine whether Johnson's assessment is correct.

 I. Johnson's Testimony

 At the hearing, Johnson was assisted by counsel, who began the proceedings by telling the ALJ, "this is basically a pain case." (R.50). When asked what impairments Johnson was claiming, the attorney answered that Johnson's back problem and attendant pain were the basis for alleging a disability. He said nothing about mental impairments. Consistent with this focus, the evidence addressing Johnson's mental impairments constitutes a very small portion of the record. Given that Johnson's challenge is to the ALJ's consideration of mental impairments only, our discussion of Johnson's physical impairments is limited.

 Johnson was 33 years old at the time of the hearing. He lives in Chicago with his father and sister, who assist him physically and take care of all the housework and shopping. Johnson has struggled academically: he told the ALJ that his last full year in school was tenth grade and that he was held back in fourth grade. Johnson was never enrolled in special education classes, but attributes this to his father's refusal to follow the school's recommendations. Still, Johnson considers himself to be "pretty good" at reading and writing, adding, subtracting and multiplying. He believes he can read a newspaper (or could before his vision began to deteriorate) and is capable of finding the programs he wants to watch in T.V. Guide.

 Johnson held various jobs between 1979 and 1986. In 1987, he began working for United Airlines as a food service employee. Following his surgery in 1990, Johnson returned to work in a light duty position, where he was responsible for such tasks as rolling silverware, filling salt and pepper shakers, and making coffee bags. He was required to lift no more than ten pounds. The job was full-time, and permitted Johnson to alternate between sitting and standing at will. At times, he was allowed to go to the company medical facility and lie down. Johnson stopped working in February 1993 because United "didn't have any work for me to do at the time." But what ultimately prevented him from returning is debilitating back and leg pain. Johnson testified that he still has a strong desire to work; to this end, he tried on a number of occasions to return, without success. He did not attribute his failure to return to work to feelings of depression or problems with substance abuse.

 When asked whether he believes that he presently suffers from any mental impairments, Johnson responded only that he has some "character defects":

 
A: Let me see if I can explain them to you. Sometimes I feel that people are doing things intentionally to me, you know, and in reality nobody is doing anything to me. You know, I feel that sometimes people are out to get me sometimes [sic], you know, this is even prior to my accident, but I've been dealing with it pretty good. I guess you could call it paranoia or whatever, but sometimes it feels as though people are just trying to misuse me.
 
Q: And did you have this before your drug abuse?
 
A: Yes, I did. Do you know, and then, you know, sometimes like if I'm with a coworker or something like that, and I'm not doing my job right, or I'm not -- you know, it's not -- this is the way it's supposed to be done, you know, I'll get pissed off at my coworker because it's not helping him and it's not helping me and it's not helping her and it's not helping me, you know, and I don't feel good being the dumb one, or whatever, or being the one that they couldn't complete or do the task, you know. And then I'll get angry.

 (R.77). Johnson also included in his discussion of character defects the fact that he sometimes has difficulty getting along with coworkers, but explained that "I'm the same person that would apologize . . . afterwards." Id. He often feels as though others do not want to be around him.

 After questioning Johnson about mental impairments, the ALJ moved on to his daily activities. Johnson leads a very sedentary lifestyle; his back problem reportedly prevents him from doing housework, yardwork, running errands or pursuing hobbies. Johnson has few friends and rarely goes out. His sole form of recreation appears to be watching television, an activity that consumes about ten hours of his day on average. He did drive himself to the hearing -- a 25-minute trip -- and testified that he drives himself to medical appointments. The ALJ also noted for the record that Johnson "repeatedly had to get up during this hearing and sit down intermittently." (R.88). Although Johnson reports eating only one meal per day and having lost 30 pounds in four months, the ALJ remarked at the hearing that Johnson "appear[s] to be well nourished." (R.80). Johnson has trouble sleeping, but attributes this to that fact that he frequently must change positions during the night to relieve his back pain. He also sleeps on and off during the day.

 II. Other Testimony

 Two medical experts testified at the hearing: Dr. Newman, an orthopedic surgeon, and Dr. Scheffler, an ophthalmologist. The ALJ heard no psychiatric or other testimony on Johnson's potential mental impairments. Dr. Newman presented his opinion on the nature and severity of Johnson's back impairment, and its effect on Johnson's neurological functioning and exertional capacity. With regard to the nature of Johnson's back problem, Dr. Newman testified that

 
he's got a slightly degenerated L5 intervertebral disc with slight bulging. The bulging is into the neuroforamin on the right side, but doesn't impair the -- doesn't impinge the nerve root, the S1 nerve root at that level. And that's on the basis of the recent myelogram or post myelogram CT.

 (R.89). Dr. Newman noted that Johnson's treating physician performed a procedure that is normally done to alleviate nerve root impingement, even though objective testing did not indicate such a condition, but that this treatment was in line with Johnson's subjective symptoms. Although severe, Johnson's back impairment did not meet any of those listed as conclusively disabling, in part because Johnson remained neurologically intact. Dr. Newman could not answer whether Johnson would have problems understanding, remembering and carrying out instructions at work, but he was limited in his ability to lift, bend, and sit or stand for prolonged periods. Dr. Newman concluded that Johnson was permanently restricted to light work.

 Dr. Scheffler questioned Johnson about his visual impairment and the treatment he had sought for it. After extensive questioning, he opined that Johnson suffers from a condition called bilateral central serous detachment of the macular area of the retina. The condition is treatable and likely related to "a stress syndrome which this young man is experiencing." (R.99). While vision in Johnson's left eye was dramatically reduced, the much better sight in his right eye compensated to the extent that Johnson's overall vision was "adequate." Dr. Scheffler opined that there were no functional limitations whatsoever associated with Johnson's eye condition.

 The hearing concluded with testimony from Cheryl Hoiseth, a vocational expert (VE). She opined that Johnson was capable of performing a variety of light work, based on the hypotheticals presented by the ALJ. The ALJ asked the VE what occupations were functionally feasible for a thirty-four-year-old male with a tenth grade education, the ability to read, write and use numbers, and the physical capacity to undertake light work. The VE was to consider that the man experienced chronic pain, noticeable at all times, but not severe enough to prevent him from being attentive to responsibilities on the job, and that he took medication that made him dizzy. In addition, the job would permit sitting and standing at will to relieve pain. The VE responded that Johnson's past work at United would satisfy these requisites. Next, the ALJ eliminated the sit/stand option from the hypothetical, asking what jobs would be available to this person if he could perform only sedentary work. The VE answered that such a person could find work as a cashier, telephone solicitor, surveillance monitor, assembler, and hand packager. Finally, the ALJ asked the VE to assume that the same person was afflicted with a substance abuse disorder that was "under control at this time." (R.111). According to the VE, this person could perform the very same sedentary jobs. The regional economy boasted thousands of each.

 On his cross-examination of the VE, Johnson's attorney asked whether Johnson's past job was merely "sheltered work," that is, work unavailable in the competitive economy because it is uniquely tailored to the employee's limitations. The VE initially responded that it would be "unusual" for an employer to permit lying down on occasion, which is what Johnson had testified was permitted him. After more questioning, the VE opined that having complete volitional control to stand, sit or lay down at the employee's discretion is not normally competitive employment; as such, if Johnson's past work with United Airlines truly permitted him to go to the medical center and lie down whenever he wanted, it could possibly be classified as a sheltered job.

 III. Medical Records

 Two sets of medical records contain information bearing on Johnson's intellect and psychology. The first is a set of documents from Lake Forest Pain Treatment Center, where Johnson enrolled in a pain treatment program but left before completing it. The second consists of documents from Little Company of Mary Hospital, ...


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