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Javon Johnson v. Michael J. Astrue

November 29, 2012


The opinion of the court was delivered by: Magistrate Judge Young B. Kim


Javon Johnson applied for Supplemental Security Income ("SSI") in 2006 alleging disability because of mental retardation and anxiety-related disorders. His application was denied by the Social Security Administration and again by an administrative law judge ("ALJ"). Johnson challenges the ALJ's decision in the current motion for summary judgment. For the following reasons, Johnson's motion is granted insofar as it requests a remand:

Procedural History

Johnson applied for SSI on May 25, 2006, alleging disability beginning on January 1, 2006. (Administrative Record ("A.R.") 80-82, 164.) His claims were denied initially and on reconsideration. (Id. at 86, 88-91.) Following a hearing in May 2009, the presiding ALJ found Johnson to have two severe impairments-borderline intellectual functioning and depressive mood disorder with psychotic features-but found that he is capable of working if he complied with his treating psychiatrist's medical prescriptions. (Id. at 16-25.) When the Appeals Council denied Johnson's request for review (id. at 1-6), the ALJ's decision became the final decision of the Commissioner, see Schmidt v. Astrue, 496 F.3d 833, 841 (7th Cir. 2007). Johnson then filed the current suit seeking judicial review of the ALJ's decision. See 42 U.S.C. § 405(g). The parties have consented to the jurisdiction of this court. See 28 U.S.C. § 636(c). (R. 7.)


Johnson, who was 31 years of age at the time of the hearing, had lived with his mother his entire life but for about five years he spent in prison. (A.R. 32, 52, 54-55, 182.) As a child, he attended regular education classes and completed the eighth grade, but dropped out of school the following year. (Id. at 136, 255-57, 527.) He worked for a few days in 1997 and again in 1999, both times in fast food restaurants. (Id. at 142, 170.) His employment ended when he walked off the job or was terminated. (Id. at 169, 187.)

A. Medical Evidence

Johnson's medical record reaches back to 1992 when the state disability agency requested that a licensed psychologist examine him in conjunction with an earlier application for disability benefits. (A.R. 257-59.) The psychologist noted that Johnson was enrolled in regular classes and described him as "somewhat lethargic with poor motivation." (Id. at 258.) After performing tests, the psychologist opined that Johnson's Full Scale I.Q. was 40-within the category of "Moderately Mentally Retarded"-and that his performance in a picture vocabulary test was equivalent to that of a three-year old child. (Id.) She noted that she considered the test results to be valid. (Id.) A different psychologist evaluated Johnson seven years later in 1999 and opined that his Full Scale I.Q. was 45. (Id. at 260-64.) That psychologist however commented that the "[t]est scores are invalid" because those scores "were depressed by general lethargy, frequent carelessness and low frustration tolerance." (Id. at 264.) The psychologist also commented that Johnson's "[r]esponses were coherent, blunt, usually 1 or 2 words at a time, preceded by pauses." (Id. at 262.)

Johnson's medical file also includes numerous records from his time at the Gilmer and Butner federal corrections institutions, which are summarized here because the medical experts refer to them and because they provide some indicia of his ability to communicate. Johnson appears to have written his own inmate request forms in January and April 2006, stating that "I've been having dizzy spells lately. (a [sic] lot.)" and "I've symptoms and need a refill on my Acyclovir medication for an infection." (Id. at 336, 342.) He also cogently communicated that he is a smoker "mainly when I have to use the washroom." (Id. at 405.) On another form, he appears to have written that he "was shot in [the] mouth and was suppose [sic] to have [the] [b]ullet removed . . . Dr. Mornof in Chicago, IL . . . was suppose [sic] to remove [the] bullet." (Id. at 417.) At various intake screenings, the medical staff evaluated Johnson as presenting without disabilities (id. at 419, 420, 421), and a registered nurse also indicated that he was without any "barriers to education" (id. at 345). He appears to have also signed his name on various forms. (Id. at 342, 413, 415, 417, 428.) He was approved for work duty by two examiners. (Id. at 403, 421.) And, he requested a referral to the optometrist because he claimed to have experienced headaches while reading. (Id. at 422.) Though Johnson repeatedly denied mental health problems in his intake forms (id. at 409, 412), his medical records from prison also indicate that he was on a suicide watch because of suicidal ideations in September 2005. (Id. at 355.)

In October 2006, after Johnson was released from prison, he was evaluated by Alan Long, Ph.D., at the request of the state disability agency. (Id. at 265-68.) Dr. Long noted that Johnson refused to perform the examination tasks, was actively hallucinating during the examination, and was visually scanning his environment. (Id. at 266.) Dr. Long opined that Johnson's full scale I.Q. was 45 and that Johnson suffers from mental retardation, though the severity was unspecified due to Johnson's lack of cooperation during testing. (Id. at 266-67.) The following month the state agency reviewing psychologist, Kirk Boyenga, Ph.D., reviewed Dr. Long's assessment and determined that the test results were invalid because of Johnson's lack of effort. (Id. at 268-80.) Dr. Boyenga noted that the low I.Q. score conflicted with Johnson's reports of his activities of daily living, his criminal conviction on gun charges, and his time served in prison. (Id. at 280).

The following year, in April 2007, Johnson was admitted through the emergency room at St. Bernard Health Center because he was pacing at home, "easily agitated, hallucinating, isolative and withdrawn, fearful" and non-compliant with his medication. (Id. at 282.) Johnson's condition improved with medication and therapy and he was discharged after four days in the hospital. (Id.) His GAF score was noted as 28.*fn1 (Id.) The hospital's discharge summary report and psychiatric assessment reports noted that Johnson exhibited impaired judgment and demonstrated average I.Q., but was suffering from suicidal and homicidal ideations. (Id. at 282-83.) Following this inpatient stay, the state disability agency requested that Russell Taylor, Ph.D., conduct a mental residual functional capacity ("RFC") assessment of Johnson. (Id. at 290-92.) Dr. Taylor opined that "[m]ental status data indicates he is not mentally retarded as alleged but is oriented with intact memory and thought processes. . . . [Claimant] is capable of understanding, remembering and carrying out simple tasks. He is able to interact with others and could adjust to routine changes in the work setting." (Id. at 292.) Dr. Taylor based his evaluation on Johnson's prison records, which he opined "do not establish mental retardation or mental problems," the I.Q. tests, whose validity he questioned because of Johnson's lack of efforts, the hospital's psychiatric assessment, which characterized Johnson's I.Q. as average, and Johnson's activities of daily living, which included driving, leaving home alone, cooking, cleaning, shopping, and some socializing. (Id. at 306.)

The record shows that Johnson sought mental health treatment at Roseland Health Center starting in August 2007. (Id. at 315.) Dr. John Jones, a psychiatrist, prescribed Zoloft and Seroquel and provided samples to him about every eight weeks from August 2007 until December 2007 and every four weeks thereafter through July 2008. (Id. at 316-17.) Dr. Jones's treatment notes from February 2008 through June 2008 indicate that Johnson believed that he was being watched and was hearing voices, but that he was compliant with his medications and that his overall status was stable. (Id. at 318-21.) Dr. Jones noted that Johnson's speech, affect, behavior, and memory were within normal limits. (Id. at 318-19.)

In April 2008, about eight months after Dr. Jones started treating Johnson, he completed a formal medical evaluation of Johnson. (Id. at 308-12.) He indicated that Johnson's chief complaints were auditory hallucinations, paranoia, and depression. (Id. at 309.) He summarized Johnson's mental status as "alert, disoriented to time, auditory hallucinations, paranoia," with poor response to medication and therapy. (Id. at 312.) He opined that Johnson exhibited extreme limitations in his ability to perform activities of daily living and in his social functioning and a marked limitation in concentration, persistence, and pace. (Id.)

In conjunction with Dr. Jones's care, Johnson received therapy from Valerie Beavers. Her treatment notes from July 2008 state that Johnson's GAF score was 57,*fn2 that he was oriented and denied having problems, but complained of having bad days, meaning "I don't have money to buy things." (Id. at 441.) Two weeks later, Beavers noted that Johnson admitted to sporadic medication compliance because of his failure to remember to take the medication. (Id. at 448.) Johnson told Beavers that "I haven't been right since I got home. I use [sic] to enjoy being with friend [sic] and hanging out[.] [N]ow I just sit at home and watch TV." (Id.) He explained that he would not work because "I couldn't take nobody telling me when to come and go." (Id.) In September 2008, Johnson missed an appointment with Beavers. (Id. at 454.) When Johnson appeared for another appointment later that month, he admitted to inconsistent medication compliance and asked his therapist about "getting my own place." (Id. at 437.) Beavers's notes indicate that Johnson's compliance with scheduled appointments and with his treatment plan was partial. (Id.) Dr. Jones's treatment notes from around the same time however indicate that Johnson was compliant with medication, but that his auditory hallucinations and paranoia persisted. (Id. at 450.)

A few months later, in November 2008, Johnson met with Dr. Jones and Beavers again. Dr. Jones described Johnson as having a cooperative attitude with normal speech and volume. (Id. at 435.) He noted that Johnson complained of being fearful to leave home because he believed that people were after him. (Id.) He was depressed but stable and denied adverse effects of medications. (Id.) In Beavers's summary of her appointment with Johnson, she wrote that Johnson reported that since he had returned from prison, he had been experiencing increased anxiety when exposed to "tall buildings, elevators, crowds, and bridges." (Id. at 432.) The following month, another therapist, Vicki Todd, commented that Johnson complained of being afraid to attend his hearing before the ALJ because it would be in Chicago, and he feared terrorism in President Obama's hometown. (Id. at 518.) Beavers entered a treatment note that month indicating that Johnson's mother claimed to watch him take his medication, but that she believed that the medication was not working because he is easily agitated, isolated, and pacing in their home. (Id. at 516.)

Johnson returned to Beavers three times in January 2009. On January 20, 2009, Johnson admitted that he had been out of his medication for some time and complained of feeling anxious in crowds. (Id. at 512.) The next day, Johnson confirmed his sporadic compliance with medication and stated that his primary symptom was feeling anxious and fearful, especially in crowds. (Id. at 514.) He expressed concern about his ability to work. (Id.) Beavers summarized that "[t]here was no evidence of mood and / or thought disorder. Insight and judgment [sic] fair." (Id.) Johnson returned the following day, and again Beavers noted no evidence of mood or thought disorder, with fair insight and judgment. (Id. at 510.) She reported that Johnson had biked to his appointment. (Id.) He mentioned that he felt paranoid, "like somebody is going to do something to me," ...

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