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Johnson v. Colvin

United States District Court, N.D. Illinois, Eastern Division

September 12, 2016

CAROLYN W. COLVIN, Acting Commissioner of the U.S. Social Security Administration, Defendant.


          SIDNEY I. SCHEMKIER United States Magistrate Judge.

         Plaintiff Shedward Johnson ("plaintiff or "Mr. Johnson") has filed a motion for summary judgment seeking reversal or remand of the final decision of the Commissioner of Social Security ("Commissioner") denying his claim for Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI") (doc. # 9: Pl.'s Mot. for Sum. J.). The Commissioner has filed her own motion seeking affirmance of the decision denying benefits (doc. # 22: Def.'s Mot. for Sum. J.). For the following reasons, Mr. Johnson's motion is denied and the Commissioner's motion is granted.


         Mr. Johnson applied for benefits on June 28, 2011, alleging he became disabled on November 30, 2010 due to asthma, arthritis, depression and alcohol abuse (R. 107, 189). His date last insured ("DLI") was March 31, 2011 (R. 95). Mr. Johnson's application was denied initially on September 13, 2011 (R. 98, 103), and upon reconsideration on December 23, 2011 (R. 108. 112). Mr. Johnson, represented by counsel, appeared and testified before Administrative Law Judge C'ALJ") Daniel Dadabo on December 6, 2012 (R. 48). A vocational expert ("VE") also testified. The ALJ issued a written decision on March 15, 2013, finding that Mr. Johnson was not disabled from his onset date through the date of the decision (R. 28-43). The Appeals Council then denied Mr. Johnson's request for review, making the ALJ's ruling the final decision of the Commissioner (R. 11-13). Varga v. Colvin, 794 F.3d 809, 813 (7th Cir. 2015).


         We begin with a summary of the administrative record. Part A sets forth Mr, Johnson's medical history, Part B discusses the testimony provided at the hearing before the ALJ, and Part C sets forth the ALJ's written opinion.


         Shedward Johnson was born on October 9, 1955. His medical record begins in January 2010 with two visits to Weiss Memorial Hospital because of intoxication (R. 247-49).[2] Mr. Johnson also spent nearly two weeks inpatient at the hospital between July 22 and August 4, 2010 because of atypical chest pain; he additionally complained of abdominal pain during his hospital stay (R. 255-64). During this admission, a doctor wrote in Mr. Johnson's progress notes that he exhibited signs of "questionable depression" and suggested Mr. Johnson undergo a psychiatric evaluation (R. 266-67, 273, 276). There is no evidence in the record that Mr. Johnson ever underwent psychiatric testing pursuant to the recommendation. Mr. Johnson was discharged with no prescription ongoing treatment needs regarding his chest or abdominal pain.

         Beginning in September 2009, Mr. Johnson also began attending appointments with his primary care doctor, Madhuri Thota, M.D., at the Heartland Health Center (R. 550). Between September 21, 2009 and October 23, 2012, Mr, Johnson visited Heartland Health Center a total of seventeen times.[3] Initially, Mr. Johnson visited Heartland primarily for asthma medication refills and various complaints of joint and abdominal pain.[4] Dr. Thota prescribed Singulair and Abuterol for Mr. Johnson's asthma; she prescribed Ibuprofen, and later Flexeril, for the pain (R. 558, 587). On March 1, 2011, during an appointment regarding treatment for a rash, Dr. Thota noted that Mr. Johnson was experiencing finger clubbing and tremors (R. 590).[5]

         Mr. Johnson first complained to Dr, Thota about feeling depressed at a follow up appointment for his asthma treatment on July 5, 2011(R. 598) - three months after his DLI, and one week after his application for benefits, in which he listed depression as one of the bases for his claim.[6] Specifically, Mr. Johnson stated he felt hopeless, with little interest or pleasure in doing things on "[m]ore than half the clays, " because of the deaths of his two siblings over the previous two years; he also reported he was socially isolating himself and had little appetite and poor sleep (R. 445). Dr. Thota consequently diagnosed Mr. Johnson with Major Depressive Disorder and prescribed Remeron and Zoloft (R. 447).

         Soon thereafter, Mr. Johnson was the subject of a number of consultative examinations and other written evaluations. Mr. Johnson's physical impairments were the subject of two non-examining evaluations by DDS physicians.

         On August 30, 2011, after reviewing the four records from Heartland dated between Mr. Johnson's alleged onset date ("AOD") and DLI, DDS physician Bharati Jhaveri, M.D., determined that Mr. Johnson's application for benefits would be denied for insufficient evidence prior to the DLI (R. 502). Dr. Jhaveri noted that the medical record revealed no respiratory problems, that at one appointment, Mr. Johnson had clubbing and slight tremors of his fingers, and at another appointment, complained of pain in his right shoulder (Id.).

         On September 8, 2011, after reviewing Mr. Johnson's records from Heartland, Vidia Madala, M.D. also denied Mr. Johnson's claim for benefits (R. 508). With respect to Mr. Johnson's asthma, Dr. Madala found it was not severe because the medical records showed that Mr. Johnson did not have current severe respiratory problems and that inhalers helped his asthma. (Id.). With respect to Mr. Johnson's other physical impairments, Dr. Madala found that his gait and neurological exams were normal, and that he had full range of motion and strength in his extremities and no joint enlargement or tenderness, all of which demonstrated an essentially normal physical exam (Id.). Together, the two consultative opinions accounted for Mr. Johnson's complaints of difficulty lifting, bending and stair climbing, and noted that he continued to smoke and abuse alcohol, both of which could affect his impairments and which made Mr. Johnson's statements about his abilities only partially credible (Id.).

         With respect to his mental health impairments, on August 10, 2011, Mr. Johnson underwent a mental status examination with Norton Knopf, Ph.D, a Commission-hired psychologist (R. 475-79). During the examination, Mr. Johnson complained his depression was "controlling [his] life, " and he reported poor appetite, difficulty sleeping, fatigue, loss of interest, and weight loss, along with arthritis in his hands, muscle aches and twitching (R. 475-76). Dr. Knopf opined that Mr. Johnson's thought processes were logical and coherent, and estimated his intellectual ability to be in the borderline range (R. 476). He also noted that Mr. Johnson reported being able to bathe and dress himself, cook, do laundry, shop and take public transportation, but that he spent the majority of his days doing nothing except sitting in his room (R. 477-78). Dr. Knopf diagnosed Mr. Johnson with severe major depressive disorder, anxiety disorder, and alcohol abuse (R. 479). Dr. Knopf did not express any conclusions regarding Mr. Johnson's ability to work.

         On September 2, 2011, DDS psychologist David Gilliland, Psy.D, completed two psychiatric review forms for Mr, Johnson (R. 488-500, 510-527). The first document states that it covers the period from November 30, 2010 to March 31, 2011, i.e., the AOD to the DLI (R. 510). In it, Dr. Gilliland checked the box saying that there was insufficient evidence to make a determination about whether Mr. Johnson was disabled prior to his DLI; he did not indicate that an RFC evaluation was needed for this time period (Id.). At the end of the document, Dr. Gilliland wrote a short note repeating his assessment that there was insufficient evidence to make a determination and cited his review of records of Mr. Johnson's treatment at Weiss Memorial Hospital for intoxication (R. 510, 522); there is no other information in this document.

         The second form completed by Dr. Gilliland states that it is an assessment as of September 2, 2011; on the form, Dr. Gilliland checked the box indicating a full assessment required the completion of both a separate RFC determination as well as referral to another medical specialty to assess coexisting non-mental impairments (R. 488). In the "notes" section of the document, Dr. Gilliland indicates that he had reviewed treatment notes from Heartland Health and Weiss Memorial Hospital, in addition to Dr. Knopfs report (R. 500). Dr. Gilliland diagnosed Mr. Johnson with an affective disorder (depression), an anxiety-related disorder, and a substance-abuse disorder (R. 488, 491, 493. 496). Next, Dr. Gilliland assessed Mr. Johnson's "Paragraph B" functional limitations as resulting in mild limitations in daily living, and moderate limitations in both social functioning and maintaining concentration, persistence, or pace, with no episodes of decompensation, and no evidence establishing the presence of "Paragraph C" criteria (R. 498-99).

         Dr. Gilliland also completed an RFC form, also dated September 2, 2011, which assessed Mr. Johnson as being "not significantly limited" in his ability to perform various functions in the categories of "understanding and memory, " "sustained concentration and persistence, "[7] "social interaction;' and "adaptation." Dr. Gilliland opined that Mr. Johnson had a mental RFC that left him "mentally capable of performing simple tasks in a rouitine [sic] work schedule with reasonable rest periods and limited interaction with the general public" (R. 524-526).

         Beginning on October 5, 2011, approximately six months after his DLI, Mr. Johnson began receiving mental health services from The Carl Rogers Institute of Client-Centered Therapy (R. 9-10, 544). The medical record contains no treatment notes, but a letter from psychology extern Katie Poole indicates that Mr. Johnson met with her for 25 sessions between October 2011 and May 2012 (R. 544). Ms. Poole was overseen by Kevin Kukoleck, Psy.D, who co-signed a May 1, 2012 letter Ms. Poole wrote in support of Mr. Johnson's claim for benefits; there is no evidence that Dr. Kukoleck ever saw Mr. Johnson himself (Id.). In the letter, Ms. Poole wrote that Mr. Johnson often "withdraws into his room for several days at a time and is unable to eat or sleep" and that Mr. Johnson suffers from leg pain, asthma, chronic dizziness, and hearing voices (Id.). She also opined that Mr. Johnson would not be able to find gainful employment because of his chronic mental and physical health issues. (Id.).

         Some of Dr. Thota's notes from appointments between September 2011 and April 2012 also document Mr. Johnson's depression. Specifically, on September 6, 2011, at a follow-up appointment for a medication refill, Mr. Johnson reported feeling depressed (R. 603-04). At a November 1, 2011 follow-up appointment related to Mr. Johnson's hepatitis C, Mr. Johnson complained of feeling depressed "[n]carly every day, " even while taking his medication, but felt like Zoloft was helping him; Dr. Thota responded by doubling Mr. Johnson's Zoloft dosage (R. 617). Notes from appointments for unrelated medical conditions on January 12, 2012, April 24, 2012, and June 4, 2012 relate that Mr. Johnson reported feeling depressed when asked about his mental state by staff at Heartland (R. 621, 628, 634).[8]

         On April 24, 2012, Dr. Thota provided the record's only evaluation of Mr. Johnson's physical impairments other than those provided by the agency consultants, a physician's report and RFC assessment diagnosing Mr. Johnson with major depression, persistent asthma, alcohol abuse, Hepatitis C, and hyperlipidemia (R. 545). Dr. Thota wrote that Mr. Johnson had a full ability to walk, bend, stand, sit, push, pull, and speak (R. 546). There was no joint pain, swelling, or tenderness, and no loss of joint motion (Id.). In her RFC assessment, Dr. Thota opined that Mr. Johnson had a 20 percent reduction in his ability to travel, perform activities of daily living, stoop, or turn, a 20-50 percent reduced capacity for finger dexterity and fine manipulation in both hands, and was able to lift no more than twenty pounds at a time, with frequent lifting up to ten pounds during an eight-hour workday (R. 548). Other than listing depression as one of Mr. Johnson's diagnoses, Dr. Thota's RFC did not contain an assessment of Mr. Johnson's mental health.

         On August 7, 2012, Dr. Thota wrote in a progress note that Mr. Johnson had not been taking anti-depressant medication for the previous seven months, as he had mistakenly believed Singulair was his anti-depressant medication instead of Zoloft (R. 639). Dr. Thota restarted Mr. Johnson's Zoloft prescription (Id.). On October 23, 2012, Dr. Thota noted that Mr. Johnson reported feeling depressed "[m]ore than half the days" (R. 654-56).

         Mr. Johnson began receiving mental health treatment from therapist Thomas Miller, M.A. in September 2012, eighteen months after his DLI; he saw Mr. Miller for a total of eleven sessions between September and December 2012 (R. 661-63). Mr. Johnson missed several additional appointments with Mr. Miller, claiming he was too depressed to leave his room; at other appointments, Mr. Johnson reported feeling less depressed and in a more positive mood (Id.). Mr. Miller wrote a December 1, 2012 letter in support of Mr. Johnson's application for benefits, stating that Mr. Johnson had "periodic episodes of severe depression which may last up to several days at a time, " during which Mr, Johnson "isolates himself in his room and cannot find the energy or motivation to get out of bed" (R. 641). Mr. Miller noted this could be symptomatic of Major Depressive Disorder, and wrote that Mr. Johnson "would benefit from a formal psychological evaluation in order to confirm these diagnoses" as well as a "referral to a physician" regarding Mr. Johnson's chronic asthma and arthritis (Id.).

         Mr. Johnson met with therapist Keven Sprenkle, M.A., between August 2013 and July 2014; Dr. Kukoleck oversaw this treatment (R. 9-10). On July 10, 2014, Mr. Sprenkle wrote a letter in support of Mr. Johnson's claim for benefits, reiterating that Mr. Johnson's depression left him too depressed to leave his apartment for days at a time. Mr. Sprenkle noted that Mr. Johnson had little sleep or appetite, which was indicative of Major Depressive Disorder (R. 9). Mr. Sprenkle also wrote that Mr. Johnson's asthma and arthritis limited his ability to sleep through the night, to function around his depression, and to find and maintain employment.


         At the hearing before the ALJ, Mr. Johnson testified that he did not graduate high school. From 2000-2004, Mr. Johnson worked at Milestone Mental Health Care as a cleaner, where he performed housekeeping duties for two years and then did maintenance and shampooed carpets for two years (R. 37, 195). From 2006 to 2011, Mr, Johnson worked sporadically as a security guard (Id). In 2010 and 2011, Mr. Johnson worked as a security guard for Armageddon Services, taking public transportation to work security at six or seven Chicago Bears games; during the games he stood at an entrance watching people enter and leave through the security gates (R. 36, 195). Mr. Johnson testified that he had a break to sit down every hour during the three-to-four hour long games (R. 37). In 2009, Mr. Johnson worked for four months at Cleanslate as a security guard (R. 195). Mr. Johnson also worked for Andy Frain as a temporary security guard in 2006 (R. 36).

         Mr. Johnson currently lives in a supportive public housing environment called Mercy Housing (R. 70-71). He testified that his arthritis causes pain in his ankles and that it radiates from his knees to his feet (R. 59). Mr. Johnson said he also sometimes has pain in his hands, and that he takes Ibuprofen for his various pains (R. 59-60). With respect to his asthma, plaintiff testified that he would be unable to shampoo carpets and could not lift ten-to-fifteen pounds (R. 66-67). He also testified that he gets winded walking up a flight of stairs (R. 67). Regarding his mental state, Mr. Johnson explained that he would not be able to work regularly because his depression caused him to not care about anything and made him unable to leave his room (R, 68-69).

         Mr. Johnson's case manager at Mercy Housing is Darcell Chapel, who testified that she had known Mr. Johnson for two years, i.e., since approximately March or April 2011 (R. 76). She also testified that she meets with Mr. Johnson once or twice per week at his apartment complex, helps make sure he sees his therapists regularly, and encourages him to leave his room to socialize with neighbors or visit his family (R. 76-78). She gave her personal opinion that Mr. Johnson was depressed because of the recent deaths of his brother and sister (R. 77).

         VE Jeffrey Lucas testified as well. He explained that Mr. Johnson's past work as a cleaner, as performed, was at the light and unskilled level (R. 83).[11] The ALJ then gave the VE a hypothetical that tracked Dr. Thota's RFC.[12] In giving the VE the hypothetical, the ALJ noted that Dr. Thota did not really explain his reasons for reducing Mr. Johnson's fine manipulation ability by 20 to 50 percent, but he would leave the limitation in the hypothetical anyway (R. 85). The ALJ noted that Dr. Thota's RFC did not contain any mental health or environmental limitations, but he added them based on the record (R. 85-86). Specifically, the ALJ's hypothetical to the VE added the limitation of avoiding exposure to dust, fumes, odor or temperature extremes, presumably due to Mr. Johnson's asthma (Id.). Based on Dr. Gilliland's RFC finding that Mr. Johnson had moderate restrictions due to depression, the ALJ also included in the hypothetical a need to avoid public contact and have no frequent communication, as well as a limitation to "unskilled work of a routine nature [that] stays the same day to day" (Id.). The ALJ also asked the VE to opine ...

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