Johnson v. Colvin

Filing 21

MEMORANDUM AND ORDER IT IS HEREBY ORDERED that the decision of the Commissioner is AFFIRMED. A separate Judgment will accompany this Memorandum and Order. Signed by District Judge Audrey G. Fleissig on 9/8/16. (KXS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
MARK JOHNSON,

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Plaintiff,
vs.
CAROLYN COLVIN,
Acting Commissioner of Social Security,
Defendant.

Case No. 4:15CV00882 AGF

MEMORANDUM AND ORDER
This action is before the Court for judicial review of the final decision of the
Commissioner of Social Security finding that Plaintiff Mark Johnson was not disabled as
of the last date of his insured status, and, thus, not entitled to disability insurance benefits
under Title II of the Social Security Act, 42 U.S.C. §§ 401-434. For the reasons set forth
below, the decision of the Commissioner will be affirmed.
BACKGROUND
Plaintiff, who was born on September 26, 1957, was deemed 30% disabled by the
Veterans’ Administration (“VA”) effective August 4, 1981, due to a service related
nervous condition (linked to the explosion on the deck of the USS Nimitz in May 1981 in
which Plaintiff was injured and witnessed the death and dismemberment of friends). (Tr.
153.) Effective November 1, 1991, the VA determined that Plaintiff was 100% disabled.
(Tr. 157.) Plaintiff filed his present application for Social Security disability benefits on
September 24, 2007, alleging a disability onset date of June 1, 1985, due to paranoia,

suicidal ideation, and anxiety attacks.1 Plaintiff last met the earnings requirement for
Social Security disability insurance purposes on December 31, 1987.
After Plaintiff’s application was denied at the initial administrative level, he
requested a hearing before an Administrative Law Judge (“ALJ”), and such a hearing was
held on September 2, 2009. By decision dated December 22, 2009, the ALJ found that
from Plaintiff’s alleged disability onset date through the date his insured status expired,2
Plaintiff had the residual functional capacity (“RFC”) to perform a full range of work at
all exertional levels, but was limited to simple work not requiring a lot of contact with
others. Based on this RFC, the ALJ found that Plaintiff could perform his past relevant
work as a post office worker. In the alternative, the ALJ found that Plaintiff was not
disabled based on the Commissioner’s Medical-Vocational Guidelines found at 20 C.F.R.
Pt. 404, Subpart P, Appendix 2.
The Appeals Council of the Social Security Administration denied Plaintiff’s
request for review, whereupon Plaintiff sought judicial review of the ALJ’s decision. By
Memorandum and Order dated March 1, 2013, this Court reversed and remanded the case

1

     Plaintiff also listed a hearing loss in both ears, but this impairment is not relevant to
the present action.

       The record indicates that Plaintiff had filed a previous application for disability
insurance benefits that was denied at the initial administrative level on May 20, 1991.
(Tr. 116.) It is not clear from the record whether this decision was administratively
appealed.

2

     To obtain disability insurance benefits, a claimant must establish that he was disabled
within the meaning of the Social Security Act not later than the date his insured status
expired, in this case December 31, 1987. See Price v. Colvin, No. 4:14 CV 1843 JMB,
2015 WL 9258483, at *3 (E.D. Mo. Dec. 18, 2015).
2 

to the Commissioner, on the grounds that the ALJ failed to make specific findings
regarding the demands of Plaintiff’s past work; and improperly relied on the Guidelines,
without the testimony of a vocational expert (“VE”), to support the alternate finding. The
Court also found that it was unclear whether the ALJ had considered the medical records
from the three years immediately preceding Plaintiff’s alleged disability onset date, and
directed the ALJ, on remand, to do so and to make that consideration clear in the new
decision. Johnson v. Astrue, 2013 WL 791856 (E.D. Mo. Feb. 13, 2013) (Magistrate
Judge’s Report and Recommendation, adopted by Order dated March 1, 2013).
A second hearing was held before a different ALJ on August 2, 2013, at which
Plaintiff and a VE testified. By decision dated November 26, 2013, the second ALJ
found that during the relevant time period (June 1985 through December 1987), Plaintiff
had the RFC to perform the full range of exertional work, with certain nonexertional
limitations. Based on the testimony of the VE, the ALJ found that during this time
period, Plaintiff could perform certain jobs that were available in the national economy,
and that Plaintiff was, thus, not disabled under the Social Security Act. Plaintiff’s request
for review by the Appeals Council was denied on March 30, 2015. Plaintiff has thus
exhausted all administrative remedies and the ALJ’s November 26, 2013 decision stands
as the final agency action now under review.
Plaintiff argues that while the new ALJ described some of the pre-June 1985
medical records, the ALJ did not give this evidence the analysis it required, and did not
even mention certain medical records from this period. Plaintiff also faults the ALJ for
not mentioning the Third Party Report completed on October 18, 2007, by Plaintiff’s
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wife who, at that point, had known Plaintiff for 23 years. Plaintiff argues that due to
these errors, the ALJ’s decision is not supported by substantial evidence in the record.
Plaintiff asks that Court the direct the Commissioner to grant benefits for the relevant
period, or alternatively, remand the case again.
Medical Evidence and First Evidentiary Hearing
The Court adopts Plaintiff’s unopposed Statement of Uncontroverted Material
Facts (Doc. No. 17-1) along with Defendant’s unopposed Statement of Additional
Material Facts (Doc. No. 20-2). Together, these facts present a fair and accurate
summary of the medical record, with the following addition: At discharge from his
psychiatric hospitalization from June 21 to June 28, 1982, Plaintiff was “considered
competent in VA terms,” was “not suicidal,” had “no signs of any apparent thought
disorder,” had “no hallucinations,” had “no delusions,” and “could resume normal
activities.” (Tr. 345).
The Court also adopts the summary of the first evidentiary hearing as it appears in
the Court’s March 1, 2013 Memorandum and Order. The Court will discuss specific
facts as they are relevant to the parties’ arguments.
Evidentiary Hearing of August 2, 2013 (Tr. 520-36)
Upon questioning by the ALJ, Plaintiff testified that he could not remember his
exact date of birth, but that the ALJ’s suggestion of September 26, 1957, sounded correct.
Plaintiff testified that he graduated from high school and started college, but did not
complete his first year because he became upset when told that he could not learn to build
bombs because he was black, and bomb-building was only for the “white techs.”
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Plaintiff testified that had not worked anywhere since 1998, and when asked what he was
doing with his time, replied that he had been “staying drugged up by the Veterans
Administration.” He denied telling the previous ALJ or anyone else that he was selfemployed as a draftsman and was doing odd jobs,3 and denied having had a problem with
alcohol or street drugs, except in 1985 after someone shot him and hijacked his car.
Since no one wanted to do anything about it, he took drugs “to numb [himself] up to kill
[the hijacker].” When the ALJ asked about the minimal treatment he had received from
the VA during the relevant period of June 1985 through December 1987, Plaintiff said
that the VA had given him a medication that had almost killed him, and that his wife and
orderlies had to subdue him; he stated that he was given a shot of Thorazine, and put into
the psychiatric ward until he calmed down. But Plaintiff was not sure when this episode
had happened.
Upon questioning by his counsel, Plaintiff testified that he did not think he could
work currently, or from 1985 to 1987, because he would “get upset and frustrated with
people,” would forget things, and would fall asleep several times a day. He rambled
about injustices he had experienced and said he was angry about a lot of things he saw
people doing that he felt showed disrespect for the law. He testified that he was getting
approximately $2,000 a month from the VA due to his being deemed 100% disabled.
The ALJ asked the VE whether there were jobs that could be performed by an
individual of Plaintiff’s age (27 years old as of the alleged onset date) and education, with

3

The transcript of the first evidentiary hearing reflects that, indeed, Plaintiff never told
this to the first ALJ.
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no past relevant work, who could understand, remember, and carry out at least simple
instructions and non-detailed tasks; could respond appropriately to supervisors and coworkers in a task-oriented setting where contact with others was casual and infrequent;
and could not perform work that included constant or regular contact with the general
public or more than infrequent handling of customer complaints. The VE testified that
such an individual could perform the jobs of cleaner and mail sorter.
Plaintiff’s counsel asked the VE whether the hypothetical individual could
perform those jobs, or any other jobs, if he were “off-task 10% of the time,” and the VE
responded in the negative. The VE further testified that the individual would not be able
to sustain employment if he had disruptive outbursts of anger directed at supervisors or
coworkers. Plaintiff’s counsel then observed that all through the hearing Plaintiff had
been “kind of shaking” and asked Plaintiff about this. Plaintiff answered, “I shake like
that because I had been thrown in an explosion.”
ALJ’s Decision of November 26, 2013 (Tr. 491-503)
The ALJ first assumed that Plaintiff performed no substantial gainful activity since
his alleged disability onset date of June 1, 1985, through his last insured date of
December 31, 1987. The ALJ next found that through the date last insured, Plaintiff had
the severe impairments of Post Traumatic Stress Disorder (“PTSD”) and a personality
disorder, but that these impairments, individually or in combination, did not meet the
severity of a deemed-disabling impairment listed in the Commissioner’s regulations (20
C.F.R. Part 404, Subpart P, Appendix 1). Specifically, the ALJ found that the “Paragraph
B criteria” for Listing 12.04 (affective disorders) or Listing 12.08 (personality disorders)
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were not met4 because Plaintiff had only mild restrictions in activities of daily living;
moderate difficulties in social functioning, and in concentration, persistence, and pace;
and no episodes of decompensation that lasted for an extended duration (two weeks or
more). The ALJ noted that Plaintiff’s hospitalization from June 21 to June 28, 1982, did
not constitute a period of decompensation for an extended duration because it was for less
than two weeks. The ALJ also found that the “Paragraph C criteria” for Listing 12.04
were not met. In making these findings, the ALJ referred generally to “[t]he records
preceding the claimant’s alleged onset date as well as subsequent . . . VA [records].”
(Tr. 495.)
The ALJ then proceeded to assess Plaintiff’s RFC through the date last insured,
and found that Plaintiff had the RFC to perform a full range of work at all exertional
levels, with the following non-exertional limitations: Plaintiff (1) retained the capacity to

4

As relevant here, these conditions are not deemed disabling unless functional
limitations known as “Paragraph B criteria” are met. Paragraph B criteria are met if there
is a marked functional limitation in at least two of the following categories: (1) daily
living; (2) social functioning; (3) concentration, persistence, or pace; and repeated
episodes of decompensation (three episode within one year), each of an extended
duration (at least two weeks).
Listing 12.04 also has additional functional criteria known as “Paragraph C criteria”
that are assessed if Paragraph B criteria are not satisfied. Paragraph C criteria for a
deemed-disabling affective disorder are (1) repeated episodes of decompensation, each of
extended duration; or (2) a residual disease process that has resulted in such marginal
adjustment that even a minimal increase in mental demands or change in the environment
would be predicted to cause the individual to decompensate; or (3) a current history of
one or more years’ inability to function outside a highly supportive living arrangement,
with an indication of continued need for such an arrangement.
“An impairment that manifests only some of [the required criteria], no matter how
severely, does not qualify.” Blackburn v. Colvin, 761 F.3d 853, 858 (8th Cir. 2014)
(citation omitted).
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understand, remember, and carry out at least simple instructions and non-detailed tasks;
(2) could respond appropriately to supervisors and co-workers in a task-oriented setting
where contact with others was casual and infrequent; and (3) should not perform work
that included constant or regular contact with the general public or more than infrequent
handling of customer complaints.
The ALJ found that Plaintiff’s hearing testimony was not credible to the extent it
was inconsistent with the RFC assessment. The ALJ noted a “myriad of inconsistencies”
in the testimony, including Plaintiff not being able to remember his birthday yet
remembering specifics of past incidents; Plaintiff testifying that he did not take drugs
other than at the time of the car hijacking, while the record includes a diagnosis of drug
psychosis; and Plaintiff testifying that he took drugs to be able to kill the car hijacker,
while he made statements reported in the record that he was trained to kill by the Navy.
In addition, the ALJ pointed to Plaintiff’s testimony at the first hearing that was
“considerably different in its content and factual recitation.” The ALJ stated that
Plaintiff’s poor work history did not bolster his credibility.
The ALJ commented that the evidence the Court wanted more thoroughly
summarized and evaluated was consistent with the above RFC. The ALJ noted a
February 18, 1985 psychiatric consultative report (Tr. 306-07) that stated that Plaintiff
was in a cooperative mood with a normal affect, had no delusions or hallucinations, was
alert and oriented, had a normal memory, and could return to work (at the post office).
The ALJ also summarized a mental status examination and treatment note dated May 31,
1985, one day before Plaintiff’s alleged onset date, and stated that it was not supportive
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of Plaintiff’s allegations that mental impairments prevented him from performing any
work at that time. The note stated that Plaintiff was referred by the post office due to
“flashback syndrome.” Plaintiff reported to the examining health provider that he did not
want to miss work or be hospitalized. (Tr. 336.) The second page of this note is largely
illegible but does legibly state that Plaintiff was alert, oriented, very articulate, and
cooperative. (Tr. 337.)
The ALJ then summarized the evidence after June 1, 1985, the alleged onset date,
and concluded as follows:
Even considering the records starting with the first psychiatric admission in
June 1982, and the only other two psychiatric evaluations prior to the
claimant’s alleged onset date as required by the United States District
Court, these few records of mental health treatment from the first report of
any problems through his date last insured fail to reveal abnormal medical
signs, laboratory findings, observations or even complaints supporting the
allegations that he was mentally unable to work at that time. The claimant
was never advised not to work. In fact, . . . he was told he could return to
work . . . and even evaluated for VA benefits to receive benefits for
vocational rehabilitation purposes which are available to all veterans with a
30 percent or more service-connected condition.
(Tr. 500.)
The ALJ looked to a consultation report dated February 5, 1988 (Tr. 359-60),
noting that this was shortly after Plaintiff’s date last insured. The report states that
Plaintiff came without a referral because he was out of medication (Elavil). Plaintiff
reported being under stress and feeling “somewhat depressed.” He stated that he was
self-employed doing freelance drafting and was supposed to start a tech school in three
weeks for a one-year course. The diagnosis was major depression, recurrent, provisional.
(Tr. 359-60.) The ALJ believed that these findings “were not particularly severe” and did
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not persuade the ALJ that Plaintiff had limitations greater than accounted for in the ALJ’s
RFC assessment.
The ALJ noted that Plaintiff was not given 100% disability by the VA until long
after his Social Security insured status ended. Thus, to the extent the VA’s disability
determination was relevant, it dictated against finding Plaintiff disabled under the Social
Security Act during the relevant time period.
The ALJ relied on the testimony of the VE that an individual with Plaintiff’s RFC
and vocational factors could perform certain jobs that existed in substantial numbers in
the national economy, such as cleaner and mail handler. Thus, the ALJ found that
Plaintiff was not disabled as defined by the Act.
Arguments of the Parties
Plaintiff argues that the ALJ failed to fully analyze evidence from the three-year
period (June 1982 through June 1985) before the alleged onset date, as directed by the
Court in remanding the case. Plaintiff faults the ALJ for not acknowledging the
implications of Plaintiff’s psychiatric hospitalization in June 1982. Although the ALJ
discussed why the incident did not meet the two-week duration requirement for periods
of decompensation, Plaintiff argues this episode should have been further analyzed for
insight into Plaintiff’s alleged disabling condition as of the alleged onset date.
Similarly, Plaintiff points to observations and assessments surrounding the June
1982 hospitalization regarding Plaintiff’s shaky voice, trembling hands, and troubled
affect (Tr. 271-89); August 1983 medical notes stating that Plaintiff had PTSD, a severe
stutter, tremors in upper and lower extremities, major depression, and paranoid ideas (Tr.
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301-09); medical notes form November 1984 after Plaintiff “inadvertently” smoked a
PCP-laced cigarette, stating that Plaintiff had suicidal thoughts and possible
schizophrenia associated with depression (Tr. 312-13); and the February 1985 overnight
hospitalization during which Plaintiff’s then mother-in-law reported three months of
bizarre behavior and Plaintiff’s diagnosis on discharge against medical advice of drug
psychosis (provisional) and adjustment disorder (provisional) (Tr. 315-34). Plaintiff
argues that because the ALJ failed to fully consider this evidence, the new decision is not
supported by substantial evidence, just as the prior decision was not.
Defendant argues that the ALJ complied with this Court’s remand order and
properly considered the evidence from before, during, and immediately after the relevant
coverage period, as demonstrated by the ALJ’s “lengthy discussion” of the evidence as
well as a discussion of how the evidence in the record supported his RFC finding.
Additionally, Defendant points to portions of the ALJ’s opinion that reference pre-onset
incidents as further evidence of his compliance with the remand order.
In addition, Defendant argues that the Court should affirm the ALJ because he
articulated the inconsistencies upon which he relied to discredit Plaintiff’s subjective
complaints, such as inconsistencies between Plaintiff’s claims and objective clinical
observations from both medical visits and psychiatric appointments; Plaintiff’s “minimal
pursuit” of treatment as being inconsistent with his disability claim; and the fact that no
physician who examined Plaintiff during the relevant period ever found limitations
consistent with Plaintiff’s alleged limitations. Defendant further argues that although the
ALJ did not discuss the third-party statement from Plaintiff’s second wife, this omission
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does not warrant reversal because the same evidence used to discredit the claimant’s
assertions also discredits the third-party’s assertions.
DISCUSSION
Standard of Review and Statutory Framework
In reviewing the denial of Social Security disability benefits, a court must review
the entire administrative record to determine whether the ALJ’s findings are supported by
substantial evidence on the record as a whole. Johnson v. Astrue, 628 F.3d 991, 992 (8th
Cir. 2011) (citation omitted). The court “may not reverse . . . merely because substantial
evidence would support a contrary outcome. Substantial evidence is that which a
reasonable mind might accept as adequate to support a conclusion.” Id. (citations
omitted). A reviewing court “must consider evidence that both supports and detracts
from the ALJ’s decision. If, after review, [the court finds] it possible to draw two
inconsistent positions from the evidence and one of those positions represents the
Commissioner’s findings, [the court] must affirm the decision of the Commissioner.”
Chaney v. Colvin, 812 F.3d 672, 676 (8th Cir. 2016). Put another way, a court should
“disturb the ALJ’s decision only if it falls outside the available zone of choice.” Papesh
v. Colvin, 786 F.3d 1126, 1131 (8th Cir. 2015) (citation omitted).
To be entitled to benefits, a claimant must demonstrate an inability to engage in
substantial gainful activity which exists in the national economy, by reason of a
medically determinable impairment which has lasted or can be expected to last for not
less than 12 months. 42 U.S.C. § 423(d)(1)(A). The Commissioner has promulgated
regulations, found at 20 C.F.R. § 404.1520, establishing a five-step sequential evaluation
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process to determine disability. The Commissioner begins by deciding whether the
claimant is engaged in substantial gainful activity. If not, the Commissioner decides
whether the claimant has a severe impairment or combination of impairments. If the
impairment or combination of impairments is severe and meets the duration requirement,
the Commissioner determines at step three whether the claimant’s impairment meets or is
equal to one of the deemed-disabling impairments listed in the Commissioner’s
regulations. If not, the Commissioner asks at step four whether the claimant has the RFC
to perform his past relevant work. “Because a claimant’s RFC is a medical question, an
ALJ’s assessment of it must be supported by some medical evidence of the claimant’s
ability to function in the workplace. However, there is no requirement that an RFC
finding be supported by a specific medical opinion.” Hensley v. Colvin, ___ F.2d ___,
No. 15-2829, 2016 WL 3878219, at *3 (8th Cir. July 18, 2016).
If he cannot perform his past relevant work, the burden of proof shifts at step five
to the Commissioner to demonstrate that the claimant retains the RFC to perform work
that is available in the national economy and that is consistent with the claimant’s
vocational factors – age, education, and work experience. Halverson v. Astrue, 600 F.3d
922, 929 (8th Cir. 2010). Generally, where the claimant suffers from a severe
nonexertional impairment, the ALJ must obtain the opinion of a vocational expert instead
of relying on the Medical-Vocational Guidelines. Baker v. Barnhart, 457 F.3d 882, 894
(8th Cir. 2006).

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ALJ’s Evaluation of Evidence Preceding Plaintiff’s Alleged Onset Date
The Court believes that a close question is presented with respect to whether the
ALJ adequately considered the medical records from the three years prior to Plaintiff’s
alleged disability onset date, and in turn, whether the decision that Plaintiff was not
disabled under the Social Security Act from June 1, 1985, through December 31, 1987, is
supported by substantial evidence in the record as a whole. However, in the final
analysis, the Court concludes that the ALJ’s decision demonstrates that he did not just
summarize the records at issue, but considered their relevance. The Court concludes that
the ALJ’s decision is not outside the “zone of choice.” As the ALJ noted, Plaintiff was
not hospitalized from June 1985 through December 1987, and received relatively little
psychiatric care during this time.
The February 18, 1985 medical note that Plaintiff could return to work, as well as
the VA’s rating of Plaintiff as just 30% disabled until well beyond December 1985 also
support the ALJ’s ultimate conclusion. Cf. Fisher v. Shalala, 41 F.3d 1261, 1262 (8th
Cir.1994) (“There is no support for [the claimant]’s contention that his sixty-percent
service-connected disability rating equates with an inability to engage in any substantial
gainful activity under social security standards.”).
ALJ’s Failure to Consider Third-Party Information
Plaintiff’s wife completed a Third Party Function Report on October 23, 2007,
stating that she had known Plaintiff for 23 years, which would mean that she first knew
Plaintiff in 1984, before his alleged onset date in 1985 and his date last insured in 1987.
She reported that Plaintiff was always medicated; slept most of the day; had bad
14 

nightmares; did not care how he dressed and had to be reminded to bathe; never prepared
food or did household chores; and only went out to go to doctors’ appointments. She
further stated that Plaintiff’s medication made him sleepy and sluggish; he did not trust
people and thought they were out to get him; he could only maintain attention for five
minutes; his service injuries caused his problems; his medication caused him not to
function mentally; he was paranoid and had dreams about the war; and they slept in
separate rooms because he had hit her several times in his sleep. Plaintiff’s wife stated
that she did not know Plaintiff “before he became disabled.” (Tr. 126-36).
The ALJ did not mention this report, and Plaintiff argues that due to this error the
ALJ’s decision is not supported by the record, because the report would have detracted
from the ALJ’s conclusions that Plaintiff had only mild restriction in his activities of
daily living, moderate difficulties with social functioning, and moderate difficulties with
maintaining concentration.
Plaintiff is correct that an ALJ is obligated to consider observations of third
parties, 20 CFR § 404.1513(d)(4), and, as noted above, the Court must take into account
any evidence that fairly detracts from the ALJ’s decision. But the ALJ’s failure to
explicitly address observations of a third party does not require remand where the same
evidence that supports discrediting the claimant’s testimony also supports discrediting the
third party’s observations. Young v. Apfel, 221 F.3d 1065, 1068 (8th Cir. 2000).
The Court believes a situation of nonreversible error is presented here. Although
Plaintiff’s wife knew Plaintiff at the time of his alleged disability onset date, and stated
that she did not know him before he became disabled, it seems clear that her October 18,
15 

2007 report describes Plaintiff’s then-current condition, rather than his condition during
the relevant time period. Thus the ALJ’s failure to mention and consider the report is
inconsequential.
CONCLUSION
Accordingly,
IT IS HEREBY ORDERED that the decision of the Commissioner is
AFFIRMED.
A separate Judgment will accompany this Memorandum and Order.

_______________________________
AUDREY G. FLEISSIG
UNITED STATES DISTRICT JUDGE
Dated this 8th day of September, 2016

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