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Johnston v. Berryhill

United States District Court, D. Connecticut

July 7, 2017

GEORGE E. JOHNSTON, [1] Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner, Social Security Administration, Defendant.[2]


          Janet C. Hall United States District Judge.


         Plaintiff George E. Johnston (“Johnston”) instituted this action pursuant to section 405(g) of title 42 of the United States Code to challenge various aspects of a decision of the Commissioner of the Social Security Administration (“Commissioner”). See Compl. (Doc. No. 1) ¶¶ 1, 16, 21-22. Johnston seeks reversal, in part, of a Decision rendered by Administrative Law Judge (“ALJ”) Ryan A. Alger, see generally Certified Tr. of Record (“Tr.”) (Doc. Nos. 11-1 - 11-26) at 883-909, and affirmed by the Appeals Council, see generally Tr. at 875-82. The ALJ granted Johnston's application for Supplemental Security Income (“SSI”) from April 1, 2014 forward; however, he denied Johnston's application for SSI prior to April 1, 2014 and denied his application for Social Security Disability benefits (“SSD”) in all respects. See id. at 903.

         Johnston filed a Motion for Judgment on the Pleadings, seeking partial reversal of the ALJ's Decision. See generally Mot. for J. on Pleadings (Doc. No. 13); Mem. of Law in Supp. of Pl.'s Mot. for J. on Pleadings (“Mot. to Rev.”) (Doc. No. 14). In response, the Commissioner filed a Motion responding to Johnston's arguments, and seeking affirmance of the Commissioner's Decision. See generally Def.'s Mem. in Supp. of her Mot. for an Order Affirming the Commissioner's Decision (“Mot. to Affirm”) (Doc. No. 16). The parties have also jointly filed a stipulation of agreed-upon facts. See generally Joint Stipulation of Facts (“Joint Stip.”) (Doc. No. 15).

         For the reasons set forth below, the Motion for Judgment on the Pleadings (Doc. No. 13) is GRANTED IN PART AND DENIED IN PART, and the Motion to Affirm (Doc. No. 16) is DENIED. The case is remanded to the Commissioner.


         A. Facts[3]

         Johnston was born on April 1, 1959. See Joint Stip. at 2. A high school graduate, he has worked as a glass installer, a welder, an auto body repairman, and an auto mechanic. See id.

         In late January 2007, Johnston underwent an MRI of his lumbar spine, which revealed: a “small L2-L3 midline disc herniation; progression of an L3-L4 disc bulge shown on an earlier imaging study; multilevel disc degeneration; and bilateral L4-L5 and L5-S1 foraminal narrowing caused by degenerative end-plate spurring.” Id.

         Almost two years later, on January 8, 2009, Dr. Alan L. Schwarz (“Dr. Schwarz”)-a board-certified family practitioner-evaluated Johnston for acute and chronic lower back pain and for hypertension. See id. Johnston also reported right foot pain and stated that he had run out of his medication. See id. at 2-3. A physical examination suggested mild pain upon palpation of the right foot and pain upon palpation and movement of Johnston's lower back. Id. at 3. Dr. Schwarz diagnosed Johnston with right foot pain and acute and chronic lower back pain, and he prescribed Oxycodone. Id.

         Johnston saw Dr. Schwarz again on January 28, 2009, and on February 23, 2009. See id. On these occasions, he reported “a lot” of low back and leg pain, as well as mobility issues. See id. His back and leg pains were “essentially unchanged” at later visits with Dr. Schwarz, through the end of 2009. See id.

         On May 31, 2009, July 4, 2009, November 29, 2009, and December 25, 2009, Johnston presented at the Windham Hospital emergency room with back pain and leg pain. See id. at 3-4. Physical examinations during these visits often revealed a limited range of motion. See id. at 3-4. At each of these ER visits, Johnston was prescribed Oxycodone or Percocet. See id. at 3-4.

         In January 2010, Johnston saw Dr. Schwarz again, complaining of ongoing chronic low back pain, hypertension, and knee pain. See id. at 4. At this appointment, Johnston was diagnosed with vocal cord polyps, hoarseness, chronic obstructive pulmonary disease (“COPD”), chronic low back pain, joint pain, fluid retention, and atrial fibrillation with fast ventricular response; he was also identified as a cigarette smoker. See id. Dr. Schwarz prescribed Cardizem and Oxycodone, and again prescribed Oxycodone at Johnston's next visit on March 29, 2010, which came on the heels of a hospitalization arising out of a seizure Johnston suffered. See id.

         Johnston returned to the emergency room on April 18, 2010 for “mild back pain, ” and at least once a month thereafter, through November 7, 2010, for chronic back pain and leg pain. See id. at 5. He exhibited limited range of motion in his back and was prescribed Oxycodone, Coumadin, Quinapril, Lasix, Metoprolol, and Keppra. Id.

         Dr. Schwarz observed Johnston in moderate distress at a June 4, 2010 appointment, identifying an irregular heart rhythm, tenderness to palpation in the left and right paraspinal area, bilateral muscle spasms, and restricted and painful flexion and extension in the lumbar spine. Id. Once again, Dr. Schwarz prescribed Oxycodone. Id.

         A different physician, pain management specialist Dr. Craig E. Foster (“Dr. Foster”), met with Johnston on July 20, 2010 to address Johnston's back and leg pain. See id. Dr. Foster diagnosed Johnston with chronic back pain and recommended that Johnston begin taking a longer-acting medication, such as Oxycontin, in addition to Lyrica. See id. at 5-6.

         Johnston returned to Dr. Schwarz on July 29, 2010, as well as on August 4, 2010, August 9, 2010, August 16, 2010, August 23, 2010, and several more times through the end of 2010. See id. at 6-7. For much of this period, Johnston's back and leg pain remained essentially unchanged, though he did report worsening lower back pain and extremity pain at certain points. See id. at 6-7. Johnston was prescribed Oxycodone and Morphine. See id. at 6-7.

         On January 20, 2011, Johnston reported worsening pain in his back and legs. Id. at 7. Dr. Schwarz examined Johnston, and again prescribed Oxycodone. Id. At a February 4, 2011 visit to Dr. Schwarz, Johnston evinced virtually identical physical limitations and was prescribed Oxycodone. Id.

         Johnston briefly interrupted this pattern of visits to the ER and with Dr. Schwarz, when he was evaluated at Connecticut Sport and Spine Physicians (“CSPS”) on February 10, 2011, and during the two months that followed. See id. at 11-12. At CSPS, Johnston was diagnosed with intervertebral disc displacement of the lumbar spine with disc degeneration and facet hypertrophy, lumbago, and thoracic or lumbosacral neuritis or radiculitis. Id. at 11-12. Johnston was prescribed Cymbalta and OxyContin. See id. at 12. Johnston was administered bilateral L3-L4 transforaminal epidural injections on March 10, 2011. See id.

         On March 19, 2011, Johnston went to the emergency room, seeking relief for severe, sharp, low back pain that radiated to his legs. Id. at 7. He was noted to have tenderness in the lumbar paraspinal muscles and decreased range of motion. Id. at 7- 8. He was diagnosed with back pain and a back spasm, and this time prescribed Valium. See id. at 8. When Johnston was seen two days later at CSPS, he reported that he had experienced spasms, lasting fifteen minutes, down both of his legs over the previous several days. See id. at 12.

         Dr. Schwarz completed a Multiple Impairment Questionnaire on March 22, 2011. Id. at 8. He diagnosed Johnston with: “chronic low back pain, COPD, hypertension, obesity[, ] and a seizure disorder.” Id. His chronic low back and leg pains, according to Dr. Schwarz, prevented him from sitting and from standing/walking more than one hour per eight-hour workday. Id. Dr. Schwarz further expressed the belief that Johnston would need breaks to rest every thirty minutes during the workday, each at least ten minutes long, and would likely miss work more than three times per month. Id. Dr. Schwarz opined that Johnston could “occasionally” lift or carry objects that weighed five pounds, but that Johnston's chronic pain resulted in significant limitations in repeatedly reaching, handling, or lifting objects. Id. He had further moderate limitations in his ability to use his upper extremities to grasp, twist, or turn objects and to use his arms for reaching, including overhead. Id. Dr. Schwarz suggested that Johnston's symptoms were constantly so severe as to interfere with his ability to concentrate. Id. Dr. Schwarz did not believe that Johnston was a malingerer. Id.

         Johnston returned to CSPS on April 7, 2011, and stated that his back pain had worsened after the epidural injections he had received in March; he was prescribed Oxycodone. Id. at 12.

         From late April 2011 through August 2011, Johnston went to the Windham Hospital emergency room many times. See generally id. at 9-10. He most often complained of lower back and leg pain at these visits, and he showed a limited range of motion. See, e.g., id. at 9. Notably, however, Johnston's visits to the ER in July 2011 were driven by his effort to seek treatment for right arm pain. See id. at 9-10. In fact, an MRI on July 29, 2011 showed a partial tear in his biceps, a complete tear of the lateral collateral ligament, and several other partial tears. See id. at 10. Virtually every-if not every-time he visited the Windham Hospital emergency room, Johnston was prescribed painkillers and/or other prescription medications. See id. at 9-10.

         Johnston's visits to the Windham Hospital emergency room overlapped with the start of his trips to the Rockville General Hospital (“Rockville”) emergency room. See Id. at 12. Johnston frequently sought evaluation and treatment at the Rockville ER from May 18, 2011 through February 13, 2012. See id. These visits revealed similar lower back pain and limitations on his range of motion, among other, related abnormalities. See id. Over the course of these visits, doctors at Rockville prescribed Oxycodone, OxyContin, Ultracet, Clonidine, Percocet, Robaxin, Norflex, and Prednisone. See Id. at 12-13.

         On October 10, 2011, Johnston underwent an MRI of his lumbar spine. Id. at 10. The MRI revealed various disc bulges, thecal sac narrowings, and other irregularities. See id. at 10-11. More than two months passed before, on December 23, 2011, Johnston visited the ER once again for severe, constant back pain. Id. at 11.

         Johnston began treating with Dr. Loretta Pilagin (“Dr. Pilagin”) on January 24, 2012. See id. at 13. At an appointment with Dr. Pilagin a month later, Johnston reported that he was having a hard time finding long-term care. See id. When she examined Johnston on March 9, 2012, Dr. Pilagin noted decreased breathing sounds, peripheral edema, abdominal tenderness, and decreased ...

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