United States District Court, D. Connecticut
GEORGE E. JOHNSTON,  Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner, Social Security Administration, Defendant.
RULING RE: MOTION FOR JUDGMENT ON THE PLEADINGS (DOC.
NO. 13) & MOTION TO AFFIRM THE COMMISSIONER'S
DECISION (DOC. NO. 16)
C. Hall United States District Judge.
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.
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).
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
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
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.
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.
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.
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.
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.
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.
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.
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.
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.
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
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.
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.
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.
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.
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.
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.
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.
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