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Johnson v. Berryhill

United States District Court, D. Connecticut

March 29, 2019

NANCY A. BERRYHILL, Acting Comm'r, Social Security Administration, Defendant.



         On October 2, 2017, Heidi Johnson (“Plaintiff”) filed this administrative appeal under 42 U.S.C. § 405(g), 1383(c)(3), and the Due Process Clause of the Fifth Amendment to the United States Constitution against Nancy A. Berryhill, Acting Commissioner of Social Security (“Defendant” or “Acting Commissioner”), seeking this Court's review of the decision of the Social Security Administration (“SSA”) denying her claim for Title II and Title XVI disability benefits under the Social Security Act. Complaint (“Compl.”), ECF No. 1.

         Ms. Johnson moves to reverse the decision of the Acting Commissioner. First Mot. to Reverse the Decision of the Commissioner (“Pl. Mot. to Reverse”), ECF No. 19. She also asks the Court to consider her claims in light of the Supreme Court's Appointments Clause decision, Lucia v. S.E.C., 138 S.Ct. 2044, 2046 (2018). Notice of New Authority, ECF No. 30.

         The Acting Commissioner moves the Court to affirm her decision, Mot. to Affirm the Decision of the Comm'r (“Def. Mot. to Affirm”), ECF No. 26; and dismiss Plaintiff's Appointments Clause claim, Mot. to Dismiss Pls. Appointments Clause Claim, ECF No. 35.[1]

         For the reasons set forth below, the Court now GRANTS Ms. Johnson's motion to reverse the decision of the Acting Commissioner, ECF No. 19; DENIES the Acting Commissioner's motion to affirm the decision; and GRANTS the Acting Commissioner's motion to dismiss Ms. Johnson's Appointments Clause claim, Mot. to Dismiss Pls. Appointments Clause Claim, ECF No. 35.


         A. Factual Background

         Born on August 3, 1961, Heidi May Johnson worked in various positions at Wal-Mart, from June 1998 until March 2014. Tr. at 230; Transcript of the Administrative Record (“Tr.”), ECF Nos. 15-2-15-14, at 96.[2] From January 2010 to March 2014, Ms. Johnson also worked as home health aide for Companions & Homemakers. Id.

         On September 16, 2013, Ms. Johnson allegedly injured her right neck, shoulder, and arm while working for Companions & Homemakers and lifting a non-ambulatory patient from a bed to a wheelchair. Disability Report, Tr. 236. Ms. Johnson allegedly received worker's compensation for the injury for roughly six months. Id.

         In February, March, and April of 2014, Ms. Johnson was allegedly hospitalized for fainting, seizures, and tremors. Transcript of Hearing before Administrative Law Judge Louis Bonsangue (“ALJ Hearing”), Tr. 55; Disability Report, Tr. 232. Ms. Johnson allegedly tried to return to work at Wal-Mart after her hospitalizations, she allegedly seized and could not perform work. Tr. at 74; Disability Report, Tr. 237. Since then, Ms. Johnson has allegedly experienced four to five psychogenic seizures per month.[3] Tr. at 58-59, 72-73; see also Hartford Hospital, Psychology Progress Notes, Tr. 1162-75.

         On November 24, 2014, Ms. Johnson allegedly underwent surgery to remove “an acute right subdural hematoma.” Psychiatric Consultation, Tr. 1266. Shortly after that surgery, she underwent speech, occupational, and physical therapy, including training in the use of a walker. Rehabilitation Admission, Tr. 1269-70. She then was admitted to Crestfield Rehabilitation Center for assistance with a variety of self-care skills, including how to choose clothing, food, and activities. SLP Evaluation & Plan of Treatment, Tr. 1351-52. At that time, Ms. Johnson was considered a risk for falls, compromised general health, dehydration, and further decline in function. Id. at 1352.

         Ms. Johnson allegedly cannot drive due to her seizures, and cannot cook or clean like she did before the seizures. Disability Report, Tr. 237; Work History Report, Tr. 245 (“I have also had to give up driving.”); Activities of Daily Living, Tr. 246 (reporting that she can go to the grocery store and doctor's appointments only when she can get a ride); Note of John Schifferdecker, M.D., Tr. 1407 (Feb. 12, 2015, “Please be advised that Ms. Heidi Johnson is under my care . . . . suffers from convulsions and due to this is unable to drive.”). Because of the injury she sustained as a home health aide, Ms. Johnson allegedly does not have full strength or range of motion on her upper right side. Work History Report, Tr. 253 (“I am unable to . . . lift laundry baskets.”); Activities of Daily Living, Tr. 249 (reporting that she uses her non-dominant left hand for chores such as dusting and that she has trouble holding the ink dabber for BINGO).

         On May 24, 2014, Ms. Johnson summarized the impact of her conditions as:

I used to be able to work two jobs and go places without asking for a ride. My life has changed completely because of my seizures. I never know when I will have one until the very last minute. Someone has to carry my laundry, my groceries and take me every where I need to go. I am no longer independent. My seizures flared up at church last week and I missed half the service! The seizures also affect me financially, since I am unable to work or drive. I am not able to go where I want, when I want. I've lost my freedom to do what I used to.

         Activities of Daily Living, Tr. 253.

         On August 26, 2014, the Social Security Administration denied Ms. Johnson's claim for disability benefits for “non-epileptic seizures, vasovagal syncope, peripheral neuropathy, herniated discs . . ., arthritis, Type II Diabetes Mellitus, Hyperlipidemia[, ] Hypomagnesmia and Palpitations.” Decision on Claim for Disability Insurance Benefits, Tr. at 121-24.

         In September of 2014, Ms. Johnson requested reconsideration of her claim. Tr. at 133. On December 15, 2014, the Social Security Administration again denied Ms. Johnson's claim for disability insurance benefits. Tr. at 130-32.

         On January 9, 2015, Ms. Johnson requested a hearing by an Administrative Law Judge (“ALJ”). Request for Hearing, Tr. at 133. On June 13, 2016, Ms. Johnson's appeal was heard by ALJ Bonsangue. ALJ Hearing. Ms. Johnson was nearly 55 years old at the hearing. Tr. 96.[4]

         At the hearing, Ms. Johnson explained that seizure medication had helped to control the seizures in the top part of her body, but she still had leg seizures roughly twice a week. ALJ Hearing, Tr. 58-60. She also reported episodes of fainting two to three times per month. ALJ Hearing, Tr. 72-73. Ms. Johnson stated that she had to elevate her legs for around thirty to sixty minutes twice a week to alleviate swelling. Id. at 62-63. Ms. Johnson reported using a cane much of the time, but testified that she was able to navigate the stairs of her home and take out the trash without a cane. Id. at 66-67. Ms. Johnson also described recurrent shoulder pain and hand tremors that occurred three to four times per week. Id. at 68-70.

         Ms. Johnson told the ALJ that she did not feel she could use a keyboard, but she could shop for groceries and get her groceries from the bus to the house. Id. at 70-72. She noted, though, that she had passed out and fallen when getting off of the bus a month before the hearing. Id. at 74-75. In her memorandum of law, Ms. Johnson also explained to the ALJ, that, in addition to her non-epileptic seizure disorder, upper right side and right hand impairments, and chronic health conditions (e.g., Type II Diabetes Mellitus), she suffers from learning disabilities. Claimant's Mem. of Law in Supp. of a Disability Finding, Tr. 294, 297. Ms. Johnson allegedly earned a special education certificate, not a high school diploma. Id.

         The ALJ also heard from a vocational expert who holds a Master's degree in Education, with a specialization in rehabilitation counseling. Resume of Vocational Expert, Tr. 287-88. He testified that Ms. Johnson's Wal-Mart positions had ranged from light to medium exertion and from unskilled to low level semi-skilled. ALJ Hearing, Tr. 79-80. He testified that her home health aid job would be classified as a medium exertion semi-skilled position. Id. at 80-81. The ALJ asked the vocational expert to consider whether a hypothetical person of Ms. Johnson's age, education level, past relevant work, limited to light exertional lift with only occasional climbing, stooping, kneeling, crouching, crawling, or overhead reaching with the right upper extremity, could perform any of the work that Ms. Johnson had previously performed. Id. at 81-82.

         The vocational expert testified that this person could perform the jewelry sales person, stock checker position, and cashier/checker positions that Ms. Johnson had performed at Wal-Mart. Id. at 82. The vocational expert then testified that there were over one million jobs nationwide with a comparable exertional and skill level as the ALJ's hypothetical. Id. at 83-84. The ALJ asked the vocational expert how his answer would change if the hypothetical worker could reach in any directly only occasionally. Id. at 84-85.The vocational expert testified that that restriction “would preclude any of [Ms. Johnson's] past work . . . . and it would also preclude the positions that [the vocational expert had] outlined at the unskilled level.” Id. at 86. The ALJ then asked about a person that could reach, but had to use a cane. Id. at 87. The vocational expert stated that the Dictionary of Occupational Titles did not discuss canes, Tr. 87, but that, in his experience doing job placement, this limitation would preclude the stock checker and jewelry sales positions, but not a seated cashier position. Id. at 87-88. If the cane was needed for balance, the vocational expert felt that no light work could be performed, including a cashier position. Id. at 89. The ALJ added that the hypothetical worker might have four to five seizures per month without warning, to which the vocational expert responded:

First off, my experience is that frequent seizure activity on the job is not well-tolerated . . . . Your hypothetical essentially talks about five times a month absences . . . . That's well above average absence which is about seven and three-quarters days per year and I have queried employers and most employers can't tolerate more than one to as high as 1.25 days monthly. So your five a month would not be tolerated.

Id. at 91.

         On August 2, 2016, the ALJ issued an unfavorable decision. Notice of Decision - Unfavorable (“ALJ Decision”), Tr. at 23-36. The ALJ determined that Ms. Johnson's last insured date was December 31, 2019. ALJ Decision, Tr. 28.

         At Step One, the ALJ determined that Ms. Johnson had not engaged in substantial gainful activity since February 18, 2014. Tr. 28.

         At Step Two, the ALJ determined that Ms. Johnson had several “severe impairments: non-epileptic seizure disorder, degenerative disc disease of the cervical and lumbar spines, cervicalgia and right rotator cuff tendonitis with an impingement syndrome and obesity (20 CFR 404.1520(c)).” Tr. 29.

         At Step Three, the ALJ found that Ms. Johnson “does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525 and 404.1526)”, Tr. 29, and that Ms. Johnson had the residual functional capacity to perform light work with certain limitations, Tr. 30.

         At Step Four, the ALJ determined that Ms. Johnson “is capable of performing past relevant work as a cashier checker” and that this “work does not require the performance of work-related activities precluded by the claimant's residual functional capacity (20 CFR 404.1565).”

         At Step Five, the ALJ concluded that Ms. Johnson “has not been under a disability, as defined in the Social Security Act, from February 18, 2014, through the date of this decision (20 CFR 404.1520(f)).” Tr. 36.

         On August 2, 2016, Ms. Johnson requested agency review of the ALJ's decision. Notice of Appeals Council Action, Tr. 1.

         On August 18, 2016, Dr. Sadaf Khorasanizadeh, M.D., a neurologist that had treated Ms. Johnson since 2014, wrote a letter for her appeal stating that he did “not expect complete recovery to the point that patient can return to work.” Sadaf Khorasanizadeh, Letter re: Social Security Appeal, Tr. at 22.

         On September 8, 2017, the Social Security Appeals Council affirmed the ALJ's decision. Notice of Appeals Council Action, Tr. 1-3.

         B. Procedural Background

         On October 2, 2017, Ms. Johnson filed this appeal. Compl.

         On December 12, 2017, Defendant filed an Answer and the administrative record. Answer, ECF No. 15.

         On March 8, 2018, Ms. Johnson moved to reverse the decision of the Acting Commissioner, arguing that the ALJ: (1) failed to develop the record; (2) mechanically applied the age criteria of the Medical-Vocational Guidelines; (3) failed to establish whether Ms. Johnson's cashier checker position was past relevant work; (4) incorrectly found that Ms. Johnson could perform light work; (5) incorrectly found that Ms. Johnson could reach in all directions with her dominant hand; (6) incorrectly reached decisions about the intensity, persistence, and limiting effects of Ms. Johnson's symptoms; (7) failed to acknowledge or comply with the treating physician rule; and (8) failed to develop the record or resolve an inconsistency as to Ms. Johnson's education level. Mem. of Law in Supp. of Mot. for Order Reversing the Comm'ners Decision (“Pl. Mem. of Law”), ECF No. 19-1.

         Ms. Johnson further argued that the Social Security Appeals Council mechanically applied the age criteria of the Medical-Vocational Guidelines, id. at 5, and that the Commissioner failed to provide regional job numbers, failed to demonstrate a significant number of jobs nationally, and had an insufficient evidentiary basis for the job estimates. Id. at 20-22.

         On May 4, 2018, Ms. Johnson informed the Court that the Social Security Administration had granted her December 7, 2017 Social Security disability benefits application with an onset date of August 3, 2016, the day after the ALJ denial. Notice of Grant of Pl.'s Subsequent Application, ECF No. 21.

         On June 19, 2018, the Commissioner moved to affirm the decision. Def. Mot. to Affirm.

         On July 18, 2018, Ms. Johnson filed a reply to Defendant's motion to affirm. Pl.'s Reply to Def.'s Mem. of Law in Supp. for an Order Affirming the ...

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