Johnson v. Barnhart, CIV.A. H-02-2657.

Citation285 F.Supp.2d 899
Decision Date18 March 2003
Docket NumberNo. CIV.A. H-02-2657.,CIV.A. H-02-2657.
PartiesWalter JOHNSON, Surviving Spouse of Gloria H. Johnson, Deceased, Plaintiff, v. Jo Anne B. BARNHART, Commissioner, Social Security Admin., Defendant.
CourtUnited States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Southern District of Texas

Victor N. Makris, Attorney at Law, Bellaire, TX, for plaintiff.

Kim Elizabeth Garcia, Social Security Administration, Office of the General Counsel, Dallas, TX, for defendant.

MEMORANDUM AND ORDER

ATLAS, District Judge.

This Social Security Act appeal was referred to Magistrate Judge Calvin Botley pursuant to 28 U.S.C. §§ 636(b)(1)(B). On February 15, 2003, Magistrate Judge Botley issued a Memorandum and Recommendations [Doc. # 15]. Subsequently, on February 24, 2003, Magistrate Judge Botley issued an Amended Memorandum and Recommendations [Doc. # 16], suggesting that this Court deny Defendant's Motion for Summary Judgment [Doc. # 12], grant Plaintiff's Motion for Summary Judgment [Doc. # 10], and remand this action to the Defendant Commissioner pursuant to "sentence four" of section 405(g) to consider mental capacity evidence for Plaintiff (decedent) and, if necessary, additional vocational evidence. The time for objections to be filed by the parties about the Amended Memorandum and Recommendations has expired without any objections having been filed. The Court finds that the Magistrate Judge's Amended Memorandum and Recommendation is well founded, and that the Magistrate Judge's recommended dispositions should be adopted.1 It is therefore

ORDERED that the Amended Memorandum and Recommendations [Doc. # 16] is adopted as this Court's Memorandum and Order. It is further

ORDERED that Defendant's Motion for Summary Judgment [Doc. # 12] is DENIED. It is further

ORDERED that Plaintiff's Motion for Summary Judgment [Doc. # 10] is GRANTED. It is further

ORDERED that the decision of the Commissioner is REVERSED and this case is REMANDED to the Commissioner pursuant to "sentence four" of section 405(g), to consider mental capacity evidence for Gloria Johnson.

AMENDED MEMORANDUM AND RECOMMENDATIONS

BOTLEY, United States Magistrate Judge.

Plaintiff Walter Johnson ("Johnson"), surviving spouse of Gloria H. Johnson (hereinafter referred to as "the decedent"), seeks judicial review of the Social Security Administration's ("SSA") denial of his deceased wife's claim for social security disability benefits provided by Title II of the Social Security Act, 42 U.S.C. §§ 401, et seq. See Plaintiff's Motion for Summary Judgment (Entry # 10) and Memorandum of Points and Authorities in Support of Plaintiff's Motion for Summary Judgment (Entry # 11).1 Defendant Jo Anne B. Barnhart, Commissioner of the Social Security Administration ("Commissioner") urges her decision denying Gloria Johnson's claim for benefits be upheld and maintains that Gloria Johnson was not disabled as she was capable of performing certain limited light work, and that such work exists in significant numbers in the national economy. See Defendant's Motion for Summary Judgment (Entry # 12) and Memorandum in Support of Defendant's Motion for Summary Judgment and Response to Plaintiff's Motion for Summary Judgment (Entry # 13).2 Johnson contends that the record lacked a mental residual functional capacity (RFC) assessment from a qualified examining or non-examining source and that the administrative law judge ("ALJ") erred by failing to consult with a psychiatric or psychological medical expert regarding the decedent's mental residual functional capacity. Johnson further contends that the ALJ erred by relying on vocational expert testimony regarding other work that the decedent could perform because the vocational expert's testimony was in conflict with the Dictionary of Occupational Titles (DOT) and violated Social Security Ruling (SSR) 00-04p. Johnson maintains that the Commissioner's decision should be reversed or remanded, contending that it contains an error of law, is not predicated upon substantial evidence and does not comply with applicable legal standards.

Conversely, the Commissioner contends that her finding that the decedent was not disabled is based upon a complete review of the claimant's medical records as well as the opinions of her treating physicians and those of the vocational and consulting medical experts and, accordingly, the reaffirmation of the ALJ's decision that the decedent is not disabled because she retains the residual functional capacity (RFC) to perform certain limited light work, is premised upon substantial evidence and the proper application of the relevant legal standards.

THE FACTUAL AND PROCEDURAL BACK GROUND
The Pertinent Factual Background — The Medical History and Alleged Impairments

Gloria Johnson was forty six (46) years old at the time of the administrative hearing on June 14, 1999. She had a ninth grade education and past work experience as a housekeeper in a hospital. (R. 19).3 The record indicates that Gloria Johnson died on March 14, 2001 (R. 8) and that her husband, Walter Johnson, is suing as a substitute party on her behalf.

The record indicates that, in 1992, the decedent was hospitalized for psychiatric treatment at Belle Park Hospital in Houston, Texas. The sole record from Belle Park Hospital contained in the record is a one page "Discharge/Aftercare Plans" summary, dated December 16, 1992, and signed by nurse A. Flores. (R. 156). This one page record recommends a "psychiatric" follow-up appointment with Michael Thomas on December 17, 1991, return for aftercare, including support groups, return to work on January 15, 1993, continued teaching of more effective coping and taking Prozac 20 mg daily. The record does not contain any admission records, chart notes, reports of treating psychiatrists or any other records from Belle Park Hospital.

The record contains medical records from Dr. Joshua Michael Gold, the decedent's regular treating physician. The records span the dates from August 1, 1995 to July 15, 1998 and the copies are of poor quality and largely illegible; however, progress notes indicate that the decedent was "depressed" and prescribed Zoloft 80 mg on August 1, 1995 (R. 212), and that she remained "stressed out" and "tense" with "job stress" and "no help [from] Zoloft" on August 31, 1995. (R. 212). Progress notes, dated February 26, 1996, indicate the decedent continued to be depressed with anorexia and weight loss of twenty five pounds and that her "job is depressing." (R. 211). Notes of a check up on January 20, 1997, indicate a loss of appetite for two weeks. (R. 194). A progress note, dated January 12, 1998, indicates that the decedent was given Wellbutrin 150 # 40. (R. 177). An undated note appearing between progress notes, dated January 12, 1998 and February 5, 1998, states Gloria Johnson's age as forty-four (44) and that she was having suicidal thoughts the previous week including running out in the freeway and taking an overdose of pills. The same note indicates she is stressed and hates herself because she "can't work or do anything that makes her happy" and was tearful "AOx3." Gloria Johnson was diagnosed with depression and it appears that her dosage of Zoloft was raised "TID" and Effexor 75 mg QD was prescribed in divided doses. (R. 176). A progress note, dated June 18, 1998, mentions Effexor 75 mg. (R. 172). A progress note, dated July 15, 1998, indicates "D/C Effexor" and "Wellbutrin SR 150 # 44." The same progress note also mentions Prozac, but there is no mention of Zoloft. (R. 171).

Interviewer P. Francis prepared a Social Security Administration Disability Report with respect to the decedent's claim on July 7, 1998. Francis made the following observations about her interview with the decedent:

This was a difficult interview. She's a nice lady but easily confused. It took at least 20 minutes to find out when she stopped working, when she was hurt and even how much she got. It wasn't a mental problem, it was understanding what is said to her. I think it may be more of an education limitation rather than depression (personal observation). (R. 143).

The record contains a report of an examination of the decedent by psychiatrist Charles B. Covert with respect to "allegations of disability due to depression." The date of the examination referred to in the report is August 27, 1998. The report is addressed to the Disability Determination Service, Texas Rehabilitation Commission. In the report, Dr. Covert indicates that Gloria Johnson was psychiatrically hospitalized on one occasion in 1992 for approximately eighteen days and, thereafter, was treated with antidepressants and received outpatient care. There is no indication that Dr. Covert reviewed the psychiatric hospital records. Dr. Covert does, however, state that Gloria Johnson continues with Zoloft, 50 mg, three times daily prescribed by her family doctor and sees her general physician monthly to have her Zoloft prescription refilled. Despite the fact that Dr. Gold's records indicate that Gloria Johnson had been prescribed and/or was taking Wellbutrin and Effexor shortly before her examination by Dr. Covert (R. 171), Dr. Covert does not discuss Wellbutrin in his report and only discusses Effexor as something Gloria Johnson has taken in the past. Further, Dr. Covert's report does not mention or address the decedent's suicidal ideations or diagnosis of depression earlier that same year as reported in Dr. Gold's records. Covert simply does not specify in his report which of the decedent's medical records he has reviewed. The sole reference to any review of records or any past psychiatric diagnosis is a mention of a one page undated, unsigned progress note from an unspecified source, to which Dr. Covert accords "limited benefit," indicating that "at some point in the past, [Gloria Johnson] apparently had depressive symptoms ... and was upset at not being able to work. She was receiving Zoloft in unknown amounts three times daily, as well as, Effexor, 75 mg,...

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8 cases
  • Barraza v. Berryhill, CIVIL ACTION NO. 4:16-CV-1072
    • United States
    • United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Southern District of Texas
    • September 18, 2017
    ...tasks, and rather an explanation of the claimant's residual functional capacity from a physician is needed." Johnson v. Barnhart, 285 F.Supp.2d 899, 910 (S.D.Tex. 2003) (citing Rivera-Torres v. Secretary of Health and Human Services, 837 F.2d 4, 7 (1st Cir. 1988). The ALJ should request a m......
  • Franklin v. Berryhill
    • United States
    • United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Southern District of Texas
    • August 23, 2017
    ...as the existed in 2014, when the ALJ and Commissioner heard, decided, and considered the case. See Johnson v. Barnhart, 285 F. Supp. 2d 899, 910 n.6 (S.D. Tex. 2003) (Atlas, J.) (analyzing the regulations in place at the time of the hearing and decision and noting that they were revised and......
  • Ray v. Colvin, Civil Action No. 7:13-CV-00011-BL
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    • United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Northern District of Texas
    • September 4, 2014
    ...*5 (N.D. Tex. Apr. 22, 2011); Ellis v. Astrue, No. 7:09-CV-70, 2010 WL 3422872, at *5 (N.D. Tex. Jul. 27, 2010); Johnson v. Barnhart, 285 F. Supp. 2d 899, 915 (S.D. Tex. 2003). Thus, "[o]nly where the testimony by the VE is based on a correct account of a claimant's qualifications and restr......
  • Morgan v. Comm'r of Soc. Sec. Admin., 3:10-CV-01061-BF
    • United States
    • United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Northern District of Texas
    • September 30, 2011
    ...this "middle ground" approach when dealing with direct conflicts between VE testimony and the DOT as well. See Johnson v. Barnhart, 285 F.Supp.2d 899, 913-14 (S.D. Tex. 2003); Augustine v. Barnhart, No. 1-00-CV-749, 2002 WL 31098512 at *9-10 (E.D. Tex. Aug. 27, 2002); Hollan v. Apfel, No. 3......
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3 books & journal articles
  • Issue Topics
    • United States
    • James Publishing Practical Law Books Social Security Disability Collection - James' Best Materials. Volume 2
    • May 5, 2015
    ...tasks, and rather an explanation of the claimant’s residual functional capacity from a physician is needed.” Johnson v. Barnhart , 285 F. Supp.2d 899, 910 (S.D. Tex. 2003), citing Rivera-Torres v. Secretary of Health and Human Services, 837 F.2d 4, 7 (1st Cir. 1988). In Johnson , the court ......
  • Issue topics
    • United States
    • James Publishing Practical Law Books Archive Social Security Issues Annotated. Vol. II - 2014 Contents
    • August 3, 2014
    ...tasks, and rather an explanation of the claimant’s residual functional capacity from a physician is needed.” Johnson v. Barnhart , 285 F. Supp.2d 899, 910 (S.D. Tex. 2003), citing Rivera-Torres v. Secretary of Health and Human Services, 837 F.2d 4, 7 (1st Cir. 1988). In Johnson , the court ......
  • Issue topics
    • United States
    • James Publishing Practical Law Books Bohr's Social Security Issues Annotated - Volume II
    • May 4, 2015
    ...tasks, and rather an explanation of the claimant’s residual functional capacity from a physician is needed.” Johnson v. Barnhart , 285 F. Supp.2d 899, 910 (S.D. Tex. 2003), citing Rivera-Torres v. Secretary of Health and Human Services, 837 F.2d 4, 7 (1st Cir. 1988). In Johnson , the court ......

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