Johnson v. Saul

JIMMY DEE JOHNSON, Plaintiff, v. ANDREW SAUL, SOCIAL SECURITY ADMINISTRATION, COMMISSIONER, Defendant.

Case No.: 2:19-cv-111-RDP

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ALABAMA SOUTHERN DIVISION

March 23, 2020

MEMORANDUM OPINION

Plaintiff Jimmy Dee Johnson ("Plaintiff") brings this action pursuant to Sections 216(i) and 223(d) of the Social Security Act (the "Act"), seeking review of the decision of the Commissioner of Social Security (the "Commissioner") denying his claim for a period of disability and disability insurance benefits ("DIB"). See 42 U.S.C. § 405(g). Based on the court's review of the record and the parties' briefs, the court finds the decision of the Commissioner is due to be reversed and remanded for further consideration.

I. Proceedings Below

Plaintiff filed his application for disability insurance benefits on May 16, 2012, alleging that he was disabled on July 1, 2002. (R. 73, 133, 144). His last insured date was December 31, 2007. (R. 75, 144). Plaintiff's application for benefits was initially denied on August 7, 2012. (R. 81). After a hearing, an unfavorable decision by the ALJ, and an appeal, Judge Virginia Hopkins entered an order reversing the ALJ's decision and remanding the case to the Commissioner for proceedings and findings concerning Plaintiff's residual functional limitations. (R. 549-74, 584). A new hearing was held on August 29, 2017, before ALJ Ronald Reeves. (R. 502-13, 537, 631). On October 3, 2018, the ALJ issued a new unfavorable decision, determining that Plaintiff had not been under a disability within the meaning of Sections 216(i) and 223(d) of the Act. (R. 513). That decision became the final decision of the Commissioner, and therefore a proper subject of this court's appellate review.

II. Facts

Plaintiff was forty-eight years old on the alleged disability onset date and fifty-four years old on the date last insured. (R. 72, 77, 511). Plaintiff dropped out of school in the eleventh grade. (R. 148). He worked at a tire and repair shop from June 1979 until June 2002. (R. 148). When he stopped working in June 2002, Plaintiff was an Assistant Manager. (Id.). He has no other relevant employment history. (Id.). Plaintiff alleges he suffers from the following disabling impairments: severe hearing loss in both ears, diabetes, kidney cancer, arthritis, and high blood pressure. (R. 147).

Plaintiff was treated by Dr. Dennis Pappas from March 2000 through March 2012, which obviously addresses some period of time before the alleged onset date of July 1, 2002. (R. 200-13). That treatment continued beyond the date last insured of December 31, 2007. (Id.). The medical records consistently indicate that Plaintiff had problems with hearing, and had various hearing aid adjustments. (Id.). Notably, the records do not contain an assessment during the relevant period of July 1, 2002 through December 31, 2007. (Id.).

On May 10, 2004, Plaintiff presented to Dr. Lawrence Lee with bronchitis, hypertension, chest pain, and gastroesophageal reflux disease (GERD). (R. 374-75). Dr. Lee noted that Plaintiff was deaf in the right ear, and hearing impaired in the left ear. (R. 375). On May 24, 2004, Dr.Lee noted improvement, and Plaintiff reported walking an hour a day for exercise. (R. 373). One year later, in July 2005, Plaintiff reported "feeling great" after walking for one hour for five days a week. (R. 365). On February 1, 2006, Dr. Lee reported Plaintiff was doing well, but did suffer from occasional sinus congestion. (R. 363-64). Dr. Lee diagnosed Plaintiff with new onset Type II diabetes in February 2007, noting that Plaintiff "eats ice cream every night, eats a lot of carbs, [and] eats out a lot." (R. 358-59).

On March 12, 2007, Dr. Pappas performed audiological testing, which showed profound sensorineural hearing loss. (R. 208, 212). By July 2007, Dr. Lee noted some improvement in Plaintiff's diet, and Plaintiff indicated no chest pain or shortness of breath. (R. 356-57). On October 2, 2007, Dr. Lee treated Plaintiff for allergic rhinitis, shortness of breath, and fatigue. (R. 354-55). Dr. Lee prescribed medication, and advised Plaintiff to stop smoking. (R. 355). By January 2008, just after the date last insured, Plaintiff was "doing well" with no chest pain or shortness of breath. (R. 352).

In March 2010, Dr. Pappas completed a form for Plaintiff's insurance carrier, opining that Plaintiff had profound sensorineural hearing loss that prevented communication with customers. (R. 210-12). Dr. Pappas also noted that Plaintiff could occasionally lift or carry up to 50 pounds, frequently lift or carry up to 20 pounds, sit up to 8 hours and stand up to 4 hours in an 8-hour workday, but could not climb or operate heavy equipment with noise exposure. (R. 213).

At the first hearing, which was held on October 31, 2013, Plaintiff testified that he is almost completely deaf in his right ear, and that hearing in his left ear is severely distorted. (R. 42-43). Plaintiff reported that his hearing began to deteriorate in 2000. (R. 50). Since 2007, Plaintiff's right ear has been "essentially useless." (R. 49). He has tried wearing a hearing aid in his right ear, but sound comes through distorted, like "a bad radio speaker" such that he cannot stand to usethe hearing aid for more than a day or so. (R. 43). Hearing aids have assisted Plaintiff in hearing in his left ear, but the sound becomes distorted when he turns the volume up. (Id.). His hearing doctor advised him not to work and to avoid noisy environments entirely. (R. 45).

A second hearing was held on August 29, 2017, following this court's remand. (R. 537-34). No new medical evidence was presented, and Plaintiff did not provide new testimony. (Id.). Similarly, the ALJ posed no new hypotheticals to the Vocational Expert, Debra Civils. (R. 539-44). The ALJ recognized that the only new evidence was Judge Hopkins's opinion from November 15, 2016. (R. 541, 549-74). When asked by the ALJ whether Plaintiff had "any objection to the testimony in the previous hearing," Plaintiff's counsel stated he did not. (R. 541) ("I'd just ask you to take judicial notice of the prior testimony."). Plaintiff specifically requested that the court address Dr. Pappas' limitations, and argued that Dr. Pappas' opinion "relates back to a condition . . . that was diagnosed during his period of insurability." (R. 541-43). The ALJ stated that he had the transcript of the prior hearing, then concluded the hearing. (R. 543).

III. ALJ Decision

The Social Security Administration has established a five-part sequential evaluation process for determining whether an individual is disabled. 20 C.F.R. § 404.1520(a). First, the ALJ must determine whether the claimant is engaging in substantial gainful activity. 20 C.F.R. § 4041520(a)(4)(i). Substantial gainful activity ("SGA") is defined as work activity that involves doing significant physical or mental activities. 20 C.F.R. § 404.1572(a). "Gainful work activity" is work that is usually done for pay or profit, whether or not a profit is realized. 20 C.F.R. § 404.1572(b). If the ALJ finds that the claimant engages in substantial gainful activity, then the claimant cannot claim disability. 20 C.F.R. § 404.1520(b). Second, the ALJ must determine whether the claimant has a medically determinable impairment that is "severe" or a combinationof impairments that is "severe." 20 C.F.R. 404.1520(c). An impairment or combination of impairments is "severe" within the meaning of the regulations if it significantly limits an individual's ability to perform basic work activities. 20 C.F.R. § 404.1520(a)(4)(ii). Absent such impairment, the claimant may not claim disability. Id. Third, the ALJ must determine whether the claimant's impairment or combination of impairments is of a severity to meet, or medically equal, the criteria of an impairment listed in 20 C.F.R. § 404, Subpart Π, Appendix 1. See 20 C.F.R. §§ 404.1520(d), 404.1525, and 404.1526. If such criteria are met, the claimant is declared disabled. 20 C.F.R. § 1520(a)(4)(iii).

If the claimant does not fulfill the requirements necessary to be declared disabled under the third step, the ALJ may still find disability under the next two steps of the analysis. The ALJ must first determine the claimant's residual functional capacity ("RFC"), which refers to the claimant's ability to work despite the claimant's impairments. 20 C.F.R. § 404.1520(e). In the fourth step, the ALJ determines whether the claimant has the RFC to perform past relevant work. 20 C.F.R. § 404.1520(a)(4)(iv). If the claimant is determined to be capable of performing past relevant work, then the claimant is deemed not disabled. Id. If the ALJ finds the claimant unable to perform past relevant work, then the analysis proceeds to the fifth and final step. 20 C.F.R. § 404.1520(a)(4)(v). In the final part of the analysis, the ALJ must determine whether the claimant is able to do any other work considering his residual functional capacity age, education, and work experience. 20 C.F.R § 404.1520(g). Here, the burden of proof shifts from the claimant to the ALJ to prove the existence, in significant numbers, of jobs in the national economy that the claimant can do given the residual functional capacity, age, education, and work experience. 20 C.F.R. § 1512(f). 404.1560(c).

After consideration of the record, the ALJ made several findings. (R. 502-13). First, the ALJ found that Plaintiff had not engaged in substantial gainful activity between July 1, 2002, the alleged onset date, through December 31, 2007, his date last insured. (R. 504). Second, the ALJ found that Plaintiff had the following combination of severe impairments: bilateral profound sensorineural hearing loss requiring a left hearing aid, and no useful hearing in the right ear. (R. 505). The ALJ also noted that Plaintiff was diagnosed or received treatment for diabetes mellitus, hypertension, bronchitis, GERD, hypercholesterol, hypertriglycerides, eczema,...