Johnson v. Callahan

975 F. Supp. 1366, 1997 WL 572371
CourtDistrict Court, D. Oregon
DecidedSeptember 11, 1997
DocketCivil No. 96-6316-FR
StatusPublished

This text of 975 F. Supp. 1366 (Johnson v. Callahan) is published on Counsel Stack Legal Research, covering District Court, D. Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Johnson v. Callahan, 975 F. Supp. 1366, 1997 WL 572371 (D. Or. 1997).

Opinion

OPINION

FRYE, District Judge.

The plaintiff, Larry Johnson, brings this action pursuant to section 205(g) of the Social Security Act (the Act), as amended, 42 U.S.C. § 405(g), to obtain judicial review of a final decision of the Commissioner denying his application for supplemental security income (SSI) benefits.

BACKGROUND

Larry Johnson filed an application for SSI benefits with a protected filing date of November 3, 1993. The application was denied initially and upon reconsideration. After a timely request for a hearing, Johnson, represented by counsel, appeared and testified before an Administrative Law Judge (ALJ) on September 11,1995, as did Jennifer Coiner, a vocational expert.

On November 13, 1995, the ALJ issued a decision finding that Johnson was not disabled within the meaning' of the Act and therefore not entitled to SSI benefits. This decision became the final decision of the Commissioner when the Appeals Council declined to review the decision of the ALJ.

FACTS

I. Johnson’s Medical History

At the time of the hearing on September II, 1995, Johnson was thirty years old. He has an eighth-grade education and has taken some special education classes. He claims to be functionally illiterate. Johnson contends that he became disabled in 1983 because of carpal tunnel syndrome, chronic low back pain, and leg and ankle pain. Johnson has worked a total of twenty-five weeks during his life. He did not iook for work during the four years prior to the hearing. He has lived with his parents for the past ten years.

Johnson’s back, leg and ankle pain were caused by a motorcycle accident he had in 1987. He was also in an automobile accident in June of 1994. Johnson testified that he had constant pain in his lower back, making [1368]*1368it difficult for him to walk at times, and that his back and leg problems cause him to fall at times. His difficulties in performing tasks at work have caused him to lose many jobs after only a few weeks. A typical day for Johnson is to get up, shower, eat breakfast, and watch television. He sees friends a couple of times a week. Johnson used to drive, but he lost his driver’s license a few years ago after he drove a friend’s car with no proof of insurance. Johnson drinks beer less often than daily and smokes marijuana when he has it available, but he does not believe that drug use or alcohol abuse is causing him any problem in finding or keeping a job.

Johnson testified that he could read some things, such as restaurant menus and the written driver’s license test. The carpal tunnel syndrome from which he suffers causes him difficulty with lifting or grabbing objects. Johnson takes care of his personal grooming without assistance, cooks at times, and can do yardwork as long as he takes breaks to rest his back. At the time of the hearing, Johnson was receiving no treatment, other than nonprescription medications.

2. The Physicians’Reports

On February 4, 1994, Johnson’s treating physician, Dr. Mark Jewell, reported that Johnson had had surgery on his right hand for a carpal tunnel condition, and that Johnson had had similar symptoms in his left hand. Dr. Jewell was of the opinion that Johnson was capable of employment with the physical limitation of non-repetitious hand and arm motions, and that Johnson could perform normal activities of daily living. Dr. Jewell was concerned that Johnson had secondary gain/functional overlay.

On March 22, 1994, examining physician Dr. Charles Phillips, reported:

On today’s exam I can find nothing to substantiate his subjective complaints. He enjoys full range of motion in his back. He is able to arise from a lying to a sitting, and a sitting to a standing position without any problems. He is able to stand on his toes and heels without problems. There is no tenderness noted. Of note, he clearly was embellishing his exam claiming positive leg lift signs in the lying position, however, when in the sitting position these are completely negative. He also refuses to flex his right foot while lying down in examining the back and foot. However, he is able to stand on his toes and his heels on the right leg one-legged without any problems.
... I do not feel that either his back or his lower extremity represent any significant impairment at this time, and the etiology of his chronic pains is unknown.
In regards to his complaints of right hand numbness and right grip strength weakening ... I would diagnosis this as a mild carpal tunnel syndrome, possibly just a residual from his previous episode. I do not feel that he is significantly limited by this at this time.

Tr. 146-47.

On September 10, 1994, examining physician Dr. Lance Turner reported that Johnson did not meet the strict criteria for major depression, but that he had a decreased mood. Dr. Turner was of the opinion that Johnson had more of an alcohol problem than he would admit to. Finally, Dr. Turner was of the opinion that Johnson would be able to work, even in light of his symptoms of depression. Dr. Turner concluded that the major reason that Johnson was not working was that he has an antisocial personality which makes it difficult for him to interact with people, and that he needs to improve his social skills and his education before he can work on a daily basis.

Dr. Timothy Straub treated Johnson after his 1987 motorcycle accident. After Johnson’s last visit on May 2, 1988, Dr. Straub reported that Johnson had a mild permanent impairment to his back and lower extremity, but that there was no significant permanent impairment in the knee, ankle or foot. Dr. Straub released Johnson to full activities. On January 25, 1990, Dr. Straub examined Johnson at the request of the Social Security Administration. He reported that Johnson complained of low back pain and stiffness and occasional ankle and knee problems. Dr. Straub concluded that Johnson could occasionally lift fifty pounds, frequently lift twenty-five pounds, and stand or walk for at [1369]*1369least two hours during an eight-hour work day.

On November 3, 1995, after the date of the hearing before the ALJ, a psychologist, Dr. Robert Kurlychek, examined Johnson to assess his intellectual abilities. Because Johnson had not paid Dr. Kurlychek, Dr. Kurlychek would not release his report until December 26, 1995, well over a month after the ALJ concluded that Johnson was not disabled. In that report, Dr. Kurlychek determined that Johnson had a verbal IQ score of 72, a performance IQ score of 79, and a full scale IQ score of 72. Taking into consideration normal variability and standard error of measurement, Dr. Kurlychek reported that with 95% confidence, Johnson’s true verbal score would fall between 67 and 77; his true performance score would fall between 71 and 87; his true full scale score would fall between 70 and 78; and, thus, “his verbal intellectual abilities may fall in the mentally retarded range.” Tr. 192. Dr. Kurlychek also reported that Johnson’s “ability to seek and maintain a wide range of jobs is seriously compromised.” Id. Dr.

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