Balentine v. Social Security Administration Commissioner
MEMORANDUM OPINION Signed by Honorable James R. Marschewski on April 4, 2012. (sh)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
STEVEN W. BALLENTINE
Civil No. 11-3013
MICHAEL J. ASTRUE, Commissioner
Social Security Administration
Plaintiff, Steven Ballentine, brings this action under 42 U.S.C. § 405(g), seeking judicial
review of a decision of the Commissioner of Social Security Administration (Commissioner)
denying his claims for disability insurance benefits (“DIB”) and supplemental insurance benefits
(“SSI”) under Titles II and XVI of the Social Security Act (hereinafter “the Act”), 42 U.S.C. §§
423(d)(1)(A), 1382c(a)(3)(A). In this judicial review, the court must determine whether there
is substantial evidence in the administrative record to support the Commissioner’s decision. See
42 U.S.C. § 405(g).
The plaintiff filed his applications for DIB and SSI on , alleging an onset date of January
1, 2005, due to a back impairment, hip pain, and depression. Tr. 101-104, 105-111. His
applications were initially denied and that denial was upheld upon reconsideration. Plaintiff then
made a request for a hearing by an Administrative Law Judge (“ALJ”). An administrative
hearing was held on March 29, 2010. Tr. 36-58. Plaintiff was present and represented by
At this time, plaintiff was 53 years of age and possessed a tenth grade education. Tr. 101,
105, 271. He had past relevant work (“PRW”) experience as a stonemason. Tr. 28.
On July 26, 2010, the ALJ found that plaintiff’s disorder of the back and depression were
severe, but did not meet or medically equal one of the listed impairments in Appendix 1, Subpart
P, Regulation No. 4. Tr. 23-24. After partially discrediting plaintiff’s subjective complaints, the
ALJ determined that plaintiff retained the residual functional capacity (“RFC”) to perform light
work involving no concentrated exposure to dust, fumes, odors, gasses, and poor ventilation and
no more than frequent climbing, balancing, crawling, kneeling, stooping, and crouching. Tr. 2528. Further, the ALJ concluded Plaintiff could only perform work where the interpersonal
contact was incidental to the work performed, the complexity of the tasks was learned and
performed by rote, and the tasks involved few variables and required little judgment. With the
assistance of a vocational expert, the ALJ found plaintiff could perform work as a production
worker, maid & house cleaner, and poultry cutter. Tr. 29-30.
Plaintiff appealed this decision to the Appeals Council, but said request for review was
denied on December 16, 2010. Tr. 1-5. Subsequently, plaintiff filed this action. ECF No. 1.
This case is before the undersigned by consent of the parties. Both parties have filed appeal
briefs, and the case is now ready for decision. ECF No. 8, 11.
This court’s role is to determine whether the Commissioner’s findings are supported by
substantial evidence on the record as a whole. Ramirez v. Barnhart, 292 F.3d 576, 583 (8th Cir.
2002). Substantial evidence is less than a preponderance but it is enough that a reasonable mind
would find it adequate to support the Commissioner's decision. The ALJ's decision must be
affirmed if the record contains substantial evidence to support it. Edwards v. Barnhart, 314 F.3d
964, 966 (8th Cir. 2003). As long as there is substantial evidence in the record that supports the
Commissioner’s decision, the court may not reverse it simply because substantial evidence exists
in the record that would have supported a contrary outcome, or because the court would have
decided the case differently. Haley v. Massanari, 258 F.3d 742, 747 (8th Cir. 2001). In other
words, if after reviewing the record it is possible to draw two inconsistent positions from the
evidence and one of those positions represents the findings of the ALJ, the decision of the ALJ
must be affirmed. Young v. Apfel, 221 F.3d 1065, 1068 (8th Cir. 2000).
It is well-established that a claimant for Social Security disability benefits has the burden
of proving her disability by establishing a physical or mental disability that has lasted at least one
year and that prevents her from engaging in any substantial gainful activity. Pearsall v.
Massanari, 274 F.3d 1211, 1217 (8th Cir.2001); see also 42 U.S.C. § § 423(d)(1)(A),
1382c(a)(3)(A). The Act defines “physical or mental impairment” as “an impairment that results
from anatomical, physiological, or psychological abnormalities which are demonstrable by
medically acceptable clinical and laboratory diagnostic techniques.” 42 U.S.C. § § 423(d)(3),
1382(3)(c). A plaintiff must show that his or her disability, not simply their impairment, has
lasted for at least twelve consecutive months.
The Commissioner’s regulations require him to apply a five-step sequential evaluation
process to each claim for disability benefits: (1) whether the claimant has engaged in substantial
gainful activity since filing her claim; (2) whether the claimant has a severe physical and/or
mental impairment or combination of impairments; (3) whether the impairment(s) meet or equal
an impairment in the listings; (4) whether the impairment(s) prevent the claimant from doing past
relevant work; and, (5) whether the claimant is able to perform other work in the national
economy given her age, education, and experience. See 20 C.F.R. § § 404.1520(a)- (f)(2003).
Only if the final stage is reached does the fact finder consider the plaintiff’s age, education, and
work experience in light of his or her residual functional capacity. See McCoy v. Schweiker, 683
F.2d 1138, 1141-42 (8th Cir. 1982); 20 C .F.R. § § 404.1520, 416.920 (2003).
Reviewing courts have the authority to order the Commissioner to consider additional
evidence but “only upon a showing that there is new evidence which is material and that there
is good cause for the failure to incorporate such evidence into the record in a prior proceeding.”
42 U.S.C. § 405(g); Woolf v. Shalala, 3 F.3d 1210 (8th Cir. 1993); Chandler v. Secretary of
Health and Human Servs., 722 F.2d 369, 371 (8th Cir. 1983). “To be material, new evidence
must be non-cumulative, relevant, and probative of the claimant's condition for the time period
for which benefits were denied, and there must be a reasonable likelihood that it would have
changed the Commissioner’s determination.” Woolf, 3 F.3d at 1215.
In the present case, Plaintiff seeks to admit the report of Dr. J. Tod Ghormley, an
orthopedist. ECF No. 1-1. On July 8, 2008, Plaintiff was evaluated by Dr. Ghormley for lower
back pain. Plaintiff reported pain with exercise, sitting, bending forward, and coughing. Dr.
Ghormley noted that a recent MRI had shown degenerative disk disease, an annular tear at the
L5-S1 level, and a disk bulge at the L4-5 level. An examination revealed some dysesthesias
(atypical sensation) in the lateral side of his left leg and a slightly positive myositis
(inflammation in the muscle tissues) test on the left. Plaintiff was minimally tender over the
paraspinious muscles and lower lumbar spine, with slight tenderness over the left SI joint and
a positive figure of four test indicating possible sacroiliac joint (“SI”) compression. Dr.
Ghormley prescribed William flexion and lumbar myositis exercises for trunk stabilization,
Glucosamine, and Mobic. He also offered SI joint injections if he continued to experience
problems. Further, Dr. Ghormley noted that he would release him to return to sedentary work
once he was less symptomatic. ECF No. 1-1.
There is no real question as to the materiality of the evidence. Plaintiff contends that it
provides support for the treatment records of Advanced Practical Nurse (“APN”), Susie Lamb.
Standing alone, Nurse Lamb does not qualify as an acceptable medical source and, as such, her
opinion is not entitled to significant weight. However, if Nurse Lamb was a part of a treatment
team acting in association with a physician or physicians, then the RFC assessment she
completed could be elevated to that of a treating source and entitled to substantial weight.1
Shontos v. Barnhart, 328 F.3d 418 (8th Cir. 2003). We note that Dr. Ghormley’s assessment is
referenced by Nurse Lamb on at least one of her treatment records. Tr. 201. Further, Dr.
Ghormley’s assessment contains handwritten notes by Nurse Lamb. Given that Nurse Lamb
worked for Boston Mountain Rural Health Center, a Clinic established to provide low cost and
indigent medical care, it is possible that she was in charge of carrying out a treatment plan
prescribed or recommended by a specialist such as Dr. Ghormley. Accordingly, we find Dr.
Ghormley’s evaluation to be material to the instant case, and likely to have impacted the weight
afforded Nurse Lamb’s opinion.
We note that Nurse Lamb’s assessment is the only RFC assessment contained in the record that was
completed by a treating source. Without her assessment, the ALJ had only the assessment of a doctor who
assessed Plaintiff on only one occasion. See Jenkins v. Apfel, 196 F.3d 922, 925 (8th Cir. 1999) (holding that
the opinion of a consulting physician who examined the plaintiff once or not at all does not generally constitute
Our next inquiry hinges on whether or not good cause has been shown for Plaintiff’s
failure to present this evidence to the ALJ. Plaintiff contends that it was inadvertently left out
of the Boston Mountain Rural Clinic records presented to the ALJ. He states that this error was
not realized until after the ALJ had issued his opinion. Plaintiff claims that he attempted to place
this evidence into the record before the Appeals Council, but a review of the records from Boston
Mountain Rural Clinic submitted by Plaintiff’s counsel does not include this record. Neither
Plaintiff nor the Defendant can explain why this was not included in the appellate record. As the
failure to present this medical assessment to both the ALJ and the Appeals Council appears to
have been inadvertent and Plaintiff has attempted to correct his error, we find good cause exists
supporting Plaintiff’s failure to present it earlier. Therefore, remand is necessary to allow the
ALJ to consider Dr. Ghormley’s assessment of Plaintiff.2
On remand, Nurse Lamb’s relationship to Drs. Sutterfield and Blair should also be
investigated. If these doctors were associated with the Boston Mountain Rural Clinic, the ALJ
should reconsider the possibility of a treatment team.
We also note that the record currently before this Court does not contain the
interrogatories submitted to the vocational expert (“VE”). Similar to the error made by Plaintiff
in resubmitting his medical records, a supplemental transcript was filed by the Defendant on
November 4, 2011, but it is identical to the original transcript filed with this Court on November
3, 2011. The record remains void of the VE’s testimony. Without the interrogatories and the
VE’s answers, the undersigned cannot determine whether substantial evidence exists to support
Further, because Dr. Ghormley’s assessment is referenced in the treatment notes of Nurse Lamb, we
believe it was incumbent upon the ALJ to request these records in order to fully and fairly develop the record.
the ALJ’s opinion. Accordingly, on remand, the Defendant should also assure that the
interrogatories posed to the VE and the VE’s answers to those questions are made a part of the
Accordingly, we conclude that the ALJ’s decision is not supported by substantial
evidence, and therefore, the denial of benefits to the plaintiff is hereby reversed and this matter
remanded to the Commissioner for further consideration pursuant to sentence six of 42 U.S.C.
DATED this the 4th day of April 2012.
HON. JAMES R. MARSCHEWSKI
CHIEF UNITED STATES MAGISTRATE JUDGE
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