Ballard v. Astrue

Filing 20

MEMORANDUM AND ORDER re: 16 ORDERED that the relief which Ballard seeks in her Complaint and Brief in Support of Plaintiff's Complaint is DENIED. [Docs. 1,16.] FURTHER ORDERED that the Court will enter a separate judgment in favor of the Commis sioner. FURTHER ORDERED that the Clerk of Court shall substitute Carolyn W. Colvin for Michael J. Astrue in the court record of this case. Carolyn W. Colvin added. Michael J. Astrue terminated.. Signed by Magistrate Judge Nannette A. Baker on 9/30/13. (CEL)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
NORTHERN DIVISION

BECKY L. BALLARD,

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Plaintiff,
v.
CAROLYN W. COLVIN1,
Acting Commissioner of Social Security,
Defendant.

Case No. 2:11-CV-87-NAB

MEMORANDUM AND ORDER
This is an action under Title 42 U.S.C. § 405(g) for judicial review of the
Commissioner’s final decision denying Becky Ballard’s (“Ballard”) application for a period of
disability and disability insurance benefits and Supplemental Security Income (“SSI”) under
Title II and Title XVI of the Social Security Act. Ballard alleges disability due to diabetes
mellitus,

diabetic

retinopathy,

diabetic

neuropathy,

hypertension,

hypothyroidism,

supraventricular tachycardia, glaucoma, cataracts, depression, history of breast cancer, and sleep
apnea. (Tr. 179.) The parties consented to the jurisdiction of the undersigned United States
Magistrate Judge pursuant to 28 U.S.C. § 636(c)(1). [Doc. 12.] For the reasons set forth below,
the Commissioner’s decision is affirmed.
I.

Procedural History
On April 30, 2008, Ballard filed applications for a period of disability, disability

insurance benefits, and SSI benefits.
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(Tr. 144-153.)

The Social Security Administration

At the time this case was filed, Michael J. Astrue was the Commissioner of Social Security. Carolyn W. Colvin
became the Acting Commissioner of Social Security on February 14, 2013. When a public officer ceases to hold
office while an action is pending, the officer’s successor is automatically substituted as a party. Fed. R. Civ. P.
25(d). Later proceedings should be in the substituted party’s name and the Court may order substitution at any time.
Id. The Court will order the Clerk of Court to substitute Carolyn W. Colvin for Michael J. Astrue in this matter.

(“SSA”) denied Ballard’s claim and she filed a timely request for a hearing before an
administrative law judge (“ALJ”). (Tr. 103-108.) The SSA granted Ballard’s request and the
hearing took place on April 28, 2010. (Tr. 25-98, 115.) The ALJ issued a written decision on
May 27, 2011. (Tr. 11-19.) Ballard requested review of the ALJ’s decision from the Appeals
Council. (Tr. 7.) On September 15, 2011, the Appeals Council denied Ballard’s request for
review.

(Tr. 1-3.)

The decision of the ALJ thus stands as the final decision of the

Commissioner. See Sims v. Apfel, 530 U.S. 103, 107 (2000). Ballard filed this appeal on
November 15, 2011. [Doc. 1.] The Commissioner filed an Answer on January 31, 2012. [Doc.
14.] Ballard filed a Brief in Support of his Complaint on March 1, 2012. [Doc. 16.] The
Commissioner filed a Brief in Support of the Answer on May 1, 2012. [Doc. 19.]
The Court has reviewed the parties’ briefs, the ALJ decision, the record including the
hearing transcript and medical documentary evidence. The complete set of facts and arguments
are presented in the parties’ briefs and are repeated here only to the extent necessary.
II.

Standard of Review
The Social Security Act defines disability as an “inability to engage in any substantial

gainful activity by reason of any medically determinable physical or mental impairment which
can be expected to result in death or has lasted or can be expected to last for a continuous period
of not less than 12 months.” 42 U.S.C. § 416(i)(1)(A), 42 U.S.C. § 423(d)(1)(A).
The Social Security Administration uses a five-step analysis to determine whether a
claimant seeking disability benefits is in fact disabled.

20 C.F.R. §§ 404.1520(a)(1),

416.920(a)(1). First, the claimant must not be engaged in substantial gainful activity. 20 C.F.R.
§§ 404.1520(a)(4)(i), 416.920(a)(4)(i). Second, the claimant must establish that he or she has an
impairment or combination of impairments that significantly limits his or her ability to perform

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basic work activities. 20 C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). Third, the claimant
must establish that his or her impairment meets or equals an impairment listed in the appendix to
the applicable regulations. 20 C.F.R. §§ 404.1520(a)(4)(iii), 416.920(a)(iii).
Fourth, the claimant must establish that the impairment prevents him or her from doing
past relevant work. 20 C.F.R. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). At step five, the burden
shifts to the Commissioner to establish that the claimant maintains the residual functional
capacity to perform a significant number of jobs in the national economy. Singh v. Apfel, 222
F.3d 448, 451 (8th Cir. 2000). If the claimant satisfies all of the criteria under the five-step
evaluation, the ALJ will find the claimant to be disabled. 20 C.F.R. §§ 404.1520(a)(4)(v),
416.920(a)(4)(v).
This Court reviews decisions of the ALJ to determine whether the decision is supported
by substantial evidence in the record as a whole. 42 U.S.C. § 405(g). Substantial evidence is
less than a preponderance, but enough that a reasonable mind would find adequate support for
the ALJ’s decision. Smith v. Shalala, 31 F.3d 715, 717 (8th Cir. 1994). Therefore, even if this
Court finds that there is a preponderance of evidence against the weight of the ALJ’s decision,
the decision must be affirmed if it is supported by substantial evidence. Clark v. Heckler, 733
F.2d 65, 68 (8th Cir. 1984). An administrative decision is not subject to reversal simply because
some evidence may support the opposite conclusion. Gwathney v. Chater, 1043, 1045 (8th Cir.
1997).
To determine whether the ALJ’s final decision is supported by substantial evidence, the
Court is required to review the administrative record as a whole to consider:
(1) The findings of credibility made by the ALJ;
(2) The education, background, work history, and age of the
claimant;
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(3) The medical evidence given by the claimant’s treating
physician;
(4) The subjective complaints of pain and description of the
claimant’s physical activity and impairment;
(5) The corroboration by third parties of the claimant’s
physical impairment;
(6) The testimony of vocational experts based upon prior
hypothetical questions which fairly set forth the claimant’s
physical impairment; and
(7) The testimony of consulting physicians
Brand v. Sec’y of Dept. of Health, Educ. & Welfare, 623 F.2d 523, 527 (8th Cir. 1980).
III.

Decision of the ALJ
Utilizing the five step analysis, the ALJ determined in the first step that Ballard met the

insured status requirements of the Social Security Act through December 31, 2011 and she had
not engaged in substantial gainful activity since January 1, 2007, the alleged onset date of
disability. (Tr. 13.) In step two, the ALJ found that Ballard had the severe impairments of
insulin dependent diabetes with retinopathy, hypertension, gastroesophageal reflux disease
(“GERD”), hypothyroidism, allergic rhinitis, a history of mastectomy, and obstructive sleep
apnea. (Tr. 13.) In step three, he determined that Ballard did not have an impairment or
combination of impairments that meet or medically equal one of the listed impairments in 20
CFR Part 404, Subpart P, Appendix 1. (Tr. 14.) In step four, the ALJ found that Ballard had the
residual functional capacity (“RFC”) to perform a limited range of medium work and was
capable of performing her past relevant work as cleaner-personal attendant. (Tr. 14, 18.) The
ALJ then concluded that Ballard has not been under a disability, as defined in the Social Security
Act from January 1, 2007 through the date of the ALJ’s decision. (Tr. 19.)

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IV.

Discussion
Ballard asserts three errors for review. First, Ballard asserts that the ALJ failed to

provide a legible copy of the medical expert’s answers to interrogatories as requested by her
counsel. Second, Ballard asserts that the ALJ erred in finding that her impairments do not meet
Listing 3.02(A). Third, Ballard asserts that the ALJ failed to mention her obesity in the decision
or the possible functional limitations it may cause.
A.

Medical Expert Report

Ballard contends that the ALJ erroneously failed to provide legible copies of medical
expert Dr. John Vorhies, Jr.’s interrogatories submitted after the hearing, which resulted in an
unfavorable decision based on Dr. Vorhies’ incomplete, incorrect, and untested opinions.
Ballard claims that it is unclear if the ALJ could read Dr. Vorhies’ handwriting as the ALJ did
not “cite” to the illegible portions of the transcript. Also, Ballard states that it is unclear if Dr.
Vorhies even received a copy of her blood sugar logs.
Dr. Vorhies testified at the administrative hearing. (Tr. 33-55.) At the hearing, Plaintiff
requested and received a two-week extension of time to submit additional evidence to the ALJ
for review. (Tr. 55-56, 97.) The ALJ also subsequently provided Dr. Vorhies with updated
medical records and interrogatories.

(Tr. 38-39, 931.)

Dr. Vorhies responded to the

interrogatories and the ALJ forwarded them to Ballard’s counsel.

(Tr. 253-54.)

In

correspondence to Ballard’s counsel, the ALJ gave Ballard the following options: (1) respond to
the interrogatories in writing, (2) provide a written statement regarding the facts and law and any
additional records for consideration, (3) request a supplemental hearing, and (4) request a
subpoena. (Tr. 253-54.) Ballard responded to the ALJ’s letter by asking that the ALJ order Dr.

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Vorhies to submit a typed copy of the interrogatory answers. Ballard did not request any of the
options provided to her by the ALJ.
Based on the Court’s review of the evidence, the ALJ did not err in failing to require Dr.
Vorhies to type his notes. Dr. Vorhies’ medical interrogatories are legible. (Tr. 936-938.)
Furthermore, if Ballard had requested a supplemental hearing, Dr. Vorhies’ testimony would
have confirmed whether he reviewed her blood sugar logs and assisted Ballard with deciphering
his hand writing. There is no evidence other than Ballard’s speculation that the ALJ could not
read Dr. Vorhies’ notes. Finally, Ballard states that HALLEX I-2-5-28 requires the ALJ to
disclose evidence obtained after the hearing.

HALLEX provides procedural guidance for

processing and adjudicating claims at the hearing and Appeals Council level. The Eighth Circuit
has not specifically ruled on the effect of a violation of HALLEX and it does not have the force
of law in this circuit. Ellis v. Astrue, No. 4:07-CV-1031 AGF, 2008 WL 4449452 at *15-16
(E.D. Mo. Sept. 25, 2008). Moreover, even if HALLEX were considered, Ballard’s argument
still lacks merit as the ALJ gave Ballard the opportunity to review and comment on the evidence
and to request a supplemental hearing as the HALLEX procedure requires. Therefore, the Court
finds that the ALJ did not err in failing to requiring Dr. Vorhies to type his answers to the ALJ’s
interrogatories.
B.

Listing 3.02

Next, Ballard contends that the ALJ committed reversible error in finding that her
impairments do not meet Listing 3.02(A). The listing of impairments in Appendix 1 describes
for each of the major body systems impairments considered to be severe enough to prevent an
individual from doing any gainful activity, regardless of his or her age, education, or work
experience. 20 C.F.R. § 404.1525(a). Merely being diagnosed with a condition named in a

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listing and meeting some of the criteria will not qualify a claimant for presumptive disability
under the listing.”

McCoy v. Astrue, 648 F.3d 605, 611-12 (8th Cir. 2011); 20 C.F.R.

§ 404.1525(d) (An impairment cannot meet a listing based solely on a diagnosis). “For a
claimant to show that his impairment matches a listing, it must meet all of the specified medical
criteria.” Jones v. Astrue, 619 F.3d 963, 969 (8th Cir. 2010) (emphasis in original). “An
impairment that manifests only some of those criteria, no matter how severely, does not qualify.”
Sullivan v. Zebley, 493 U.S. 521, 529-30 (1990) (superseded by statute on other grounds). “The
claimant has the burden of proving that her impairment meets or equals a listing.” Carlson v.
Astrue, 604 F.3d 589, 593 (8th Cir. 2010).
Listing 3.02 requires chronic obstructive pulmonary disease (“COPD”), due to any cause
with the FEV12 equal to or lesser than 1.15 liters for a person less than 60 inches tall in height
without shoes. Ballard is 59 inches tall. (Tr. 54, 561.) On June 10, 2009, Ballard had a
pulmonary function test that showed she had a one-second FEV1 equal to or less than 1.00 liters.
(Tr. 560.) Ballard has not been diagnosed with COPD. She has been diagnosed with obstructive
airways disease and severe diffusion defect. (Tr. 561.) Dr. Vorhies opined that the June 10th
pulmonary test results were not valid because Ballard was coughing due to allergic rhinitis, postnasal drip, and acid reflux. (Tr. 937.)
The Court finds that the ALJ’s determination that Ballard’s impairment did not meet or
medically equal a listing were supported by substantial evidence. Ballard does not meet the
criteria required in the listing.

She has not been diagnosed with COPD and Dr. Vorhies

discounted the accuracy of the results of her pulmonary function test. Ballard has the burden of
proof. Ballard did not seek clarification from Dr. Vorhies regarding why he believed the test was

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FEV is the “abbreviation for forced expiratory volume, with a subscript indicating time interval in seconds.
Stedman’s Medical Dictionary 658 (27th ed. 2000).

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invalid nor did she submit additional medical evidence that would show a valid test result.
Therefore, the Court finds that the ALJ did not err in his determination that Ballard’s
impairments did not meet or medically equal a listing.
C.

Credibility Determination

Ballard asserts that the ALJ relied upon the “highly questionable” evidence from Dr.
Vorhies to discredit Plaintiff, failed to consider statements provided by Ballard’s sister and
brother-in-law, and failed to consider the difficulty of figuring out the American diabetic diet.
In considering subjective complaints, the ALJ must fully consider all of the evidence
presented, including the claimant’s prior work record, and observations by third parties and
treating examining physicians relating to such matters as:
(1) The claimant’s daily activities;
(2) The subjective evidence of the duration, frequency, and intensity of the claimant’s
pain;
(3) Any precipitating or aggravating factors;
(4) The dosage, effectiveness, and side effects of any medication; and
(5) The claimant’s functional restrictions.
Polaski v. Heckler, 725 F.2d 1320, 1322 (8th Cir. 1984). It is not enough that the record contains
inconsistencies; the ALJ is required to specifically express that he or she considered all of the
evidence. Id. “Although required to develop the record fully and fairly, an ALJ is not required
to discuss every piece of evidence submitted.” Wildman v. Astrue, 596 F.3d 959, 966 (quoting
Black v. Apfel, 143 F.3d 383, 386 (8th Cir. 1998)). “Moreover, an ALJ’s failure to cite specific
evidence does not indicate that such evidence was not considered.” Id. (highly unlikely that ALJ
did not consider and reject physician’s opinion when ALJ made specific references to other
findings set forth in physician’s notes).

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In this case, the ALJ determined that Ballard’s statements regarding her symptoms were
not as limiting as she alleged. (16-18.) The ALJ’s determination details Ballard’s treatment
records from Dr. Sohal finding that Ballard’s chronic cough could stem from multiple causes
including asthma, allergies, post-nasal drip and uncontrolled reflux. (Tr. 17, 496.) The ALJ also
noted that the record did not indicate any pulmonary infiltrates, no loss of range of motion, and
no loss of grip strength. (Tr. 17.) He noted that the record showed that Ballard’s gait was stable,
she did not experience medication side effects that would diminish her RFC, and her activities of
daily living were not eroded to the extent that she would be precluded from all work activity.
(Tr. 17.) The ALJ also referred to Dr. Vorhies’ testimony and interrogatory answers that opined
that Ballard’s hypertension, hypothyroidism, retinopathy, and obstructive sleep apnea all
responded to treatment. (Tr. 17.) The Court finds that the ALJ properly evaluated Ballard’s
subjective complaints against the evidence in the voluminous medical record and substantial
evidence supports the credibility determination.
The ALJ is required to carefully consider any information submitted by a claimant about
her symptoms, including observations by other persons. 20 C.F.R. § 404.1529(c)(3). Although
the ALJ did not expressly, address the statements from Ballard’s sister and brother-in-law, the
error does not require remand. See Buckner v. Astrue, 646 F.3d 549, 559-60 (8th Cir. 2011).
Because the same evidence that the ALJ referred to in discrediting Ballard’s claims also
discredits these third-party statements, the error did not have a bearing on the outcome of this
case and therefore, remand is not required. Id. at 560.
D.

Obesity

Finally, Ballard contends that the ALJ failed to properly evaluate the severity of her
obesity or the functional limitations it may cause. An ALJ is required to consider obesity’s

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effects when evaluating disability. SSR 02-1p, 2002 WL 34686281 at *6 (Sept. 12, 2002). It is
not reversible error, however, for the ALJ’s opinion to omit specific discussion of obesity when
neither the medical records nor Ballard’s testimony demonstrates that her obesity results in
additional work-related limitations. See McNamara v. Astrue, 590 F.3d 607, 612 (8th Cir. 2010).
Ballard gives a detailed description of the potential effects obesity may have on work related
functions, but fails to cite to any evidence that those functional limitations are applicable to her
case. Therefore, the Court finds that the ALJ’s error in omitting discussion of Ballard’s obesity
is not reversible on review.
Accordingly,
IT IS HEREBY ORDERED that the relief which Ballard seeks in her Complaint and
Brief in Support of Plaintiff’s Complaint is DENIED. [Docs. 1,16.]
IT IS FURTHER ORDERED that the Court will enter a separate judgment in favor of
the Commissioner.
IT IS FURTHER ORDERED that the Clerk of Court shall substitute Carolyn W.
Colvin for Michael J. Astrue in the court record of this case.
Dated this 30th day of September, 2013.
/s/ Nannette A. Baker
.
NANNETTE A. BAKER
UNITED STATES MAGISTRATE JUDGE

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