Ball v. Astrue

Filing 15

OPINION. Signed by Judge James P. Jones on 7/26/12. (sc)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
ABINGDON DIVISION
)
)
)
)
)
)
)
)
)
)
)

JERRY D. BALL,
Plaintiff,
v.
MICHAEL J. ASTRUE,
COMMISSIONER OF
SOCIAL SECURITY,
Defendant.

Case No. 1:11CV00062
OPINION
By: James P. Jones
United States District Judge

Lewey K. Lee, Lee & Phipps, Wise, Virginia, for Plaintiff. Nora Koch,
Acting Regional Chief Counsel, Region III, Roxanne Andrews, Assistant Regional
Counsel, and Charles J. Kawas, Special Assistant United States Attorney, Office of
the General Counsel, Social Security Administration, Philadelphia, Pennsylvania,
for Defendant.
In this social security case, I vacate the final decision of the Commissioner
and remand the case for further consideration.

I
Plaintiff Jerry D. Ball filed this claim challenging the final decision of the
Commissioner of Social Security (the “Commissioner”) denying his claim for
disability insurance benefits (“DIB”) pursuant to Title II of the Social Security Act

(the “Act”), 42 U.S.C.A. § 401-433 (West 2011 & Supp. 2012). 1 Jurisdiction of
this court exists under 42 U.S.C.A. § 405(g).
Ball applied for benefits on July 31, 2009, alleging disability beginning on
January 1, 2006. His date last insured was December 31, 2007. Ball’s claims were
denied initially and upon reconsideration.

A hearing was held before an

administrative law judge (“ALJ”) on January 11, 2011. The ALJ issued a decision
denying benefits on January 26, 2011. Ball’s request for reconsideration by the
Social Security Administration’s Appeals Council was denied on June 21, 2011.
The ALJ’s decision thus became the final decision of the Commissioner. Ball then
filed this action seeking judicial review of the ALJ’s decision.
The parties have filed cross motions for summary judgment, which have
been briefed. The case is ripe for decision.

II
Ball was 48 years old at the time of the ALJ’s decision and thus was a
younger individual under the regulations. 20 C.F.R. § 404.1563(c) (2012). Ball
graduated from high school. His prior relevant work was as a farmer. Ball
claimed disability based on back and knee pain.
1

Ball initially filed claims for both DIB and supplemental security income
benefits (“SSI”) pursuant to Title XVI of the Act. Ball withdrew his claim for SSI at the
administrative hearing.
-2-

The record revealed that Ball had had problems with pain in his back from at
least 2003. In April 2006, MRI scans of the thoracic and lumbar spine showed a
normal thoracic spine and a large left L5-S1 herniated nucleus pulposus (“HNP”).
The lumbar spine was otherwise normal.
On April 17, 2006, Jim C. Brasfield, M.D., performed a left L5-S1 partial
hemilaminectomy and discectomy for the HNP. After the surgery, in May, Dr.
Brasfield reported that Ball was doing well. Ball was neurovascularly intact in the
lower extremities and there was no evidence of foot drop. Ball reported that his
pain was nothing like it was before but noted that he still had some minimal left leg
pain. Later that month, Ball continued to improve, reporting that his left leg pain
was significantly decreased and that he required only occasional narcotic pain
medication.
In September 2007, Ball experienced further problems with his back.
Medical records from Bristol Regional Medical Center include X rays of the
lumbar spine revealing mild disc space narrowing at the L5-S1 level and mild
degenerative changes.

An MRI scan of the lumbar spine showed multilevel

degenerative changes. At L5-S1 there was prominent disc protrusion and apparent
epidural scarring. Epidural scarring was also suggested at L4-L5 within the left L4
foramen with possible small disc extrusion into the foramen.

-3-

On September 19, 2007, Ball told Dr. Brasfield that he had been doing well
until about a month earlier. Then he experienced extreme leg pain in the L4 and
L5 distribution, pain in the groin area and pain going down the back of his leg, calf
and into his foot. All activities aggravated his symptoms and he had more pain
than before his previous surgical intervention. Dr. Brasfield observed that Ball had
weakness of dorsiflexion and plantar flexion on the left, a positive straight leg raise
on the left and negative straight leg raise on the right. On September 20, 2007, Dr.
Brasfield performed a left L4-5 partial hemilaminectomy, removal of disc fragment
material from the L4 disc, and removal of disc fragment material from the L5 disc.
Two weeks after the surgery, Ball reported that he was “doing excellent,”
that the pain in his left leg was resolving, and that he has improved dramatically.
(R. at 300.) Ball’s wife also noted that he was much improved. Dr. Brasfield
prescribed Lortab and recommended a walking regimen. He told Ball to avoid
heavy lifting and mowing the lawn. In November 2007, Dr. Brasfield noted that
Ball reported significantly decreased left leg pain since his September surgery and
that Ball still had minimal weakness with dorsiflexion and plantar flexion, “but
overall has significantly improved.” (R. at 299.) Dr. Brasfield noted that Ball
“owns a ranch, is a horseman avidly and that is his profession.” Id. Dr. Brasfield
further recommended that Ball “limit his lifting and risky activities regarding his
profession if possible.” Id.
-4-

Medical records from Willis Chiropractic Offices cover the period from May
1999 through November 2007. Ball was treated for low back, right shoulder, and
neck pain. X rays of the lumbar spine in 1999 showed a congenital anomaly of the
L5 segment with a right towering of the lumbar spine. X rays of the cervical and
thoracic spine in 2004 showed ankylosing hyperstotic bone formation at the C3
disc level, minute anterolateral osteophytic formation, lower cervical spine,
advanced uncovertebral hypertrophy with facet joint narrowing, subchondral
sclerosis and other bony proliferative changes, mid and lower cervical spine, and
intervertebral foramina encroachment at the C4-5, C5-6, and C6-7 levels. There
was also mild spondylosis in the thoracic spine. Cervical spine X rays in January
2007 showed Forestier’s disease with significant anterior ostephyte formation at
C3-4, which caused impingement on the esophagus and could produce dysphagia.
In September 2008, Ball presented to Timothy G. McGarry, M.D., an
orthopedist. Ball explained his history of back problems and complained “bitterly”
of pain, describing it in the lower portion of his back extending down his left leg.
Dr. McGarry found significant flattening of the normal lumbar lordosis, range of
motion approximately 40 percent of normal in all spectra, a “markedly” positive
straight leg raise at approximately 70 degrees on the left, and a negative
contralateral straight leg raise. (R. at 159.) Dr. McGarry diagnosed failed low

-5-

back syndrome and decided to give Ball an epidural steroid injection for the acute
inflammation and also prescribed Lortab.
From July 2009 through December 2009, Ball treated with Matthew W.
Wood, Jr., M.D., a neurosurgeon, for problems with his cervical spine. Dr. Wood
diagnosed acute C6 disc herniation, right upper extremity C7 radiculopathy, and
moderate cervical stenosis at the C6 region related to the disc hernation. In
October 2009, Ball underwent C5 anterior cervical diskectomy. Cervical spine
imaging that December showed moderate to severe degenerative changes at C3-4
with grade 1 C3 on C4 retrolisthesis that improved with flexion and appeared to
worsen slightly with extension.
In her decision, the ALJ noted that this was Ball’s second application for
social security benefits, the first having been denied on January 10, 2008. The ALJ
found that administrative res judicata applied to Ball’s present application and that
she would not re-open the earlier decision. However, considering only the medical
evidence prior to the claimant’s last insured date, the ALJ then proceeded through
the five steps of the disability analysis. The ALJ found that Ball had the severe
impairments of degenerative disc disease of the lumbar spine and a history of right
ankle fracture but that neither of these impairments met or medically equaled a
listed impairment. The ALJ found that Ball had the residual functional capacity to

-6-

perform light work with certain limitations and that he could perform jobs that
exist in significant numbers in the national economy and was not disabled.

III
A
The preliminary issue to be addressed is whether the ALJ properly denied
re-opening Ball’s earlier disability determination. Ball argues that the ALJ erred in
refusing to re-open his prior application for disability.

The Commissioner

contends that the ALJ was not required to re-open the earlier application under 20
C.F.R. §§ 404.987-989 (2012).
The ALJ stated administrative res judicata barred re-opening Ball’s prior
claim and stated that no new evidence had been submitted which would cause a
change in the earlier decision. An Article III court usually lacks the jurisdiction to
review the Commissioner’s decision not to re-open a claim. See Califano v.
Sanders, 430 U.S. 99, 105-08 (1977). However, jurisdiction to review exists
where, even though the Commissioner purports to deny re-opening the claim on
principles of res judicata, the record reveals that the merits of the claim have
actually been reconsidered. McGowen v. Harris, 666 F.2d 60, 65-66 (4th Cir.
1981).

-7-

In this case, despite claiming to deny Ball’s claim on res judicata grounds,
the ALJ clearly reached the merits of the claim. It is true that the Commissioner
must be given “some leeway” in determining whether res judicata applies such that
some investigation into the asserted factual and legal claims is appropriate. See
Hall v. Chater, 52 F.3d 518, 521 (4th Cir. 1995) (citing McGowen, 666 F.2d at
677). In this case, however, the ALJ’s decision was not a limited investigation of
Ball’s factual and legal claims to determine whether and to what extent they mirror
those brought in the earlier claim. Rather, the decision was a determination of
Ball’s disability claim in detail. The ALJ went through the five-step sequential
social security evaluation, carefully recited and assessed the medical evidence, and
reached conclusions at each step of the evaluation process. Thus, this court should
treat the ALJ’s decision as a re-opening of Ball’s prior disability claim and
consider the merits of the decision. See McGowen, 666 F.2d 65-66.
B
The plaintiff bears the burden of proving that he is under a disability.
Blalock v. Richardson, 483 F.2d 773, 775 (4th Cir. 1972). The standard for
disability is strict. The plaintiff must show that his “physical or mental impairment
or impairments are of such severity that he is not only unable to do his previous
work but cannot, considering his age, education, and work experience, engage in

-8-

any other kind of substantial gainful work which exists in the national economy . . .
.” 42 U.S.C.A. § 423(d)(2)(A).
In assessing disability claims, the Commissioner applies a five-step
sequential evaluation process. The Commissioner considers whether the claimant:
(1) has worked during the alleged period of disability; (2) has a severe impairment;
(3) has a condition that meets or medically equals the severity of a listed
impairment; (4) could return to his past relevant work; and (5) if not, whether he
could perform other work present in the national economy. See 20 C.F.R. §
404.1520(a)(4) (2012). If it is determined at any point in the five-step analysis that
the claimant is not disabled, the inquiry immediately ceases. Id. The fourth and
fifth steps of the inquiry require an assessment of the claimant’s RFC, which is
then compared with the physical and mental demands of the claimant’s past
relevant work and of other work present in the national economy. Id.; Johnson v.
Barnhart, 434 F.3d 650, 653-54 (4th Cir. 2005).
In accordance with the Act, I must uphold the Commissioner’s findings if
substantial evidence supports them and the findings were reached through
application of the correct legal standard. Craig v. Chater, 76 F.3d 585, 589 (4th
Cir. 1996). Substantial evidence means “such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.” Richardson v. Perales,
402 U.S. 389, 401 (1971) (internal quotation marks and citation omitted).
-9-

Substantial evidence is “more than a mere scintilla of evidence but may be
somewhat less than a preponderance.” Laws v. Celebrezze, 368 F.2d 640, 642 (4th
Cir. 1966). It is the role of the ALJ to resolve evidentiary conflicts, including
inconsistencies in the evidence. Seacrist v. Weinberger, 538 F.2d 1054, 1056-57
(4th Cir. 1976). It is not the role of this court to substitute its judgment for that of
the Commissioner. Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990).
Ball argues that the ALJ erred by failing to consider the medical evidence he
submitted which post-dated his date last insured.

This evidence includes the

records from Dr. McGarry and Dr. Wood. Ball also argues that the ALJ erred in
concluding that his back impairment did not meet or medically equal the
requirements of 20 C.F.R. pt. 404, subpt. P, app. 1, § 1.04A (2012).
The ALJ did not consider any medical records made after Ball’s date last
insured of December 31, 2007. (R. at 15.) This was in error. While it is true that
Ball must prove that he was disabled on or before the date last insured, the fact that
medical records are made after that date does not automatically render them
irrelevant to his disability determination.

As the Fourth Circuit stated in

Wooldridge v. Bowen, 816 F.2d 157, 160 (4th Cir. 1987), “[M]edical evaluations
made subsequent to the expiration of a claimant’s insured status are not
automatically barred from consideration and may be relevant to prove a previous
disability.”

The Wooldridge court cited several cases in support of this
-10-

proposition. In Cox v. Heckler, 770 F.2d 411, 413 (4th Cir. 1985), the court
remanded the case to consider post-insured status evidence because the record
demonstrated that the claimant had a progressively deteriorating lung disease
which may have reached a disabling degree by the time the insured status expired.
In Moore v. Finch, 418 F.2d 1224, 1226 (4th Cir. 1969), the court stated that it was
error not to consider post-insured status reports of medical evaluations as evidence
of possible earlier and progressive degeneration of the claimant’s psychoneurotic
anxiety.
The ALJ should have considered at least Dr. McGarry’s records regarding
Ball’s continuing and serious problems related to his lumbar spine in determining
both whether Ball’s impairment met the listing requirement and what Ball’s RFC
should be. Although Dr. McGarry’s records date from September 2008, they
indicate that Ball’s serious lower back problems had not been resolved in
December 2007, but rather continued to cause significant problems, including a a
“markedly” positive straight leg raise at approximately 70 degrees on the left. (R.
at 159.) In concluding that Ball’s condition did not meet or medically equal the
listing requirements, the ALJ relied on the evidence indicating in December 2007
that the surgeries on Ball’s back had successfully resolved his problems. The
evidence from Dr. McGarry undercuts that evidence to a point and should have

-11-

been considered by the ALJ. 2 Whether it actually leads to a determination that
Ball’s condition met or medically equaled a listing impairment is for the ALJ to
conclude, but she must consider all the relevant evidence.

IV
For the foregoing reasons, the final decision of the Commissioner will be
vacated and the case will be remanded for further administrative consideration in
accord with this opinion.
DATED: July 26, 2012
/s/ James P. Jones
United States District Judge

2

The evidence from Dr. Wood is less relevant. There is very little indication that
Ball was suffering from an impairment related to his cervical spine before his date last
insured. Although there was evidence of degeneration before 2007 from the chiropractic
record, Ball made no complaints regarding this issue during that time. It was not until
two years later that the cervical spine became a real issue. However, because there was
some evidence of cervical spine degeneration before the date last insured, the ALJ should
have at least addressed and explained the reasons for not considering the post-insured
evidence.
-12-