Grogan v. Barnhart

• Decision Date: 01 March 2005
• Docket Number: No. 04-6022.,04-6022.
• Citation: 399 F.3d 1257
• Parties: Alvin A. GROGAN, Plaintiff-Appellant, v. Jo Anne B. BARNHART, Commissioner of the Social Security Administration, Defendant-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

399 F.3d 1257

Alvin A. GROGAN, Plaintiff-Appellant, v. Jo Anne B. BARNHART, Commissioner of the Social Security Administration, Defendant-Appellee.

No. 04-6022.

United States Court of Appeals, Tenth Circuit.

March 1, 2005.

COPYRIGHT MATERIAL OMITTED

Gayle L. Troutman of Troutman & Troutman, P.C., Tulsa, OK, for Plaintiff-Appellant.

Robert G. McCampbell, United States Attorney; Tina M. Waddell, Regional Chief Counsel; Michael McGaughran, Deputy Regional Chief Counsel; Virginia Watson, Assistant Regional Counsel, Office of the General Counsel, Region VI, Social Security Administration, Dallas, TX, for Defendant-Appellee.

Before LUCERO, McKAY, and PORFILIO, Circuit Judges.

McKAY, Circuit Judge.

Petitioner Alvin A. Grogan appeals from an order of the district court affirming the Commissioner's decision to deny his application for Social Security disability. Grogan had only a small window of time during which he was insured under the Social Security system, and the Commissioner maintains that most of Grogan's evidence regarding disability fell outside of that window. Grogan does not challenge that this is the appropriate window, but argues that his disabilities sufficiently manifest themselves within the window to qualify him for benefits. We have jurisdiction over this appeal under 42 U.S.C. § 405(g) and 42 U.S.C. § 1291. Because the agency was required to consider evidence of Grogan's disabilities if they manifested themselves inside his insurance window, and because Grogan properly presented evidence, which the agency failed to consider, that his slipped vertebra and his mental impairments manifested themselves as disabilities before the end of his window, we reverse and remand for the Commissioner to re-evaluate the award of benefits to Grogan.¹

Background

The procedural history of this case is unusual, and we document it here to note how long — and how many times — Grogan's case for social security benefits has been under consideration by the agency. Grogan filed his first application for disability benefits on October 2, 1992, alleging that he had become disabled due to a spinal condition, a stroke, a heart condition, and high blood pressure as of March 1, 1990. On November 18, 1992, that claim was denied, and Grogan did not pursue it.

Grogan filed his second claim for disability benefits on December 19, 1994, again alleging that he had become disabled on March 1, 1990. His claim was denied by the agency initially, and on reconsideration, because the agency contended both that Grogan's income was too high and that he had withdrawn his application. Grogan requested a hearing and that the agency consider his medical and financial records from the Veterans' Administration. On September 19, 1996, an Administrate Law Judge (ALJ) rejected Grogan's renewed application for benefits because he found that Grogan had not established good cause to reopen his case.

Grogan filed his third application for disability benefits on December 8, 1997, alleging, as had his previous two applications, that he had become disabled on March 1, 1990. On January 12, 1999, an ALJ found that Grogan had presented no new and material evidence of disability to reopen his case beyond the 1994 application that had already been denied. Grogan filed a request for review, won reconsideration on appeal, and the case was remanded to an ALJ for specific determination whether Grogan had been disabled during the critical period from March 1, 1990, until his social security insurance expired on March 31, 1991.

On August 31, 2001, an ALJ held a hearing on this issue. Grogan was represented by counsel, and he appeared to testify; Harold Goldman, M.D., appeared as a medical expert; and a vocational expert was available had the ALJ decided that his opinion had been necessary. In his original application, Grogan had alleged that he was disabled due to a spinal condition, a stroke, a heart condition, and high blood pressure as of March 1, 1990. Disability was defined as "the inability to do any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months." 20 C.F.R. § 416.905.

In a decision dated September 25, 2001, the ALJ determined that Grogan was not disabled because, in the window that could be considered, Grogan had only an impairment in his back, and his impairment had not been severe. To be severe, an impairment must "significantly limit an individual's physical or mental ability to do basic work activities." 20 C.F.R. § 404.1521. The ALJ's decision did not treat Grogan's testimony at his hearing in much depth, nor did it engage Grogan's argument that, on the basis of the same medical evidence, the Veterans' Administration had found him to be significantly disabled from a slipped vertebra before the end of his insurance window with the Social Security Administration. The ALJ opined that Grogan's limited ability to function during 1990-91 was due to his illegal drug use, and the ALJ dismissed Grogan's application for benefits at step two of the five-step process. The Appeals Council affirmed, and the ALJ's decision became the final decision of the Commissioner.

Standard of Review and Analysis

Although the agency's decision not to reopen a claimant's application for benefits is discretionary and therefore not subject to judicial review under § 405(g), Brown v. Sullivan, 912 F.2d 1194, 1196 (10th Cir.1990), once the agency reopens an application for benefits, it assumes the responsibility to adjudicate a claimant's case properly. See Byam v. Barnhart, 336 F.3d 172, 180-81 (2d Cir.2003) (recognizing jurisdiction to review the Commissioner's procedure after the agency reopens an application for benefits); Cash v. Barnhart, 327 F.3d 1252, 1256 (11th Cir.2003) (same); Hereden v. Apfel, 185 F.3d 874 (Table), 1999 WL 401711, **4 (10th Cir. June 18, 1999) (unpublished decision) (reversing and remanding the Commissioner's decision after reopening). Grogan's disability insurance expired on March 31, 1991, but he would be entitled to social security benefits if he demonstrated that he became disabled before that date. 20 C.F.R. § 404.130.

An ALJ is required to follow a five-step sequential evaluation process to determine whether a claimant is disabled. Williams v. Bowen, 844 F.2d 748, 750-52 (10th Cir.1988). The claimant bears the burden of establishing a prima facie case of disability at steps one through four. See id. at 751 & n. 2. At step one, the claimant must show "that he is not presently engaged in substantial gainful activity;" at step two "that he has a medically severe impairment or combination of impairments;" at step three that the impairment is equivalent to a listed impairment; and, at step four, "that the impairment or combination of impairments prevents him from performing his past work." Id. at 750-52. If the claimant successfully meets his burden, the burden of proof shifts to the Commissioner at step five to show that the claimant retains sufficient residual functional capacity (RFC) to perform work in the national economy, given his age, education, and work experience. See id. at 751 & n. 2.

The standard of review in a Social Security appeal is whether the Commissioner's final decision is supported by substantial evidence, and whether she applied the correct legal standards. Hamilton v. Sec'y of Health and Human Servs., 961 F.2d 1495, 1497-98 (10th Cir.1992). Substantial evidence is more than a mere scintilla and is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Glass v. Shalala, 43 F.3d 1392, 1395 (10th Cir.1994). "Evidence is not substantial if it is overwhelmed by other evidence in the record or constitutes mere conclusion." Musgrave v. Sullivan, 966 F.2d 1371, 1374 (10th Cir.1992). Moreover, "all the ALJ's required findings must be supported by substantial evidence," Haddock v. Apfel, 196 F.3d 1084, 1088 (10th Cir.1999), and he must consider all relevant medical evidence in making those findings, Baker v. Bowen, 886 F.2d 289, 291 (10th Cir.1989). Therefore, "in addition to discussing the evidence supporting his decision, the ALJ must discuss the uncontroverted evidence he chooses not to rely upon, as well as significantly probative evidence he rejects." Clifton v. Chater, 79 F.3d 1007, 1010 (10th Cir.1996). Although we do not reweigh the evidence or try the issues de novo, Sisco v. United States Dep't of Health and Human Servs., 10 F.3d 739, 741 (10th Cir.1993), we meticulously examine the record as a whole, including anything that may undercut or detract from the ALJ's findings in order to determine if the substantiality test has been met. Washington v. Shalala, 37 F.3d 1437, 1439 (10th Cir.1994).

Grogan makes three arguments for reversal in his brief. He argues that the ALJ erred because (1) he did not find that Grogan's alleged radiculopathy² was severe before the insurance window closed; (2) the ALJ failed to recognize that the VA had found Grogan to be significantly disabled from the time that Grogan entered the hospital on March 25, 1991; and (3) the ALJ did not properly weigh the medical expert's testimony and other evidence that Grogan was manifesting symptoms of serious post-traumatic stress disorder before the end of the insurance window in 1991. We agree with Grogan's last two arguments, and we reverse and remand for reconsideration of that evidence.

Initially, we address Grogan's first argument that the ALJ erred because he did not find that Grogan's radiculopathy was severe before the insurance window closed. Grogan's argument fails here because the evidence he cites documenting his radiculopathy as particularly severe appeared after the window in which Grogan was insured. The ALJ acknowledged that Grogan had a possible diagnosis of radiculopathy before he was discharged from the...