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Zavilla v. Astrue

October 16, 2009


The opinion of the court was delivered by: Judge Nora Barry Fischer



Plaintiff, Jack Zavilla, ("Plaintiff") brings this action pursuant to 42 U.S.C. § 405(g), seeking review of the final determination of the Commissioner of Social Security (the "Commissioner") denying his application for supplemental security income ("SSI") under Title XVI of the Social Security Act, 42 U.S.C. §§ 1614(a)(3)(A) (the "Act"). This matter comes before the Court on cross-motions for summary judgment filed by the parties pursuant to Rule 56 of the Federal Rules of Civil Procedure. (Docket Nos. 8, 10). The record has been developed at the administrative level.

This case presents a novel issue regarding whether a prior decision by the Commissioner, finding Plaintiff medically eligible for SSI, has an effect on his later application for benefits for a subsequent period of time. Plaintiff argues that he is entitled to SSI under the doctrine of res judicata or, alternatively, that this matter should be remanded to the Administrative Law Judge ("ALJ") for further consideration of that decision. The Commissioner maintains that the doctrine of res judicata is not applicable to facts of this case and that the decision of the ALJ should be affirmed as it is supported by substantial evidence in the administrative record. For the following reasons,the Court finds that the doctrine of res judicata is not applicable, but that a remand is necessary. Accordingly, the Commissioner's motion for summary judgment is denied, Plaintiff's motion for summary judgment is granted in part and denied in part, and the decision of the ALJ is vacated and this matter is remanded for further proceedings consistent with this opinion.


On January 14, 1998, Plaintiff protectively filed an application for SSI. (Docket No. 6 at 42) (Docket Nos. 6, 6-2, 6-3, 6-4 hereinafter, "R. at ___"). The Social Security Administration ("SSA") denied the claim initially. (R. at 45). The claim was also denied on reconsideration and by a decision of an unnamed administrative law judge dated June 24, 1999. (Id.). However, the Appeals Council remanded the case to another ALJ for further development of the administrative record. (R. at 45). (Id.). ALJ Robert Deitch issued an opinion on January 24, 2002, finding that Plaintiff met the medical requirements to receive SSI benefits but noted that Plaintiff was receiving Veterans' Benefits and directed SSA to determine whether this made Plaintiff ineligible for SSI due to excess resources.

(R. at 49, 50). Plaintiff never received SSI benefits because his eligibility was suspended due to excess resources and later terminated after twelve months of suspension. (R. at 19).

On January 17, 2006, Plaintiff protectively filed another application for SSI. (R. at 19). This claim was initially denied on July 26, 2006 because Plaintiff did not provide the requested information regarding his medical, educational, and work history and failed to attend consultative examinations scheduled for him by SSA without providing any reason for his absences. (R. at 57, 87, 90, 101).

Plaintiff then appealed the denial of benefits. A hearing was held before ALJ Lamar Davis on December 11, 2007, in Seven Fields, PA. (R. at 16). ALJ Davis issued an unfavorable decision on February 6, 2008. (R. at 571). On December 17, 2008, the Appeals Council denied Plaintiff's request for review, thereby making the ALJ's December 11, 2007 decision the final decision of the Commissioner. (R. at 4).

Plaintiff filed a Complaint regarding the denial of his 2006 claim in this Court on February 4, 2009. (Docket No. 3). The Commissioner filed an Answer on April 9, 2009. (Docket No. 5). Plaintiff filed a Motion for Summary Judgment on May 1, 2009. (Docket No. 8). In turn, the Commissioner filed a Motion for Summary Judgment on June 1, 2009. (Docket No. 10). Subsequently, the Court ordered the parties to file supplemental briefs regarding the recent decision of Diaz v. Commissioner of Social Sec., 577 F.3d 500 (3d Cir. 2009), as well as the authority cited therein, Rutherford v. Barnhart, 399 F.3d 546 (3d Cir. 2005). Plaintiff filed his supplemental brief on September 1, 2009 (Docket No. 14), and the Commissioner filed his supplemental brief on September 8, 2009 (Docket No. 15). Accordingly, this matter is now fully briefed and ripe for disposition.


When reviewing a decision denying SSI, the district court's role is limited to determining whether substantial evidence exists in the record to support the ALJ's findings of fact. Burns v. Barnhart, 312 F.3d 113, 118 (3d Cir. 2002). Substantial evidence is defined as "more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate." Ventura v. Shalala, 55 F.3d 900, 901 (3d Cir. 1995) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)). Additionally, a district court cannot conduct a de novo review of the Commissioner's determination, nor re-weigh the evidence of record. Hartranft v. Apfel, 181 F.3d 358, 360 (3d Cir. 1999). Rather, if the ALJ's findings of fact are supported by substantial evidence, they are conclusive. 42 U.S.C. § 405(g); Richardson, 402 U.S. at 390. In determining whether a finding is supported by substantial evidence, the district court must review the record as a whole. See 5 U.S.C. § 706; Schaudeck v. Commissioner of Social Security, 181 F.3d 429, 431 (3d Cir. 1999). A district court, however, "will not set the Commissioner's decision aside if it is supported by substantial evidence, even if [the district court] would have decided the factual inquiry differently" based on the evidence of record. Hartranft, 181 F.3d at 360.

Under the Act an individual is considered "disabled" when he or she is:

[unable] 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); 423(d)(1)(A); 20 C.F.R. § 404.1505. A person is "unable to engage in substantial gainful activity" when he: is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he applied for work.

42 U.S.C. § 423(d)(2)(A).

The SSA, acting pursuant to its rule making authority under 42 U.S.C. § 405(a), has promulgated a five-step sequential evaluation process to determine whether a claimant is "disabled" within the meaning of the Act. The United States Supreme Court summarized this process as follows:

If at any step a finding of disability or non-disability can be made, the SSA will not review the claim further. At the first step, the agency will find non-disability unless the claimant shows that he is not working at a "substantial gainful activity." [42 U.S.C.] §... 416.920(b). At step two, the SSA will find non-disability unless the claimant shows that he has a "severe impairment," defined as "any impairment or combination of impairments which significantly limits [the claimant's] physical or mental ability to do basic work activities."... § 416.920(c). At step three, the agency determines whether the impairment which enabled the claimant to survive step two is on the list of impairments presumed severe enough to render one disabled; if so, the claimant qualifies.... § 416.920(d). If the claimant's impairment is not on the list, the inquiry proceeds to step four, at which the SSA assesses whether the claimant can do his previous work; unless he shows that he cannot, he is determined not to be disabled. If the claimant survives the fourth stage, the fifth, and final, step requires the SSA to consider so-called "vocational factors" (the claimant's age, education, and past work experience), and to determine whether the claimant is capable of performing other jobs existing in significant numbers in the national economy. §§ 416.920(f), 416.960(c).

Barnhart v. Thomas, 540 U.S. 20, 24-5 (2003)(footnotes omitted).


A. 2002 Favorable Decision by ALJ Deitch on Plaintiff's 1998 Application*fn1 Plaintiff was issued a favorable decision on his 1998 application for SSI benefits on January 24, 2002. (R. at 45-50). ALJ Deitch concluded that Plaintiff had been under a disability, as defined in the Act, since the date of his application, January 14, 1998. (R. at 45, 49).

In his application of the five-step sequential evaluation process to determine disability, ALJ Deitch made the following determinations: (1) Plaintiff had not engaged in substantial gainful activity since January 14, 1998 (R. at 46); Plaintiff had several "severe" impairments, including: degenerative disc disease of the lumbar spine, residuals of a medial meniscectomy, an absent ACL of the left knee, a major depressive disorder, and a personality disorder (R. at 46); and, (3) Plaintiff did not have an impairment or combination of impairments that met or medically equaled one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1 (R. at 48). The ALJ concluded that Plaintiff had the following residual functional capacity ("RFC"):

The claimant's impairments prevent him from performing work requiring lifting or carrying more than 10 pounds frequently or 20 pounds occasionally, more than occasional balancing, stooping, kneeling, crouching, climbing, crawling, pushing/pulling with the lower extremities or climbing of stairs and ramps, any climbing of ladders, exposure to unprotected heights, hazardous moving equipment or extreme cold, interaction with the general public, more than minimal interaction with co-workers or peers, or carrying out and remembering more than very short, simple and routine job instructions. The claimant's impairments also require that the claimant be provided with an opportunity to alternate between periods of sitting and standing at intervals not exceeding one hour.

(R. at 49). The ALJ also found that Plaintiff could not return to his past relevant work and that transferability of job skills was not material. (R. at 49). Finally, the ALJ concluded that based upon Plaintiff's RFC and the vocational factors, there were no jobs existing in the national economy in significant numbers that Plaintiff could perform, hence, Plaintiff was disabled under the Act as of January 14, 1998. (R. at 49).

B. Plaintiff's 2006 Application for SSI Benefits

1. General Background

Plaintiff was born September 19, 1956. (R. at 28). Because Plaintiff was forty-nine (49) years old on the date he filed his 2006 application for SSI benefits, for decisional purposes, he was considered a "younger individual," creating a rebuttable presumption that Plaintiff would not have age-related difficulties adjusting to other work. (Id.); 20 C.F.R. § 416.963(c). However, ALJ Davis noted that Plaintiff, being 51 at the time of the hearing, was "closely approaching advanced age," which may indicate that Plaintiff is less able to adjust to other work. (R. at 28); see 20 C.F.R. § 416.963(d). Plaintiff is a high school graduate who did not participate in any special education classes, special job training, or trade or vocational school. (R. at 46, 91). He lives with his wife and son. (R. at 25, 74). When he applied, he had been working as seasonal help at the Post Office and said that he could not continue due to disability. (R. at 82).

2. Medical Background

Plaintiff's application alleges the following injuries, illnesses or conditions which limit his ability to work: injuries to his lower back and left knee as well as conditions of depression and anxiety. (R. at 82, 92). Upon receipt of Plaintiff's application, the SSA sought additional information regarding Plaintiff's ailments by scheduling him for consultative evaluations regarding both his physical and mental health. (R. at 110, 112-13). In fact, he was reminded to go to the exam.

(R. at 119). However, Plaintiff failed to attend the evaluations, scheduled for June 12, 2006, and June 21, 2006, without giving an explanation. (R. at 57, 109, 111). Plaintiff's application was initially denied for this reason. (R. at 59).

As a result, the record before ALJ Davis consisted of the following: (1) medical records covering the period from 3/27/95 to 9/26/05 from the Veterans Affairs Medical Center ("VAMC") in Butler; (2) progress notes covering the period from 3/27/95 to 12/7/05 by Dr. Ed Balestrino, a doctor of osteopathic medicine; (3) treatment records covering the period from 8/20/96 to 3/24/06 by Dr. Dennis R. Corbett, a chiropractor; (4) a psychiatric review technique form dated 6/23/06; (5) a medical statement dated 11/21/07 by Dr. Balestrino; and (6) medical records covering the period from 5/1/06 to 1/5/07 from Butler VAMC.*fn2 (R. at 2, 3).

a. Back Condition

With respect to Plaintiff's lower back condition, the record contains the following. Plaintiff began having non-radiating back pain in the 1970s. (R. at 247). On at least three occasions in the summer and fall of 1989, Plaintiff felt his back crack while trying to move a pallet on the floor at work. (R. ...

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