Cooper v. Social Security Administration, Commissioner

Filing 11

MEMORANDUM OPINION. Signed by Judge Virginia Emerson Hopkins on 5/15/2014. (JLC)

FILED
2014 May-15 PM 03:14
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
BRANDY RENEE COOPER,
Plaintiff,
v.
CAROLYN W. COLVIN, ACTING
COMMISSIONER, SOCIAL
SECURITY ADMINISTRATION,

)
)
)
)
) Case No.: 2:13-CV-843-VEH
)
)
)
)
)

Defendant.

MEMORANDUM OPINION1
INTRODUCTION
Plaintiff Brandy Renee Cooper brings this action under 42 U.S.C. § 405(g),
Section 205(g) of the Social Security Act. She seeks review of a final adverse
decision

of

the

Commissioner of

the Social

Security Administration

(“Commissioner”), who denied her application for Disability Insurance Benefits

1

Carolyn W. Colvin was named the Acting Commissioner on February 14, 2013. See
http://www.socialsecurity.gov/pressoffice/factsheets/colvin.htm (“On February 14, 2013, Carolyn
W. Colvin became the Acting Commissioner of Social Security.”) (last accessed on May 15,
2014). Under 42 U.S.C. § 405(g), “[a]ny action instituted in accordance with this subsection shall
survive notwithstanding any change in the person occupying the office of Commissioner of
Social Security or any vacancy in such office.” Accordingly, pursuant to 42 U.S.C. § 405(g) and
Rule 25(d) of the Federal Rules of Civil Procedure, the court has substituted Carolyn W. Colvin
for Michael Astrue in the case caption above and HEREBY DIRECTS the clerk to do the same
party substitution on CM/ECF.

(“DIB”) and Supplemental Security Income (“SSI”).2 Ms. Cooper timely pursued and
exhausted her administrative remedies available before the Commissioner. The case
is thus ripe for review under 42 U.S.C. § 405(g).3 For the following reasons, the court
REVERSES and REMANDS the Commissioner’s decision for further consideration
in accordance with this opinion.
STATEMENT OF THE CASE
Ms. Cooper was thirty years old at the time of her latest hearing before an
Administrative Law Judge (“ALJ”). Compare Tr. 21 with Tr. 421. She has completed
the seventh grade. Tr. 105. Her past work experience includes employment as a
telephone solicitor, waitress, and tax preparer. Tr. 105-06, 126. She claims she
became disabled on April 1, 2007, due to fatty liver disease and depression. Tr. 385.
Her last period of work ended on March 31, 2007. Id.
On February 4, 2008, Ms. Cooper protectively filed a Title II application for
a period of disability and DIB. Tr. 325-27. She also protectively filed a Title XVI
application for SSI on that date. Tr. 318-24. On May 5, 2008, the Commissioner

2

In general, the legal standards applied are the same regardless of whether a claimant
seeks DIB or SSI. However, separate, parallel statutes and regulations exist for DIB and SSI
claims. Therefore, citations in this opinion should be considered to refer to the appropriate
parallel provision as context dictates. The same applies to citations of statutes or regulations
found in quoted court decisions.
3

42 U.S.C. § 1383(c)(3) renders the judicial review provisions of 42 U.S.C. § 405(g) fully
applicable to claims for SSI.
2

initially denied these claims. Tr. 142. Ms. Cooper timely filed a written request for
a hearing on June 10, 2008. Id. The ALJ conducted a hearing on the matter on April,
22, 2010. Id. On May 27, 2010, he issued his opinion concluding Ms. Cooper was not
disabled and denying her benefits. Tr. 162.
She timely petitioned the Appeals Council to review the decision on June 16,
2010. Tr. 56. On March 7, 2011, the Appeals Council granted review, vacated the
hearing decision, and remanded the case to a new ALJ for resolution of certain issues.
Tr. 169-71. On remand, a new ALJ conducted a supplemental hearing on August 16,
2011. Tr. 21. On October 26, 2011, the new ALJ issued a decision finding Ms.
Cooper not disabled. Tr. 35. She petitioned the Appeals Council to review that
decision on November 9, 2011. Tr. 15. On March 4, 2013, the Appeals Council issued
a denial of review. Tr. 1.
Ms. Cooper filed a Complaint with this court on May 3, 2013, seeking review
of the Commissioner’s determination. Doc. 1. The Commissioner answered on
August 9, 2013. Doc. 6. Ms. Cooper filed a supporting brief (doc. 9) on September
12, 2013, and the Commissioner responded with her own (doc. 10) on October 23,
2013.
STANDARD OF REVIEW
The court’s review of the Commissioner’s decision is narrowly circumscribed.
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The function of this court is to determine whether the decision of the Commissioner
is supported by substantial evidence and whether proper legal standards were applied.
Richardson v. Perales, 402 U.S. 389, 390 (1971); Wilson v. Barnhart, 284 F.3d 1219,
1221 (11th Cir. 2002). This court must “scrutinize the record as a whole to determine
if the decision reached is reasonable and supported by substantial evidence.”
Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983). Substantial evidence
is “such relevant evidence as a reasonable person would accept as adequate to support
a conclusion.” Id. It is “more than a scintilla, but less than a preponderance.” Id.
This court must uphold factual findings that are supported by substantial
evidence. However, it reviews the ALJ’s legal conclusions de novo because no
presumption of validity attaches to the ALJ’s determination of the proper legal
standards to be applied. Davis v. Shalala, 985 F.2d 528, 531 (11th Cir. 1993). If the
court finds an error in the ALJ’s application of the law, or if the ALJ fails to provide
the court with sufficient reasoning for determining that the proper legal analysis has
been conducted, it must reverse the ALJ’s decision. Cornelius v. Sullivan, 936 F.2d
1143, 1145-46 (11th Cir. 1991).
STATUTORY AND REGULATORY FRAMEWORK
To qualify for disability benefits and establish his or her entitlement for a
period of disability, a claimant must be disabled as defined by the Social Security Act
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and the Regulations promulgated thereunder.4 The Regulations define “disabled” 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
twelve (12) months.” 20 C.F.R. § 404.1505(a). To establish an entitlement to
disability benefits, a claimant must provide evidence about a “physical or mental
impairment” that “must result from anatomical, physiological, or psychological
abnormalities which can be shown by medically acceptable clinical and laboratory
diagnostic techniques.” 20 C.F.R. § 404.1508.
The Regulations provide a five-step process for determining whether a claimant
is disabled. 20 C.F.R. § 404.1520(a)(4)(i-v). The Commissioner must determine in
sequence:
(1)

whether the claimant is currently employed;

(2)

whether the claimant has a severe impairment;

(3)

whether the claimant’s impairment meets or equals an impairment listed
by the Commissioner;

(4)

whether the claimant can perform his or her past work; and

(5)

whether the claimant is capable of performing any work in the national

4

The “Regulations” promulgated under the Social Security Act are listed in 20 C.F.R.
Parts 400 to 499, revised as of April 1, 2007.
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economy.
Pope v. Shalala, 998 F.2d 473, 477 (7th Cir. 1993) (citing to formerly applicable
C.F.R. section), overruled on other grounds by Johnson v. Apfel, 189 F.3d 561, 56263 (7th Cir. 1999); accord McDaniel v. Bowen, 800 F.2d 1026, 1030 (11th Cir. 1986).
The sequential analysis goes as follows:
Once the claimant has satisfied steps One and Two, she will automatically be
found disabled if she suffers from a listed impairment. If the claimant does not
have a listed impairment but cannot perform her work, the burden shifts to the
[Commissioner] to show that the claimant can perform some other job.
Pope, 998 F.2d at 477; accord Foote v. Chater, 67 F.3d 1553, 1559 (11th Cir. 1995).
The Commissioner must further show that such work exists in the national economy
in significant numbers. Id.
ALJ FINDINGS
After consideration of the entire record, the ALJ made the following findings:
1.

Ms. Cooper met the insured status requirements of the Social Security
Act through September 30, 2010.

2.

She had not engaged in substantial gainful activity since April 1, 2007,
the alleged disability onset date.

3.

She had the following severe impairments: diabetes mellitus, history of
fatty liver disease with gallbladder sludge, major depressive disorder,
posttraumatic stress, anxiety, insomnia, borderline intellectual
functioning, and headaches.

4.

She did not have an impairment or combination of impairments that met
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or medically equaled one of the listed impairments in 20 C.F.R. Part
404, Subpart P, Appendix 1.
5.

She had the residual functioning capacity (“RFC”) to perform light work
except she could lift and carry twenty pounds occasionally and ten
pounds frequently. She could stand/walk six hours in an eight-hour day
and sit eight hours in an eight-hour day. She could understand,
remember, and carry out short, simple instructions. She could remember
locations and work-like procedures and could maintain attention and
concentration sufficiently to complete simple one to two step tasks for
periods of at least two hours, without supervision or extra rest periods
in order to complete an eight-hour workday. She could maintain
occasional contact with co-workers, but no contact with the general
public.

6.

She was unable to perform any past relevant work.

7.

She was born on [date redacted], and was 26 years old, which is defined
as a younger individual age 18-49, on the alleged disability date.

8.

She had at least a high school education and was able to communicate
in English.

9.

Transferability of job skills was not material to the determination of
disability because using the Medical-Vocational Rules as a framework
supported a finding that she was “not disabled,” whether or not s/he had
transferable job skills.

10.

Considering her age, education, work experience, and residual
functioning capacity, there were jobs that existed in significant numbers
in the national economy that she could perform.

11.

Ms. Cooper had not been under a disability, as defined in the Social
Security Act, from April 1, 2007, through the date of this decision.

Tr. 24-35.

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DISCUSSION
I.

The ALJ Did Not Properly Assess Ms. Cooper’s Updated Medical Opinion
Evidence.
In its Remand Order, the Appeals Council faulted two aspects of the first ALJ

decision. The Council found that Ms. Cooper did not receive a “full and fair hearing”
because the ALJ improperly went off-record for 34 minutes to discuss the case with
the vocational expert without Ms. Cooper or her counsel present. Tr. 169. The
Council also concluded that the ALJ did not sufficiently justify his RFC
determination because the analysis did not adequately reflect limitations imposed by
Ms. Cooper’s major depressive disorder. Tr. 170. Accordingly, the Council instructed
the ALJ on remand to – among other actions – “obtain, if available, updated medical
evidence from the claimant’s treating sources.” Id.
The ALJ did so. The Council issued its Order on March 7, 2011. Tr. 171. The
ALJ conducted her supplemental hearing on August 16, 2011, and issued her decision
October 26 of that year. Tr. 21, 35. The record reflects that, before rendering her
decision, the ALJ had secured the office records relating to Ms. Cooper’s treatment
with the Eastside Mental Health Center in Birmingham, AL. Tr. 740-63. These
records concerned several therapeutic sessions Ms. Cooper had with various mental
health professionals at the Center between June 6, 2011, and July 19, 2011. Id. These

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records apparently constitute the only evidence of record evaluating Ms. Cooper’s
mental health after the Remand Order.
Two aspects of this evidence are material to the court’s determination here. On
June 6, 2011, Ronald Kendall, MSW, LCSW, of the Center completed an intake
evaluation form regarding Ms. Cooper. Tr. 757-62. In that form, Mr. Kendall
diagnosed Ms. Cooper with a Global Assessment of Functioning (GAF)5 Score of 50.
Tr. 761. According to the DSM-IV, a GAF of 50 indicates either (1) “serious
symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting)”
or (2) “any serious impairment in social, occupational, or school functioning (e.g., no
friends, unable to keep a job).” The Am. Psychiatric Assoc., Diagnostic and Statistical
Manual of Mental Disorders 32 (4th ed. 2000); accord Davis v. Astrue, 287 F. App'x
748, 758 (11th Cir. 2008) (unpublished) (per curiam) (“[A] GAF of 50 indicates
either serious symptoms or serious impairments in social, occupational, or school
functioning.”); McCloud v. Barnhart, 166 F. App'x 410, 418 (11th Cir. 2006)
(unpublished) (per curiam) (“[T]he ALJ erred when he labeled McCloud's 1998 GAF
score [of 45] as reflective of moderate symptoms. In fact, a GAF score of 41–50

5

The Global Assessment of Functioning, or GAF Scale, is a numeric scale that mental
health physicians and doctors use to rate the occupational, psychological, and social functioning
of adults. The Am. Psychiatric Assoc., Diagnostic and Statistical Manual of Mental Disorders 32
(4th ed. 2000).
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indicates severe impairments.”). Then, on July 19, 2011, Mary Barr – a licensed
therapist at the Center – confirmed this diagnosis. She also assigned Ms. Cooper a
GAF score of 50. Tr. 753.
In her opinion, the ALJ did not reference these dire diagnoses of Ms. Cooper’s
functional abilities. In fact, the ALJ only mentioned this evidence – at all – once in
the opinion. When justifying her assessment of Ms. Cooper’s RFC, the ALJ cited Ms.
Barr’s relatively mild evaluation of Ms. Cooper’s anxiety, sadness, sleep, energy, and
irritability after their July 19, 2011, session. Tr. 31 (citing Tr. 741). The ALJ also
cited Ms. Barr’s observation that Ms. Cooper was not (then) having any problems
with her panic attacks and concentration. Id. The ALJ deployed these observations
to reinforce her conclusion that Ms. Cooper had only mild to moderate limitations in
her basic mental health abilities. Id. However, the ALJ completely overlooked the
GAF scores that were assigned to Ms. Cooper during her treatment at the Eastside
Mental Health Center in the summer of 2011.
This was reversible error. An ALJ is of course free to discredit a given
claimant’s GAF score. He or she must, however, tailor their reasoning for doing so
to facts specific to that claimant – that is, with references to the claimant’s
appearance, activities, medical history, or other parts of the case record. See Davis,
287 F. App'x at 758; McLoud, 166 F. App'x at 418. The law does not permit an ALJ
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to disregard a GAF score without at least such a minimal, case-specific explanation.
This is particularly the case where, as here, the score suggests serious mental illness,
and the Appeals Council explicitly highlighted its concern over the limitations
imposed by Ms. Cooper’s psychological impairments.
The Eleventh Circuit’s decisions in Davis and McCloud reinforce this
conclusion. In Davis, the claimant’s treating psychiatrist had given her a GAF score
of 50 on several occasions. 287 F. App’x at 750-51. The ALJ decided to give this
opinion “no weight” because the physician’s treatment of the claimant was “sporadic”
and because he found the score inconsistent with the physician’s own treatment notes.
Id. The Eleventh Circuit decided that that the ALJ’s conclusion was unsupported by
substantial evidence for a few reasons. First, it determined that the ALJ had misread
the physician’s treatment notes. Id. at 758. Second, as noted above, the court observed
that “a GAF of 50 indicates either serious symptoms or serious impairments in social,
occupational, or school functioning.” Id. Because of this fact, it was not all that
inconsistent for the claimant’s psychiatrist to track her improvements while
maintaining her GAF score at 50. Id. The court reversed the ALJ’s decision for this
reason.6

6

The court also reversed the ALJ’s decision because it found that he had inappropriately
discredited the claimant’s subjective complaints of pain. Id. at 759-62.
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McCloud is perhaps even more germane to this case. There, the claimant had
entered a hospital to undergo treatment for depression, alcohol abuse, and posttraumatic stress disorder. 166 F. App’x at 413. At intake, the staff assigned her a GAF
of 30 for “poor insight and suicidal ideation.” Id. By the time of her discharge a week
later, however, her score was 45. Id. In reviewing this evidence, the ALJ noted the
improvement and concluded that the score of 45 was only “moderate.” Id. at 415. The
Eleventh Circuit reversed on several grounds, one of which was that the ALJ had
erred in his characterization of the claimant’s GAF score:
[T]he ALJ erred when he labeled McCloud's 1998 GAF score as reflective of
moderate symptoms. In fact, a GAF score of 41–50 indicates severe
impairments . . . We are unable to determine from the record what weight the
ALJ placed on the GAF score of 45; therefore, we reject the Commissioner's
argument that any error was harmless. With the knowledge that a GAF score
of 45 reflects severe impairments, the ALJ should determine what, if any,
weight to place on the score.
Id. at 418.
Both of these decisions were unpublished and therefore do not control the
court’s determination here. And, of course, neither case’s facts precisely conform to
the instant one. In both cases, however, the claimant (ultimately) had a GAF score
in the 41-50 range. And, in both cases, the Eleventh Circuit concluded that – at the
very least – the ALJ had to:
•

address the claimant’s GAF score;
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•

properly characterize the score under the DSM-IV; and

•

assign some weight designation to it (even if it were “no weight”).

This court is persuaded that these are the minimal obligations that an ALJ in this
Circuit must satisfy when confronting a claimant’s assigned GAF score – at least
when the score is as dire as it was here (and as it was in Davis and McCloud).
The Appeals Council in this case gave the ALJ on remand an ultimatum: she
must obtain updated treatment evidence concerning Ms. Cooper’s condition. The
Appeals Council particularly highlighted Ms. Cooper’s major depressive disorder and
the possible effect this condition placed on her RFC. The ALJ did secure updated
evidence – but treated it only minimally. She did not formally appraise the opinions
included in this evidence, including – most importantly – the drastic GAF scores Ms.
Cooper earned on more than one occasion. Given the severity of these scores, the ALJ
should have at least assigned the scores a weight designation that reflected her
consideration of the evidence before her. Because she did not, her decision must be
reversed and remanded.
CONCLUSION
Based upon the court’s evaluation of the evidence in the record and the parties’
submissions, the court finds that the Commissioner did not apply proper legal
standards in reaching her final decision. Accordingly, the decision will be reversed
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and remanded by separate order.
DONE and ORDERED this the 15th day of May, 2014.

VIRGINIA EMERSON HOPKINS
United States District Judge

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