Henry v. Social Security Administration, Commissioner

Filing 11

MEMORANDUM OPINION. Signed by Judge Abdul K Kallon on 08/31/12. (CVA)

FILED
2012 Aug-31 PM 02:27
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
NORTHEASTERN DIVISION
ZACHERY D. HENRY,
Plaintiff,
vs.
MICHAEL J. ASTRUE,
COMMISSIONER OF SOCIAL
SECURITY
ADMINISTRATION,
Defendant.

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Civil Action Number
5:11-cv-2267-AKK

MEMORANDUM OPINION
Plaintiff Zachery D. Henry (“Henry”) brings this action pursuant to Section
205(g) of the Social Security Act (“the Act”), 42 U.S.C. § 405(g), seeking review
of the final adverse decision of the Commissioner of the Social Security
Administration (“SSA”). This court finds that the Administrative Law Judge’s
(“ALJ”) decision - which has become the decision of the Commissioner - is
supported by substantial evidence and, therefore, AFFIRMS the decision denying
benefits.
I. Procedural History
Henry filed his application for Title XVI Supplemental Security Income on

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October 19, 2007, (R. 65), alleging a disability onset date of October 17, 2007, (R.
41). Henry alleges that he is unable to work due to “depression, nerves, hears and
sees things, [and] cannot write [because of] nerves.” (R. 105). After the SSA
denied his application on December 12, 2007, (R. 67), Henry requested a hearing,
(R. 72). At the time of the hearing on August 14, 2009, (R. 36), Henry was 21
years old, (R. 40), had a tenth grade education, (R. 42), and past relevant work that
included heavy, skilled work as a concrete finisher, (R. 25, 58), light, unskilled
work as a fast food worker, (R. 58), and very heavy, unskilled work as a
construction worker, id. Henry has not engaged in substantial gainful activity
since October 19, 2007. (R. 18).
The ALJ denied Henry’s claims on September 10, 2009, (R. 13), which
became the final decision of the Commissioner when the Appeals Council refused
to grant review on April 27, 2011, (R. 1-5). Henry then filed this action pursuant
to section 1631 of the Act, 42 U.S.C. § 1383(c)(3). Doc. 1.
II. Standard of Review
The only issues before this court are whether the record contains substantial
evidence to sustain the ALJ’s decision, see 42 U.S.C. § 405(g); Walden v.
Schweiker, 672 F.2d 835, 838 (11th Cir. 1982), and whether the ALJ applied the
correct legal standards, see Lamb v. Bowen, 847 F.2d 698, 701 (11th Cir. 1988);
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Chester v. Bowen, 792 F.2d 129, 131 (11th Cir. 1986). Title 42 U.S.C. §§ 405(g)
and 1383(c) mandate that the Commissioner’s “factual findings are conclusive if
supported by ‘substantial evidence.’” Martin v. Sullivan, 894 F.2d 1520, 1529
(11th Cir. 1990). The district court may not reconsider the facts, reevaluate the
evidence, or substitute its judgment for that of the Commissioner; instead, it must
review the final decision as a whole and determine if the decision is “reasonable
and supported by substantial evidence.” See id. (citing Bloodsworth v. Heckler,
703 F.2d 1233, 1239 (11th Cir. 1983)).
Substantial evidence falls somewhere between a scintilla and a
preponderance of evidence; “[i]t is such relevant evidence as a reasonable person
would accept as adequate to support a conclusion.” Martin, 849 F.2d at 1529
(quoting Bloodsworth, 703 F.2d at 1239) (other citations omitted). If supported by
substantial evidence, the court must affirm the Commissioner’s factual findings
even if the preponderance of the evidence is against the Commissioner’s findings.
See Martin, 894 F.2d at 1529. While the court acknowledges that judicial review
of the ALJ’s findings is limited in scope, it notes that the review “does not yield
automatic affirmance.” Lamb, 847 F.2d at 701.
III. Statutory and Regulatory Framework
To qualify for disability benefits, a claimant must show “the inability to
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engage in any substantial gainful activity by reason of any medically determinable
physical or mental impairments 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
months.” 42 U.S.C. § 423(d)(1)(A); 42 U.S.C. § 416(I). A physical or mental
impairment is “an impairment that results from anatomical, physiological, or
psychological abnormalities which are demonstrated by medically acceptable
clinical and laboratory diagnostic techniques.” 42 U.S.C. § 423(d)(3).
Determination of disability under the Act requires a five step analysis. 20
C.F.R. § 404.1520(a)-(f). Specifically, the Commissioner must determine in
sequence:
(1)

whether the claimant is currently unemployed;

(2)

whether the claimant has a severe impairment;

(3)

whether the impairment meets or equals one listed by the Secretary;

(4)

whether the claimant is unable to perform his or her past work; and

(5)

whether the claimant is unable to perform any work in the national
economy.

McDaniel v. Bowen, 800 F.2d 1026, 1030 (11th Cir. 1986). “An affirmative
answer to any of the above questions leads either to the next question, or, on steps
three and five, to a finding of disability. A negative answer to any question, other

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than step three, leads to a determination of ‘not disabled.’” Id. at 1030 (citing 20
C.F.R. § 416.920(a)-(f)). “Once a finding is made that a claimant cannot return to
prior work the burden shifts to the Secretary to show other work the claimant can
do.” Foote v. Chater, 67 F.3d 1553, 1559 (11th Cir. 1995) (citation omitted).
IV. The ALJ’s Decision
The ALJ initially determined that Henry had not engaged in substantial
gainful activity since his alleged onset date, and therefore met Step One. (R. 18).
Next, the ALJ acknowledged that Henry’s severe impairments of adjustment
disorder with depression and personality disorder met Step Two. (R. 18). The
ALJ then proceeded to the next step and found that Henry did not satisfy Step
Three since he “does not have an impairment or combination of impairments that
meets or medically equals one of the listed impairments.” Id. Although the ALJ
answered Step Three in the negative, consistent with the law, see McDaniel, 800
F.2d at 1030, the ALJ proceeded to Step Four, where he determined that Henry
has the residual functional capacity [RFC] to perform a full range of
work at all exertional levels. He should be required to perform only
simple tasks, with no detailed or complex tasks, allowed to have all
customary work breaks, and should have only casual interaction with
others and non-confrontational supervision.
(R. 19). In light of Henry’s RFC, the ALJ held that Henry was “unable to perform
any past relevant work.” (R. 25). The ALJ then moved on to Step Five where he
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considered Henry’s age, education, experience, and RFC, and determined that
“jobs . . . exist in significant numbers in the national economy that [Henry] can
perform.” (R. 26). As a result, the ALJ answered Step Five in the negative, and
determined that Henry is not disabled. (R. 24-25); see also McDaniel, 800 F.2d at
1030. It is this finding that Henry challenges.
V. Analysis
Henry’s contention that the ALJ committed reversible error rests entirely on
treating physician Dr. Sultana Begum’s (“Dr. Begum”) treatment notes.
Specifically, Henry contends that the ALJ erred because he failed to “indicate a
[Global Assessment of Functioning (“GAF”)] score of 40 in October 2007 and
GAF of 50 in November 2007,”1 doc. 9 at 6, and to “properly conduct an impartial
evaluation of the evidence” because he “recorded only the GAF scores that would
indicate Plaintiff not to be disabled,” doc. 9 at 8.2 In other words, Henry contends
that Dr. Begum’s assessment of Henry’s GAF scores establishes conclusively that
1

Dr. Begum assessed Henry’s GAF score of 50 on December 7, 2007. (R. 335).

2

The American Psychiatric Association, Diagnostic and Statistical Manual of Mental
Disorders 32-34 (4th ed. 2000), presents the Global Assessment of Functioning (“GAF”) Scales,
which is widely used to score the severity of psychiatric illnesses. A GAF score of 40 indicates
“some impairments in reality testing (e.g., speech is at times illogical, obscure, or irrelevant) or
communication or major impairment in several areas such as work or school, family relations,
judgment, thinking, or mood (e.g., depressed man avoids friends, neglects family, and is unable
to work),” and 50 indicates “serious symptoms (e.g., suicidal ideation, severe obsessional rituals,
frequent shoplifting) or any serious impairment in social, occupational, or school functioning
(e.g., no friends, unable to keep a job).”
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Henry’s mental impairments are disabling.
In light of Henry’s contention, the court must obviously focus on Dr.
Begum’s opinion and diagnosis, but will review also other medical records as it
related to Henry’s mental impairments. In that regard, on October 31, 2007, Henry
visited the Mental Healthcare Cullman (“Mental Healthcare”) where Henry’s
intake diagnosis consisted of attention deficit hyperactivity disorder by history,
recurrent major depression disorder, and mild mental retardation. (R. 283).
Henry’s intake evaluation noted also that he had (1) minor problems related to
social withdrawal, somatic preoccupation, general physical health, appetite, anger,
and homicidal thoughts, (2) moderate problems regarding concentration, phobias,
delusions (100 voices talking together), hallucinations, judgment, insight, “fund”
of knowledge, memory, family, and peers, and (3) major problems related to
attention span, personal hygiene, paranoia, anxiety, depression, shaking, and sleep
disturbance. (R. 284). Dr. Begum diagnosed Henry with non-specific psychotic
disorder and assessed a GAF score of 40. (R. 340).
The next month, on November 20, 2007, Dr. Mary Arnold (“Dr. Arnold”)
completed a Psychological Evaluation and noted that Henry was alert and
oriented, can mentally calculate, repeat five digits forwards and backwards, count
backwards from 20, count by 7’s, name the months of the year, describe
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similarities between objects, speak fluidly, make eye contact, and responded
timely in the “usual range.” (R. 287). Dr. Arnold assessed Henry’s “fund” of
knowledge and determined that Henry can locate Brazil on a map, name current
and former Presidents of the United States, the governor, capitol cities, seasons,
directions, and two oceans, knew about with September 11 and the Iraq war, and
can identify Martin Luther King, Jr., Abraham Lincoln, Christopher Columbus,
and William Shakespeare. Id. Dr. Arnold found that Henry contributed to the
household and managed funds and that Henry presented his gasoline voucher at
the completion of the interview. (R. 289). Dr. Arnold diagnosed Henry with
adjustment disorder with depression, personality disorder, and assigned a GAF
score of 57.3 Id.
On December 7, 2007, Henry presented again to Mental Healthcare because
he was “seeing things.” (R. 334). Henry reported a fair appetite, low energy, poor
concentration, normal interests, and insomnia. (R. 335). Dr. Begum diagnosed
Henry with non-specific psychosis, “rule out schizophrenia,” paranoia, assigned a
GAF score of 50, and prescribed Zyprexa.4 Id.
3

A GAF score of 57 indicates “moderate symptoms (e.g., flat affect and circumstantial
speech, occasional panic attacks) or moderate difficulty in social, occupational, or school
functioning (e.g., few friends, conflicts with peers or co-workers).” The American Psychiatric
Association, Diagnostic and Statistical Manual of Mental Disorders 34 (4th ed. 2000).
4

Zyprexa is used to treat schizophrenia.
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Henry’s next visit to Mental Healthcare occurred on February 6, 2008,
during which Henry stated that he “is doing better than before,” and that his
medication “helps with quitting seeing and hearing things. I still see things but
not as bad.” (R. 331). Dr. Begum observed that Henry was “still depressed,” had
decreased paranoia, flat affect, normal appetite and sleep, and fair concentration
and energy. Id. Dr. Begum increased Henry’s Zyprexa and prescribed Prozac.5
(R. 332).
Dr. Begum evaluated Henry again on April 7, 2008, during which Henry
stated again that he is “still depressed” but that Prozac “helps some.” (R. 327).
Dr. Begum noted that Henry had a flat affect with no audio hallucinations and
decreased visual hallucinations. Id. Dr. Begum increased Henry’s Prozac, (R.
328), and scheduled Henry for a follow up evaluation in three months, (R. 327).
Three months later, Dr. Begum evaluated Henry on July 7, 2008, and noted
“increased anxiety,” shaking, “lots of family problems,” normal interests and
appetite, fair energy and concentration, and decreased audio and visual
hallucinations. (R. 319). Henry reported that he “will stay busy remodeling his
house and play[ing] with his new kitten as [a] coping strategy.” (R. 321). Dr.
Begum assessed Henry’s GAF score as 50-51, (R. 322), decreased Henry’s Prozac,
5

Prozac is used to treat depression.
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and prescribed Atarax,6 (R. 320).
Dr. Begum evaluated Henry again on July 18, 2008, for “real bad nerves all
the time.” (R. 316). Dr. Begum reported that Henry had normal interests,
appetite, and sleeping patterns, fair energy and concentration, and without audio or
visual hallucinations. Id. Dr. Begum instructed Henry to continue Prozac and
Zyprexa and prescribed a medication that is illegible. (R. 317).
Finally, Henry visited Dr. Begum on October 20, 2008, where Henry
reported “life is pretty good.” (R. 315). Dr. Begum noted that Henry had normal
interests, appetite, and sleep patterns, fair concentration, low energy, “not as
depressed” mood, and coherent thought process and content. Id.7
Based on this court’s review of the record, the ALJ committed no reversible
error by failing to include Henry’s GAF of 40 and 50. Although Henry is correct
that the ALJ failed to mention Henry’s October 2007 GAF score of 40 and
December 2007 GAF score of 50, the ALJ discussed in detail Henry’s school
records, (R. 21), and medical records from February 1990 through December
2008, (R. 21-23). Importantly, the ALJ thoroughly discussed Dr. Arnold’s
consultative examination on November 20, 2007, where Dr. Arnold assessed
6

Atarax is used to treat anxiety.

7

On December 18, 2008, Mental Healthcare terminated Henry because he moved to
Louisiana. (R. 313).
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Henry as having a GAF score of 57 just one month after Henry’s October 2007
GAF score of 40. (R. 23). Likewise, the ALJ reported Henry’s “GAF was noted
on July 7, 2008, [by Dr. Begum] as being estimated as 50-51, consistent with
moderate to serious symptoms such as inability to keep a job.” (R. 24). In other
words, the record does not support Henry’s contention that the ALJ considered
Henry’s GAF scores as “unimportant” by omitting the lowest and most remote
scores.
Moreover, the “Commissioner has declined to endorse the GAF scale for
‘use in the Social Security and SSI disability programs,’ and has indicated that
GAF scores have no ‘direct correlation to the severity requirements of the mental
disorders listings.” Wind v. Barnhard, 133 F. App’x 684, 692 n.5 (11th Cir.
2005). While an ALJ’s “failure to evaluate a GAF score can constitute reversible
error” when the claimant received repeatedly low GAF scores that indicate severe
impairments, see McCloud v. Barnhart, 166 F. App’x 410, 418 (11th Cir. 2006)
(remand warranted where the ALJ failed to consider claimant’s GAF score of 45
and GAF score of 48 just two days before claimant filed for disability benefits),
that is not the case here. In fact, here, even if the ALJ considered Henry’s GAF
score of 40 on October 31, 2007, Henry’s subsequent GAF scores of 57 on
November 20, 2007, 50 on December 7, 2007, and 50-51 on July 7, 2008, fail to
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demonstrate that Henry’s impairment remained severe and lasted the requisite
length of time. 20 C.F.R. § 416.905(a) (disability 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 last for a continuous period of
not less than 12 months.”). Indeed, Henry’s rise in GAF score is substantiated by
the 2008 treatment records where Henry reported decreased depression, and
overall improvement that included statements that “life is pretty good,” that he
plans to remodel his home, and that he has no audio or visual hallucinations. (R.
315, 316, 321, 331). Therefore, to the extent the ALJ erred by omitting Henry’s
single, most remote GAF score of 40, the error was harmless.8 As such, the ALJ’s
determination that Henry is not disabled is supported by substantial evidence.
VI. Conclusion
Based on the foregoing, the court concludes that the ALJ’s determination
that Henry is not disabled is supported by substantial evidence, and that the ALJ
applied proper legal standards in reaching this determination. Therefore, the
Commissioner’s final decision is AFFIRMED. A separate order in accordance
with the memorandum of decision will be entered.

8

The court finds also that the ALJ’s failure to consider Henry’s December 2007 GAF
score of 50 is harmless error because the ALJ considered the same score six months later in July
2008. (R. 24).
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Done the 31st day of August, 2012.

________________________________
ABDUL K. KALLON
UNITED STATES DISTRICT JUDGE

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