Nye v. Social Security Administration, Commissioner

Filing 13

MEMORANDUM OPINION. Signed by Judge Virginia Emerson Hopkins on 3/7/2016. (AVC)

FILED
2016 Mar-07 PM 02:57
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
NORTHEASTERN DIVISION
LAURA NYE,
Plaintiff,
v.
CAROLYN W. COLVIN, ACTING
COMMISSIONER, SOCIAL
SECURITY ADMINISTRATION,
Defendant.

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) Case No.: 5:14-CV-2009-VEH
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MEMORANDUM OPINION
I.

INTRODUCTION
Laura Jean Nye (“Nye”) 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
Nye’s application for a determination of disability, disability insurance benefits
(“DIB”), and Supplemental Security Income (“SSI”). Nye 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).1 The court has carefully considered
the record and, for the reasons that follow, finds that the decision of the Commissioner
1

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.

is due to be REVERSED and REMANDED.
II.

FACTUAL AND PROCEDURAL HISTORY
Plaintiff was twenty-eight years old at the time of the ALJ’s decision (Tr.

31). She had a high school education (Tr. 34). She had past relevant work as an
assembler of light boat parts and as a fast food worker (Tr. 23, 44). Plaintiff
alleged disability due to low birth weight, hormone deficiency, pins in her hips,
learning problems, and depression (Tr. 131).
Nye filed an application for disability insurance benefits, see 42 U.S.C. § 420,
and an application for Supplemental Security Income, see 42 U.S.C. § 1382, on
August 27, 2011 (Tr. 54–55, 109-115). These applications were denied initially by the
State Agency, and Plaintiff requested a hearing before an Administrative Law Judge
(“ALJ”) on December 16, 2011. (Tr. 72-73). The hearing was held on February 22,
2013. (Tr. 31-51). The ALJ issued an opinion denying benefits to Nye on March 27,
2013, concluding that she did not have an impairment or a combination of
impairments listed in or medically equal to the ones listed in the Regulations. (Tr.
18–20). The ALJ found that Nye retained residual functional capacity to perform work
at the medium level of physical exertion and that there would be jobs available in the
economy that would accommodate her residual limitations. (Tr. 21–24).
The Appeals Council denied review of the ALJ’s decision on August 21, 2014,
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making the ALJ’s decision the final agency decision on the matter. (Tr. 1–5). Having
exhausted all administrative remedies, Nye moved for judicial review in this court
pursuant to 42 U.S.C. §§ 405(g) & 1383(c)(3) (disability insurance and supplemental
security income, respectively) on October 20, 2014. (Doc. 1). The Commissioner
responded on February 2, 2015. (Doc. 8). Nye filed a brief in support of her position
on March 19, 2015, doc. 11, and the Commissioner submitted her brief on April 20,
2015. (Doc. 12).
III.

STANDARD OF REVIEW
The court’s review of the Commissioner’s decision is narrowly circumscribed.

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
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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).
IV.

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 and the
Regulations promulgated thereunder. 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" which
"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
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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 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,
562-63 (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.

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V.

ALJ FINDINGS
After consideration of the entire record, the ALJ made the following findings:
1.

The claimant meets the insured status requirements of the Social Security
Act through December 31, 2013.

2.

The claimant has not engaged in substantial gainful activity since
November 30, 2010 (20 C.F.R. 404.1571 et seq., and 416.971 et seq.).

3.

The claimant has the following severe impairments: status post bilateral
hip surgery; borderline intellectual functioning; and depression (20
C.F.R. 404.1520(c) and 416.920(c)).

4.

The claimant does not have an impairment or combination of
impairments that meets or medically equals the severity of one of the
listed impairments in 20 C.F.R. part 404, Subpart P, Appendix 1 (20
C.F.R. 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925 and
416.926).

5.

After careful consideration of the entire record, the [ALJ] finds that the
claimant has the residual functional capacity to perform less than the full
range of medium work as defined in 20 C.F.R. 404.1567(c) and
416.967(c). The claimant can lift and/or carry 50 pounds occassionally
and 25 pounds frequently; can stand and/or walk for 6 hours in an 8-hour
workday; can sit for 6 hours in an 8-hour workday; can frequently climb
ramps and stairs, but can never climb ladders, ropes, or scaffolds; can
frequently balance, stopp, kneel, crouch, and crawl; must avoid all
exposure to unprotected heights and hazardous machinery; can
understand and recall simple material, but would show marked
impairment if her duties and procedures became complex; can executve
very simple 1, 2, and 3-step commands adequately; can concentrate for
2-hour periods on simple, repetitive tasks; when initially learning simple,
new, repeititve tasks, the claimant will need greater than average
supervision, but by the end of routine training the claimant could
function at this level without additional oversight; her contact with the
general public should remain brief, infrequent, and noncontroversial; can
adapt to simple, direct, supervisory feedback; can adapt to workplace
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changes which are simple, well-explained, and/or implemented
gradually; and can reliably make only very simple, repetitive workplace
plans and decisions adequately.
6.

The claimant is capable of performing past relevant work as an
assembler, light boat parts. This work does not require the performance
of work-related activities precluded by the claimant’s residual functional
capacity (20 CFR 404.1565 and 416.965).

7.

The claimant has not been under a disability, as defined in the Social
Security Act, from November 30, 2010, through the date of this decision
(20 CFR 404.1520(f) and 416.920(f)).

(Tr. 17–25).
VI.

ANALYSIS
The court may reverse a finding of the Commissioner only if it is not supported

by substantial evidence. 42 U.S.C. § 405(g). “This does not relieve the court of its
responsibility to scrutinize the record in its entirety to ascertain whether substantial
evidence supports each essential administrative finding.” Walden v. Schweiker, 672
F.2d 835, 838 (11th Cir. 1982) (citing Strickland v. Harris, 615 F.2d 1103, 1106 (5th
Cir. 1980)).2 However, the court “abstains from reweighing the evidence or
substituting its own judgment for that of the [Commissioner].” Id. (citation omitted).
Nye makes two explicit arguments in favor of reversing the ALJ’s decision.
(Doc. 10 at 4, 8). First, she argues that “the ALJ failed to properly evaluate plaintiff’s
2

Strickland is binding precedent in this Circuit. See Bonner v. City of Prichard, 661 F.2d
1206, 1209 (11th Cir. 1981) (en banc) (adopting as binding precedent all decisions of the former
Fifth Circuit handed down prior to October 1, 1981).
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case pursuant to listing 12.05B and/or 12.05C of the regulations.” id. at 4, “the ALJ
placed undue emphasis on plaintiff’s reported daily activities.” (Id. at 8). This second
ground for reversal is subsumed within the first because the ALJ relied upon Nye’s
daily reported activities to determine that the underlying evidence did not support a
diagnosis of retardation.
A.

Automatic Disability Determination under Step 3

Meeting a listed impairment, found at 20 C.F.R. pt. 404, subt. P, App. 1 results
in conclusive determination of disability. Ambers v. Heckler, 736 F.2d 1467, 1469–70
(11th Cir. 1984). “The listings set out at 20 CFR pt. 404, subpt. P, App. 1 (pt. A)
(1989), are descriptions of various physical and mental illnesses and abnormalities,
most of which are categorized by the body system they affect.” Sullivan v. Zebley, 493
U.S. 521, 529–30 (1990). “For a claimant to show that his impairment matches a
listing, it must meet all of the specified medical criteria.” Id. at 530. “To “meet” a
Listing, a claimant must have a diagnosis included in the Listings and must provide
medical reports documenting that the conditions meet the specific criteria of the
Listings and the duration requirement.” Wilson v. Barnhart, 284 F.3d 1219, 1224
(11th Cir. 2002) (emphasis added). Contrary to the Commissioner’s suggestion, it
does not appear that the claimant faces a heavier burden of proof under step 3; see
Bowen v. Yuckert, 492 U.S. 137, 146 & n. 5 (1987), she simply must make the precise
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showings required in the appendix. See 20 C.F.R. § 404.1525(d); See Zebley, 493 U.S.
at 530.
“To be considered for disability benefits under section 12.05, a claimant must
at least (1) have significantly subaverage general intellectual functioning; (2) have
deficits in adaptive behavior; and (3) have manifested deficits in adaptive behavior
before age 22.” Crayton v. Callahan, 120 F.3d 1217, 1219 (11th Cir. 1997). Further,
a claimant must meet “one of the four sets of criteria found in 12.05(A), (B), (C), or
(D) in order to show that his impairments are severe enough to meet or equal Listing
12.05.” Perkins v. Comm'r, Soc. Sec. Admin., 553 F. App'x 870, 872 (11th Cir. 2014)
(citing 20 C.F.R. pt. 404, subpt. P, app 1, 12.00(A)).
Both 12.05B3 and 12.05C4 entitle a claimant to an automatic determination of
disability when her I.Q. is sufficiently low. The claimant is entitled to a presumption
that her intelligence has been constant throughout her life. Gant v. Sullivan, 773 F.
Supp. 376, 382 (S.D. Fla. 1991). An I.Q. score “need not be conclusive of mental
retardation where the I.Q. score is inconsistent with other evidence in the record on

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12.05B provides that a person satisfies the listed impairment "intellectual disability"
when the individual has "a valid verbal, performance, or full scale IQ of 59 or less." 20 C.F.R. pt.
404, subpt. P, App. 1.
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12.05C provides that a person satisfies the listed impairment "intellectual disability"
when the individual has "[a] valid verbal, performance, or full scale IQ of 60 through 70 and a
physical or other mental impairment imposing an additional and significant work-related
limitation of function."
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the claimant's daily activities and behavior.” Lowery, 979 F.2d at 837 (citing Popp
v. Heckler, 779 F.2d 1997, 1499 (11th Cir. 1986)).
The court concludes that the ALJ’s determination in step three was not based
on substantial evidence, and there are two related reasons for this. First, the ALJ
apparently substituted the opinions of the state consultants for the opinions of the
other doctors in the record. Second, two of the doctors in the record assigned GAF
scores to Nye, which the ALJ conclusorily rejected. This was error.5
B.

The ALJ Erred by Failing to Discuss Dr. Confer, Dr. Haney, and Dr.
Rogers’s Opinions

As support for her conclusion that the medical record as a whole did not support
a finding that Nye has deficits in adaptive functioning before age 22, the ALJ cited the
Psychiatric Review Technique Forms completed state consultants Eugene Fleece, tr.
379–92, and Robert Estock, tr. 334–347. (See Tr. 20). They do not appear to have
examined Nye; rather, it seems that they evaluated her record and concluded that she
had “moderate restrictions in daily living,”6 a position to which the ALJ apparently
gave great weight (although she offered no discussion of the weight given these

5

Because the ALJ did not determine whether Nye’s I.Q. fell under the B or C criteria,
there is no need for the court to make a decision as to which set of criteria it falls under.
6

Estock’s report did incorporate some of one doctor’s statements: "she does not appear
to meet a lot of demands of adult living as she continues to live at home and has never dated and
does little with herself during the day." (Tr. 346). However, the ALJ did not discuss this portion
of Estock’s report.
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statements).
The ALJ did not discuss, however, the impressions of the three consultative
physicians—Dr. Rogers, Dr. Haney, and Dr. Confer—who examined Nye and whose
conclusions undermine the ALJ’s determination that Nye has no deficit in adaptive
functioning. Each of these doctors estimated that Nye was, in fact, mentally retarded.
(Tr. 308, 315, 321).
Dr. Rogers, tr. 304–309 concluded that her “ability to understand, remember,
and carry out instructions and respond appropriately to supervision, co-workers, and
work pressures in a work setting would be moderately impaired.” (Tr. 306). He
described her mental impairment as moderate, having a lifelong history of mental
retardation. (Tr. 308). As evidence in support of this, he noted that she was laid off
from her previous work because she could not keep up. (Tr. 305). He also concluded
that she could function independently, although the quality of her daily activities is
below average. (Tr. 307).
Dr. Haney, tr. 315–16, administered the test showing her I.Q. to be 59. (Tr.
315). He described her as mildly mentally retarded. (Tr. 316).
Dr. Confer, tr. 317–22, “anticipate[d] this individual to have life-long limited
ability to learn, read, or write consistent with mild mental retardation.” (Tr. 321).
Further, Dr. Confer concluded that she “does not appear to be able to meet a lot of the
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demands of adult living as she continues to live at home, has never dated, and does
little with herself during the day.” (Tr. 322). He reported that she would be unable to
adequately manage her financial benefits. (Id.). Dr. Confer expressed concern that she
may have been “laid off” of her previous job because of her trouble keeping up. (Tr.
318).
As evidence supporting his conclusions, Dr. Confer reported that when asked
to transcribe “The young woman went to town.,” she writes “young woman to town”
with neither capitalization nor punctuation. (Tr. 317). She has difficulty reading and
confuses certain words. (Id.). As to her ability to manage money, she responds “no
clue” to a question asking how much change she would receive from $5.00 after
purchasing three items costing 50 cents each. (Tr. 320). When asked how she knows
she receives correct change from a store, she responded, “I just trust them.” (Id.). Nye
indicated that she does not know how she would allocate $1,000 in income each
month. (Id.). She is also unable to understand idioms, has difficulty stating the
relationship between certain objects; i.e., a book and a television, and cannot explain
why the state requires licenses to drive. (Tr. 319–20).
The ALJ is required to “state with particularity the weight he gave
different medical opinions and the reasons therefor.” Sharfarz v. Bowen, 825 F.2d
278, 279 (11th Cir. 1987). This applies to consulting physicians as well as treating
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physicians. See Cowart v. Schweiker, 662 F.2d 731, 735 (11th Cir. 1981) (the ALJ
must assign a weight to each item of evidence). The ALJ’s failure to discuss these
three opinions was error, and the fact that they undermine her conclusion means the
errors are not harmless. The case must be remanded for her to fully consider these
opinions.
C.

The ALJ Inadequately Explained her Decision To Assign Little Weight
to the GAF Scores

An ALJ is of course free to discredit a given claimant’s GAF7 score. He or she
must, however, tailor the 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 v. Astrue, 287 F. App'x 748, 758 (11th Cir. 2008);
McLoud v. Barnhart, 166 F. App'x 410, 418 (11th Cir. 2006). The law does not permit
an ALJ to disregard a GAF score without at least such a minimal, case-specific
explanation. This is particularly the case where the score suggests serious mental
illness.

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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) (“DSM-IV”). 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).” Id.; 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.”).
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Here, Nye’s GAF scores were 51, reflecting moderate symptoms from mental
impairments, and 50, reflecting serious symptoms from mental impairments. These
scores were the results (and only discussion of) Nye’s examination by Dr. Rogers and
Dr. Confer, respectively. Rather than explaining why these scores were either
inconsistent with the medical record or inconsistent with the doctor’s own treatment
notes, see Jarrett v. Comm’r of Soc. Sec., 422 F. App’x. 869 (11th Cir. 2011), the ALJ
offered a blanket rejection of GAF scores:
While GAF scores are an attempt to get a reading of the
clinician's assessment of the patient 's functioning and are
useful in planning treatment, the numbers assigned are
rather vague and do not readily correspond to how the
Social Security Administration assesses disability in terms
of severity requirements. Therefore, the undersigned
assigns little weight to the claimant's GAF scores.
(Tr. 19).
Considering the Eleventh Circuit’s repeated admonition that GAF scores must
be considered and a weight assigned to them, see Davis, 287 F. App'x at 758; McLoud
166 F. App'x at 418, such a blanket rejection of all GAF scores will not do. Because
it is unclear what weight was given to the medical opinions from which these scores
originated, and because the ALJ offered merely a generalized rejection of GAF scores
as suitable evidence, remand is warranted for the ALJ to explicate her consideration
of the GAF scores, the doctors’ opinions, or both. And preferably both, as the opinions
and scores reflect the same underlying evidence.
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VII. 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
and remanded by separate order.
DONE and ORDERED this 7th day of March, 2016.

VIRGINIA EMERSON HOPKINS
United States District Judge

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