George v. Social Security Administration

Filing 13

MEMORANDUM AND ORDER reversing the Commissioner's decision and remanding for action consistent with this opinion. This is a sentence four remand within the meaning of 42 U.S.C. § 405(g) and Melkonyan v. Sullivan, 501 U.S. 89 (1991). Signed by Magistrate Judge Beth Deere on 8/17/09. (hph)

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IN THE UNITED STATES DISTRICT COURT E A S T E R N DISTRICT OF ARKANSAS W E S T E R N DIVISION L E N A M. GEORGE v. CASE NO. 4:08CV00319 BD P L A IN T IF F M IC H A E L J. ASTRUE, Commissioner, Social Security Administration M E M O R A N D U M AND ORDER DEFENDANT P la in tif f , Lena M. George, has appealed the final decision of the Commissioner of the S o c ia l Security Administration to deny her claim for Disability Insurance benefits and S u p p le m e n ta l Security Income, based on disability. Both parties have submitted appeal b rie f s and the case is ready for decision.1 T h e Court's function on review is to determine whether the Commissioner's decision is supported by substantial evidence on the record as a whole and free of legal error. Slusser v . Astrue, 557 F.3d 923, 925 (8th Cir. 2009); Long v. Chater, 108 F.3d 185, 187 (8th Cir. 1 9 9 7 ); see also, 42 U.S.C. 405(g). Substantial evidence is such relevant evidence as a re a s o n a b le mind might accept as adequate to support a conclusion. Richardson v. Perales, 4 0 2 U.S. 389, 401 (1971); Reynolds v. Chater, 82 F.3d 254, 257 (8th Cir. 1996). In assessing the substantiality of the evidence, the Court must consider evidence that d e tra c ts from the Commissioner's decision as well as evidence that supports it; the Court m a y not, however, reverse the Commissioner's decision merely because substantial evidence w o u ld have supported an opposite decision. Sultan v. Barnhart, 368 F.3d 857, 863 (8th Cir. 2 0 0 4 ); Woolf v. Shalala, 3 F.3d 1210, 1213 (8th Cir. 1993). 1 The parties have consented to the jurisdiction of the Magistrate Judge. (Docket #4) "Disability" is the "inability to engage in any substantial gainful activity by reason of a n y 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 th a n 12 months." 42 U.S.C. 423(d)(1)(A); 1382c(a)(3)(A). A "physical or mental im p a irm e n t" is "an impairment that results from anatomical, physiological, or psychological a b n o rm a litie s which are demonstrable by medically acceptable clinical and laboratory d ia g n o stic techniques." 42 U.S.C. 423(d)(3); 1382c(a)(3)(D). P la in tif f alleged that she was limited in her ability to work by mild mental retardation, h e a rt murmur, neurofibromatosis,2 and foot and arm pain. The Commissioner found that she w a s not disabled within the meaning of the Social Security Act. The only issue before this C o u rt is whether the Commissioner's decision that Plaintiff was not disabled within the m e a n in g of the Act is supported by substantial record evidence. A f te r conducting an administrative hearing at which Plaintiff and her great-great aunt te s tif ie d ,3 the Administrative Law Judge ("ALJ") concluded that Plaintiff had not been under a disability within the meaning of the Social Security Act at any time through December 13, 2 0 0 7 , the date of his decision. (Tr. 52-53) On February 13, 2008, the Appeals Council d e n ie d Plaintiff's request for a review of the ALJ's decision, making the ALJ's decision the f in a l decision of the Commissioner. (Tr. 2-4) Plaintiff then filed her complaint initiating th is appeal. (Docket #2) An autosomal dominant disorder producing tumors along the course of nerves a n d occasionally resulting in marked soft tissue or bony deformity. The Merck Manual 2377 (18th ed. 2006). 3 2 The ALJ also submitted interrogatories to a vocational expert. (Tr. 269-75) 2 After considering the record as a whole, the Court finds that the decision of the C o m m is sio n e r is not supported by substantial evidence and that the case should be re m a n d e d . Plaintiff was 31 years old at the time of the hearing. (Tr. 11, 15) She completed the tw e lf th grade in school in special education classes. (Tr. 15, 120, 153) She had past re le v a n t work as a grill cook, prep cook, fast-food-restaurant crew worker, a grocery d e lic a te s s e n worker, and a recreational center cleaner. (Tr. 51, 134-35, 141-45, 149-50) T h e ALJ considered Plaintiff's impairments by way of the required five-step se q u e n tia l evaluation process: (1) whether the claimant was engaged in substantial gainful a c tiv ity; (2) if not, whether the claimant had a severe impairment; (3) if so, whether the im p a irm e n t (or combination of impairments) met or equaled an impairment listed in the L istin g of Impairments in Appendix 1, Subpart P, 20 C.F.R. Part 404; (4) if not, whether the im p a irm e n t (or combination of impairments) prevented the claimant from doing past re le v a n t work. If the claimant has sufficient residual functional capacity to perform past re le v a n t work, the inquiry ends and benefits are denied. 20 C.F.R. 404.1520(a)(4)(iv); 4 1 6 .9 2 0 ( a ) ( 4 ) ( iv ) . T h e ALJ noted that Plaintiff had previously filed applications that were denied in itia lly and not appealed; he found no reason to reopen those applications. (Tr. 43-44) He f o u n d Plaintiff had not engaged in substantial gainful activity since her alleged onset date. (Tr. 45) He found that Plaintiff had a "severe" impairment, mild mental retardation. (Tr. 4 6 ) He found that she did not have an impairment or combination of impairments that met o r equaled a Listing. Id. He judged that Plaintiff's allegations regarding her limitations w e re not totally credible. (Tr. 50) T h e ALJ found that Plaintiff retained the residual functional capacity for work at all e x e rtio n a l levels, but had moderate mental nonexertional limitations in her ability to 3 understand, remember and carry out complex instructions, to make judgments on complex w o rk -re la te d decisions, to interact appropriately with co-workers and supervisors and to re s p o n d appropriately to usual work situations and routine work changes. (Tr. 48) He d e te rm in e d that she was unable to perform any of her past relevant work. (Tr. 51) Based on th e answers to the interrogatories by the vocational expert, the ALJ determined that there w a s other jobs existing in the national economy that Plaintiff could perform notwithstanding h e r limitations, for example, small production-machine operator, small product assembler, a n d food order clerk. (Tr. 52) Thus, the ALJ concluded that Plaintiff was not disabled. Id. T h e ALJ did not expressly acknowledge the shift in the burden,4 and that failure c o n s titu te s reversible error unless all of the evidence is so strongly against Plaintiff's p o s itio n that a proper allocation of the burden would not have changed the outcome. Roberts v. Apfel, 222 F.3d 466, 471 (8th Cir. 2000); Pope v. Bowen, 886 F.2d 1038, 1040 (8 th Cir. 1989). The evidence in this case is not so strongly against Plaintiff's position that a p ro p e r allocation of the burden would not have changed the outcome. In addition, in making his credibility determination, the ALJ relied "primarily" on a g lo b a l assessment of functioning score of 65 5 that was assigned by a psychologist who Plaintiff bears the burden of proving disability. Roth v. Shalala, 45 F.3d 279, 282 (8th C ir. 1995). Although the ultimate burden of persuasion does not shift, the burden of p ro d u c tio n shifts to the Commissioner if Plaintiff is unable to perform her past relevant w o rk . Id.; accord, Charles v. Barnhart, 375 F.3d 777, 782 n.5 (8th Cir. 2004); Young v. A p fe l, 221 F.3d 1065, 1069 n.5 (8th Cir. 2000). 5 4 A GAF of 61-70 reflects: Some mild symptoms (e.g., depressed mood and mild insomnia) OR some d if f ic u lty in social, occupational, or school functioning (e.g., occasional truancy, o r theft within the household), but generally functioning pretty well, has some m e a n in g f u l interpersonal relationships. D ia g n o s tic and Statistical Manual of Mental Disorders 34 (4th ed., Text Revision 2000) (D S M -IV -T R ). A GAF score is a subjective determination which represents "the clinician's ju d g m e n t of the individual's overall level of functioning." Id. at 32. 4 assessed Plaintiff in 2003. (Tr. 46, 281) The ALJ placed too much emphasis on this isolated p o rtio n of the doctor's diagnostic impression. The DSM-IV-TR cautions non-clinical d e c is io n makers: D S M -IV is a classification of mental disorders that was developed for use in c lin ic a l, educational, and research settings. The diagnostic categories, criteria, a n d textual descriptions are meant to be employed by individuals with a p p ro p ria te clinical training and experience in diagnosis. It is important that D S M -IV not be applied mechanically by untrained individuals. The specific d ia g n o s tic criteria included in DSM-IV are meant to serve as guidelines to be in f o rm e d by clinical judgment and are not meant to be used in a cookbook f a s h io n . Id. at xxxii. A GAF score does not directly correlate to the severity requirements in Social S e c u rity mental disorders listings. 65 Fed.Reg. 50746, 50764-65 (2000). Based on these errors and the record as a whole, the Court finds that the ALJ's d e c is io n is not supported by substantial evidence. Therefore, the ruling of the Commissioner m u s t be reversed and the matter remanded for a re-evaluation of Plaintiff's complaints. A c c o rd in g ly, the Commissioner's decision is reversed and remanded for action c o n s is te n t with this opinion. This is a "sentence four" remand within the meaning of 42 U .S .C . 405(g) and Melkonyan v. Sullivan, 501 U.S. 89 (1991). IT IS SO ORDERED this 17th day of August, 2009. UNITED STATES MAGISTRATE JUDGE 5

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