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)

Download PDF
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

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?