Marshall v. Social Security Administration
MEMORANDUM AND ORDER reversing the Commissioner's decision and remanding to the Commissioner for further proceedings pursuant to sentence four, within the meaning of 42 U.S.C. § 405(g) and Melkonyan v. Sullivan, 501 U.S. 89 (1991). Signed by Magistrate Judge J. Thomas Ray on 1/23/12. (hph)
IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
LITTLE ROCK DIVISION
VERNA A. MARSHALL
MICHAEL J. ASTRUE,
MEMORANDUM AND ORDER
Plaintiff, Verna A. Marshall, has appealed the final decision of the
Commissioner of the Social Security Administration denying her claim for Disability
Insurance Benefits (DIB) and Supplemental Security Income (SSI). Both parties have
filed Appeal Briefs (docket entries #14, #15), and the issues are now joined and ready
The Commissioner’s denial of benefits must be upheld upon judicial review if
the decision is supported by substantial evidence in the record as a whole. Moore v.
Astrue, 623 F.3d 599, 602 (8th Cir. 2010); see 42 U.S.C. §§ 405(g), 1383(c)(3).
Substantial evidence is “relevant evidence which a reasonable mind would accept as
adequate to support the Commissioner’s conclusion.” Moore, 623 F.3d at 602.
On March 19, 2007, Plaintiff protectively filed applications for DIB and SSI.
alleging a disability onset date of September 6, 2006. (Tr.114-20, 126.) She later
amended the onset date to May 12, 2007. (Tr. 23-24.) She reported that she was
unable to work due to: lower lumbar pain, depression and anxiety. She said she had
problems sitting or standing in one spot more than twenty minutes at a time, had
“excruciating pain,” and had been “depressed to the point where [she had] tried to take
[her] own life ... [or] felt like [she] might hurt someone.” (Tr. 131.) She was fifty-one
years old at the time of her alleged disability onset, had completed high school, and
had past work as telemarketer, administrative assistant, and clerical/office worker.
(Tr. 55-56, 125, 132, 137, 150-56.)
After Plaintiff’s claims were denied at the initial and reconsideration levels, she
requested a hearing before an Administrative Law Judge (ALJ). On October 15, 2009,
the ALJ conducted a hearing at which Plaintiff and a vocational expert testified. (Tr.
The ALJ considered Plaintiff’s impairments by way of the familiar five-step
sequential evaluation process. Step 1 involves a determination of whether the
claimant is involved in substantial gainful activity. 20 C.F.R. §§ 404.1520(a)(4)(i) &
(b), 416.920(a)(4)(i) & (b). If the claimant is, benefits are denied, regardless of
medical condition, age, education, or work experience. Id.
Step 2 involves a determination, based solely on the medical evidence, of
whether the claimant has a “severe” impairment, i.e., an impairment or combination
of impairments which significantly limits the claimant’s ability to perform basic work
activities. Id. §§ 404.1520(a)(4)(ii) & (c), 416.920(a)(4)(ii) & (c). If not, benefits are
Step 3 involves a determination, again based solely on the medical evidence,
of whether the severe impairment(s) meets or equals a listed impairment, which is
presumed to be disabling. Id. §§ 404.1520(a)(4)(iii) & (d), 416.920(a)(4)(iii) & (d).
If so, and the duration requirement is met, benefits are awarded. Id.
Step 4 involves a determination of whether the claimant has a sufficient residual
functional capacity (RFC), despite the impairment(s), to perform the physical and
mental demands of past relevant work.
Id. §§ 404.1520(a)(4)(iv) & (f),
416.920(a)(4)(iv) & (f). If so, benefits are denied. Id.
Step 5 involves a determination of whether the claimant is able to make an
adjustment to other work, given the claimant’s RFC, age, education and work
experience. Id. §§ 404.1520(a)(4)(v) & (g), 416.920(a)(4)(v) & (g). If so, benefits are
denied; if not, benefits are awarded. Id.
In his January 4, 2010 decision (Tr. 8-14), the ALJ found that Plaintiff: (1) had
not engaged in substantial gainful activity since May 12, 2007, her alleged onset date;
(2) had “severe” impairments of degenerative disc disease of the lumbar spine,
personality disorder, and post-traumatic stress disorder (PTSD); (3) did not have an
impairment or combination of impairments that met or equaled a listed impairment;
(4) had the RFC for a wide range of unskilled, medium exertional work, i.e., lifting
up to fifty pounds occasionally and twenty-five pounds frequently, and sitting or
standing/walking up to six hours each in an eight-hour workday; and performing work
where interpersonal contact is incidental to work performed, complexity of tasks is
learned and performed by rote with few variables and little judgment, and supervision
required is simple, direct and concrete; (5) was not fully credible regarding her
subjective allegations of pain and limitation as they affect her ability to work; (6) was
unable to perform her past relevant work; but (7) considering her age, education, work
background and RFC, and based on the testimony of the vocational expert, was able
to perform other jobs that exist in significant numbers in the economy. Thus, the ALJ
concluded that Plaintiff was not disabled.
The Appeals Council denied Plaintiff’s request for review of the ALJ’s
decision, thereby making it the final decision of the Commissioner. (Tr. 1-3.)
Plaintiff then appealed the denial of benefits to this Court (docket entry #2).
Plaintiff argues that the ALJ’s RFC determination is not supported by
substantial evidence or based upon proper application of the law because the ALJ: (1)
failed to properly consider all medical evidence regarding Plaintiff’s mental
impairments; (2) improperly assessed the credibility of her subjective complaints; (3)
improperly found that she had the ability to perform sustained work activities; and (4)
improperly found that she was able to perform work at the medium exertional level.
For the reasons discussed below, the Court concludes that Plaintiff’s arguments
regarding the ALJ’s evaluation of her mental impairments are meritorious,
necessitating reversal and remand.1
In overlapping arguments, Plaintiff contends that, in formulating the mental
RFC assessment, the ALJ erred: by inaccurately and incompletely summarizing the
medical evidence of Plaintiff’s mental health treatment, which included numerous low
Global Assessment of Functioning (GAF) scores2 and extensive clinical notes and
opinions from her treating psychiatrists; by failing to determine whether
noncompliance with medication and medical appointments was due to her mental
impairments; and by finding that she was able to maintain sustained employment in
light of her history of mental health treatment.
Under these circumstances, the Court need not address Plaintiff’s other arguments
The GAF is a numeric scale ranging from zero to one hundred used to rate social,
occupational and psychological functioning "on a hypothetical continuum of mental
health-illness." Pate-Fires v. Astrue, 564 F.3d 935, 937 n.1 (8th Cir. 2009).
Although an ALJ is "not required to discuss every piece of evidence submitted,"
Wildman v. Astrue, 596 F.3d 959, 966 (8th Cir. 2010), he is required to "consider all
evidence" in the case record, 20 C.F.R. §§ 404.1520(a)(3), 416.920(a)(3) (emphasis
added). Moreover, an ALJ must "always give good reasons" for the weight he gives
to the opinions of a claimant's treating physicians.
Id. §§ 404.1527(d)(2),
416.920(d)(2). This includes medical opinions about the nature and severity of a
claimant's impairments, including symptoms, diagnosis and prognosis, what a
claimant is capable of doing despite the impairment, and any resulting restrictions.
Id. §§ 404.1527(a)(2), 416.927(a)(2). Generally, more weight is afforded to the
opinions of examining and treating medical sources than those of non-examining
sources. Id. §§ 404.1527(d)(1) & (2), 416.927(d)(1) & (2).
In his decision, the ALJ noted that Plaintiff had a “history of mental health
treatment,” with diagnoses of PTSD and personality disorder by a treating psychiatrist
and by a consultative psychologist. (Tr. 10.) He found that her mental symptoms
were “likely exacerbate[d]” by substance abuse and noncompliance with medication
and medical appointments. (Tr. 10-11.) In assessing Plaintiff’s mental RFC, the ALJ
adopted the findings of a reviewing, non-examining state agency psychiatrist who
reviewed her medical records and opined that she could perform unskilled work. The
ALJ noted that this state agency opinion was “consistent with the evidence in the
record, which shows a global assessment of functioning score above 50 when the
claimant is compliant with her medication.” (Tr. 12.)
This truncated discussion does not fully and accurately reflect the extent of
Plaintiff’s mental impairments and does not demonstrate that the ALJ fulfilled his
responsibilities under the regulations for evaluating those impairments.
Between April 2005 and June 2009, Plaintiff had twenty consultations or
evaluations with mental health professionals at Little Rock Community Mental Health
Center (LRCMHC), including Muhammad Raza, M.D., James Parks, M.D., John
Schay, M.D., and Alan Bagley, M.D. (Tr. 200-03, 207-14, 297-307, 334-68.) She
also underwent mental diagnostic evaluations by two psychological consultants: (1)
James R. Moneypenny, Ph.D./Psychologist, on July 16, 2007 (Tr. 256-61); and (2)
George M. DeRoeck, Psy.D., on October 19, 2007 (Tr. 265-71).
During the most relevant period, June 2007 and June 2009, Plaintiff regularly
attended LRCMHC appointments, about once a month, without any significant breaks
in treatment. She reported multiple problems, including: feelings of depression,
hopelessness and guilt; inability to sleep; low energy and poor concentration;
nightmares about a rape suffered years ago; auditory and visual hallucinations,
including voices telling her to kill herself; discomfort in groups of people; memory
difficulties; and paranoia. Clinical notes also indicate that she attended group therapy
at times, but stopped going because of increased discomfort in groups of people. (Tr.
39-40, 298, 335, 363).
Plaintiff’s treating and examining physicians diagnosed her with: major
depressive disorder, recurrent, moderate to severe, with and without psychotic
features; PTSD; personality disorder with Cluster B and borderline traits; psychosis
NOS; and rule out bipolar disorder, bulimia and schizophrenia. (Tr. 201, 207, 211,
260, 270, 297-98, 299-300, 301-02, 304-05, 306-07, 335, 337, 339, 341, 344, 347,
350, 353, 356, 358, 361, 364.) From June 2007 to June 2009, she was continuously
prescribed anti-depressant and anti-psychotic medications, including Lexapro,
Trazodone, Seroquel, Risperdal, Abilify, Geodon and Prazosine. (E.g., Tr. 180, 36667.)
Plaintiff’s mental health providers assigned her the following GAF scores:
April 19, 2005
Sept. 29, 2006
June 18, 2007
July 16, 2007
July 27, 2007
Aug. 24, 2007
Sept. 28, 2007
Oct. 19, 2007
Nov. 16, 2007
Jan. 29, 2008
Feb. 26, 2008
March 25, 2008
Apr. 29, 2008
June 10, 2008
July 22, 2008
Aug. 19, 2008
Sept. 16, 2008
Nov. 25, 2008
Jan. 21, 2009
Mar. 23, 2009
June 16, 2009
A GAF score of 31 to 40 indicates an individual has an “impairment in reality testing
or communication ... or [a] major impairment in several areas, such as work or school,
family relations, judgment, thinking, or mood”; a GAF of 41 to 50 represents
"[s]erious symptoms ... or any serious impairment in social, occupational, or school
functioning”; and a GAF of 51 to 60 represents "[m]oderate symptoms ... or moderate
difficulty" in functioning. American Psychiatric Ass'n, Diagnostic and Statistical
Manual of Mental Disorders 34 (4th ed., Text Rev. 2000).
The ALJ’s general reference to a “history of mental health treatment” does not
show that he considered all of the evidence of record. Significantly, he only referred
to PTSD and personality disorder (Tr. 10, 13), without mentioning Plaintiff’s
repeated diagnoses of major depressive disorder or her treating physicians’
observations of recurring depressive and psychotic symptoms. He referred to one
GAF score above 50 in September 2007 (Tr. 12), but failed to mention the existence
of nineteen other scores in a four-year period which were between 35 and 49,
representing serious or major impairments in functioning.
The Commissioner’s Appeal Brief acknowledges that the ALJ did not evaluate
the numerous instances where Plaintiff’s GAF scores were below 50, but downplays
the significance of those scores. However, the Eighth Circuit has held that a lengthy
history of low GAF scores like those in Plaintiff’s mental health records warrants a
closer look at the extent of a claimant’s functional limitations due to mental
impairments. See Pate-Fires, 564 F.3d at 944-45 (RFC findings not supported by
substantial evidence where, among other things, claimant’s GAF score was above 50
only four out of twenty-one times in a six-year period); Conklin v. Astrue, 360 F.
App’x 704, 707 (8th Cir. 2010) (RFC findings not supported by substantial evidence
where claimant suffered from anxiety and depression, with GAF ratings between 35
and 40); see also Jones v. Astrue, 619 F.3d 963, 972-74 & n.4 (8th Cir. 2010)
(distinguishing from Pate-Fires because claimant did not have lengthy history of low
GAF scores and ALJ explained why he was discrediting findings of claimant’s mental
health providers); Halverson v Astrue, 600 F.3d 922, 930-31 (8th Cir. 2010)
(permissible for ALJ to decline to rely on 40 GAF when dozens of earlier
examinations indicated GAF scores between 52 and 60).
Additionally, the ALJ did not mention – much less discuss – opinions from two
of Plaintiff’s treating physicians at LRCMHC. On February 26, 2008, Dr. Schay
stated, “[I]n my opinion at this time based on the severity of her depressive and
psychotic symptoms, [Plaintiff] will have a very difficult time working in any public
sector job” and will “require reassessment prior to starting work in order to determine
whether she would be able to work in the future.” (Tr. 361.)3 On January 21, 2009,
Dr. Bagley certified that Plaintiff met the diagnostic criteria for “a serious mental
illness” which “resulted in functional impairment ... substantially interfering with or
limiting one or more major life areas” (Tr. 339, 368), and he reiterated this conclusion
twice more, on March 23 and June 16, 2009 (Tr. 335, 337).
The only specific medical findings cited by the ALJ to support his mental RFC
determination were those of a non-examining, non-treating state agency medical
consultant, Jay Rankin, M.D. Based solely on his review of Plaintiff’s medical
records, Dr. Rankin completed a Mental Residual Functional Capacity Assessment
and a Psychiatric Review form on November 19, 2007. (Tr. 275-92.) After checking
various boxes, he found – without elaboration or explanation – that Plaintiff was “able
to perform work where interpersonal contact is incidental to work performed, e.g.,
assembly work; complexity of tasks is learned and performed by rote, few variables,
little judgment; supervision required is simple, direct and concrete (unskilled).” (Tr.
Dr. Schay saw Plaintiff eight times at LRCMHC for her mental health symptoms.
(Tr. 340-57, 360-64.)
The ALJ failed to adequately explain why he chose to credit this state agency
opinion over the conflicting opinions of Plaintiff’s treating mental health physicians,
which were supported by contemporaneous clinical notes and GAF scores showing
serious functional limitations. Furthermore, the state agency opinion was based on a
review of Plaintiff’s medical records through, at the latest, November 2007. After that
date, Plaintiff received mental health treatment at LRCMHC at least twelve more
times, through June 2009.
Finally, the ALJ placed too much emphasis on evidence of Plaintiff’s
noncompliance with medication and treatment without discussing whether her
noncompliance was due to her mental impairments, rather than willful conduct. See
Pate-Fires, 564 F.3d at 946 (relevant question for ALJ to resolve is whether failure
to follow prescribed treatment was a manifestation of claimant’s mental disorder).
After one of Plaintiff’s treating physicians explained to her in June 2007 that
noncompliance with medication and psychiatric follow-up was a perpetuating factor
for her depressive symptoms (Tr. 307), Plaintiff was substantially compliant with her
medications and she attended appointments about once a month for almost two years.4
LRCMHC records indicate that, during this time period, Plaintiff cancelled or
rescheduled four appointments and did not show for four other appointments and two
group sessions. (Tr. 365.) In contrast, she kept seventeen mental health treatment
appointments, plus two consultative evaluations and some group therapy.
She nevertheless continued to report fluctuating symptoms and functional difficulties,
which are supported in part by the low GAF scores noted above and by her treating
physician’s certifications that she continued to meet the criteria for serious mental
illness. In February 2008, her treating physician, Dr. Schay, noted a worsening of
psychotic and depressive symptoms which he stated was “likely due to noncompliance
with medication” but could have been due to a recent switch in her prescription. (Tr.
361.) His clinical notes state that Plaintiff endorsed “memory difficulties,” was
“confused” about the medication instructions at her last appointment, and specifically
asked to have the instructions written down in order to improve compliance. (Tr.
360.) Dr. Schay stated that Plaintiff’s noncompliance “may be a product of memory
difficulties versus poor judgment.” (Tr. 361.)
The Court agrees that Plaintiff has some credibility issues due to her
inconsistent statements regarding her use of cocaine, marijuana and alcohol. (See Tr.
10, 13.) "One strong indication of the credibility of an individual's statements is their
consistency, both internally and with other information in the case record," including
statements made by the claimant at each prior step of the administrative review
process. SSR 96-7p, 1996 WL 374186, at *5 (July 2, 1996). Furthermore, the failure
to abstain from drugs and alcohol as directed by her physicians is a valid reason for
discrediting a claimant’s subjective complaints. Wildman, 596 F.3d at 968-69.
Nevertheless, the ALJ is still required to perform a proper and complete
analysis of the extensive evidence of Plaintiff’s mental health treatment.
The Court concludes that the record in this case fails to contain substantial
evidence to support the ALJ’s assessment of Plaintiff’s mental RFC or his Step 5
determination that there are jobs in the national economy which Plaintiff is capable
of performing. On remand, the ALJ should ensure that he considers and sufficiently
discusses the medical evidence of Plaintiff’s mental health treatment, including her
low GAF score history and the diagnoses, reports and opinions of her treating mental
health physicians. He should identify sufficient medical evidence to support his
mental RFC assessment. He should determine whether any noncompliance can be
attributed to Plaintiff’s mental impairments. Further, he should ensure that he
includes all credible impairments and limitations in the RFC assessment and in his
hypothetical question to the vocational expert.
IT IS THEREFORE ORDERED THAT the Commissioner’s decision is
reversed and this matter is remanded to the Commissioner for further proceedings
pursuant to “sentence four,” within the meaning of 42 U.S.C. § 405(g) and Melkonyan
v. Sullivan, 501 U.S. 89 (1991).
DATED THIS 23rd DAY OF January, 2012.
UNITED STATES MAGISTRATE JUDGE
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