Jackson v. Social Security Commissioner
MEMORANDUM OPINION. Signed by Honorable Barry A. Bryant on July 5, 2011. (rw)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
EL DORADO DIVISION
On Behalf Of
A MINOR CHILD, U.L.
Civil No. 1:10-cv-01035
MICHAEL J. ASTRUE
Commissioner, Social Security Administration
Latwasha Jackson (“Plaintiff”) brings this action on behalf of a minor child, U.L., and
pursuant to § 205(g) of Title II of the Social Security Act (“The Act”), 42 U.S.C. § 405(g) (2006),
seeking judicial review of a final decision of the Commissioner of the Social Security Administration
(“SSA”) denying her application for Supplemental Security Income (“SSI”) on behalf of U.L. under
Title XVI of the Act. The parties have consented to the jurisdiction of a magistrate judge to conduct
any and all proceedings in this case, including conducting the trial, ordering the entry of a final
judgment, and conducting all post-judgment proceedings. ECF No. 5.1 Pursuant to this authority,
the Court issues this memorandum opinion and orders the entry of a final judgment in this matter.
Plaintiff protectively filed an application for SSI on behalf of U.L. on September 1, 2006.
(Tr. 12). Plaintiff alleges U.L. was disabled due to attentive deficit hyperactivity disorder (“ADHD”)
and learning problems. (Tr. 78). Plaintiff alleges U.L.’s onset date was August 1, 2006. (Tr. 78).
The docket numbers for this case are referenced by the designation “ECF No.” The transcript pages for
this case are referenced by the designation “Tr.”
This application was denied initially on January 10, 2007 and was denied again on reconsideration
on April 11, 2007. (Tr. 51, 56).
On May 18, 2007, Plaintiff requested an administrative hearing on her application. (Tr. 63).
An administrative hearing was held on April 8, 2008 in El Dorado, Arkansas. (Tr. 38-48). Plaintiff
was present and was represented by counsel, Ted Stricker, at this hearing. See id. Plaintiff testified
at this hearing and U.L. was present. See id. At the time of this hearing, U.L. was seven years old
and was in the second grade. (Tr. 42).
On July 24, 2008, the ALJ entered an unfavorable decision denying Plaintiff’s request for
disability benefits for U.L. (Tr. 12-23). In this opinion, the ALJ determined U.L. was born on May
25, 2000, was a school-age child on September 1, 2006 (the date the application was filed), and was
a school-age child on July 24, 2008 (the date of the ALJ’s decision). (Tr. 15, Finding 1). The ALJ
determined U.L. had not engaged in Substantial Gainful Activity (“SGA”) at any time relevant to
the ALJ’s decision. (Tr. 15, Finding 2).
The ALJ determined U.L. had the following severe impairments: attention deficit
hyperactivity disorder and borderline intellectual functioning. (Tr. 15, Finding 3). The ALJ,
however, also determined the evidence did not establish U.L. had an impairment or a combination
of impairments that were either listed in, or medically equivalent to, those listed in Appendix 1,
Subpart P, Regulation No. 4 (“Listings”). (Tr. 15, Finding 4).
The ALJ also evaluated the six functional domains and determined U.L. did not have an
impairment or a combination of impairments that were functionally equivalent to the Listings. (Tr.
15-23, Finding 5). Specifically, the ALJ determined U.L. had a less than marked limitation in
acquiring and using information, in attending and completing tasks, and in interacting and relating
with others. The ALJ also determined U.L. had no limitation in moving about and manipulating
objects, ability to care for herself, and health and physical well-being. See id. The ALJ determined
that because U.L. did not have an impairment or combination of impairments that resulted in either
a “marked” limitation in any two domains of functioning or an “extreme” limitation in any one
domain of functioning, U.L.’s impairments or combination of impairments were not functionally
equivalent to the Listings. (Tr. 23, Finding 5). Accordingly, the ALJ also determined U.L. was not
disabled and had not been disabled at any time since September 1, 2006, the date Plaintiff filed
U.L.’s application. (Tr. 23, Finding 6).
On August 4 2008, Plaintiff requested the Appeals Council review the ALJ’s hearing
decision and order. (Tr. 7). On February 17, 2010, the Appeals Council declined to review the
ALJ’s unfavorable decision. (Tr. 1-3). On April 30, 2010, Plaintiff filed the present appeal. ECF
No. 1. The parties consented to the jurisdiction of this Court on June 21, 2010. ECF No. 5. Both
Plaintiff and Defendant have filed appeal briefs. ECF Nos. 9-10. This case is now ready for
2. Applicable Law:
In reviewing this case, this Court is required to determine whether the Commissioner’s
findings are supported by substantial evidence in the record as a whole. See 42 U.S.C. § 405(g)
(2006); Ramirez v. Barnhart, 292 F.3d 576, 583 (8th Cir. 2002). Substantial evidence is less than
a preponderance of the evidence, but it is enough that a reasonable mind would find it adequate to
support the Commissioner’s decision. See Johnson v. Apfel, 240 F.3d 1145, 1147 (8th Cir. 2001).
As long as there is substantial evidence in the record that supports the Commissioner’s decision, the
Court may not reverse it simply because substantial evidence exists in the record that would have
supported a contrary outcome or because the Court would have decided the case differently. See
Haley v. Massanari, 258 F.3d 742, 747 (8th Cir. 2001). If, after reviewing the record, it is possible
to draw two inconsistent positions from the evidence and one of those positions represents the
findings of the ALJ, the decision of the ALJ must be affirmed. See Young v. Apfel, 221 F.3d 1065,
1068 (8th Cir. 2000).
In this case, Plaintiff is seeking disability benefits on behalf of a minor child. On August 22,
1996, Congress enacted the Personal Responsibility and Work Opportunity Reconciliation Act of
1996, Public Law No. 104-193, 110 Stat. 2105 (1996) (codified at 42 U.S.C. § 1382c(a)(3)(C)),
which provided a more stringent standard for determining eligibility for Title XVI childhood
disability benefits than the old law and prior regulations required. See Rucker v. Apfel, 141 F.3d
1256, 1259 (8th Cir. 1998); 142 Cong. Rec. H8913; H.R. Conf. Rep. No. 725, 104th Cong. 2d Sess.
328 (1996), reprinted in 1996 U.S. Code, Cong. and Ad. News 2649, 2716; Federal Register, Vol.
62, No. 28, p. 6409. Among other things, the new law amended Section 1614(a)(3) of the Act, 42
U.S.C. § 1382c(a)(3), and changed the statutory definition of disability for individuals under age
eighteen (18) under the SSI program. Under the new standard, a child is entitled to disability
benefits only if he or she has a medically determinable physical or mental impairment, which results
in marked and severe functional limitations, and 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 12 months. See Pub. L.
No. 104-193 § 211(a)(4)(c); 20 C.F.R. § 416.906. The new standard applies to all applicants who
filed claims on or after August 22, 1996, or whose claims had not been finally adjudicated by August
22, 1996. Since Plaintiff filed her application in 2006, the new law applies.
Under the new law, the ALJ’s disability determination is based upon a three-step analysis.
See 20 C.F.R. § 416.924. First, the ALJ must determine whether the minor child has engaged in
substantial gainful activity. If not, the ALJ will proceed to the second step where the ALJ must
consider whether the child has a severe impairment. If a severe impairment is found, the ALJ will
proceed to the third step. At this step, the ALJ, must consider whether the impairment meets, or is
medically or functionally equivalent, to a disability listing in the Listing of Impairments. See 20
C.F.R. pt. 404, subpt. P, app. 1. A minor child may be disabled if his or her impairment is
functionally equivalent to a disability listing, even if the minor child’s impairment does not meet the
standard requirements for a disability listing. See 20 C.F.R. § 416.924(d)(1).
A single method is provided for evaluating whether an impairment is “functionally
equivalent” to a disability listing, based upon six domains of functioning. The six domains are the
following: (1) acquiring and using information, (2) attending and completing tasks, (3) interacting
and relating with others, (4) moving about and manipulating objects, (5) caring for himself or herself,
and (6) health and physical well-being. See 20 C.F.R. § 416.926a(b)(1). If the minor child claiming
benefits has “marked” limitations in two of these domains or an “extreme” limitation in one of these
domains, then the child’s impairment is functionally equivalent to a disability listing. See id. §
416.926a(a); Moore ex rel. Moore v. Barnhart, 413 F.3d 718, 721 (8th Cir. 2005).
A “marked” limitation is a limitation that is “more than moderate” and “less than extreme.”
See id. § 416.926a(e); Lehnartz v. Barnhart, No. 04-3818, 2005 WL 1767944, at *3 (8th Cir. July
27, 2005). A marked limitation is one that seriously interferes with a child’s ability to independently
initiate, sustain, or complete activities. See 20 C.F.R. § 416.926a(e). An “extreme” limitation is
more than “marked” and exists when a child’s impairment(s) interferes very seriously with his or her
ability to independently initiate, sustain or complete activities. See id. “Extreme” limitation is the
rating the Commissioner gives to the most serious limitations. See id.
The parties do not dispute U.L. meets the disability requirements under Step One (U.L. has
not engaged in SGA). Plaintiff, however, claims the ALJ erred at Step Two of the Analysis in
finding U.L.’s mental impairments were not severe. Plaintiff also argues the ALJ erred in finding
not disabled at Step Three of the Analysis. ECF No. 9, Pages 2-6. Specifically, Plaintiff claims U.L.
has met the requirements of Listing 12.05C and U.L. has an impairment or combination of
impairments functionally equivalent to the listings. See id.
This Court has considered all arguments raised in the parties’ appeal briefs and has
considered the transcript in U.L.’s case. ECF Nos. 9-10. Based upon this review, this Court finds
the ALJ’s hearing decision dated July 24, 2008 is not supported by substantial evidence and should
be reversed and remanded because the ALJ failed to properly evaluate U.L.’s alleged mental
impairment. (Tr. 15).
In social security cases, it is important for an ALJ to evaluate a claimant’s Global Assessment
of Functioning (“GAF”) score in determining whether that claimant is disabled due to a mental
impairment. GAF scores range from 0 to 100. Am. Psychiatric Ass’n, Diagnostic & Statistical
Manual of Mental Disorders (DSM-IV-TR) 34 (4th ed., text rev. 2000). The Eighth Circuit has
repeatedly held that GAF scores (especially those at or below 40) must be carefully evaluated when
determining a claimant’s RFC. See, e.g., Conklin v. Astrue, 360 F. App’x. 704, 707 (8th Cir. 2010)
(reversing and remanding an ALJ’s disability determination in part because the ALJ failed to
consider the claimant’s GAF scores of 35 and 40); Pates-Fires, 564 F.3d 935, 944-45 (8th Cir. 2009)
(holding that the ALJ’s RFC finding was not supported by substantial evidence in the record as a
whole, in part due to the ALJ’s failure to discuss or consider numerous GAF scores below 50).
Indeed, a GAF score at or below 40 should be carefully considered because such a low score reflects
“a major impairment in several areas such as work, family relations, judgment, or mood.” Conklin,
360 F. App’x at 707 n.2 (quoting Am. Psychiatric Ass’n, Diagnostic & Statistical Manual of Mental
Disorders (DSM-IV-TR) 34 (4th ed., text rev. 2000)).
In the present action, Plaintiff was assessed as having a GAF scores of 45 and 50 during her
appointments with South Arkansas Regional Health Center on September 26, 2006 through July 8,
2008. (Tr. 141-161, 177-204). The ALJ did not discuss these low GAF scores in his opinion. (Tr.
12-23). Defendant acknowledges these GAF scores are inconsistent with the objective evidence of
record. ECF No. 10, Pg. 5, n. 2. It was the ALJ’s responsibility to evaluate those scores and make
a finding regarding their reliability as a part of the underlying administrative proceeding. See
Conklin, 360 F. App’x at 707.
It is especially important that the ALJ address low GAF scores where, as in this case, Plaintiff
has been diagnosed with attention deficit hyperactivity disorder, borderline intellectual functioning,
and oppositional defiant disorder. (Tr. 131, 177). When considering these facts, and because the
ALJ did not evaluate Plaintiff’s low GAF scores, this case must be reversed and remanded for further
evaluation of these scores.
Based upon the foregoing, the decision of the ALJ, denying benefits to U.L., is not supported
by substantial evidence and must be reversed and remanded. A judgment incorporating these
findings will be entered pursuant to Federal Rules of Civil Procedure 52 and 58.
ENTERED this 5th day of July, 2011.
/s/ Barry A. Bryant
HON. BARRY A. BRYANT
U.S. MAGISTRATE JUDGE
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