Kilpatrick v. Social Security Administration Commissioner

Filing 19

MEMORANDUM OPINION. Signed by Honorable Barry A. Bryant on March 30, 2017. (cnn)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
EL DORADO DIVISION

JAMES WILLIAM KILPATRICK, III
vs.

PLAINTIFF

Civil No. 1:16-cv-01014

NANCY A. BERRYHILL
Commissioner, Social Security Administration

DEFENDANT

MEMORANDUM OPINION
James William Kilpatrick, III (“Plaintiff”) brings this action pursuant to § 205(g) of Title II
of the Social Security Act (“The Act”), 42 U.S.C. § 405(g) (2010), seeking judicial review of a final
decision of the Commissioner of the Social Security Administration (“SSA”) denying his applications
for Disability Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”) under Titles II
and 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. 7.1 Pursuant to this authority,
the Court issues this memorandum opinion and orders the entry of a final judgment in this matter.
1. Background:
Plaintiff protectively filed his applications for DIB and SSI benefits on April 1, 2013 and May
15, 2013 respectively. (Tr. 13, 167-174). Plaintiff alleges being disabled due too left arm amputation,
heart problems and gallbladder. (Tr. 193). Plaintiff alleges an onset date of April 1, 2013. (Tr. 13,
193). These applications were denied initially and again upon reconsideration. (Tr. 75-116).
Thereafter, Plaintiff requested an administrative hearing on his applications, and this hearing request

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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.”

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was granted. (Tr. 128).
An administrative hearing was held on May 22, 2014. (Tr. 29-74). At the administrative
hearing, Plaintiff was present and was represented by counsel, Russell Byrne. Id. Plaintiff and
Vocational Expert (“VE”) Stefanie Ford testified at this hearing. Id. On the date of this hearing,
Plaintiff was fifty-one (51) years old and had a college education. (Tr. 34).
On October 7, 2014, subsequent to the hearing, the ALJ entered an unfavorable decision on
Plaintiff’s applications. (Tr. 13-24). In this decision, the ALJ determined the Plaintiff met the
insured status of the Act through December 31, 2017. (Tr. 15, Finding 1). The ALJ also determined
Plaintiff had not engaged in Substantial Gainful Activity (“SGA”) since April 1, 2013. (Tr. 15,
Finding 2).
The ALJ determined Plaintiff had severe impairments of upper extremity amputation,
ischemic heart disease post CABG x 5, and depression. (Tr. 15, Finding 3). The ALJ also determined
Plaintiff’s impairments did not meet or medically equal the requirements of any of the Listings of
Impairments in Appendix 1 to Subpart P of Regulations No. 4 (“Listings”). (Tr. 15, Finding 4)
In this decision, the ALJ evaluated Plaintiff’s subjective complaints and determined his
Residual Functional Capacity (“RFC”). (Tr. 17-23, Finding 5). First, the ALJ indicated he evaluated
Plaintiff’s subjective complaints and found his claimed limitations were not entirely credible. Id.
Second, the ALJ determined Plaintiff retained the RFC for light work, but limited to simple, routine,
repetitive tasks with supervision that is simple, direct, and concrete; but can tolerate frequent contact
with co-workers supervisors, and the general public.
The ALJ evaluated Plaintiff’s Past Relevant Work (“PRW”). (Tr. 23, Finding 6). The ALJ
found Plaintiff was unable to perform his PRW. Id. The ALJ, however, also determined there was
other work existing in significant numbers in the national economy Plaintiff could perform. (Tr. 23,
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Finding 10). The ALJ based his determination upon the testimony of the VE. Id. Specifically, the
VE testified that given all Plaintiff's vocational factors, a hypothetical individual would be able to
perform the requirements of a representative occupation such as a ticket seller with approximately
144,000 such jobs in the region and 1,100,000 such jobs in the nation and storage facility rental clerk
with approximately 13,000 such jobs in the region and 114,000 such jobs in the nation. Id. Based
upon this finding, the ALJ determined Plaintiff had not been under a disability as defined by the Act
from April 1, 2013, through the date of the decision. (Tr. 24, Finding 11).
Thereafter, Plaintiff requested the Appeals Council review the ALJ’s decision. (Tr. 9). See
20 C.F.R. § 404.968. The Appeals Council declined to review this unfavorable decision. (Tr. 1-6).
On February 29, 2016, Plaintiff filed the present appeal. ECF No. 1. The Parties consented to the
jurisdiction of this Court on March 10, 2016. ECF No. 7. Both Parties have filed appeal briefs. ECF
Nos. 17, 18. This case is now ready for decision.
2. Applicable Law:
In reviewing this case, this Court is required to determine whether the Commissioner’s
findings are supported by substantial evidence on 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
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findings of the ALJ, the decision of the ALJ must be affirmed. See Young v. Apfel, 221 F.3d 1065,
1068 (8th Cir. 2000).
It is well established that a claimant for Social Security disability benefits has the burden of
proving his or her disability by establishing a physical or mental disability that lasted at least one year
and that prevents him or her from engaging in any substantial gainful activity. See Cox v. Apfel, 160
F.3d 1203, 1206 (8th Cir. 1998); 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). The Act defines a
“physical or mental impairment” as “an impairment that results from anatomical, physiological, or
psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory
diagnostic techniques.” 42 U.S.C. §§ 423(d)(3), 1382(3)(c). A plaintiff must show that his or her
disability, not simply his or her impairment, has lasted for at least twelve consecutive months. See
42 U.S.C. § 423(d)(1)(A).
To determine whether the adult claimant suffers from a disability, the Commissioner uses the
familiar five-step sequential evaluation. He determines: (1) whether the claimant is presently engaged
in a “substantial gainful activity”; (2) whether the claimant has a severe impairment that significantly
limits the claimant’s physical or mental ability to perform basic work activities; (3) whether the
claimant has an impairment that meets or equals a presumptively disabling impairment listed in the
regulations (if so, the claimant is disabled without regard to age, education, and work experience);
(4) whether the claimant has the Residual Functional Capacity (RFC) to perform his or her past
relevant work; and (5) if the claimant cannot perform the past work, the burden shifts to the
Commissioner to prove that there are other jobs in the national economy that the claimant can
perform. See Cox, 160 F.3d at 1206; 20 C.F.R. §§ 404.1520(a)-(f). The fact finder only considers
the plaintiff’s age, education, and work experience in light of his or her RFC if the final stage of this
analysis is reached. See 20 C.F.R. §§ 404.1520, 416.920 (2003).
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3. Discussion:
In his appeal brief, Plaintiff claims the ALJ’s disability determination is not supported by
substantial evidence in the record. ECF No. 17, Pg. 7-12. Specifically, Plaintiff claims the ALJ erred
in the RFC determination by failing to properly consider his GAF scores. Id. In response, the
Defendant argues the ALJ did not err in any of his findings. ECF No. 18.
Prior to Step Four of the sequential analysis in a disability determination, the ALJ is required
to determine a claimant’s RFC. See 20 C.F.R. § 404.1520(a)(4)(iv). This RFC determination must
be based on medical evidence that addresses the claimant’s ability to function in the workplace. See
Stormo v. Barnhart, 377 F.3d 801, 807 (8th Cir. 2004). The ALJ should consider “‘all the evidence
in the record’ in determining the RFC, including ‘the medical records, observations of treating
physicians and others, and an individual’s own description of his limitations.’” Stormo v. Barnhart,
377 F.3d 801, 807 (8th Cir. 2004) (quoting Krogmeier v. Barnhart, 294 F.3d 1019 (8th Cir. 2002)).
In social security cases where a mental impairment is alleged, 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 the claimed 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 v. Astrue,
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).
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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 Am. Psychiatric Ass’n, Diagnostic & Statistical Manual of Mental
Disorders (DSM-IV-TR) 34 (4th ed., text rev. 2000)). A GAF score of 40 to 50 also indicates a
claimant suffers from severe symptoms. Specifically, a person with that GAF score suffers from
“[s]erious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) OR any
serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a
job).” Am. Psychiatric Ass’n, Diagnostic & Statistical Manual of Mental Disorders (DSM-IV-TR)
34 (4th ed., text rev. 2000).
Plaintiff’s GAF score was first determined on May 31, 2013 when he was admitted to Levi
Hospital. (Tr. 288-291). Dr. John Downes determined Plaintiff’s GAF score on admission to be 13
and the highest level in the past year to be 54. (Tr. 289). His GAF score on discharge was 46. (Tr.
290).
On July 10, 2013, Plaintiff underwent a Mental Diagnostic Evaluation. (Tr. 302-309). Dr.
Mike Parker evaluated Plaintiff and determined his current GAF score to be 50 and that the highest
score during the past year to be 50. (Tr. 308).
On March 4, 2014, Plaintiff was again admitted to Levi Hospital. (Tr. 311-314). Plaintiff’s
GAF score on admission was 12 and the highest level in the past year was 53. (Tr. 311). Plaintiff’s
score on discharge was 38. (Tr. 313).
The ALJ did little more than to mention some of these scores in his decision. It was the
ALJ’s responsibility to properly evaluate those GAF scores and make a finding regarding their
reliability as a part of the underlying administrative proceeding. See Conklin, 360 F. App’x at 707.
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Indeed, it is especially important that the ALJ address low GAF scores where, as in this case, Plaintiff
has been diagnosed with depression with suicidal ideation and major recurrent depression.
Accordingly, because the ALJ was required to evaluate these scores and provide a reason for
discounting the low GAF scores but did not do so, Plaintiff’s case must be reversed and remanded
for further development of the record on this issue. See Pates-Fires, 564 F.3d at 944-45.
4. Conclusion:
Based on the foregoing, the undersigned finds that the decision of the ALJ, denying benefits
to Plaintiff, 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 30th day of March 2017.
/s/ Barry A. Bryant
HON. BARRY A. BRYANT
U.S. MAGISTRATE JUDGE

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