Spence v. Social Security Administration Commissioner
MEMORANDUM OPINION. Signed by Honorable Barry A. Bryant on January 24, 2012. (lw)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FORT SMITH DIVISION
JACQUELINE R. SPENCE
Civil No. 2:10-cv-02167
MICHAEL J. ASTRUE
Commissioner, Social Security Administration
Jacqueline Spence (“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 her applications for
Disability Insurance Benefits, (“DIB”), Supplemental Security Income (“SSI”) and a period of
disability 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. 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 DIB and SSI on September 11, 2007. (Tr. 59,
111-122). Plaintiff alleged she was disabled due to chronic obstructive pulmonary disease and bipolar. (Tr. 145). Plaintiff alleged an onset date of August 27, 2007. (Tr. 146). These applications
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.”
were denied initially and again upon reconsideration. (Tr. 69-75, 84-87). Thereafter, Plaintiff
requested an administrative hearing on her applications, and this hearing request was granted. (Tr.
Plaintiff’s administrative hearing was held on March 12, 2009, in Fort Smith, Arkansas. (Tr.
21-51). Plaintiff was present and was represented by counsel, Fred Cadell, at this hearing. Id.
Plaintiff, and Vocational Expert (“VE”) David O’Neal testified at this hearing. Id. At the time of
this hearing, Plaintiff was thirty-eight (38) years old, which is defined as a “younger person” under
20 C.F.R. § 404.1563(c), and had completed the 6th grade. (Tr. 26-27).
On September 14, 2009, the ALJ entered an unfavorable decision denying Plaintiff’s
applications for DIB and SSI. (Tr. 59-68). In this decision, The ALJ determined Plaintiff had not
engaged in Substantial Gainful Activity (“SGA”) since August 27, 2007, her alleged onset date. (Tr.
61, Finding 2).
The ALJ determined Plaintiff had the severe impairments of chronic obstructive pulmonary
disease and mood disorder. (Tr. 61, Finding 3). The ALJ also determined Plaintiff’s impairments
did not meet or medically equal the requirements of any of the Listing of Impairments in Appendix
1 to Subpart P of Regulations No. 4 (“Listings”). (Tr. 62, Finding 4).
In this decision, the ALJ evaluated Plaintiff’s subjective complaints and determined her RFC.
(Tr. 63-66, Finding 5). First, the ALJ evaluated Plaintiff’s subjective complaints and found her
claimed limitations were not entirely credible. Id. Second, the ALJ determined Plaintiff retained
the RFC for light work; except that she needed to avoid concentrated exposure to dust, fumes, gases,
odors, poor ventilation, and extreme temperatures; and she can perform unskilled work where
interpersonal contact is incidental to the work performed. (Tr. 63, Finding 5).
The ALJ evaluated Plaintiff’s Past Relevant Work (“PRW”). (Tr. 66-67, Finding 6). The
ALJ determined Plaintiff’s PRW included work as manufacturing production labor and kennel
technician. (Tr. 67). Based upon her RFC, the ALJ determined Plaintiff would be unable to perform
this PRW. Id.
The ALJ did, however, find Plaintiff retained the ability to perform other work existing in
significant numbers in the national economy. (Tr. 67-68, Finding 10). The ALJ based this finding
upon the testimony of the VE. Id. Specifically, the VE testified in response to a question from the
ALJ that a hypothetical individual with Plaintiff’s limitations retained the ability to perform work
as a motel maid with approximately 5,300 such jobs in Arkansas and 630,000 in the national
economy, a fast food worker with approximately 6,500 such jobs in Arkansas and 855,000 in the
national economy, and as a sorter with approximately 1,200 such jobs in Arkansas and 46,000 in the
national economy. Id. The ALJ then determined Plaintiff had not been under a disability, as defined
by the Act, from August 27, 2007 through the date of his decision. (Tr. 68, Finding 11).
Thereafter, Plaintiff requested the Appeals Council review the ALJ’s unfavorable decision.
(Tr. 6-9). See 20 C.F.R. § 404.968. The Appeals Council declined to review this unfavorable
decision. (Tr. 1-4). On November 2, 2010, Plaintiff filed the present appeal. ECF No. 1. The
Parties consented to the jurisdiction of this Court on November 8, 2010. ECF No. 5. Both Parties
have filed appeal briefs. ECF Nos. 11, 12. 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
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).
In her appeal brief, Plaintiff claims the ALJ’s disability determination is not supported by
substantial evidence in the record. ECF No. 11 at 9-17. Specifically, Plaintiff claims the ALJ erred
(1) in evaluating her RFC, and (2) in evaluating her subjective complaints. In response, the
Defendant argues the ALJ did not err in any of his findings. ECF No. 12. Because this Court finds
the ALJ improperly evaluated Plaintiff’s RFC, this Court will only address this issue Plaintiff raised.
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 score of 45 on September 27,
2007 in a diagnostic interview conducted by Western Arkansas Counseling and Guidance Center.
(Tr. 294). Also, on January 23, 2008 Plaintiff was seen by Dr. Kathleen Kralik for a Mental
Diagnostic Evaluation. (Tr. 253-259). Dr. Kralik assessed Plaintiff with a GAF score of 45-55. (Tr.
258). The ALJ’s opinion contained no mention of these GAF scores.
It was the ALJ’s responsibility to 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. Indeed, it is especially important that the ALJ address low GAF scores where, as in this case,
Plaintiff has been diagnosed with major depressive disorder. (Tr. 207, 258, 294). Thus, considering
these facts, because the ALJ did not evaluate Plaintiff’s low GAF scores, this case must be reversed
and remanded for further evaluation of these scores. Upon remand, the ALJ may still find Plaintiff
not disabled, however a proper and complete analysis of Plaintiff’s GAF scores should be
Based on the foregoing, the undersigned finds that the decision of the ALJ, denying benefits
Based on these findings, I do not find it necessary to reach to other point of error raised by the Plaintiff in
to Plaintiff, is not supported by substantial evidence and should be reversed and remanded. A
judgment incorporating these findings will be entered pursuant to Federal Rules of Civil Procedure
52 and 58.
ENTERED this 24th day of January, 2012.
/s/ Barry A. Bryant
HON. BARRY A. BRYANT
U.S. MAGISTRATE JUDGE
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