Pack v. Social Security Administration Commissioner
MEMORANDUM OPINION. Signed by Honorable Mark E. Ford on June 3, 2015. (lw)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FORT SMITH DIVISION
Civil No. 14-2080
CAROLYN COLVIN, Commissioner
Social Security Administration
Plaintiff, Amanda Pack, brings this action pursuant to 42 U.S.C. § 405(g), seeking judicial
review of a decision of the Commissioner of the Social Security Administration (Commissioner)
finding that her child’s disability ended on February 1, 2011, and that she was no longer disabled
and entitled to supplemental security income (“SSI”) under Title XVI of the Social Security Act
(hereinafter “the Act”), 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). In this judicial review, the
court must determine whether there is substantial evidence in the administrative record to support
the Commissioner’s decision. See 42 U.S.C. § 405(g).
In September 2005, the Commissioner approved Plaintiff’s child disability application and
granted benefits. Tr. 9. On February 15, 2011, after Plaintiff turned 18 years of age, the
Commissioner reassessed her disability claim and determined she was no longer disabled as of
February 1, 2011. Tr. 53, 111. This decision was upheld upon reconsideration, and the Plaintiff
requested an administrative hearing. Tr. 53. Subsequently, an administrative hearing was held on
January 3, 2013. Tr. 6-49.
At the time of the hearing, the Plaintiff was 20 years old and possessed a high school
education. Tr. 9. Plaintiff had no past relevant work (“PRW”) experience.
On March 25, 2013, the ALJ found Plaintiff’s Asperger syndrome1 and oppositional defiant
disorder (“ODD”) were severe, but did not meet or medically equal one of the listed impairments
in Appendix 1, Subpart P, Regulation No. 4. Tr. 55-56. After partially discrediting Plaintiff’s
subjective complaints, the ALJ determined that Plaintiff retained the residual functional capacity
(“RFC”) to perform a full range of work at all exertional levels with the following limitations:
She can understand, remember and carry out simple, routine, repetitive tasks. She
can respond to usual work situations and routine work changes. She can respond
to supervision that is simple, direct and concrete. The claimant can occasionally
interact with supervisors, coworkers and the public.
Tr. 56. With the assistance of a vocational expert, the ALJ then found Plaintiff could perform
work as a hand packager (medium level), dining room attendant (medium level), and laundry
worker (light level). Tr. 61.
The Appeals Council denied review on February 19, 2014. Tr. 3-5. Subsequently, Plaintiff
filed this action. ECF No. 1. This case is before the undersigned by consent of the parties. ECF
No. 7. Both parties have filed appeal briefs, and the case is now ready for decision. ECF Nos. 9,
This court’s role is to determine whether substantial evidence supports the Commissioner’s
findings. Ramirez v. Barnhart, 292 F.3d 576, 583 (8th Cir. 2002). Substantial evidence is less
than a preponderance but it is enough that a reasonable mind would find it adequate to support the
Commissioner's decision. We must affirm the ALJ’s decision if the record contains substantial
Asperger syndrome or disorder is a developmental disorder resembling autism that is characterized by impaired
social interaction, repetitive patterns of behavior, restricted interests, atypical sensory responses (exquisite
sensitivity to noises, food, odors, or tastes, or clothing textures), and pragmatic deficits (extremely concrete use of
language, difficulty recognizing irony or jokes). Autism Spectrum Disorders, THE MERCK MANUAL 3039 (19th
edition 2011). Individuals suffering from Asperger generally have normal language and cognitive development and
often have above average performance in a narrow field against a general background of deficient functioning.
Asperger Syndrome, Autism Speaks, https://www.autismspeaks.org/what-autism/asperger-syndrome (last accessed
June 2, 2015).
evidence to support it. Edwards v. Barnhart, 314 F.3d 964, 966 (8th Cir. 2003). 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. Haley v.
Massanari, 258 F.3d 742, 747 (8th Cir. 2001). In other words, 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, we must affirm the decision of the ALJ. 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 her disability by establishing a physical or mental disability that has lasted at least one
year and that prevents her from engaging in any substantial gainful activity. Pearsall v. Massanari,
274 F.3d 1211, 1217 (8th Cir.2001); see also 42 U.S.C. § § 423(d)(1)(A), 1382c(a)(3)(A). The
Act defines “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 their impairment, has lasted for at least twelve
The Commissioner’s regulations require her to apply a five-step sequential evaluation
process to each claim for disability benefits: (1) whether the claimant has engaged in substantial
gainful activity since filing her claim; (2) whether the claimant has a severe physical and/or mental
impairment or combination of impairments; (3) whether the impairment(s) meet or equal an
impairment in the listings; (4) whether the impairment(s) prevent the claimant from doing past
relevant work; and, (5) whether the claimant is able to perform other work in the national economy
given her age, education, and experience. See 20 C.F.R. § § 404.1520(a)- (f)(2003). Only if the
final stage is reached does the fact finder consider the plaintiff’s age, education, and work
experience in light of his or her residual functional capacity. See McCoy v. Schweiker, 683 F.2d
1138, 1141-42 (8th Cir. 1982); 20 C .F.R. § § 404.1520, 416.920 (2003).
Of particular concern to the undersigned is the ALJ’s failure to properly develop the record.
The ALJ owes a duty to a claimant to develop the record fully and fairly to ensure his decision is
an informed decision based on sufficient facts. See Stormo v. Barnhart, 377 F.3d 801, 806 (8th
Cir. 2004). The ALJ is only required to develop a reasonably complete record. See Clark v.
Shalala, 28 F.3d 828, 830 (8th Cir. 1994). In determining whether an ALJ has fully and fairly
developed the record, the proper inquiry is whether the record contained sufficient evidence for
the ALJ to make an informed decision. See Haley v. Massanari, 258 F.3d 742, 748 (8th Cir. 2001).
In the present case, Plaintiff was awarded child SSI benefits due to Asperger syndrome and
oppositional defiant disorder. As previously stated, upon her 18th birthday, the Commissioner
determined she was no longer disabled. In upholding this decision, the ALJ relied upon a mental
evaluation conducted by Dr. Steve Shry, dated February 3, 2011. Tr. 339-341. Testing revealed
a full scale IQ of 100, indicative of average intelligence. Her subtest scores were consistent, with
the exception of her coding score. Plaintiff earned a coding score of 3, indicating speed and fine
motor deficits. Dr. Shry noted “[t]he claimant tended to perseverate on forming each symbol very
carefully with much time spent erasing in order to meet the required order that claimant seemed to
desire. This behavior is consistent with her diagnosis.” He then diagnosed her with Asperger
disorder and assessed her with a global assessment of functioning (“GAF”) of 70-81. However,
the section wherein Dr. Shry identified the effect of the Plaintiff’s mental impairments on her
adaptive functioning is missing. Clearly, this information is of vital importance to the ALJ’s
decision. And, without it, the undersigned is unable to conclude that substantial evidence supports
the ALJ’s decision.2
Accordingly, remand is necessary to allow the ALJ to obtain the full and complete mental
diagnostic and psychometric evaluation completed by Dr. Shry. Given the nature of the Plaintiff’s
impairment and the limited objective evidence available, on remand, the ALJ should also ask Dr.
Shry for a full and complete a mental RFC assessment.
Accordingly, we conclude that the ALJ’s decision is not supported by substantial evidence
and should be reversed and remanded to the Commissioner for further consideration pursuant to
sentence four of 42 U.S.C. § 405(g).
DATED this 3rd day of June, 2015.
Mark E. Ford
HONORABLE MARK E. FORD
UNITED STATES MAGISTRATE JUDGE
The only other evidence of record documents the Plaintiff’s treatment for Asperger syndrome and oppositional
defiant disorder throughout her school years, with notations that she had delayed visual-motor abilities, deficient
social skills, difficulty coping in certain situations, sensory processing difficulties, and serious problems with focus
and completion of assigned tasks. Tr. 169-176, 189, 191, 263-268, 269-277, 287-292, 295-297.
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