Harris v. Social Security Administration Commissioner

Filing 10

MEMORANDUM OPINION. Signed by Honorable Barry A. Bryant on March 1, 2012. (lw)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
HARRISON DIVISION
TWONETT R. HARRIS
vs.

PLAINTIFF
Civil No. 3:10-cv-03101

MICHAEL J. ASTRUE
Commissioner, Social Security Administration

DEFENDANT

MEMORANDUM OPINION
Twonett R. Harris (“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 application for
Supplemental Security Income (“SSI”) and a period of disability 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.
1. Background:
Plaintiff protectively filed an application for SSI on April 11, 2008. (Tr. 114-122). Plaintiff
alleged she was disabled due to mental illness, osteoarthritis, ulcers, migraine headaches, depression,
acid reflux, diverticulitis, endometriosis, asthma, sleep apnea, high blood pressure, disc disease, and
anemia. (Tr. 115). Plaintiff alleged an onset date of November 1, 2007. (Tr. 115). These
applications were denied initially and again upon reconsideration. (Tr. 55-62). Thereafter, Plaintiff

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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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requested an administrative hearing on her application, and this hearing request was granted. (Tr.
63-64).
Plaintiff’s administrative hearing was held on August 21, 2009, in Harrison, Arkansas. (Tr.
20-33). Plaintiff was present and was represented by counsel, Frederick Spencer, at this hearing.
Id. Plaintiff and Vocational Expert (“VE”) Dale Thomas, testified at this hearing. Id. At the time
of this hearing, Plaintiff was thirty-nine (39) years old, which is defined as a “younger person” under
20 C.F.R. § 404.1563(c), and had completed the 12tth grade. (Tr. 24).
On April 9, 2009, the ALJ entered an unfavorable decision denying Plaintiff’s application
for SSI. (Tr. 8-15). In this decision, the ALJ determined Plaintiff had not engaged in Substantial
Gainful Activity (“SGA”) since April 11, 2008. (Tr. 10, Finding 1). The ALJ determined Plaintiff
had the severe impairment of degenerative joint disease of the knees, depression, pain disorder,
obesity, and back and hip pain. (Tr. 10, Finding 2). 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. 10, Finding 3).
In this decision, the ALJ evaluated Plaintiff’s subjective complaints and determined her RFC.
(Tr. 12-14, Finding 4). 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 to perform sedentary work except for the following; no pushing or pulling with bilateral
lower extremities; occasional climbing of ramps and stairs; no climbing of ladders, ropes, or
scaffolds; no kneeling or crawling; and occasional crouching. (Tr. 12). Further, the ALJ found
Plaintiff must work where instructions are simple and non-complex and where the complexity of
tasks was learned and performed by rote. Id. The ALJ also found the work had to be routine and

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repetitive with few variables, where little judgment is required and the supervision required is
simple, direct, and concrete. Id.
The ALJ evaluated Plaintiff’s Past Relevant Work (“PRW”). (Tr. 14, Finding 5). The ALJ
determined Plaintiff was unable to perform her PRW. Id. The ALJ did, however, find Plaintiff
retained the ability to perform other work existing in significant numbers in the national economy.
(Tr. 14-15, Finding 9). The ALJ based this finding upon the testimony of the VE. Id. Specifically,
the VE testified in response to interrogatories from the ALJ that a hypothetical individual with
Plaintiff’s limitations retained the ability to perform work as a production worker with 1,500 such
jobs in Arkansas and 106,000 in the national economy, as a credit authorizer with 200 such jobs in
Arkansas and 48,000 in the national economy, and as a charge account clerk with 200 such jobs in
Arkansas and 23,000 in the national economy. Id. The ALJ then determined Plaintiff had not been
under a disability, as defined by the Act, at anytime through the date of his decision. (Tr. 15, Finding
10).
Thereafter, Plaintiff requested the Appeals Council review the ALJ’s unfavorable decision.
(Tr. 4). See 20 C.F.R. § 404.968. The Appeals Council declined to review this unfavorable decision.
(Tr. 1-3). On November 8, 2010, Plaintiff filed the present appeal. ECF No. 1. The Parties
consented to the jurisdiction of this Court on February 16, 2011. ECF No. 5. Both Parties have filed
appeal briefs. ECF Nos. 8, 9. 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

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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)
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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).
3. Discussion:
In her appeal brief, Plaintiff claims the ALJ’s disability determination is not supported by
substantial evidence in the record. ECF No. 8 at 10-20. Specifically, Plaintiff claims the ALJ erred
(1) in determining her RFC and (2) by failing to properly consider the opinion of Plaintiff’s treating
physician. In response, the Defendant argues the ALJ did not err in any of his findings. ECF No.
9. Because this Court finds the ALJ improperly evaluated Plaintiff’s RFC, this Court will only
address this issue.
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
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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).
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).
In the present action, Plaintiff was assessed as having a GAF score of 30 during a
Neuropsychological Evaluation conducted by Dr. Vann Smith on November 11, 2008. (Tr. 287).
On November 2, 2009, Plaintiff was seen by Dr. Stephen Harris for a Mental Diagnostic Evaluation.
(Tr. 307-312). Plaintiff was assessed as having a GAF score of 52. (Tr. 311).
The ALJ’s opinion only briefly discussed Plaintiff’s GAF score of 30. The ALJ gave Dr.
Smith’s evaluation little weight because he failed to review Plaintiff’s past medical records and
because a credibility determination from a previous mental evaluation was given great weight. (Tr.
13-14). This was the extent of the ALJ’s evaluation. 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
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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 depression
and bipolar disorder. (Tr. 238, 248, 283, 287, 311).
Thus, considering these facts, because the ALJ did not properly 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 performed.2
4. Conclusion:
Based on the foregoing, the undersigned finds that the decision of the ALJ, denying benefits
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 1st day of March, 2012.

/s/ Barry A. Bryant
HON. BARRY A. BRYANT
U.S. MAGISTRATE JUDGE

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Based on these findings, I do not find it necessary to reach to other points of error raised by the Plaintiff in
this appeal.

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