Wright v. Social Security Administration Commissioner

Filing 10

MEMORANDUM OPINION Signed by Honorable Barry A. Bryant on October 16, 2012. (sh)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
HARRISON DIVISION
DAVID J. WRIGHT
vs.

PLAINTIFF
Civil No. 3:11-cv-03047

MICHAEL J. ASTRUE
Commissioner, Social Security Administration

DEFENDANT

MEMORANDUM OPINION
David J. Wright (“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 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 July 17, 2007. (Tr. 9, 134-136). Plaintiff
alleged he was disabled due to a knee injury with pain in his knees and legs. (Tr. 152, 190). Plaintiff
alleged an onset date of January 17, 2005. (Tr. 152). These applications were denied initially and
again upon reconsideration. (Tr. 72-77). Thereafter, Plaintiff requested an administrative hearing
on his application and this hearing request was granted. (Tr. 81).

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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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Plaintiff’s administrative hearing was held on January 22, 2010, in Harrison, Arkansas. (Tr.
24-71). Plaintiff was present and was represented by counsel, Rick Spencer, at this hearing. Id.
Plaintiff, his wife Karen Wright and sister Penny Delk, and Vocational Expert (“VE”) Dale Thomas,
testified at this hearing. Id. At the time of this hearing, Plaintiff was forty-seven (47) years old,
which is defined as a “younger person” under 20 C.F.R. § 404.1563(c), and had completed the 7th
grade. (Tr. 28).
On July 16, 2010, the ALJ entered an unfavorable decision denying Plaintiff’s application
for SSI. (Tr. 9-18). In this decision, the ALJ determined Plaintiff had not engaged in Substantial
Gainful Activity (“SGA”) since July 17, 2007. (Tr. 11, Finding 1). The ALJ determined Plaintiff
had the severe impairments of chondromalacia patella bilaterally status post left knee surgery,
adjustment order with mixed anxiety and depressed mood, major depressive disorder and depressive
disorder not otherwise specified, generalized anxiety disorder, and cluster B personality traits. (Tr.
11, 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. 11, Finding 3).
In this decision, the ALJ evaluated Plaintiff’s subjective complaints and determined his RFC.
(Tr. 13-17, Finding 4). First, the ALJ evaluated Plaintiff’s subjective complaints and found his
claimed limitations were not entirely credible. Id. Second, the ALJ determined Plaintiff retained
the RFC for sedentary work. (Tr. 13). The ALJ also determined Plaintiff must avoid working at
unprotected heights or around moving machinery; climbing, kneeling, crouching, or crawling; and
the operation of foot controls. Id. In addition, Plaintiff was limited to occasional balancing and
stooping, and he needed work where interpersonal contact was incidental to the work performed; the

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complexity of tasks was learned and performed by rote with few variables; little judgment was
needed; and the supervision required was simple, direct, and concrete. Id.
The ALJ evaluated Plaintiff’s Past Relevant Work (“PRW”). (Tr. 17, Finding 5). The ALJ
determined Plaintiff was unable to perform his PRW. Id. The ALJ did, however, find Plaintiff
retained the ability to perform other work existing in significant numbers in the national economy.
(Tr. 17-18, Finding 9). The ALJ based this finding upon the testimony of the VE. Id. Specifically,
the VE testified that a hypothetical individual with Plaintiff’s limitations retained the ability to
perform work as a patcher/production worker with 1,500 such jobs in the region and 106,000 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. 18, Finding 10).
Thereafter, Plaintiff requested the Appeals Council review the ALJ’s unfavorable decision.
(Tr. 5). See 20 C.F.R. § 404.968. The Appeals Council declined to review this unfavorable decision.
(Tr. 1-3). On July 1, 2011, Plaintiff filed the present appeal. ECF No. 1. The Parties consented to
the jurisdiction of this Court on October 14, 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
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

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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
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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 his appeal brief, Plaintiff claims the ALJ’s disability determination is not supported by
substantial evidence in the record. ECF No. 8, Pg. 13-21. Specifically, Plaintiff claims the ALJ
erred (1) in determining Plaintiff’s RFC, (2) in failing to find Plaintiff met Listing 1.03, (3) in failing
to propound a proper hypothetical to the VE, and (4) in the credibility determination of Plaintiff. 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 and erred in the credibility determination
of Plaintiff, this Court will only address these issues.
A. RFC
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)).

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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).
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).
On November 12, 2007, Plaintiff was seen by Dr. Stephen Harris for a Mental Diagnostic
Evaluation. (Tr. 303-307). Plaintiff was diagnosed with adjustment disorder and given a GAF score
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of 52.

(Tr. 306).

On December 15, 2009, Plaintiff was seen by Dr. Vann Smith for a

Neuropsychological Evaluation. (Tr. 387-396). He was given a GAF score of 35. (Tr. 392).
Finally, Plaintiff was seen again by Dr. Harris for a second Mental Diagnostic Evaluation on May
4,2010. (Tr. 397-401). Plaintiff was diagnosed with major adjustment disorder and given a GAF
score of 47. (Tr. 400).
The ALJ’s opinion only briefly discussed Plaintiff’s GAF scores and made the following
findings:
The undersigned notes that the claimant’s GAF scores on his three mental status
evaluations were 35, 47, and 52. While GAF scores area a useful tool in managing an
individual’s care and treatment, they provide a picture of current functioning and can
vary widely from day to day as indicated by the claimant’s scores. Therefore, although
the claimant’s scores are supportive of his mood variations, the undersigned does not
lend them significant weight in arriving at a decision in this case.
(Tr. 16-17).
Although the ALJ did set out a limited discussion and analysis of the GAF score from Dr.
Smith, (Tr. 15), no such similar analysis was done for the GAF scores found by Dr. Harris. 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.
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 and depression. (Tr. 306, 315, 362,
400).
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.
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B. Credibility Determination
In assessing the credibility of a claimant, the ALJ is required to examine and to apply the five
factors from Polaski v. Heckler or from 20 C.F.R. § 404.1529 and 20 C.F.R. § 416.929.2 See Shultz
v. Astrue, 479 F.3d 979, 983 (2007). The factors to consider are as follows: (1) the claimant’s daily
activities; (2) the duration, frequency, and intensity of the pain; (3) the precipitating and aggravating
factors; (4) the dosage, effectiveness, and side effects of medication; and (5) the functional
restrictions. See Polaski, 739 at 1322. The factors must be analyzed and considered in light of the
claimant’s subjective complaints of pain. See id. The ALJ is not required to methodically discuss
each factor as long as the ALJ acknowledges and examines these factors prior to discounting the
claimant’s subjective complaints. See Lowe v. Apfel, 226 F.3d 969, 971-72 (8th Cir. 2000). As long
as the ALJ properly applies these five factors and gives several valid reasons for finding that the
Plaintiff’s subjective complaints are not entirely credible, the ALJ’s credibility determination is
entitled to deference. See id.; Cox v. Barnhart, 471 F.3d 902, 907 (8th Cir. 2006). The ALJ,
however, cannot discount Plaintiff’s subjective complaints “solely because the objective medical
evidence does not fully support them [the subjective complaints].” Polaski, 739 F.2d at 1322.
When discounting a claimant’s complaint of pain, the ALJ must make a specific credibility
determination, articulating the reasons for discrediting the testimony, addressing any
inconsistencies, and discussing the Polaski factors. See Baker v. Apfel, 159 F.3d 1140, 1144 (8th
Cir. 1998). The inability to work without some pain or discomfort is not a sufficient reason to find

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Social Security Regulations 20 C.F.R. § 404.1529 and 20 C.F.R. § 416.929 require the analysis of two
additional factors: (1) “treatment, other than medication, you receive or have received for relief of your pain or other
symptoms” and (2) “any measures you use or have used to relieve your pain or symptoms (e.g., lying flat on your
back, standing for 15 to 20 minutes every hour, sleeping on a board, etc.).” However, under Polaski and its progeny,
the Eighth Circuit has not yet required the analysis of these additional factors. See Shultz v. Astrue, 479 F.3d 979,
983 (2007). Thus, this Court will not require the analysis of these additional factors in this case.

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a Plaintiff disabled within the strict definition of the Act. The issue is not the existence of pain, but
whether the pain a Plaintiff experiences precludes the performance of substantial gainful activity.
See Thomas v. Sullivan, 928 F.2d 255, 259 (8th Cir. 1991).
In the present action, the ALJ did not perform a proper Polaski analysis. While the ALJ
indicated the factors from 20 C.F.R. § 416.929 had been considered (Tr. 13), a review of the ALJ’s
opinion shows that instead of evaluating these factors and noting inconsistencies between Plaintiff’s
subjective complaints and the evidence in the record, the ALJ merely reviewed the medical records
and recognized the proper legal standard for assessing credibility.3
Other than mentioning Plaintiff’s daily activities, the ALJ made no other specific findings
regarding the inconsistencies between Plaintiff’s claimed subjective complaints and the record
evidence. The ALJ must make a specific credibility determination, articulate the reasons for
discrediting the Plaintiff’s testimony, and address any inconsistencies between the testimony and the
record. The ALJ failed to perform this analysis.
This lack of analysis is insufficient under Polaski, and this case should be reversed and
remanded for further consideration consistent with Polaski. Upon remand, the ALJ may still find
Plaintiff not disabled, however a proper and complete analysis pursuant to Polaski should be
performed.4
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
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The ALJ also did not even specifically reference the Polaski factors which, although not required, is the
preferred practice. See Schultz v. Astrue, 479 F.3d 979, 983 (8th Cir. 2007).
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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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judgment incorporating these findings will be entered pursuant to Federal Rules of Civil Procedure
52 and 58.
ENTERED this 16th day of October 2012.

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

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