Burger v. Social Security Administration Commissioner
MEMORANDUM OPINION. Signed by Honorable Barry A. Bryant on October 24, 2012. (lw)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
RICHARD C. BURGER
Civil No. 3:11-cv-03069
MICHAEL J. ASTRUE
Commissioner, Social Security Administration
Richard Burger (“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”), 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. 8.1
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 November 13, 2008. (Tr. 10,
116-125). Plaintiff alleged he was disabled due to back problems and mental problems. (Tr. 153,
166). Plaintiff alleged an onset date of April 1, 2007. (Tr. 195). These applications were denied
initially and again upon reconsideration. (Tr. 70-79, 82-85). Thereafter, Plaintiff requested an
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.”
administrative hearing on his applications and this hearing request was granted. (Tr. 86-87).
Plaintiff’s administrative hearing was held on March 24, 2010, in Fort Smith, Arkansas. (Tr.
25-69). Plaintiff was present and was represented by counsel, Frederick Spencer, at this hearing.
Id. Plaintiff and Vocational Expert (“VE”) John Massey, testified at this hearing. Id. At the time
of this hearing, Plaintiff was thirty-three (33) years old, which is defined as a “younger person” under
20 C.F.R. § 404.1563(c), and had a high school education. (Tr. 29).
On August 27, 2010, the ALJ entered an unfavorable decision denying Plaintiff’s application
for DIB and SSI. (Tr. 10-19). In this decision, the ALJ determined Plaintiff had not engaged in
Substantial Gainful Activity (“SGA”) since September 1, 2007. (Tr. 12, Finding 2). The ALJ
determined Plaintiff had the severe impairments of personality disorder, degenerative disc disease
of the lumbar spine, and substance abuse. (Tr. 12, 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. 12, Finding 4).
In this decision, the ALJ evaluated Plaintiff’s subjective complaints and determined his RFC.
(Tr. 14-18, Finding 5). 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 light work except could only occasionally crouch, stoop, and climb ladders, ropes and
scaffolds; could frequently balance, kneel, crawl, and climb ramps and stairs; was able to perform
work where interpersonal contact is incidental to work performed; complexity of tasks is learned and
performed by rote with few variables and requiring little judgment; and supervision required was
simple, direct, and concrete. Id.
The ALJ evaluated Plaintiff’s Past Relevant Work (“PRW”). (Tr. 18, Finding 6). The ALJ
determined Plaintiff was able to perform his PRW of assembly line worker. Id. In the alternative,
the ALJ also found Plaintiff retained the ability to perform other work existing in significant
numbers in the national economy. Id. 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 nut and bolt assembly worker with 450 such jobs in the region and
13,000 in the national economy, bench assembly worker with 200 such jobs in the region and 11,000
in the national economy, and work as a hand packer with 320 such jobs in the region and 32,000 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 7).
Thereafter, Plaintiff requested the Appeals Council review the ALJ’s unfavorable decision.
(Tr. 114). See 20 C.F.R. § 404.968. The Appeals Council declined to review this unfavorable
decision. (Tr. 1-3). On August 15, 2011, Plaintiff filed the present appeal. ECF No. 1. The Parties
consented to the jurisdiction of this Court on November 22, 2011. ECF No. 8. Both Parties have
filed appeal briefs. ECF Nos. 12, 13. 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 his appeal brief, Plaintiff claims the ALJ’s disability determination is not supported by
substantial evidence in the record. ECF No. 12, Pg. 11-21. Specifically, Plaintiff claims the ALJ
erred (1) in failing to fully develop the record, (2) by finding Plaintiff’s past substance abuse was a
severe impairment, (3) in determining Plaintiff’s RFC, and (4) failed to give proper treatment to the
opinions of Plaintiff’s treating physician. In response, the Defendant argues the ALJ did not err in
any of his findings. ECF No. 13. Because this Court finds the ALJ erred in the RFC determination
of Plaintiff, this Court will only address this issue.
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).
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 February 16, 2009, Plaintiff was seen by Dr. Robert Hudson for a Mental Diagnostic
Evaluation. (Tr. 312-315). Plaintiff was diagnosed with Depressive Disorder and given a GAF score
of 55. (Tr. 314). On March 30, 2009 Plaintiff was seen by Dr. Christopher Winslow for a
Psychiatric Evaluation. (Tr. 375-378). Dr. Winslow diagnosed Plaintiff with an anxiety disorder
and depression. (Tr. 377). Plaintiff was a GAF score of 45. Id. Finally, on April 26, 2010, Plaintiff
was seen by Dr. Vann Smith for a Neuropsychological Evaluation. (Tr. 394-402). Plaintiff’s GAF
score was 40. (Tr. 398).
The ALJ’s opinion made no reference to Plaintiff’s GAF scores. 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, anxiety disorder, and depression. (Tr. 314, 352).
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
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 24th day of October 2012.
/s/ Barry A. Bryant
HON. BARRY A. BRYANT
U.S. MAGISTRATE JUDGE
Based on these findings, I do not find it necessary to reach to other points of error raised by the Plaintiff in
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