White v. Social Security Administration Commissioner
MEMORANDUM OPINION. Signed by Honorable Barry A. Bryant on July 22, 2011. (mfr)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
BARBARA HUNT WHITE
Civil No. 4:10-cv-04058
MICHAEL J. ASTRUE
Commissioner, Social Security Administration
Barbara Hunt White (“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. 3.1 Pursuant to this authority, the
Court issues this memorandum opinion and orders the entry of a final judgment in this matter.
Plaintiff protectively filed applications for DIB and SSI on October 23, 2007. (Tr. 8, 107-115).
In these applications, Plaintiff alleged she was disabled due to back problems and a pulled muscle.
(Tr. 130). At the administrative hearing on August 12, 2009, Plaintiff also referenced her mental
problems including “crying spells” and “worry.” (Tr. 42). Plaintiff alleged an onset date of October
15, 2007. (Tr. 8, 107-115, 130). These applications were denied initially and upon reconsideration.
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.”
Thereafter, Plaintiff requested an administrative hearing on her applications, and this hearing
request was granted. (Tr. 83-106). An administrative hearing was held on August 12, 2009 in
Texarkana, Arkansas. (Tr. 16-53). Plaintiff was present and was represented by counsel, Charles
Barnett, at this hearing. Id. Plaintiff, Vocational Expert (“VE”) Charles Turner, and a witness for
Plaintiff testified at this hearing. Id. On the date of this hearing, Plaintiff was fifty-eight (58) years
old, which is defined as a “person of advanced age” under 20 C.F.R. § 404.1563(e) (2008), and had
completed the ninth grade in high school. (Tr. 20). Plaintiff was also a Certified Nurse’s Assistant
(“CNA”). (Tr. 20).
On September 23, 2009, the ALJ entered an unfavorable decision denying Plaintiff’s
applications. (Tr. 8-15). In this decision, the ALJ determined Plaintiff met the insured status
requirements of the Act through December 31, 2012. (Tr. 10, Finding 1). The ALJ determined
Plaintiff had not engaged in Substantial Gainful Activity (“SGA”) since October 15, 2007, her alleged
onset date. (Tr. 10, Finding 2). The ALJ determined Plaintiff had the following severe impairments:
obesity, neck problems, fibromyalgia, connective tissue disorder, and polyarthralgia. (Tr. 10-12,
Finding 3). The ALJ also determined, however, that none of Plaintiff’s impairments met 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 her RFC.
(Tr. 12-15, Finding 5). First, the ALJ evaluated Plaintiff’s subjective complaints and found her
claimed limitations were not entirely credible. Id. Second, the ALJ determined, based upon his review
of Plaintiff’s subjective complaints, the hearing testimony, and the evidence in the record, that Plaintiff
retained the RFC to perform the following:
After careful consideration of the entire record, the undersigned finds that the claimant
has the residual functional capacity to lift/carry 50 pounds occasionally and 25 pounds
frequently; walk/stand 6 hours and sit 6 hours in an 8-hour day; and occasionally stoop,
bend, crouch, crawl, kneel, and reach overhead.
The ALJ evaluated Plaintiff’s Past Relevant Work (“PRW”). (Tr. 15, Finding 6). The ALJ
determined Plaintiff’s PRW included work as a CNA and a mental retardation aide. Id. Based upon
her RFC, the ALJ determined Plaintiff retained the ability to perform her PRW as both a CNA and as
a mental retardation aide. Id. In accordance with that finding, the ALJ then determined Plaintiff had
not been under a disability, as defined by the Act, from October 15, 2007 through September 23, 2009,
the date of his decision. (Tr. 15, Finding 7).
Thereafter, Plaintiff requested that the Appeals Council review the ALJ’s unfavorable decision.
(Tr. 4). See 20 C.F.R. § 404.968. On March 30, 2010, the Appeals Council declined to review this
unfavorable decision. (Tr. 1-3). On May 3, 2010, Plaintiff filed the present appeal. ECF No. 1. The
Parties consented to the jurisdiction of this Court on May 5, 2010. ECF No. 3. Both Parties have filed
appeal briefs. ECF Nos. 6-7. 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 following: (1) the ALJ erred by finding her mental
impairments were non-severe and (2) the ALJ erred in evaluating her RFC. ECF No. 6 at 1-6.
Because this Court finds the ALJ erred by determining her depression and anxiety were non-severe,
this Court will only address Plaintiff’s first argument for reversal.
A claimant suffers from a severe impairment if that impairment is more than slight and if that
impairment affects the claimant’s ability to do his or her basic work activities. See Householder v.
Bowen, 861 F.2d 191, 192 n.1 (8th Cir. 1988). The Supreme Court has also held that a claimant does
not suffer from a severe impairment where the claimant only suffers from “slight abnormalities that
do not significantly limit any ‘basic work activity.’” See Bowen v. Yuckert, 482 U.S. 137, 155 (1987)
(O’Connor, S., concurring) (emphasis added); see also Brown v. Bowen, 827 F.2d 311, 311-12 (8th
Cir. 1987) (adopting Justice O’Connor’s language from Bowen v. Yuckert).
Furthermore, the standard for determining whether a claimant suffers from a severe impairment
is a low or de minimis standard. See Nicola v. Astrue, 480 F.3d 885, 887 (8th Cir. 2007) (reversing
the decision of the ALJ and holding that a diagnosis of borderline intellectual functioning should have
been considered severe because that diagnosis was supported by sufficient medical evidence). If the
ALJ errs by finding a severe impairment is not severe, the ALJ’s disability determination must be
reversed and remanded. See Nicola, 480 F.3d at 887.
In the present action, Plaintiff referenced her depression and anxiety at the administrative
hearing in this matter. (Tr. 41-42). Although Plaintiff did not specifically state these problems were
disabling, her allegations were sufficient to raise this issue:
All right, the Judge earlier in, in his questioning of you, referred to 9-F which
was Dr. Wood. Dr. Wood’s finding is of depressing, depressive disorder,
generalized anxiety disorder, also mentions pain in the back, joint and legs
which is what you’ve talked about, but would you explain to the Judge what
kind of psychological and mental problems you’re having?
I have a mental problem, crying –
Do you have crying spells?
– spells and I worry a lot.
What do you worry about?
I don’t know, I just worry, I guess, I just, I don’t have no way of taking care of
myself and –
All right. Okay.
Despite the fact Plaintiff raised the issue of whether her mental impairments were disabling,
the ALJ found Plaintiff only suffered from the following severe impairments: obesity, neck problems,
fibromyalgia, connective tissue disorder, and polyarthralgia. (Tr. 10, Finding 3). In making this
finding, the ALJ determined Plaintiff’s depression and anxiety were non-severe and did not meet the
low or de minimis standard as articulated by the Eighth Circuit and the U.S. Supreme Court. That
determination was in error. While these impairments may not necessarily be disabling, the medical
evidence demonstrates Plaintiff’s depression and anxiety cause more than slight abnormalities, which
is all that is required for an impairment to be considered “severe.”
For example, Plaintiff underwent a consultative examination for her alleged mental
impairments on May 12, 2008. (Tr. 304-312). This examination was completed by Julia M. Wood,
Ph.D. Id. As a part of this examination, Plaintiff was assessed as having depressive disorder, not
otherwise specified, and generalized anxiety disorder. (Tr. 310). Based upon this assessment, Plaintiff
was found to have a Global Assessment of Functioning (“GAF”) score of 40, which indicates Plaintiff
suffers from very severe symptoms.2 Id. Such an impairment qualifies as more than a slight
abnormality. Accordingly, because the ALJ should have found Plaintiff’s depression and anxiety were
severe impairments, this case must be reversed and remanded. See Nicola, 480 F.3d at 887.
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
ENTERED this 22nd day of July, 2011.
/s/ Barry A. Bryant
HON. BARRY A. BRYANT
U.S. MAGISTRATE JUDGE
A GAF score of 31-40 is evidence of “[s]ome impairment in reality testing or communication (e.g., speech
is at times illogical, obscure, or irrelevant) OR major impairment in several areas, such as work or school, family
relations, judgment, thinking, or mood (e.g., depressed man avoids friends, neglects family, and is unable to work;
child frequently beats up younger children, is defiant at home, and is failing at school”). DSM-IV-TR 34 (4th ed.
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