Morgan v. Social Security Administration Commissioner

Filing 10

MEMORANDUM OPINION. Signed by Honorable Barry A. Bryant on July 5, 2011. (cap)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
TEXARKANA DIVISION
DONNA MORGAN
vs.

PLAINTIFF
Civil No. 4:10-cv-04078

MICHAEL J. ASTRUE
Commissioner, Social Security Administration

DEFENDANT

MEMORANDUM OPINION
Donna Morgan (“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”) under Title XVI 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 her SSI application on June 2, 2008.2 (Tr. 9, 93). In her
application, Plaintiff alleged she was disabled due to bipolar disorder, major depression, emphysema,
bladder control issues, anxiety, osteoporosis, and rheumatoid arthritis. (Tr. 97). Plaintiff alleged an

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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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The ALJ’s opinion states the protective filing date was June 2, 2008 (Tr. 9), but the Disability Report from
the Field Office states the protective filing date was June 6, 2008 (Tr. 93). Because there does not appear to be a
dispute on this issue, this Court presumes the earlier date is the correct date.

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onset date of May 1, 2008. (Tr. 9, 93). This application was denied initially and again upon
reconsideration. (Tr. 45-46).
Thereafter, Plaintiff requested an administrative hearing on her application, and this hearing
request was granted. (Tr. 58-83). An administrative hearing was held on October 22, 2009 in
Texarkana, Arkansas. (Tr. 27-44). Plaintiff was present and was represented by counsel, Mike
Angel, at this hearing. Id. Plaintiff and Vocational Expert (“VE”) Mack Welch testified at this
hearing. Id. On the date of this hearing, Plaintiff was fifty-two (52) years old, which is defined as
a “person closely approaching advanced age” under 20 C.F.R. § 404.1563(d) (2008), and had
completed high school. (Tr. 30-31).
On December 2, 2009, the ALJ entered an unfavorable decision on Plaintiff’s SSI application.
(Tr. 9-21). In this decision, the ALJ determined Plaintiff had not engaged in Substantial Gainful
Activity (“SGA”) since June 2, 2008, her application date. (Tr. 11, Finding 1). The ALJ determined
Plaintiff had the following severe impairments: chronic obstructive pulmonary disease; major
depressive disorder, recurrent; agoraphobia with panic attacks; and personality disorder, not otherwise
specified. (Tr. 11, Finding 2). The ALJ also determined none of Plaintiff’s impairments, singularly
or in combination, met the Listing of Impairments in Appendix 1 to Subpart P of Regulations No. 4
(“Listings”). (Tr. 11-12, Finding 3).
In this decision, the ALJ evaluated Plaintiff’s subjective complaints and determined her RFC.
(Tr. 12-19, Finding 4). First, the ALJ evaluated Plaintiff’s subjective complaints and determined they
were not credible to the extent she alleged disabling limitations. Id. Second, the ALJ determined
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 perform light work as defined in 20 CFR
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416.967(b). The claimant can occasionally lift 20 pounds and 10 pounds frequently;
she can stand/walk for 6 hours during an 8 hour work day; and sit for a total of 6 hours
during an 8 hour workday. Due to her symptoms of chronic obstructive pulmonary
disease, the claimant should avoid concentrated exposure to odors, dust, fumes, gases
and poor ventilation. In addition, the [sic] can only have interpersonal contact which
is incidental to the work performed; tasks must be learned by rote and require limited
judgment. The claimant would require little supervision for routine tasks but detailed
supervision for non-routine tasks.
(Tr. 12-13, Finding 4).
The ALJ evaluated Plaintiff’s Past Relevant Work (“PRW”), and the ALJ found Plaintiff had
no PRW. (Tr. 19, Finding 5). The ALJ did, however, find Plaintiff retained the ability to perform
other work existing in significant numbers in the national economy. (Tr. 19-20, Finding 9). The ALJ
based this finding upon the testimony of the VE. Id. Specifically, the VE testified in response to a
question from the ALJ that a hypothetical individual with Plaintiff’s limitations retained the ability
to perform work as a (1) nut and bolt assembler with approximately 1,100 such jobs in the Arkansas
economy, 130,000 in the regional economy, and 1.1 million in the national economy and (2) table
inspector with 2,000 such jobs in the Arkansas economy, 60,000 in the regional economy, and
300,000 in the national economy. Id. The ALJ then determined Plaintiff had not been under a
disability, as defined by the Act, from June 2, 2008 through the date of his decision or through
December 2, 2009. (Tr. 20, Finding 10).
Subsequent to the ALJ’s decision, on December 19, 2009, Plaintiff requested that the Appeals
Council review the ALJ’s unfavorable decision. (Tr. 4-5). See 20 C.F.R. § 404.968. On April 14,
2010, the Appeals Council declined to review this unfavorable decision. (Tr. 1-3). On June 3, 2010,
Plaintiff filed the present appeal. ECF No. 1. The Parties consented to the jurisdiction of this Court
on June 16, 2010. ECF No. 5. Both Parties have filed appeal briefs. ECF Nos. 8-9. This case is now
ready for decision.
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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).
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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).
3. Discussion:
In her appeal brief, Plaintiff claims the ALJ’s unfavorable disability determination is not
supported by substantial evidence in the record. ECF No. 8. Specifically, Plaintiff claims (1) the ALJ
erred by failing to adequately consider her mental impairments in determining her RFC and (2) the
ALJ erred by relying on an improper hypothetical question which was posed to the VE. Id. Because
the ALJ failed to properly consider Plaintiff’s alleged mental impairment, this Court will only address
Plaintiff’s first argument for reversal.
In social security cases, 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 a mental
impairment. GAF scores range from 0 to 100. Am. Psychiatric Ass’n, Diagnostic & Statistical
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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, 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 (quoting Am. Psychiatric Ass’n, Diagnostic & Statistical Manual of Mental Disorders (DSM-IVTR) 34 (4th ed., text rev. 2000)).
In the present action, Plaintiff was assessed as having a GAF score of 40 during her
appointments with Southwest Arkansas Counseling and Mental Health Center on July 7, 2008,
January 6, 2009, and June 17, 2009. (Tr. 231, 271, 273). The ALJ did not discuss these low GAF
scores in his opinion. (Tr. 9-20). Defendant claims the ALJ did not need to discuss these scores
because they were “completely unreliable.” ECF No. 9 at 6. However, it is not this Court’s function
to assess the reliability of these scores as a part of this appeal; instead, it was the ALJ’s responsibility
to evaluate those 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 (recurrent), agoraphobia with panic
attacks, and personality disorder (not otherwise specified). (Tr. 231). Additionally, Plaintiff had a
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history of auditory hallucinations wherein she reportedly heard two “imaginary friends” named “Fred
and Sam.” (Tr. 273). Plaintiff has also suffered from anxiety. (Tr. 273). Thus, considering these
facts, because the ALJ did not evaluate Plaintiff’s low GAF scores, this case must be reversed and
remanded for further evaluation of these scores.
On remand, the ALJ should also evaluate whether Plaintiff’s alcohol use is a “contributing
factor material” to the determination of disability. See 20 C.F.R. § 416.935 (2010). Plaintiff has
reported having an alcohol abuse problem. (Tr. 273). Notably, Plaintiff was found to smell of
alcohol during one of her appointments, admitted “to alcohol use since the age of 18,” and admitted
to drinking at least eight beers a week.3 (Tr. 273). If the ALJ finds on remand that Plaintiff’s alcohol
use is a “contributing factor material” to a determination of disability, she cannot receive SSI benefits.
See 42 U.S.C. § 423(d)(2)(C).
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 5th day of July, 2011.
/s/ Barry A. Bryant
HON. BARRY A. BRYANT
U.S. MAGISTRATE JUDGE

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Plaintiff’s clinician questioned this report, however, apparently believing the number of beers she
consumed in one week was a far greater number. (Tr. 273). Indeed, during the administrative hearing in this case,
Plaintiff reported to drinking a six pack a day. (Tr. 38).

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