O'Keefe v. Social Security Administration Commissioner

Filing 14

MEMORANDUM OPINION. Signed by Honorable Barry A. Bryant on January 16, 2014. (mll)

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N THE UNITED STATES DISTRICT COURT WESTERN DISTRICT OF ARKANSAS TEXARKANA DIVISION DUSTY O’KEEFE vs. PLAINTIFF Civil No. 4:13-cv-04001 CAROLYN COLVIN Commissioner, Social Security Administration DEFENDANT MEMORANDUM OPINION Dusty O’Keefe (“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 Supplemental Security Income (“SSI”) and Disability Insurance Benefits (“DIB”) 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. 1. Background: Plaintiff protectively filed her disability applications on February 6, 2007. (Tr. 13, 202-206). Plaintiff alleges being disabled due to lupus, low back pain and depression. (Tr. 242, 258). Plaintiff alleges an onset date of January 15, 2007. (Tr. 242). These applications were denied initially and again upon reconsideration. (Tr. 120-126). Thereafter, Plaintiff requested an administrative hearing on her applications, and this hearing 1 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.” 1 request was granted. (Tr. 134). An administrative hearing was held on November 5, 2009. (Tr. 13). Following this hearing, the ALJ entered an unfavorable decision on Plaintiff’s application for disability benefits. (Tr. 13). On July 27, 2010, the Appeals Council granted Plaintiff’s request for review, vacated the ALJ’s decision, and remanded the matter for rehearing. (Tr. 116-119). A second administrative hearing was held on November 2, 2011. (Tr. 45-69). At the administrative hearing, Plaintiff was present and was represented by attorney Greg Giles. Id. Plaintiff, Vocational Expert (“VE”) Dr. Donald Anderson, testified at this hearing. Id. On the date of this hearing, Plaintiff was thirty-three (33) years old, which is defined as a “younger person” under 20 C.F.R. § 416.963(c) (2008) (SSI) and 20 C.F.R. § 404.1563(c) (2008) (DIB). (Tr. 48). Plaintiff also testified at this hearing she had a high school education, one year of college and obtained a Certified Nurse Assistant degree. Id. On February 2, 2012, subsequent to the hearing, the ALJ entered an unfavorable decision on Plaintiff’s applications. (Tr. 13-37). In this decision, the ALJ determined Plaintiff met the insured status requirements of the Act through December 31, 2011. (Tr. 17, Finding 1). The ALJ determined Plaintiff had not engaged in Substantial Gainful Activity (“SGA”) since January 15, 2007, her alleged onset date. (Tr. 17, Finding 2). The ALJ determined Plaintiff had severe impairments including systemic lupus erythematosus, catastrophic antiphospholipid syndrome, Addison’s disease, vasovagal syncope, depression, and substance abuse disorder. (Tr. 18, Finding 3). The ALJ also determined Plaintiff’s impairments did not meet or medically equal the requirements of any of the Listings of Impairments in Appendix 1 to Subpart P of Regulations No. 4 (“Listings”). (Tr. 23, Finding 4). In this decision, the ALJ evaluated Plaintiff’s subjective complaints and determined her Residual Functional Capacity (“RFC”). (Tr. 27, Finding 5). First, the ALJ evaluated Plaintiff’s 2 subjective complaints and found her claimed limitations were not entirely credible. Id. Second, the ALJ determined Plaintiff retained the RFC to perform the full range of light work, except the inability to perform detailed or complex job tasks. Id. The ALJ evaluated Plaintiff’s Past Relevant Work (“PRW”). (Tr. 34, Finding 6). The ALJ determined Plaintiff was unable to perform her PRW of home health aid, certified nurse assistant, and cashier. Id. The ALJ then used Medical-Vocational Guideline Rule 2012.21 to reach a conclusion of “not disabled,” based on Plaintiff’s age, education, vocational background, and residual functional capacity. See 20 C.F.R. pt. 404, subpt. P, app. 2, § 201.27. (Tr. 35, Finding 10). The ALJ then determined Plaintiff had not been under a “disability,” as defined by the Act, at any time through the date of his decision. (Tr. 36, Finding 11). On February 23, 2012, Plaintiff requested the Appeals Council’s review of the ALJ’s unfavorable decision. (Tr. 8). On November 28, 2012, the Appeals Council declined to review this disability determination. (Tr. 1-3). On January 2, 2013, Plaintiff filed the present appeal. ECF No. 1. The Parties consented to the jurisdiction of this Court on February 6, 2013. 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 3 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 4 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 and should be reversed and remanded. ECF No. 12, Pgs. 13-20. Specifically, Plaintiff claims the ALJ erred (1) in failing to find Plaintiff met a Listing, (2) in his RFC determination, (3) in the treatment given to treating physician opinions, (4) in his credibility analysis, and (5) in questioning of the VE. Id. 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 his RFC determination and by failing to fully evaluate Plaintiff’s Global Assessment of Functioning (“GAF”) scores, this Court finds Plaintiff’s case must be reversed and remanded. In social security cases, it is important for an ALJ to evaluate a claimant’s GAF score or scores 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 Manual of Mental Disorders (DSM-IV-TR) 34 (4th ed., text rev. 2000). The Eighth Circuit has repeatedly held GAF scores 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, 94445 (8th Cir. 2009) (holding that the ALJ’s RFC finding was not supported by substantial evidence in 5 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-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 underwent a psychiatric examination by Dr. Robert Peckham on September 6, 2010. (Tr. 2232-2238). As a part of that examination, Plaintiff was assessed as having a GAF score of 40. (Tr. 2238). On September 20, 2010, Plaintiff was seen on a follow-up examination. (Tr. 2226-2231). Plaintiff’s GAF score was listed as 50. (Tr. 2231). These two GAF scores represent “serious symptoms.” The ALJ only mentioned Plaintiff’s GAF scores in his opinion. (Tr. 22). The ALJ failed to analyze these scores. It was the ALJ’s responsibility to evaluate Plaintiff’s 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 adjustment disorder, anxiety, depression, and unspecified mental disorder. 6 Accordingly, because the ALJ was required to evaluate these scores and provide a reason for discounting these low GAF scores but did not do so, Plaintiff’s case must be reversed and remanded for further development of the record on this issue. See Pates-Fires, 564 F.3d at 944-45. 4. Conclusion: Based on the foregoing, the undersigned finds that the decision of the ALJ, denying benefits to Plaintiff, must be reversed and remanded. A judgment incorporating these findings will be entered pursuant to Federal Rules of Civil Procedure 52 and 58. ENTERED this 16th day of January 2014. /s/ Barry A. Bryant HON. BARRY A. BRYANT U.S. MAGISTRATE JUDGE 7

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