Van Buskirk, Jr. v. Social Security Administration Commissioner

Filing 14

MEMORANDUM OPINION. Signed by Honorable Barry A. Bryant on August 7, 2014. (mll)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
TEXARKANA DIVISION
THOMAS EARL VAN BUSKIRK, JR.
vs.

PLAINTIFF

Civil No. 4:13-cv-04075

CAROLYN W. COLVIN
Commissioner, Social Security Administration

DEFENDANT

MEMORANDUM OPINION
Thomas Earl Van Buskirk, Jr., (“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 a period of disability, Disability Insurance Benefits (“DIB”) and Supplemental
Security Income (“SSI”) 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. 7.1 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 for DIB and SSI on March 15, 2010.

(Tr. 11, 169-170). Plaintiff alleged to be disabled due to schizophrenia, paranoia, headaches,
stomach discomfort, and carpel tunnel syndrome. (Tr. 209, 248). Plaintiff alleges an onset date of
November 3, 2007, but it was later amended to November 1, 2009. (Tr. 27, 209). These applications

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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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were denied initially and again upon reconsideration. (Tr. 11, 64-65). Thereafter, Plaintiff requested
an administrative hearing, and this hearing request was granted. (Tr. 87-88).
Plaintiff’s administrative hearing was held on October 20, 2011. (Tr. 25-58). Plaintiff was
present at this hearing and was represented by counsel, Greg Giles. Id. Plaintiff and Vocational
Expert (“VE”) Russell Bowden testified at this hearing. Id. As of the date of this hearing, Plaintiff
was forty-six (46) years old, which is defined as a “younger person” under 20 C.F.R. § 404.1563(c)
(2008) (DIB) and had graduated from high school. (Tr. 29).
On February 16, 2012, the ALJ entered an unfavorable decision denying Plaintiff’s
application for DIB and SSI. (Tr. 11-18). In this decision, the ALJ found Plaintiff met the insured
status requirements of the Act through September 30, 2014. (Tr. 13, Finding 1). The ALJ also
determined Plaintiff had not engaged in Substantial Gainful Activity (“SGA”) since November 3,
2007, his alleged onset date. (Tr. 13, Finding 2).
The ALJ determined Plaintiff had the following severe impairments: schizoaffective disorder,
personality disorder, and history of substance addiction disorder in remission. (Tr. 13, 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. 13, Finding 4).
In this decision, the ALJ evaluated Plaintiff’s subjective complaints and determined his RFC.
(Tr. 14-17, Finding 5). First, the ALJ indicated he evaluated Plaintiff’s subjective complaints and
found his claimed limitations were not entirely credible. Id. Second, the ALJ determined Plaintiff
retained the RFC to perform the full range of work at all exertional levels but with the following
non-exertional mental limitations: simple, routine tasks with no more than occasional contact with
the general public and with co-workers. Id.
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The ALJ evaluated Plaintiff’s Past Relevant Work (“PRW”). (Tr. 17). The ALJ found
Plaintiff unable to perform his PRW. (Tr. 17, Finding 6). The ALJ, however, also determined there
was other work existing in significant numbers in the national economy Plaintiff could perform. (Tr.
17, Finding 10). The ALJ based his determination upon the testimony of the VE. Id. Specifically,
the VE testified that given all Plaintiff’s vocational factors, a hypothetical individual would be able
to perform the requirements of a representative occupation such as an assembler with approximately
40,000 such jobs in Arkansas and 400,000 such jobs in the nation, packer with approximately 60,000
such jobs in Arkansas and 600,000 such jobs in the nation, and as a laundry worker with
approximately 8,000 such jobs in Arkansas and 80,000 such jobs in the nation. Id. Based upon this
finding, the ALJ determined Plaintiff had not been under a disability as defined by the Act from
November 3, 2007 through the date of the decision. (Tr. 18, Finding 11).
Thereafter, Plaintiff requested the Appeals Council’s review of the ALJ’s unfavorable
decision. (Tr. 7). On July 19, 2013, the Appeals Council declined to review this unfavorable
decision. (Tr. 1-5). On August 8, 2013, Plaintiff filed the present appeal. ECF No. 1. The Parties
consented to the jurisdiction of this Court on August 13, 2013. ECF No. 7. Both Parties have filed
appeal briefs. ECF Nos. 10, 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
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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
or her past relevant work; and (5) if the claimant cannot perform the past work, the burden shifts to
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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 decision is not supported by substantial

evidence in the record. ECF No. 10. Specifically, Plaintiff claims the following: (1) the ALJ erred
in failing to find Plaintiff met a Listing; (2) the ALJ erred in his RFC determination; (3) the ALJ
erred by improperly discounting his subjective complaints; and (4) the ALJ erred by not asking a
proper hypothetical to the VE. Id. In response, the Defendant argues the ALJ did not err in any of
his findings. ECF No. 13. Because the ALJ erred in his RFC determination and improperly
evaluated Plaintiff’s subjective complaints, the Court will only address these arguments for reversal.
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)).
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.
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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).
The Plaintiff had a GAF score of 45 when seen by Dr. Richard Gallaher on April 8, 2010.
(Tr. 319). On October 26, 2010, Plaintiff was evaluated by Dr. James Phillips and had a GAF score
of 40. (Tr. 367). Plaintiff was evaluated on August 23, 2011 and September 19, 2011 and had GAF
scores of 52 and 53 respectively. (Tr. 375, 400). Although the ALJ made reference to Plaintiff’s
GAF scores, he provided no discussion or analysis of these 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
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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 schizoaffective disorder and personality disorder.
Accordingly, because the ALJ was required to evaluate these scores and provide a reason for
discounting the 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.
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, 739 F.2d 1320 (8th Cir. 1984) 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.

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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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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
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. § 404.1529 and 20 C.F.R. § 416.929 had been considered (Tr.
14), 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 To justify his decision, the ALJ provided only the following analysis:
After careful consideration of the evidence, the undersigned finds that the claimant’s
medically determinable impairments could reasonably be expected to cause some of
the alleged symptoms; however, the claimant’s statements concerning the intensity,
persistence and limiting effects of these symptoms are not credible to the extent they
are inconsistent with the above residual functional capacity assessment.
(Tr. 16).
The ALJ’s focus upon Plaintiff’s medical records alone was entirely inappropriate and

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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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improper under Polaski. The Polaski factors should be considered so that the ALJ does not discount
the claimant’s subjective complaints based upon the medical records alone. See Polaski, 739 F.2d
at 1322 (holding “[t]he adjudicator may not disregard a claimant’s subjective complaints solely
because the objective medical evidence does not fully support them”). Accordingly, this case must
be reversed and remanded for further consideration of Plaintiff’s subjective complaints in accordance
with Polaski.
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 7th day of August 2014.
/s/ Barry A. Bryant
HON. BARRY A. BRYANT
U.S. MAGISTRATE JUDGE

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