Howell v. Social Security Administration Commissioner
MEMORANDUM OPINION. Signed by Honorable James R. Marschewski on March 7, 2014. (adw)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
COURTNEY LOUISE HOWELL
Civil No. 13-5002
CAROLYN W. COLVIN1, Commissioner
Social Security Administration
Plaintiff, Courtney Howell, brings this action under 42 U.S.C. § 405(g), seeking judicial
review of a decision of the Commissioner of Social Security Administration (Commissioner)
denying her claim for supplemental security income (“SSI”) under Title XVI of the Social
Security Act (hereinafter “the Act”), 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). In this judicial
review, the court must determine whether there is substantial evidence in the administrative
record to support the Commissioner’s decision. See 42 U.S.C. § 405(g).
Plaintiff filed her application for SSI on November 3, 2009, alleging an onset date May
1, 2009, due to mood disorders, borderline intellectual functioning (BIF), depression, obesity,
learning disability, and diabetes. Tr. 8, 29, 64-65, 71, 78, 123, 147, 151, 166, 170. Plaintiff’s
application was denied initially and on reconsideration. Tr. 71-74, 78-79. An administrative
hearing was held on May 4, 2011. Tr. 24-63. Plaintiff was present and represented by counsel.
Carolyn W. Colvin became the Social Security Commissioner on February 14, 2013. Pursuant to Rule
25(d)(1) of the Federal Rules of Civil Procedure, Carolyn W. Colvin has been substituted for Commissioner
Michael J. Astrue as the defendant in this suit.
At the time of the hearing, Plaintiff was 18 years old , possessed a tenth grade special
education. Tr. 16, 28, 32. Plaintiff had no past relevant work (“PRW”) experience. Tr.16.
On July 28, 2011, the ALJ found Plaintiff’s depression, BIF, and history of attention
deficit hyperactivity disorder (ADHD) to be severe, but concluded they did not meet or medically
equal one of the listed impairments in Appendix 1, Subpart P, Regulation No. 4. Tr. 10-12.
After partially discrediting Plaintiff’s subjective complaints, the ALJ determined that Plaintiff
retained the residual functional capacity (“RFC”) to perform
a wide range of work at all exertional levels but with the following nonexertional
limitations: she must avoid all exposure to extreme heat. She is able to perform
work where interpersonal contact is incidental to the work performed, e.g.,
assembly work; complexity of tasks is learned and performed by rote, with few
variables, using little judgment; supervision required is simple, direct and
Tr. 12. With the assistance of a vocational expert, the ALJ found Plaintiff could perform work
as a bench assembler and laundry worker. Tr. 16-17.
On November 8, 2012, the Appeals Council declined to review the ALJ’s decision. Tr.
1-3. Subsequently, Plaintiff filed this cause of action. This case is before the undersigned by
consent of the parties. Both parties have filed appeal briefs, and the case is now ready for
decision. ECF Nos. 12, 13.
This court’s role is to determine whether the Commissioner’s findings are supported by
substantial evidence on the record as a whole. Ramirez v. Barnhart, 292 F.3d 576, 583 (8th Cir.
2002). Substantial evidence is less than a preponderance but it is enough that a reasonable mind
would find it adequate to support the Commissioner's decision. The ALJ's decision must be
affirmed if the record contains substantial evidence to support it. Edwards v. Barnhart, 314 F.3d
964, 966 (8th Cir. 2003). 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. Haley v. Massanari, 258 F.3d 742, 747 (8th Cir. 2001). In other
words, 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. 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 her disability by establishing a physical or mental disability that has lasted at least one
year and that prevents her from engaging in any substantial gainful activity. Pearsall v.
Massanari, 274 F.3d 1211, 1217 (8th Cir.2001); see also 42 U.S.C. § § 423(d)(1)(A),
1382c(a)(3)(A). The Act defines “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 their impairment, has
lasted for at least twelve consecutive months.
The Commissioner’s regulations require him to apply a five-step sequential evaluation
process to each claim for disability benefits: (1) whether the claimant has engaged in substantial
gainful activity since filing his claim; (2) whether the claimant has a severe physical and/or
mental impairment or combination of impairments; (3) whether the impairment(s) meet or equal
an impairment in the listings; (4) whether the impairment(s) prevent the claimant from doing past
relevant work; and, (5) whether the claimant is able to perform other work in the national
economy given his age, education, and experience. See 20 C.F.R. § § 404.1520(a)- (f)(2003).
Only if the final stage is reached does the fact finder consider the plaintiff’s age, education, and
work experience in light of his or her residual functional capacity. See McCoy v. Schweiker, 683
F.2d 1138, 1141-42 (8th Cir. 1982); 20 C .F.R. § § 404.1520, 416.920 (2003).
Of particular concern to the undersigned is the ALJ’s RFC determination. RFC is the
most a person can do despite that person’s limitations. 20 C.F.R. § 404.1545(a)(1). A disability
claimant has the burden of establishing his or her RFC. See Masterson v. Barnhart, 363 F.3d
731, 737 (8th Cir. 2004). “The ALJ determines a claimant’s RFC based on all relevant evidence
in the record, including medical records, observations of treating physicians and others, and the
claimant’s own descriptions of his or her limitations.” Davidson v. Astrue, 578 F.3d 838, 844
(8th Cir. 2009); see also Jones v. Astrue, 619 F.3d 963, 971 (8th Cir. 2010) (ALJ is responsible
for determining RFC based on all relevant evidence, including medical records, observations of
treating physicians and others, and claimant’s own description of his limitations). Limitations
resulting from symptoms such as pain are also factored into the assessment. 20 C.F.R. §
404.1545(a)(3). The United States Court of Appeals for the Eighth Circuit has held that a
“claimant’s residual functional capacity is a medical question.” Lauer v. Apfel, 245 F.3d 700,
704 (8th Cir. 2001). Therefore, an ALJ’s determination concerning a claimant’s RFC must be
supported by medical evidence that addresses the claimant’s ability to function in the
workplace.” Lewis v. Barnhart, 353 F.3d 642, 646 (8th Cir. 2003); see also Jones, 619 F.3d at
971 (RFC finding must be supported by some medical evidence).
The ALJ concluded that Plaintiff’s mood disorders, BIF, depression, and learning
disability constituted severe impairments. She did not, however, obtain an RFC assessment from
a doctor who had actually examined the Plaintiff. See Snead v. Barnhart, 360 F.3d 834, 839 (8th
Cir. 2004) (“Because [the] evidence might have altered the outcome of the disability
determination, the ALJ’s failure to elicit it prejudiced [the claimant] in his pursuit of benefits.”).
Records reveal that Plaintiff was in enrolled in special education classes from
kindergarten through the tenth grade. Tr. 409-. On February 24, 1998, her full scale IQ was
found to be 71, with a verbal IQ of 81 and a performance IQ of 68. Tr. 244.
On April 27, 2009, Plaintiff underwent a re-evaluation for continued special education
services in the Rogers Public School System. Tr. 409-411. Based upon this evaluation, they
concluded that she fell into the “Clinically Significant” range in several categories to include
aggression, anxiety, conduct problems, depression, somatization , anger control, and executive
On May 19, 2009, Plaintiff was admitted to Vista Health for approximately 7 days
following a suicide attempt. Tr. 207-217, 219-240, 278-281, 315-318. She had ingested 8 ounces
of bathroom floor cleaner and hydrogen peroxide. Plaintiff indicated that she had attempted
suicide because she was angry with her mother for not believing that she had an ear ache.
Plaintiff was diagnosed with depressive disorder and assessed a global assessment of functioning
score (GAF) of 20 upon entry and 30 upon discharge. Tr. 221, 226. According to the GAF
scale, a GAF of 21-30 is indicative of serious impairment in communication or judgment with
an inability to function in almost all areas. See DIAGNOSTIC AND STATISTICAL MANUAL OF
MENTAL DISORDERS IV-TR 34 (4th ed. 2000).
Follow-up visits to Vista Health did note improvement in her depression with medication.
However, her highest GAF score was noted to be 53, with 50 being the most common score
assessed. Tr. 270-272, 273-274, 297. A GAF of 50 is indicative of serious symptoms, while a
GAF of 53 indicates moderate symptoms. See id.
On February 15, 2010, Plaintiff underwent a Mental Diagnostic Evaluation and
Intellectual Assessment with Dr. Scott McCarty. Tr. 334-337. Dr. McCarty assessed her with
mathematics disorder, reading disorder, learning disorder not otherwise specified, depressive
disorder not otherwise specified, and borderline intellectual functioning with a GAF of 44 to 54.
He made the following conclusions: 1) Plaintiff’s low comprehension and and slowing, along
with her learning disabilities suggested that her intellectual and learning issues would present
significant to marked limitations in her coping capacity for the typical mental/cognitive demands
of basic work-like tasks, 2) due to her limited comprehension and reading disorder, Plaintiff
would likely have difficulty understanding, remembering, and carrying out complex verbal
instructions or any written ones, 3) her slow processing speed suggested that her intellectual and
learning issues would present significant limitations in her capacity to complete work-like tasks
within an acceptable timeframe and to respond appropriately to work pressure, and 4) her
intellectual and learning limitations appeared to present significant to marked limitations in the
area of personal responsibility. He was not, however, asked to complete an RFC assessment.
At the administrative hearing, Plaintiff also testified that she had again attempted suicide
by taking 12 Celexa pills one week prior to her disability hearing. Tr. 39. She was reportedly
admitted to the hospital for 24-hour observation. While there are no medical records in the case
to substantiate this hospitalization, we do believe the ALJ should have attempted to obtain these
records prior to rendering an opinion in this matter.
As it stands, the only RFC assessment contained in the record was completed by a nonexamining, consultative examiner who concluded Plaintiff suffered from moderate limitations
in several areas. However, given Dr. McCarty’s statements, we can not say that this assessment
is supported by substantial evidence. Accordingly, we find that remand is necessary to allow the
ALJ to obtain an RFC assessment from Dr. McCarty. If Dr. McCarty is unable or unwilling to
complete said assessment, a new consultative mental evaluation should be ordered to include a
full mental RFC assessment. On remand, the ALJ should also request any and all medical
records concerning Plaintiff’s suicide attempt in the spring of 2011.
Accordingly, we conclude that the ALJ’s decision is not supported by substantial
evidence and should be reversed and remanded to the Commissioner for further consideration
pursuant to sentence four of 42 U.S.C. § 405(g).
DATED this 7th day of March 2014.
HON. JAMES R. MARSCHEWSKI
CHIEF UNITED STATES MAGISTRATE JUDGE
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