Brown v. Social Security Administration Commissioner
MEMORANDUM OPINION. Signed by Honorable Barry A. Bryant on December 5, 2012. (src)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
HOT SPRINGS DIVISION
On Behalf Of
A MINOR CHILD, F.B..
Civil No. 6:11-cv-06087
MICHAEL J. ASTRUE
Commissioner, Social Security Administration
Carol Brown (“Plaintiff”) brings this action on behalf of a minor child, F.B., and pursuant
to § 205(g) of Title II of the Social Security Act (“The Act”), 42 U.S.C. § 405(g) (2006), seeking
judicial review of a final decision of the Commissioner of the Social Security Administration
(“SSA”) denying her application for Supplemental Security Income (“SSI”) on behalf of F.B. under
Title 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. 5.1 Pursuant to this authority,
the Court issues this memorandum opinion and orders the entry of a final judgment in this matter.
Plaintiff protectively filed an application for SSI on behalf of F.B. on April 11, 2007. (Tr.
17, 89-91). Plaintiff alleges F.B. was disabled due to attentive deficit hyperactivity disorder
(“ADHD”), learning disabilities, asthma, and oppositional defiant behavior. (Tr.146). Plaintiff
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.”
alleges F.B.’s onset date was May 30, 2006. (Tr. 146). This application was denied initially and was
denied again on reconsideration. (Tr. 55-65).
On March 10, 2008, Plaintiff requested an administrative hearing on her application. (Tr.
68). An administrative hearing was held on March 10, 2009 in Hot Springs, Arkansas. (Tr. 31-54).
Plaintiff was present and was represented by counsel, Shannon Caroll, at this hearing. See id.
Plaintiff testified at this hearing. See id. At the time of this hearing, F.B. was fourteen years old and
was in the eighth grade. (Tr. 35).
On October 27, 2009, the ALJ entered an unfavorable decision denying Plaintiff’s request
for disability benefits for F.B. (Tr. 17-30). In this opinion, the ALJ determined F.B. was born on
December 28, 1994, was a school-age child on April 11, 2007 (the date the application was filed),
and was a school-age child on October 27, 2009 (the date of the ALJ’s decision). (Tr. 20, Finding
1). The ALJ determined F.B. had not engaged in Substantial Gainful Activity (“SGA”) at any time
relevant to the ALJ’s decision. (Tr. 20, Finding 2).
The ALJ determined F.B. had the following severe impairments: asthma, attention deficit
hyperactivity disorder, bipolar disorder, and obesity. (Tr. 20, Finding 3). The ALJ, however, also
determined the evidence did not establish F.B. had an impairment or a combination of impairments
that were either listed in, or medically equivalent to, those listed in Appendix 1, Subpart P,
Regulation No. 4 (“Listings”). (Tr. 20, Finding 4).
The ALJ also evaluated the six functional domains and determined F.B. did not have an
impairment or a combination of impairments that were functionally equivalent to the Listings. (Tr.
20-29, Finding 5). Specifically, the ALJ determined F.B. had a less than marked limitation in
acquiring and using information, in attending and completing tasks, and in interacting and relating
with others. The ALJ also determined F.B. had no limitation in moving about and manipulating
objects, in ability to care for himself, and in health and physical well-being. See id. The ALJ
determined that because F.B. did not have an impairment or combination of impairments that
resulted in either a “marked” limitation in any two domains of functioning or an “extreme” limitation
in any one domain of functioning, F.B.’s impairments or combination of impairments were not
functionally equivalent to the Listings. (Tr. 29). Accordingly, the ALJ also determined F.B. was not
disabled and had not been disabled at any time since April 11, 2007, the date Plaintiff filed F.B.’s
application. (Tr. 29, Finding 6).
Plaintiff requested the Appeals Council review the ALJ’s hearing decision and order. (Tr.
10-13). On November 25, 2011, the Appeals Council declined to review the ALJ’s unfavorable
decision. (Tr. 1-4). On December 2, 2011, Plaintiff filed the present appeal. ECF No. 1. Both
Plaintiff and Defendant have filed appeal briefs. ECF Nos. 8, 9. 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 in 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).
In this case, Plaintiff is seeking disability benefits on behalf of a minor child. On August 22,
1996, Congress enacted the Personal Responsibility and Work Opportunity Reconciliation Act of
1996, Public Law No. 104-193, 110 Stat. 2105 (1996) (codified at 42 U.S.C. § 1382c(a)(3)(C)),
which provided a more stringent standard for determining eligibility for Title XVI childhood
disability benefits than the old law and prior regulations required. See Rucker v. Apfel, 141 F.3d
1256, 1259 (8th Cir. 1998); 142 Cong. Rec. H8913; H.R. Conf. Rep. No. 725, 104th Cong. 2d Sess.
328 (1996), reprinted in 1996 U.S. Code, Cong. and Ad. News 2649, 2716; Federal Register, Vol.
62, No. 28, p. 6409. Among other things, the new law amended Section 1614(a)(3) of the Act, 42
U.S.C. § 1382c(a)(3), and changed the statutory definition of disability for individuals under age
eighteen (18) under the SSI program. Under the new standard, a child is entitled to disability
benefits only if he or she has a medically determinable physical or mental impairment, which results
in marked and severe functional limitations, and which can be expected to result in death or which
has lasted or can be expected to last for a continuous period of not less than 12 months. See Pub. L.
No. 104-193 § 211(a)(4)(c); 20 C.F.R. § 416.906. The new standard applies to all applicants who
filed claims on or after August 22, 1996, or whose claims had not been finally adjudicated by August
22, 1996. Since Plaintiff filed her application in 2006, the new law applies.
Under the new law, the ALJ’s disability determination is based upon a three-step analysis.
See 20 C.F.R. § 416.924. First, the ALJ must determine whether the minor child has engaged in
substantial gainful activity. If not, the ALJ will proceed to the second step where the ALJ must
consider whether the child has a severe impairment. If a severe impairment is found, the ALJ will
proceed to the third step. At this step, the ALJ, must consider whether the impairment meets, or is
medically or functionally equivalent, to a disability listing in the Listing of Impairments. See 20
C.F.R. pt. 404, subpt. P, app. 1. A minor child may be disabled if his or her impairment is
functionally equivalent to a disability listing, even if the minor child’s impairment does not meet the
standard requirements for a disability listing. See 20 C.F.R. § 416.924(d)(1).
A single method is provided for evaluating whether an impairment is “functionally
equivalent” to a disability listing, based upon six domains of functioning. The six domains are the
following: (1) acquiring and using information, (2) attending and completing tasks, (3) interacting
and relating with others, (4) moving about and manipulating objects, (5) caring for himself or herself,
and (6) health and physical well-being. See 20 C.F.R. § 416.926a(b)(1). If the minor child claiming
benefits has “marked” limitations in two of these domains or an “extreme” limitation in one of these
domains, then the child’s impairment is functionally equivalent to a disability listing. See id. §
416.926a(a); Moore ex rel. Moore v. Barnhart, 413 F.3d 718, 721 (8th Cir. 2005).
A “marked” limitation is a limitation that is “more than moderate” and “less than extreme.”
See id. § 416.926a(e); Lehnartz v. Barnhart, No. 04-3818, 2005 WL 1767944, at *3 (8th Cir. July
27, 2005). A marked limitation is one that seriously interferes with a child’s ability to independently
initiate, sustain, or complete activities. See 20 C.F.R. § 416.926a(e). An “extreme” limitation is
more than “marked” and exists when a child’s impairment(s) interferes very seriously with his or her
ability to independently initiate, sustain or complete activities. See id. “Extreme” limitation is the
rating the Commissioner gives to the most serious limitations. See id.
The parties do not dispute F.B. meets the disability requirements under Step One (F.B. has
not engaged in SGA). Plaintiff, however, claims the ALJ erred at Step Two of the Analysis in
finding F.B’s mental impairments were not severe. Plaintiff also argues the ALJ erred in finding not
disabled at Step Three of the Analysis. ECF No. 8, Pages 2-19.
This Court has considered all arguments raised in the parties’ appeal briefs and has
considered the transcript in F.B.’s case. ECF Nos. 8, 9. Based upon this review, this Court finds the
ALJ’s hearing decision dated October 27, 2009 is not supported by substantial evidence and should
be reversed and remanded because the ALJ failed to properly evaluate F.B.’s alleged mental
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
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-IV-TR) 34 (4th ed., text rev. 2000)).
In the present action, F.B. was assessed as having several GAF scores of 50 and below. On
August 29, 2006, F.B. was seen at Dayspring of Arkansas for a Comprehensive Assessment. (Tr.
452-467). He diagnosed with ADHD, oppositional defiant disorder and given a GAF score of 35.
(Tr. 465). F.B. returned to Dayspring of Arkansas on September 5, 2006, November 28, 2006, and
February 22, 2007 and was given a GAF score of 35 on each visit. (Tr. 488, 472, 467). On May 8,
2007, F.B. was seen at Dayspring of Arkansas for a Psychiatric Evaluation. (Tr. 483-486). He was
given a GAF score of 45. (Tr. 485). F.B. was also seen at Therapeutic Family Services on
December 18, 2007 and December 23, 2008 and received GAF scores of 35 and 42 respectively. (Tr.
562, 546). The ALJ did not discuss any of these low GAF scores in his opinion. (Tr. 17-30). 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.
It is especially important that the ALJ address low GAF scores where, as in this case, F.B.
has been diagnosed with attention deficit hyperactivity disorder and oppositional defiant disorder.
When considering these facts, and because the ALJ did not evaluate F.B.’s low GAF scores, this case
must be reversed and remanded for further evaluation of these scores.2
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 December 2012.
/s/ Barry A. Bryant
HON. BARRY A. BRYANT
U.S. MAGISTRATE JUDGE
Based on these findings, I do not find it necessary to reach to other points of error raised by the Plaintiff in
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