Opinion
CIVIL ACTION NO. 3:07cv679-WC.
May 1, 2008
MEMORANDUM OPINION
I. INTRODUCTION
Plaintiff Misty L. Arrington (Arrington) applied for disability insurance benefits pursuant to Title II of the Social Security Act, 42 U.S.C. § 401 et seq. (2000) and for supplemental security income benefits under Title XVI, 42 U.S.C § 1381 et seq. (hereinafter collectively the Act), alleging she was unable to work because of a disability. Arrington's application was denied at the initial administrative level. Arrington then requested and received a hearing before an Administrative Law Judge (ALJ). Following the hearing, the ALJ also denied the claim. The Appeals Council rejected a subsequent request for review. The ALJ's decision consequently became the final decision of the Commissioner of Social Security (Commissioner). See Chester v. Bowen, 792 F.2d 129, 131 (11th Cir. 1986). The case is now before the Court for review under 42 U.S.C. § 405(g). Pursuant to 28 U.S.C. § 636(c), both parties have consented to the conduct of all proceedings and entry of a final judgment by the undersigned United States Magistrate Judge. Pl.'s Consent to Jurisdiction (Doc. #9); Def.'s Consent to Jurisdiction (Doc. #8). Based on the Court's review of the record and the briefs of the parties, the Court REVERSES AND REMANDS the Commissioner's decision.
Pursuant to the Social Security Independence and Program Improvements Act of 1994, Pub.L. No. 103-296, 108 Stat. 1464, the functions of the Secretary of Health and Human Services with respect to Social Security matters were transferred to the Commissioner of Social Security.
II. STANDARD OF REVIEW
Under 42 U.S.C. § 423(d)(1)(A), a person is entitled to disability benefits when the person is unable to
engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment 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.42 U.S.C. § 423(d)(1)(A).
A "physical or mental impairment" is one resulting from anatomical, physiological, or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques.
To make this determination, the Commissioner employs a five step, sequential evaluation process. See 20 C.F.R. §§ 404.1520, 416.920 (2006).
(1) Is the person presently unemployed?
(2) Is the person's impairment severe?
(3) Does the person's impairment meet or equal one of the specific impairments set forth in 20 C.F.R. Pt. 404, Subpt. P, App. 1? [the Listing of Impairments]
(4) Is the person unable to perform his or her former occupation?
(5) Is the person unable to perform any other work within the economy?
An affirmative answer to any of the above questions leads either to the next question, or, on steps three and five, to a finding of disability. A negative answer to any question, other than step three, leads to a determination of "not disabled."McDaniel v. Bowen, 800 F.2d 1026, 1030 (11th Cir. 1986).
McDaniel v. Bowen, 800 F.2d 1026 (11th Cir. 1986) is a supplemental security income case (SSI). The same sequence applies to disability insurance benefits. Cases arising under Title II are appropriately cited as authority in Title XVI cases.See, e.g., Ware v. Schweiker, 651 F.2d 408 (5th Cir. 1981) (Unit A).
The Court's review of the Commissioner's decision is a limited one. This Court must find the Commissioner's decision conclusive if it is supported by substantial evidence. 42 U.S.C. § 405(g);Graham v. Apfel, 129 F.3d 1420, 1422 (11th Cir. 1997). "Substantial evidence is more than a scintilla, but less than a preponderance. It is such relevant evidence as a reasonable person would accept as adequate to support a conclusion."Richardson v. Perales, 402 U.S. 389, 401 (1971). A reviewing court may not look only to those parts of the record which support the decision of the ALJ but instead must view the record in its entirety and take account of evidence which detracts from the evidence relied on by the ALJ. Hillsman v. Bowen, 804 F.2d 1179 (11th Cir. 1986).
[The court must] . . . scrutinize the record in its entirety to determine the reasonableness of the [Commissioner's] . . . factual findings. . . . No similar presumption of validity attaches to the [Commissioner's] . . . legal conclusions, including determination of the proper standards to be applied in evaluating claims.Walker v. Bowen, 826 F.2d 996, 999 (11th Cir. 1987).
III. ISSUES
A. Introduction
Arrington was thirty-one years old and had a tenth-grade education at the time of the hearing before the ALJ. Tr. at 19, 251. Arrington's prior work experience includes employment as a fast food worker, short order cook, waitress, and machine operator/yarn mill. Tr. at 24, 251. Following the administrative hearing, the ALJ concluded Arrington had several severe impairments and did not possess the residual functional capacity (RFC) to perform any relevant past work, but possessed a RFC to perform jobs existing in significant numbers in the national economy. Tr. at 18-19, 24-25.
B. Arrington's Claims
On page 1 of Arrington's brief in support of the Complaint, Arrington generally challenges the ALJ's determination, arguing that decision is unsupported by substantial evidence, and the ALJ applied improper legal standards. As argued, however, Arrington claims the ALJ improperly rejected the opinion of Arrington's long-term treating psychiatrists, Drs. George Henry (Henry) and Scott Andrews (Andrews). See Pl.'s Mem. in Supp. Pl.'s Arg. (Doc. #11) at 1, 7 (hereinafter Pl.'s Br.). In particular, Arrington argues the ALJ "arbitrarily rejected uncontroverted medical testimony" from Drs. Henry and Andrews and "summarized only their most favorable findings." Id. at 7, 8. With respect to Dr. Henry, Arrington argues the ALJ only mentioned two of Dr. Henry's Global Assessment of Functioning (GAF) scores from their four-year treatment period, even though her scores were consistently lower during treatment. Id. With respect to Dr. Andrews, Arrington claims the ALJ rejected that doctor's opinion on the invalid basis that the opinion was not supported by objective evidence and seemed based on Arrington's subjective complaints. Id. at 8-9 (citing Matthews v. Barnhart, 347 F. Supp. 2d 1093, 1101-02 (M.D. Ala. 2003)). In so doing, Arrington argues the ALJ substituted his opinion for that of Dr. Andrews. Id. at 9. The Commissioner refutes Arrington's contentions, arguing the ALJ's decision was consistent with case law and the agency's regulations. Def.'s Mem. Supp. Comm'r Decision (Doc. #14) at 4-11 (hereinafter Def.'s Br.).
The Global Assessment of Functioning, or GAF Scale, is a numeric scale that mental health physicians and doctors use to rate the occupational, psychological, and social functioning of adults. American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders 32 (Text Revision, 4th ed. 2000).
Employing the five step process, the ALJ found Arrington had not engaged in substantial gainful activity at any time relevant to the decision (Step 1). Tr. at 18. At Step 2, the ALJ found Arrington suffered from the following severe impairments: schizoaffective disorder with bipolar features/major depressive disorder with psychosis; panic disorder without agoraphobia; possible post traumatic stress disorder; seizure disorder; gastritis; and obesity. Id. at 18-19. Nonetheless, the ALJ found Arrington did not possess an impairment or combination of impairments that met or equaled the criteria of any listed impairment set forth in the Listing of Impairments (Step 3). Id. at 19. At Step 4, the ALJ found Arrington could not perform her past relevant work based upon her RFC. Tr. at 24. Arrington had established her prima facie case.
At Step Five, the ALJ evaluated Arrington's RFC, age, education, and work experience, as well as testimony from a vocational expert regarding the availability in significant numbers of other work Arrington could perform in the national economy. Upon consideration of this evidence, the ALJ determined Arrington possessed the RFC to perform jobs that exist in significant numbers in the national economy. Tr. at 24-25. Consequently, the ALJ found Arrington has not been disabled since the alleged onset date. Tr. at 25.
IV. DISCUSSION
The Court now turns to Arrington's arguments concerning Dr. Henry. Arrington maintains the ALJ erred when he arbitrarily only mentioned Arrington's August 2002 GAF score of 63 and her January 2006 GAF score of 55. Arrington maintains she had consistently lower GAF scores throughout her four-year treatment with Dr. Henry. Id. at 7, 8. Although the Commissioner makes no specific argument concerning the GAF scores, he generally argues the ALJ correctly observed Dr. Henry's notes appear to indicate Arrington's condition occasionally declined, but the declines were often associated with Arrington's failure to take her proper medications. Def.'s Br. (Doc. #14) at 6. The Court takes issue with the ALJ's decision.
In McCloud v. Barnhart, the Eleventh Court addressed (among others) the issue of whether the ALJ properly considered a psychologist's report containing McCloud's GAF score of 45. 166 F. App'x 410, 416 (11th Cir. 2006). Although the Commissioner conceded the ALJ erred "when he labeled McCloud's . . . GAF score [of 45] as reflective of moderate symptoms," instead of "severe impairments," the Commissioner argued the ALJ's error was harmless. Id. at 418. Because the Court could not "determine from the record what weight the ALJ placed on the GAF score of 45," it rejected the Commissioner's argument. On remand, the Eleventh Circuit directed the ALJ to "determine what, if any, weight to place on the score" of 45 "with the knowledge that a GAF score of 45 reflects severe impairments." Id. In addition, the Eleventh Circuit found "the ALJ failed to consider McCloud's GAF score of 48 from June 2000, which occurred just days before she filed for [disability] benefits, when determining whether she was disabled." Id. Thus, the Eleventh Circuit also remanded the case for the ALJ to consider what weight to accord the June 2000 GAF score. Id.
In a recent decision from this Court, the undersigned distinguished McCloud, finding the ALJ accurately described the claimant's GAF score, and the Court could reasonably infer from the ALJ's analysis the weight assigned to the claimant's GAF scores. Smitherman v. Astrue, 2008 U.S. Dist. LEXIS 29933, at *18-22 (M.D. Ala. Apr. 10, 2008). In Smitherman, after summarizing the consultative examination findings, which included the claimant's GAF score, the ALJ addressed the claimants's psychological complaints. The ALJ did not find Smitherman's complaints credible, nor did the ALJ find the claimant's complaints supported by the cumulative record evidence. Because the ALJ clearly stated he considered all record evidence concerning the claimant's psychiatric complaints, the Court could reasonably infer that the ALJ did not find the claimant's low GAF score controlling and afforded that evidence little to no weight, as compared to the record evidence as a whole. The Court also noted the ALJ expressly considered all identified GAF scores in the record.
Here, as Arrington points out, the ALJ only expressly discussed two GAF scores; on August 16, 2002, Dr. Henry assigned Arrington a GAF score of 63, while on January 5, 2006, Dr. Henry assigned a GAF score of 55. Tr. at 193-95, 202-04. Dr. Henry conducted eight other treatment sessions with Arrington between the period of June 2002 and August 2002 and between November 2005 and April 2006. Tr. at 183-85, 187-204, 206-14. During these sessions, Dr. Henry assigned Arrington GAF scores, all of which were lower than the two expressly discussed in the ALJ's decision. These include: a GAF score of 45 on June 7, 2002; a GAF score of 35 on June 20, 2002; a GAF score of 50 on July 11, 2002; a GAF score of 45 on November 8, 2005; a GAF score of 45 on November 29, 2005; a GAF score of 50 on January 30, 2006; a GAF score of 50 on February 27, 2006; and a GAF score of 40 on April 17, 2006. Tr. at 183-85, 187-192, 196-201, 206-14. Similar to McCloud, the ALJ did not discuss these scores expressly in his decision. Although the ALJ did discuss other observations from Dr. Henry during these sessions in his analysis, nothing in the discussion indicates the ALJ considered the scores or allows the Court to determine what weight, if any, the ALJ assigned to them. While the undersigned recognizes the ALJ is not required to specifically discuss every piece of evidence in the record, the ALJ must consider the evidence as a whole, including relevant clinical findings. Cf. Newsome ex rel. Bell v. Barnhart, 444 F. Supp. 2d 1195, 1198 n. 2 (M.D. Ala. 2006) (citing Ogranaja v. Comm'r of Soc. Sec. , 2006 WL 1526062, at *3 (11th Cir. 2006) (unpublished) ("We do not require the ALJ to `specifically refer to every piece of evidence in his decision,' so long as the decision is sufficient to allow us to conclude that the ALJ considered the claimant's medical condition as a whole.") with Walden v. Schweiker, 672 F.2d 835, 839 (11th Cir. 1982) (citing Simmons v. Harris, 602 F.2d 1233, 1236 (5th Cir. 1979) (requiring the ALJ to consider the evidence as a whole including objective medical facts or clinical findings). Because the ALJ's decision does not afford this reviewing Court with sufficient analysis to confirm whether these lower GAF scores were considered, remand is appropriate for further proceedings consistent with this opinion.
In light of the above finding, the Court need not reach Arrington's other argument.
V. CONCLUSION
The Court has carefully and independently reviewed the record and concludes the decision of the Commissioner is REVERSED and the case REMANDED for further proceedings consistent with this opinion. A separate order will issue.
A copy of this checklist is available at the website for the USCA, 11th Circuit at www.ca11.uscourts.gov Effective on April 9, 2006, the new fee to file an appeal will increase from $255.00 to $455.00. CIVIL APPEALS JURISDICTION CHECKLIST1. Appealable Orders : Appeals from final orders pursuant to 28 U.S.C. § 1291: 28 U.S.C. § 158Pitney Bowes, Inc. v. Mestre 701 F.2d 1365 1368 28 U.S.C. § 636 In cases involving multiple parties or multiple claims, 54Williams v. Bishop 732 F.2d 885 885-86 Budinich v. Becton Dickinson Co. 486 U.S. 196 201 108 S.Ct. 1717 1721-22 100 L.Ed.2d 178LaChance v. Duffy's Draft House, Inc. 146 F.3d 832 837 Appeals pursuant to 28 U.S.C. § 1292(a): Appeals pursuant to 28 U.S.C. § 1292(b) and Fed.R.App.P. 5 28 U.S.C. § 1292 Appeals pursuant to judicially created exceptions to the finality rule: Cohen v. Beneficial Indus. Loan Corp. 337 U.S. 541 546 69 S.Ct. 1221 1225-26 93 L.Ed. 1528Atlantic Fed. Sav. Loan Ass'n v. Blythe Eastman Paine Webber, Inc. 890 F.2d 371 376 Gillespie v. United States Steel Corp. 379 U.S. 148 157 85 S.Ct. 308 312 13 L.Ed.2d 199 2. Time for Filing Rinaldo v. Corbett 256 F.3d 1276 1278 4 Fed.R.App.P. 4(a)(1): 3 THE NOTICE MUST BE RECEIVED AND FILED IN THE DISTRICT COURT NO LATER THAN THE LAST DAY OF THE APPEAL PERIOD — no additional days are provided for mailing. Fed.R.App.P. 4(a)(3): Fed.R.App.P. 4(a)(4): Fed.R.App.P. 4(a)(5) and 4(a)(6): Fed.R.App.P. 4(c): 28 U.S.C. § 1746 3. Format of the notice of appeal : See also 3pro se 4. Effect of a notice of appeal : 4
Courts of Appeals have jurisdiction conferred and strictly limited by statute: (a) Only final orders and judgments of district courts, or final orders of bankruptcy courts which have been appealed to and fully resolved by a district court under , generally are appealable. A final decision is one that "ends the litigation on the merits and leaves nothing for the court to do but execute the judgment." , , (11th Cir. 1 983). A magistrate judge's report and recommendation is not final and appealable until judgment thereon is entered by a district court judge. (c). (b) a judgment as to fewer than all parties or all claims is not a final, appealable decision unless the district court has certified the judgment for immediate review under Fed.R.Civ.P. (b). , , (11th Cir. 1984). A judgment which resolves all issues except matters, such as attorneys' fees and costs, that are collateral to the merits, is immediately appealable. , , , , , (1988); , , (11th Cir. 1998). (c) Appeals are permitted from orders "granting, continuing, modifying, refusing or dissolving injunctions or refusing to dissolve or modify injunctions . . ." and from "[i]nterlocutory decrees . . . determining the rights and liabilities of parties to admiralty cases in which appeals from final decrees are allowed." Interlocutory appeals from orders denying temporary restraining orders are not permitted. (d) : The certification specified in (b) must be obtained before a petition for permission to appeal is filed in the Court of Appeals. The district court's denial of a motion for certification is not itself appealable. (e) Limited exceptions are discussed in cases including, but not limited to: , , , , , (1949); , , (11th Cir. 1989); , , , , , (1964). : The timely filing of a notice of appeal is mandatory and jurisdictional. , , (11th Cir. 2001). In civil cases, Fed.R.App.P. (a) and (c) set the following time limits: (a) A notice of appeal in compliance with the requirements set forth in Fed.R.App.P. must be filed in the district court within 30 days after the entry of the order or judgment appealed from. However, if the United States or an officer or agency thereof is a party, the notice of appeal must be filed in the district court within 60 days after such entry. Special filing provisions for inmates are discussed below. (b) "If one party timely files a notice of appeal, any other party may file a notice of appeal within 14 days after the date when the first notice was filed, or within the time otherwise prescribed by this Rule 4(a), whichever period ends later." (c) If any party makes a timely motion in the district court under the Federal Rules of Civil Procedure of a type specified in this rule, the time for appeal for all parties runs from the date of entry of the order disposing of the last such timely filed motion. (d) Under certain limited circumstances, the district court may extend the time to file a notice of appeal. Under Rule 4(a)(5), the time may be extended if a motion for an extension is filed within 30 days after expiration of the time otherwise provided to file a notice of appeal, upon a showing of excusable neglect or good cause. Under Rule 4(a)(6), the time may be extended if the district court finds upon motion that a party did not timely receive notice of the entry of the judgment or order, and that no party would be prejudiced by an extension. (e) If an inmate confined to an institution files a notice of appeal in either a civil case or a criminal case, the notice of appeal is timely if it is deposited in the institution's internal mail system on or before the last day for filing. Timely filing may be shown by a declaration in compliance with or a notarized statement, either of which must set forth the date of deposit and state that first-class postage has been prepaid. Form 1, Appendix of Forms to the Federal Rules of Appellate Procedure, is a suitable format. Fed.R.App.P. (c). A notice of appeal must be signed by the appellant. A district court loses jurisdiction (authority) to act after the filing of a timely notice of appeal, except for actions in aid of appellate jurisdiction or to rule on a timely motion of the type specified in Fed.R.App.P. (a)(4).