Bryce v. Social Security, Commissioner of
Filing
25
OPINION AND ORDER Accepting the Recommendation Contained in the Magistrate Judge's 23 Report and Recommendation Dated February 10, 2014, Overruling Plaintiff's 24 Objections to the Report and Recommendation, Denying Plaintiff's 16 Motion for Summary Judgment and Granting Defendant's 22 Motion for Summary Judgment. Signed by District Judge Mark A. Goldsmith. (Goltz, D)
THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
JUSTIN BRYCE,
Plaintiff,
Civil Action No.
12-CV-14618
vs.
HON. MARK A. GOLDSMITH
COMMISSIONER OF
SOCIAL SECURITY,
Defendant.
___________________________/
OPINION AND ORDER (1) ACCEPTING THE RECOMMENDATION CONTAINED IN
THE MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION DATED
FEBRUARY 10, 2014 (DKT. 23), (2) OVERRULING PLAINTIFF’S OBJECTIONS TO
THE REPORT AND RECOMMENDATION (DKT. 24), (3) DENYING PLAINTIFF’S
MOTION FOR SUMMARY JUDGMENT (DKT. 16), and (4) GRANTING
DEFENDANT’S MOTION FOR SUMMARY JUDGMENT (DKT. 22)
I.
INTRODUCTION AND BACKGROUND
This is a social security case. Plaintiff Justin Bryce appeals from the final determination
of the Commissioner of Social Security denying his application for disability benefits under the
Social Security Act, 42 U.S.C. § 1381(a), et seq. The Court entered an order referring the case to
Magistrate Judge R. Steven Whalen (Dkt. 3). The parties have filed cross motions for summary
judgment (Dkts. 16, 22).
Magistrate Judge Whalen issued a Report and Recommendation
(R&R), recommending that the decision of Administrative Law Judge (ALJ) Jessica Inouye be
affirmed, that the Commissioner’s motion be granted, and that Plaintiff’s motion be denied (Dkt.
23). Plaintiff has filed objections to the R&R (Dkt. 24).
The factual and procedural background of this case, along with the standard of review
and legal principles governing social security appeals, have been adequately set forth by the
Magistrate Judge in his R&R and need not be repeated in full here. Plaintiff, who was born on
1
March 30, 1989, has previously worked as a care provider for his mother, cook, auto detailer,
and sorter. Administrative Record (“A.R.”) at 234 (Dkt. 8). Plaintiff asserts that the conditions
limiting his ability to work include post-traumatic stress disorder, bipolar disorder, anxiety,
attention deficit disorder, and substance abuse. Id. at 233. On May 1, 2012, the ALJ issued her
decision that Plaintiff was not disabled from January 1, 2009, through the date of the decision.
Id. at 16. Plaintiff requested a review of this decision, id. at 10, and the Appeals Council denied
this request. Id. at 1. At that point, the ALJ’s decision became the final decision of the
Commissioner. Wilson v. Comm’r of Soc. Sec., 378 F.3d 541, 543-544 (6th Cir. 2004).
The ALJ based her decision on an application of the Commissioner’s five-step sequential
disability analysis to Plaintiff’s claim.1 The ALJ’s findings were as follows:
Under Step One, Plaintiff met the insured status requirements through June 30, 2010, and
Plaintiff had not engaged in any substantial gainful activity since January 1, 2009. A.R.
at 18.
Under Step Two, Plaintiff had the following severe impairments: post-traumatic stress
disorder, anxiety, depression, personality disorder, impulse control disorder, and
polysubstance abuse. Id. at 19.
Under Step Three, Plaintiff did not have any impairment or combination of impairments
that met or equaled one of the listed impairments. Id. at 19.
Plaintiff had the residual functional capacity (RFC)
to perform a full range of work at all exertional levels but with the following
nonexertional limitations: the claimant should avoid all hazards. He is
limited to unskilled, simple, routine, and repetitive work. He is limited to
performing one- to two-step tasks. He would work best in small, familiar
groups of coworkers. He should not be required to work in large groups or
near large crowds. He can have only occasional contact with the public, and
his contact with the public should be with small numbers, meaning one or
two members of the public at a time. His work should be low stress, meaning
no fast-paced assembly line work, only occasional changes in the work, and
occasional decision making as part of the work.
1
The R&R adequately lays out the law and regulations governing the five-step analysis. R&R at
17 (citing 42 U.S.C. § 423(d)(1)(A); 20 C.F.R. § 416.920(a)).
2
Id. at 21.
Under Step Four, Plaintiff was unable to perform any past relevant work. Id. at 24.
Under Step Five, there were jobs that existed in significant numbers in the national
economy that the claimant could perform. Id. at 25.
Therefore, at Step Five, the ALJ determined that Plaintiff was not disabled. Id. at 25.
Plaintiff filed a complaint in this Court to contest the ALJ’s decision (Dkt. 1). Magistrate
Judge Whalen issued his R&R recommending that the ALJ’s decision be affirmed (Dkt. 23).
For the reasons that follow, the Court will accept the recommendation contained in the
R&R, overrule Plaintiff’s objections to the R&R, deny Plaintiff’s motion for summary judgment,
and grant Defendant’s motion for summary judgment.
II.
STANDARD OF REVIEW
The Court reviews de novo those portions of the R&R to which a specific objection has
been made. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). Under 42 U.S.C. § 405(g), this
Court’s review is limited to determining whether the Commissioner’s decision “is supported by
substantial evidence and was made pursuant to proper legal standards.” Ealy v. Comm’r of Soc.
Sec., 594 F.3d 504, 512 (6th Cir. 2010) (citation and quotation marks omitted). “Substantial
evidence is ‘such relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.’” Lindsley v. Comm’r of Soc. Sec., 560 F.3d 601, 604 (6th Cir. 2009) (quoting
Richardson v. Perales, 402 U.S. 389, 401 (1971)).
III.
ANALYSIS
Plaintiff raises objections to the following alleged errors in the R&R: (i) the finding that
Plaintiff’s psychiatric hospitalizations did not support the severity of his symptoms, and the
failure to find that the hospitalizations indicated periods of exacerbation and remission, Obj. at 14 (Dkt. 24); (ii) the finding that Plaintiff’s unsuccessful attempt to work was evidence of non3
disability, id. at 4-5; and (iii) the
failure to consider Plaintiff’s Global Assessment of
Functioning (“GAF”) scores as medical opinions, id. at 5-8. The Court will address each
objection in turn and, for the reasons that follow, will overrule each objection.
A. Objection One
Plaintiff argues that the medical evidence in the record, including Plaintiff’s psychiatric
hospitalizations and his psychiatric treatment in-between hospitalizations, supports the intensity
and severity of his symptoms.
Obj. at 2.
He asserts that the evidence shows frequent
hospitalizations and periods of decompensation, and that his conditions included periods of
exacerbation and remission. Id. at 2-4. Plaintiff argues that the R&R failed to address the fact
that “week-long psychiatric hospitalizations occurring every six months would prevent gainful
employment.” Id. at 4. He further argues that the RFC adopted by the ALJ is not supported by
substantial evidence in the record. Id. He contends that the ALJ’s decision failed to assess his
ability to work on a regular and continuing basis, and failed to properly assess his frequent
hospitalizations. Id.
The ALJ found that, although Plaintiff was hospitalized at least four times, the
hospitalizations were not for extended durations, and Plaintiff’s mental condition improved
throughout the course of each hospitalization; the ALJ, therefore, concluded that Plaintiff’s
treatment was effective when he was compliant with it. A.R. at 22. The ALJ also noted that the
record indicated Plaintiff was not entirely compliant with his treatment and was not consistent in
keeping therapy appointments.
Id.
The ALJ further found that Plaintiff’s credibility was
undermined by inconsistent statements regarding his use of opiates, and that Plaintiff’s work
history and daily activities, along with the opinion of the state agency psychological consultant,
supported the ALJ’s RFC. Id. at 23. The R&R concluded that the ALJ did not err in noting that
4
each hospitalization lasted for less than a week, and in finding that Plaintiff’s condition improved
over the course of each hospitalization. R&R at 20. The R&R further concluded that the ALJ’s
findings were supported by the record evidence. Id. at 20-22.
As an initial matter, the Court notes that, although Plaintiff asserts that his frequent
hospitalizations support a finding that his conditions were characterized by periods of
exacerbation and remission, rendering him incapable of maintaining substantial gainful
employment, this is a new argument raised for the first time in his objections to the R&R. “It is
well established that a party may not raise an argument, advance a theory, or marshal evidence
before a District Judge that was not fairly presented to the Magistrate Judge.” Marr v. Foy, No.
1:07–CV–908, 2010 WL 3061297, at *4 (W.D. Mich. Aug. 3, 2010) (citing Murr v. United
States, 200 F.3d 895, 902 n. 1 (6th Cir. 2000)). “‘The Magistrates Act was not intended to give
litigants an opportunity to run one version of their case past the magistrate, then another past the
district court.’” Id. (quoting Jones–Bey v. Caruso, No. 1:07–cv–392, 2009 WL 3644801, *1
(W.D. Mich. Oct. 30, 2009)). For this reason, the Court can properly deem this argument
waived.
Furthermore, the Court concludes that Plaintiff’s first objection should be rejected on its
merits for three reasons. First, the record evidence indicates, as the ALJ found, that Plaintiff
improved with hospitalization, medication, and therapy; furthermore, Plaintiff’s impairments,
which can be controlled with proper treatment, are distinguishable from progressively
debilitating conditions marked by periods of exacerbation and remission. Second, substantial
evidence supports the ALJ’s decision to discount Plaintiff’s credibility regarding the severity of
his self-reported symptoms. Third, the ALJ’s RFC determination is supported by substantial
evidence in the record.
5
The medical evidence of record indicates that each time Plaintiff was hospitalized for
psychiatric symptoms, he improved within a period of approximately one week or less. Plaintiff
was admitted to DOT Caring Center, Inc. on February 27, 2010, with complaints of depression,
anxiety, vomiting spells, rapid heartbeat, and reports of drug use. A.R. at 376, 378. A mental
health assessment completed on March 1, 2010 noted that Plaintiff was well-groomed, with
normal speech, intact thought processes, appropriate affect, no suicidal ideation, and normal
thought content, although his mood was characterized as anxious and he had a history of cutting.
Id. at 381-382.
Plaintiff was admitted to inpatient care at HealthSource Saginaw on October 1, 2010, and
discharged on October 8, 2010. Id. at 388-393. Plaintiff was hospitalized for anxiety, insomnia,
and suicidal ideation.
Id. at 388.
After admission, Plaintiff was placed on medications,
including Vistaril, Lexapro, Klonopin, and Inderal. Id. at 388. Plaintiff reported gradually
responding to the medications. Id. at 389. The discharge summary notes that Plaintiff was
improved on October 8:
When seen on October 8, 2010, the patient is alert, friendly, talkative, and free of
any acute psychotic symptoms or anxiety problems. His [sic] sleeping is better.
He gained good insight and willing to have regular outpatient counseling at BayArenac Mental Health Center. The treatment team felt that the patient has shown
good process [sic] with the medications and he can be treated on an outpatient
basis.
Id. at 399.
On May 8, 2011, Plaintiff was admitted to the emergency room at Bay Regional Medical
Center with reports of stress and a possible seizure. Id. at 415. The reporting physician noted
“there was so much psychological stuff going on that I doubt he had an actual seizure.” Id. at
415. Plaintiff refused a mental health consultation and was discharged in stable condition. Id. at
416.
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On June 10, 2011, Plaintiff was involuntarily admitted at Bay Regional Medical Center
with symptoms of depression, anxiety, and suicidal ideation. Id. at 616-618, 399, 401. The
doctor noted that Plaintiff had limited judgment and insight, and was at risk for hurting himself.
Id. at 401. Plaintiff’s prescription for Seroquol was increased, his prescription for Ativan was
discontinued, Klonopin was decreased, and Dilantin was continued. Id. at 401. At discharge on
June 15, 2011, Plaintiff’s affect was “much brighter and pleasant;” he “emphatically” denied any
suicidal or homicidal ideation, and his judgment and insight had “improved significantly.” Id. at
402.
On March 15, 2012, Plaintiff was admitted at McLaren Bay Region. Id. at 676. The
intake notes indicate that Plaintiff reported anxiety, depression, multiple suicide attempts, mood
fluctuations, poor sleep, and suicidal thoughts. Id. at 678. Plaintiff was switched to Zyprexa and
continued in therapy.
On March 17, Plaintiff reported sleeping well, significant mood
improvement, and feeling better overall. Id. at 695. At discharge on March 19, Plaintiff reported
a “much improved” mood and stated he was doing much better. Id. at 698. He denied suicidal
thoughts and hallucinations, and noted a much reduced anxiety level. Id. at 698. He had
improved judgment and insight. Id. at 698.
Further, the medical records indicate that Plaintiff’s periods of worsening symptoms are
tied to his failure to follow his treatment plan, and that Plaintiff’s symptoms improve when he
takes prescribed medication and attends therapy sessions. On October 13, 2010, Plaintiff was
assessed as having mild or no self-injurious behaviors, no suicidal ideation, and no reported
thought disturbances, although he had moderately severe harmful behaviors. Id. at 430-431. On
October 20, 2010, Plaintiff reported that he ran out of Klonopin because he was taking two at a
time, and stopped taking Abilify because it was making him anxious and restless. Id. at 442-443.
7
He reported not sleeping well and feeling very anxious and restless, and he reported having
opiates in his system earlier. Id. at 442. On November 17, 2010, a medical report noted that
Plaintiff was prescribed Inderal, Klonopin, Remeron, and Seroquel, and that Plaintiff reported he
was sleeping much better since starting Seroquel, although he continued to feel anxious. Id. at
440. A report dated December 15, 2010 states that Plaintiff did not appear for his appointment.
Id. at 444. On January 5, 2011, Plaintiff reported he stopped taking Seroquel after experiencing
twitching, although he stated the Seroquel helped his mood and thoughts. Id. at 446.
An outpatient report dated May 2, 2011 states that Plaintiff had not shown up for therapy
appointments and had not recently seen the doctor. Id. at 434. The medical report stated
Plaintiff was not doing well, could not sleep, took three Klonopin at once, and was listed as
decompensating and unstable. Id. at 452-453. On August 15, 2011, Plaintiff reported he was
sleeping much better after resuming Seroquel, although he was still anxious. Id. at 462. On
October 23, 2011, Plaintiff went to the emergency room seeking medication for anxiety and
claiming his medication was not working; he was given a prescription for Xanax. Id. at 642. On
December 2, 2011, a medical report notes that Plaintiff was not consistent with keeping his
therapy appointments for the past year. Id. at 501. Plaintiff reported feeling basically healthy
and better when he was off opiates. Id. at 502, 511. Plaintiff reported feeling calmer after taking
Pristiq and continuing with Seroquel; he was listed as improving. Id. at 516-517.
On January 16, 2012, a doctor advised Plaintiff that to see improvement, “he will have to
be more invested in his psychotherapy than his therapist’s note seems to indicate at present.” Id.
at 521. A progress note from February 22, 2012 indicates Plaintiff was continuing to miss
psychotherapy appointments, but that he was “planning to attend therapy sessions because his
disability attorney told him that he had to.” Id. at 526.
8
This record evidence indicates that Plaintiff’s psychological and psychiatric conditions
can be controlled with treatment, which undercuts the claimed severity of his conditions. It is
notable during that the brief, acute periods of illness documented by the hospitalizations in the
record, Plaintiff responded quickly and well to therapy and medication.
At least one court noted has noted that a claimant’s brief hospitalization does not
indicate the severity of a claimant’s overall condition, where the acute period of illness is quickly
brought under control:
Although no one questions the severity of Plaintiff’s illness during the three days
that she was hospitalized in March of 2008, drug use and a lack of medication
were two factors that may have contributed to that relatively brief and isolated
severe period of illness. Once Plaintiff resumed her medications, her acute illness
was brought under significant control and she was released from the hospital.
Headen v. Astrue, No. 10-648, 2011 WL 3566796, at *8 (S.D. Ohio July 22, 2011). Like in
Headen, Plaintiff’s brief, acute periods of illness here were linked to drug use and the failure to
follow treatment; the bouts of illness were also brought under “significant control” upon
receiving treatment.
Furthermore, this Court addressed a similar situation in a prior decision in a different
case. In Burney v. Commissioner of Social Security, the medical evidence indicated that the
claimant’s mental impairments improved when she consistently took her medication. This Court
concluded that “impairments that are controlled by medication are not disabling.” No. 12-10151,
2013 WL 1289310, at *3 (E.D. Mich. Mar. 28, 2013) (citing Pasco v. Comm’r of Soc. Sec., 137
F. App’x 828, 836 (6th Cir. 2005)). The fact that Plaintiff’s symptoms here “often improved
with medication and treatment” undercuts the claimed severity of his impairments.
Comm’r of Soc. Sec., 490 F. App’x 748, 754 (6th Cir. 2012).
9
Torres v.
In support of his argument that the periods of hospitalization indicate the episodic nature
of his impairments, characterized by periods of exacerbation and remission, Plaintiff relies on
Singletary v. Bowen, 798 F.2d 818 (5th Cir. 1986) and Wilcox v. Sullivan, 917 F.2d 272 (6th
Cir. 1990). Both cases are distinguishable. In Singletary, the Fifth Circuit, quoting a case from
the Northern District of California, concluded as follows:
Unlike a physical impairment, it is extremely difficult to predict the course of
mental illness. Symptom-free intervals, though sometimes indicative of a
remission in the mental disorder, are generally of uncertain duration and marked
by an impending possibility of relapse. Realistically, a person with a mental
impairment may be unable to engage in competitive employment, as his ability to
work may be sporadically interrupted by unforeseeable mental setbacks.
Singletary, 798 F.2d at 821 (quoting Lebus v. Harris, 526 F. Supp. 56, 61 (N.D. Cal. 1981)). The
Fifth Circuit adopted this analysis to conclude that a claimant who has a mental impairment need
not demonstrate a twelve-month period of impairment “unmarred by any symptom-free interval”
to meet the duration requirement of the disability statute. Singletary, 798 F.2d at 821. In this
case, however, the duration requirement is not at issue; the ALJ concluded that Plaintiff had the
severe impairments of post-traumatic stress disorder, anxiety, depression, impulse control
disorder, and polysubstance abuse that met the twelve-month duration requirement. A.R. at 19.
The Singletary decision, although it supports the general proposition that mental health
impairments may be marked by symptom-free periods, is inapplicable to the specific issue here:
the extent to which short, acute periods of illness that respond well to treatment support a finding
of non-disability.
In Wilcox, the Sixth Circuit addressed a disability arising from multiple sclerosis. The
court concluded, “[I]n evaluating multiple sclerosis, or any other episodic disease, consideration
should be given to the frequency and duration of the exacerbations, the length of the remissions,
and the evidence of any permanent disabilities.” Wilcox, 917 F.2d at 277. Plaintiff argues that
10
week-long psychiatric hospitalizations occurring every six months would preclude employment.2
However, unlike multiple sclerosis, which by its nature is “an incurable, progressive disease
subject to periods of remission and exacerbation,” id. (citation omitted), substantial evidence in
the record supports the conclusion that the episodic nature of Plaintiff’s condition resulted from
his periodic failure to adhere to a treatment plan, not from the underlying nature of his mental
health impairments. Further, as the R&R concluded and as Plaintiff does not contest in his
objections, “[t]he ALJ’s thorough questioning of Plaintiff and review of the record does not
suggest . . . compelling reasons for misusing prescription drugs, abusing opiates or illicit drugs,
or failing to attend therapy sessions.”3
Furthermore, evidence in the record shows that Plaintiff’s condition improved from 2010
and early 2011 to late 2011 and early 2012. See A.R. at 434, 442 (medical reports from late
2010 and early 2011 show Plaintiff was anxious, unstable, and had opiates in his system); Id. at
516-517 (medical reports from December 2011 indicate Plaintiff was feeling calmer, was off
opiates and was improving); Id. at 698 (discharge report from March 19, 2012, after being
admitted to the hospital for a period of acute symptoms, indicate significant improvement after
four days). Therefore, the ALJ’s conclusion that the periodic hospitalizations did not indicate a
2
The Court notes that, as the R&R points out, it is not immediately apparent that missing work
for one week twice a year due to acute periods of illness would render an individual unable to
work. See R&R at 25-26. Furthermore, the record indicates that Plaintiff’s hospitalizations
occurred in October 2010, June 2011, and March 2012; these hospitalizations therefore did not
occur every six months. Both of these points undermine Plaintiff’s argument about the episodic
nature of his impairment.
3
As the R&R notes, the “[f]ailure to follow prescribed treatment becomes a determinative issue
only if the claimant’s impairment is found to be disabling under steps one through five and is
amenable to treatment expected to restore ability to work.” R&R at 23 (quoting Hester v. Sec. of
Health & Human Servs., 886 F.2d 1315 (Table), 1989 WL 115632, at *3 (6th Cir. Oct. 4, 1989)).
Because the ALJ found Plaintiff not disabled at Step Five of the analysis, Plaintiff’s failure to
follow treatment is not determinative of the disability finding. Regardless, evidence of
Plaintiff’s noncompliance with treatment sheds light on the episodic nature of his impairments,
as discussed above.
11
disabled status was supported by substantial evidence. See, e.g., White v. Comm’r of Soc. Sec.,
572 F.3d 272, 284-285 (6th Cir. 2009) (noting that although the claimant argued the ALJ “failed
to properly consider the episodic nature of bipolar disorder and depression,” substantial evidence
supported the ALJ’s conclusion that the overall trajectory of the claimant’s impairments
indicated improvement).
The Court further concludes that the ALJ’s credibility determination should be upheld.
In his objection, Plaintiff does not challenge the R&R’s conclusion that the ALJ applied the
correct legal standard in making her credibility determination. See R&R at 19-24. The ALJ’s
decision not to fully credit Plaintiff’s self-reported symptoms is supported by substantial
evidence in the record.
First, Plaintiff’s failure to regularly attend therapy or to take his
medications as prescribed undercuts the severity of his self-reported symptoms of anxiety,
depression, insomnia, and suicidal ideation. See, e.g., Sias v. Sec’y of Health & Human Servs.,
861 F.2d 475, 480 (6th Cir. 1988) (concluding that the claimant’s failure to wear support hose
and continued smoking habit, in contravention of his physician’s prescriptions, were “not
consistent with [the habits] of a person who suffers from intractable pain . . . .”). In addition, the
ALJ noted inconsistencies in Plaintiff’s reported use of opiates. A.R. at 23. The Court notes, as
well, that Plaintiff testified that he does not consider himself disabled, which (although it is not
dispositive) further undermines the self-reported severity of his symptoms. Id. at 44. For these
reasons, the ALJ permissibly concluded that Plaintiff’s self-reporting regarding the intensity and
severity of his symptoms was not wholly credible. Id. at 22.
Finally, the Court concludes that the ALJ’s RFC determination was supported by
substantial evidence. As discussed above, Plaintiff’s impairments, although acute at times,
responded rapidly to treatment and showed an overall trajectory of improvement. Furthermore,
12
as noted in the above discussion on Plaintiff’s credibility, the ALJ concluded that Plaintiff’s
claim regarding the intensity and severity of his self-reported symptoms was not fully credible.
In addition, the ALJ cited Plaintiff’s daily activities, which included riding motorcycles,
performing household chores, attending church, playing guitar, and writing music, as
inconsistent with a finding of disability. See A.R. at 23. The ALJ further relied on the opinion
of Judy Strait, the state agency psychological consultant, who opined that Plaintiff “may work
best alone or in a small, familiar group. . . . The claimant retains the capacity to perform routine,
2-step tasks on a sustained basis.” Id. at 106. In addition, the ALJ referenced Plaintiff’s fulltime work as a cook in 2010.4 Id. at 23. This constitutes substantial evidence in support of the
ALJ’s determination that Plaintiff could perform simple, repetitive work limited to one- to twostep tasks, in a small, familiar group, with only occasional decision-making. See Torres, 490 F.
App’x at 754 (concluding that the ALJ’s RFC determination that the claimant could perform
simple, unskilled work was supported by substantial evidence, where the claimant “periodically
suffered pain and fatigue but her symptoms often improved with medication and treatment,” and
where the RFC was consistent with physician opinions).
For these reasons, the Court overrules Plaintiff’s first objection.
B. Objection Two
In his second objection, Plaintiff argues that the R&R and ALJ impermissibly concluded
that his limited work activity supported the finding of non-disability. Obj. at 4-5. Plaintiff
maintains that his attempt to work, which he now claims was terminated due to his impairments,
shows the desire to work, but not the ability to work on a sustained basis. Id. Plaintiff relies on
Cohen v. Sec’y of Health and Human Servs., 964 F.2d 524 (6th Cir. 1992) and Wilcox, 917 F.2d
4
The Court discusses the evidence regarding this prior work more fully in the analysis of
Plaintiff’s second objection.
13
at 277. In Cohen, 964 F.2d at 526-530, the court concluded that despite the claimant’s limited
ability to engage in ballroom dancing and attend law school part-time, her chronic fatigue
syndrome prevented her from substantial gainful employment on a “regular and continuing
basis.”
In Wilcox, 917 F.2d at 277, the claimant, who suffered from multiple sclerosis,
attempted to work but missed many days due to “his debilitating condition.” He was laid off
when his “union recommended that he stop working.” The court held that the claimant “should
not be penalized because he had the courage and determination to continue working despite his
disabling condition.” Id.
The ALJ concluded that Plaintiff’s six-month period of full-time work as a cook in 2010
was not substantial gainful employment because the earnings from this position could not be
substantiated. A.R. at 18. The ALJ determined that although this work experience was not
substantial gainful activity, it weighed against a finding of disability. Id. at 23. The R&R
concluded the ALJ did not err in making this determination. R&R at 21-22.
The Court rejects Plaintiff’s arguments. It is true that the cases on which Plaintiff relies
establish that an attempt to work that is terminated due to a claimant’s impairments does not
support a finding of “not disabled.” See also 20 C.F.R. 404.1574(a)(1) (“We generally consider
work that you are forced to stop or to reduce below the substantial gainful activity level after a
short time because of your impairment to be an unsuccessful work attempt.”). However, while
Plaintiff testified that although his employers at the bar claimed they terminated him because “he
couldn’t complete the tasks that they wanted [him] to,” he later opined that the true reason he
was fired was because the owners wanted to give Plaintiff’s position to a relative of the owners.
A.R. at 42-43. Therefore, there is at least an ambiguity as to whether Plaintiff was terminated
due to his impairments or due to external factors. Because an ambiguity remains as to this point,
14
Plaintiff did not meet his burden of showing that his termination from his past work experience
supports a finding of disability. See, e.g., Wilson v. Comm’r of Soc. Sec., 280 F. App’x 456,
460 (6th Cir. 2008) (concluding that because the claimant bore the burden of showing the
amount of time she worked at a past job, the ambiguity in the record regarding that point was
insufficient to find in favor of the claimant on that issue).
For these reasons, the Court overrules Plaintiff’s second objection.
C. Objection Three
In his third objection, Plaintiff argues that the ALJ erred in failing to address the Global
Assessment of Functioning (“GAF”) scores in the medical record as medical opinions. Obj. at 5.
Plaintiff argues that the Social Security Administration’s Administrative Message dated July 22,
2013 dictates that GAF scores are considered opinion evidence. Id. at 6. Plaintiff asserts that his
GAF scores are consistently low, and are supported by clinical treatment and psychiatric
hospitalization records. Id. at 6-8. Plaintiff thus maintains that this opinion evidence mandates a
finding of disability. Id. at 7.5
The ALJ stated the following regarding the GAF scores:
The undersigned gives little weight to the global assessment of functioning (GAF)
scores that are documented in the record because they are merely “snapshots in
time” and not indicative of any longitudinal functional abilities or limitations.
Further, the Commissioner has declined to endorse the GAF scale for “use in the
Social Security and SSI disability programs,” and has indicated that GAF scores
have no “direct correlation to the severity requirements [of the] mental disorders
listings.”
A.R. at 24. The R&R concludes that the GAF scores carry little weight because they indicate
Plaintiff was limited for a few days, at most. R&R at 25-26.
5
Plaintiff also argues that the recommendations he received to attend occupational therapy do
not undercut the import of the low GAF ratings. Pl. Obj. at 7-8. Because the Court concludes
that the GAF ratings do not require a finding of disability, the Court need not reach the issue of
the occupational therapy recommendations.
15
In a prior decision in a different case, this Court explained that an ALJ’s failure to credit,
or even to reference, a GAF score does not render the RFC or the decision in general unreliable:
The Magistrate Judge correctly concluded that courts in this district do not accord
controlling weight to GAF scores. . . . In fact, the Sixth Circuit has held that an
ALJ’s failure to refer to a GAF score does not make his or her RFC analysis
unreliable. See Howard v. Comm’r of Soc. Sec., 276 F.3d 235, 241 (6th Cir.
2002) (“While a GAF score may be of considerable help to the ALJ in
formulating the RFC, it is not essential to the RFC’s accuracy. Thus, the ALJ’s
failure to reference the GAF score in the RFC, standing alone, does not make the
RFC inaccurate.”).
Burney, 2013 WL 1289310, at *3; see also White v. Comm’r of Soc. Sec., 572 F.3d 272, 276
(6th Cir. 2009) (noting that a GAF score is a subjective determination); Kornecky v. Comm’r of
Soc. Sec., 167 F. App’x 496, 511 (6th Cir. 2006) (concluding that low GAF scores failed to show
that the ALJ’s decision was not supported by substantial evidence, because, in part, the court was
not “aware of any statutory, regulatory, or other authority requiring the ALJ to put stock in a
GAF score in the first place”).
Plaintiff relies principally on Administrative Message 13066 (“AM-13066”), dated July
22, 2013, which states in part, “We consider a GAF rating as opinion evidence.” As an initial
matter, this administrative message was released after the ALJ completed her decision. What is
more, as one court explained, a GAF score, by itself, carries little weight even under AM-13066:
Nor does the Court find error in the ALJ's failure to discuss Dr. Deutsch’s
assessment of a GAF score of 40. Plaintiff cites a reference to GAF scores in a
superseded edition of the Diagnostic and Statistical Manual of Mental Disorders
(DSM), Fourth Edition, DSM–IV, but the most recent version of the DSM does
not include a GAF rating for assessment of mental disorders. DSM–V 16–17 (5th
ed. 2013). Furthermore, in Administrative Message 13066 (“AM–13066”), issued
January 2014, the SSA noted:
[A] GAF needs supporting evidence to be given much weight. By itself,
the GAF cannot be used to “raise” or “lower” someone’s level of function.
The GAF is only a snapshot opinion about the level of functioning. It is
one opinion that we consider with all the evidence about a person’s
functioning. Unless the clinician clearly explains the reasons behind his or
16
her GAF rating, and the period to which the rating applies, it does not
provide a reliable longitudinal picture of the claimant’s mental functioning
for a disability analysis.
Nienaber v. Colvin, No. 13-1216, 2014 WL 910203, at *4 (W.D. Wash. Mar. 7, 2014) (emphasis
added).6
The Court has reviewed the GAF ratings provided in the medical record. A.R. at 399,
431-432, 440-441, 489-494, 501-510, 520-522, 681, 698. In each of these medical records, the
GAF rating is simply provided as a number, without explanation as to the period to which the
rating applies. The Court concludes that the ALJ, in stating that she gave little weight to the
GAF scores because they were “not indicative of any longitudinal functional abilities or
limitations,” gave good reasons for not assigning greater weight to the GAF scores. See AM13066 (noting that a GAF score, in general, “does not provide a reliable longitudinal picture of
the claimant’s mental functioning for a disability analysis”).
Furthermore, the Court notes that under the substantial evidence standard, “[a]n
administrative decision is not subject to reversal merely because substantial evidence would have
supported an opposite decision.” Mullen v. Bowen, 800 F.2d 535, 545 (6th Cir. 1986). Even if
— as Plaintiff contends— the GAF scores provide evidence of disability, the ALJ’s RFC
determination was nevertheless supported by substantial evidence, for the reasons discussed
previously.
For these reasons, the Court overrules Plaintiff’s third objection.
IV.
CONCLUSION
For the reasons stated above, the Court accepts the recommendation contained in the
R&R, overrules Plaintiff’s objections to the R&R, denies Plaintiff’s motion for summary
6
The Court notes that although the decision in Nienaber states that AM-13066 was issued in
January 2014, Plaintiff appears to be correct that it was in fact issued in July 2013.
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judgment, and grants Defendant’s motion for summary judgment.
SO ORDERED.
Dated: March 28, 2014
Flint, Michigan
s/Mark A. Goldsmith
MARK A. GOLDSMITH
United States District Judge
CERTIFICATE OF SERVICE
The undersigned certifies that the foregoing document was served upon counsel of record
and any unrepresented parties via the Court's ECF System to their respective email or First Class
U.S. mail addresses disclosed on the Notice of Electronic Filing on March 28, 2014.
s/Deborah J. Goltz
DEBORAH J. GOLTZ
Case Manager
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