Mason v. Commissioner of Social Security

Filing 11

OPINION; signed by Magistrate Judge Ray Kent (Magistrate Judge Ray Kent, fhw)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

JODY A. MASON,
Plaintiff,
v.

Case No. 1:16-cv-989

COMMISSIONER OF SOCIAL
SECURITY,

Hon. Ray Kent

Defendant.
/
OPINION
Plaintiff brings this action pursuant to 42 U.S.C. § 405(g), seeking judicial review of
a final decision of the Commissioner of the Social Security Administration (Commissioner) denying
her claim for disability insurance benefits (DIB).
Plaintiff alleged a disability onset date of January 20, 2013. PageID.200. Plaintiff
identified her disabling conditions as: bipolar with psychosis; degenerative disc disease;
schizoaffective disorder bipolar type; complex regional pain syndrome; osteoarthritis; and panic
attacks. PageID.203. Prior to filing her application for DIB, plaintiff completed two years of college
and canine grooming school, and had past employment as a veterinary assistant, dog groomer and
receptionist. PageID.78-81, 204. The administrative law judge (ALJ) reviewed plaintiff’s claim de
novo and entered a written decision denying benefits on April 17, 2015. PageID.52-66. This
decision, which was later approved by the Appeals Council, has become the final decision of the
Commissioner and is now before the Court for review.

I. LEGAL STANDARD
This Court’s review of the Commissioner’s decision is typically focused on
determining whether the Commissioner’s findings are supported by substantial evidence. 42 U.S.C.
§405(g); McKnight v. Sullivan, 927 F.2d 241 (6th Cir. 1990). “Substantial evidence is more than
a scintilla of evidence but less than a preponderance; it is such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.” Cutlip v. Secretary of Health & Human
Services, 25 F.3d 284, 286 (6th Cir. 1994). A determination of substantiality of the evidence must
be based upon the record taken as a whole. Young v. Secretary of Health & Human Services, 925
F.2d 146 (6th Cir. 1990).
The scope of this review is limited to an examination of the record only. This Court
does not review the evidence de novo, make credibility determinations or weigh the evidence.
Brainard v. Secretary of Health & Human Services, 889 F.2d 679, 681 (6th Cir. 1989). The fact that
the record also contains evidence which would have supported a different conclusion does not
undermine the Commissioner’s decision so long as there is substantial support for that decision in
the record. Willbanks v. Secretary of Health & Human Services, 847 F.2d 301, 303 (6th Cir. 1988).
Even if the reviewing court would resolve the dispute differently, the Commissioner’s decision must
stand if it is supported by substantial evidence. Young, 925 F.2d at 147.
A claimant must prove that he suffers from a disability in order to be entitled to
benefits. A disability is established by showing that the claimant cannot engage in 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 twelve months. See 20 C.F.R. § 404.1505; Abbott v. Sullivan, 905 F.2d 918, 923
2

(6th Cir. 1990). In applying the above standard, the Commissioner has developed a five-step
analysis:
The Social Security Act requires the Secretary to follow a “five-step
sequential process” for claims of disability. First, plaintiff must demonstrate that she
is not currently engaged in “substantial gainful activity” at the time she seeks
disability benefits. Second, plaintiff must show that she suffers from a “severe
impairment” in order to warrant a finding of disability. A “severe impairment” is one
which “significantly limits . . . physical or mental ability to do basic work activities.”
Third, if plaintiff is not performing substantial gainful activity, has a severe
impairment that is expected to last for at least twelve months, and the impairment
meets a listed impairment, plaintiff is presumed to be disabled regardless of age,
education or work experience. Fourth, if the plaintiff's impairment does not prevent
her from doing her past relevant work, plaintiff is not disabled. For the fifth and final
step, even if the plaintiff’s impairment does prevent her from doing her past relevant
work, if other work exists in the national economy that plaintiff can perform, plaintiff
is not disabled.
Heston v. Commissioner of Social Security, 245 F.3d 528, 534 (6th Cir. 2001) (citations omitted).
The claimant bears the burden of proving the existence and severity of limitations
caused by her impairments and the fact that she is precluded from performing her past relevant work
through step four. Jones v. Commissioner of Social Security, 336 F.3d 469, 474 (6th Cir. 2003).
However, at step five of the inquiry, “the burden shifts to the Commissioner to identify a significant
number of jobs in the economy that accommodate the claimant’s residual functional capacity
(determined at step four) and vocational profile.” Id. If it is determined that a claimant is or is not
disabled at any point in the evaluation process, further review is not necessary. Mullis v. Bowen, 861
F.2d 991, 993 (6th Cir. 1988).
II. ALJ’S DECISION
Plaintiff’s claim failed at the fifth step of the evaluation. At the first step, the ALJ
found that plaintiff did not engage in substantial gainful activity during the relevant time period,

3

which is from January 20, 2013 (her alleged onset date) through June 30, 2014 (her date last
insured). PageID.54. At the second step, the ALJ found that through the date last insured, plaintiff
had severe impairments of: obesity; complex regional pain syndrome of the right lower extremity;
status post lumbar laminectomy; sciatica; lumbar radicular syndrome of the right lower extremity;
degenerative disc disease of the lumbar spine; schizoaffective disorder; anxiety disorder, not
otherwise specified; posttraumatic stress disorder (PTSD); and cannabis abuse in early remission.
PageID.54. At the third step, the ALJ found that, through the date last insured, plaintiff did not have
an impairment or combination of impairments that met or equaled the requirements of the Listing
of Impairments in 20 C.F.R. Pt. 404, Subpt. P, App. 1. PageID.55.
The ALJ decided at the fourth step that, “through the date last insured, the claimant
had the residual functional capacity to perform sedentary work as defined in 20 CFR 404.1567(a)
except she is limited to simple work and may not perform any fast paced work.” PageID.56. The
ALJ also found that plaintiff was unable to perform any past relevant work. PageID.64.
At the fifth step, the ALJ determined that through the date last insured, plaintiff could
perform a significant number of unskilled, sedentary exertional jobs in the national economy.
PageID.64-65. Specifically, the ALJ found that plaintiff could perform the following unskilled work
in the region (defined as the State of Michigan): bench assembler (4,900 jobs); inserter (3,600 jobs);
and sorter (5,000 jobs). PageID.65. Accordingly, the ALJ determined that plaintiff has not been
under a disability, as defined in the Social Security Act, from January 10, 2013 (the alleged onset
date) through June 30, 2014 (the date last insured). PageID.65-66.

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III.

DISCUSSION

Plaintiff has raised two issues on appeal related to her mental limitations1:
A.

The ALJ failed to properly evaluate the medical
opinion evidence and to properly determine
plaintiff’s mental RFC.

1.

Dr. Thebert’s opinions

Plaintiff contends that the ALJ erred by giving only limited weight to the opinions
of her treating psychiatrist, Michael Thebert, M.D. A treating physician’s medical opinions and
diagnoses are entitled to great weight in evaluating plaintiff's alleged disability. Buxton v. Halter,
246 F.3d 762, 773 (6th Cir. 2001). “In general, the opinions of treating physicians are accorded
greater weight than those of physicians who examine claimants only once.”

Walters v.

Commissioner of Social Security, 127 F.3d 525, 529-30 (6th Cir. 1997). “The treating physician
doctrine is based on the assumption that a medical professional who has dealt with a claimant and
his maladies over a long period of time will have a deeper insight into the medical condition of the
claimant than will a person who has examined a claimant but once, or who has only seen the
claimant’s medical records.” Barker v. Shalala, 40 F.3d 789, 794 (6th Cir. 1994). Under the
regulations, a treating source’s opinion on the nature and severity of a claimant’s impairment must
be given controlling weight if the Commissioner finds that: (1) the opinion is well-supported by
medically acceptable clinical and laboratory diagnostic techniques; and (2) the opinion is not
inconsistent with the other substantial evidence in the case record. See Gayheart v. Commissioner
of Social Security, 710 F.3d 365, 375 (6th Cir. 2013); 20 C.F.R. § 404.1527(c)(2). Finally, the ALJ
must articulate good reasons for not crediting the opinion of a treating source. See Wilson v.

1

Plaintiff does not dispute the ALJ’s decision with respect to her physical limitations.

5

Commissioner of Social Security, 378 F.3d 541, 545 (6th Cir. 2004); 20 C.F.R. § 404.1527(c)(2)
(“[w]e will always give good reasons in our notice of determination or decision for the weight we
give your treating source’s opinion”).
Here, the ALJ evaluated three opinions given by Dr. Thebert. The ALJ gave limited
weight to the doctor’s opinions expressed in an April 29, 2014 questionnaire (PageID.763-770):
[T]he undersigned has considered the April 2014 psychiatric assessment from Dr.
Thebert who assessed the claimant with numerous marked limitations in the areas of
her ability to sustain concentration and persistence, in her ability to interact socially
and adaptation incapable of even low stress work, psychosis restricts any work and
[sic] would miss more than three times a month (Exhibit 8F). However, he found her
only moderately limited in her ability to understand, remember and carry out one or
two step instructions; interact appropriately with the general public, ask simple
questions or request assistance; feels reasonable [sic] well when not in a stressful
environment (Exhibit 8/F). In deciding whether or not to adopt the treating source’s
opinion in this situation, the following factors are to be considered along with any
other appropriate factors: the examining relationship, the treatment relationship in
terms of its frequency and duration, supportability, consistency, and specialization.
Particular attention is to be given to the consistency of the opinion with other
evidence, the qualifications of the source, and the degree to which the source offers
supporting explanations for the opinion (20 CFR 404.1527(d) & (f) and Social
Security Ruling 96-2p ).
The assessment of Dr. Thebert with numerous marked limitations is afforded
limited weight as it is inconsistent with the claimant’s treatment and outpatient
therapy notes, which showed the claimant had improvement in her symptoms with
her prescribed medication regimen and outpatient counseling. Her mental status
exams were relatively normal with only occasional mood fluctuations and her
intermittent increase in symptoms were noted to be possibly associated with her pain
symptomatology (Exhibit 3F/66, 73). Moreover, the undersigned notes that the GAF
rating is only a subjective estimate by a clinician, however Dr. Thebert assigned a
GAF rating of 55 consistently throughout his records, Exhibit 3F/10, 16, 23, 30, 36,
42, 55, 62, 69, 76, 82, 88, 94; 6F/28, 55; 7F/109, 120, 130, 131; 55; 10F/11, 22, 33,
44; 13F/10, 21, 32; 15F/54), which is inconsistent with his statement of disability and
is more consistent with the signs and findings upon examination in the record.
Furthermore, the record noted her hallucinations were essentially non-existent, but
appeared to be more prominent when the claimant was using cannabis with her
prescribed medications. She acknowledged that her cessation of cannabis helped
with her hallucinations (Exhibit 16F/l ).
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PageID.63.
The ALJ gave limited weight to Dr. Thebert’s June 3, 2015 opinion (PageID.771):

Moreover, in June 2014 Dr. Thebert opined the claimant was unable to work
at all; she will never be able to hold any type of employment (Exhibit 9F). The
statement is afforded limited weight as it is vague and does not offer function by
function limitations.
PageID.63.
Finally, the ALJ gave limited weight to Dr. Thebert’s statement regarding the effect
of plaintiff’s use of “drugs and/or alcohol” dated October 28, 2014 (PageID.1036):
Subsequently in an October 2014 statement from Dr. Thebert, which stated
that the claimant’s DA&A [drug and alcohol abuse] is not material, and she is totally
disabled without consideration of any past or present drug and or alcohol use (Exhibit
14F). This statement is afforded limited weight, because the conclusion as to
whether an individual satisfies the statutory definition of “disability” is an issue that
is reserved to the Commissioner of Social Security (Social Security Ruling 96-5p; 20
CFR 404.1527). Moreover, the materiality of DA&A is a legal question and not
solely a medical issue to be determined by the doctor.
PageID.63-64.2
2.

The ALJ’s evaluation of the medical record

Plaintiff contends that the ALJ gave only limited weight to Dr. Thebert’s opinions,
due to the ALJ’s erroneous conclusion that the doctor’s opinions conflicted with the treatment
records. In this regard, plaintiff contends that the ALJ’s reference to plaintiff’s mental status exams
as “relatively normal” was contrary to the evidence and not a basis for discounting the doctor’s

2

The Court notes that this opinion evaluated plaintiff’s condition as it existed about four months
after her last insured date. “[I]nsured status is a requirement for an award of disability insurance benefits.”
Garner v. Heckler, 745 F.2d 383, 390 (6th Cir.1984). Evidence of a claimant’s medical condition after the
last insured date is only considered to the extent it illuminates that condition before the expiration of the
claimant’s insured status. Higgs v. Bowen, 880 F.2d 860, 863 (6th Cir.1988).

7

opinion. The time frame at issue in this case is about 18 months, i.e., from plaintiff’s alleged
disability onset date of January 20, 2013 through her date last insured of June 30, 2014. To place
plaintiff’s medical history in context and to respond to plaintiff’s claim, the Court will set forth the
ALJ’s review evaluation of that evidence in its entirety:
Addressing the claimant's schizoaffective disorder, anxiety disorder, not
otherwise specified, posttraumatic stress disorder and cannabis abuse in early
remission, the claimant has a history of mental health issues. On January 24, 2013,
the claimant was admitted to Forest View due to increasing depression and anxiety
along with hallucinations (Exhibit lF/14-21). During the course of admission, she
participated in the trauma program and was able to improve her insight and be a part
of her improvement. Her medications were adjusted and she was cooperative with
both one on one therapy as well as group therapy (Exhibit lF/14-27). At discharge,
the claimant was not suicidal, her hallucinations had decreased to zero and her
anxiety and depression had reduced to a manageable level. As a result, the claimant
was discharged to the partial program so that she could continue to receive support
while she continued to improve (Exhibit lF/4-7).
Outpatient records from Pine Rest through March 2013 noted there was
mutual decision between the claimant and her therapist to terminate partial hospital
treatment. She was transferred to dialectical behavior therapy (DBT), which was
helpful in the past. However, it was going to be a period of several weeks before she
could start the DBT treatment and the claimant declined any treatment until then
(Exhibit 6F/1). April 2013, records from Frieda-Aboul-Fotuh, M.D., a psychiatrist,
noted the claimant had improved since restarting Cymbalta and she was happy with
her medication treatment regimen (Exhibit 6F/25). He recommended she continue
therapy. In addition, she was no longer hallucinating. Moreover, while she indicated
she was struggling with organization, she had missed her last appointment with Dr.
Fotuh and her last two therapy appointments (Exhibit 6F/27).
Pine Rest Northwest Clinic progress notes for outpatient therapy, from
Rebecca Doane, LMSW covering the period May 2013 through October 2013, and
a psychosocial evaluation, noted the claimant reported she was very depressed and
had not left the house for two weeks, she would sit in a chair, surf the internet and
sleep (Exhibit 3F/2). She had symptoms of anxiety and worry, decreased energy,
depressed mood and sleep disturbance (Exhibit 3F/25). Diagnosis included
schizoaffective disorder, anxiety disorder, not otherwise specified and cannabis abuse
in remission (Exhibit 3F/10). The claimant's medications included Xanax, Cymbalta,
Seroquel, Gabapentin and Topiramate (Exhibit 3F/25). After a few months with
medications and outpatient therapy, the claimant reported she was feeling better
8

(Exhibit 3F/27), she had increased motivation, she was doing chores and showering,
and was making lifestyle changes to her diet and exercise (Exhibit 3F/59). While at
times she had an increase in mental symptoms, it was noted it could be related to her
pain, as her physical pain was more an issue than her depression (Exhibit 3F/66, 73).
Moreover, while she had occasionally hallucinated, she stated she knew what the
hallucinations were and had no desire or intent to act on any emotion brought about
by the hallucinations. Additionally, the records noted she was not a suicidal or
homicidal risk (Exhibit 3F/73). Furthermore, it was noted she was using cannabis
semi-regularly, even though she told Dr. Mankoff she would quit (Exhibit 3F/91 ).
Additional records from February 2014 to April 2014 on exam noted the
claimant had appropriate dress, she was friendly, had good eye contact, was calm,
had a steady gait and normal rate of speech. Her conversation was intact and she had
no hallucinations, or delusions (Exhibit 7F/106-108). Moreover, her affect was
euthymic, and her thought process was logical and linear (Exhibit 7F/118, 130). The
claimant continued with outpatient therapy through July 2014, with relatively normal
mental status exams, and no evidence of hallucinations or delusions. At times she
had an anxious affect, but she made good eye contact, was friendly, she was sleeping
better and her mood was fair. Dr. Thebert made medications adjustments as needed
(Exhibit l0F/2-43). July 2014 records from Dr. Mankoff, from the Pain Clinic noted
the claimant reported she had not hallucinated and indicated she had stopped using
cannabis, which helped with the decreased hallucinations (Exhibit 16F/1). Dr.
Thebert noted the claimant's cannabis use was in early remission, she testified she
had quit using cannabis.
Subsequent records through October 2014 noted the claimant continued with
outpatient treatment. She reported she was feeling better, her appetite was lower, and
her mood seemed to be stabilizing. She had relatively normal mental status exams.
Although she had some noted fluctuations in her mood, she had no significant
recurrent hallucinations or suicidal ideation (13F/4-31 ).
The undersigned notes the record contains multiple global assessment of
functioning (GAF) scores, ranging from 25 (Exhibit lF/20) on admission for
psychiatric treatment, which indicated some danger of hurting self or others or
occasionally fails to maintain minimum personal hygiene or gross impairment in
communication; 63 (Exhibit lF/4) at discharge, which indicated some mild symptoms
or some difficulty in social, occupational or school functioning but generally
functioning pretty well, has some meaningful interpersonal relationships; 45 (Exhibit
6F/1), which indicated some impairment in reality testing or communication or major
impairment in several area, such as work or school, family relations, judgment,
thinking or mood and GAF ratings of 55, throughout the records from Dr. Thebert,
which indicated only moderate symptoms or moderate difficulty in social, occupation
or school functioning as set forth in the Diagnostic and Statistical Manual of Mental
9

Disorders (DSM) (Exhibit 3F/10, 16, 23, 30, 36, 42, 55, 62, 69, 76, 82, 88, 94; 6F/28,
55; 7F/109, 120, 130, 131; 55; l0F/ 11, 22, 33, 44; 13F/10, 21, 32; 15F/54). The
undersigned affords little weight to these opinions, as GAF scores are highly
subjective and non-standardized, as evidenced by the range of scores. Furthermore,
GAF scores do not assign corresponding functional limitations and do not indicate
whether the scores are intended to describe symptom severity or limitations in
functioning.
PageID.59-61.
In her brief, plaintiff provides a list of citations to the medical record which she
contends are contrary to the ALJ’s evaluation of the medical evidence and demonstrate that clinical
findings checked off in Dr. Thebert’s April 29, 2014 questionnaire (PageID.764) are “wholly
consistent with the mental status exams”:
Dr. Thebert stated that the limitations he found for Plaintiff were based on evidence
of mood disturbance, emotional lability, delusions or hallucinations, and perceptual
disturbances (PageID.764). These findings are wholly consistent with mental status
examinations throughout the period at issue (PageID.334-336, 617, 620, 623, 625,
632, 635-638, 657-659, 669, 680, 691, 702, 713, 724, 735, 781, 792, 802, 814, 1010,
1021, and 1032-1033) and are appropriate medical findings in the context of mental
impairments.
Plaintiff’s Brief at PageID.1142.
Plaintiff’s argument consists of an invitation for this Court to review 30 pages of
mental examination records and then determine that Dr. Thebert’s April 29, 2014 clinical findings
of mood disturbance, emotional lability, delusions or hallucinations, and perceptual disturbances are
“wholly consistent” with the results of those examinations. Plaintiff’s invitation is beyond the scope
of this review. It is the ALJ’s responsibility to weigh conflicting evidence. See Buxton v. Halter,
246 F.3d 762, 775 (6th Cir. 2001). The ALJ performed an extensive review of the medical evidence
and evaluated Dr. Thebert’s opinion in light of that evidence. It is not this Court’s task to review
the evidence de novo, make credibility determinations, or weigh the evidence. Brainard, 889 F.2d
10

at 681. See Reynolds v. Commissioner of Social Security, 424 Fed. Appx. 411, 414 (6th Cir. 2011)
(“This court reviews the entire administrative record, but does not reconsider facts, re-weigh the
evidence, resolve conflicts in evidence, decide questions of credibility, or substitute its judgment for
that of the ALJ.”). The purpose of this Court’s review is to determine whether there is substantial
support for the ALJ’s decision in the record. Willbanks, 847 F.2d at 303. Based on this record, the
ALJ gave good reasons for the weight assigned to Dr. Thebert’s opinions, and those reasons are
supported by substantial evidence as set forth in the ALJ’s decision. Accordingly, this claim of error
is denied.
3.

GAF scores

Plaintiff contends that the ALJ improperly relied on her GAF scores. The Court
disagrees. The GAF score is a subjective determination that represents “the clinician’s judgment of
the individual’s overall level of functioning” on a hypothetical continuum of mental health-illness.
American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (DSM-IVTR), (4th ed., text rev., 2000), pp. 32, 34. The GAF score is taken from the GAF scale, which rates
individuals’ “psychological, social, and occupational functioning,” and “may be particularly useful
in tracking the clinical progress of individuals in global terms.” Id. at 32. The GAF scale ranges
from 100 to 1. Id. at 34. At the high end of the scale, a person with a GAF score of 100 to 91 has
“no symptoms.” Id. At the low end of the GAF scale, a person with a GAF score of 10 to 1
indicates “[p]ersistent danger of hurting self or others (e.g., recurrent violence) OR persistent
inability to maintain minimal personal hygiene OR serious suicidal act with clear expectation of
death.” Id.

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As the Sixth Circuit explained in Kennedy v. Astrue, 247 Fed. Appx.761 (6th Cir.
2007):
GAF is a clinician’s subjective rating of an individual’s overall psychological
functioning. A GAF score may help an ALJ assess mental RFC, but it is not raw
medical data. Rather, it allows a mental health professional to turn medical signs and
symptoms into a general assessment, understandable by a lay person, of an
individual’s mental functioning.
Kennedy, 247 Fed. Appx. at 766.
The Sixth Circuit has observed that a GAF score “may have little or no bearing on the
subject’s social and occupational functioning,” Kornecky v. Commissioner of Social Security, 167
Fed. Appx. 496, 511 (6th Cir.2006), and rejected the proposition that a determination of disability
can be based solely on the unsupported, subjective determination of a GAF score, Rutter v.
Commissioner of Social Security, No. 95-1581, 1996 WL 397424 at *2 (6th Cir. July 15, 1996).
Furthermore, there are no “statutory, regulatory, or other authority requiring the ALJ to put stock in
a GAF score in the first place.” Kornecky, 167 Fed. Appx. at 511. See Oliver v. Commissioner of
Social Security, 415 Fed. Appx. 681, 684 (6th Cir. 2011) (“[t]he GAF scale . . . does not have a
direct correlation to the severity requirements in [the agency’s] mental disorders listings”), quoting
Response to Comment, Final Rules on Revised Medical Criteria for Evaluating Mental Disorders and
Traumatic Brain Injury, 65 FR 50746, 50764-65 (Aug. 21, 2000).
Here, the ALJ referred to the GAF scores for the purpose of pointing out that Dr.
Thebert used this diagnostic tool on numerous occasions and that on those occasions made the
subjective determination that plaintiff had a GAF score of 55. PageID.63.3 Under the GAF scale
3

While the ALJ was faced with multiple GAF scores in this case, it is unclear to this Court whether
GAF scores will have any relevance in determining future disability claims. As one court observed, the
current edition of the Diagnostic and Statistical Manual of Mental Disorders no longer uses the GAF scale:

12

these scores indicate “moderate symptoms (e.g., flat affect and circumstantial speech, occasional
panic attacks) OR any moderate difficulty in social, occupational, or school functioning (e.g., few
friends, conflicts with peers or co-workers).” DSM-IV-TR at p. 34. Assuming that Dr. Thebert
considered a GAF score of 55 to mean “moderate symptoms” as noted in the DXM-IV-TR, the ALJ
found that this score was inconsistent with the doctor’s statement of disability. PageID.63. The ALJ
did not err in attempting to reconcile one of Dr. Thebert’s diagnostic tools (the GAF score) with the
medical record and the doctor’s opinions. See generally Buxton v. Halter, 246 F.3d 762, 775 (6th
Cir. 2001) (observing that the ALJ has “the enormous task of making sense of the record, reconciling
conflicting medical opinions and evidence, and weighing the credibility of [the claimant’s]
subjective complaints”).
4.

ALJ’s mental residual functional capacity (RFC)
is not supported by medical evidence

RFC is a medical assessment of what an individual can do in a work setting in spite
of functional limitations and environmental restrictions imposed by all of his medically determinable
impairments. 20 C.F.R. § 404.1545. It is defined as “the maximum degree to which the individual
retains the capacity for sustained performance of the physical-mental requirements of jobs.” 20
C.F.R. Part 404, Subpt. P, App. 2, § 200.00(c).

The most recent (5th) edition of the Diagnostic and Statistical Manual of Mental Disorders
does not include the GAF scale. The American Psychiatric Association has explained,
“Clinician-researchers . . . have conceptualized [the] need for treatment as based on
diagnosis, severity of symptoms and diagnosis, dangerousness to self or others, and
disability in social and self-care spheres. We do not believe that a single score from a global
assessment, such as the GAF, conveys information to adequately assess each of these
components, which are likely to vary over time.” http://www.dsm5.org (“FAQs About DSM5 Implementation -- For Clinicians”).
Judy v. Colvin, No. 3:13CV00257, 2014 WL 1599562 at *9 (S.D. Ohio April 21, 2014), report and
recommendation adopted, 2014 WL 1900614 (May 9, 2014).

13

Plaintiff contends that the ALJ failed to cite medical evidence to support the mental
RFC. Here, the ALJ found that through the date last insured, plaintiff had the RFC to perform
sedentary work “except she is limited to simple work and may not perform any fast paced work.”
PageID.56. “[T]he ALJ is charged with the responsibility of determining the RFC based on her
evaluation of the medical and non-medical evidence.” Rudd v. Commissioner of Social Security, 531
Fed. Appx. 719, 728 (6th Cir. 2013). In evaluating a claimant’s RFC, “the ALJ need only articulate
how the evidence in the record supports the RFC determination, discuss the claimant’s ability to
perform sustained work-related activities, and explain the resolution of any inconsistencies in the
record.” Delgado v. Commissioner of Social Security, 30 Fed.Appx. 542, 547-548 (6th Cir. 2002)
(citations and quotation marks omitted).
The ALJ’s explained plaintiff’s mental RFC in pertinent part as follows:
In sum, the above residual functional capacity assessment is supported by the
medical evidence of record. . . The undersigned finds that the preponderance of
credible evidence establishes that the claimant experienced no greater than mild to
moderate functional limitations upon her ability to perform basic work activities.
PageID.64. Plaintiff contends that this explanation is insufficient because the ALJ failed to cite any
specific medical evidence and did not rely on any persuasive non-medical facts. The Court
disagrees. Support for the ALJ’s RFC can be found in Dr. Thebert’s April 29, 2014 opinion, in
which the doctor stated that plaintiff was only moderately limited: in her ability to understand,
remember and carry out one or two step instructions; in her ability to interact appropriately with the
general public, ask simple questions or request assistance; and that she feels reasonably well when
not in a stressful environment. PageID.63, 766-768. As discussed, the ALJ did not outright reject
the doctor’s opinions, but gave them “limited weight.” Based on the record as a whole, it appears

14

to the Court that the ALJ gave some weight to these moderate restrictions, which support the RFC
limiting plaintiff to simple work that is not fast paced.
While the basis for the ALJ’s mental RFC determination could have been better
articulated, it is supported by evidence in the record. The Court finds no basis to remand this matter
back to the administrative agency. See Fisher v. Bowen, 869 F.2d 1055, 1057 (7th Cir. 1989) (“No
principle of administrative law or common sense requires [a reviewing court] to remand a case in
quest of a perfect opinion unless there is reason to believe that the remand might lead to a different
result.”). Accordingly, plaintiff’s claim of error is denied.
B.

The ALJ failed to properly evaluate plaintiff’s
credibility.

Plaintiff contends that the ALJ failed to properly evaluate her credibility. An ALJ
may discount a claimant’s credibility where the ALJ “finds contradictions among the medical
records, claimant’s testimony, and other evidence.” Walters, 127 F.3d at 531. “It [i]s for the
[Commissioner] and his examiner, as the fact-finders, to pass upon the credibility of the witnesses
and weigh and evaluate their testimony.” Heston, 245 F.3d at 536, quoting Myers v. Richardson,
471 F.2d 1265, 1267 (6th Cir. 1972). The court “may not disturb” an ALJ’s credibility determination
“absent [a] compelling reason.” Smith v. Halter, 307 F.3d 377, 379 (6th Cir. 2001). The threshold
for overturning an ALJ’s credibility determination on appeal is so high, that the Sixth Circuit has
expressed the opinion that “[t]he ALJ’s credibility findings are unchallengeable,” Payne v.
Commissioner of Social Security, 402 Fed. Appx. 109, 113 (6th Cir. 2010), and that “[o]n appeal,
we will not disturb a credibility determination made by the ALJ, the finder of fact . . . [w]e will
not try the case anew, resolve conflicts in the evidence, or decide questions of credibility.”

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Sullenger v. Commissioner of Social Security, 255 Fed. Appx. 988, 995 (6th Cir. 2007).
Nevertheless, an ALJ’s credibility determinations regarding subjective complaints must be
reasonable and supported by substantial evidence. Rogers v. Commissioner of Social Security, 486
F.3d 234, 249 (6th Cir. 2007).
The ALJ evaluated plaintiff’s credibility in pertinent part as follows:
In assessing the claimant’s credibility the undersigned has considered the claimant’s
allegations and symptoms. While the claimant has confirmed obesity, complex
regional pain syndrome of the right lower extremity, status post lumbar laminectomy,
sciatica, lumbar radicular syndrome of the right lower extremity, degenerative disc
disease of the lumbar spine, schizoaffective disorder, anxiety disorder, not otherwise
specified, posttraumatic stress disorder, and cannabis abuse in early remission that
could cause problems with daily and work functioning, however, the totality of the
evidence does not support total disability. The claimant’s physical exams were
essentially normal. . .
Furthermore, the record documents multiple periods of relatively normal
mental functioning, which were accompanied by essentially stable or normal moods
with treatment, she was alert and oriented, had no psychosis, she was articulate and
able to converse appropriately, her memory was intact and her thought process was
intact. The claimant has psychological symptoms, but has been prescribed and takes
medications with some noted positive results as well as a positive response from
outpatient therapy. Additionally, she has not required emergent care or inpatient
psychiatric hospitalization for exacerbation of psychiatric symptoms, since January
2013.
Additionally, while the claimant reported episodes of hallucinations in the
record, there were references that her hallucinations were prominent when she used
cannabis. The claimant acknowledged that when she had stopped using cannabis in
combination with her prescribed medications, her hallucinations were improved
(Exhibit 16F/1).
While obesity, complex regional pain syndrome of the right lower extremity,
status post lumbar laminectomy, sciatica, lumbar radicular syndrome of the right
lower extremity, degenerative disc disease of the lumbar spine, schizoaffective
disorder, anxiety disorder, not otherwise specified, posttraumatic stress disorder and
cannabis abuse in early remission could cause physical and mental symptoms, the
claimant’s description of the symptoms are inconsistent with her performance on
exams, her positive response to medication, injection therapy, physical therapy,
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findings on diagnostic testing, and no required need for additional surgical
intervention, her positive response to outpatient mental therapy, no additional
emergent care for exacerbation of psychiatric symptoms and no significant
limitations in performing her daily activities of living and the record as a whole.
Although these inconsistencies in the claimant’s presentation do not mean she is
unimpaired, it supports the conclusion that she retains some ability to work.
Accordingly, the undersigned finds that the claimant's statements concerning the
intensity, persistence and limiting effects of her alleged symptoms are not fully
credible (20 CFR 404.1529 and 416.929 and SSR 96-7p ).
As a result, the above limitations in the residual functional capacity would
more than fully accommodate her obesity, complex regional pain syndrome of the
right lower extremity, status post lumbar laminectomy, sciatica, lumbar radicular
syndrome of the right lower extremity, degenerative disc disease of the lumbar spine,
schizoaffective disorder, anxiety disorder, not otherwise specified, posttraumatic
stress disorder and cannabis abuse in early remission.
PageID.61-62.
Plaintiff contends that the ALJ’s credibility determination is not supported by
substantial evidence noting (1) that there is a lack of evidence that plaintiff had significant or
sustained improvement with treatment and absent use of marijuana, (2) that the ALJ grossly
mischaracterized the record by finding that overall she had “relatively normal mental functioning”
during the period at issue, and (3) the fact that plaintiff was not psychiatrically hospitalized since
January 2013 does not mean she is not mentally disabled. PageID.1146-1148. Other than a cursory
complaint about the “boilerplate language that appears almost universally in ALJ decisions benefits,”
plaintiff raises no arguments with respect to credibility, relying on his previous arguments with
respect to the matters raised in items (1) and (2). PageID.1146-1147. As discussed, supra, the Court
has rejected these arguments.4

4

The Court notes that plaintiff did not develop an argument with respect to the ALJ’s failure to
address the effect of her cannabis use.

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Finally, in item (3), plaintiff takes issue with the ALJ’s reasoning that plaintiff
experienced “multiple periods of relatively normal mental functioning” as evidenced, in part, by her
lack of required emergent care or inpatient psychiatric hospitalization for exacerbation of psychiatric
symptoms since January 2013. Plaintiff contends that the ALJ erred in referring to plaintiff’s lack
of psychiatric hospitalization, citing Voigt v. Colvin, 781 F.3d 871, 876 (7th Cir. 2015) (“[t]he
institutionalization of the mentally ill is generally reserved for persons who are suicidal, otherwise
violent, demented, or (for whatever reason) incapable of taking even elementary care of
themselves.”). In this case, the ALJ did not rely on plaintiff’s lack of psychiatric hospitalization as
the basis for the credibility determination; rather, plaintiff’s need for hospitalization was only one
of several factors mentioned. Given that plaintiff was hospitalized within days of the alleged
disability onset date, it was not unreasonable for the ALJ to consider plaintiff’s lack of later hospital
admissions as one factor in determining whether her claim of a disabling mental impairment was
credible. Accordingly, plaintiff’s claim of error is denied.
IV. CONCLUSION
The ALJ’s determination is supported by substantial evidence. The Commissioner’s
decision will be AFFIRMED pursuant to 42 U.S.C. § 405(g). A judgment consistent with this
opinion will be issued forthwith.

Dated: September 21, 2017

/s/ Ray Kent
RAY KENT
United States Magistrate Judge

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