Simmons v. Social Security Administration

Filing 18

MEMORANDUM AND ORDER IT IS HEREBY ORDERED that the decision of the Commissioner is AFFIRMED. A separate Judgment shall accompany this Memorandum and Order. Signed by Honorable Audrey G. Fleissig on 3/27/2012. (NCL)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
NORTHERN DIVISION
DEBRA KAY SIMMONS,
Plaintiff,
vs.
MICHAEL J. ASTRUE,
Commissioner of Social Security,
Defendant.

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Case No. 2:10CV00076 AGF

MEMORANDUM AND ORDER
This action is before this Court for judicial review of the final decision of the
Commissioner of Social Security finding that Plaintiff Debra Kay Simmons was not
disabled and, thus, not entitled to disability insurance benefits under Title II of the Social
Security Act, 42 U.S.C. §§ 401-434, or Supplemental Security Income (“SSI”) under Title
XVI of the Act, id. §§ 1381-1383f.
Plaintiff, who was born on October 10, 1956, filed for benefits in June 2007, at
age 50, alleging a disability onset date of August 8, 2003, due to back spasms, pain in the
neck, arms, shoulders and hands, arthritic knees and spine, difficulty concentrating,
headaches, and depression. After Plaintiff’s applications were denied at the initial
administrative level, she requested a hearing before an Administrative Law Judge
(“ALJ”). A hearing was held on January 26, 2009, at which Plaintiff amended her
alleged disability onset date to June 21, 2007. A supplemental hearing was held on
October 5, 2009. By decision dated November 5, 2009, the ALJ found that Plaintiff had

the residual functional capacity (“RFC”) to perform her past job as an assembly line
worker, and therefore was not disabled under the Act.
Plaintiff’s request for review by the Appeals Council of the Social Security
Administration was denied on September 14, 2010. Plaintiff has thus exhausted all
administrative remedies and the ALJ’s decision stands as the final agency action now
under review. Plaintiff argues that the ALJ’s decision is not supported by substantial
evidence because the ALJ did not properly evaluate Plaintiff’s pain and credibility; did
not give sufficient consideration to Plaintiff’s financial inability to obtain testing and
treatment; gave significant weight to a non-medical source; and mistakenly did not
believe that the record contained evidence of certain mental limitations. For the reasons
set forth below, the decision of the Commissioner shall be affirmed.
BACKGROUND
Work History and Application Form
In her Work History Report, Plaintiff listed and described her past work as a
respiratory therapist (1990-1998 and 2001-2005), assembly line worker at a rubber
factory (2000), house cleaner (four weeks in 2006), and cashier and baker at a bakery
(December 2006-June 2007). At the bakery, cleaning, and factory jobs, she frequently
lifted 20 pounds. (Tr. 267-73.)
In a Function Report, Plaintiff described her typical daily activities, including
personal care, meals, house and yard work, getting around, shopping, handling money,
hobbies and interests, and social activities. She also reported that her condition affected
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various abilities, including lifting, squatting, bending, standing, reaching, walking, sitting,
kneeling, stair climbing, completing tasks, concentration, using hands, and dealing with
stress. (Tr. 259-65.)
Medical Record
On August 8, 2003, Plaintiff underwent an anterior cervical discectomy fusion
with plating at C5-6 and C6-7. A post-operative x-ray showed placement of the anterior
fusion plate stabilized by vertebral body screws at the C5, C6, and C7 levels, and
interposition bone strut grafts at the C5-6 and C6-7 interspaces. On November 13, 2003,
a cervical x-ray showed fusion at C5-6 and C6-7. (Tr. 313-16.)
From April 13 through June 15, 2007, Plaintiff was treated at a family health
center by Dr. Cari Worley and Dr. Lea Claycomb. On April 13, 2007, Plaintiff
complained of pain in her back, neck, arm, and tailbone; hurting all over; and having
weather-dependent pain in her hands and feet in the morning that took about an hour to
“loosen up.” She reported that she was working part time at a bakery and taking eight to
ten aspirin packets a day. Examination showed pinpoint tenderness along the cervical
spine, some paraspinal muscle spasm, and pain over the sacrum to touch. Plaintiff was
diagnosed with back pain and prescribed Flexeril and Percocet. (Tr. 294-95.)
On May 3, 2007, Plaintiff stated that her back pain had worsened over the last six
to eight months; that the pain went down her spine and was worse in her tailbone; and
that the pain was worse at night, interrupting her sleep patterns, and when she sat or stood
for an extended period of time. Plaintiff reported that she had finished both prescriptions
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of Flexeril and Percocet, which she said had helped the pain. Dr. Claycomb noted that
because Plaintiff lacked insurance, she was not interested in imaging at that time. Dr.
Claycomb suggested that there could be a psychological component to Plaintiff’s back
pain and that it was not yet time to start chronic management with narcotics. Dr.
Claycomb renewed Plaintiff’s prescription for Percocet, and prescribed non-narcotic
Ultram and Lidoderm patches, along with back exercises. (Tr. 293.)
On May 24, 2007, Plaintiff reported to Dr. Claycomb that her right shoulder pain
had worsened over the previous few weeks, with some numbness and tingling down into
the right arm. She said that she was interested in obtaining an MRI and that she would
pay for it out of pocket. Dr. Claycomb told Plaintiff that she did not think an MRI was
necessary yet, but that she would look into the cost. She observed a positive
impingement sign, with pain at 180 degrees of rotation and with forward abduction, and a
flat affect. (Tr. 292).
On June 15, 2007, Plaintiff told Dr. Claycomb that her back pain had worsened
and that she had noticed swelling, tingling, and numbness in her right hand. She said she
had given notice to her employer (at the bakery) and planned to apply for disability
benefits because she could not keep up with the work due to pain. Dr. Claycomb
observed point tenderness along the lower cervical spine and the top of the T-spine, a
positive Spurling test on the right, and a very flat affect. Dr. Claycomb advised that the
cost of an MRI would be prohibitive without insurance, but that she would like to obtain
an MRI if Plaintiff were awarded disability benefits. Dr. Claycomb recommended that
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Plaintiff continue her cervical traction and cervical strengthening exercises, and refilled
her Percocet and Flexeril prescriptions. (Tr. 291.)
On August 20, 2007, state consultant Gregory K. Ivins, M.D., examined Plaintiff
in connection with her applications for disability benefits. He observed that Plaintiff was
in minimal distress, with moderate crepitus in both shoulders and mild patellofemoral
crepitus in the knees. Supine straight leg raises were positive at 70 degrees on the left
and 80 degrees on the right. Dr. Ivins’s impression was history of C5/C6 and C6/C7
cervical fusion with mild decreased range of motion and residual pain. He wrote that
Plaintiff should avoid work that involved looking up or down, and should not lift more
than 25 pounds on a routine basis, but was otherwise capable of full-time work. (Tr. 299302.)
An x-ray of the cervical spine on August 24, 2007, showed no acute fracture or
dislocation, satisfactory post-fusion alignment, moderate degenerative spurring from the
C4 vertebral body anteriorly, and mild narrowing of the right C5-6 and C6-7 neural
foramina. (Tr. 323.)
On August 31, 2007, a non-examining, non-medical state consultant completed a
physical RFC assessment form, opining in check-box format that Plaintiff could
occasionally lift 20 pounds, frequently lift ten pounds, stand/walk/sit each for six hours in
an eight-hour work day, and push/pull without limitation. (Tr. 75-80.)
On December 6, 2007, Plaintiff was diagnosed with degenerative disc disease of
the cervical spine, status post anterior cervical fusion, and lumbosacral pain with
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probable degenerative joint disease. (Tr. 325-27.) A lumbar spine x-ray taken that day
showed multilevel degenerative disc disease and spondylosis, along with slight
depression of the superior endplate at L4, chronic. (Tr. 324). On April 7 and August 7,
2008, Plaintiff was seen again for follow-up for neck and back pain. Diagnoses of
chronic cervical and chronic lumbar degenerative disc disease were given, and
prescriptions for Percocet, Flexeril, and Amitriptyline were refilled. (Tr. 330-35).
Hearing of January 26, 2009 (Tr. 41-74)
At the hearing on January 26, 2009, Plaintiff amended her alleged disability onset
date to June 22, 2007. She testified that she had a driver’s license, had obtained a GED,
and was certified in respiratory therapy. She was divorced and lived in a mobile home
with one of her two grown sons. She had no source of income other than food stamps,
had no medical insurance, and was supported by her sons. Plaintiff testified that she
stopped working at her last job -- as a cashier and baker -- due to pain. She had stopped
working as a respiratory therapist because she could no longer concentrate well enough
due to her pain. She left the assembly-line job at the rubber factory because it required
standing for eight hours a day and she could not do that. Her work cleaning houses only
lasted about four weeks. Plaintiff explained that after she stopped working as a
respiratory therapist, she tried to do something else, but “just . . . couldn’t do it.”
Plaintiff described her daily activities as reading a lot, occasionally doing
household chores and some grocery shopping, and some watching TV, mostly the news.
She had some friends, but a limited social life and had a personal computer which she
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used sometimes. She could handle her personal hygiene needs independently. Plaintiff
testified that she was taking Percocet and Flexiril for pain, Amitiptyline to help her sleep,
and an over-the counter medication for headaches. Since her back surgery in 2003, her
pain had gotten worse and was currently a six or seven on a ten point scale. She
experienced spasms in her back three or four times a week. Plaintiff stated that the
Percocet did “a pretty good job” most of the time, reducing her pain to a two and
controlling the spasms. She testified that she also arthritis in her knees and experienced
knee pain about twice a week, and that the Percocet made her sleepy, and a little
lightheaded sometimes.
Plaintiff testified that she had daily headaches and resulting difficulty
concentrating. She experienced depression and anxiety “[j]ust over the situation,” and
was not under psychiatric care. She stated that she could sit for about an hour and stand
for about 30 minutes at a time, and walk around a block. She thought that she could lift
up to about ten pounds without difficulty.
Upon questioning by her attorney, Plaintiff testified that due to the side effects of
her medications, she would take a nap four times a week for about three hours at a time.
She said the Percocet lowered her neck pain but did not eliminate it, and that the pain in
her shoulders and tailbone came and went. A VE testified, after which the ALJ decided
to send Plaintiff for mental and physical consultative exams.

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Additional Medical Evidence
On December 4, 2008, April 2, 2009, and August 6, 2009, Plaintiff was again seen
for follow-up of her chronic neck and back pain. Her diagnoses continued to be chronic
cervical and chronic lumbar degenerative disc disease. (Tr. 362-68.)
Meanwhile, on April 20, 2009, Thomas J. Spencer, Psy.D., performed a
consultative psychological examination as arranged for by the ALJ. He diagnosed
adjustment disorder, depressed/anxious, chronic, and a Global Assessment of Functioning
(“GAF”) score of 50 to 55.1 Dr. Spencer opined that Plaintiff’s symptoms were a reaction
to the chronic pain she experienced, and were not consistent with a major affective
disorder. In a Medical Source Statement - Mental, Dr. Spencer indicated that Plaintiff
had mild restrictions in understanding, remembering, and carrying out simple
instructions, making judgments on simple work-related decisions, and interacting
appropriately with the public; and moderate restrictions in understanding, remembering,
and carrying out complex instructions, making judgments on complex work-related
decisions, interacting appropriately with supervisors and co-workers, and responding

1

A GAF score represents a clinician’s judgment of an individual's overall ability
to function in social, school, or occupational settings, not including impairments due to
physical or environmental limitations. Diagnostic & Statistical Manual of Mental
Disorders (4th ed.) (DSM-IV) at 32. GAF scores of 31-40 indicate “[s]ome impairment
in reality testing or communication or “major” impairment in social, occupational, or
school functioning; scores of 41-50 reflect “serious” impairment in these functional areas;
scores of 51-60 indicate “moderate” impairment; scores of 61-70 indicate “mild”
impairment.
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appropriately to usual work situations and to changes in a routine work setting. (Tr.
337-42).
On May 11, 2009, Craig S. Heligman, M.D., performed a physical consultative
examination and diagnosed depression, status post anterior cervical discectomy and
fusion, and coccydynia (tailbone pain). He opined that Plaintiff was capable of
functioning at the light level of labor. In a Medical Source Statement - Physical, Dr.
Heligman indicated that Plaintiff could lift and carry 20 pounds occasionally and ten
pounds frequently; sit for eight hours without interruption; stand and walk for two hours
without interruption; sit, stand, and walk for a total of eight hours during an eight-hour
workday; could reach, handle, finger, and push and pull, and operate foot controls at least
frequently; and could kneel, crouch, and crawl only occasionally. (Tr. 346-57).
Supplemental Hearing of October 5, 2009 (Tr. 26-38)
At the second hearing, a different VE testified that Plaintiff’s past work as a
cashier and baker ranged from light to medium, and her work as a cleaner and assembly
line worker was light and unskilled. The ALJ asked the VE to consider an individual of
Plaintiff’s age, education and work experience who could lift/carry and push/pull 20
pounds occasionally and ten pounds frequently; sit/stand/walk each for six hours in an
eight-hour work day; only occasionally climb, balance, stoop, crouch, kneel or crawl;
never do work requiring looking up and down, or climbing ladders; and who was limited
to simple, repetitive tasks and instructions, and only occasional interaction with
supervisors, co-workers, and the public. The ALJ testified that such an individual could
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perform Plaintiff’s past assembly line work, and that such jobs existed in significant
numbers in the economy. The individual could also perform some office-helper jobs,
jobs which also existed in significant numbers.
Under questioning by Plaintiff’s attorney, the VE said that if the moderate
limitations assessed by Dr. Spencer were added to the ALJ’s hypothetical, along with a
GAF of 50-55, the hypothetical claimant would not be able to perform any job. The VE
also testified that if the GAF score of 50-55 was removed from the hypothetical, but the
individual could not maintain concentration for 15 minutes at a time twice a month due to
pain, the claimant could probably work for a period of time, but would have trouble
keeping a job.
ALJ’s Decision of November 5, 2009 (Tr. 9-18)
The ALJ determined that Plaintiff had not engaged in substantial gainful activity
since June 21, 2007, the amended alleged disability onset date. He found that she had the
severe impairments of degenerative disc disease of the spine, headaches, arthritis, and
adjustment disorder, but that she did not suffer from an impairment or combination of
impairments that met or medically equaled the severity of a deemed-disabling impairment
listed in the Commissioner’s regulations. The ALJ summarized the medical evidence,
and in so doing noted the August 24, 2007 x-ray, and concluded that Plaintiff’s
complaints “were out of proportion to the radiological findings in the medical record.”
The ALJ also noted Dr. Spencer’s GAF assessment of 50-55 and found that this was
inconsistent with Dr. Spencer’s other findings, especially considering that Plaintiff had
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not been seen by any mental health provider during the applicable period, and was
therefore unsupported by the record.
The ALJ found that Plaintiff had the RFC to perform light work as that term was
defined in the regulations,2 except that she could only occasionally climb, balance, stoop,
kneel, crouch, or crawl; could not perform a job requiring looking up or down, exposure
to unprotected heights, and climbing ladders, ropes, or scaffolds; and would require
simple repetitive work with one or two-step instructions.
After summarizing Plaintiff’s testimony at the first hearing, the ALJ found that
Plaintiff’s allegation that she could not concentrate enough to work was not “fully
credible” because it was inconsistent with her testimony that she read much of the day.
He found that her allegations of disabling neck and back pain and headaches were not
fully credible due to the lack of imaging evidence that Plaintiff’s cervical discs had
herniated again since her fusion in 2003, the lack of diagnostic testing or imaging to
support the cause or alleged severity of her headache pain, and further because Plaintiff

2

“Light work” is defined in 20 C.F.R. § 404.1567(b) as work that involves
lifting no more than 20 pounds at a time with frequent lifting or carrying of up to ten
pounds; and that might require a good deal of walking or standing, sitting most of the
time, and some pushing and pulling of arm or leg controls. Social Security Ruling (SSR)
83-10, 1983 WL 31251, at *6, elaborates that the full range of light work requires
standing or walking, off and on, for a total of approximately six hours of an eight hour
work day, while sitting may occur intermittently during the remaining time; that the
lifting requirement for the majority of light jobs can be accomplished with occasional,
rather than frequent, stooping; and that many unskilled light jobs are performed primarily
in one location, with the ability to stand being more critical than the ability to walk.
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stated that her headache pain was alleviated by over-the-counter medication.
The ALJ then reviewed the opinion evidence, including non-medical source’s
August 2007 physical RFC assessment, Dr. Spencer’s April 2009 evaluation, and Dr.
Heligman’s May 2009 opinion. The ALJ gave Dr. Spencer’s opinion “some weight,”
noting that it indicated the need for simple, repetitive work; and the non-medical source’s
and Dr. Heligman’s opinions that Plaintiff could essentially perform light work
“significant weight,” finding them to be consistent with each other and with the medical
evidence of record.
Based upon his RFC assessment and the VE’s testimony at the supplemental
hearing, the ALJ found that Plaintiff could perform her past relevant work as an assembly
worker at the light, unskilled level, as she had done at the rubber factory, and was
therefore not disabled. Acknowledging the VE’s testimony that an individual with the
limitations and GAF of 50-55 set forth in her attorney’s hypothetical question would not
be able to work, the ALJ stated that “such impairments are not in evidence as part of the
medical record, and as such are unsupported by expert testimony or any treating
provider’s notes.”
DISCUSSION
Standard of Review and Statutory Framework
In reviewing the denial of Social Security disability benefits, a court must affirm
the Commissioner’s decision “so long as it conforms to the law and is supported by
substantial evidence on the record as a whole.” Reed v. Barnhart, 399 F.3d 917, 920 (8th
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Cir. 2005) (citation omitted). This “entails ‘a more scrutinizing analysis’” than the
substantial evidence standard. Id. (quoting Wilson v. Sullivan, 886 F.2d 172, 175 (8th
Cir. 1989)). The court’s review “‘is more than an examination of the record for the
existence of substantial evidence in support of the Commissioner’s decision’”; the court
must “‘also take into account whatever in the record fairly detracts from that decision.’”
Id. (quoting Haley v. Massanari, 258 F.3d 742, 747 (8th Cir. 2001) (citation omitted)).
Reversal is not warranted, however, “‘merely because substantial evidence would have
supported an opposite decision.’” Id. (quoting Shannon v. Chater, 54 F.3d 484, 486 (8th
Cir. 1995)). A court should “disturb the ALJ’s decision only if it falls outside the
available ‘zone of choice.’” Hacker v. Barnhart, 459 F.3d 934, 936 (8th Cir. 2006)
(citations omitted).
To be entitled to benefits, a claimant must demonstrate an inability to engage in
any substantial gainful activity which exists in the national economy, by reason of a
medically determinable impairment which has lasted or can be expected to last for not
less than 12 months. 42 U.S.C. § 423(d)(1)(A). Both the impairment and the inability to
engage in substantial gainful employment must last or be expected to last for not less than
12 months. Barnhart v. Walton, 535 U.S. 212, 217-22 (2002).
The Commissioner has promulgated regulations, found at 20 C.F.R. § 404.1520,
establishing a five-step sequential evaluation process to determine disability. The
Commissioner begins by deciding whether the claimant is engaged in substantial gainful
activity. If so, benefits are denied. If not, the Commissioner decides whether the
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claimant has a “severe” impairment or combination of impairments. A severe impairment
is one which significantly limits a person’s physical or mental ability to do basic work
activities. 20 C.F.R. § 404.1521(a).
If the claimant does not have a severe impairment that meets the duration
requirement, the claim is denied. If the impairment or combination of impairments is
severe and meets the duration requirement, the Commissioner determines at step three
whether the claimant’s impairment meets or is equal to one of the deemed-disabling
impairments listed in the Commissioner’s regulations. If not, the Commissioner asks at
step four whether the claimant has the RFC to perform her past relevant work as she
actually performed it, or as generally performed in the national economy. If so, the
claimant is not disabled. If she cannot perform her past relevant work, the burden of
proof shifts at step five to the Commissioner to demonstrate that the claimant retains the
RFC to perform work that is available in the national economy and that is consistent with
the claimant’s vocational factors -- age, education, and work experience.
ALJ’S Evaluation of Plaintiff’s Pain and Credibility
Plaintiff argues that the ALJ erred in determining that her subjective complaints of
disabling pain were not fully credible. Specifically, she argues that in arriving at this
determination, the ALJ improperly relied only on the absence of imaging evidence
showing herniation of her cervical discs, especially where the reason for this absence was
Plaintiff’s lack of medical insurance and financial resources. Plaintiff also faults the ALJ
for not taking into consideration her good work history and the side effects of her
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medications that she testified to.
In Polaski v. Heckler, 739 F.2d 1320, 1322 (8th Cir. 1984), the Eighth Circuit
Court of Appeals determined that an ALJ cannot reject a social security claimant’s
subjective complaints of pain solely because they are not fully supported by objective
medical evidence. When examining a claimant’s subjective complaints, in addition to
objective medical evidence, the ALJ should consider the claimant’s daily activities, the
duration, frequency and intensity of the pain; any precipitating or aggravating factors;
dosage, effectiveness and side effects of medication; and the claimant’s functional
restrictions. Polaski, 739 F.2d at 1322.
“‘The ALJ may discount complaints of pain if they are inconsistent with the
evidence as a whole.’” Perkins v. Astrue, 648 F.3d 892, 900 (8th Cir. 2011) (quoting
Dunahoo v. Apfel, 241 F.3d 1033, 1038 (8th Cir. 2001). “If the ALJ discredits a
claimant’s credibility and gives a good reason for doing so, [the reviewing court should]
defer to [his or her] judgment even if every factor is not discussed in depth.” Id.; see also
Steed v. Astrue, 524 F.3d 872, 876 (8th Cir. 2008) (“[T]he ALJ was able to observe [the
claimant] during her testimony at the hearing, and this, in addition to the voluminous
medical evidence, convinced the ALJ that she was not fully credible and could perform
light work. The ALJ is in the best position to make this determination, and we cannot say
the ALJ erred in doing so.”) (citation omitted). While an ALJ may not discount
allegations of disabling pain solely on the lack of objective medical evidence, a lack of
objective medical evidence is a factor an ALJ may consider in determining a claimant’s
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credibility. Forte v. Barnhart, 377 F.3d 892, 895 (8th Cir. 2004) (citation omitted).
Here, it is somewhat troubling for the ALJ to have relied on the absence of
imaging evidence in discrediting Plaintiff’s credibility with regard to her allegations of
disabling pain and headaches, as this absence seems, at least in part, to be due to
Plaintiff’s lack of medical insurance and financial resources. However, the ALJ relied on
other valid factors in discrediting Plaintiff’s credibility, including the inconsistency
between the extent of her alleged pain and the radiological evidence in the record.
Furthermore, this is a case where the ALJ’s RFC assessment is clearly supported by
medical evidence, namely, the reports of two examining physicians, Drs. Ivins and
Heligman. “As is true in many disability cases, there is no doubt that the claimant is
experiencing pain; the real issue is how severe that pain is.” See Perkins, 648 F.3d at 901
(citations omitted). Here, the ALJ noted the alleged side effects of Percocet, so it cannot
be said that he ignored this factor even though he did not specifically explain the weight
he accorded them. In sum, the Court concludes that this is a case of poor opinion writing
in not addressing each of the Polaski factors, rather than of insufficient evidence to
support the ALJ’s credibility determination. See Reynolds v. Chater, 82 F.3d 254, 258
(8th Cir. 1996) (“‘Although specific delineations of credibility findings are preferable, an
ALJ’s arguable deficiency in opinion-writing technique does not require us to set aside a
finding that is supported by substantial evidence.’”) (quoting Carlson v. Chater, 74 F.3d
869 (8th Cir. 1996)).

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ALJ’s Reliance on a Non-Medical Source
Plaintiff argues that the ALJ erred in affording substantial weight to the August 27,
2007 opinion of a non-medical source. It is true that an RFC assessment based entirely
on the opinion of a non-medical source would be reversible error, especially where there
are more restrictive medical assessments in the record and the ALJ mistakenly believed
that the non-medical source was a physician. See Dewey v. Astrue, 509 F.3d 447, 449-50
(8th Cir. 2007). Here, however, the ALJ relied on the non-medical source’s evaluation
only because it was consistent with the medical evidence, and there is no indication that
the ALJ thought this source was a medical source. Furthermore, the ALJ specifically
relied upon Dr. Heligman’s May 11, 2009 Medical Source Statement, which was
essentially the same as the non-medical evaluator’s opinion. Thus, this argument for
reversal is without merit. See Greene v. Astrue, No. 4:10CV831 CDP, 2011 WL
2472556, at *5 (E.D. Mo. June 21, 2011) (finding no reversible error where the ALJ gave
a non-medical source’s opinion some weight, as the ALJ’s decision was based upon the
broader medical consensus among the majority of the claimant’s treating and consulting
physicians, as well as upon his own assessment of the claimant’s credibility, and the ALJ
was aware that the source in question was not a physician).
ALJ’s Evaluation of the VE’s Testimony
Plaintiff argues that the ALJ’s rejection of the VE’s answer to Plaintiff’s counsel’s
hypothetical question was based on a misunderstanding of the record. As recounted
above, the VE testified in response to questioning by Plaintiff’s attorney that a GAF of
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50-55, as assessed by Dr. Spencer, would preclude the performance of work. Plaintiff
contends that the ALJ rejected this testimony because he erroneously believed that a GAF
of 50-55 was not contained in the record. A review of the record shows that this
argument is without any merit. The ALJ specifically noted Dr. Spencer’s GAF
assessment of 50-55 and specifically rejected it on the basis that it was inconsistent with
Dr. Spencer’s other findings and the record as a whole. The Court further concludes that
the ALJ was entitled to reject the GAF of 50-55. As noted above, Dr. Spencer found only
mild restrictions in understanding simple instructions and making simple work-related
decisions. Also as the ALJ noted, the record contains no evidence that Plaintiff ever
sought treatment from a mental health professional.
CONCLUSION
The ALJ’s determination that Plaintiff is not disabled is supported by substantial
evidence on the record as a whole.
Accordingly,
IT IS HEREBY ORDERED that the decision of the Commissioner is
AFFIRMED.
A separate Judgment shall accompany this Memorandum and Order.

________________________________
AUDREY G. FLEISSIG
UNITED STATES DISTRICT JUDGE
Dated this 27th day of March, 2012.
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