Rivera v. Social Security Administration, Commissioner of
Filing
27
ORDER denying 14 Motion for Judgment on the Pleadings; granting 18 Motion for Summary Judgment; adopting 21 Report and Recommendations. Signed by District Judge Curtis L Collier on 7/28/15. (GRE, )
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT CHATTANOOGA
RAFAEL RIVERA,
)
)
Plaintiff,
)
)
v.
)
)
COMMISSIONER OF SOCIAL SECURITY, )
)
Defendant.
)
Case No. 1:13-cv-00337
Collier/Lee
MEMORANDUM & ORDER
Plaintiff Rafael Rivera (“Plaintiff”) brought this action pursuant to 42 U.S.C. § 405(g)
seeking judicial review of the final decision of the Commissioner of Social Security
(“Commissioner” or “Defendant”) denying his disability insurance benefits (“DIB”) and
supplemental security income (“SSI”). The Court referred the matter to United States Magistrate
Judge Susan Lee, pursuant to 28 U.S.C. § 636(b) and in accordance with Rule 72(b) of the
Federal Rules of Civil Procedure for a report and recommendation (“R&R”). The magistrate
judge filed an R&R (Court File No. 21) recommending the decision of the Commissioner be
affirmed, Plaintiff’s motion for judgment on the pleadings be denied (Court File No. 14), the
Commissioner’s motion for summary judgment be granted (Court File No. 18), and the case be
dismissed. Plaintiff timely filed an objection to the R&R (Court File No. 22) and Defendant
responded (Court File No. 26). For the following reasons, the Court will ACCEPT and ADOPT
the magistrate judge’s R&R (Court File No. 21).
I.
FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff filed for disability on March 9, 2011 alleging disability as of January 8, 2011.
Plaintiff’s claims were initially denied, and denied again after a hearing. The Administrative
Law Judge (“ALJ”) determined that Plaintiff was not disabled because Plaintiff was capable of
performing work that existed in significant numbers in the national economy. After initially
denying Plaintiff’s request for review, the Council set aside the denial to consider new evidence.
After considering the information, the Appeals Council again denied Plaintiff’s request for
review. Plaintiff appealed the ALJ’s decision to this court.
II.
STANDARD OF REVIEW
This Court must conduct a de novo review of those portions of the R&R to which
objection is made and may accept, reject, or modify, in whole or in part, the magistrate judge’s
findings or recommendations.
28 U.S.C. § 636(b)(1).
The Court’s standard of review is
essentially the same as the magistrate judge’s—review is limited to determining if the ALJ’s
findings are supported by substantial evidence and if proper legal standards were used. 42
U.S.C. § 405(g); Brainard v. Sec’y of Health & Human Servs., 889 F.2d 679, 681 (6th Cir. 1989)
(per curiam). “Substantial evidence” means evidence a reasonable mind might accept to support
the conclusion at issue. Stanley v. Sec’y of Health & Human Servs., 39 F.3d 115, 117 (6th Cir.
1994). Substantial evidence is greater than a scintilla but less than a preponderance. Richardson
v. Perales, 402 U.S. 389, 401 (1971); Brainard, 889 F.2d at 681. If supported by substantial
evidence, the Court must affirm the ALJ’s findings, even if substantial evidence also supports the
opposite conclusion. Jones v. Comm’r of Soc. Sec., 336 F.3d 469, 475 (6th Cir. 2003). The
substantial evidence standard presupposes there is a zone of choice within which the decision
makers can go either way, without interference by the courts. Felisky v. Bowen, 35 F.3d 1027,
2
1035 (6th Cir. 1994). The ALJ need not discuss every aspect of the record or explain every
finding at length but must “articulate with specificity reasons for the findings and conclusions
that he or she makes” to facilitate meaningful judicial review. Bailey v. Comm’r of Soc. Sec.,
No. 90-3061, 1999 WL 96920, at *4 (6th Cir. Feb. 2, 1999).
III.
DISCUSSION
Plaintiff objects to two aspects of the Magistrate’s R&R.
First, he objects to the
Magistrate Judge’s conclusion that the ALJ adequately discussed the Global Assessment
Functioning scores (“GAF”) of the treating psychiatrist. He also objects to the Magistrate
Judge’s approval of the ALJ’s credibility finding.
A.
GAF Scores
Plaintiff argued that the SSA’s administrative message entitled “Global Assessment of
Functioning (GAF) Evidence in Disability Adjudication,”(“AM-13066”) required the ALJ to
treat GAF scores as the opinion of the treating physician and accord them controlling weight
where well supported and not contradicted by other evidence and that the ALJ’s failure to
discuss these scores violated the treating physician rule. The Magistrate Judge found that AM13066 took effect more than a year after the ALJ issued his decision and therefore did not apply.
Responding to Plaintiff’s argument that AM-13066 merely stated preexisting policy, the
Magistrate Judge noted that Sixth Circuit precedent did not require the ALJ to reference these
scores in the decision. She thus concluded that the ALJ’s decision did not violate the treating
physician rule.
In his objection, Plaintiff reiterates these points. He first argues that AM-13066 was a
reiteration of longstanding practice. He then argues that the failure to expressly reference the
3
GAF scores in the decision violates the treating physician rule. The Court will reject this
objection because the Court agrees that the ALJ was not required to discuss GAF scores in his
decision.
Plaintiff does not point to any caselaw contradicting the Magistrate’s conclusion that
AM-13066 was not meant to apply retroactively. The Court agrees with the Magistrate Judge
that SSA rules and regulations are generally not meant to be retroactive. Combs v. Comm’r of
Soc. Sec., 459 F.3d 640, 642 (6th Cir. 2006). There is nothing about AM-13066 that suggests
that it should not follow that general rule. Ladd v. Astrue, No. 12-4553, 2014 WL 2011638, at
*1 (E.D. Pa. May 16, 2014) (finding that AM-13066 did not apply retroactively).
To the extent that AM-13066 was a continuation of an existing policy, it was a policy that
the Sixth Circuit had consistently found did not require the ALJ to expressly discuss GAF scores
in their decisions. See, e.g., Kornecky v. Comm’r of Soc. Sec., 167 F. App.’x 496, 511 (6th Cir.
2006) (“[W]e are not aware of any statutory, regulatory, or other authority requiring the ALJ to
put stock in a GAF score in the first place.”); Howard v. Comm’r of Soc. Sec., 276 F.3d 235, 241
(6th Cir. 2002) (concluding that the failure to expressly reference GAF scores did not render the
ALJ’s decision inaccurate). The Court will thus reject the Plaintiff’s objections and ADOPT the
Magistrate Judge’s recommendation on this point.
B.
Credibility
An ALJ’s credibility findings “are to be accorded great weight and deference.” Walters
v. Comm’r of Soc. Sec., 127 F.3d 525, 531 (6th Cir. 1997). The court is “limited to evaluating
whether or not the ALJ’s explanations for partially discrediting [the claimant] are reasonable and
supported by substantial evidence in the record.” Jones v. Comm’r of Soc. Sec., 336 F.3d 469,
4
476 (6th Cir. 2003). An ALJ can assess the credibility of a claimant based on whether the
claimant’s testimony as to symptoms and limitations is supported by medical and other evidence.
20 C.F.R. § 404.1529(a). The ALJ cannot support an adverse credibility finding with a selective
reading of the record nor can the ALJ make an adverse credibility finding as to testimony that is
consistent with uncontroverted medical evidence. King v. Heckler, 742 F.2d 968, 974–75 (6th
Cir. 1984).
Plaintiff argued before the Magistrate and continues to argue in his objection that the
ALJ’s decision that he was not credible was not supported by specific and clear reasons. The
Court, however, agrees with the Magistrate Judge that the ALJ’s finding was supported by
substantial evidence and thus will reject Plaintiff’s objection. While the ALJ is required to
consider the regulatory factors in 20 C.F.R. § 404.1529, he is not required to discuss all of them.
See Kornecky, 167 F. App’x at 508 (noting that “[a]n ALJ can consider all the evidence without
directly addressing in his written decision every piece of evidence submitted by a party.”
(alteration in original) (quoting Loral Defense Systems–Akron v. N.L.R.B., 200 F.3d 436, 453
(6th Cir.1999))). The ALJ stated that he considered the factors. And the ALJ points to specific
reasons for finding Plaintiff’s testimony incredible. For example, Plaintiff had complained to the
VA that he was having problems with left side weakness and with dropping things, but these
claims were contradicted by EMG testing which found no evidence of motor neuropathy or
motor neuron disease (SSA Tr. at 22). The ALJ then pointed out that the same month Plaintiff
alleged that his disability began, he requested a return to work form with no limitations (id. at 22,
23). Because the ALJ’s credibility determination was supported by substantial evidence, the
Court will not overturn it.
5
IV.
CONCLUSION
The Court has considered Plaintiff’s objections after its complete review of the record,
and has found them without merit. Accordingly, the Court will ACCEPT and ADOPT the
magistrate judge’s R&R (Court File No. 21). The Court will DENY Plaintiff’s motion for
judgment on the pleadings (Court File No. 14), and will GRANT Defendant’s motion for
summary judgment (Court File No. 18). The Court will AFFIRM the Commissioner’s decision
and will DISMISS the case.
SO ORDERED.
ENTER:
/s/___________________________
CURTIS L. COLLIER
UNITED STATES DISTRICT JUDGE
ENTERED AS A JUDGMENT
s/ Debra C. Poplin
6
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?