Meeks v. Social Security Administration, Commissioner of (TWP2)

Filing 29

MEMORANDUM AND ORDER. Plaintiffs motion for judgment on the administrative record [Doc. 18] is DENIED; the Commissioners motion for summary judgment [Doc. 24] is GRANTED; and the Commissioners decision denying benefits is AFFIRMED. Signed by Magistrate Judge Susan K Lee on 4/16/2018. (AML, )

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT CHATTANOOGA
MARTHA MEEKS,

)
)
Plaintiff,
)
)
v.
)
)
COMMISSIONER OF SOCIAL SECURITY, )
)
Defendant.
)

No. 1:17-cv-60-SKL

MEMORANDUM AND ORDER
Plaintiff Martha Meeks (“Plaintiff”) brought this action pursuant to 42 U.S.C. §§ 405(g)
and 1383(c) seeking judicial review of the final decision of the Commissioner of Social Security
(“Commissioner” or “Defendant”) denying her disability insurance benefits (“DIB”) and
supplemental security income (“SSI”). Each party has moved for judgment [Docs. 18 & 24] and
filed supporting briefs [Docs. 19 & 25]. This matter is now ripe. For the reasons stated below, (1)
Plaintiff’s motion for judgment based on the administrative record [Doc. 18] will be DENIED; (2)
the Commissioner’s motion for summary judgment [Doc. 24] will be GRANTED; and the
decision of the Commissioner will be AFFIRMED.
I.

ADMINISTRATIVE PROCEEDINGS
Plaintiff filed her application for DIB on June 7, 2012, and for SSI on May 1, 2013, alleging

disability beginning December 27, 2010 (Tr.1 70, 160). Plaintiff’s claim was denied initially and
on reconsideration at the agency level. After a hearing was held on October 15, 2014, the
administrative law judge (“ALJ”) found on November 10, 2014, that Plaintiff was not under a

1

Defendant filed the transcript (“Tr.”) of the administrative proceedings in this case manually, for
the stated reason that it was not available in an electronic format [Doc. 11].

disability as defined in the Social Security Act (Tr. 67-78). On June 9, 2015, the Social Security
Administration (“SSA”) Appeals Council remanded the case back to the ALJ because “the hearing
decision in the instant case [did] not contain a complete exhibit list.” (Tr. 85-86). The Appeals
Council instructed the ALJ to “offer the claimant an opportunity for a hearing, address the evidence
which was submitted with the request for review, take any further action needed to complete the
administrative record and issue a new decision.” (Tr. 86). On remand, the ALJ properly assembled
the administrative record, and on November 17, 2015, the ALJ again concluded that Plaintiff was
not under a disability as defined in the Social Security Act (Tr. 11-25). The Appeals Council
denied Plaintiff’s request for a second review, making the ALJ’s decision the final decision of the
Commissioner (Tr. 6-8). Plaintiff timely filed the instant action [Doc. 1].
II.

FACTUAL BACKGROUND
A.

Education and Employment Background

Plaintiff was born January 9, 1969, which made her a “younger individual,” on the alleged
onset date (Tr. 23). Plaintiff has a high school education and is able to communicate in English
(Tr. 23). Plaintiff has past relevant work as a psychiatric aide, a certified nursing assistance, a
daycare worker, and a waitress (Tr. 23).
B.

Medical Records

In her Disability Report, Plaintiff alleged disability due to bipolar disorder, social anxiety
disorder, post-traumatic stress disorder (“PTSD”), generalized depression, gastroesophageal reflux
disease (“GERD”), and a spastic colon (Tr. 206). Plaintiff [Doc. 19 at Page ID # 54-57] and the
ALJ (Tr. 19-23) each set forth a detailed, factual recitation with regard to Plaintiff’s medical
record, vocational record, and the hearing testimony. Defendant generally adopts the statement of
2

facts set forth by the ALJ, but includes citation to the record throughout her argument [Doc. 25 at
Page ID # 75-86]. There is no need to summarize the medical records herein, but the relevant
records have been reviewed and considered.
C.

Hearing Testimony

The first administrative hearing in this case took place on October 15, 2014, at which
Plaintiff and a vocational expert (“VE”) testified (Tr. 1081-114). On October 14, 2015, following
remand from the Appeals Council, a second administrative hearing took place, at which Plaintiff
and a different VE testified (Tr. 1115-36). The Court has reviewed the testimony from both
hearings.
III.

ELIGIBILITY AND THE ALJ’S FINDINGS
A.

Eligibility

“The Social Security Act defines a disability as the ‘inability to engage in any substantial
gainful activity by reason of any medically determinable physical or mental impairment which can
be expected to result in death or which has lasted or can be expected to last for a continuous period
of not less than 12 months.’” Schmiedebusch v. Comm’r of Soc. Sec., 536 F. App’x 637, 646 (6th
Cir. 2013) (quoting 42 U.S.C. § 423(d)(1)(A)); see also Parks v. Soc. Sec. Admin., 413 F. App’x
856, 862 (6th Cir. 2011) (quoting 42 U.S.C. § 423(d)(1)(A)). A claimant is disabled “only if his
physical or mental impairment or impairments are of such severity that he is not only unable to do
his previous work, but cannot, considering his age, education, and work experience, engage in any
other kind of substantial gainful work which exists in the national economy.” Parks, 413 F. App’x
at 862 (quoting 42 U.S.C. § 423(d)(2)(A)). The SSA determines eligibility for disability benefits
by following a five-step process. 20 C.F.R. § 404.1520(a)(4)(i-v). The five-step process provides:
3

1) If the claimant is doing substantial gainful activity, the claimant is
not disabled.
2) If the claimant does not have a severe medically determinable
physical or mental impairment—i.e., an impairment that
significantly limits his or her physical or mental ability to do basic
work activities—the claimant is not disabled.
3) If the claimant has a severe impairment(s) that meets or equals one
of the listings in Appendix 1 to Subpart P of the regulations and
meets the duration requirement, the claimant is disabled.
4) If the claimant’s impairment does not prevent him or her from doing
his or her past relevant work, the claimant is not disabled.
5) If the claimant can make an adjustment to other work, the claimant
is not disabled.
Rabbers v. Comm’r of Soc. Sec., 582 F.3d 647, 652 (6th Cir. 2009) (citations omitted). The
claimant bears the burden to show the extent of his impairments, but at step five, the Commissioner
bears the burden to show that, notwithstanding those impairments, there are jobs the claimant is
capable of performing. See Ealy v. Comm’r of Soc. Sec., 594 F.3d 504, 512-13 (6th Cir. 2010)
(citations omitted).
B.

The ALJ’s Findings

The ALJ found that Plaintiff meets the insured status requirements through September 30,
20152 (Tr. 16). At step one of the sequential process, the ALJ found Plaintiff had not engaged in
substantial gainful activity since the alleged onset date, December 27, 2010 (Tr. 16). At step two,

2

The Court notes that the relevant time period for Plaintiff’s DIB claim is from December 27,
2010 (her alleged onset date) to September 30, 2015, the date her insured status expired. See 20
C.F.R. § 404.130; see also 42 U.S.C. § 423. The relevant time period for Plaintiff’s SSI claim is
May 1, 2013, until November 17, 2015, the date the ALJ issued her decision, because SSI
applicants are not entitled to benefits until “the month following the month” that the application is
filed. 20 C.F.R. § 416.335.
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the ALJ found Plaintiff had the following severe impairments: bipolar disorder, major depressive
disorder, histrionic personality disorder, social anxiety, status post possible mild remote
cardiovascular infarction, gastroesophageal reflux disease (GERD), and carpal tunnel syndrome
(Tr. 17). At step three, the ALJ found Plaintiff did not have an impairment or combination of
impairments that meets or medically equals the severity of one of the listed impairments in 20
C.F.R. Part 404, Subpart P, Appendix 1 (Tr. 17).
Next, the ALJ found Plaintiff had the residual functional capacity (“RFC”) to perform light
work as defined in 20 CFR 404.1567(b) and 416.967(b) with the following additional limitations:
[Plaintiff] would need simple, routine and repetitive work; few and
gradually introduced changes in the workplace; no interaction with
the general public and interaction with supervisors and coworkers
should be no more than on an occasional basis (superficial
interaction); and the work should be performed in a well-spaced
work environment; handling and fingering would be limited to
frequent.
(Tr. 19). At step four, the ALJ found Plaintiff was unable to perform any past relevant work (Tr.
23). At step five, however, the ALJ found Plaintiff was able to perform other work existing in
significant numbers in the national economy such as hand packager, garment folder, and final
assembler (Tr. 23-24). These findings led to the ALJ’s determination that Plaintiff was not under
a disability as defined in the Act from the alleged onset date through the date of the ALJ’s decision
(Tr. 24-25).
IV.

ANALYSIS
Plaintiff asserts this matter should be reversed and/or remanded under sentence four for

several reasons: (1) the “ALJ’s residual functional capacity finding is not supported by substantial
evidence,” (2) the “decision omits substantial and material evidence and fails to adequately explain
5

the ALJ’s reasoning,” and (3) the “ALJ improperly evaluated Plaintiff’s credibility.” [Doc. 19 at
Page ID # 57-62]. The Commissioner counters that the ALJ’s RFC determination is supported by
substantial evidence, and that the ALJ adequately explained her reasoning and properly evaluated
Plaintiff’s credibility [Doc. 25 at Page ID # 76-86].
A.

Standard of Review

The Social Security Act authorizes “two types of remand: (1) a post-judgment remand in
conjunction with a decision affirming, modifying, or reversing a decision of the [Commissioner]
(a sentence-four remand); and (2) a pre-judgment remand for consideration of new and material
evidence that for good cause was not previously presented to the [Commissioner] (a sentence-six
remand).” Faucher v. Sec’y of Health and Human Servs., 17 F.3d 171, 174 (6th Cir. 1994) (citing
42 U.S.C. § 405(g)). Under a sentence-four remand, the Court has the authority to “enter, upon
the pleadings and transcript of the record, a judgment affirming, denying, or reversing the decision
of the [Commissioner], with or without remanding the cause for a hearing.” 42 U.S.C. § 405(g).
Where there is insufficient support for the ALJ’s findings, “the appropriate remedy is reversal and
a sentence-four remand for further consideration.” Morgan v. Astrue, No. 10-207, 2011 WL
2292305, at *8 (E.D. Ky. June 8, 2011) (citing Faucher, 17 F.3d at 174).
A court must affirm the Commissioner’s decision unless it rests on an incorrect legal
standard or is unsupported by substantial evidence. 42 U.S.C. § 405(g); McClanahan v. Comm’r
of Soc. Sec., 474 F.3d 830, 833 (6th Cir. 2006) (citations omitted). Substantial evidence is “such
relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”
McClanahan, 474 F.3d at 833 (citations omitted). Furthermore, the evidence must be “substantial”
in light of the record as a whole, “tak[ing] into account whatever in the record fairly detracts from
6

its weight.” Garner v. Heckler, 745 F.2d 383, 388 (6th Cir. 1984) (citations omitted). If there is
substantial evidence to support the Commissioner’s findings, they should be affirmed, even if the
court might have decided facts differently, or if substantial evidence would also have supported
other findings. Smith v. Chater, 99 F.3d 780, 782 (6th Cir. 1996); Ross v. Richardson, 440 F.2d
690, 691 (6th Cir. 1971). The court may not re-weigh evidence, resolve conflicts in evidence, or
decide questions of credibility. Garner, 745 F.2d at 387. The substantial evidence standard allows
considerable latitude to administrative decision makers because it presupposes “there is a ‘zone of
choice’ within which the Commissioner can act, without the fear of court interference.”
McClanahan, 474 F.3d at 833 (quoting Buxton v. Halter, 246 F.3d 762, 772 (6th Cir. 2001)).
The court may consider any evidence in the record, regardless of whether it has been cited
by the ALJ. Heston v. Comm’r of Soc. Sec., 245 F.3d 528, 535 (6th Cir. 2001). The court may
not, however, consider any evidence that was not before the ALJ for purposes of substantial
evidence review. Foster v. Halter, 279 F.3d 348, 357 (6th Cir. 2001). Furthermore, the court is
under no obligation to scour the record for errors not identified by the claimant, Howington v.
Astrue, No. 2:08-CV-189, 2009 WL 2579620, at *6 (E.D. Tenn. Aug. 18, 2009) (stating that
assignments of error not made by claimant were waived), and arguments not raised and supported
in more than a perfunctory manner may be deemed waived, Woods v. Comm’r of Soc. Sec., No.
1:08-CV-651, 2009 WL 3153153, at *7 (W.D. Mich. Sept. 29, 2009) (citing McPherson v. Kelsey,
125 F.3d 989, 995-96 (6th Cir. 1997)) (noting that conclusory claims of error without further
argument or authority may be considered waived).
B.

The ALJ’s RFC Finding

The ALJ found Plaintiff had the RFC to perform light work as defined in 20 CFR
7

404.1567(b) and 416.967(b) with the following additional limitations:
[Plaintiff] would need simple, routine and repetitive work; few and
gradually introduced changes in the workplace; no interaction with
the general public and interaction with supervisors and coworkers
should be no more than on an occasional basis (superficial
interaction); and the work should be performed in a well-spaced
work environment; handling and fingering would be limited to
frequent.
(Tr. 19). In determining the mental component of Plaintiff’s RFC, the ALJ found that Plaintiff
was moderately limited in her ability to perform activities of daily living and with regard to her
social functioning, and that Plaintiff had marked limitations with regard to concentration,
persistence, or pace (Tr. 18).
Plaintiff argues that she has greater mental health limitations than those found by the ALJ,
as evidenced by the fact that she has “a history of eight inpatient admissions and three suicide
attempts.” [Doc. 19 at Page ID # 58 (citing Tr. 895)]. Plaintiff also contends the ALJ erred in
finding that Plaintiff’s conditions improved with treatment; she argues that any improvement she
experienced was due to the “transient nature of bipolar disorder.” [id.]. Ultimately, Plaintiff
contends that the ALJ should have found she had a marked limitation in social functioning. Such
a finding, would, Plaintiff argues, qualify her for benefits under Listing 12.04 (for bipolar
disorder).
A claimant’s RFC is the most the claimant can do despite his or her impairments. 20 C.F.R.
§ 404.1545(a)(1). In other words, the RFC describes “the claimant’s residual abilities or what a
claimant can do, not what maladies a claimant suffers from—though the maladies will certainly
inform the ALJ’s conclusion about the claimant’s abilities.” Howard v. Comm’r of Soc. Sec., 276
F.3d 235, 240 (6th Cir. 2002). Moreover, “[a] claimant’s severe impairment may or may not affect
8

his or her functional capacity to do work. One does not necessarily establish the other.” Griffeth,
217 F. App’x at 429. An ALJ is responsible for determining a claimant’s RFC after reviewing all
of the relevant evidence in the record. Rudd v. Comm’r of Soc. Sec., 531 F. App’x 719, 728 (6th
Cir. 2013).
As explained below, the Court finds the ALJ’s conclusions regarding Plaintiff’s mental
limitations are supported by substantial evidence in the record. Therefore, the Court finds no error
with the ALJ’s conclusion that Plaintiff did not qualify for benefits under Listing 12.04. The Court
further finds the ALJ’s restrictive mental RFC adequately accommodates her moderate restrictions
in social functioning and performing activities of daily living, and her marked restriction with
regard to concentration, persistence, or pace.
Plaintiff contends the ALJ erred in finding she had only moderate limitation in her social
functioning.3 However, the ALJ’s finding that Plaintiff had only moderate limitations with regard
to social functioning is supported by substantial evidence in the form of the opinions of the State
agency mental health consultants (and the evidence showing improvement with medication,
discussed below). The ALJ assigned the State agency consultants’ opinions concerning Plaintiff’s
mental health great weight (Tr. 22-23). In December 2012, Eran Stanley, M.D., opined that
Plaintiff was only moderately limited in her ability to interact with the public, her ability to accept
instructions and respond appropriately to criticism from supervisors, and her ability to get along
with coworkers or peers without distracting them. Dr. Stanley wrote that she was not significantly
limited in her ability to ask simple questions, request assistance, maintain socially appropriate

3

Plaintiff does not challenge the ALJ’s finding that she had only moderate limitation in her ability
to perform activities of daily living.
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behavior, and adhere to basic standards of neatness and cleanliness (Tr. 34).

Dr. Stanley

specifically considered Listing 12.04, and found that Plaintiff did not qualify (Tr. 32). Rebecca
Joslin, Ed. D., made the same findings in June 2013 (Tr. 60-61).
Plaintiff does not address the findings of Dr. Stanley or Dr. Joslin, nor does she point to
any contradictory medical opinion evidence in the record. Instead, she points out that the record
reflects she had serious interpersonal problems with other women at the shelter where she was
living, she has experienced periods of self-isolating behavior, and she has intense mood swings
and social anxiety [Doc. 19 at Page ID # 59]. However, the ALJ acknowledged that Plaintiff had
these issues (Tr. 19-21).
The ALJ specifically discussed how Plaintiff struggled to get along with the women she
was living with in group homes but that at least as of June 2014, Plaintiff’s mental condition was
stable “and she was doing well with medications.” (Tr. 20). By September 2014, Plaintiff was
living as a caretaker to an “older woman.” (Tr. 20). By October 2014, Plaintiff was not getting
along with this woman. Plaintiff then apparently did not receive any treatment from October 2014
until April 2015, as the ALJ notes there is a gap in the treatment records. In April 2015, Plaintiff
went to the Mental Health Cooperative for a psychological assessment, her medication was
adjusted, and by May 2015, she reported that the medication had improved her symptoms by 50%
(Tr. 1009). In fact, she reported that she had run out of the medication for seven days prior to the
May appointment, and she could “tell her mood has significantly worsened over the past week
with increased irritability and anger, crying spells, increased impulsivity, and has been having
increased paranoid ideation, auditory and visual hallucinations that had previously significantly
decreased.” (Tr. 1009).
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Then, as the ALJ notes, by July 2015, Plaintiff had another significant event, which
occurred after she lost a job and had to move into another shelter. She first went to the Mental
Health Cooperative complaining of increased depression, and was admitted to Moccasin Bend
Mental Health Institute. She informed treatment providers that she had a plan to steal a friend’s
Xanax and use it to commit suicide. However, as the ALJ notes, once Plaintiff was admitted to
and administered proper medication, she “significantly improved” to the point that she was
discharged four days after being admitted (Tr. 21, 983).
These notes in the record show that, contrary to Plaintiff’s contention, her condition is
considerably improved when she takes her medication as prescribed, and she appears to have no
significant trouble obtaining her medication or attending medical appointments. There is no doubt
that Plaintiff was the victim of extensive abuse that no person should ever have to endure and
suffers from resulting serious mental health issues. Nevertheless, it is also clear from the record
that the ALJ did not err in finding that Plaintiff’s mental health issues are controlled with
medication to an extent consistent with the RFC. As evidenced by the volume and content of her
treatment records and the number of appointments she attended during the relevant time, Plaintiff
has the ability to attend her appointments, discuss her issues with her doctors in a forthcoming
manner, and take her medication to stabilize her condition. The record also reflects that Plaintiff’s
symptoms—mood swings, anxiety, hallucinations—are significantly reduced when she is on the
appropriate medication. It is beyond serious doubt that under such circumstances her ability to
interact socially is also improved.
The Court concludes that the ALJ did not err in finding Plaintiff is only moderately limited
in her ability to socially function. Plaintiff does not challenge the ALJ’s finding that she has a
11

marked limitation in her ability to maintain concentration, persistence, or pace, or the ALJ’s
finding that she has only a moderate limitation in ability to perform activities of daily living.
Because Plaintiff must have a marked limitation in two of the paragraph B criteria (or have
extended episodes of decompensation), she does not qualify as disabled under Listing 12.04.4
The question that remains is whether the RFC adequately accommodates Plaintiff’s mental
limitations. As noted, the ALJ crafted a limited mental RFC—simple, routine, repetitive work in
a consistent, well-spaced environment where she is not required to have significant interaction
with other people. Plaintiff cites no case which holds that such a restrictive mental RFC is not
adequate to account for the limitations the ALJ found. In particular, the limitation for simple,
routine, and repetitive work with few changes addresses the limitation in concentration,
persistence, or pace. The State agency consultants (whose opinions were assigned great weight)
both found that Plaintiff could understand and remember simple work tasks, and could concentrate
and persist at those tasks for a complete eight-hour workday (Tr. 34, 61). They further found that
Plaintiff was “not significantly limited” in her ability to perform activities within a schedule and
sustain an ordinary routine without special supervision (Tr. 33, 60). The reduced exposure to the
public, coworkers, and supervisors, and the well-spaced work environment, accommodate
Plaintiff’s limitations in social functioning.

4

Paragraph B of the version of Listing 12.04 in effect at the time of the ALJ’s decision required
that Plaintiff establish at least two of the following: 1. Marked restriction of activities of daily
living; or 2. Marked difficulties in maintaining social functioning; or 3. Marked difficulties in
maintaining concentration, persistence, or pace; or 4. Repeated episodes of decompensation, each
of extended duration. See 20 C.F.R. pt. 404, subpt. P, app. 1, § 12.04. Recent revisions to the
rules regarding mental impairments, effective January 17, 2017, have resulted in new paragraph B
criteria. See 81 Fed. Reg. 66138-01, 2016 WL 5341732, at *66161 (Sept. 26, 2016). Because
these revisions were not in effect at the time Plaintiff applied for DIB and SSI or when the ALJ
rendered her decision, the Court will apply the former paragraph B criteria, as the parties do.
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Plaintiff also argues that her past hospitalizations and reported suicide attempts would
preclude gainful employment due to absenteeism. However, the ALJ clearly appreciated the fact
that Plaintiff had been admitted for psychiatric care during the relevant period, and she
nevertheless found Plaintiff capable of performing simple, routine, repetitive work in a consistent,
well-spaced environment where she is not required to have significant interaction with other
people. Plaintiff does not persuasively argue or cite to evidence in the record showing that she is
likely to experience such episodes in the future, particularly if she continues to seek treatment and
take her medication.
Plaintiff also very briefly argues that her marked limitation in her ability to maintain
concentration, persistence, or pace, in and of itself, would preclude all employment [Doc. 19 at
Page ID # 58]. She contends that the VE testified at the first hearing that an individual who
“‘would not be able to maintain focus and concentration on a consistent basis’ would be incapable
of sustaining gainful employment.” [id. (citing Tr. 1112)]. Plaintiff misinterprets the exchange
between the ALJ and the VE. The complete question posed was as follows:
Q.
All right. Sir, if you would again assume that same
hypothetical individual… but further assume . . . that this individual
would not be able to maintain focus and concentration on a
consistent basis due to interruption from psychiatric symptoms, and
as such would not be deemed reliable in attending to the work at
hand, cannot be – could not meet production norms, and also that
this individual would have . . . a difficult time interacting with
coworkers and supervisors even on an occasional, casual basis due
to emotional issues. Would that allow for any of the work that you
previously gave us?
A.

No, your honor. No work.

Q.

Any other work?

A.

No work in the regular competitive labor market.
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[Examination of VE by Plaintiff’s Attorney]
Q.
Dr. Flynn, first of all, on hypothetical number two, either one
of those – is it true that either one of those restrictions individually
would eliminate work.
A.

Yes.

(Tr. 1112).
The ALJ’s question to the VE included not just a limitation that the individual “would not
be able to maintain focus and concentration on a consistent basis,” but further that the individual
“would not be deemed reliable in attending to the work at hand.” (Tr. 1112). Plaintiff cites to no
authority equating a “marked limitation” in concentration, persistence or pace with an individual
being deemed unreliable in attending to work at hand, and the Court has found none.
For these reasons, the Court finds that substantial evidence supports the ALJ’s finding that
Plaintiff can perform simple, routine, repetitive work in a consistent, well-spaced environment
where she is not required to have significant interaction with other people. Plaintiff’s motion will
be denied in this regard.
C.

The ALJ’s Discussion of the Evidence

Plaintiff next argues that the ALJ’s decision should be reversed because the ALJ failed to
mention “numerous, highly relevant pieces of evidence which support Plaintiff’s assertion that her
mental health is completely disabling.” [Doc. 19 at Page ID # 59]. Plaintiff’s position is that the
ALJ impermissibly “cherry picked” the evidence.
It is generally recognized that an ALJ “may not cherry-pick facts to support a finding of
non-disability while ignoring evidence that points to a disability finding.” Biermaker v. Comm’r
of Soc. Sec., No. 14-12301, 2016 WL 7985329, at *9 (E.D. Mich. June 13, 2016) (quoting Smith
14

v. Comm’r of Soc. Sec., 2013 WL 943874, at *6 (N.D. Ohio 2013) (other citations omitted)), report
and recommendation adopted, No. 14-12301, 2016 WL 5027593 (E.D. Mich. Sept. 20, 2016).
This “cherry picking” argument, however, is frequently made but seldom successful because “the
same process can be described more neutrally as weighing the evidence.” White v. Comm’r of
Soc. Sec., 572 F.3d 272, 284 (6th Cir. 2009) (holding “we see little indication that the ALJ
improperly cherry picked evidence; the same process can be described more neutrally as weighing
the evidence”); accord DeLong v. Comm’r of Soc. Sec., 748 F.3d 723, 726 (6th Cir. 2014) (noting
that “cherry picking” allegations are seldom successful because crediting them would require
courts to re-weigh record evidence). The Sixth Circuit has consistently upheld the discretion
vested in ALJs to weigh conflicting record evidence in assessing disability status. See id.
Here, Plaintiff has not “persuasively shown that the ALJ erred in conducting [the] difficult
task” of weighing the record evidence. White, 572 F.3d at 284. Contrary to Plaintiff’s argument,
the ALJ properly considered and discussed the evidence in the record as a whole and discussed
both positive and negative findings.
Plaintiff complains that the ALJ did not expressly mention the fact that Plaintiff, as a child,
suffered pervasive sexual abuse over many years at the hands of a close family member. This
argument is unavailing because the ALJ is not required to discuss every piece of evidence in the
record, “as long as her factual findings . . . show that she implicitly considered the record as a
whole.” Rudd, 531 F. App’x at 730 (citing Kornecky v. Comm’r of Soc. Sec., 167 F. App’x 496,
507-08 (6th Cir. 2006)). Plaintiff admits that the ALJ was correct in finding that “one of
[Plaintiff’s] primary sources of alleged depression relates to a domestic situation in July of 2010,
in which a child she had been caring for and raising for several years was returned to his natural
15

Mother (Exhibit 1F).” (Tr. 19; see also Doc. 19 at Page ID # 59-60). Plaintiff characterizes the
2010 situation as causing an “exacerbation” of her mental health issues that were caused by her
childhood abuse. However, Plaintiff’s alleged onset date of disability was December 27, 2010 (Tr.
14). Therefore, arguably the 2010 event that “exacerbated” Plaintiff’s mental health issues to the
point of allegedly causing disability is more relevant to Plaintiff’s DIB and SSI claim than the
abuse Plaintiff suffered years or decades earlier. Moreover, the ALJ cited the exhibits Plaintiff
relies on in her brief as proof that Plaintiff has suffered “flashbacks, nightmares, and intrusive
thoughts regarding that abuse.” [Doc. 19 at Page ID # 60 (citing pages from Exhibit 1F and 7F of
the transcript); see also Tr. 20 (ALJ’s cites Exhibits 1F and 7F)]. The Court finds no error with
the ALJ’s failure to explicitly mention Plaintiff’s childhood sexual abuse.
Plaintiff also argues the ALJ cherry picked the evidence by overlooking the state of her
mental health in 2013. She notes the ALJ failed to mention that she was admitted to a crisis unit
in March 2013, where she reported hallucinations. She was described by the treatment provider
as “almost catatonic.” (Tr. 700). Although she was discharged after receiving medication, she
returned within a month indicating she was still experiencing hallucinations, insomnia, anxiety,
and a manic episode (Tr. 675). The ALJ found that Plaintiff had improved by the end of 2013 (Tr.
20), but Plaintiff cites to records showing that in October 2013, Plaintiff reported lifelong rapid
mood cycling, sleep disturbances, depression and homelessness (Tr. 622-23). In December 2013,
Plaintiff reported that she was still experiencing trauma symptoms from her childhood abuse, felt
despair over the loss of the child she had been raising, and had recently had a fight with her case
manager (Tr. 585).
Although the ALJ did not specifically address the March 2013 admission, the ALJ
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discussed other hospital admissions for mental health issues, including one in 2011 (Tr. 19) and
one in 2015 (Tr. 21). The ALJ also discusses other mental health issues Plaintiff faced, for example
difficulty getting along with other women at a shelter in June and October 2014 (Tr. 20). On
December 31, 2013, Plaintiff did discuss her childhood trauma and her despair over her lost
relationship with the child, but the counselor she spoke with indicated at that time that she had a
positive interaction with Plaintiff, and that she observed no high risk symptoms (Tr. 585). Just
two weeks prior, on December 13, 2013, Plaintiff reported that she was taking her medication and
that it was working well, she was able to leave the house several times a week and even went
Christmas shopping with her mother-in-law (Tr. 587-88).
The ALJ discusses Plaintiff’s mental health treatment in a fair amount of detail. The ALJ
acknowledges that Plaintiff has serious mental health issues that require treatment, including
medication, and the ALJ describes the path of Plaintiff’s treatment during the relevant time period.
The ALJ does not discuss every serious downturn in Plaintiff’s mood or stability, nor does she cite
every subjective complaint reported by Plaintiff to her counselors. While the ALJ could have
specifically addressed Plaintiff’s March 2013 admission to the crisis unit, it was not error to fail to
do so. The Court finds the ALJ’s overall portrayal of Plaintiff’s treatment and care is supported
by substantial evidence, particularly the improvement and stability Plaintiff achieved with proper
medication. The Court, therefore, finds the ALJ did not impermissibly cherry pick the evidence.
Plaintiff’s motion will be denied in this regard.
D.

The ALJ’s Assessment of Plaintiff’s Credibility

Plaintiff also argues that the ALJ erred in evaluating her credibility [Doc. 19 at Page ID #
61-62]. “[A]n ALJ’s findings based on the credibility of the applicant are to be accorded great
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weight and deference, particularly since an ALJ is charged with the duty of observing a witness’s
demeanor and credibility.” Walters v. Comm’r of Soc. Sec., 127 F.3d 525, 531 (6th Cir. 1997)
(citation omitted). But credibility assessments are not insulated from judicial review. Despite the
deference that is due, such a determination must nevertheless be supported by substantial evidence.
Id. An ALJ’s credibility determination must contain “specific reasons . . . supported by the
evidence in the case record, and must be sufficiently specific to make clear to the individual and
to any subsequent reviewers the weight the adjudicator gave to the individual’s statements and the
reasons for that weight.” SSR 96-7p, 1996 WL 374186, at *2.5 “It is not sufficient to make a
conclusory statement ‘the individual’s allegations have been considered’ or that ‘the allegations
are (or are not) credible.’” Id. The ALJ need not, however, address every factor listed in SSR 967p when making a credibility determination. O’Mary v. Colvin, No. 3:13-CV-458-TAV-CCS,
2014 WL 4348183, at *12 (E.D. Tenn., Sept. 2, 2014) (citation omitted).
Where an ALJ’s credibility assessment is fully explained and not at odds with
uncontradicted evidence in the record, it is entitled to great weight. See King v. Heckler, 742 F.2d

5

The SSA published SSR 16-3p, Policy Interpretation Ruling Titles II and XVI: Evaluation of
Symptoms in Disability Claims, which supersedes and rescinds SSR 96-7p, Policy Interpretation
Ruling Titles II and XVI: Evaluation of Symptoms in Disability Claims: Assessing the Credibility
of an Individual’s Statements. SSR 16-3p eliminates use of the term “credibility” from SSA policy
as the SSA’s regulations do not use this term, and it clarifies that subjective symptom evaluation
is not an examination of a claimant’s character. See SSR 16-3p, 2016 WL 1119029, at *1 (Mar.
16, 2016). SSR 16-3p took effect in March 2016, several months after the ALJ issued his decision
on September 15, 2015. SSR 16-3p instructs ALJs in accordance with the applicable regulations
to consider all of the evidence in the record in evaluating the intensity and persistence of symptoms
after finding the claimant has a medically determinable impairment, which is exactly what the ALJ
has done in this matter, so it is not necessary to determine whether SSR 16-3p applies retroactively.
See Dooley v. Comm’r of Soc. Sec., No. 16-5146, 2016 WL 4046777, at *5 n.1 (6th Cir. July 28,
2016). As the record in this case and much of the existing case law refers to “credibility”
evaluations, this report will occasionally refer to the ALJ’s analysis using the same term.
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968, 974-75 (6th Cir. 1984) (noting the rule that an ALJ’s credibility assessment is entitled to
“great weight,” but “declin[ing] to give substantial deference to the ALJ’s unexplained credibility
finding” and holding it was error to reject uncontradicted medical evidence); see also Ulman v.
Comm’r of Soc. Admin., 693 F.3d 709, 714 (6th Cir. 2012) (“As long as the ALJ cite[s] substantial,
legitimate evidence to support his factual conclusions, we are not to second-guess.”); White v.
Comm’r of Soc. Sec., 572 F.3d 272, 287 (6th Cir. 2009) (citation omitted) (concluding the ALJ
was entitled to “rely on her own reasonable assessment of the record over the claimant’s personal
testimony”); Barker v. Shalala, 40 F.3d 789, 795 (6th Cir. 1994) (citation omitted) (stating the
ALJ’s credibility assessment is entitled to “substantial deference”). Substantial deference has been
held to mean that “an [ALJ’s] credibility findings are virtually ‘unchallengeable.’” Ritchie v.
Comm’r of Soc. Sec., 540 F. App’x 508, 511 (6th Cir. 2013) (quoting Payne v. Comm’r of Soc.
Sec., 402 F. App’x 109, 113 (6th Cir. 2010)).
Regarding Plaintiff’s credibility, the ALJ found:
After careful consideration of the evidence, I find that the
claimant’s medically determinable impairments could reasonably be
expected to cause the alleged symptoms; however, the claimant’s
statements concerning the intensity, persistence and limiting effects
of these symptoms are not entirely credible for the reasons explained
in this decision.
For example, the claimant is a serial filer for disability and
there is no medical source statement in the record from any of her
treatment providers. In addition, the claimant alleges chronic
depression and mood instability. However, as detailed above, the
record indicates that her symptoms respond very well to proper
treatment, medication management and compliance. In addition, as
noted above, the claimant’s more recent records show that she was
active in a governing counsel, she is more talkative and out with
friends. Furthermore, the claimant has provided care for an older
woman, she has worked part-time at IHOP and was more recently
applying for 2 different jobs. In conclusion, I have considered all of
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the claimant’s allegations and have reviewed the entire record and
[have] found that although she does have work related limitations
due to her physical and mental impairments, the record does not
support a more limiting residual functional capacity than the one
detailed above.
(Tr. 23).
Earlier in the decision, the ALJ also detailed the July 2015 episode when Plaintiff reported
to treatment providers that she planned to steal her friend’s Xanax and use it to commit suicide.
The ALJ noted that this episode occurred shortly after the Appeals Council entered its order
vacating the ALJ’s first decision and remanding the case (Tr. 21, 85-86). Concerning Plaintiff’s
credibility, the ALJ wrote:
I also note that this episode occurred just after the Appeals
Council Order in this case and was a threat only based on the
claimant’s plan to steal medication, a fact that does not support her
overall credibility. Nonetheless, these records then document that
the claimant’s condition significantly improved after receiving
proper medication management treatment to the point where she
was discharged on July 13, 2015 (Exhibit 16F).
(Tr. 21).
Plaintiff argues it was improper for the ALJ to consider the details of her plan to commit
suicide as not supporting her credibility. She also argues she is not a serial disability filer, and that
her activities of daily living do not indicate an ability to perform full-time work. The Court is
concerned by the ALJ’s reference to Plaintiff’s alleged suicide plan and to Plaintiff as being a
“serial filer” as evidence of a lack of credibility. Nevertheless, the Courts finds substantial support
for the remaining credibility findings and will therefore deny Plaintiff’s motion in this regard.
First, regarding the plan to steal her friend’s Xanax, the Court agrees with Plaintiff that if
she was truly suicidal, actions contemplated in furtherance of committing suicide, even theft of
medication, are not good evidence of her credibility or lack thereof. As the Commissioner points
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out, however, a fair reading of the ALJ’s decision is that it was the timing of the reported suicide
plan that the ALJ found to be suspicious, not the method. Regardless, this was only one point the
ALJ considered, and it does not appear to have even been a significant point, as it is addressed
separately from the rest of the ALJ’s credibility analysis.
Second, it isn’t clear from the record how many previous applications Plaintiff has filed.
Pages 27 and 53 of the transcript, which are from documents generated by the SSA, list only one
previous application. The Commissioner states in her brief that the “ALJ correctly noted that
Plaintiff’s previous applications for disability benefits were denied,” and cites pages 191, and 19394 of the transcript [Doc. 25 at Page ID # 84]. There is some indication on page 191 that Plaintiff
filed three previous applications that have been denied, including two with alleged onset dates of
June 2002 and one with an alleged onset date of December 2009. However, pages 193-94 indicate
only one prior filing. Giving Plaintiff the benefit of the doubt and assuming she has only filed one
previous application, the Court is not persuaded that a total of two applications for disability
benefits renders a person a “serial filer,” or negatively impacts credibility as the ALJ found. Nor
is the Court convinced that filing three prior applications would indicate a credibility concern.
Nevertheless, the Court finds this possible error is harmless in light of the rest of the ALJ’s
credibility analysis and the deference that is owed to the ALJ’s determination of credibility.
For instance, Plaintiff’s fairly extensive activities of daily living and the significant
improvements in symptoms she experiences when she is compliant with her medication were both
proper factors for the ALJ to consider. See SSR 96-7p, 1996 WL 374186, at *3 (listing factors).
The Court discussed Plaintiff’s improvement with medication earlier in this decision. And, even
if her activities of daily living do not, by themselves, conclusively establish an ability to perform
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full-time work, they do show that Plaintiff is capable of a fairly high level of functioning, especially
being responsible for caring for another, “older” person and serving on a governing council.
Moreover, the ALJ notes that there is no medical source statement in the record that would support
Plaintiff’s claim of disability and Plaintiff does not address this fact or point to such a statement in
the record. The Court finds that while the ALJ’s credibility determination is flawed in some
respects, it is supported by substantial evidence in the record. Accordingly, Plaintiff’s motion will
be denied in this regard.
V.

CONCLUSION
For the foregoing reasons, it is ORDERED that:
1) Plaintiff’s motion for judgment on the administrative record [Doc. 18] is
DENIED;
2) The Commissioner’s motion for summary judgment [Doc. 24] is GRANTED;
and
3) The Commissioner’s decision denying benefits is AFFIRMED.

SO ORDERED.
ENTER:
s/fâátÇ ^A _xx
SUSAN K. LEE
UNITED STATES MAGISTRATE JUDGE

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