Cooper v. Social Security Administration

Filing 16

REPORT AND RECOMMENDATION: In light of the foregoing, the Magistrate Judge recommends that plaintiff's motion for judgment on the administrative record be DENIED and that the decision of the SSA be AFFIRMED. Signed by Magistrate Judge John S. Bryant on 8/23/2016. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(jw)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
REBECCA M. COOPER
v.
SOCIAL SECURITY ADMINISTRATION

To:

)
)
)
)
)

No. 1:15-0067
Judge Sharp/Bryant

The Honorable Kevin Sharp, Chief Judge

REPORT AND RECOMMENDATION
This is a civil action filed pursuant to 42 U.S.C. §§ 405(g) and 1383(c), to
obtain judicial review of the final decision of the Social Security Administration (“SSA” or
“the Administration”) denying plaintiff’s application for Supplemental Security Income (SSI)
benefits, as provided under Title XVI of the Social Security Act. The case is currently
pending on plaintiff’s motion for judgment on the administrative record (Docket Entry No.
12), to which defendant has responded (Docket Entry No. 14). Plaintiff has further filed a
reply in support of her motion. (Docket Entry No. 15) Upon consideration of these papers
and the transcript of the administrative record (Docket Entry No. 10),1 and for the reasons
given below, the undersigned recommends that plaintiff’s motion for judgment be DENIED
and that the decision of the SSA be AFFIRMED.

I. Introduction
Plaintiff filed her application for SSI benefits on July 30, 2012, alleging

1

Referenced hereinafter by page number(s) following the abbreviation “Tr.”

disability beginning June 19, 2008 (subsequently amended to align with her filing date of
July 30, 2012), due to post-traumatic stress disorder, depression, a learning disability,
illiteracy, and bipolar disorder. (Tr. 90, 274) Her application was denied at the initial and
reconsideration stages of agency review, whereupon she requested de novo review of her
claim by an Administrative Law Judge (ALJ). The ALJ hearing was held on January 8, 2014,
and plaintiff appeared (via telephone) with counsel and gave testimony. (Tr. 107-134)
Testimony was also received from an impartial vocational expert. At the conclusion of the
hearing, the ALJ took the matter under advisement until February 14, 2014, when she issued
a written decision in which she concluded that plaintiff was not disabled. (Tr. 90-100) That
decision contains the following enumerated findings:
1.

The claimant has not engaged in substantial gainful activity since July 30,
2012, the application date (20 CFR 416.971 et seq.).

2.

The claimant has the following severe impairments: post-traumatic stress
disorder (PTSD), bipolar disorder, and learning disability (20 CFR 416.920(c)).

3.

The claimant does not have an impairment or combination of impairments
that meets or medically equals the severity of one of the listed impairments in
20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 416.920(d), 416.925 and
416.926).

4.

After careful consideration of the entire record, the undersigned finds that the
claimant has the residual functional capacity to perform a full range of work at
all exertional levels but with nonexertional limitations. She could perform
simple routine and repetitive tasks in jobs requiring infrequent routine
changes in job duties. She could sustain occasional, brief, and superficial
interaction with co-workers and supervisors. She should perform jobs that do
not require direct public interaction.

5.

The claimant has no past relevant work (20 CFR 416.965).

6.

The claimant was born on July 18, 1983 and was 29 years old, which is defined
2

as a younger individual age 18-49, on the date the application was filed. (20
CFR 416.963).
7.

The claimant has at least a high school education and is able to communicate
in English (20 CFR 416.964).

8.

Transferability of job skills is not an issue because the claimant does not have
past relevant work (20 CFR 416.968).

9.

Considering the claimant’s age, education, work experience, and residual
functional capacity, there are jobs that exist in significant numbers in the
national economy that the claimant can perform (20 CFR 416.969 and
416.969(a)).

10.

The claimant has not been under a disability, as defined in the Social Security
Act, since July 30, 2012, the date the application was filed (20 CFR 416.920(g)).

(Tr. 92-94, 98-100)
On May 28, 2015, the Appeals Council denied plaintiff’s request for review of
the ALJ’s decision (Tr. 1-4), thereby rendering that decision the final decision of the
Administration. This civil action was thereafter timely filed, and the court has jurisdiction.
42 U.S.C. §§ 405(g), 1383(c). If the ALJ’s findings are supported by substantial evidence,
based on the record as a whole, then those findings are conclusive. Id.

II. Review of the Record
The following summary is taken from defendant’s brief, Docket Entry No. 14
at pages 2-9:
In a disability report dated August 8, 2012, Plaintiff wrote that she
could not read or write (Tr. 274). In a September 4, 2012 function report,
Plaintiff wrote that she had always been illiterate (Tr. 281). Each day, she
watched television, cleaned, ate, and spent time with family (Tr. 280-81). She
had no issues with personal care (Tr. 281). Plaintiff described problems
3

sleeping, having nightmares, having difficulty remembering to take
medications, and dealing with anger issues (Tr. 282, 285). She prepared simple
meals, did laundry and dishes, checked the mail, shopped once per month,
went outside once daily, listened to books on tape, played with her sister’s dog,
and visited family (Tr. 282-84). Plaintiff had difficulty getting along with
others, including her family (Tr. 285). She had trouble focusing, following
directions, and concentrating (Tr. 282, 284-86). Earnings records dated June
19, 2013, show that Plaintiff has not worked since 2008, and her earnings from
1998 to 2008 ranged from three years with no earnings to $8,758.00 per year
(Tr. 268).
Plaintiff received treatment from Lawrence County Health Department
on March 14, 2012 (Tr. 384-86). She reported she had been released from jail
six months before and had been out of medication during that time (Tr. 384).
A nurse practitioner listed diagnoses of bipolar disorder, major depression,
post-traumatic stress disorder (PTSD), and anxiety (Tr. 385-86). Plaintiff was
referred to Centerstone Community Mental Health Center and prescribed
Carbamazepine, Prozac/Fluoxetine, and Trazodone (Tr. 386). Plaintiff
commenced treatment at Life Care Family Services (Life Care) on April 3, 2012
(Tr. 348-378, 491-542). At her first appointment with Jodi Makela, M.A.,
Plaintiff reported no current suicidal ideation (Tr. 374). She had a history of
suicidal thoughts, but she never wanted to act on them (Tr. 374). Plaintiff
denied recent substance abuse and reported a stressful living situation (Tr. 368,
373). She said she had trouble filling out job applications because she could not
read or write (Tr. 372). She denied any mental health treatment, but she
reported being diagnosed with bipolar disorder and having depression and
stress (Tr. 363-65). Plaintiff reported her medications were Trazadone, Xanax,
and Geodon (Tr. 365). On examination, she was cooperative, fully oriented
with appropriate thought content, and had normal attention, affect, and
speech (Tr. 376). Ms. Makela diagnosed PTSD and bipolar disorder and
recommended case management, medication management, and individual
therapy (Tr. 376-77). She assessed a GAF of 46 (Tr. 378).
On April 25, 2012, Nancy Hamlin, a nurse practitioner at Life Care,
examined Plaintiff (Tr. 360-62). Although she had sad mood and bland effect,
Plaintiff was cooperative and alert with normal speech (Tr. 361). She had
appropriate thought content and was fully oriented (Tr. 361). Ms. Hamlin
prescribed Lamictal, Trazodone, and Valium (Tr. 361). At her May 9, 2012
appointment, Plaintiff reported negative side effects with Lamictal and asked
4

for a different sleep medication than Trazodone (Tr. 357). Ms. Hamlin gave
her relaxation techniques and explained that Valium was for acute use only
and she would need to taper off of it (Tr. 357). She told Plaintiff to take
Lamictal at night and prescribed Amitriptyline instead of Trazodone (Tr. 35758). On examination, Plaintiff was fully alert, oriented, and cooperative with
euthymic mood, bright affect, normal speech, and appropriate thought content
(Tr. 358). On July 5, 2012, Plaintiff complained of increased symptoms,
explaining that her parents were not allowing her to see her children, were
verbally abusive, and made her move out (Tr. 354). Plaintiff’s mood was
anxious, but she was fully alert, oriented, and cooperative (Tr. 355). Ms.
Hamlin increased her Lamictal, changed Amitriptyline to Remeron, and
refilled her Valium (Tr. 354).
Plaintiff was brought to the emergency room on August 31, 2012, when
she was found unresponsive at home (Tr. 427). Plaintiff reported taking
Opana, which was not one of her prescriptions (Tr. 427). She reported taking
Xanax twice per day, as well as Lortab andNaproxen (Tr. 427). Plaintiff was
diagnosed with altered mental status and discharged home the same day (Tr.
427, 431). Plaintiff returned to Lawrence County Health Department on
September 17, 2012, and notes do not indicate she mentioned she received
care at Life Care (Tr. 382). Plaintiff reported increased depression because she
lost custody of her children (Tr. 382). The nurse prescribed Celexa and
continued Trazodone (Tr. 383). On October 8, 2012, Plaintiff saw Timothy
Holt, an advanced practice registered nurse at Life Care (Tr. 351). Plaintiff
reported improved mood symptoms but increased anxiety (Tr. 351). He
attributed this to her recent start of hormone replacement therapy (Tr. 351).
At her November 18, 2012 appointment, Plaintiff reported an “abrupt onset of
ineffectiveness” of her medications, but Mr. Holt noted this coincided with
placement of a restraining order on Plaintiff, which prevented her from seeing
her son (Tr. 348). Plaintiff admitted to taking more Valium than prescribed,
and Mr. Holt advised against this (Tr. 348). Mr. Holt discontinued Lamictal
and Remeron and started Geodon and Trazodone (Tr. 348).
Plaintiff underwent a consultative examination performed by Thomas
M. Sweets, M.D., on October 13, 2012 (Tr. 343-46). Plaintiff reported that her
physical symptoms were minor compared to her PTSD, which made it difficult
for her to handle work stress (Tr. 343). She said she witnessed a shooting and a
stabbing four years before (Tr. 343). Plaintiff explained that she graduated
from high school in a special education program, and she had difficulty with
5

reading, writing, and performing basic tasks (Tr. 343). However, she could
cook, clean, shop, and manage money (Tr. 344). Upon examination, Plaintiff
was alert and oriented (Tr. 345). Dr. Sweets wrote he was surprised that
Plaintiff had a fairly normal mood and affect and she was quite interactive (Tr.
345). He wrote that she said that her mood was fine, and she seemed to feel
quite well (Tr. 345). Her speech was normal, and she was not overly excitable
(Tr. 345).Plaintiff’s thought process and judgment were normal (Tr. 345).
Based on Plaintiff’s statements, Dr. Sweets wrote that Plaintiff could have
possible learning disorder and literacy problems, and he wrote that her
physical examination was normal (Tr. 346).
Plaintiff had an appointment at Lawrence County Health Department
on November 26, 2012, when she complained of problems with agitation,
sitting still, and pressured speech (Tr. 380). The nurse recommended increased
exercise, prescribed Trazodone, and advised Plaintiff to follow up at Life Care
(Tr. 381). On January 7, 2013, Plaintiff returned to Mr. Holt at Life Care and
reported improvement in her symptoms (Tr. 509-510). Mr. Holt increased her
Geodon and continued her Trazodone and Valium (Tr. 510). On January 22,
2013, Brad Williams, M.D., a state agency psychological consultant, reviewed
the record and opined that Plaintiff had the ability to understand and perform
simple and detailed tasks, but not multi-step tasks (Tr. 187). She could sustain
concentration, persistence, and pace with customary breaks (Tr. 187). Dr.
Williams further opined Plaintiff could interact appropriately with the general
public, supervisors, and peers (Tr. 187). However, she would work better with
things than with people (Tr. 187). Finally, Plaintiff could set practical goals
and adapt to routine workplace changes (Tr. 187). Plaintiff had two
appointments with Mr. Holt in March 2013, when, despite being anxious with
constricted affect, she was alert and fully oriented, cooperative, and had
normal speech and thought content (Tr. 504-05, 507-08). Plaintiff reported
insomnia in late March (Tr. 504). Her mental status examination was
unchanged in April, and Mr. Holt prescribed Amitriptyline when Plaintiff
complained Hydroxyzine was ineffective (Tr. 501).
On June 30, 2013, Plaintiff was taken to the emergency room for
suicidal ideation and hearing voices (Tr. 391, 394). She was transferred to
Jeffrey Robbins, M.D., at Western Mental Health Institute, where she was
admitted on July 1, 2013 (Tr. 395, 467). Plaintiff said she had auditory
hallucinations and thoughts of shooting herself with a gun (Tr. 467). The next
day, Dr. Robbins wrote that Plaintiff had a “miraculous resolution of all of it”
6

(Tr. 471). He wrote that she had probably fulfilled her goal of getting an
inpatient stay on record for her disability claim and also had a court date on
that day she avoided (Tr. 471). Dr. Robbins wrote she was bright and smiling
within hours of admission (Tr. 471). He prescribed Celexa and Trazadone,
diagnosed her with malingering and depressive disorder, and assessed a GAF of
45 (Tr. 467-68).
Plaintiff returned to Mr. Holt on July 8, 2013 (Tr. 495). Mr. Holt noted
Plaintiff failed to tell him about her recent hospitalization and gave him the
impression she was taking her medications as prescribed (Tr. 495). Mr. Holt
continued Plaintiff’s medications and recommended she follow up in one
month (Tr. 496). Plaintiff did not return to Life Care until October 15, 2013,
when she went to a different location and saw Kelsey Kent, an advanced
practice registered nurse (Tr. 491-92). Plaintiff reported doing very well and
denied auditory or visual hallucinations and substance abuse (Tr. 492). She
described her mood as good, and she denied suicidal ideations (Tr. 492). She
admitted to sometimes wanting to hurt others, but she said she felt she was in
control and that no one was in danger (Tr. 492). On January 2, 2014, Ms.
Dianne Faulkner, R.C.M.A., N.C.P.T., at Life Care submitted a letter stating
Plaintiff was a client at the facility (Tr. 543). Ms. Faulkner wrote that Plaintiff
was incapable of gainful employment and was currently seen as a Safety Net
client because she lacked insurance (Tr. 543).
Plaintiff submitted additional records to the Appeals Council from
Crockett Hospital dated February 13, 2014, through March 29, 2014 (Tr. 3386). Other than a record for knee pain on February 13, 2014, the rest of the
records from Crockett Hospital were dated after the ALJ’s decision (Tr. 33-86).
Plaintiff was hospitalized for suicidal ideation with drug overdose from March
26, 2014, through March 29, 2014 (Tr. 44-45). Plaintiff also submitted records
from Center Stone dated April 17, 2014, through June 12, 2014 (Tr. 8-27).
At an administrative hearing held on January 8, 2014, Plaintiff testified
over the telephone, as she was incarcerated for trespassing and failure to pay
child support (Tr. 107-09, 113). Plaintiff testified she graduated from high
school with a special education diploma (Tr. 111). Her three children lived
with her mother, who had temporary custody of them since two years before
(Tr. 112). She had a driver’s license at one time, but it had been revoked for
failure to pay child support (Tr. 114). Plaintiff was on probation for selling
Xanax six years before (Tr. 115). Prior to her incarceration, she lived with a
7

friend who helped her manage her appointments and medications (Tr. 116).
Plaintiff played with her friend’s dogs, watched television, cooked, swept, and
mopped (Tr. 116-17). She visited her children two to three times per week and
sometimes stayed with them on weekends (Tr. 117).
Plaintiff testified her biggest impediment to working was inability to
focus (Tr. 118). She did not like being in crowds, and she had trouble sleeping,
but her medications sometimes helped to calm her (Tr. 118, 120-21). She also
heard voices, and they sometimes told her to harm herself (Tr. 118-19).
Plaintiff described having fatigue, lack of energy, nightmares, and
hallucinations (Tr. 122-23). She said she had not used marijuana or drank
alcohol since her July 2013 hospital stay (Tr. 124). The ALJ asked about a
restraining order against Plaintiff to prevent her from seeing her son, but
Plaintiff said she did not know the basis for the order (Tr. 125).
The ALJ asked the vocational expert, Lowell Latto, a hypothetical
question that assumed an individual of Plaintiff’s age, education, and work
experience who could perform a full range of work at all exertional levels but
with nonexertional limitations (Tr. 130-31). The individual was limited to
simple, routine, and repetitive tasks in jobs requiring infrequent routine
changes and work duties (Tr. 130). She could perform jobs involving only
occasional, brief, and superficial interaction with coworkers and supervisors
(Tr. 130-31). The jobs could not require direct public interaction (Tr. 131). In
response, the vocational expert testified that individual could perform
medium, unskilled jobs such as vehicle cleaner (303,000 positions nationally
and 4,200 in Tennessee); sandwich maker (785,000 positions nationally and
8,000 in Tennessee); and dish washer (549,000 positions nationally and 5,000
in Tennessee) (Tr. 131-32). The vocational expert testified that his testimony
was consistent with the Dictionary of Occupational Titles (DOT) (Tr. 132).

III. Conclusions of Law
A. Standard of Review
This court reviews the final decision of the SSA to determine whether that
agency’s findings of fact are supported by substantial evidence in the record and whether the
correct legal standards were applied. Elam ex rel. Golay v. Comm’r of Soc. Sec., 348 F.3d
8

124, 125 (6th Cir. 2003). “Substantial evidence is defined as ‘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.’” Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 241 (6th
Cir. 2007) (quoting Cutlip v. Sec’y of Health & Human Servs., 25 F.3d 284, 286 (6th Cir.
1994)). While this is a deferential standard, it is not a trivial one; a finding of substantial
evidence must “take into account whatever in the record fairly detracts from its weight.”
Abbott v. Sullivan, 905 F.2d 918, 923 (6th Cir. 1990). Nevertheless, the SSA’s decision must
stand if substantial evidence supports the conclusion reached, even if the record contains
substantial evidence that would have supported an opposite conclusion. E.g., Longworth v.
Comm’r of Soc. Sec., 402 F.3d 591, 595 (6th Cir. 2005). Accordingly, while this court
considers the record as a whole in determining whether the SSA’s decision is substantially
supported, it may not review the case de novo, resolve conflicts in the evidence, or decide
questions of credibility. See Bass v. McMahon, 499 F.3d 506, 509 (6th Cir. 2007); Garner v.
Heckler, 745 F.2d 383, 387 (6th Cir. 1984).
B. Proceedings at the Administrative Level
The claimant has the ultimate burden to establish an entitlement to benefits
by proving his or her “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.” 42 U.S.C. § 423(d)(1)(A). The claimant’s “physical or mental impairment” must
“result[] from anatomical, physiological, or psychological abnormalities which are
demonstrable by medically acceptable clinical and laboratory diagnostic techniques.” Id. at
§ 423(d)(3). In proceedings before the SSA, the claimant’s case is considered under a five9

step sequential evaluation process, described by the Sixth Circuit Court of Appeals as follows:
1) A claimant who is engaging in substantial gainful activity will not be found
to be disabled regardless of medical findings.
2) A claimant who does not have a severe impairment will not be found to be
disabled.
3) A finding of disability will be made without consideration of vocational
factors, if a claimant is not working and is suffering from a severe impairment
which meets the duration requirement and which meets or equals a listed
impairment in Appendix 1 to Subpart P of the Regulations. Claimants with
lesser impairments proceed to step four.
4) A claimant who can perform work that he has done in the past will not be
found to be disabled.
5) If a claimant cannot perform his past work, other factors including age,
education, past work experience and residual functional capacity must be
considered to determine if other work can be performed.
Cruse v. Comm’r of Soc. Sec., 502 F.3d 532, 539 (6th Cir. 2007)(citing, e.g., Combs v. Comm’r
of Soc. Sec., 459 F.3d 640, 642-43 (6th Cir. 2006)(en banc)); 20 C.F.R. §§ 404.1520, 416.920.
“Through step four, 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, but 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.” Jones v.
Comm'r of Soc. Sec., 336 F.3d 469, 474 (6th Cir. 2003) (citing Bowen v. Yuckert, 482 U.S.
137, 146 n.5 (1987)).
The SSA’s burden at the fifth step of the evaluation process can be carried by
relying on the Medical-Vocational Guidelines, otherwise known as “the grids,” but only if
the claimant is not significantly limited by a nonexertional impairment, and then only when

10

the claimant’s characteristics identically match the characteristics of the applicable grid rule.
See Wright v. Massanari, 321 F.3d 611, 615-16 (6th Cir. 2003). Otherwise, the grids cannot be
used to direct a conclusion, but only as a guide to the disability determination. Id.; see also
Moon v. Sullivan, 923 F.2d 1175, 1181 (6th Cir. 1990). In such cases where the grids do not
direct a conclusion as to the claimant’s disability, the SSA must rebut the claimant’s prima

facie case by coming forward with proof of the claimant’s individual vocational qualifications
to perform specific jobs, which is typically obtained through vocational expert (“VE”)
testimony. See Wright, 321 F.3d at 616 (quoting Soc. Sec. Rul. 83-12, 1983 WL 31253, *4
(S.S.A.)); see also Varley v. Sec’y of Health & Human Servs., 820 F.2d 777, 779 (6th Cir. 1987).
In determining residual functional capacity (“RFC”) for purposes of the
analysis required at steps four and five above, the SSA is required to consider the combined
effect of all the claimant’s impairments, mental and physical, exertional and nonexertional,
severe and nonsevere. See 42 U.S.C. §§ 423(d)(2)(B), (5)(B); Foster v. Bowen, 853 F.2d 483,
490 (6th Cir. 1988).
C. Plaintiff’s Statement of Errors
Plaintiff first argues that the ALJ erred in failing to properly consider and
evaluate the severity of her mental health treatment records, which she contends are
supportive of her claim for benefits. She argues that “the ALJ completely rejected this
evidence in her decision” (Docket Entry No. 13 at 7), despite its documentation of significant
symptoms of depression and anxiety, an inpatient psychiatric hospitalization following a
purported suicide attempt, and Global Assessment of Functioning (GAF) scores indicative of
serious symptoms. Plainly, however, the ALJ did not completely reject the evidence of
11

plaintiff’s mental impairments, as such evidence was thoroughly discussed in her decision
and was the foundation for the significant mental limitations reflected in the RFC finding.
Plaintiff bemoans the perceived inconsistency between, on one hand, the ALJ’s rejection of
the low GAF score assigned at plaintiff’s intake to mental health treatment by Ms. Makela
because she only saw plaintiff on one occasion, and on the other hand, the ALJ’s assignment
of great weight to the opinion of consultants who never examined plaintiff at all. She further
complains that the nonexamining consultants were not privy to a significant amount of
medical evidence of record, as they opined in October 2012 and January 2013, respectively.
However, the ALJ was entitled to consider the fact that Ms. Makela was not an
acceptable medical source and only saw plaintiff one time in weighing her assignment of a
GAF score indicating serious limitations, and for that matter was not required to give any
particular rationale for disregarding an intake GAF score, or any GAF score. Such scores
have long been held to be of limited utility in the disability determination, as they are not a
reasonable replacement for the more particularized data available in actual treatment notes
or reports of examination results, but instead are largely superficial descriptors representing
“a clinician’s subjective rating of an individual’s overall psychological functioning” in terms
“understandable by a lay person.” See, e.g., Kennedy v. Astrue, 247 Fed. Appx. 761, 766 (6th
Cir. Sept. 7, 2007); see also, e.g., Smith v. Astrue, 565 F.Supp.2d 918, 925 (M.D. Tenn. 2008).
The ALJ appropriately recognized that this score was assigned at plaintiff’s intake to mental
health treatment at Life Care, following a period of six months during which she had been
out of her prescription medication. (Tr. 95) Ms. Makela’s treatment note was given explicit
consideration despite the fact that she is not an acceptable medical source, and did not offer
any opinion of functional limitations aside from the lone GAF score addressed above. The
12

SSA’s rulings and regulations do not require more. See 20 C.F.R. § 416.913(a), (d)(1); SSR 063p, 2006 WL 2329939, at *6; Morris v. Comm’r of Soc. Sec., 2012 WL 4953118, at *11 (W.D.
Mich. Oct. 17, 2012).
Moreover, as to the effect of subsequently generated evidence upon the
weighing of the nonexamining consultants’ opinions, it does not appear that the subsequent
evidence was favorable to plaintiff. The ALJ discussed the evidence which postdated Dr. de
la Torre’s and Dr. Williams’s opinions (Tr. 97-98), but does not appear to have relied on any
such evidence to support the inclusion of work-related mental limitations, nor does plaintiff
suggest that further limitations are apparent from such evidence. In any event, the ALJ
recognized that the record supported greater limitations on social functioning than the
nonexamining consultants’ opinions indicated, and so gave them partial weight. (Tr. 98)
Accordingly, the ALJ did not err in relying in part on the relatively early opinions of the
nonexamining consultants.
Plaintiff further argues that the ALJ erred in rejecting Dr. Robbins’s
assignment of a GAF score of 45 as inconsistent with his diagnosis of plaintiff as a malingerer,
when that score was assigned at the same time as -- not before -- plaintiff’s diagnosis,
rendering the ALJ’s rejection of it tantamount to a substitution of the ALJ’s opinion for Dr.
Robbins’s opinion. However, in addition to the above discussion of the limited utility of
GAF scores, it appears that Dr. Robbins considered plaintiff’s prognosis compromised by her
alcohol and drug issues, rather than any identified limitations of her mental functioning.
(Tr. 468) Inasmuch as the GAF score at issue can reflect “serious symptoms” or “any serious
impairment in social, occupational, or school functioning,” American Psychiatric Ass’n,

13

DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS 34 (4th ed. 2000), the ALJ
cannot be faulted for rejecting it as a measure of work-related functional loss in the face of
the clinical diagnosis of malingering.
Plaintiff next argues that the ALJ erred in her consideration of a letter written
by Ms. Dianne Faulkner, R.C.M.A., N.C.P.T., of Life Care. (Tr. 543) In that letter, Ms.
Faulkner summarily states that plaintiff is uninsured and “is currently incapable of gainful
employment[.]” Id. The ALJ gave due consideration to this opinion, noting that Ms.
Faulkner never treated plaintiff in any capacity and assigning her letter opinion no weight
due to the fact that it is entirely conclusory and not supported by the evidence, but in fact is
merely an opinion on the ultimate legal issue of disability which is reserved to the SSA. (Tr.
98) Plaintiff cites her diagnoses and GAF scores as evidence which does support her claim to
disability, and complains that the ALJ did not explain how the mental health treatment notes
containing these items are inconsistent with Ms. Faulkner’s opinion that she is unable to
work. (Docket Entry No. 15 at 2) However, the balance of the ALJ’s discussion concerning
plaintiff’s mental RFC stands as sufficient support for the finding that Ms. Faulkner’s
contrary, conclusory opinion on the ultimate issue in the case is not worthy of perceptible
weight. Social Security Ruling (SSR) 96-5p, cited by plaintiff, speaks of the ALJ’s duty to
evaluate, rather than ignore, the opinions of medical sources on issues reserved to the SSA.
There is no indication that Ms. Faulkner is a “medical source” as contemplated by this SSR,
which speaks to the interplay between the regulatory deference due the opinions of treating,
examining, and nonexamining “acceptable medical sources,” 20 C.F.R. § 416.927(a), and the
reservation of dispositive legal issues to agency decisionmakers, 20 C.F.R. §. 416.927(e), in
the instance where such a medical source opines not on the claimant’s functional abilities or
14

limitations, but on the disabling effect of such. In any event, the SSR specifically provides
that “[s]uch opinions on these issues must not be disregarded. However, even when offered
by a treating source, they can never be entitled to controlling weight or given special
significance.” 1996 WL 374183, at *5 (S.S.A. July 2, 1996). The ALJ here gave explicit
consideration to this letter from Ms. Faulkner, and thus satisfied her duty to consider such
evidence.
Plaintiff’s final argument is that the ALJ erred in failing to conduct a proper
credibility analysis as required by SSR 96-7p. Plaintiff contends that the ALJ merely recited
the criteria for evaluating credibility, and then offered a conclusory statement that plaintiff’s
allegations were not credible. This is simply not so. In fact, the ALJ made reference to the
numerous occasions when plaintiff made inconsistent or incomplete representations to her
treatment providers, particularly as it concerned the psychotropic medications she was
taking. (Tr. 95-97) The ALJ concluded that “[i]t is unclear how compliant she was with a
medication regimen given the multiple providers who were prescribing medications without
each other’s knowledge.” (Tr. 98) The ALJ further discussed the evidence bearing on
plaintiff’s credibility as follows:
The claimant testified from jail where she was being held for failure to pay
child support. She is currently on probation for selling Xanax several years
ago and testified that she has passed all of her drug screens since her
hospitalization in July 2013. She has not attempted to work since 2008 and
has never earned income above the level considered to be significant gainful
activity which undermines her credibility. She has said at different times that
she has difficulty reading and writing and at other times that she is illiterate.
A Function Report submitted to the record on September 4, 2012, purports to
have been completed by the claimant and contains fairly detailed, sufficient
answers to all the questions. (Ex. B3E). That same Function Report says she is
able to count change. There is no evidence that she is illiterate. Her driver’s
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license is currently revoked or suspended, but she has been capable of
obtaining one in the past.
(Tr. 98) And, of course, most damning to plaintiff’s credibility was the report of Dr. Robbins,
rendered after plaintiff’s hospitalization for reported suicidal ideation and plan, and
described by the ALJ in reviewing plaintiff’s medical history: “The next day staff psychiatrist
Jeffrey Robbins, M.D., noted the claimant had a ‘miraculous resolution of all of it’ and
diagnosed her with malingering. He said that she probably had fulfilled her goal of getting
an inpatient stay on record for her disability claim and also had a court date on that day that
she avoided. He said that she was ‘bright and smiling’ within hours of admission.” (Tr. 97)
The ALJ clearly weighed the evidence and explained her determination that plaintiff is not
fully credible. Such a weighing of credibility is firmly within the ALJ’s province, and is due
significant deference on judicial review. See, e.g., Walters v. Comm’r of Soc. Sec., 127 F.3d
525, 531 (6th Cir. 1997). There is no reason whatsoever to disturb the credibility finding in
this case.
Finally, defendant makes reference to the additional evidence submitted for
the first time before the Appeals Council, and presented in plaintiff’s brief (Docket Entry No.
13 at 4) as though pertinent here. However, the Appeals Council did not assert jurisdiction
and render its own decision based upon the record including this newly submitted evidence,
but rather declined to review the case after considering the new evidence, leaving the ALJ’s
decision as the final agency decision on plaintiff’s disability claim. In such circumstances,
the new evidence, which was not before the ALJ, is outside the scope of judicial review. See,
e.g., Cline v. Comm’r of Soc. Sec., 96 F.3d 146, 148-49 (6th Cir. 1996). Defendant states in its

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brief that “[w]here it is clear, as in this case, that the Appeals Council considered new
evidence and found that it did not warrant changing the ALJ’s decision, the court must
determine whether the ALJ’s decision is supported by substantial evidence, even including
the additional evidence.” (Docket Entry No. 14 at 19) (citing Cotton v. Sullivan, 2 F.3d 692,
696 (6th Cir. 1993)). However, this is not the law in the Sixth Circuit, as made clear in
Cotton, supra (presenting the standard advanced in defendant’s brief as the law of the Eighth
Circuit, different from Sixth Circuit precedent). Accordingly, the evidence generated after
the ALJ issued her decision and presented for the first time before the Appeals Council may
not be considered by this Court.
In sum, the decision of the ALJ is supported by substantial evidence on the
record as a whole. That decision should therefore be affirmed.

IV. Recommendation
In light of the foregoing, the Magistrate Judge recommends that plaintiff’s
motion for judgment on the administrative record be DENIED and that the decision of the
SSA be AFFIRMED.
Any party has fourteen (14) days from receipt of this Report and
Recommendation in which to file any written objections to it with the District Court. Any
party opposing said objections shall have fourteen (14) days from receipt of any objections
filed in which to file any responses to said objections. Failure to file specific objections
within fourteen (14) days of receipt of this Report and Recommendation can constitute a
waiver of further appeal of this Recommendation. Thomas v. Arn, 474 U.S. 140 (1985);
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Cowherd v. Million, 380 F.3d 909, 912 (6th Cir. 2004)(en banc).

ENTERED this 23rd day of August, 2016.

s/ John S. Bryant
JOHN S. BRYANT
UNITED STATES MAGISTRATE JUDGE

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