Baskin v. Social Security Administration

Filing 19

REPORT AND RECOMMENDATION: The Magistrate Judge recommends that pltf's 15 motion for judgment on the record be GRANTED to the extent that the case should be REMANDED. Signed by Magistrate Judge Juliet E. Griffin on 3/19/13. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(rd)

IN THE UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION

WILLIAM N. BASKIN
Plaintiff
v.
CAROLYN W. COLVIN,
Acting Commissioner of
Social Security1

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No. 3:11-0948

To: The Honorable Thomas A. Wiseman, Jr., Senior District Judge

REPORT AND RECOMMENDATION
The plaintiff filed this action pursuant to 42 U.S.C. § 405(g) to obtain judicial review of the
final decision of the Commissioner of Social Security (“Commissioner”) denying the plaintiff’s
claim for Supplemental Security Income (“SSI”) and Disability Insurance Benefits (“DIB”), as
provided by the Social Security Act (“Act”).
Upon review of the Administrative Record as a whole, the Court finds that the
Commissioner’s determination that the plaintiff is not disabled under the Act is not supported by
substantial evidence in the record as required by 42 U.S.C. § 405(g), and that the plaintiff’s motion

1

Carolyn W. Colvin became the Acting Commissioner of Social Security on February 14,
2013. Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, Carolyn W. Colvin is
substituted for former Commissioner Michael J. Astrue as the defendant in this suit.
1

for judgment on the administrative record (Docket Entry No. 15) should be GRANTED to the extent
that the case should be remanded as provided herein.

I. INTRODUCTION
On June 12, 2008, the plaintiff protectively filed applications for SSI and DIB, alleging a
disability onset date of April 14, 2006. (Tr. 16, 127-37.) His claim was denied initially and upon
reconsideration. (Tr. 16, 61-67, 73-76.) A hearing was held before Administrative Law Judge
(“ALJ”) William B. Churchill on June 2, 2010 (tr. 29-56), and the plaintiff amended his alleged
disability onset date to April 13, 2009, at the hearing. (Tr. 16, 32). On July 26, 2010, the ALJ issued
an unfavorable decision. (Tr. 16-24.) On August 5, 2011, the Appeals Council denied the plaintiff’s
request for review, rendering the ALJ’s decision the final decision of the Commissioner. (Tr. 1-7.)

II. BACKGROUND
The plaintiff was born on August 31, 1979 (tr. 129, 134), and he was thirty years old at the
time of the hearing. He is married, has a tenth grade education, and has previously worked as a
plumber’s helper and as a forklift operator. (Tr. 33-35.)

A. Chronological Background: Procedural Developments and Medical Records
The plaintiff presented to Volunteer Behavioral Health Care System (“Volunteer”) in
Lebanon, Tennessee, on March 23, 2007, for alcohol and drug assessment, depression, and sleep
disturbance. (Tr. 290.) He reported using opiates “heavily” for about twelve years and having
suicidal thoughts in the past. Id. He also reported being “in an altercation in which he was hit with
2

a baseball bat” and that this incident had “been bothering [him] every single day.” Id. A mental status
examination showed that the plaintiff’s appearance was casual, his speech normal, and he had no
problem with orientation. (Tr. 292.) His affect and behavior were appropriate; however, he was
anxious, agitated, and depressed, and he exhibited evidence of delusions and hallucinations. Id. His
memory was good, concentration fair, insight level fair, and insight rating poor. Id. His judgment
level was limited, and his judgment rating was poor. (Tr. 293.) His impulse level was impaired, and
his impulse rating was poor. Id. He was assessed to be a moderate suicide risk. Id. He was diagnosed
with “polysubstance dependence; bipolar I disorder, most recent episode depressed with psychotic
features; posttraumatic stress disorder, chronic;” and borderline hypertension, and he was prescribed
Tegretol.2 Id. He was assigned a GAF score of 56.3 Id.
The plaintiff began seeing Dr. Wayne Swilley in Goodlettsville, Tennessee, for addiction
treatment on April 2, 2007, and reported that he had taken Oxycontin, morphine, and Percocet for
the past thirteen years.4 (Tr. 336-37.) The plaintiff reported that he had been “clean” for fifteen days.
(Tr. 336.) Dr. Swilley prescribed Suboxone.5 Id. The plaintiff regularly visited Dr. Swilley for

2

Tegretol is an “iminostilbene anticonvulsant; analgesic for trigeminal neuralgia; also used
for restless legs syndrome (RLS), alcohol withdrawal, and post-herpetic neuralgia.” Saunders
Pharmaceutical Word Book 688 (2009) (“Saunders”).
3

The GAF scale is used to assess the social, occupational, and psychological functioning of
adults. Am. Psychiatric Ass’n, Diagnostic and Statistical Manual of Mental Disorders 34 (4th ed.
2000) (“DSM–IV–TR”). A GAF score within the range of 51-60 means that the plaintiff has
“[m]oderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) [or]
moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with
peers or co-workers).” Id.
4

Oxycontin, morphine, and Percocet are narcotic analgesics. Saunders at 465, 524, 546.

5

Suboxone is a “narcotic agonist-antagonist analgesic for outpatient maintenance of opiate
dependence.” Saunders at 665.
3

addiction treatment from April 2007, through May 20, 2010.6 (Tr. 335-72, 546-95.) During this time,
the plaintiff reported feeling anxious and depressed and not sleeping well. (Tr. 335, 339, 356, 364.)
The plaintiff reported occasional relapses with Lortab and morphine to Dr. Swilley and to his mental
health care providers at Volunteer. (Tr. 346, 356, 359, 491, 493, 580.) He also reported various
maladies including left wrist pain (tr. 348, 359); sore throat, congestion, and coughing (tr. 349, 557,
573, 577, 581); and back pain (tr. 350, 354). Dr. Swilley treated these minor medical issues and
prescribed the anti-hypertensive atenolol to treat the plaintiff’s high-blood pressure. (Tr. 547-48.)
On September 24, 2007, the plaintiff returned to Volunteer for a followup. (Tr. 295.) He
reported that he had not slept in three days due to “racing thoughts” and that he had a depressed
mood, flashbacks, nightmares, occasional irritability and crying spells. Id. He also reported that he
had stopped taking Tegretol two months earlier because it had not helped. Id. He was diagnosed with
polysubstance dependence, “bipolar I disorder, most recent episode depressed, severe with psychotic
features,” chronic posttraumatic stress disorder, and borderline hypertension. (Tr. 296.) He was
assigned a GAF score of 52. Id. He was referred to therapy and prescribed trazodone and valproic
acid.7 Id. His prescribed dosage of trazodone was increased at his request on October 10, 2007.

6

The Court made every attempt to decipher the medical evidence of record; however,
significant portions of Dr. Swilley’s handwritten treatment notes were illegible.
7

Trazodone is a “triazolopyridine antidepressant; serotonin uptake inhibitor; also used for
aggressive behavior, alcoholism, panic disorder, agoraphobia, and cocaine withdrawal.” Valproic
acid is an “anticonvulsant for complex partial seizures and simple or complex absence seizures.”
Saunders at 716, 746.
4

(Tr. 502.) On December 11, 2007, the plaintiff reported that trazodone was not working for him, and
he was prescribed Seroquel.8 (Tr. 487.)
The plaintiff returned to Volunteer for a followup on February 26, 2008, indicating that he
experienced paranoia, mood swings, and anxiety. (Tr. 297, 467.) He reported that his medications
were “somewhat beneficial” and that Trazodone had helped him sleep better but that he still had
some sleepless nights. Id. He was advised to continue therapy and start taking valproic acid, his
dosage of trazodone was increased, and he was also prescribed Haldol.9 (Tr. 298.)
On a Tennessee Clinically Related Group (“CRG”) assessment completed by Volunteer staff
on March 26, 2008, the plaintiff was rated as having moderate difficulties with interpersonal
functioning; adaptation to change; and concentration, task performance, and pace due to reported
anxiety. (Tr. 460-462.) He returned to Volunteer for a followup on June 19, 2008, at which time he
reported that he had not slept in four days. (Tr. 299, 448.) He reported “poor sleeep [sic]
continuity/severe insomnia, anhedonia, reduced appetite, energy, concentration and motivation” as
well as “sever [sic] anxiety, irrational fears, difficulty controlling affect, agitation, racing thoughts
and anger.” Id. He was alert and oriented, cooperative, denied suicidal thoughts, hopelessness or
inappropriate guilt, and did not demonstrate delusions or hallucinations. Id.
On August 1, 2008, the plaintiff visited Volunteer, reporting that he had not slept in four
days, was out of trazodone, and had stopped taking Haldol because it had not helped him sleep.
(Tr. 439.) He was irritable and bouncing his knee, his concentration was impaired, and his mood was

8

Seroquel is an “antipsychotic for schizophrenia and both manic and depressive episodes of
a bipolar disorder.” Saunders at 639.
9

Haldol is an antipsychotic and antispasmodic/antidyskinetic used to treat Tourette’s
syndrome. Saunders at 333.
5

described as “expansive.” Id. He was instructed to take his medication as prescribed; however, he
was taken off of trazodone, Haldol, and Seroquel, and prescribed Geodon.10 (Tr. 440.) The plaintiff
returned for a followup on August 13, 2008, reporting that he had been suicidal for the past week.
(Tr. 437.) He reported that he had stopped taking his medication, had not been sleeping, and had
been hallucinating. Id. The plaintiff had tics and rocked in his seat. Id. He was taken off Geodon and
started back on Seroquel. (Tr. 438.)
On September 16, 2008, Dr. Frank D. Kupstas, a nonexamining consultative DDS
psychologist, completed a Psychiatric Review Technique and determined that the plaintiff had
bipolar affective disorder, PTSD, and substance addiction disorder. (Tr. 381-390.) Dr. Kupstas rated
the plaintiff as mildly limited in the activities of daily living and maintaining social functioning and
moderately limited in maintaining concentration, persistence, or pace. (Tr. 391.) Dr. Kupstas also
completed a Mental Residual Functional Capacity (“RFC”) assessment on September 16, 2008.
(Tr. 377-79.) Dr. Kupstas opined that the plaintiff was moderately limited in his ability to maintain
attention and concentration for extended periods of time and in his ability to perform activities with
a schedule, maintain regular attendance, and be punctual. (Tr. 377-379.) Dr. Kupstas elaborated that
the plaintiff was “able to sustain CPP11 over extended periods for simple tasks, detailed [with] some
difficulty at times, but still can do so.” (Tr. 379.) Dr. Kupstas found no other significant limitations.
(Tr. 377-79.) Dr. Andrew Phay, a nonexamining consultative DDS psychologist, “affirmed”

10

Geodon is an “antipsychotic for schizophrenia and manic episodes of a bipolar disorder.”
Saunders at 318.
11

The Court assumes that “CPP” refers to concentration, persistence, and pace.
6

Dr. Kupstas’ RFC on December 18, 2008, after the plaintiff reported no new allegations, treatment,
or worsening. (Tr. 395.)
On September 24, 2008, the plaintiff reported to Volunteer that his mood had stabilized and
that he was not as angry or irritable as before. (Tr. 431.) The plaintiff demonstrated “vocal and facial
tics constantly” and rocked “throughout” the visit. Id. His concentration, insight, and judgment were
unimpaired, he denied suicidal or homicidal ideation or psychotic symptoms, and his speech was
normal. Id. The September 24, 2008, progress note included the same diagnoses provided a year
earlier and also included Tourette’s disorder. (Tr. 432.)
The plaintiff presented to Volunteer on January 7, 2009, for an “extension of medication.”
(Tr. 426.) He reported that his depression was a 7 on a scale of 1-10 and that he had not slept in four
days after running out of medication. Id. He returned to Volunteer on January 19, 2009, reporting
that he was not sleeping well and was having some depression, irritability, and racing thoughts.
(Tr. 424.) He reported that he lost his job because his company went out of business and that he was
having trouble finding employment. Id. He continued to demonstrate “phonic and muscular tics” and
“rock[ed] continuously.” Id. A mental status exam revealed that he was alert and oriented, with
unimpaired concentration, normal speech, and unimpaired insight and judgment. Id. His mood was
described as anxious and depressed, and he was assessed a GAF score of 52. (Tr. 424-25.) His
dosage of Seroquel was increased, and he was prescribed prazosin for his tics and Remeron for
depression and anxiety. (Tr. 425.)
On a CRG assessment completed by Volunteer staff on January 19, 2009, the plaintiff was
rated as having mild problems with interpersonal functioning due to irritability; moderate difficulties
with concentration, task performance, and pace due to hallucinations and memory problems; and
7

moderate difficulties adapting to change as evidenced by exacerbations of his symptoms due to
noncompliance with medication. (Tr. 421-23.) The plaintiff was also classified as “[f]ormerly
[s]everely [i]mpaired.”12 (Tr. 423.)
On April 13, 2009, the plaintiff reported to Volunteer that he was not sleeping well, his mind
raced “all the time,” and he was irritable and depressed. (Tr. 415.) He was described as mildly
depressed, with minimal tics and unimpaired concentration. Id. He had stopped taking prazosin and
Remeron after finding them unhelpful. Id. Instead, he was prescribed lithium for mood stabilization
and Ativan for his tics. (Tr. 416.) The plaintiff returned to Volunteer on June 15, 2009, reporting that
he had not taken the lithium “because the potential for toxicity scared him.” (Tr. 411.) He said that
he was sleeping well and described having anxiety and “ruminating thoughts.” Id. His tics were
present in “only moderate intensity,” and he was assigned a GAF score of 60. (Tr. 411-12.)
The plaintiff returned to Volunteer on August 24, 2009. (Tr. 408-09.) He reported that Celexa
had been “helpful to reduce his tics and anxiety” and that his sleep and appetite had been “good.”
(Tr. 408.) However, he also reported that, over “the last few days, his tics have been worse” and that
he continued to have irritability, mild depression, and racing thoughts that interfered with his ability
to concentrate. Id. He was prescribed Seroquel, Ativan, Celexa, and Neurontin.13 (Tr. 409.)
On December 28, 2009, the plaintiff returned to Volunteer for an “extension of medication.”
(Tr. 405.) He reported that he had been out of medication for three days and was having difficulty

12

The CRG assessment defined “[f]ormerly [s]everely [i]mpaired” persons as “[p]ersons
[who] . . . are not recently severely impaired . . . but have been severely impaired in the past . . . and
need services to prevent relapse.” (Tr. 423.)
13

Neurontin is an anticonvulsant. Celexa is a “selective serotonin reuptake inhibitor (SSRI)
for major depression” that is also used to treat obsessive compulsive disorder, generalized anxiety
disorder, premenstrual dysphoric disorder, and PTSD. Saunders at 141-42, 488.
8

sleeping without medication. Id. He denied having depression that day, but he reported being
occasionally depressed. Id. He denied suicidal ideation and reported that his current medications had
been helpful. Id. His current GAF score was 60. (Tr. 406.) He was prescribed lorazepam, Celexa,
gabapentin, and Seroquel.14 Id. A CRG assessment completed by Volunteer on December 28, 2009,
indicated the plaintiff had mild sleep problems and irritability, moderate racing thoughts, and
moderate difficulties adapting to change exacerbated by “having his home broke [sic] into and being
out of work.”15 (Tr. 402-04.)
The plaintiff did not return to Volunteer until April 1, 2010. (Tr. 397.) He reported that “he
landed in Tn Christian after he took extra [l]orazepam,” adding that his tics had been “driving him
crazy so he took some extra.” Id. He indicated that he had been doing “very good” until he ran out
of medication, but he requested to be taken off lorazepam. Id. He reported that his medication helped
him sleep but that he had been out of Seroquel for three days and had not slept at all. Id. He
demonstrated “continuous rocking, rubbing legs, and phonic tics” and was referred to a Tourette’s
disorder specialist. Id. A mental status examination showed that the plaintiff’s appearance was neat
and clean, he was alert and oriented, his concentration was mildly impaired, he exhibited no
psychomotor retardation or agitation, and his eye contact was good. Id. His mood was “euthymic,”
his speech was normal, his insight and judgment were unimpaired, and he denied psychotic
symptoms and suicidal or homicidal ideation. Id. His current GAF score was 60. (Tr. 398.) His

14

Lorazepam and gabapentin are anticonvulsants. Saunders at 310, 415.

15

Presumably, the reference to his house being “broke into” related to an incident described
in the June 15, 2009, treatment note. (Tr. 411.)
9

dosage of Seroquel was increased, and he agreed to remain on lorazepam. Id. Additionally, he was
prescribed Ativan, Celexa, and Neurontin. Id.

B. Hearing Testimony
At the hearing, the plaintiff was represented by counsel, and the plaintiff and Calvin Turner,
a vocational expert (“VE”), testified. (Tr. 29-56.) The plaintiff testified that he was thirty years old,
has a tenth grade education, and has not obtained a GED. (Tr. 33-34.) He is married and has a ten
year old son. (Tr. 34.) He has a valid driver’s license and drives himself. Id.
The plaintiff previously worked as a forklift operator and as a plumber’s helper for his fatherin-law. (Tr. 35.) He testified that he stopped working in 2009 because his Tourette’s disorder tics
had gotten worse, people stared at him “constantly,” and his “mind races a hundred miles an hour
constantly.” Id. The plaintiff testified that his Tourette’s medication helped relieve his symptoms “a
little bit,” and he acknowledged that he had not seen a Tourette’s specialist as recommended. (Tr. 36,
45.) He said that it is “very hard” for him to handle people who do not understand Tourette’s
disorder because they stare at him and it makes him “mad” and depressed. (Tr. 41.) He testified that
he tried to do temporary work, but he had to work with lots of people and could not “handle it.”
(Tr. 47.) He said that his father-in-law understood his tics and was “a big part of [his] success” as
a plumber’s helper. (Tr. 35, 45-46.)
The plaintiff relayed that he had been beaten up by someone with a baseball bat three years
prior and that, since then, his tics had gotten worse. (Tr. 38.) He said that he thought about that event
“constantly.” (Tr. 45.) The plaintiff testified that he had been seeing a mental health professional for
the past two-and-a-half to three years. (Tr. 36.) The plaintiff acknowledged that he previously used
10

drugs heavily but said that he went to rehab “to get off of them.” (Tr. 42.) The plaintiff testified that
he smokes cigarettes and “relapsed on [m]arijuana,” but denied drinking alcohol or using cocaine.
(Tr. 39.) He said that he had not used cocaine in the last three years. Id. He said that he had
overdosed in the past in an attempt to commit suicide and, a month before the hearing, had again
attempted to overdose on his “nerve medicine.” (Tr. 37.) He has received counseling and medication
since going to rehab. (Tr. 42.) He indicated that his doctor would adjust his medication and that such
adjustments affected whether he relapsed. (Tr. 42-43.)
The plaintiff testified that, when he has a manic episode, he stays awake for three or four days
at a time and begins to see and hear things that other people do not see or hear. (Tr. 37-38.) He said
that his sleeping medication helps “some” but that sometimes it does not help at all. (Tr. 38.)
The plaintiff said that he takes care of his son, such as taking him to and from the bus stop.
(Tr. 39.) He also mows his lawn, dresses and bathes himself, prepares meals, shops for food and
clothing, and does laundry and dishes. Id. On days when his tics are worse, which he estimated
occurs about three days per week, he does not perform these activities and his wife helps him
instead. (Tr. 43-44.) He relayed that he has a problem “rocking” when sitting and occasionally
stumbles when walking, but can otherwise sit, stand, and walk without difficulty. (Tr. 40.) He said
that he can move large items and lift more than twenty pounds but, when he has tics, his whole body
moves and jerks, making it difficult for him to manipulate fine items. (Tr. 40-41.)
The VE testified that his testimony was consistent with the Dictionary of Occupational Titles
(“DOT”). (Tr. 52.) He classified the plaintiff’s prior work as a plumber’s helper as heavy, semiskilled, with a Specific Vocational Preparation (“SVP”) level of four and as a forklift operator16 as
16

The VE described this job as an “industrial truck operator.” (Tr. 49.)
11

medium, semi-skilled with a SVP level of three.17 (Tr. 49.) The ALJ asked the VE to consider a
hypothetical person with the plaintiff’s age, education, and work experience who
during an eight-hour workday can sit for up to six hours or stand and walk six hours.
Assume that the person can lift fifty pounds occasionally, twenty-five frequently. Can
push or pull to those weights. Assume that the person cannot engage in any fine
manipulation, handling, no fine handling, finger, feeling and reaching. Occasionally,
can do gross handling, finger, feeling and reaching. No working at heights. No
climbing of ladders. No hazardous machinery. Assume that the person can
concentrate for extended periods of time, should have limited contact with the public
and can perform detailed task[s].
Id. The VE replied that such a person could not perform the plaintiff’s past relevant work
“because . . . the manipulation, the reaching, handling and fingering is constant in his other job.”18
Id. The VE testified that there would be work available at the light level meeting those requirements.
Id. The VE identified bakery conveyor line worker and laminating machine offbearer as light,
unskilled occupations with SVP levels of two that could be performed with such an RFC. (Tr. 5051.) The VE also identified the job of election clerk, which he testified was a sedentary, unskilled
job, with limited contact with the public and an SVP of two. (Tr. 52.) The VE indicated that all three
jobs were available in significant numbers in the state and national economies. (Tr. 51-52.) The
plaintiff’s attorney then asked the VE:

17

The SVP “is defined as the amount of elapsed time required by a typical worker to learn
the techniques, acquire the information, and develop the facility needed for average performance in
a specific job-worker situation.” U.S. Dep’t of Labor, Dictionary of Occupational Titles 1009 (4th
ed. 1991). It is measured on a scale from 1-9 on which the higher number assigned to a job, the
greater the length of time that is required to be able to perform the job. Id. An SVP level of four
requires “[o]ver 3 months up to and including 6 months” of training to perform that specific work.
Id. An SVP level of three requires “[o]ver 1 month up to and including 3 months” of training to
perform that specific work.
18

It is unclear to which previous job the VE was referring.
12

Q: Okay. What about the factors of a moderate limitation in concentration, task
performance, and pace? They also define it as irregular or frequent difficulty with
concentration, needs prompting to complete simple tasks within time frames?
A: Well, for any type of occupation, especially the ones I have cited, they are
unskilled. So, if you need prompting on every task that you’re required to do, you're
not going to maintain that employment. On unskilled, there’s a supervisor there, but
there’s not gonna be a supervisor just for an individual.
(Tr. 53-54.)

III. THE ALJ’S FINDINGS
The ALJ issued an unfavorable ruling on July 6, 2010. (Tr. 16-24.) Based upon the record,
the ALJ made the following findings:
1.

The claimant meets the insured status requirements of the Social
Security Act through September 30, 2009.

2.

The claimant has not engaged in substantial gainful activity since
April 14, 2006, the alleged onset date, as amended (20 CFR
404.1571, et seq., and 416.971, et seq.).19
***

3.

The claimant has a severe combination of impairments including:
bipolar disorder, posttraumatic stress disorder, Tourette’s disorder,
polysubstance dependence, and borderline hypertension (20 CFR
404.1520(c) and 416.920(c)). All impairments have been considered
under the standard set forth in Stone v. Heckler, 752 F.2d 1099 (5th
Cir. 1985).

4.

The claimant does not have an impairment or combination of
impairments that meets or medically equals one of the listed
impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR
404.1520,(d), 404.1525, 404.1526, 416.920(d), 416.925 and
416.926).

19

As noted supra at 2, and discussed in more detail infra, the plaintiff amended his alleged
onset date to April 13, 2009. (Tr. 32.)
13

***
5.

After careful consideration of the entire record, the undersigned finds
that the claimant has the residual functional capacity to maintain
employment at the level of lifting and carrying 20 pounds
occasionally and 10 pounds frequently; standing and walking 6 hours
in an 8-hour workday; sitting 6 hours in an 8-hour workday; and no
fine handling, fingering, feeling, and reaching but can occasionally
perform gross handling, fingering, feeling, and reaching. The claimant
can never climb ladders and is to avoid unprotected heights and
hazardous machinery. He can concentrate for an extended period of
time but has a limited ability to interact with the public. Further, the
claimant retains the ability to perform detailed tasks. 20 CFR
404.1567(b) and 416.967(b)
***

6.

The claimant is unable to perform any past relevant work (20 CFR
404.1565 and 416.965).
***

7.

The claimant was born on August 31,1979 and was 26 years old,
which is defined as a younger individual age 18-49, on the alleged
disability onset date (20 CFR 404.1563 and 416.963).

8.

The claimant has a limited education and is able to communicate in
English (20 CFR 404.1564 and 416.964).

9.

Transferability of job skills is not material to the determination of
disability because using the Medical-Vocational Rules as a
framework supports a finding that the claimant is “not disabled,”
whether or not the claimant has transferable job skills (See SSR 82-41
and 20 CFR Part 404, Subpart P, Appendix 2).

10.

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 404.1569, 404.1569(a), 416.969, and 416.969(a)).

11.

The claimant has not been under a disability, as defined in the Social
Security Act, from April 14, 2006, through the date of this decision
(20 CFR 404.1520(g) and 416.920(g)).
14

(Tr. 18-23.)

IV. DISCUSSION
A. Standard of Review
The determination of disability under the Act is an administrative decision, and the only
questions before this Court are whether the decision of the Commissioner is supported by substantial
evidence and whether the Commissioner employed the proper legal standards in reaching his
conclusion. 42 U.S.C. § 405(g). See Richardson v. Perales, 402 U.S. 389, 401, 91 S. Ct. 1420, 28
L. Ed. 2d 842 (1971) (adopting and defining substantial evidence standard in context of Social
Security cases); Kyle v. Comm’r Soc. Sec., 609 F.3d 847, 854 (6th Cir. 2010). The Commissioner’s
decision must be affirmed if it is supported by substantial evidence, “even if there is substantial
evidence in the record that would have supported an opposite conclusion.” Blakely v. Comm’r of Soc.
Sec., 581 F.3d 399, 406 (6th Cir. 2009) (quoting Key v. Callahan, 109 F.3d 270, 273 (6th Cir.
1997)); Jones v. Comm’r of Soc. Sec., 336 F.3d 469, 477 (6th Cir. 2003); Her v. Comm’r of Soc.
Sec., 203 F.3d 388, 389-90 (6th Cir. 1999). Substantial evidence is defined as “more than a mere
scintilla” and “such relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.” Richardson, 402 U.S. at 401 (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229,
59 S. Ct. 206, 83 L. Ed. 126 (1938)); Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 241 (6th Cir.
2007); Le Master v. Weinberger, 533 F.2d 337, 339 (6th Cir. 1976) (quoting Sixth Circuit opinions
adopting language substantially similar to that in Richardson).
A reviewing court may not try the case de novo, resolve conflicts in evidence, or decide
questions of credibility. See, e.g., Garner v. Heckler, 745 F.2d 383, 387 (6th Cir. 1984) (citing Myers
15

v. Richardson, 471 F.2d 1265, 1268 (6th Cir. 1972)). The Court must accept the ALJ’s explicit
findings and determination unless the record as a whole is without substantial evidence to support
the ALJ’s determination. 42 U.S.C. § 405(g). See, e.g., Houston v. Sec’y of Health & Human Servs.,
736 F.2d 365, 366 (6th Cir. 1984).
The Commissioner must employ a five-step evaluation process in determining the issue of
disability. See, e.g., Heston v. Comm’r of Soc. Sec., 245 F.3d 528, 534 (6th Cir. 2001) (citing Abbot
v. Sullivan, 905 F.2d 918, 923 (6th Cir. 1990)). The original burden of establishing disability is on
the plaintiff, and impairments must be demonstrated by medically acceptable clinical and laboratory
diagnostic techniques. See 42 U.S.C. § 1382c(a)(3)(D); 20 C.F.R. §§ 404.1512(a), (c), 404.1513(d).
First, the plaintiff must show that he is not engaged in “substantial gainful activity” at the time he
seeks disability benefits. Id. (citing 20 C.F.R. §§ 404.1520(b), 416.920(b)); Cruse v. Comm’r of Soc.
Sec., 502 F.3d 532, 539 (6th Cir. 2007). A plaintiff who is performing substantial gainful activity
is not disabled no matter how severe the plaintiff’s medical condition may be. See, e.g., Dinkel v.
Sec’y of Health & Human Servs., 910 F.2d 315, 318 (6th Cir. 1990).
Second, the plaintiff must show that he suffers from a severe impairment that meets the
twelve month durational requirement. 20 C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). See also
Edwards v. Comm’r of Soc. Sec., 113 Fed. Appx. 83, 85 (6th Cir. 2004). A “severe impairment” is
one which “significantly limits . . . physical or mental ability to do basic work activities.” Barnhart
v. Thomas, 540 U.S. 20, 24, 124 S. Ct. 376, 157 L. Ed.2d 333 (2003) (citing 20 C.F.R. §§
404.1520(c), 416.920(c)). Basic work activities are “the abilities and aptitudes necessary to do most
jobs,” such as “walking, standing, sitting, lifting, pushing, pulling, reaching, carrying, or handling;
[c]apacities for seeing, hearing, and speaking; [u]nderstanding, carrying out, and remembering
16

simple instructions; [u]se of judgment; [r]esponding appropriately to supervision, co-workers and
usual work situations; and [d]ealing with changes in a routine work setting.” 20 C.F.R.
§ 404.1521(b). The Commissioner is required to consider the combined effects of impairments that
individually are not severe but cumulatively may constitute a severe impairment. 42 U.S.C.
§ 423(d)(2)(B); Foster v. Bowen, 853 F.2d 483, 490 (6th Cir. 1988).
Third, if the plaintiff is not engaging in substantial gainful activity and is suffering from a
severe impairment that has lasted or is expected to last for a continuous period of at least twelve
months, and his impairment meets or equals a listed impairment, the plaintiff is presumed disabled
without further inquiry, regardless of age, education or work experience. Id. (citing 20 C.F.R.
§§ 404.1520(d), 416.920(d)). The plaintiff may establish that he meets or equals a listed impairment,
and that the impairment has lasted or is expected to last for at least twelve months or result in death.
See Listenbee v. Sec’y of Health & Human Servs., 846 F.2d 345, 350 (6th Cir. 1988). The plaintiff
is not required to show the existence of a listed impairment in order to be found disabled, but such
a showing results in an automatic finding of disability. See Blankenship v. Bowen, 874 F.2d 1116,
1122 (6th Cir. 1989).
Fourth, if the plaintiff’s impairment does not prevent him from doing his past relevant work,
he is not disabled. Id. The plaintiff has the burden of proving inability to perform past relevant work,
or proving that a particular past job should not be considered relevant. Cruse, 502 F.3d at 539; Jones,
336 F.3d at 474 (“Through step four, the [plaintiff] bears the burden of proving the existence and
severity of limitations caused by [his] impairments and the fact that [he] is precluded from
performing [his] past relevant work”); Smith v. Sec’y of Health & Human Servs., 893 F.2d 106, 109
(6th Cir. 1989). If the plaintiff fails to carry this burden, he must be denied disability benefits.
17

Once the plaintiff establishes a prima facie case that he is unable to perform his prior relevant
employment, the burden shifts in step five to the Commissioner to show that the plaintiff can
perform other substantial gainful employment, and that such employment exists in significant
numbers in the national economy. Longworth v. Comm’r of Soc. Sec., 402 F.3d 591, 595 (6th Cir.
2005) (quoting Walters v. Comm’r of Soc. Sec., 127 F.3d 525, 529 (6th Cir. 1997)). See also Felisky
v. Bowen, 35 F.3d 1027, 1035 (6th Cir. 1994). To rebut a prima facie case, the Commissioner must
come forward with proof of the existence of other jobs a plaintiff can perform. Longworth, 402 F.3d
at 595. See also Kirk v. Sec’y of Health & Human Servs., 667 F.2d 524, 528 (6th Cir. 1981), cert.
denied, 461 U.S. 957, 103 S. Ct. 2428, 77 L. Ed. 2d 1315 (1983) (upholding the validity of the
medical-vocational guidelines grid as a means for the Commissioner of carrying his burden under
appropriate circumstances). It remains the plaintiff’s burden to prove the extent of his functional
limitations. Her, 203 F.3d at 391. Even if the plaintiff’s impairment does prevent him from doing
his past relevant work, if other work exists in significant numbers in the national economy that the
plaintiff can perform, he is not disabled. Rabbers v. Comm’r of Soc. Sec., 582 F.3d 647, 652 (6th Cir.
2009). See also Tyra v. Sec’y of Health & Human Servs., 896 F.2d 1024, 1028-29 (6th Cir. 1990);
Farris v. Sec’y of Health & Human Servs., 773 F.2d 85, 88-89 (6th Cir. 1985); Mowery v. Heckler,
771 F.2d 966, 969-70 (6th Cir. 1985).
If the question of disability can be resolved at any point in the sequential evaluation process,
the claim is not reviewed further. 20 C.F.R. § 404.1520(a)(4). See also Higgs v. Bowen, 880 F.2d
860, 863 (6th Cir. 1988) (holding that resolution of a plaintiff’s claim at step two of the evaluative
process is appropriate in some circumstances).

18

B. The Five-Step Inquiry
In this case, the ALJ resolved the plaintiff’s claim at step five of the five-step process. At step
one, the ALJ found that the plaintiff had not engaged in substantial gainful activity since his alleged
onset date. (Tr. 18.) At step two, the ALJ determined that the plaintiff had a severe combination of
impairments including bipolar disorder, PTSD, Tourette’s disorder, polysubstance dependence, and
borderline hypertension. Id. At step three, the ALJ found that the plaintiff’s impairments, either
singly or in combination, did not meet or medically equal one of the listed impairments in 20 C.F.R.
Pt. 404, Subpt. P, App. 1. (Tr. 18-19.) At step four, the ALJ determined that the plaintiff was not
capable of performing his past relevant work as a plumber’s helper or industrial truck operator.
(Tr. 22.) At step five, the ALJ determined that the plaintiff could work as a bakery conveyor line
worker, laminating machine operator, or election clerk. (Tr. 22-23.)

C. The Plaintiff’s Assertions of Error
The plaintiff argues generally that the ALJ erred in assessing his credibility and raises a
multitude of issues in support of his argument. Docket Entry No. 16, at 4-9. He also argues that the
ALJ erred in determining his mental RFC. Docket Entry No. 16, at 10.

1. The ALJ properly evaluated the plaintiff’s subjective complaints of symptoms.
The plaintiff contends that the ALJ erred in evaluating his credibility regarding his subjective
complaints. Docket Entry No. 16, at 4. After reviewing the medical evidence, as well as the
plaintiff’s hearing testimony, the ALJ found that:
[T]he claimant’s medically determinable impairments could reasonably be expected
to cause some of the alleged symptoms, but the claimant’s statements concerning the
19

intensity, persistence and limiting effects of these symptoms are not credible to the
extent they are inconsistent with the above residual functional capacity assessment
(SSR 96-7p). The finding of diminished credibility is supported by inconsistencies
between the claimant’s allegations and the paucity of objective medical evidence.
Specifically, the claimant has a history of polysubstance dependence, bipolar
disorder, [and] posttraumatic stress disorder. However, the medical evidence
indicates that with prescribed medication and therapy, his symptoms improved. For
example, in February of 2008, the claimant reported he was compliance [sic] with
medications and felt they had been somewhat beneficial and denied any significant
side effects. At the time, he also reported continuing to work. . . . In August 2009, the
claimant [reported] the Celexa had been helpful in reducing his anxiety. His sleep
and appetite was [sic] good. He further reported experiencing only mild
depression . . . . In December of 2009, he denied any depression but stated that he
was occasionally depressed. He denied any suicidal hallucinations. He reported his
current medications had helped and he was working part time as a plumber. . . . The
recent medical evidence indicates that the claimant was seen for a follow-up visit
after being absent since December of 2009. During this particular visit, the claimant
denied psychotic symptoms. . . . Moreover, the claimant has a history of
polysubstance dependence which contributes to his mental symptoms. In fact, he
testified that he recently relapsed on using marijuana.
The undersigned notes that the claimant has also been diagnosed with borderline
hypertension. However, there is no evidence of ongoing treatment for uncontrolled
blood pressure nor is there evidence of any end organ damage related to uncontrolled
blood pressure. He has also been diagnosed with Tourette’s disorder. However, this
impairment has not caused a significant impact on his ability to perform work
-related activities. At the hearing, he testified that he takes prescribed medication for
Tourette’s disorder, which helps.
When evaluating the claimant’s credibility, the undersigned notes that during a
follow-up visit on January 19, 2009, the claimant reported he had lost his job two
weeks prior to the visit because the company went out of business. . . . The evidence
clearly shows that the claimant
The Administrative Law Judge finds that while the evidence regarding the intensity
and persistence of the claimant’s symptoms is partially credible, it is not credible to
the extent that it demonstrates no capability to perform work. The limitations alleged
are only partially consistent with and supported by the objective medical evidence
and other evidence. (SSR 96-7p) The Fifth Circuit, in Falco v. Shalala, 27 F.3d 160,
163 (5th Cir. 1994) stated that “[p]ain constitutes a disabling condition when it is
constant, unremitting, and wholly unresponsive to treatment.” The undersigned
accepts the claimant’s allegations of pain but not to the extent that it prevents him
from performing all work-related activities.
20

(Tr. 21-22.) (Internal citations omitted).
The ALJ is charged with evaluating the credibility of the plaintiff at the hearing, and the
ultimate decision on credibility rests with the ALJ. The ALJ’s credibility finding is entitled to
deference “because of the ALJ’s unique opportunity to observe the [plaintiff] and judge [his]
subjective complaints.” See Buxton v. Halter, 246 F.3d 762, 773 (6th Cir. 2001) (internal citations
omitted). However, “[i]f the ALJ rejects the [plaintiff]’s complaints as incredible, he must clearly
state his reason for doing so.” Wines v. Comm’r of Soc. Sec., 268 F. Supp.2d 954, 958 (N.D. Ohio
2003) (citing Felisky, 35 F.3d at 1036).
Social Security Ruling 96-7p emphasizes that credibility determinations must find support
in the record, and not be based upon the “intangible or intuitive notion[s]” of the ALJ. 1996 WL
374186, at *4. In assessing the plaintiff’s credibility, the ALJ must consider the record as a whole,
including the plaintiff’s complaints, lab findings, information provided by treating physicians, and
other relevant evidence. Id. at *5. The ALJ must explain his credibility determination such that both
the plaintiff and subsequent reviewers will know the weight given to the plaintiff’s statements and
the reason for that weight. Id.
Both the Social Security Administration (“SSA”) and the Sixth Circuit have enunciated
guidelines for use in analyzing a plaintiff’s subjective complaints of pain and other symptoms. See
20 C.F.R. § 404.1529; Felisky, 35 F.3d at 1037. While the inquiry into subjective complaints of
symptoms must begin with the objective medical record, it does not end there. The Sixth Circuit in
Duncan v. Secretary of Health and Human Servs., 801 F.2d 847 (6th Cir. 1986), set forth the basic

21

standard for evaluating such claims.20 The Duncan test has two prongs. The first prong is whether
there is objective medical evidence of an underlying medical condition. Hash v. Comm’r of Soc.
Sec., 309 Fed. Appx. 981, 990 (6th Cir. Feb. 10, 2009) (citing Walters v. Comm’r of Soc. Sec., 127
F.3d 525, 528 (6th Cir. 1997); Felisky, 35 F.3d at 1039). The second prong has two parts:
(1) whether objective medical evidence confirms the severity of the alleged pain arising from the
condition, or (2) whether the objectively established medical condition is of such a severity that it
can reasonably be expected to produce the alleged disabling pain. Id. This test does not require
objective evidence of the pain itself. Duncan, 801 F.2d at 853 (quoting Green v. Schweiker, 749 F.2d
1066, 1071 (3rd Cir. 1984)). Additionally, a plaintiff’s subjective complaints are “not limited to
complaints of pain resulting from physiological impairments,” but may also include symptoms
resulting from mental impairments. Blankenship v. Bowen, 874 F.2d 1116, 1123 (6th Cir. 1989)
(citing 20 C.F.R. § 404.1529).
Initially, the plaintiff argues that the ALJ applied the wrong legal standard in evaluating his
subjective complaints.21 Docket Entry No. 16, at 9. In concluding that the plaintiff’s symptoms were

20

Although Duncan only applied to determinations made prior to 1987, the Sixth Circuit has
since held that Duncan continues to apply to determinations made after 1987. See Felisky, 35 F.3d
at 1039 n.2.
21

The plaintiff also argues that the ALJ erred when evaluating the severity of his impairments
by citing to Stone v. Heckler, 752 F.2d 1099 (5th Cir. 1985). (Tr. 18.) Docket Entry No. 16, at 9. In
Stone, the Fifth Circuit set forth the following standard for determining the severity of an
impairment: “[A]n impairment can be considered as not severe only if it is a slight abnormality
[having] such minimal effect on the individual that it would not be expected to interfere with the
individual’s ability to work, irrespective of age, education or work experience.” 752 F.2d at 1101
(quoting Estran v. Heckler, 745 F.2d 340, 340-41 (5th Cir. 1984)). The plaintiff has not explained
how this standard differs from the Sixth Circuit’s standard, and the Court discerns no difference. See
Higgs v. Bowen, 880 F.2d 860, 862 (6th Cir. 1988) (“[A]n impairment can be considered not severe
only if it is a slight abnormality that minimally affects work ability regardless of age, education, and
experience.”). See also Salmi v. Sec’y of Health & Human Servs., 774 F.2d 685, 691-92 (6th Cir.
22

partially credible but were not credible to the extent that they precluded all work, the ALJ cited
Falco v. Shalala, 27 F.3d 160, 163 (5th Cir. 1994), for the proposition that “[p]ain constitutes a
disabling condition when it is constant, unremitting, and wholly unresponsive to treatment.” (Tr. 22.)
The plaintiff has not explained how this citation differs from Sixth Circuit case law. Regardless, the
ALJ did not evaluate the plaintiff’s subjective complaints under this “standard,” but merely cited it
as additional support for his conclusions. The ALJ specifically noted that he evaluated the plaintiff’s
symptoms under the requirements set forth in 20 C.F.R. §§404.1529, 416.929 and Social Security
Rulings 96-4p and 96-7p. (Tr. 19-20.) Although the ALJ did not explicitly cite Duncan, the Sixth
Circuit has held that “analysis under these regulations is not inconsistent with the standards . . . set
forth in Duncan” and that “an ALJ who follows the requirements of 20 C.F.R. § 404.1529 does not
commit error by failing to explicitly follow Duncan.” Pasco v. Comm’r of Soc. Sec., 137 Fed. Appx.
828, 835 (6th Cir. 2005) (citing Baranich v. Barnhart, 128 Fed. Appx. 481, 483 (6th Cir. 2005);
McCoy v. Chater, 81 F.3d 44, 47 (6th Cir. 1995)). Accordingly, the Court concludes that the ALJ
applied the correct legal standard and will review the ALJ’s analysis under the Duncan test.
There is objective evidence of underlying medical conditions to the extent that the plaintiff
has been diagnosed with bipolar disorder, PTSD, Tourette’s disorder, polysubstance dependence,
and borderline hypertension. (Tr. 293, 296, 300, 398, 405, 409.) Given that the second prong of the
Duncan test consists of two alternatives, the plaintiff must meet only one of the following two
elements: the objective medical evidence confirms the severity of the alleged pain or other symptoms
arising from the condition or the objectively established medical condition is of such a severity that

1985). Moreover, the plaintiff has not ascribed any fault to the ALJ in his listing of the plaintiff’s
impairments. Consequently, he is not entitled to relief on this ground.
23

it can reasonably be expected to produce the alleged disabling pain or other symptoms. Felisky, 35
F.3d at 1039 (quoting Duncan, 801 F.2d at 853). The SSA provides a checklist of factors to assess
a plaintiff’s symptoms in 20 C.F.R. § 404.1529(c). The ALJ cannot ignore a plaintiff’s statements
detailing the intensity or persistence of his symptoms simply because current objective medical
evidence does not fully corroborate the plaintiff’s statements. 20 C.F.R. § 404.1529(c)(2). Besides
reviewing medical records to address the credibility of a plaintiff’s symptoms, an ALJ must review
the entire case record in light of the seven factors set forth in 20 C.F.R. § 404.1529(c)(3).22
Here, the ALJ reviewed the plaintiff’s testimony that he takes medication for his medical
impairments, that he has manic episodes of sleeplessness, and that he smokes and has relapsed with
marijuana but does not use alcohol or cocaine. (Tr. 20.) The ALJ also reviewed the plaintiff’s
testimony that he takes care of his son by taking him to the bus stop and picking him up, that he
mows the lawn, dresses and bathes himself, shops for food and clothing, and cooks and washes
dishes. Id. The ALJ then summarized certain pertinent medical records, including the plaintiff’s
original visit to Volunteer on March 23, 2007, at which he was diagnosed with polysubstance
dependence, bipolar disorder, PTSD, and borderline hypertension. Id. The ALJ also summarized
treatment notes from August 24, 2009, December 28, 2009, and April 1, 2010, generally highlighting
that the plaintiff reported mild symptoms and that his medication was helping. (Tr. 20-21.) The ALJ
noted the plaintiff’s reports on these occasions of difficulty sleeping, mild and occasional depression,

22

The seven factors under 20 C.F.R. § 404.1529(c)(3) include: (I) the plaintiff’s daily
activities; (ii) the location, duration, frequency, and intensity of the plaintiff’s symptoms;
(iii) precipitating and aggravating factors; (iv) the type, dosage, effectiveness and side effects of any
medication the plaintiff takes or has taken to alleviate his symptoms; (v) treatment, other than
medication, plaintiff received or has received for relief of his symptoms; (vi) any measures plaintiff
uses or has used to his symptoms; and (vii) other factors concerning plaintiff’s functional limitations
and restrictions due to his symptoms.
24

racing thoughts, mild irritability, and difficulty concentrating. The ALJ also noted that the claimant
was assigned a GAF score of 60 on April 1, 2010.23 (Tr. 21.)
After summarizing the plaintiff’s testimony and medical record, the ALJ concluded that the
plaintiff’s medically determinable impairments could reasonably be expected to cause some of his
alleged symptoms, but that his statements concerning the intensity, persistence, and limiting effects
of these symptoms were not credible to the extent they were inconsistent with his RFC. (Tr. 21.)
The ALJ listed several reasons for reaching this conclusion. First, the ALJ noted that the
plaintiff’s symptoms improved when he complied with prescribed medication and therapy. Id. The
ALJ noted several instances ranging from February 2008, until April 2010, when the plaintiff either
reported that his medication had helped relieve his symptoms or denied having significant symptoms.
Id.

23

A GAF score is not dispositive, but can be helpful, in assessing an individual’s mental
RFC. Kornecky v. Comm’r of Soc. Sec., 167 Fed. Appx. 496, 503 n.7 (6th Cir. Feb. 9, 2006) (quoting
DSM-IV-TR 34 (4th ed. 2000)). See also Kennedy v. Astrue, 247 Fed. Appx. 761, 766 (6th Cir.
Sept. 7, 2007); DeBoard v. Comm’r of Soc. Sec., 211 Fed. Appx. 411, 415 (6th Cir. Dec. 15, 2006).
As explained in Kornecky:
GAF is a clinician’s subjective rating, on a scale of zero to 100, of an individual’s
overall psychological functioning. At the low end, GAF 1-10 indicates “[p]ersistent
danger of severely hurting self or others (e.g., recurrent violence) or persistent
inability to maintain personal hygiene or serious suicidal act with clear expectation
of death.” At the high end, GAF 91-100 indicates “[s]uperior functioning in a wide
range of activities, life’s problems never seem to get out of hand, is sought out by
others because of his or her many positive qualities. No symptoms.” A GAF score
may help an ALJ assess mental RFC, but it is not raw medical data. Rather it allows
a mental health professional to turn medical signs and symptoms into a general
assessment, understandable by a lay person, of an individual’s mental functioning.
167 Fed. Appx. at 503 n.7 (quoting DSMV-IV-TR at 34) (internal notations omitted).
25

The plaintiff argues that the ALJ improperly considered a medical treatment note from
Volunteer on February 26, 2008, in which he reported that he had been compliant with medication
and felt that it had been “somewhat beneficial” and not caused side effects. (Tr. 21.) Docket Entry
No. 16, at 6. The plaintiff argues that the ALJ should not have considered this evidence because it
predates his alleged onset date of April 13, 2009.24 Docket Entry No. 16, at 6. However, a plaintiff’s
medical history, as well as the effectiveness and side effects of medication, are relevant factors for
an ALJ to consider when assessing the intensity and persistence of a plaintiff’s symptoms. See 20
C.F.R. § 404.1529(c)(1), (3). While the focus of the ALJ’s inquiry should be on the relevant period
of disability, see Heston v. Comm’r of Soc. Sec., 245 F.3d 528, 536 (6th Cir. 2001), the Sixth Circuit
has explained that evidence “predating the onset of disability, when evaluated in combination with
later evidence, may help establish disability.” DeBoard v. Comm’r of Soc. Sec., 211 Fed. Appx. 411,
414 (6th Cir. 2006). The fact that the plaintiff’s symptoms were historically controlled with
medication and that the medication did not cause side effects were relevant factors for the ALJ to
consider. Importantly, the ALJ did not review the February 2008 note in isolation. Instead, he also
cited later treatment notes from August 2009, December 2009, and April 2010, in which the plaintiff
made substantially similar reports, i.e., denying major symptoms and reporting that medication
helped relieve his symptoms. (Tr. 21.) The ALJ was permitted to review the plaintiff’s medical

24

The Court notes that, while the ALJ recorded in his decision that the plaintiff amended the
alleged onset date to April 13, 2009 (tr. 16), his findings reflect the original alleged onset date of
April 14, 2006. (Tr. 18, 22-23.) Thus, it is unclear which alleged onset date the ALJ used in his
decision. The general rule appears to be that, absent a showing of prejudice, “an error in the alleged
onset of disability is not itself a basis for remand.” Ehrob v. Comm’r of Soc. Sec., 2011 WL 977514,
at *6 (E.D. Mich. March 17, 2011). The plaintiff did not address this discrepancy in his brief or
argue any specific prejudice arising from the alleged onset date used by the ALJ.
26

history in this manner, and the Court finds no error in the ALJ’s citation to the February 2008
treatment note.
The plaintiff also argues that the ALJ misstated the medical evidence when he cited a
treatment note from Volunteer on August 24, 2009. Docket Entry No. 16, at 6-7. The ALJ noted that,
on that date, the plaintiff reported “Celexa had been helpful in reducing his anxiety. His sleep and
appetite was good. He further reported experiencing only mild depression.” (Tr. 21.) The plaintiff
argues that the ALJ failed to consider the whole record, pointing out that the plaintiff also reported
to Volunteer that “the last few days, his tics ha[d] been worse,” that “they are worse when [he] has
more stress” and that he was “[h]aving some irritability, mild depression, and . . . racing thoughts”
that interfered with his ability to concentrate. Docket Entry No. 16, at 6-7. (Tr. 408.)
When summarizing the medical record, the ALJ discussed the August 24, 2009 treatment
note in greater detail and specifically mentioned the plaintiff’s reports of irritability and racing
thoughts. (Tr. 20.) Additionally, the portions of the note cited by the plaintiff are not inconsistent
with the portions highlighted by the ALJ. The plaintiff testified at the hearing that his tics were worse
on some days than others. (Tr. 43-44.) The fact that his tics were worse in the days preceding
August 24, 2009, does not contradict the plaintiff’s report that Celexa had been “helpful to reduce
his tics and anxiety.” The ALJ was entitled to rely on this evidence in reaching his decision.
Similarly, the plaintiff argues that the ALJ failed to consider the whole record when he cited
an April 1, 2010 treatment note from Volunteer and noted that the plaintiff denied having psychotic
symptoms on that date. Docket Entry No. 16, at 7. (Tr. 21.) The plaintiff contends that the ALJ
ignored that, on that date, he also reported that his tics had been “driving him crazy,” causing him
to accidently overdose on lorazepam, that he had been referred to a Tourette’s specialist, and that he
27

demonstrated “continuous rocking, rubbing legs, and phonic tics.” Docket Entry No. 16, at 7.
(Tr. 397.) Here again, when reciting the plaintiff’s medical history, the ALJ provided greater detail
regarding the April 1, 2010, treatment note. (Tr. 20-21.) For example, the ALJ also noted that, on
that date, the plaintiff was:
seen for a follow-up visit after being absent since December of 2009. A mental status
examination showed the claimant’s appearance was neat and clean. He was alert and
oriented x 4. His concentration was mildly impaired. He exhibited no psychomotor
retardation or agitation. His eye contact was good. His mood was reported as
euthymic. His speech was normal rate, rhythm, articulation, prosody, and volume.
The claimant denied suicidal ideation and homicidal ideation. He denied psychotic
symptoms, including auditory hallucinations and visual hallucinations. His insight
and judgment were unimpaired. The claimant was diagnosed with bipolar disorder,
posttraumatic stress disorder, Tourette’s disorder, polysubstance dependence, and
borderline hypertension. The claimant was assigned a Global Assessment of
Functioning (GAF) score of 60.
Id. The ALJ clearly considered this treatment note in its entirety and concluded that the plaintiff’s
complaints were not as severe as he alleged. While the plaintiff has cited portions of the note that
may weigh against the ALJ’s conclusion, the note ultimately supports the ALJ’s characterization.
The ALJ did not err in referring to the April 1, 2010 treatment note.
As further support for his conclusion that the plaintiff’s symptoms were not as severe as
alleged, the ALJ noted that the plaintiff’s Tourette’s disorder did not create “a significant impact on
his ability to perform work-related activities.” The plaintiff argues that the ALJ’s conclusion is
contradicted by the plaintiff’s testimony that he stopped working in April 2009 because his tics had
gotten worse. Docket Entry No. 16, at 7-8. (Tr. 35.)
Although the plaintiff points to evidence supporting his position, there is nevertheless
substantial evidence supporting the ALJ’s conclusion. For example, on April 13, 2009, the plaintiff
reported that he was not having tics that day, but that some days were better than others. (Tr. 415.)
28

On June 15, 2009, his tics were present in “only moderate intensity.” (Tr. 411.) On August 24, 2009,
the plaintiff reported that Celexa had been “helpful to reduce his tics and anxiety;” however, he also
indicated that, in the preceding few days, his tics had been worse. (Tr. 408.) On December 28, 2009,
he reported that his current medications had helped. (Tr. 405.) He did not return to Volunteer until
April 1, 2010, when he reported that his tics had been “driving him crazy,” leading him to take extra
medication. (Tr. 397.) The plaintiff was referred to a Tourette’s specialist; however, he never
presented to the specialist. (Tr. 45, 397.) None of the plaintiff’s doctors or mental health care
providers opined that he was functionally limited by Tourette’s disorder. The ALJ nevertheless
included a limitation in the plaintiff’s RFC for contact with the public, presumably due to the
plaintiff’s testimony that he could not work because people stared at him, making him
uncomfortable. (Tr. 19.) The Court concludes that the ALJ did not err in reaching his conclusions
regarding the plaintiff’s Tourette’s disorder.
As other reasons supporting his credibility determination, the ALJ noted that, while the
plaintiff has a history of polysubstance dependence that contributes to his mental health symptoms,
he continued to relapse. (Tr. 21.) Additionally, the ALJ noted that, although the plaintiff had been
diagnosed with borderline hypertension, there was no evidence of end organ damage. Id. The
plaintiff does not contest these findings.
The ALJ also gave “some” weight to the opinions of Dr. Kupstas and Dr. Phay, the nonexamining consultative psychologists. (Tr. 22.) In his Psychiatric Review Technique, Dr. Kupstas
found mild limitations in the activities of daily living and maintaining social functioning, and
moderate limitations in maintaining concentration, persistence, or pace. (Tr. 22, 381-91.) In his RFC
assessment, Dr. Kupstas found that the plaintiff had moderate limitations in sustaining concentration
29

and persistence. (Tr. 377-79.) Dr. Phay later “affirmed” Dr. Kupstas’ RFC after finding no new
allegations, treatment, or worsening.25 (Tr. 395.)
Additionally, the ALJ attempted to provide another reason for discounting the plaintiff’s
credibility. However, he apparently omitted a portion of his analysis:
When evaluating the claimant’s credibility, the undersigned notes that during a
follow-up visit on January 19, 2009, the claimant reported he had lost his job two
weeks prior to the visit because the company went out of business. . . . The evidence
clearly shows that the claimant
(Tr. 21.) Without finishing this sentence, the ALJ moved on to his conclusion that the plaintiff’s
complaints were only partially credible. The plaintiff argues that ALJ’s omission is an “obvious
error” entitling him to remand. Docket Entry No. 16, at 9. The Commissioner urges the Court to infer
the ALJ’s reasoning to be that the “plaintiff’s inability to work was not based on an impairment and
his allegations of disability [were] not persuasive to the extent alleged.” Docket Entry No. 17, at 17.
The ALJ’s error here appears to be clerical in nature. He failed to complete a sentence. The
question is whether that error requires remand or whether it is harmless. When an ALJ finds that a
plaintiff’s complaints are not credible, he is required to “clearly state his reasons for doing so.”
Felisky v. Bowen, 35 F.3d 1027, 1036 (6th Cir. 1994). As to this specific reason, the ALJ obviously
did not clearly state his rationale, and the Court declines to infer the ALJ’s rationale. However, the
Court must review the record as a whole. Berry v. Comm’r of Soc. Sec., 289 Fed. Appx. 54, 55-56
(6th Cir. Aug. 8, 2008). The ALJ provided several other reasons for discounting the plaintiff’s
subjective complaints. Omitting the flawed reason entirely, the ALJ nevertheless provided sufficient

25

The Court addresses the ALJ’s reliance on the opinions of the DDS consultants in more
detail below.
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additional reasons for his decision. The Court thus concludes that the ALJ’s clerical error was
harmless.
In sum, there is substantial evidence in the record to support the ALJ’s finding that the
plaintiff’s alleged symptoms limited but did not preclude him from all work. The ALJ appropriately
considered several of the factors outlined in 20 C.F.R. § 404.1529(c)(3), including the plaintiff’s
daily activities, the frequency and intensity of his symptoms, the effectiveness and side effects of
medication, and precipitating and aggravating factors such as running out of medication and
substance abuse.26 The ALJ then sufficiently stated his reasons for discounting the plaintiff’s
credibility. In his memorandum, the plaintiff parses each statement made by the ALJ and disputes
the ALJ’s reasons in isolation from one another. However, when viewed as a whole, the ALJ’s
decision provides sufficient reasons to support his credibility finding. Although the ALJ made a
clerical error in stating one of his reasons, that error is harmless because the ALJ provided several
other sufficient reasons. Therefore, the Court concludes that the ALJ’s conclusion regarding the
plaintiff’s subjective complaints is supported by substantial evidence in the record.

2. The ALJ erred in formulating the plaintiff’s RFC.
The plaintiff next argues that the ALJ did not give good reasons for finding that he could
perform detailed tasks and concentrate for extended periods of time and that such conclusions are
contrary to the evidence. Docket Entry No. 16, at 10. (Tr. 19.) The Commissioner’s argument on this

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The plaintiff argues that the ALJ’s diminished credibility finding was based “solely” on
the lack of objective medical evidence. Docket Entry No. 16, at 5-6 (citing 20 C.F.R. § 404.1529 and
Soc. Sec. Rul. 96-7p). However, as discussed in detail above, while the ALJ did find support for his
credibility finding in the “paucity of objective medical evidence” (tr. 21), he did not base his decision
solely on this factor but also considered several of the appropriate factors in section 404.1529(c).
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issue is hard to discern, but it appears to be that the plaintiff’s limitations in these areas were not
significant enough to warrant inclusion in his RFC. Docket Entry No. 17, at 17-19.
A CRG assessment completed by Volunteer staff on December 28, 2009, rated the plaintiff
as having moderate difficulty with concentration, performance, and pace due to “racing thoughts.”27
(Tr. 402-404.) Likewise, in his Psychiatric Review Technique, Dr. Kupstas opined that the plaintiff
had moderate difficulties in maintaining concentration, persistence, or pace. (Tr. 391.) Additionally,
in the summary portion of his mental RFC assessment, Dr. Kupstas indicated that the plaintiff was
moderately limited in two areas pertaining to sustained concentration and pace: (1) the ability to
maintain attention and concentration for extended periods; and (2) the ability to perform activities
within a schedule, maintain regular attendance, and be punctual within customary tolerances.
(Tr. 377.) Somewhat confusingly, Dr. Kupstas explained, in the functional capacity assessment
portion of his RFC, that the plaintiff was “able to sustain CPP over extended periods for simple
tasks, detailed [with] some difficulty at times, but still can do so.” (Tr. 379.) Dr. Kupstas’ assessment
was later “affirmed” by Dr. Phay. (Tr. 395.)
The ALJ’s hypothetical question asked the VE to consider a person who could concentrate
for extended periods of time and perform detailed tasks. (Tr. 49.) Upon questioning by the plaintiff’s
attorney, the VE indicated that if someone had moderate limitations in the areas of concentration,
task performance, and pace, then the jobs the VE identified would be unavailable to that person.
(Tr. 53-54.) In the ALJ’s final decision, the plaintiff’s RFC reflected that he was able to concentrate
for extended periods of time and perform detailed tasks. (Tr. 20.)

27

Earlier CRG assessments completed by Volunteer staff rated the plaintiff as having
moderate limitations in the same areas due to hallucinations, memory problems, and reported
anxiety. (Tr. 422, 461.)
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The ALJ was not required to include limitations in his hypothetical question that were not
supported by the record or not credible. See Casey v. Sec’y of Health & Human Servs., 987 F.2d
1230, 1235 (6th Cir. 1993) (“It is well established that an ALJ may pose hypothetical questions to
a vocational expert and is required to incorporate only those limitations accepted as credible by the
finder of fact.”). However, in order for the VE’s testimony in response to a hypothetical question to
serve as substantial support for the conclusion that the plaintiff can perform other work, the
hypothetical must accurately portray the plaintiff’s physical and mental impairments. Ealy v. Comm’r
of Soc. Sec., 594 F.3d 504, 516 (6th Cir. Feb. 5, 2010).
The record on this issue is sparse. The CRG assessments completed by Volunteer staff reflect
moderate limitations. However, the ALJ did not address these assessments in his decision.
Additionally, while Dr. Kupstas found that the plaintiff had moderate limitations in maintaining
attention and concentration for extended periods, he modified those limitations somewhat by noting
that the plaintiff could maintain concentration, persistence, or pace over extended periods for simple
tasks but had more difficulty with detailed tasks. The ALJ’s decision, however, did not address these
aspects of Dr. Kupstas’ opinions. The RFC that the ALJ provided for the plaintiff merely concluded
that the plaintiff has an unlimited ability to concentrate for extended periods of time and perform
detailed tasks without addressing countervailing evidence or providing further explanation.
Compounding matters, while the ALJ gave “some weight” to the opinions of the DDS physicians
(tr. 22), he did not explain which portions of their opinions he credited and which portions he
discounted or the reasons for the weight given. The ALJ’s discussion of the weight he afforded the
state medical sources is completely lacking in specificity or analysis. See Gayheart v. Comm’r of

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Soc. Sec., __F.3d __, 2013 WL 896255, at *13 (6th Cir. Mar. 12, 2013) (noting that an ALJ should
rigorously scrutinize the opinions of nontreating and nonexamining sources).
The Court is thus limited in its review due to the ALJ’s failure to adequately articulate the
weight that he gave the state medical sources. If the ALJ accepted the opinions of the state medical
sources that the plaintiff had moderate limitations in the areas of concentration, persistence, and
pace, and particular difficulties performing detailed tasks, then he should have incorporated those
limitations into his hypothetical question and RFC. Otherwise, the ALJ’s hypothetical question to
the VE and RFC do not accurately reflect the plaintiff’s impairments. See Ealy, 594 F.3d at 516. On
the other hand, if the ALJ concluded that the limitations found by the state medical sources were not
fully credible or supported by the record, then he should have clearly explained his reasons for so
determining. As the decision stands, the Court cannot discern why the ALJ concluded that the
plaintiff did not suffer any limitations regarding concentration or the ability to perform detailed tasks
when the state medical sources, to whom the ALJ gave some weight, determined that he did suffer
such limitations. Consequently, the Court cannot determine whether substantial evidence supports
the ALJ’s decision.
Accordingly, the Court recommends that the case be remanded. On remand, the ALJ should
clarify and explain in greater detail the weight that he gives the state medical sources. Further, he
should consider and explain whether he finds support for the specific limitations identified by the
state medical sources. To the extent that the ALJ finds these limitations supported by the record, he
should incorporate them into the plaintiff’s RFC assessment.

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V. RECOMMENDATION
For the above stated reasons, it is recommended that the plaintiff’s motion for judgment on
the record (Docket Entry No. 15) be GRANTED to the extent that the case should be REMANDED.
Any objections to this Report and Recommendation must be filed with the Clerk of Court
within fourteen (14) days of service of this Report and Recommendation, and must state with
particularity the specific portions of this Report and Recommendation to which the objection is
made. Failure to file written objections within the specified time can be deemed a waiver of the right
to appeal the District Court’s order. See Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed. 2d
435 (1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).

Respectfully submitted,

JULIET GRIFFIN
United States Magistrate Judge

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