Gilbert v. Social Security Administration

Filing 18

REPORT AND RECOMMENDATION: The undersigned recommends that Plaintiff's Motion for Judgment on the Administrative Record be DENIED, and that the decision of the Commissioner be AFFIRMED. Signed by Magistrate Judge E. Clifton Knowles on 10/31/2014. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(eh)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
PAMELA ANN GILBERT,

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Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Defendant.

Civil Action No. 3:13-cv-0130
Judge Nixon / Knowles

REPORT AND RECOMMENDATION
This is a civil action filed pursuant to 42 U.S.C. § 405(g), to obtain judicial review of the
final decision of the Commissioner of Social Security denying Plaintiff Supplemental Security
Insurance (“SSI”), as provided under Title XVI of the Social Security Act (“the Act”), as
amended. The case is currently pending on Plaintiff’s Motion for Judgment on the
Administrative Record. Docket No. 12. Defendant has filed a Response, arguing that the
decision of the Commissioner was supported by substantial evidence and should be affirmed.
Docket No. 13. Plaintiff has filed a Reply. Docket No. 14-1.
For the reasons stated below, the undersigned recommends that Plaintiff’s Motion for
Judgment on the Administrative Record be DENIED, and that the decision of the Commissioner
be AFFIRMED.
I. INTRODUCTION
Plaintiff filed her application for SSI on October 6, 2009, with a protective filing date

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oalleging that she had been disabled since September 30, 2008, due to depression, hepatitis C,
diabetes, arthritis, asthma, acid reflux, and high blood pressure. See, e.g., Docket No. 10,
Attachment (“TR”), pp. 52, 53, 118, 139. Plaintiff’s application was denied both initially (TR
52) and upon reconsideration (TR 53). Plaintiff subsequently requested (TR 66) and received
(TR 86) a hearing. Plaintiff’s hearing was conducted on September 29, 2011, by Administrative
Law Judge (“ALJ”) Donald E. Garrison. TR 28-51. Plaintiff and Vocational Expert, Rebecca
Williams, appeared and testified. Id.
On October 31, 2011, the ALJ issued a decision unfavorable to Plaintiff, finding that
Plaintiff was not disabled within the meaning of the Social Security Act and Regulations. TR
11-23. Specifically, the ALJ made the following findings of fact:
1.

The claimant has not engaged in substantial gainful activity
since September 11, 2009, the application date (20 CFR
416.971 et seq.).

2.

The claimant has the following severe impairments:
Degenerative joint disease of the right knee, asthma,
obesity, diabetes mellitus, degenerative disc disease of the
lumbar spine, and bipolar disorder. (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 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 light work as defined in 20
CFR 416.967(b) except she is limited to walking or
standing 20 minutes at a time and limited to two hours each
of standing or walking; sitting two hours at a time; no
climbing of ladders, ropes or scaffolds; only occasional
kneeling, crouching, and crawling; frequent climbing stairs
and ramps, balancing, and stooping; frequent operating a
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motor vehicle, humidity and wetness, exposure to dust,
odors, fumes, and pulmonary irritants, extreme cold, and
extreme heat; occasional contact with the public; and
understanding, remembering, and carrying out short and
simple instructions and making judgments on simple workrelated decisions.
5.

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

6.

The claimant was born on August 30, 1977 and was 32
years old, which is defined as a younger individual age 1849, on the date the application was filed (20 CFR 416.963).

7.

The claimant is illiterate 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 September 11, 2009, the date
the application was filed (20 CFR 416.920(g)).

TR 16-22.
On December 26, 2011, Plaintiff timely filed a request for review of the hearing decision.
TR 7. On January 10, 2013, the Appeals Council issued a letter declining to review the case (TR
1-3), thereby rendering the decision of the ALJ the final decision of the Commissioner. This
civil action was thereafter timely filed, and the Court has jurisdiction. 42 U.S.C. § 405(g). If the
Commissioner’s findings are supported by substantial evidence, based upon the record as a
whole, then these findings are conclusive. Id.
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II. REVIEW OF THE RECORD
The parties and the ALJ have thoroughly summarized and discussed the medical and
testimonial evidence of Record. Accordingly, the Court will discuss those matters only to the
extent necessary to analyze the parties’ arguments.
III. CONCLUSIONS OF LAW
A. Standard of Review
This Court’s review of the Commissioner’s decision is limited to the record made in the
administrative hearing process. Jones v. Secretary, 945 F.2d 1365, 1369 (6th Cir. 1991). The
purpose of this review is to determine (1) whether substantial evidence exists in the record to
support the Commissioner’s decision, and (2) whether any legal errors were committed in the
process of reaching that decision. Landsaw v. Secretary, 803 F.2d 211, 213 (6th Cir. 1986).
“Substantial evidence” means “such relevant evidence as a reasonable mind would accept
as adequate to support the conclusion.” Her v. Commissioner, 203 F.3d 388, 389 (6th Cir. 1999)
(citing Richardson v. Perales, 402 U.S. 389, 401 (1971)). “Substantial evidence” has been
further quantified as “more than a mere scintilla of evidence, but less than a preponderance.”
Bell v. Commissioner, 105 F.3d 244, 245 (6th Cir. 1996) (citing Consolidated Edison Co. v.
N.L.R.B., 305 U.S. 197, 229, 59 S.Ct. 206, 216, 83 L.Ed. 126 (1938)).
The reviewing court does not substitute its findings of fact for those of the Commissioner
if substantial evidence supports the Commissioner’s findings and inferences. Garner v. Heckler,
745 F.2d 383, 387 (6th Cir. 1984). In fact, even if the evidence could also support a different
conclusion, the decision of the Administrative Law Judge must stand if substantial evidence
supports the conclusion reached. Her, 203 F.3d at 389 (citing Key v. Callahan, 109 F.3d 270,
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273 (6th Cir. 1997). However, if the Commissioner did not consider the record as a whole, the
Commissioner’s conclusion is undermined. Hurst v. Secretary, 753 F.2d 517, 519 (6th Cir. 1985)
(citing Allen v. Califano, 613 F.2d 139, 145 (6th Cir. 1980) (citing Futernick v. Richardson, 484
F.2d 647 (6th Cir. 1973))).
In reviewing the decisions of the Commissioner, courts look to four types of evidence:
(1) objective medical findings regarding Plaintiff’s condition; (2) diagnosis and opinions of
medical experts; (3) subjective evidence of Plaintiff’s condition; and (4) Plaintiff’s age,
education, and work experience. Miracle v. Celebrezze, 351 F.2d 361, 374 (6th Cir. 1965).
B. Proceedings At The Administrative Level
The claimant carries 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 last for a continuous
period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A). “Substantial gainful activity” not
only includes previous work performed by Plaintiff, but also, considering Plaintiff’s age,
education, and work experience, any other relevant work that exists in the national economy in
significant numbers regardless of whether such work exists in the immediate area in which
Plaintiff lives, or whether a specific job vacancy exists, or whether Plaintiff would be hired if he
or she applied. 42 U.S.C. § 423(d)(2)(A).
At the administrative level of review, the claimant’s case is considered under a five-step
sequential evaluation process as follows:
(1) If the claimant is working and the work constitutes substantial
gainful activity, benefits are automatically denied.

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(2) If the claimant is not found to have an impairment which
significantly limits his or her ability to work (a “severe”
impairment), then he or she is not disabled.
(3) If the claimant is not working and has a severe impairment, it
must be determined whether he or she suffers from one of the
“listed” impairments1 or its equivalent. If a listing is met or
equaled, benefits are owing without further inquiry.
(4) If the claimant does not suffer from any listing-level
impairments, it must be determined whether the claimant can
return to the job he or she previously held in light of his or her
residual functional capacity (e.g., what the claimant can still do
despite his or her limitations). By showing a medical condition
that prevents him or her from returning to such past relevant work,
the claimant establishes a prima facie case of disability.
(5) Once the claimant establishes a prima facie case of disability,
the burden shifts to the Commissioner to establish the claimant’s
ability to work by proving the existence of a significant number of
jobs in the national economy which the claimant could perform,
given his or her age, experience, education, and residual functional
capacity.
20 C.F.R. §§ 404.1520, 416.920 (footnote added). See also Moon v. Sullivan, 923 F.2d 1175,
1181 (6th Cir. 1990).
The Commissioner’s burden at the fifth step of the evaluation process can be satisfied by
relying on the medical-vocational guidelines, otherwise known as “the grid,” but only if the
claimant is not significantly limited by a nonexertional impairment, and then only when the
claimant’s characteristics identically match the characteristics of the applicable grid rule.
Otherwise, the grid cannot be used to direct a conclusion, but only as a guide to the disability
determination. Id. In such cases where the grid does not direct a conclusion as to the claimant’s
disability, the Commissioner must rebut the claimant’s prima facie case by coming forward with
1

The Listing of Impairments is found at 20 C.F.R., Pt. 404, Subpt. P, App. 1.
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particularized proof of the claimant’s individual vocational qualifications to perform specific
jobs, which is typically obtained through vocational expert testimony. See Varley v. Secretary,
820 F.2d 777, 779 (6th Cir. 1987).
In determining residual functional capacity for purposes of the analysis required at stages
four and five above, the Commissioner 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).
C. Plaintiff’s Statement Of Errors
Plaintiff contends that the ALJ erred in: (1) finding that Plaintiff retained the residual
functional capacity to perform the full range of light work; (2) minimizing Plaintiff’s mental
impairments; (3) failing to classify Plaintiff’s major depressive disorder, degenerative joint
disease, degenerative disc disease, asthma, hypertension, hepatitis C, and anemia as severe
impairments and not providing adequate reasoning as to why those conditions were not
considered to be severe; and (4) improperly evaluating Plaintiff’s credibility. Docket No. 12-1.
Accordingly, Plaintiff maintains that, pursuant to 42 U.S.C. § 405(g), the Commissioner’s
decision should be reversed, or in the alternative, remanded. Id.
Sentence four of § 405(g) states as follows:
The court shall have power to enter, upon the pleadings and
transcript of the record, a judgment affirming, modifying, or
reversing the decision of the Commissioner of Social Security,
with or without remanding the cause for a rehearing.
42 U.S.C. §§ 405(g), 1383(c)(3).
“In cases where there is an adequate record, the Secretary’s decision denying benefits can

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be reversed and benefits awarded if the decision is clearly erroneous, proof of disability is
overwhelming, or proof of disability is strong and evidence to the contrary is lacking.” Mowery
v. Heckler, 771 F.2d 966, 973 (6th Cir. 1985). Furthermore, a court can reverse the decision and
immediately award benefits if all essential factual issues have been resolved and the record
adequately establishes a plaintiff's entitlement to benefits. Faucher v. Secretary, 17 F.3d 171,
176 (6th Cir. 1994). See also Newkirk v. Shalala, 25 F.3d 316, 318 (1994).
1. Residual Functional Capacity (“RFC”)
Plaintiff first argues that the ALJ erred in his determination of her RFC by assigning her
an RFC of light work, because he found her to be “limited to walking or standing 20 minutes at a
time and limited to 2 hours each of standing or walking and sitting two hours at a time,” which
inherently precludes her from being able to perform light work as it is defined. Docket No. 12-1,
p. 7, referencing TR 18. Plaintiff also argues that, when determining her RFC, the ALJ
improperly minimized her right knee osteoarthritis, diabetes mellitus, and chronic orthopedic
impairments. Id. at 7-8. Plaintiff additionally argues that, when determining her RFC, the ALJ
improperly accorded significant weight to the report of consultative examiner Woodrow Wilson,
M.D. Id. at 8. Plaintiff contends that since Dr. Wilson was not a treating physician and his
consultative examination report was “not consistent with the objective medical evidence,” the
ALJ should not have accorded his report significant weight. Id.
Defendant responds that Plaintiff’s argument that the ALJ found that she retained the
residual functional capacity to perform the full range of light work is “factually incorrect,” as the
ALJ did not find that Plaintiff could perform the full range of light work, but rather, only a
limited subset of light work that did not require her to exceed her physical limitations. Docket
8

No. 13, p. 9. Defendant notes that the ALJ actually found that Plaintiff could do light work
“except she is limited to walking or standing 20 minutes at a time and limited to two hours each
of standing or walking; sitting two hours at a time; no climbing of ladders, ropes or scaffolds;
only occasional kneeling, crouching, and crawling; frequent climbing stairs and ramps,
balancing, and stooping; frequent operating a motor vehicle, humidity and wetness, exposure to
dust, odors, fumes, and pulmonary irritants, extreme cold, and extreme heat . . . .” Id., quoting
TR 18 (italics original). Defendant also notes that Plaintiff’s citation of SSR 83-10 to support
her argument is misplaced, as SSR 83-10 concerns the application of the Medical-Vocational
Guidelines, which is inapplicable since the ALJ relied on a VE, not the Medical-Vocational
Guidelines. Id. Defendant further responds that: (1) the ALJ’s RFC determination was properly
based on substantial evidence; (2) the ALJ expressly relied upon the opinions of Drs. Wilson and
Gregory; (3) Dr. Allison concurred with Dr. Gregory, thereby adding further support to the ALJ’s
finding; (4) Dr. Wilson’s findings were consistent with the opinions of Drs. Gregory and Allison;
and (5) the medical opinions of Drs. Wilson, Gregory, and Allison constitute substantial evidence
supporting the ALJ’s finding. Id. at 9-10. Defendant notes that Plaintiff has not identified any
medical opinion supporting her alleged disability and/or her assertion of error. Id. at 10.
Plaintiff replies that, although Defendant is correct that the ALJ limited her work to a
subset of light work, the ALJ’s RFC determination was, nevertheless, “overly optimistic”
considering the severity of her impairments. Docket No. 14-1 at 2. With regard to Defendant’s
assertions that the ALJ properly relied upon the opinions of Drs. Wilson and Gregory, and that
Plaintiff failed to identify any medical opinion that supports her allegations, Plaintiff argues that
she “should not be prejudiced due to any failure of obtaining a Medical Source Statement,”
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because “[t]here are numerous physicians whose policy prohibits the completion of such
statements.” Id. Plaintiff contends that the “evidence as a whole would show a combination of
severe impairments such that [she] would be incapable of the RFC given by the ALJ or even a
sedentary RFC.” Id.
“Residual Functional Capacity” is defined as the “maximum degree to which the
individual retains the capacity for sustained performance of the physical-mental requirements of
jobs.” 20 C.F.R. Pt. 404, Subpt. P, App. 2 § 200.00(c). With regard to the evaluation of physical
abilities in determining a claimant’s Residual Functional Capacity, the Regulations state:
When we assess your physical abilities, we first assess the nature
and extent of your physical limitations and then determine your
residual functional capacity for work activity on a regular and
continuing basis. A limited ability to perform certain physical
demands of work activity, such as sitting, standing, walking,
lifting, carrying, pushing, pulling, or other physical functions
(including manipulative or postural functions, such as reaching,
handling, stooping or crouching), may reduce your ability to do
past work and other work.
20 C.F.R. § 404.1545(b).
While Plaintiff contends that the “evidence as a whole would show a combination of
severe impairments such that [she] would be incapable of the RFC given by the ALJ” (Docket
No. 14-1 at 2), the record contains physician evaluations, medical assessments, and test results
that were properly considered by the ALJ when determining Plaintiff’s “residual functional
capacity for work activity on a regular and continuing basis.” For example, the ALJ discussed
Plaintiff’s medical records as follows:
The medical record indicates the claimant was diagnosed with
Hepatitis C in 2001. The record indicates that hepatitis C has
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precipitated an associated splenomegally [sic] (Ex. 9F, p 14) as
well as elevated liver enzymes. Both the medical record and the
claimant’s testimony indicate that the Hepatitis C and associated
splenomegaly do not significantly limit her ability to perform basic
work activities.
The medical record also indicates the claimant has had
thrombocytopenia on occasion with platelet counts of 72, 89, and
135 ((Ex 17F, p1)(Ex. 10F,p16)(Ex14F,p16)). Other submitted
platelet counts are within normal range ((Ex 9F, p13)(Ex. 10F,
p21)). Records do not indicate specific treatment for
thrombocytopenia and the undersigned finds that it does not
significantly limit her ability to perform basic work activities.
The medical record indicates that the claimant has hypertension as
well. There is nothing in the record that indicates any
complications due to hypertension or related heart problems.
The medical record further indicates an iron deficient anemia. The
record indicates Hgb levels of between 10.0 and 12.4 with normal
stated ranges of between 11.5 and 15 ((Ex. 2F, p13) (Ex. 17F, p1)
(Ex.9F, p13) (Ex.14F, p19)). Records do not indicate specific
treatment for iron deficient anemia and the undersigned finds that
the claimant’s hepatitis C, thrombocytopenia, and anemia are not
severe.
...
The medical record and testimony shows that the claimant was
diagnosed with asthma and carries and uses an Albuterol inhaler.
She testified that the inhaler helps some, but she has chronic
bronchitis. She is unaware of any pulmonary function studies and
has never been to the emergency room or hospitalized for asthma
related complications. Therefore, the limitations in the residual
functional capacity are considered appropriate for this impairment.
The claimant complains that the two daily shots of insulin for
diabetes mellitus limit her ability such that she “can’t hardly do
nothing” (sic). However, the medical record does not indicate any
side effects from taking insulin shots. The claimant also testified
that she has not been fully compliant in attempting to control the
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diabetes mellitus, at least occasionally eating candy by the handful
(Ex. 16F,p37). The claimant further reports that all her
medications cause chronic drowsiness. The claimant testified that
her blood sugar is frequently high, sometimes as high as 500 and
this causes drowsiness as well. There is no reported end organ
damage in the record as a complication of diabetes mellitus. The
claimant complains of chronic knee and back pain. The claimant
also claims that she cannot take pain medication because her
platelets are low and she cannot afford to fill the prescriptions.
The medical record does not support these claims or that the
claimant has asked to change medications to avoid side effects.
...
. . . The claimant claims that her knees buckle frequently due to
degenerative joint disease of the right knee. While the claimant
has sought treatment in the emergency room for knee and back
pain, the August 2010 x-ray confirms only mild patellar
osteoarthritic change (ex. 14F, 18). The claimant did not submit
any diagnostic imaging reports on her back. In fact, the claimant
also reported that she was not seeking treatment to correct her
alleged knee pain (Ex. 16F, p37.). The claimant reported that she
had no back pain in February 2010 (Ex. 9f, p8).
TR 16-17, 19-20, citing TR 242, 291, 296, 297, 314, 319, 344, 346, 347, 400, 406.
With regard to the opinions of Drs. Wilson and Gregory, the ALJ discussed their findings
as follows:
The undersigned gives significant weight to the opinion of
Woodrow Wilson, M.D. insofar as it is consistent with the above
residual functional capacity with regard to lifting/carrying. His
consultative assessment indicated that the claimant is limited to 20
minutes of walking or standing at one time and up to two hours
each per 8 hour work day, can lift up to 20 pounds frequently and
50 pounds occasionally, and is only limited to working in
environments not involving ladders or scaffolds. Other limitations
that Dr. Wilson stated were only occasional kneeling, crouching,
and crawling; frequent stairs ramps, balancing, and stooping; and
frequent operating a motor vehicle, humidity and wetness,
exposure to dust, odors, fumes, and pulmonary irritants, extreme
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cold, and extreme heat (ex. 6F). The undersigned also gives
significant weight to the opinion by Dr. James P. Gregory MD (the
non-examining State agency consultant). This was largely
identical with the exception that the claimant should avoid
concentrated exposure to fumes (ex. 8F).
TR 20, citing TR 265-70, 275-83.
As evidenced in the quoted passages above, when determining Plaintiff’s RFC, the ALJ
discussed Plaintiff’s reports and medical records concerning, inter alia, her hepatitis C,
thrombocytopenia, hypertension, anemia, asthma and chronic bronchitis, diabetes mellitus and
insulin use, degenerative joint disease, knee pain, and back pain. Along with his discussion of
Plaintiff’s subjective reports and those medical records, the ALJ also discussed Plaintiff’s
medications, their reported side effects, etc. Moreover, with regard to the ALJ’s discussion of
the opinions of Drs. Wilson and Gregory, the ALJ expressly stated that Dr. Wilson’s opinion was
consistent with Plaintiff’s assigned RFC, and that Dr. Gregory’s opinion was consistent with that
of Dr. Wilson.
The ALJ evaluated all of the objective medical evidence of record, as well as Plaintiff’s
subjective complaints and reported level of activity, and determined that Plaintiff retained the
RFC to perform “light work . . . except she is limited to walking or standing 20 minutes at a time
and limited to two hours each of standing or walking; sitting two hours at a time; no climbing of
ladders, ropes or scaffolds; only occasional kneeling, crouching, and crawling . . . .” TR 18
(emphasis removed). The ALJ’s RFC determination was supported by substantial evidence, and
the ALJ appropriately articulated his analysis of the objective and testimonial evidence of record;
therefore, the ALJ properly evaluated the evidence in reaching this RFC determination, and

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Plaintiff’s argument fails.
As to Plaintiff’s assertion that she should not be prejudiced for her failure to provide a
medical source statement, there is no evidence in the record that her failure to provide such a
statement prejudiced her. In fact, the ALJ simply stated, “as there are no treating physicians that
indicate a finding of disability, the residual functional capacity is supported by the opinions of
Drs. Wilson, Gregory, and Curry, the medical evidence, and the record as a whole.” TR 21. The
ALJ’s referenced statement merely indicates that he found the opinions of the cited doctors and
the medical records to be more compelling, given their consistency with each other and with the
evidence of record, and absent a contradictory opinion from Plaintiff’s treating source. Because
there is substantial evidence in the record to support the ALJ’s RFC determination, the ALJ’s
determination stands.
2. Plaintiff’s Mental Impairments
Plaintiff maintains that the ALJ failed to consider the “debilitating effects” of her “major
depressive disorder, recurrent” on her ability to work. Docket No. 12-1 at 8. Plaintiff also
argues that the ALJ “minimized [her] severe mental impairments and failed to include major
depressive disorder, recurrent as a severe impairment and erred by not stating why he did not find
it to be a severe impairment.” Id. at 9.
Defendant responds that the ALJ properly considered the evidence of record and notes
that the ALJ’s decision was supported by substantial evidence. Docket No. 13. Specifically,
Defendant argues that the ALJ’s decision regarding Plaintiff’s mental impairments/limitations
was supported by the opinions of Dr. Curry and Nurse Burke, and Defendant notes that the

14

opinion of Dr. Sachs was likewise in concurrence. Id. At 12-13. Defendant also responds that
Plaintiff’s statement of error “merely recounts portions of the medical evidence and of her own
claims of subjectively disabling symptoms”; “she does not identify any medical opinions of
disabling functional limitations or any evidence that the ALJ erred.” Id. at 13. With regard to
Plaintiff’s subjective allegations, Defendant responds that the ALJ was not bound to accept her
allegations because the ALJ found Plaintiff’s allegations to be inconsistent with the evidence and
her reported daily activities, and therefore, to be less than fully credible. Id. at 15, citing TR 1920.
Plaintiff replies that there is evidence to support her mental limitations. Docket No. 14-1.
Specifically, she notes that she had Global Functional Assessment scores of 45, and that she
reported her subjective complaints to her treating providers “for treating purposes only and not
for purposes of a social security hearing.” Id.
The ALJ found that Plaintiff’s mental impairments were not of listing level severity, and
ultimately determined that she was capable of “occasional contact with the public; and
understanding, remembering, and carrying out short and simple instructions and making
judgments on simple work-related decisions.” TR 17, 18. In so doing, the ALJ discussed
Plaintiff’s mental health as follows:
In terms of the claimant’s alleged bi-polar disorder, medical reports
and the claimant’s testimony reveal that there was a remote suicide
attempt in 2007, yet there have been no suicidal ideations indicated
in the medical record for a substantial period since then. The
claimant testified that she is taking Paxil and Trazodone for
depression and insomnia but the claimant’s history of psychiatric
treatment includes several missed and canceled appointments and
lack of compliance with prescription medications (ex 1F, 16F).
15

The claimant has gone for long periods without seeing her mental
healthcare provider (ex. 1F, 16F). In November 2009, the claimant
indicated that “the way her mother treated her has led to her not
being able to work” (ex. 3F, p2).
...
Dorothy Burke, APRN., completed a Clinically Related Group
evaluation (CRG) that the claimant is in group 1 as a “person with
severe and persistent mental illness.” At that time, Ms. Burke had
not seen the claimant in quite some time as the claimant had
missed and canceled several appointments and was not in
compliance with medication (Ex. 16F). When the claimant was
back in compliance with medication and therapy, Ms. Burke stated
that there was no mental health reason for this claimant not to be
able to work. (Ex. 16F, p38). Though Ms. Burke is not an
acceptable medical opinion according to Social Security Ruling 063p, her opinion (at Ex. 16F, p38) is not inconsistent with the
medical evidence.
The claimant had a GAF score of exactly 45 nine times since April
of 2009 (ex. 16F). The undersigned finds that this does not suggest
an entirely objective opinion since the scores do not reflect the
positive and negative developments in between assessments. In
fact, the medical record reflects changes in the claimant that would
be expected to change an objective GAF score for the better or
worse. Furthermore, the GAF score is an un-standardized
hypothetical continuum of health. Effectively, it is a snapshot of
the instant that a claimant comes to seek medical attention and not
indicative of other times. Therefore, the undersigned gives little
weight to the GAF score from Ms. Burke.
Dr. Mason D. Curry, Ph.D. (the State agency consultant) completed
a mental residual functional capacity assessment. The undersigned
gives significant weight to his opinion as well. Dr. Curry indicates
that the claimant has the ability to understand and remember
simple and detailed instructions, the claimant has the ability to
maintain attention and concentration for periods of at least 2 hours,
the claimant has the ability to relate appropriately to the public,
peers, and supervisors, the claimant can adapt to infrequent change,
and is consistent with medical evidence.
TR 20-21, citing TR 183-229, 246, 261-64, 364-405.
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The ALJ also discussed the effect of Plaintiff’s mental impairments on her daily activities
as follows:
In activities of daily living, the claimant has mild restriction. The
claimant has indicated that she is able to wash dishes and wash
clothes. She states that she would be willing to do other
housework if she knew how. She states that she goes outside daily
and is able to walk, ride in a car, or use public transportation to get
around. She is able to shop three hours at a time. Additionally, the
clamant indicates that these hobbies have not changed since the
alleged disability began (Ex. 4).
In social functioning, the claimant has moderate difficulties. The
claimant attends church regularly and she claims that she gets
along with family friends and neighbors (Ex. 4E). Medical records
indicate that she is “social and out in the community” (Ex. 16F, p.
31). However, the claimant has indicated that she stays inside the
home most of the time and cries. She also stated that she has
contemplated suicide (Testimony). The record shows that the
claimant has had an attempted overdose more than a year prior to
the alleged onset date of disability, but the claimant has shown no
indications of suicidal ideations since then (Ex. 1F).
With regard to concentration, persistence or pace, the claimant has
moderate difficulties. The claimant states that she can pay
attention “ok,” but cannot follow written or spoken instructions
well. She also states that she is not proficient in county money and
she does not handle change or stress well. The claimant has also
indicated that she does need help remembering certain
appointments as well as handling her finances (Ex. 4E).
...
The claimant also complains that depression and/or other mental
deficiencies cause her to remain in her home and frequently cry
most of the day. However, the claimant indicated that she has a
range of daily activities consisting of swimming, housework,
watching television, shopping, and going to church [sic]

17

TR 17-19, referencing TR 41, 151-58, 183-229, 364-405.
As can be seen, the ALJ discussed Plaintiff’s medical records, including treatment notes
from Volunteer Behavior Health Care System (TR 183-229, 364-405), relating to her depression
and overall mental health treatment, as well as Plaintiff’s subjective complaints regarding her
mental limitations and their effects on her daily life, demonstrating that he considered the impact
and severity of her mental impairments. TR 17-21.
Despite Plaintiff’s contention that her GAF scores indicated that her mental limitations
were severe, as can be seen in the quoted passages above, the ALJ clearly articulated why he did
not find Plaintiff’s GAF scores to be compelling evidence regarding the severity of her mental
impairments. TR 21. Moreover, GAF scores are not determinative of disability for Social
Security purposes. In fact, the Social Security Administration has declined to endorse the GAF
scale for “use in the Social Security and SSI disability programs,” and has indicated that GAF
scores have no “direct correlation to the severity requirements in [the] mental disorders listings.”
Revised Medical Criteria for Evaluating Mental Disorders and Traumatic Brain Injury, 65 Fed.
Reg. 50746-01 (August 21, 2000). Although “the GAF is a test used by mental health
practitioners with respect to planning treatment and tracking the clinical progress of an individual
in global terms, the ALJ is not bound to consider its results at the exclusion of other medically
reliable evidence.” Alvarez v. Barhart, 2002 WL 31466411, at *8 (W.D. Tex. Oct. 2, 2002).
Nor is a GAF score determinative of an individual’s RFC assessment. Id. (“A GAF score is not a
rating typically relied upon with respect to assessing an individual’s RFC under the Act.”); see
also Howard v. Commissioner, 276 F.3d 235, 241 (6th Cir. 2002) (GAF score is not essential in
assessing RFC). Accordingly, Plaintiff’s contention that her GAF scores constitute substantial
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evidence supporting the severity of her mental impairments is unavailing.
The ALJ assessed the objective and testimonial evidence of record and reached a
reasoned decision; he articulated the basis for that decision; and his decision was supported by
substantial evidence; Plaintiff’s contention regarding the ALJ’s evaluation of her mental
impairments fails.
3. Severity of Impairments
Plaintiff argues that the ALJ did not appropriately evaluate the severity of all of her
impairments. Docket No. 12-1 at 9. Specifically, Plaintiff argues that the ALJ minimized the
severity of her chronic orthopedic impairments and also failed to recognize as severe her
diagnoses of asthma, hypertension, hepatitis C, and anemia. Id. Plaintiff also argues that the ALJ
failed to provide sufficient reasons for not finding them to be severe. Id.
Defendant generally responds that the ALJ discussed Plaintiff’s diagnoses and her
subjective complaints, the evidence relating to each, the effects on Plaintiff’s daily activities, and
properly evaluated her impairments. Docket No. 13, passim. Defendant further responds that
“Plaintiff misapprehends the purpose of the severity requirement,” as the severity requirement “is
a screening devise to dispose of groundless claims.” Id. at 13, citing Bowen v. Yuckert, 482 U.S.
137, 141; 20 CFR § 416.921. Defendant notes that the severity requirement is a threshold
requirement which Plaintiff passed. Id., at 13-14. Defendant contends that because the ALJ
determined that Plaintiff did have some severe impairments (and therefore continued on to the
next step in the sequential evaluation process), the ALJ’s determination that Plaintiff’s asthma,
hypertension, hepatitis C and anemia were nonsevere is “immaterial.” Id. Defendant notes after

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finding that Plaintiff satisfied the severity requirement and proceeding with the sequential
disability analysis, the ALJ considered all of the functional limitations established by reliable
evidence, not just the ones he identified as severe. Id. at 14. Defendant summarizes:
In sum, Plaintiff’s argument concerning the severity requirement is
moot because she satisfied that requirement. To the extent that
Plaintiff intends to argue that certain of her impairments were
disabling and were improperly assessed by the ALJ, Plaintiff failed
to carry her administrative burden of proving such disabling
limitations and failed to show that the ALJ’s assessment of her
functional limitations was unsupported by substantial evidence.
Again, Plaintiff cannot fault the ALJ for her own lack of evidence.
Id. at 14-15.
While Plaintiff does not specifically address this statement of error in her Reply, she does
note that: “The evidence as a whole would show a combination of severe impairments such that
the claimant would be incapable of the RFC given by the ALJ or even a sedentary RFC.” Docket
No. 14-1, p. 2.
As an initial matter, when an ALJ finds that a claimant has at least one severe impairment
and proceeds to complete the sequential evaluation process, the ALJ’s failure to find that another
condition is a severe impairment cannot constitute reversible error. See Maziarz v. Secretary, 837
F.2d 240, 244. Consequently, when an ALJ finds that a claimant has at least one severe
impairment and proceeds to complete the sequential evaluation process, the ALJ’s failure to
explain why he did not find other impairments to be severe likewise cannot constitute reversible
error.
The ALJ in the case at bar expressly found that Plaintiff had the following severe

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impairments: degenerative joint disease of the right knee, asthma, obesity, diabetes mellitus,
degenerative disc disease of the lumbar spine, and bipolar disorder. TR 16. Because the ALJ
found that Plaintiff did have severe impairments and continued on with the sequential evaluation
process, Plaintiff’s argument on this point fails.
4. Credibility of Subjective Complaints
Plaintiff contends that the ALJ violated SSR 96-7p because he did not specifically state
whether or not he found her testimony to be credible, and did not specifically state the amount of
weight he assigned to her testimony. Docket No. 12-1 at 9-11. Plaintiff argues that “the ALJ
merely stated that he used the criteria outlined in SSR 96-7p in reaching his decision, rather than
specifically stating the weight he gave to the claimant’s statements and the reasons for that
weight. . . .” Id. at 10. Plaintiff also contends that the ALJ erred in detracting from her
credibility “based on the fact that she has been able to perform some activity on a very minimal
basis.” Id. at 11. Plaintiff argues, “By focusing on these few activities of daily living, the ALJ
ignored the medical evidence which shows that the Plaintiff is disabled.” Id.
Defendant responds that, contrary to Plaintiff’s assertion, the ALJ specifically found that
Plaintiff’s allegations of disabling symptoms were “not credible.” Docket No. 13 at 17, quoting
TR 19. Defendant also responds that “the ALJ gave multiple, specific reasons to support his
credibility finding,” including, inter alia, the fact that Plaintiff’s allegations of disabling
symptoms were inconsistent with, and unsupported by, the medical evidence, her reported daily
activities, and statements she made. Id. at 15-16, citing TR 18-20. Defendant further responds
that the ALJ also discussed the fact that Plaintiff had missed or cancelled many therapy

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appointments and had been non-compliant with her medication. Id. at 16. Defendant contends
that the ALJ did not simply discount Plaintiff’s credibility in a conclusory manner, but rather, he
based his findings on numerous reasons, each of which he articulated in his decision. Id. at 1519. Defendant maintains that the reasons proffered by the ALJ in his discounting of Plaintiff’s
credibility were proper considerations; that the ALJ appropriately explained his credibility
findings; and that his credibility determination was supported by substantial evidence. Id.
Plaintiff does not specifically address this statement of error in her Reply. See Docket
No. 14-1.
The Sixth Circuit has set forth the following criteria for assessing a plaintiff’s subjective
allegations:
[S]ubjective allegations of disabling symptoms, including pain,
cannot alone support a finding of disability...[T]here must be
evidence of an underlying medical condition and (1) there must be
objective medical evidence to confirm the severity of the alleged
pain arising from the condition or (2) the objectively determined
medical condition must be of a severity which can reasonably be
expected to give rise to the alleged pain.
Duncan v. Secretary, 801 F.2d 847, 853 (6th Cir. 1986) (quoting S. Rep. No. 466, 98th Cong., 2d
Sess. 24) (Emphasis added); see also 20 C.F.R. §§ 404.1529, 416.929 (“[S]tatements about your
pain or other symptoms will not alone establish that you are disabled....”); and Moon v. Sullivan,
923 F.2d 1175, 1182-83 (“[T]hough Moon alleges fully disabling and debilitating
symptomology, the ALJ, may distrust a claimant’s allegations...if the subjective allegations, the
ALJ’s personal observations, and the objective medical evidence contradict each other.”).
When analyzing the claimant’s subjective complaints, the ALJ must also consider the
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following factors and how they relate to the medical and other evidence in the record: the
claimant’s daily activities; the location, duration, frequency and intensity of claimant’s
symptoms; the precipitating and aggravating factors; the type, dosage and effect of medication;
and the other treatment or measures to relieve disabling symptoms. See Felisky v. Bowen, 35
F.3d 1027, 1039 (6th Cir. 1994) (construing 20 C.F.R. § 404.1529(c)(2)). After evaluating these
factors in conjunction with the evidence in the record, and by making personal observations of
the claimant at the hearing, an ALJ may determine that a claimant’s subjective complaints of pain
and other disabling symptoms are not credible. See, e.g., Walters v. Commissioner, 127 F.3d
525, 531 (6th Cir. 1997); Blacha v. Secretary, 927 F.2d 228, 230 (6th Cir. 1990); and Kirk v.
Secretary, 667 F.2d 524, 538 (6th Cir. 1981).
The ALJ in the instant action determined:
After careful consideration of the evidence, the undersigned finds
that the claimant’s medically determinable impairments could
reasonably be expected to cause the alleged symptoms; however,
the claimant’s statements concerning the intensity, persistence and
limiting effects of these symptoms are not credible to the extent
they are inconsistent with the above residual functional capacity
assessment. Most specifically, the objective medical evidence does
not support them. They are also inconsistent with her daily
activities. The record as a while does not indicate that the claimant
has had any combination of impairments that has made the
claimant unable to work for any period of twelve consecutive
months.
TR 19-20 (Emphasis added).
Specifically, the ALJ explained:
The medical record and testimony shows that the claimant was
diagnosed with asthma and carries and uses an Albuterol inhaler.
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She testified that the inhaler helps some, but she has chronic
bronchitis. She is unaware of any pulmonary function studies and
has never been to the emergency room or hospitalized for asthma
related complications. . . .
The claimant complains that the two daily shots of insulin for
diabetes mellitus limit her ability such that she “can’t hardly do
nothing” (sic). However, the medical record does not indicate any
side effects from taking insulin shots. The claimant also testified
that she has not been fully compliant in attempting to control the
diabetes mellitus, at least occasionally eating candy by the handful
(Ex. 16F,p37). The claimant further reports that all her
medications cause chronic drowsiness. The claimant testified that
her blood sugar is frequently high, sometimes as high as 500 and
this causes drowsiness as well. There is no reported end organ
damage in the record as a complication of diabetes mellitus. The
claimant complains of chronic knee and back pain. The claimant
also claims that she cannot take pain medication because her
platelets are low and she cannot afford to fill the prescriptions.
The medical record does not support these claims or that the
claimant has asked to change medications to avoid side effects.
The claimant also complains that depression and/or other mental
deficiencies cause her to remain in her home and frequently cry
most of the day. However, the claimant indicated that she has a
range of daily activities consisting of swimming, housework,
watching television, shopping, and going to church [sic]
...
The claimant testified that she is unable do [sic] housework and
relies on her roommate to do much of it. However, as recently as
November 22, 2010, she has been helping to care for at least one
child (ex. 16F, pp 10, 33). The claimant also indicated that she
does do housework (Ex. 16F, p27). The claimant claims that her
knees buckle frequently due to degenerative joint disease of the
right knee. While the claimant has sought treatment in the
emergency room for knee and back pain, the August 2010 x-ray
confirms only a mild patellar osteoarthritic change (ex. 14F, 18).
The claimant did not submit any diagnostic imaging reports on her
back. In fact, the claimant also reported that she was not seeking
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treatment to correct her alleged knee pain (Ex. 16F, p37.). The
claimant reported that she had no back pain in February 2010 (Ex.
9f, p8).
In terms of the claimant’s alleged bi-polar disorder, medical reports
and the claimant’s testimony reveal that there was a remote suicide
attempt in 2007, yet there have been no suicidal ideations indicated
in the medical record for a substantial period since then. The
claimant testified that she is taking Paxil and Trazodone for
depression and insomnia but the claimant’s history of psychiatric
treatment includes several missed and canceled appointments and
lack of compliance with prescription medications (ex. 1F, 16F).
The claimant has gone for long periods without seeing her mental
heathcare provider (ex. 1F, 16F). In November 2009, the claimant
indicated that “the way her mother treated her has led to her not
being able to work” (ex. 3F, p2).
Id., citing TR 183-229, 245-46, 291, 329-47, 364-405.
As can be seen, the ALJ’s decision specifically addresses not only the medical evidence,
but also Plaintiff’s testimony and her subjective claims, clearly indicating that these factors were
considered. Id. It is clear from the ALJ’s articulated rationale that, although there is evidence
which could support Plaintiff’s claims, the ALJ chose to rely on medical findings that were
inconsistent with Plaintiff’s allegations. Plaintiff’s argument that the ALJ inappropriately relied
solely on Plaintiff’s daily activities and “ignored the medical evidence,” is, therefore, unavailing.
Docket No. 12-1 at 11.
The ALJ, when evaluating the entirety of the evidence, is entitled to weigh the objective
medical evidence against Plaintiff’s subjective claims and reach a credibility determination. See,
e.g., Walters, 127 F.3d at 531; and Kirk v. Secretary, 667 F.2d 524, 538 (6th Cir. 1981). An
ALJ’s findings regarding a claimant’s credibility are to be accorded great weight and deference,
particularly because the ALJ is charged with the duty of observing the claimant’s demeanor and
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credibility. Walters, 127 F.3d at 531 (citing Villarreal v. Secretary, 818 F.2d 461, 463 (6th Cir.
1987)). Discounting credibility is appropriate when the ALJ finds contradictions among the
medical reports, the claimant’s testimony, the claimant’s daily activities, and other evidence. See
Walters, 127 F.3d at 531 (citing Bradley, 682 F.2d at 1227; cf King v. Heckler, 742 F.2d 968,
974-75 (6th Cir. 1984); and Siterlet v. Secretary, 823 F.2d 918, 921 (6th Cir. 1987)). If the ALJ
rejects a claimant’s testimony as not credible, however, the ALJ must clearly state the reasons for
discounting a claimant’s testimony (see Felisky, 35 F.3d at 1036), and the reasons must be
supported by the record (see King, 742 F.2d at 975).
The ALJ observed Plaintiff during her hearing, assessed the medical records, and
reached a reasoned decision; the ALJ’s findings are supported by substantial evidence and the
decision not to accord full credibility to Plaintiff’s allegations was proper. Therefore, this claim
fails.
IV. RECOMMENDATION
For the reasons discussed above, the undersigned recommends that Plaintiff’s Motion for
Judgment on the Administrative Record be DENIED, and that the decision of the Commissioner
be AFFIRMED.
Under Rule 72(b) of the Federal Rules of Civil Procedure, any party has fourteen (14)
days after service of this Report and Recommendation in which to file any written objections to
this Recommendation with the District Court. Any party opposing said objections shall have
fourteen (14) days after service of any objections filed to this Report in which to file any
response to said objections. Failure to file specific objections within fourteen (14) days of

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service of this Report and Recommendation can constitute a waiver of further appeal of this
Recommendation. See Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L. Ed. 2d 435 (1985),
reh’g denied, 474 U.S. 1111 (1986); 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72.

________________________________
E. CLIFTON KNOWLES
United States Magistrate Judge

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