Rasmussen v. Social Security Administration et al
MEMORANDUM OPINION signed by Chief Judge Waverly D. Crenshaw, Jr on 7/13/2017. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(ab)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
ROBERT LEE RASMUSSEN, JR.
Acting Commissioner of Social Security,
Chief Judge Crenshaw
Pending before the Court is Robert Lee Rasmussen, Jr.’s Motion for Judgment on the
Administrative Record 1 (Doc. No. 16), filed with a Memorandum in Support (Doc. No. 17). The
Commissioner of Social Security has filed a Response in Opposition. (Doc. No. 20). On February
26, 2015, this case was referred to the Magistrate Judge for, inter alia, a Report and
Recommendation on disposition of the Complaint for judicial review of the Social Security
Administration’s decision. (Doc. No. 3). The Court hereby withdraws that referral. Upon
consideration of the parties’ filings and the transcript of the administrative record (Doc. No. 10) 2
and for the reasons set forth below, Plaintiff’s Motion will be denied.
Plaintiff applied for Disability Insurance Benefits (“DIB”) under Title II of the Social
Security Act in May 2011, alleging a disability onset of April 1, 2010. (A.R. 127-128). His claim
The Court notes that Plaintiff’s counsel inadvertently refers to a different client in the motion.
The Court will reference, hereinafter, the transcript of the administrative record by the abbreviation “A.R.”
The page number citations will refer to the page numbers as set out in the Court Transcript Index. That is,
they will refer to the bold page number at the lower right corner of the page.
was denied both at the initial and reconsideration stages of state agency review. (A.R. 74-76, 8182). Plaintiff subsequently requested a review of his case by an ALJ (A.R. 85-86), who held a
hearing on June 20, 2013 (A.R. 32-71). Among those present at the hearing—physically or via
telephone—were Plaintiff, his attorney, his wife, and an impartial vocational expert. (A.R. 32).
On August 30, 2013, the ALJ issued an unfavorable notice of decision. (A.R. 10-31). That
decision contains the following findings:
1. The [Plaintiff] meets the insured status requirements of the Social Security Act through
December 31, 2015.
2. The [Plaintiff] engaged in substantial gainful activity . . .
3. However, there has been a continuous 12-month period(s) during which the [Plaintiff]
did not engage in substantial gainful activity . . .
4. The [Plaintiff] has the following severe impairments: Bipolar Disorder, with psychosis;
Alcohol Abuse (20 CFR 404.1520(c)).
5. The [Plaintiff] does not have an impairment or combination of impairments that meets
or medically equals the severity of one of the listed impairments in 20 CFR Part 404,
Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525 and 404.1526).
6. After careful consideration of the entire record, . . . the [Plaintiff] has the residual
functional capacity to perform a full range of work at all exertional levels but with the
following nonexertional limitations: He is limited to simple, routine and repetitive tasks
that require no contact with the public, no more than occasional contact with coworkers
and supervisors, and there [sic] workplace changes are no more than infrequent and
7. The [Plaintiff] is unable to perform any past relevant work (20 CFR 404.1565).
The [Plaintiff] was born on May 28, 1954 and was 55 years old, which is defined as
an individual of advanced age, on the alleged disability onset date (20 CFR 404.1563).
9. The [Plaintiff] has at least a high school education and is able to communicate in
English (20 CFR 404.1564).
10. 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
[Plaintiff] is “not disabled,” whether or not the [Plaintiff] has transferable job skills
(See SSR 82-41 and 20 CFR Part 404, Subpart P, Appendix 2).
11. Considering the [Plaintiff’s] age, education, work experience, and residual functional
capacity, there are jobs that exist in significant numbers in the national economy that
the [Plaintiff] can perform (20 CFR 404.1569 and 404.1569(a)).
12. The [Plaintiff] has not been under a disability, as defined in the Social Security Act,
from April 1, 2010, through the date of this decision (20 CFR 404.1520(g)).
On December 19, 2014, the Appeals Council denied Plaintiff’s request for review of the
ALJ’s decision, thereby rendering the ALJ’s decision the final decision of the Commissioner of
Social Security. (A.R. 1.) Thereafter, Plaintiff timely filed this civil action (Doc. No. 1), and this
Court has jurisdiction. 42 U.S.C. § 405(g).
REVIEW OF THE RECORD 3
The following summary of the medical and opinion evidence is derived from the ALJ’s
Exhibits 16-F and 17-F, from Summit Medical Center, was reviewed for historical
purposes. It shows that the claimant was admitted for psychiatric hospitalization
from October 29 to November 4, 2009, and again from November 8-12. It shows
that just prior to the first admission, the claimant had a history of alcoholism, but
had not used any for about two months. At the same time, about two weeks before
admission, he ran out of Celexa, a previously prescribed anti-depressant. His
symptoms accelerated at that point. About one week prior to admission, he also
began hearing a voice that told him that his best friend was dead.
Following the first admission, he was initially stabilized using Abilify, but it was
felt that his release was premature because he was not adequately monitored. He
was readmitted on November 8 because in the interim he became depressed, had
In Plaintiff’s application for disability, he alleged that he could not work due to diabetes mellitus,
schizophrenia with audiology [sic] psychosis, hypertension, hypothyroidism, and high cholesterol. (A.R.
140). The ALJ also considered the following physical impairments (A.R. 16): anemia (A.R. 171), visual
problems (A.R. 179-181), and elevated liver function studies (A.R. 242). At the hearing, Plaintiff’s
representative acknowledged that Plaintiff’s claim for disability mainly rested on his alleged mental
impairments. (A.R. 65). The ALJ made this point in his decision and, having decided that the weight of
evidence did not support a finding in favor of any physical impairments, focused exclusively on Plaintiff’s
mental impairments, with corresponding symptoms and limitations. (A.R. 16-17). For that reason, the
summary of the record that follows does not mention evidence related to alleged physical impairments.
suicidal thoughts, and heard voices. Treatment continued to involve adjustment of
psychotropic medications. The claimant continued to abstain from drinking.
Exhibit 1-F, from James N. Sullivan, M.D. 4 relates to medical encounters and
treatments taking place between August 2005 and May 2011. As such, the bulk of
the items are very remote relative to the alleged onset date. Nonetheless, the
noteworthy items may be summarized belowDate
Claimant states he quit
drinking about three months
before. Physician relates a/v
hallucinations to the alcohol
consumption, noting that such
symptoms are not unusual in
the setting of alcohol
First office encounter since the
(2009). Alleges hallucinations
throughout the day. No
information regarding alcohol
this visit, but see page 54.
Atypical psychosis in the
setting of 4-5 beers daily.
decreased and spouse reports
that psychosis is as good of
control as she has ever seen it.
Here for evaluation on physical
medical conditions. Denies
hallucinations at this point.
Was consuming 6-10 beers
daily, but now alleges 2-3
beers daily or every other day.
Diagnosis includes atypical
hallucinations. Drinking at
least one six-pack of beer
daily. States he could not
Still noted to be
Still noted to be
It appears that the ALJ inadvertently referenced the incorrect physician here. Although the record contains
a medical opinion from James N. Sullivan (A.R. 354-55, Ex. 12F), Exhibit 1F refers to medical records
from Kenneth W. Sullivan, M.D. (A.R. 194-308).
function with medications as
Alleges hearing voices, with
variable control of symptoms
despite prescribed medication;
however, these notes also
indicate he was drinking a sixpack of beer per day. Per Dr.,
his alcohol affects him as far as
these hallucinations are
concerned. Counseled to quit
drinking, but he is having
difficulty in deciding to do
Exhibit 2-F, from Summit Medical Center, relates to an incident on May 19, 2011
in which the claimant reported a blow to the head with a corresponding 3.0 cm
laceration. The incident is mentioned only for informational purposes as the
circumstances leading to the injury were left unspecified, there was no indication
or evidence of brain trauma, and there is also no mention of mental dysfunction. It
is also unclear whether alcohol was a factor in the incident. The claimant would
later testify that because of a blood sugar imbalance, he fell with the head striking
the corner of his bed, thus causing the laceration.
Exhibit 3-F reflects that on August 3, 2011, the claimant presented to Deborah E.
Doineau, Ed.D. for purposes of a mental consultative evaluation. Although Dr.
Doineau was unable to determine whether the claimant was malingering, she noted
inconsistencies in the claimant’s statements which were enough to provide her with
pause. The claimant stated that he started hearing voices after not drinking for
about three days. He was not taking any medications for the hallucinations, at least
not initially. He remained sober for about six months, sustained a relapse, and now
reports drinking 2-3 beers [ ] daily. He further alleged that he started hearing voices
during the evaluation itself, calling him a “son of a b
.” Dr. Doineau’s
conclusions included the followingThis very curious claimant complaints [sic] of hearing voices that
emerged when he quit drinking two years ago. He is continuing to
drink and maintains that he hears the voices whether he drinks or
not. If indeed what he is saying is accurate he does appear to be
impaired . . . There were [however] questions regarding his
credibility and his report was inconsistent with information in
records . . .
A major question in this claimant’s entire pathology is...the role of
alcohol in the development and maintenance of his psychosis. He
maintains that the voices emerge [sic] three days after he quit
drinking and there is certainly suggestion that this occurred during
withdrawal initially and may be maintained through continued
alcohol consumption. Since the voices are allegedly a major
problem, then he would certainly be more functional if he
discontinued the usage of alcohol.
The balance of the medical source statement opined towards mild to marked
limitations in the claimant’s ability to follow instructions, regardless of complexity;
moderate interpersonal limitations in all respects; and moderate-to-marked
limitations in his ability to respond appropriately to usual work situations and to
changes in a routine work setting. . .
Exhibit 15-F, from Elam Mental Health, relates to medical encounters and
treatments dated between July 2012 and May 2013. These may be summarized as
Here for initial consultation.
This was not a
Alleges that he hears voices
that are abusive and tell him to evaluation, but the
kill himself in setting of
continued alcohol use. Denies psychiatric [sic]
suicidal ideation despite the
concluded that such
voices. Was at times evasive in an evaluation
answering questions and
would be needed.
struggled to maintain eye
contact. States he is thankful
that he is alive despite
“...living a wreckless [sic] life
Initial psychiatric assessment.
Alleges hearing voices
involving a separate
personality (“Nickie Stevens”), score at this
which would say abusive
assessment was 60,
things or tell him to kill
indicative of no
himself. Such hallucinations
more than moderate
are daily. Also visual
hallucinations, but these are far mental functioning.
less frequent. Does not
respond to internal stimuli.
Start Haldol, Benedryl [sic],
In the previous week, has had
Still drinking 3-4
three major outbursts in which beers daily.
he cursed wife and daughter.
Inconsistent in taking at least
one of the medications.
Progress Note: GAF between
60-70. Increase Haldol, start
Inderal. Also started
Wellbutrin (p. 13).
Progress Note: Voices are still
there, essentially no change.
Counseled towards sobriety.
medications, except that the
second dose of Wellbutrin was
taken at an incorrect time.
Progress Note: Appears to be a
repeat of prior notes. Continue
existing medications, but start
Counseled towards sobriety.
Alleges continuing to hear
voices, telling him he is a
“useless son of a b
,” and to
hurt himself. He knows the
voices are not real and does not
act on them. Mood, appetite,
concentration and energy
levels all “ok.” GAF 55.
Discontinue Haldol and
Wellbutrin, start Seroquel.
Specifically advised the
patient to quit alcohol.
Alleges continuing to hear
voices. Has not yet started the
Seroquel, and ran out of the
Lithium. GAF 55. Continue
current therapy. Specifically
advised the patient to quit
Alleges continuing to hear
voices and that it was so bad he
had to leave church last
Sunday because the voices
were cursing him out, yet he
also denied paying attention to
them and knows they are not
real. Appetite, concentration
and energy levels all "ok."
Still drinking 3-4
Still drinking 3-4
Drinking 12 beers
weekly (possibly a
typo for 1-2 times
weekly, but may
reflect about 2
beers daily, still a
States he drinks 1-2
States he drinks 1-2
GAF 60. Dosage of Seroquel
modified. Low risk for selfharm. Specifically advised
the patient to quit alcohol.
A. Standard of Review
“The Commissioner determines whether a claimant is disabled and entitled to benefits, 42
U.S.C. § 405(h), and [this Court’s] review of this decision ‘is limited to determining whether it is
supported by substantial evidence and was made pursuant to proper legal standards[.]’” Gentry v.
Comm’r of Soc. Sec., 741 F.3d 708, 722 (6th Cir. 2014) (quoting Rogers v. Comm’r of Soc. Sec.,
486 F.3d 234, 241 (6th Cir.2007)). “Substantial evidence lies between a preponderance and a
scintilla; it refers to relevant evidence that ‘a reasonable mind might accept as adequate to support
a conclusion.’” Gibbens v. Comm’r of Soc. Sec., 659 F. App’x 238, 243 (6th Cir. 2016) (quoting
Rogers, 486 F.3d at 241). The Commissioner’s decision must stand if substantial evidence
supports it, even if the record contains evidence supporting the opposite conclusion. Brooks v.
Comm’r of Soc. Sec., 531 F. App’x 636, 641 (6th Cir. 2013) (citing Smith v. Sec’y of Health &
Human Servs., 893 F.2d 106, 108 (6th Cir.1989)). However, in determining the substantiality of
the evidence, a court must examine the record as a whole, taking into consideration “‘whatever in
the record fairly detracts from its weight.’” Id. (quoting Garner v. Heckler, 745 F.2d 383, 388 (6th
This Court may not “‘try the case de novo, resolve conflicts in evidence, or decide questions
of credibility.’” Ulman v. Comm’r of Soc. Sec., 693 F.3d 709, 713 (6th Cir. 2012) (quoting Bass
v. McMahon, 499 F.3d 506, 509 (6th Cir. 2007)). “Where, however, an ALJ fails to follow agency
rules and regulations, [the Court will] find a lack of substantial evidence, ‘even where the
conclusion of the ALJ may be justified based upon the record.’” Miller v. Comm’r of Soc. Sec.,
811 F.3d 825, 833 (6th Cir. 2016) (quoting Gentry, 741 F.3d at 722).
B. Administrative Proceedings – the Five-Step Inquiry
A disability is defined by the Social Security Act (“the Act”) as the “inability to engage in
any substantial gainful activity by reason of any medically determinable physical or mental
impairment which can be expected to result in death or which has lasted or can be expected to last
for a continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A). “To determine if
a claimant is disabled within the meaning of the Act, the ALJ must follow a five-step analysis, as
set forth in 20 C.F.R. § 404.1520.” Parks v. Soc. Sec. Admin., 413 F. App’x 856, 862 (6th Cir.
2011). Pursuant to that five-step sequential evaluation process:
(1) a claimant who is engaging in substantial gainful activity will not be found to
be disabled regardless of medical findings;
(2) a claimant who does not have a severe impairment will not be found to be
(3) a finding of disability will be made without consideration of vocational factors
if a claimant is not working and is suffering from a severe impairment which meets
the duration requirement and which meets or equals a listed impairment in
Appendix 1 to Subpart P of the Regulations. Claimants with lesser impairments
proceed to step four;
(4) a claimant who can perform work that he has done in the past will not be found
to be disabled; and
(5) if a claimant cannot perform his past work, other factors including age,
education, past work experience and residual functional capacity must be
considered to determine if other work can be performed.
Id. (citing Cruse v. Comm’r of Soc. Sec., 502 F.3d 532, 539 (6th Cir. 2007)). Throughout the first
four steps of the analysis, the claimant bears the burden of proof. Id. at 863 (citing Warner v.
Comm’r of Soc. Sec., 375 F.3d 387, 390 (6th Cir. 2004)). However, at the fifth step, “the burden
shifts to the Commissioner to identify ‘a significant number of jobs in the economy that
accommodate the claimant’s residual functional capacity (determined at step four) and vocational
profile.’” Id. (quoting Jones v. Comm’r of Soc. Sec., 336 F.3d 469, 474 (6th Cir. 2003)).
C. Plaintiff’s Claims of Error
Although the ALJ found that Plaintiff’s “medically determinable impairments could
reasonably be expected to cause the alleged symptoms,” the ALJ found that Plaintiff’s statements
concerning the intensity, persistence and limiting effects of [those] symptoms [were] not entirely
credible. (A.R. 21.) Plaintiff argues that the ALJ failed to make a proper credibility finding
regarding his subjective complaints in violation of SSR 96-7p, 20 C.F.R. § 404.1529, and 20
C.F.R. § 416.929. Specifically, Plaintiff contends that the ALJ 1) repeatedly “refer[red] to
Plaintiff’s history of alcohol consumption as a significant factor in undermining [his] credibility,”
but “stop[ped] short of finding alcohol a material and contributing factor;” 2) rejected the
testimony of Plaintiff’s wife; 3) used Plaintiff’s assigned GAF score to reduce the severity of
Plaintiff’s mental impairments and symptoms; and 4) failed to mention consistencies between
Plaintiff’s testimony and evidence in the record. (Doc. No. 17 at 10-12.) The Court will address
these claims of error in reverse order.
Alleged Failure to Mention Consistencies
Plaintiff argues that the ALJ failed to mention consistencies between Plaintiff’s testimony
and “opinions of his treating doctors and the clinical findings well-documenting his hallucinations,
involuntary movements and easy agitation.” (Id. at 12.)
“[S]ubjective complaints of a claimant can support a claim for disability, if there is also
evidence of an underlying medical condition in the record.” Cruse, 502 F.3d at 542 (internal
quotation marks and citations omitted). Where objective medical evidence establishes a medical
impairment that could reasonably be expected to produce the alleged disabling symptoms, the
intensity and persistence of those symptoms are evaluated to determine the limitations they place
on the claimant’s ability to work. 20 C.F.R. § 404.1529(c)(1); SSR 96-7p, 1996 WL 374186, at
*1 (S.S.A. July 2, 1996). 5 “Whenever a claimant’s complaints regarding symptoms, or their
intensity and persistence, are not supported by objective medical evidence, the ALJ must make a
determination of the credibility of the claimant in connection with his or her complaints ‘based on
a consideration of the entire case record.’” Rogers, 486 F.3d at 247. “Consistency between a
claimant’s symptom complaints and the other evidence in the record tends to support the credibility
of the claimant, while inconsistency, although not necessarily defeating, should have the opposite
effect.” Id. at 248. Additionally,
[r]elevant factors for the ALJ to consider in his evaluation of symptoms include the
claimant’s daily activities; the location, duration, frequency, and intensity of
symptoms; factors that precipitate and aggravate symptoms; the type, dosage,
effectiveness, and side effects of any medication taken to alleviate the symptoms;
other treatment undertaken to relieve symptoms; other measures taken to relieve
symptoms, such as lying on one’s back; and any other factors bearing on the
limitations of the claimant to perform basic functions.
Id. at 247 (citing 20 C.F.R. § 416.929 and SSR 96-7p, 1996 WL at *2-3). Where an ALJ’s
credibility determinations are supported by substantial evidence, reviewing courts give their
decisions great weight. Cruse, 502 F.3d at 542 (quoting Walters v. Comm’r of Soc. Sec., 127 F.3d
525, 531 (6th Cir. 1997)).
Here, the ALJ analyzed Plaintiff’s complaints of allegedly disabling symptoms and found
Plaintiff’s testimony not entirely credible in light of the record. The Court finds that the ALJ’s
Effective March 16, 2016, SSR 16-3p superseded SSR 96-7p. See SSR 16-3p, 2016 WL 1119029 (S.S.A.
March 16, 2016). As the ALJ’s findings and conclusions were made prior to March 16, 2016, the Court
applies SSR 96-7p. See Cameron v. Colvin, No. 1:15-CV-169, 2016 WL 4094884, at *2 (E.D. Tenn. Aug.
2, 2016) (explaining that SSR 16-3p is not applied retroactively).
analysis complies with 20 C.F.R. § 404.1529(c) and SSR 96-7p and is supported by substantial
As an initial matter, although Plaintiff alleges that “opinions of his treating doctors and
clinical findings” support his testimony (Doc. No. 17 at 12), Plaintiff fails to explain which
opinions and clinical findings the ALJ allegedly failed to consider. The ALJ considered the
evaluations of Kenneth W. Sullivan, M.D. 6, with whom Plaintiff had medical encounters between
August 2005 and May 2011. (A.R. 21, 194-308.) The ALJ noted that most of the medical notes
from Dr. Sullivan were remote compared to the alleged disability onset date of April 1, 2010, but
then summarized encounters Dr. Sullivan had with Plaintiff between 2009 and 2011. (A.R. 2122.)
Even though Plaintiff told Dr. Sullivan that he had hallucinations, Dr. Sullivan noted
Plaintiff as working full-time at points in 2010 and 2011 after his alleged disability onset date. 7
(A.R. 15, 21-22, 243, 248). That, in conjunction with Plaintiff’s termination from his former jobs
around and after the date of alleged disability onset for reasons unrelated to his alleged
impairments (A.R. 15, 24, 40-42, 44-45, 52, 146), was a basis on which the ALJ declined to accept
that Plaintiff had marked or extreme limitations. (A.R. 18, 25.) This supports a finding that
Plaintiff’s symptoms were not as limiting as he claimed. See Workman v. Comm’r of Soc. Sec.,
105 F. App’x 794, 801 (6th Cir. 2004) (“Although Workman alleges a disability onset date of June
30, 1998, the record indicates that this is the date that Workman’s employer laid him off due to
economic reasons.”); see also Maloney v. Apfel, 211 F.3d 1269 (Table), 2000 WL 420700, at *2
(6th Cir. 2000) (“Maloney stopped working for reasons other than her illness. Even if Maloney
See Footnote 6.
The Court notes that the ALJ gave Plaintiff the benefit of the doubt with respect to his testimony that he
was not working in 2011 because a review of the earning records reflects zero in that year. (A.R. 15).
had documented her symptoms during her insured status, there was no disabling impairment that
caused her to cease work.”).
Further, Plaintiff testified that he applied for unemployment compensation (A.R. 42),
which he received (A.R. 136). Therefore, the ALJ was correct in concluding that “the fact that
[Plaintiff] appealed the firing . . . and won unemployment benefits also presents a reasonable
inference that [Plaintiff] had certified to the State unemployment authority that he was willing and
able to work.” (A.R. 24); see Workman, 105 F. App’x at 801 (citations omitted) (“Applications
for unemployment and disability benefits are inherently inconsistent.”). Receipt of unemployment
compensation supports the ALJ’s finding that Plaintiff’s testimony was not entirely credible and
weighs against a finding of disability.
The ALJ also permissibly considered Plaintiff’s daily activities in evaluating his subjective
complaints. See Temples v. Comm’r of Soc. Sec., 515 F. App’x 460, 462 (6th Cir. 2013) (“Further,
the ALJ did not give undue consideration to Temples’ ability to perform day-to-day activities.
Rather, the ALJ properly considered this ability as one factor in determining whether Temples’
testimony was credible.”). The ALJ noted that even though both Plaintiff and his wife testified
that his auditory hallucinations affected his ability to attend church and perform chores at home
(A.R. 18, 47, 58-59), the medical record indicated that Plaintiff was able to discuss his symptoms
and treatment options with his doctors and ignore the voices because he knew they were not real
(A.R. 18, 23, 415, 418, 420). In his function report, Plaintiff indicated that he cannot “work, sleep
and be around people” and that he “used to cook daily, but has no desire now.” (A.R. 148-149.)
Nevertheless, Plaintiff affirmed being able to mow the lawn, go grocery shopping every one to
two weeks, and see his parents about once a month and his friends when they visit. (A.R. 149151.) The ALJ noted that a report from a licensed psychologist—Dr. Deborah E. Doineau,
Ed.D.—confirmed some of Plaintiff’s activities, such as mowing the lawn (albeit, allegedly with
interruptions from the auditory hallucinations), helping his wife with chores, cooking full meals,
reading his mail, making decisions, going grocery shopping with his wife though he is able to go
alone, and looking after his hygiene, among other things. (A.R. 18, 314.) These accounts support
the finding that Plaintiff was not as limited as he claimed.
The ALJ focused on the report from Dr. Doineau, whom Plaintiff saw for a consultative
mental examination on August 3, 2011. (A.R. 311-321.) In that report, Dr. Doineau identified
Plaintiff as having certain “marked,” that is serious, limitations. (A.R. 316-317.) The ALJ did not
accept all of the limitations identified in the consultative evaluation report (A.R. 25), and the Court
assumes that Plaintiff contemplates Dr. Doineau’s report when he argues that opinions and
findings in the record support his testimony.
First, the ALJ had the authority to decide how much weight to give to Dr. Doineau’s
report. See Justice v. Comm’r Soc. Sec. Admin., 515 F. App’x 583, 588 (6th Cir. 2013). Dr.
Doineau was a non-treating source. See Smith v. Comm’r of Soc. Sec., 482 F.3d 873, 875 (6th
Cir. 2007) (citation omitted) (“A ‘nontreating source’ (but examining source) has examined the
claimant ‘but does not have, or did not have, an ongoing treatment relationship with’ her.”). As
such, the ALJ was not required to assign Dr. Doineau’s report controlling weight. See Ealy v.
Comm’r of Soc. Sec., 594 F.3d 504, 514 (6th Cir. 2010); see also Griffith v. Comm’r of Soc. Sec.,
582 F. App’x 555, 564 (6th Cir. 2014) (“The opinion of a nontreating source or one-time examiner
. . . is not entitled to the degree of deference that is granted to a treating physician.”). Rather, in
deciding what weight to give Dr. Doineau’s opinion, the ALJ should have considered factors such
as the evidence Dr. Doineau offered in support of her opinion and the extent to which her opinion
was consistent with the record as a whole. See 20 C.F.R. § 404.1527(c)(3)-(4). The record reveals
that the ALJ did consider relevant factors when deciding not to assign Dr. Doineau’s report “great
weight, to the extent it is inconsistent with [the RFC the ALJ assigned Plaintiff], and especially to
the extent of the marked limitations.” (A.R. 25.)
The ALJ stated that Dr. Doineau was unable to determine whether Plaintiff was
malingering, but she noted inconsistencies in Plaintiff’s statements. (A.R. 22, 311.) Dr. Doineau
also wrote, “It was felt based on information in records that information [Plaintiff] provided may
not have been accurate.” (A.R. 311.) The ALJ noted that Dr. Doineau concluded that “[i]f indeed
what [Plaintiff] is saying is accurate[,] he does appear to be impaired . . . There were [however]
questions regarding his credibility and his report was inconsistent with information in records.”
(A.R. 22, 316.) That Dr. Doineau questioned Plaintiff’s credibility gave the ALJ another reason
not to fully credit the limitations Dr. Doineau identified in her consultative evaluation report. (A.R.
25.) The Court finds that the ALJ reasonably gave Dr. Doineau’s report less weight to the extent
that she assessed Plaintiff’s limitations solely on his subjective complaints. See Griffith, 582 F.
App’x at 564 (citing 20 C.F.R. § 416.927(b)) (“[T]he ALJ is not required to simply accept the
testimony of a medical examiner based solely on the claimant’s self-reports of symptoms, but
instead is tasked with interpreting medical opinions in light of the totality of the evidence.”); see
also Bell v. Barnhart, 148 F. App’x. 277, 285 (6th Cir. 2005) (declining to give weight to a doctor’s
opinion that was only supported by the claimant’s reported symptoms).
Finally, the ALJ considered and credited the state agency psychological opinions. (A.R.
25.) He noted that they, “although outlining moderate limitations within the psychiatric review
technique analysis, give very few limitations as part of the residual functional capacity report[.]”
(A.R. 25, 333, 337-339). And, in addition to crediting the findings of the state agency with respect
to the identified limitations, the ALJ added on more limitations in Plaintiff’s RFC, such as limiting
him to simple, routine, and repetitive tasks, “in an effort to give maximum effect to the claimant’s
subjective complaints to the extent the limited evidence will allow.” (A.R. 25.)
In light of the foregoing, Plaintiff’s claim of error that the ALJ failed to mention
consistencies between his testimony and evidence in the record, thereby failing to make a proper
credibility finding, is without merit. The ALJ’s credibility determination is reasonable and
supported by substantial evidence.
Plaintiff contends that the ALJ erred by reducing the severity of his mental impairments
and symptoms based on his assigned GAF score. “A GAF score is a ‘subjective rating of an
individual’s overall psychological functioning,’ which may assist an ALJ in assessing a claimant’s
mental RFC.” Miller, 811 F.3d at 835 (citing Kennedy v. Astrue, 247 Fed. App’x. 761, 766 (6th
Cir. 2007)). Although “[a] GAF score may help an ALJ assess mental RFC . . . it is not raw
medical data.” Kennedy, 247 F. App’x at 766. “The Commissioner has declined to endorse the
[GAF] score for use in the Social Security and SSI disability programs, and has indicated that
[GAF] scores have no direct correlation to the severity requirements of the mental disorders
listings.” Id. (internal quotation marks and citations omitted).
In his decision, the ALJ stated that “careful consideration was given towards all of the
Global Assessment of Functioning (GAF) score assessments, as contained inside the treatment
records at Ex. 15-F.” (A.R. 25.) In the treatment record, Plaintiff was assigned GAF scores
ranging from 55 to 70. (A.R. 416, 418, 421, 432.) The ALJ, therefore, was correct in finding that
the scores “tend[ed] to show [Plaintiff] to have no more than moderate limitations of mental
functioning[.]” See Kornecky v. Comm’r of Soc. Sec., 167 F. App’x 496, 511 (6th Cir. 2006)
(citing DSM–IV–TR at 34) (“[A] 51–60 indicates moderate symptoms or moderate difficulty in
social or occupational functioning, rather than the more serious symptoms or difficulty in
functioning suggested by a score in the 40s.”). And contrary to Plaintiff’s assertion that the ALJ
reduced the severity of his mental impairments and symptoms relying on the GAF scores, the ALJ
These assessments . . . does [sic] not detract from the residual functional capacity
adopted above; however, they are given neutral weight in the sense that it [sic] does
[sic] lend itself [sic] directly to a series of work-related limitations. To seek details
as needed towards the latter objective, it was needful to turn more fully to the
treatment evidence itself, and the extent of its correlation with the [Plaintiff’s]
testimony together with those [sic] of his spouse-witness.
(A.R. 25.) It is clear, then, that the ALJ relied on the record as a whole in order to assess Plaintiff’s
residual functional capacity. As such, Plaintiff’s assignment of error based on the ALJ’s treatment
of his GAF scores is meritless.
Testimony of Plaintiff’s Wife
Plaintiff argues that his wife provided detailed examples of his mental deficiencies and
struggles that were “consistent with specific notations in the treatment records.” (Doc. No. 17 at
12.) Therefore, he contends that the ALJ erred by rejecting her testimony. The Court disagrees.
“Perceptible weight must be given to lay testimony where . . . it is fully supported by the
reports of the treating physicians.” Lashley v. Sec’y of Health & Human Servs., 708 F.2d 1048,
1054 (6th Cir. 1983) (citations omitted); see also Higgs v. Bowen, 880 F.2d 860, 864 (6th Cir.
1988) (finding that although the Appeals Council should have been “more articulate in its
decision,” failing to explicitly state the weight it attached to the testimony of the claimant’s
husband was not reversible error where it was clear that the Appeals Council had considered the
entire record, not “credit[ing] any testimony at variance with the objective record.”).
As an initial matter, the Court notes that Plaintiff does not specify the notations in the
treatment record with which his wife’s testimony was allegedly consistent. However, it is clear
that the ALJ considered the wife’s testimony and permissibly rejected it. For example, in his
decision, the ALJ stated the following with respect to the wife’s testimony:
The spouse testified at the hearing that the [Plaintiff’s] visual hallucinations were
so intense that he would identify each of them by name (some as deceased relatives
or remote or as childhood acquaintances), and would not only respond to them, but
on one occasion even organized a party in their favor and prepared vegetable trays.
This is of highly questionable veracity as one does not find a parallel for this
characterization of symptoms within the treatment records, and because even the
[Plaintiff] himself typically described them in a different, disruptive and adversarial
way (see, e.g., Ex. 3-E at 10, 3-F at 3-4). . . .
Both the [Plaintiff] and his wife, at the hearing, alleged symptoms more consistent
with marked to extreme limitations. Even so, it is highly curious that even as the
voices allegedly disrupt his ability to attend church or to finish even the simplest of
household chores (for instance, to unload the dishwasher), they do not appear to
disrupt his ability to interact with medical personnel during the appointment itself
or to discuss symptoms and treatment options, and he had repeatedly stated that he
knows the voices are not real and are able to ignore them (see Ex. 15-F [Tr. at 418,
(A.R. 18.) The ALJ also included, in his decision, an accurate summary of the testimony that
Plaintiff’s wife provided at the hearing. (A.R. 20-21.) Plaintiff’s wife testified about Plaintiff’s
experiences with auditory (A.R. 56-57) and visual hallucinations (A.R. 58.)
Plaintiff’s initial psychiatric assessment indicates Plaintiff saying that he has visual hallucinations
(“‘seems like a burger king guy’ who talks to [Plaintiff] but [visual hallucinations] are once in 23 months” (A.R. 435)), his psychiatric progress notes indicate that Plaintiff—at points in time
within three months of the hearing—denied having visual hallucinations (A.R. 415, 417, 420.)
The progress notes also indicate, as the ALJ pointed out, that Plaintiff knew that the voices he
heard were not real and he ignored them. (A.R. 415, 417, 420.) Furthermore, they indicate, as the
ALJ highlighted, that Plaintiff did not appear to respond to internal stimuli. (A.R. 20, 415, 417,
420, 431-432.) In light of this and because making credibility determinations is part of the ALJ’s
function, it was not error for the ALJ not to credit the testimony of Plaintiff’s wife. See Rogers,
486 F.3d at 247 (“It is of course for the ALJ, and not the reviewing court, to evaluate the credibility
Plaintiff’s Alcohol Consumption
Plaintiff contends that the ALJ’s decision “repeatedly refers to Plaintiff’s history of alcohol
consumption as a significant factor in undermining Plaintiff’s credibility . . . [but] stops short of
finding alcohol a material and contributing factor.” (Doc. No. 17 at 10.) Plaintiff argues that
pursuant to 20 C.F.R. § 404.1535, an ALJ must first determine if a claimant is disabled using the
five-step sequential process laid out in 20 C.F.R. § 404.1520 and only then determine whether
alcoholism is a contributing material factor to the disability determination.
Plaintiff argues that the record supports a finding that alcoholism is not material because
his mental impairments and symptoms are present whether or not he drinks, noting, for example,
that his mental problems began when he initially stopped drinking. (Doc. No. 17 at 11.) However,
he argues that the ALJ did not apply the process set out in 20 C.F.R. § 404.1535, but simply
determined that Plaintiff’s symptoms were not credible.
“A claimant cannot receive disability benefits if alcohol or drug abuse is a material
contributing factor to the finding of disability.” Baker v. Soc. Sec. Admin., No. CIV. 3:14-1240,
2015 WL 666939, at *11 (M.D. Tenn. Feb. 13, 2015) (citing 423(d)(2)(C)). “[T]he five step
sequential evaluation process, found in 20 C.F.R. § 404.1520, [must] be followed in the
adjudication of disability ‘before any consideration is given to whether drug addiction [or alcohol
abuse] is the cause of such disability.’” Id. (citing Williams v. Barnhart, 338 F.Supp.2d 849, 862
(M.D. Tenn. 2004)).
“To find that drug addiction is a contributing factor material to the
determination of disability without first finding the claimant disabled . . . is to put the cart before
the horse[.]” Williams, 338 F. Supp. 2d at 862. In other words, in determining whether a claimant
is disabled, the ALJ must not “segregat[e] out any effects that might be due to substance use
disorders.” Id. at 863 (citing Ball v. Massanari, 254 F.3d 817, 821 (9th Cir. 2001)). However,
“[i]f the five step sequential evaluation process, without removing the effects of substance abuse
disorders from consideration, indicates that the plaintiff is not disabled then there is no need to
continue with the substance abuse materiality analysis of 20 C.F.R. §§ 404.1535 . . .” Baker, 2015
WL at *11 (citing Brueggemann v. Barnhart, 348 F.3d 689, 694-95 (8th Cir. 2003)).
Having reviewed the ALJ’s decision, the Court cannot conclude that the ALJ handled
Plaintiff’s history of alcohol dependence improperly. The ALJ noted places in the record that
detail Plaintiff’s alcohol use and show that Plaintiff was advised to stop drinking. (A.R. 22-23.)
Additionally, the ALJ stated the following with respect to Plaintiff’s alcohol use:
At present, [Plaintiff] asserts that he drinks no more than an occasional beer, or in
others, about a couple of beers a week; however, it is important to point out that
treating providers have repeatedly tell [sic] him to stop his alcohol consumption,
rather than merely reduce it or even greatly curtail it; therefore, even if the
claimant’s testimony can be accepted as true on this point, it would still go against
him from the standpoint of compliance with medical treatment and advice. . . .
As noted above, the claimant is currently still drinking, but allegedly not to the
same extent as he was before. At the hearing, the claimant testified to 1-2 times a
week. Some of the notes from 2011 indicate that at that time, he was drinking at
least a six-pack a day. Later records indicate reduced consumption in a manner
consistent with the hearing testimony; however, this was a very recent
development, seeing that such notations appear only starting in March 2013 at the
earliest. This presents a reasonable inference that as between the claimant’s alcohol
relapse in 2010 and a recent date in 2013, the claimant had been drinking at the
much higher quantities. Moreover, his continued drinking, even at the reduced
levels that he now alleges, goes to compliance with medical treatment and advice,
not only because of the drinking itself, but also because of its potential for
interactions with prescribed medications.
Now the undersigned’s intention is not to steer the analysis of the decision entirely
towards alcohol use-as-being-material. Nonetheless, it is impossible to ignore Dr.
Doineau’s observations at Ex. 3-F. The reader is directed back to her summary . . .
however, to summarize, she emphasized the interaction between the claimant’s
alcohol consumption and the continuation of his symptoms and his overall level of
Moreover, the evaluating psychologist also openly questioned the claimant’s credibility in
a number of respects. These two issues, along with the fact that the claimant continued
working with these alleged symptoms up until the point when his jobs ended for unrelated
grounds, are the primary reason why the undersigned is unable to fully accept all of the
limitations identified in the consultative evaluation report.
(A.R. 20, 24-25.)
First, an ALJ may use a claimant’s non-compliance with treatment as a factor when
determining credibility. See Ranellucci v. Astrue, No. 3:11-CV-00640, 2012 WL 4484922, at *9
(M.D. Tenn. Sept. 27, 2012) (“[Evidence that Plaintiff’s condition significantly improved with
treatment], in addition to Plaintiff’s history of general non-compliance with treatment, as
evidenced in the record, gave ALJ Roberts substantial evidence to find Plaintiff’s testimony
regarding the severity of her symptoms not credible.”). Therefore, because Plaintiff did not quit
drinking altogether, although advised to, the ALJ permissibly counted Plaintiff’s lack of
compliance against him. (A.R. 20.) That is to say, the ALJ reasonably concluded that Plaintiff’s
statements concerning the “intensity, persistence and limiting effects of [his] symptoms are not
entirely credible” (A.R. 21) because, if they were, Plaintiff would be expected to heed the advice
to abstain from alcohol, which he has demonstrated the capacity to do in the past.
Furthermore, even though Plaintiff contends that the ALJ erred by “stop[ping] short of
finding alcohol a material and contributing factor” (Doc. No. 17 at 10), the ALJ was not required
to make a materiality determination. As stated above, a materiality analysis is only required if an
ALJ finds a claimant to be disabled. Here, the ALJ found Plaintiff not disabled even after
considering his alcohol abuse to be a severe impairment. (A.R. 16, 27.) The ALJ proceeded to
consider Plaintiff’s mental functioning for purposes of the Listings without any mention of
Plaintiff’s alcohol use or its effect on his symptoms. (A.R. 17-19.) In finding Plaintiff not
disabled, it does not appear that the ALJ impermissibly segregated out the effects of Plaintiff’s
alcohol use. Rather, it seems that the ALJ determined that Plaintiff’s symptoms, exacerbated by
his alcohol use, nevertheless failed to make Plaintiff disabled within the meaning of the Social
The Court notes that it is peculiar that the ALJ stated that his intention was “not to steer
the analysis of the decision entirely towards alcohol use-as-being-material.” (A.R. 24.) Indeed,
the ALJ would have done well to state explicitly that he did not net out the effects of Plaintiff’s
alcohol use when making his disability determination. However, as far as the Court discerns and
as already mentioned, it appears that the ALJ considered the effects of Plaintiff’s alcohol use when
determining that Plaintiff was not disabled. And per the rest of the discussion in this opinion, the
ALJ’s ultimate finding that Plaintiff was not disabled is supported by substantial evidence. This
is further evidenced by the fact that Plaintiff testified at his hearing that he would “drink up to a
12 pack a day” during a time when he was working and his alcohol use never caused him to lose
a job or affect his ability to work. (A.R. 44.) His wife then confirmed this portion of his testimony.
For the reasons stated herein, Plaintiff’s Motion for Judgment on the Administrative
Record (Doc. No. 16) will be denied and the decision of the Social Security Administration will
be affirmed. An appropriate Order shall be entered.
IT IS SO ORDERED.
WAVERLY D. CRENSHAW, JR.
CHIEF UNITED STATES DISTRICT JUDGE
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