RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 2 Jones v. Commissioner of Soc. Sec. No. 01-2315 ELECTRONIC CITATION: 2003 FED App. 0231P (6th Cir.)
File Name: 03a0231p.06 Township, Michigan, for Appellee. ON BRIEF: Sharon Swingle, John C. Hoyle, UNITED STATES DEPARTMENT OF JUSTICE, CIVIL DIVISION, Washington, D.C., for UNITED STATES COURT OF APPEALS Appellant. Kenneth F. Laritz, Clinton Township, Michigan, for Appellee.
FOR THE SIXTH CIRCUIT _________________ _________________ OPINION ANGELA M. JONES, X _________________ Plaintiff-Appellee, -
- BOGGS, Circuit Judge. In December 1999 and February - No. 01-2315 2000, Angela M. Jones applied for disability insurance v. - benefits and supplemental security income, claiming that she > had been disabled since August 23, 1999 as a result of severe , panic attacks, an anxiety disorder, and a depressive disorder.
COMMISSIONER OF SOCIAL - SECURITY, After the denial of her application for benefits, Ms. Jones - requested a hearing before an Administrative Law Judge Defendant-Appellant. - (ALJ), who found that she was not disabled within the - meaning of the Social Security Act (the Act). The ALJ’s N decision became the final decision of the Commissioner of Appeal from the United States District Court Social Security (the Commissioner) and Ms. Jones for the Eastern District of Michigan at Detroit. subsequently sought judicial review of that decision by the No. 00-74924—Anna Diggs Taylor, District Judge. district court. The district court held that the ALJ’s findings were not supported by substantial evidence in the record and Argued: March 27, 2003 ruled in favor of Ms. Jones. The Commissioner now appeals the district court’s judgment, arguing that there was Decided and Filed: July 15, 2003 substantial evidence in the record to support the ALJ’s decision. We agree with the Commissioner and reverse the Before: BOGGS, SUHRHEINRICH, and SILER, Circuit district court’s decision.
Judges.
I
_________________
Ms. Jones alleges that she has been unable to work since COUNSEL August 23, 1999, when she left her job as a machine operator in a plastics company. She was 28 years old at the time and ARGUED: Sharon Swingle, UNITED STATES had previously worked as a recycling collector, a waitress, DEPARTMENT OF JUSTICE, CIVIL DIVISION, and a babysitter. Ms. Jones continued to apply for jobs, but Washington, D.C., for Appellant. Kenneth F. Laritz, Clinton reported that she was unable to sustain them for more than a
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few hours because of panic attacks and crying spells, which Functioning) score of 55 and diagnosed her as having a would cause her to leave work. “panic disorder with agoraphobia” and a mild first episode of major depression without psychotic features. The doctor Ms. Jones first sought medical treatment for her condition continued her treatment with medication and directed that she on November 6, 1999, at a local health center, where she was return in a month for further analysis. diagnosed as having a panic disorder with agoraphobia, and a recurrent major depressive disorder, pending an initial Ms. Jones also visited a counselor at the clinic: Kathleen evaluation by a psychiatrist. On November 23, 1999, Ms. Berrisford, MSW, CSW. On December 15, 1999, Berrisford Jones was seen by Dr. Burgoyne, a psychiatrist at the center, reported that Ms. Jones was crying because she had “run out who noted that she complained of longstanding panic attacks, of gas,” but that the medication was helping. On January 12, depression, insomnia, low motivation and dizzy spells on 2000, Berrisford reported that Ms. Jones was depressed most most days, but that she was “very organized,” and was of the time, but noted that Ms. Jones was only taking onepeaceful in appearance. He prescribed Imipramine and third of her medications. On February 9, 2000, Berrisford Xanax. reported that Ms. Jones was smiling and apparently felt better, concluding that the medication was having an impact on Ms.
On December 11, Dr. Burgoyne again saw Ms. Jones, for Jones’s condition. In March 2000, however, Ms. Jones’s a formal evaluation of her condition. After listing the various condition appeared to worsen again. A different counselor, symptoms reported by Ms. Jones, including the fact that she filling in for Berrisford, noted that Ms. Jones came late to the had left at least seven jobs since August 1999 as a result of appointment, and that although Xanax had reduced the her panic attacks, Dr. Burgoyne stated in his report that: number of panic attacks and eliminated the reoccurring pains in her chest, Ms. Jones reported that she was “crying more Ms. Jones presents as oriented to time, place, person, days than not.” and situation. She is cooperative and does not demonstrate untoward anxiety. There are no signs of On March 28, 2000, Mary Gerwoll, a psychologist, psychomotor deficit, physical limitation, or tremors. Her examined Ms. Jones. She diagnosed Ms. Jones as having a weight is proportionate to her height. Her clothing and mild recurrent major depressive order and a personality self care are appropriate. Her thinking is organized, goal disorder with borderline features. Dr. Gerwoll noted that Ms. directed, spontaneous, and progressive. She denies Jones’s panic attacks were “situationally predisposed,” and suicidal and homicidal ideas. There are no significant did not appear to meet the full criteria for a panic disorder. form or content deficits in speech. Her mood is euthymic Dr. Gerwoll assigned Ms. Jones a GAF score of 60 and noted in appearance. Her affect is appropriate to the situation, that her prognosis was “guarded - due to early onset and however it does not reflect the depression and anxiety chronicity.” In her notes on Ms. Jones’s personal history, Dr. that she complains of. Gerwoll stated that “[s]ince being fired [Ms. Jones] has gotten about 20 jobs and just walked out.”
Dr. Burgoyne further noted that Ms. Jones had reported an improvement in her condition over the last three weeks, In April 2000, a clinical assessment form reflected that Ms. “since she [had] been taking Imipramine 100mg, and Xanax Jones’s status was improving and that she was to start taking .25 mg sublingual prn impending panic.” Dr. Burgoyne 20mg of Paxil in addition to Imipramine and Xanax. On assigned Ms. Jones a GAF (Global Assessment of April 9, 2000, Dr. Kriauciunias, a licensed psychologist,
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reviewed Ms. Jones’s file and filled out a Psychiatric Review had not yet begun taking Depakote. Ms. Jones denied having Form for the Social Security Administration. Dr. disabling panic and depression. At the hearing in October Kriauciunias concluded that Ms. Jones suffered from an 2000, Ms. Jones testified that she was taking all four drugs.1 affective disorder and a personality disorder, and checked the box that stated “a severe impairment is present which does II not meet or equal a listed impairment.” Dr. Kriauciunias’s functional assessment was that Ms. Jones was moderately The Administrative Law Judge’s Hearing limited in her ability to remember detailed instructions, to maintain regular attendance, attention, and concentration for The Social Security Act defines disability as the inability to extended periods, and also in her ability to interact with the engage in any substantial gainful activity by reason of a general public. However Dr. Kriauciunias concluded that she medically determinable physical or mental impairment that could perform simple, low-stress unskilled work. can be expected to result in death or that has lasted or can be expected to last for a continuous period of not less than 12 In June and July of 2000, clinical assessment forms months. 42 U.S.C. §§ 423(d)(1)(A), (d)(2)(A); 20 C.F.R. reflected that Ms. Jones’s status was deteriorating. After an § 404.1505; see also 20 C.F.R. § 404.1509. To be found appointment on June 28, 2000, Berrisford reported that Ms. disabled, Ms. Jones’s impairments must not only prevent her Jones was depressed, crying, unmotivated, missing from doing her previous work, but, considering her age (29 at appointments, and sleeping night and day. According to the time of the ALJ’s decision), education (eighth grade Berrisford, Ms. Jones regarded the medications as no longer education), and work experience (machine operator, recycling working, since she was experiencing a “loss of concentration, collector, waitress, and babysitter), must also render her fatigue, loss of all pleasure, [and could not] work or unable to engage in any other kind of work that exists in socialize,” but she was not suicidal. In July, Dr. Burgoyne significant numbers in the national economy. 42 U.S.C. adjusted her medication by lowering the amount of Paxil and § 1382c(a)(3)(B); Bogle v. Sullivan, 998 F.2d 342, 347 (6th increasing her dosage of Imipramine, in an effort to return to Cir. 1993). the dosages being taken by Ms. Jones in May, when she had been feeling better. To determine if a claimant is disabled within the meaning of the Act, the ALJ employs a five-step inquiry defined in 20 On August 1, 2000, a clinical assessment form filled out by C.F.R. § 404.1520; Abbott v. Sullivan, 905 F.2d 918, 923 (6th Dr. Burgoyne reflected that Ms. Jones was once again Cir. 1990) (citing 20 C.F.R. § 404.1520). Through step four, improving, but prescribed a new drug for Ms. Jones, the claimant bears the burden of proving the existence and Depakote, in order to deal with her “mood instability.” severity of limitations caused by her impairments and the fact Nevertheless, on August 19, another assessment form filled that she is precluded from performing her past relevant work, out by Dr. Burgoyne noted that the “gatekeeper” had not but at step five of the inquiry, which is the focus of this case, ordered Depakote and thus Ms. Jones had not yet been started the burden shifts to the Commissioner to identify a significant on the drug. In addition, the form noted that she exhibited number of jobs in the economy that accommodate the “mild pressured speech” and reported that she was unable to claimant’s residual functional capacity (determined at step get out of bed three days a week, was irritable, angry, and depressed. On September 16, 2000, a clinical assessment form reflected that Ms. Jones was improving, although she 1 Depako te, Paxil, Imipramine, and Xanax.
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four) and vocational profile. See Bowen v. Yuckert, 482 U.S. Is there substantial evidence to support the 137, 146 n.5 (1987). Commissioner’s decision?
At the hearing, the vocational expert (VE) testified to the In order to affirm the Commissioner’s determination, the fact that if Ms. Jones’s testimony regarding her constant decision must be supported by substantial evidence in the crying spells, daily panic attacks, inability to leave the house, record as a whole. 42 U.S.C. § 405(g); Walters v. and inability to get along with others were to be credited, Commissioner, 127 F.3d 525, 528 (6th Cir. 1997). there were no jobs that would fit her needs. However, the “‘Substantial evidence’ is defined as ‘such relevant evidence ALJ did not find Ms. Jones’s testimony to be entirely credible as a reasonable mind might accept as adequate to support a and instead constructed a hypothetical question for the VE conclusion.’” Stanley v. Secretary of Health & Human Servs., that incorporated his own assessment of Ms. Jones’s 39 F.3d 115, 117 (6th Cir. 1994) (quoting Richardson v. limitations, asking the VE to assume that Ms. Jones would be Perales, 402 U.S. 389, 401 (1971)). Furthermore, we must capable only of light work, which was not at an “unprotected defer to an agency’s decision “even if there is substantial height,” that did not require Ms. Jones to drive, climb, or evidence in the record that would have supported an opposite work around dangerous or hazardous machinery, was conclusion, so long as substantial evidence supports the “relatively simple and routine in nature, not requiring more conclusion reached by the ALJ.” Key v. Callahan, 109 F.3d than very few steps,” and that the work be low in stress and 270, 273 (6th Cir. 1997). include only very limited contact with other people. The VE responded that under such circumstances, Ms. Jones could The ALJ stated in his written order that Ms. Jones was perform light janitorial work, some stock positions, and moderately impaired in social functioning, given her crying material handling positions, all of which were unskilled, light spells and her problems with anger, and had a moderate work that did not “involve much contact with people.” The impairment of concentration, persistence, and pace. VE further testified that there were a significant number of Nevertheless, the ALJ concluded that Ms. Jones’s statements these jobs available in the Detroit metropolitan area. regarding the severity of her symptoms and her attempts to find work were not fully credible, and that she was capable of The ALJ subsequently performed the required five-step showing up at a job every day, despite Dr. Kriauciunias’s evaluation and found that Ms. Jones’s claim survived the assessment that she was moderately impaired in her ability to requirements of the first four steps, but did not meet the maintain attendance. Moreover, the ALJ found that she was requirements of step five, since there are jobs other than her limited to a light level of exertion on the basis of her lowered past relevant work that exist in significant numbers in the energy level resulting from her depression. Accordingly, the national economy, which can accommodate her residual ALJ determined that Ms. Jones should be capable of functional capacity. Accordingly, the ALJ denied Ms. Jones’s performing light work, but work that did not include application for benefits, having determined that she was not unprotected heights, driving, climbing or operating hazardous disabled for purposes of the Act. machinery, and perhaps most importantly, required only very limited contact with “the public, co-workers and supervisors.”
Ms. Jones contends that the ALJ’s conclusion that she is capable of performing light work, even where the contact with others is limited, is not supported by substantial
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evidence. More specifically, Ms. Jones contends that the ALJ credibility, where his behavior and the medical evidence was should not have disregarded her testimony and presented the inconsistent with the claimant’s testimony). VE with a hypothetical based on his own assessment, since in her opinion, her testimony was consistent with the analysis of Here, the ALJ found that Ms. Jones was not credible in the various mental health professionals that saw her. Had the light of the observations made by her own treating physician, ALJ credited Ms. Jones’s testimony, she would have been, the psychologists that separately evaluated her, and various according to the VE’s testimony at the ALJ’s hearing, inconsistencies in her own statements. Upon review, we are incapable of holding a job and would, therefore, be to accord the ALJ’s determinations of credibility great weight considered disabled pursuant to the Act. In addition, Ms. and deference particularly since the ALJ has the opportunity, Jones contends that the ALJ improperly disregarded Dr. which we do not, of observing a witness’s demeanor while Kriauciunias’s conclusion that she could not maintain regular testifying. Walters, 127 F.3d at 528 (citations omitted). attendance, which would also preclude her from working. We Therefore, we are limited to evaluating whether or not the first deal with the issue of whether the ALJ’s determination ALJ’s explanations for partially discrediting Ms. Jones are of Ms. Jones’s credibility was supported by substantial reasonable and supported by substantial evidence in the evidence. record.
There is no question that subjective complaints of a The ALJ first found that Ms. Jones’s symptoms were not as claimant can support a claim for disability, if there is also severe as she suggested in her testimony. Dr. Burgoyne’s objective medical evidence of an underlying medical reports support this finding, since he did not find her condition in the record. See Young v. Secretary of Health & symptoms or her disorder to be severe and even noted in one Human Servs., 925 F.2d 146, 150-51 (6th Cir. 1990); Duncan of his reports that her complaints were “less than credible.” v. Secretary of Health & Human Servs., 801 F.2d 847, 852 Additionally, in Dr. Burgoyne’s original assessment on (6th Cir. 1986). The doctors in this case diagnosed Ms. Jones December 11, 1999, he reported that Ms. Jones’s appearance with various disorders, medicated her for those disorders, and did “not reflect the depression and anxiety that she have therefore supplied the requisite objective medical complain[ed] of.” Furthermore, Dr. Kriauciunias found that condition to support Ms. Jones’s claim for disability. Ms. Jones was “[n]ot significantly limited for simple, low- Nevertheless, an ALJ is not required to accept a claimant’s stress unskilled work.” On several occasions, the mental subjective complaints and may properly consider the health professionals who spent time with Ms. Jones noted that credibility of a claimant when making a determination of she was pleasant and had a normal appearance. Berrisford’s disability. See Walters v. Commissioner of Social Sec., 127 notes from her therapy sessions with Ms. Jones provide the F.3d 525, 531 (6th Cir. 1997) (citing Kirk v. Secretary of best support for Ms. Jones’s testimony, in that they verify that Health & Human Servs., 667 F.2d 524, 538 (6th Cir. 1981)). she would have crying spells and was not always cooperative In addition, the ALJ can present a hypothetical to the VE on and pleasant. However, the ALJ did not dispute that Ms. the basis of his own assessment if he reasonably deems the Jones has the disorders she has been diagnosed with, only the claimant’s testimony to be inaccurate. See Townsend v. severity of her symptoms, which he viewed as being in Secretary of Health & Human Servs., 762 F.2d 40, 44 (6th contradiction with the observations made by the medical Cir. 1985). See also Blacha v. Secretary of Health & Human personnel who evaluated her. Servs., 927 F.2d 228, 231 (6th Cir. 1990) (holding that the ALJ had an adequate basis to discount Mr. Blacha’s
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The ALJ’s credibility determination with respect to Ms. Harris v. Heckler, 756 F.2d 431, 435 (6th Cir. 1985). If the Jones’s testimony regarding her unsuccessful efforts to obtain treating physician’s opinion is not supported by objective work is also reasonable. The ALJ explained in his written medical evidence, the ALJ is entitled to discredit the opinion order that he found it likely that Ms. Jones, had she been as long as he sets forth a reasoned basis for her rejection. See telling the truth about having left so many jobs as a result of Shelman, 821 F.2d at 321. Here, we are dealing with a crying spells and panic attacks, would have discussed such reviewing physician’s opinion, which is due, if anything, less events with Berrisford, in whose reports such events were deference than the treating physician’s opinion and thus the notably lacking. Furthermore, the ALJ relied on the fact that same standard may be applied. There was no objective there were several discrepancies in Ms. Jones’s testimony medical evidence supporting Dr. Kriauciunias’s assessment regarding the number of job attempts made. Although the that Ms. Jones was limited in her ability to maintain regular discrepancies are potentially reconcilable,2 Ms. Jones does attendance and the ALJ discredited his opinion by carefully not argue this on appeal and the ALJ’s conclusions appear to reasoning that since it was undisputed that Ms. Jones was able be reasonable. to take her daughter to school each morning and pick her up each afternoon, she was capable of maintaining a regular Finally, the ALJ disregarded only one conclusion made by schedule. The ALJ’s determination was, therefore, reasonable a medical professional, and that is Dr. Kriauciunias’s and supported by the evidence. assessment that Ms. Jones was moderately limited in her ability to maintain regular attendance. A treating physician’s The district court focused in its brief ruling from the bench opinion is normally entitled to substantial deference, but the on Ms. Jones’s testimony regarding her crying spells, and ALJ is not bound by that opinion. See Shelman v. Heckler, found that since the ALJ did not explain “why [Ms. Jones] 821 F.2d 316, 321 (6th Cir. 1987). The treating physician’s was totally disbelieved about the crying spells[,] . . . the opinion must be supported by sufficient medical data. See evidence militates toward supporting [Ms. Jones’s] position.”
This analysis is troublesome in two respects. First, as noted above, the ALJ did not in fact “disbelieve” Ms. Jones’s 2 On November 6 , 199 9, the initial re port filled out b y the clinic testimony entirely as to her crying spells; he only disputed the reflects Ms. Jone s’s stateme nt that she had “a pplied for 1 5 jobs and will severity of her symptoms. Furthermore, the ALJ articulated not go d ue to her anxiety and depression.” Dr. Burgoyne’s report of his reasons for rejecting Ms. Jones’s testimony in some detail. December 1 1, 1 999, states th at M s. Jones informed him that she had to Second, the substantial deference accorded the ALJ’s findings leave “seven or more jo bs since August of 1 999 .” Dr. Gorwell’s report from March 28, 2000, states that Ms. Jones reported having “gotten about of credibility, and the standard of review for the 20 jobs” in which she “just walked out.” Dr. Gorwell’s report, which the Commissioner’s findings of fact pursuant to 42 U.S.C. ALJ determined to be in conflict with these previous statements, was § 405(g), militate in favor of upholding the Commissioner’s filled out over three and a half months after Dr. Burgoyne’s report, and decision even if the district court would have viewed the thus it is not impossible that M s. Jones’s statements are consistent, if, for evidence differently. As noted above, the Commissioner’s example, she secured a number of jo bs du ring that time period. In fact, it may be that Ms. Jones was consolidating in her answer to Dr. Go rwell decision cannot be overturned if substantial evidence, or even those jobs that she applied for and did not go to, with those jobs that she a preponderance of the evidence, supports the claimant’s had started and left, and that this “discrepancy” is a misunderstanding. position, so long as substantial evidence also supports the Nevertheless, Ms. Jones does not argue on appeal that these seemingly conclusion reached by the ALJ. In this case there was more inconsistent statements are reconcilab le. Instead she argues that these than enough evidence to support the ALJ’s finding. inconsistencies are part of her disab ility. We do not see how this is helpful to her p osition.
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In sum, it was entirely proper for the ALJ to present the III vocational expert with the hypothetical he constructed, which did not reflect Ms. Jones’s complaints, including the constant For the reasons given above, we REVERSE the district crying spells, since the hypothetical was supported by court’s judgment. substantial evidence in the record. We therefore affirm the Commissioner’s final decision.
New Evidence In this appeal, Ms. Jones proffers new evidence of her deteriorating mental state, including a letter from her sister dated September 24, 2001, and records from a counseling service dated October 17, 2001, in support of her claim. However, this information comes over a year after the ALJ’s denial of benefits and several months after the district court’s reversal and award of benefits, and cannot, therefore, be considered by this court on review. See Wyatt v. Secretary of Health & Human Servs., 974 F.2d 680, 685 (6th Cir. 1992) (holding that this court is “confined to review evidence that was available to the [ALJ], and to determine whether the decision of the [ALJ] is supported by substantial evidence.”). As we have noted previously, “[e]vidence of a subsequent deterioration or change in condition after the administrative hearing is deemed immaterial.” Ibid.
The records included in the Appellee’s brief from New Passages, a psychiatric clinic, reflect that Ms. Jones has “impaired insight and judgment,” and that her general appearance and behavior was “[a]lert, un-groomed, cooperative, but anxious and nervous at times, crying, and also occasionally inattentive to direct questions.” The clinic assigned her a GAF score of 40. These observations are inconsistent with the medical evidence that was presented to the ALJ in this case and could suggest that Ms. Jones’s condition has deteriorated. Although this evidence cannot be considered by us for the aforementioned reasons, Ms. Jones has available the option of filing a new claim based on a different period of disability than the one considered here.