JOSEPH G. SCOVILLE, Magistrate Judge.
This is a social security action brought under 42 U.S.C. §§ 405(g), 1383(c)(3) seeking review of a final decision of the Commissioner of Social Security denying plaintiff's claims for disability insurance benefits (DIB) and supplemental security income benefits (SSI). Plaintiff filed her applications for benefits on April 23, 2007, alleging a December 16, 2005 onset of disability.
On January 20, 2011, plaintiff filed her complaint seeking judicial review of the Commissioner's decision denying her claims for DIB and SSI benefits. Pursuant to 28 U.S.C. § 636(c) and Rule 73 of the Federal Rules of Civil Procedure, the parties voluntarily consented to have a United States magistrate judge conduct all further proceedings in this case, including entry of final judgment. (docket #8). The two issues raised by plaintiff are as follows:
(Statement of Errors, Plf. Brief at 1, docket #10, ID#500). Upon review, the Commissioner's decision will be affirmed.
When reviewing the grant or denial of social security benefits, this court is to determine whether the Commissioner's findings are supported by substantial evidence and whether the Commissioner correctly applied the law. See Elam ex rel. Golay v. Commissioner, 348 F.3d 124, 125 (6th Cir. 2003); Buxton v. Halter, 246 F.3d 762, 772 (6th Cir. 2001). Substantial evidence is defined as "`such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Heston v. Commissioner, 245 F.3d 528, 534 (6th Cir. 2001) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)); see Rogers v. Commissioner, 486 F.3d 234, 241 (6th Cir. 2007). The scope of the court's review is limited. Buxton, 246 F.3d at 772. The court does not review the evidence de novo, resolve conflicts in evidence, or make credibility determinations. See Walters v. Commissioner, 127 F.3d 525, 528 (6th Cir. 1997). "The findings of the [Commissioner] as to any fact if supported by substantial evidence shall be conclusive. . . ." 42 U.S.C. § 405(g); see McClanahan v. Commissioner, 474 F.3d 830, 833 (6th Cir. 2006). "The findings of the Commissioner are not subject to reversal merely because there exists in the record substantial evidence to support a different conclusion. . . . This is so because there is a `zone of choice' within which the Commissioner can act without fear of court interference." Buxton, 246 F.3d at 772-73. "If supported by substantial evidence, the [Commissioner's] determination must stand regardless of whether the reviewing court would resolve the issues of fact in dispute differently." Bogle v. Sullivan, 998 F.2d 342, 347 (6th Cir. 1993); see Smith v. Chater, 99 F.3d 780, 782 (6th Cir. 1996) ("[E]ven if the district court — had it been in the position of the ALJ — would have decided the matter differently than the ALJ did, and even if substantial evidence also would have supported a finding other than the one the ALJ made, the district court erred in reversing the ALJ."). "[T]he Commissioner's decision cannot be overturned if substantial evidence, or even a preponderance of the evidence supports the claimant's position, so long as substantial evidence also supports the conclusion reached by the ALJ." Jones v. Commissioner, 336 F.3d 469, 477 (6th Cir. 2003); see Kyle v. Commissioner, 609 F.3d 847, 854 (6th Cir. 2010).
The ALJ found that plaintiff met the disability insured requirement of the Social Security Act from December 16, 2005, through the date of the ALJ's decision. Plaintiff had not engaged in substantial gainful activity on or after December 16, 2005. (A.R. 17). The ALJ found that plaintiff had the following severe impairments: "degenerative disc disease lumbar and cervical spine, obesity, and depression." (A.R. 17-18). Plaintiff did not have an impairment or combination of impairments which met or equaled the requirements of the listing of impairments. (A.R. 18). The ALJ found that plaintiff retained the residual functional capacity (RFC) for a limited range of sedentary work:
(A.R. 19). The ALJ found that plaintiff's testimony regarding her subjective limitations was not fully credible. (A.R. 19-21). Plaintiff was unable to perform her past relevant work. (A.R. 22). Plaintiff was 44-years-old as of the date of her alleged onset of disability and 48-years-old as of the date of the ALJ's decision. Thus, at all times relevant to her claims for DIB and SSI benefits, plaintiff was classified as a younger individual. (A.R. 22). Plaintiff has at least a high-school education and is able to communicate in English. (A.R. 22). The transferability of job skills was not material to a disability determination. (A.R. 22). The ALJ then turned to the testimony of a vocational expert (VE). In response to a hypothetical question regarding a person of plaintiff's age, and with her RFC, education, and work experience, the VE testified that there were approximately 5,000 jobs in the State of Michigan that the hypothetical person would be capable of performing. (A.R. 61-63). The ALJ found that this constituted a significant number of jobs. Using Rule 201.21 of the Medical-Vocational Guidelines as a framework, the ALJ held that plaintiff was not disabled. (A.R. 22-23).
Plaintiff argues that the ALJ's decision is not supported by substantial evidence because "he unreasonably dismisse[d] key psychological evidence from Dr. Greenbaum." (Plf. Brief at 8). Plaintiff argues that the ALJ should have treated Psychologist Irwin Greenbaum's opinions as if they were the opinions of a treating physician, and provided a better explanation why Greenbaum's opinions were entitled to "no weight." (Plf. Brief at 8-10; Reply Brief at 1-4). Upon review, the court finds no error.
Plaintiff claims a December 16, 2005 onset of disability. She has no history of hospitalization, therapy, or extensive treatment for depression or any other mental impairment. Plaintiff's family physicians provided her with prescriptions for Effexor "off and on" for a number of years (A.R. 41, 244, 259, 261, 337), a 2005 trial of Zoloft (A.R. 251-52, 254, 256), and a 2009 trial of Wellbutrin (A.R. 41).
Plaintiff's attorney arranged for a consultative examination by Psychologist Greenbaum. On September 16, 2009, twelve days before plaintiff's administrative hearing, Greenbaum conducted his examination (A.R. 308-12) and completed a "Medical Assessment of Ability to do Work-related Activities (Mental)" report in support of plaintiff's claims for DIB and SSI benefits (A.R. 313-14). Greenbaum provided a diagnosis of major depression, single episode, moderate, and gave plaintiff a GAF score of 40. He finished his report with the following statement: "Given the severity and refractory nature of Ms. Shaffer's psychiatric impairments she is viewed as not capable of engaging in meaningful employment at this time or in the foreseeable future." (A.R. 312). Incredibly, based solely on the September 18, 2009 session, Greenbaum provided an opinion asserting that since "December 2005" plaintiff had no ability to relate to co-workers, deal with the public, interact with supervisors, deal with work stresses, function independently, maintain attention and concentration, understand, remember and carry out detailed or complex instructions, behave in an emotionally stable manner, relate predictably in social situations, and demonstrate reliability. (A.R. 313-14). In all other areas, Greenbaum rated plaintiff's abilities as "poor." (Id.).
Plaintiff returned to Greenbaum's office two days before her hearing. This second session was the basis of plaintiff's testimony that Greenbaum was her "treating" psychologist. (A.R. 41). Greenbaum recorded plaintiff's subjective complaints and gave her a GAF score of 40. (A.R. 465-66). On October 3, 2009, Greenbaum again recorded plaintiff's complaints and gave her a GAF score of 42. (A.R. 464).
It is pellucid that Greenbaum's opinions are those of a non-treating, consultative examiner and not those of a treating source. The purpose of the "treating physician rule" is to give more weight to the medical opinions expressed by physicians who have had a long-term treatment relationship with the claimant. "[A] medical professional who has dealt with the claimant and [her] maladies over a long period of time will have a deeper insight into the medical condition of the claimant than will a person who has examined the claimant but once, or who has only seen the claimant's medical records." Barker v. Shalala, 40 F.3d 789, 794 (6th Cir. 1994); see Rogers v. Commissioner, 486 F.3d 234, 242 (6th Cir. 2007); see also 20 C.F.R. §§ 404.1527(d)(2), 416.927(d)(2). Social security regulations define a "treating source" as a physician or other acceptable medical source
20 C.F.R. §§ 404.1502, 416.902; see Coldiron v. Commissioner, 391 F. App'x 435, 442 (6th Cir. 2010). Whether a psychologist or physician is a "treating source" is determined as of the date the opinions at issue are supplied. See Karger v. Commissioner, 414 F. App'x 739, 744 (6th Cir. 2011); Kornecky v. Commissioner, 167 F. App'x 496, 506 (6th Cir. 2006). Here, Greenbaum did not have any ongoing treatment relationship with plaintiff on the date he rendered his opinions. Greenbaum's two after-the-fact counseling sessions with plaintiff could not, and did not, transform his September 16, 2009 opinions into treating source opinions. Greenbaum was not a treating source at any time relevant to plaintiff's claims for DIB and SSI benefits. See Kornecky v. Commissioner, 167 F. App'x at 506. Because Greenbaum was not a treating source, the ALJ was "not [] under any special obligation to defer to [his] opinion[s] or to explain why he elected not to defer to [them]." Karger, 414 F. App'x at 744.
The ALJ found that the extreme restrictions Greenbaum suggested were entitled to no weight:
(A.R. 21).
There is "nothing fundamentally wrong with a lawyer sending a client to a doctor." Blankenship v. Bowen, 874 F.2d 1116, 1122 n.8 (6th Cir. 1989). However, it was entirely appropriate for the ALJ to consider the fact that Greenbaum had examined plaintiff on a referral from plaintiff's counsel for the purpose of generating evidence in support of her claims for SSI and DIB benefits. See DeVoll v. Commissioner, No. 99-1450, 2000 WL 529803, at *1 (6th Cir. 2000); Pentecost v. Secretary of Health & Human Servs., No. 89-5014, 1989 WL 96521, at *1 (6th Cir. Aug. 22, 1989); see also Gilmore v. Astrue, No. 2:10-54, 2011 WL 2682990, at *8 (M.D. Tenn. July 11, 2011).
Greenbaum's opinions on issues reserved to the Commissioner were entitled to no weight. The issue of whether the claimant is disabled within the meaning of the Social Security Act is reserved to the Commissioner. 20 C.F.R. §§ 404.1527(e)(1), 416.927(e)(1); see Warner v. Commissioner, 375 F.3d 387, 390 (6th Cir. 2004). Even a treating physician's opinion that a patient is disabled is not entitled to any special significance. See Bass v. McMahon, 499 F.3d 506, 511 (6th Cir. 2007); Sims v. Commissioner, 406 F. App'x 977, 980 n.1 (6th Cir. 2011) ("[T]he determination of disability [is] the prerogative of the Commissioner, not the treating physician."). Likewise, "no special significance" is attached to treating physician opinions regarding the credibility of the plaintiff's subjective complaints, RFC, or whether the plaintiff's impairments meet or equal the requirements of a listed impairment because they are administrative issues reserved to the Commissioner. 20 C.F.R. §§ 404.1527(e)(2), 416.927(e)(2); see Allen v. Commissioner, 561 F.3d 646, 652 (6th Cir. 2009).
Psychologist Greenbaum's regurgitations of plaintiff's subjective complaints were entitled to no weight. See Young v. Secretary of Health & Human Servs., 925 F.2d 146, 151 (6th Cir. 1990); see also Francis v. Commissioner, 414 F. App'x 802, 804 (6th Cir. 2011) (A physician's statement that merely regurgitates a claimant's self-described symptoms "is not a medical opinion at all."). Greenbaum's GAF scores were entitled to no weight. See Kornecky v. Commissioner, 167 F. App'x at 511. "GAF examinations measure psychological, social, and occupational functioning on a continuum of mental-health status from 0 to 100, with lower scores indicating more severe mental limitations." White v. Commissioner, 572 F.3d 272, 276 (6th Cir. 2009). A GAF score is a subjective rather than an objective assessment. Id. "GAF is a clinician's subjective rating of an individual's overall psychological functioning. A GAF score may help an ALJ assess mental RFC, but it is not raw medical data. Rather, it allows a mental health professional to turn medical signs and symptoms into a general assessment, understandable by a lay person, of an individual's mental functioning." Kennedy v. Astrue, 247 F. App'x 761, 766 (6th Cir. 2007); see Kornecky, 167 F. App'x at 503 n.7. The DIAGNOSTIC & STATISTICAL MANUAL OF MENTAL DISORDERS' (DSM-IV's) explanation of GAF scale indicates that "a score may have little or no bearing on the subject's social and occupational functioning."
Judicial review of the Commissioner's final administrative decision does not encompass re-weighing the evidence. Mullins v. Secretary of Health & Human Servs., 680 F.2d 472 (6th Cir. 1982); Reynolds v. Commissioner, 424 F. App'x 411, 414 (6th Cir. 2011); Vance v. Commissioner, 260 F. App'x 801, 807 (6th Cir. 2008). "In formulating a residual functional capacity, the ALJ evaluates all the relevant medical and other evidence and considers what weight to assign to treating, consultative, and examining physicians' opinions." Eslinger v. Commissioner, No. 10-3820, 2012 WL 616661, at *2 (6th Cir. Feb. 27, 2012). Here, the ALJ considered Psychologist Greenbaum's opinions, determined that they were inconsistent with the administrative record, and found that they were entitled to no weight. Plaintiff's disagreement with the weight the ALJ found was appropriate for Greenbaum's opinions does not provide a basis for overturning the Commissioner's decision.
Plaintiff argues that the ALJ "failed to meet his burden at step 5 of the sequential analysis because his RFC assessment [did] not address the Plaintiff's absenteeism and need to be off task." (Plf. Brief at 11). Plaintiff's argument is based on her attorney's questions to the VE asking him to assume a hypothetical person whose mental impairments would cause her to miss more than 2.5 days of work per month and would require unscheduled work breaks. (Plf. Brief at 11-12; Reply Brief at 4-5) (citing A.R. 63-66). This argument does not provide a basis for disturbing the Commissioner's decision.
RFC is an administrative finding of fact reserved to the Commissioner.
It is well settled that a hypothetical question to a VE need not include unsubstantiated complaints. See Casey v. Secretary of Health & Human Servs., 987 F.2d 1230, 1235 (6th Cir. 1993); see also Carrelli v. Commissioner, 390 F. App'x 429, 438 (6th Cir. 2010) ("[I]t is `well established that an ALJ may pose hypothetical questions to a vocational expert and is required to incorporate only those limitations accepted as credible by the finder of fact.'") (quoting Casey, 987 F.2d at 1235). The VE does not determine a claimant's medical restrictions or how they impact on the claimant's residual functional capacity — that is the ALJ's job. See Maziarz v. Secretary of Health & Human Servs., 837 F.2d 240, 247 (6th Cir. 1987). The ALJ, having found that plaintiff's subjective complaints were not fully credible, was not bound in any way by a VE's responses to hypothetical questions from the plaintiff's attorney incorporating a contrary assumption.
For the reasons set forth herein, the Commissioner's decision will be affirmed.
The administrative finding of a claimant's RFC is made between steps 3 and 4 of the sequential analysis. See 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4) ("Before we go from step three to step four, we assess your residual functional capacity."); see also Vorholt v. Commissioner, 409 F. App'x 883, 886 (6th Cir. 2011).
