Filed: Jul. 13, 2009
Latest Update: Mar. 02, 2020
Summary: RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 File Name: 09a0245p.06 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT _ X - KIMBERLY A. WHITE, - Plaintiff-Appellant, - - No. 08-2292 v. , > - Defendant-Appellee. - COMMISSIONER OF SOCIAL SECURITY, - N Appeal from the United States District Court for the Eastern District of Michigan at Detroit. No. 07-13489—Nancy G. Edmunds, District Judge. Submitted: June 17, 2009 Decided and Filed: July 13, 2009 * Before: GILMAN and
Summary: RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 File Name: 09a0245p.06 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT _ X - KIMBERLY A. WHITE, - Plaintiff-Appellant, - - No. 08-2292 v. , > - Defendant-Appellee. - COMMISSIONER OF SOCIAL SECURITY, - N Appeal from the United States District Court for the Eastern District of Michigan at Detroit. No. 07-13489—Nancy G. Edmunds, District Judge. Submitted: June 17, 2009 Decided and Filed: July 13, 2009 * Before: GILMAN and ..
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RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 09a0245p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
X
-
KIMBERLY A. WHITE,
-
Plaintiff-Appellant,
-
-
No. 08-2292
v.
,
>
-
Defendant-Appellee. -
COMMISSIONER OF SOCIAL SECURITY,
-
N
Appeal from the United States District Court
for the Eastern District of Michigan at Detroit.
No. 07-13489—Nancy G. Edmunds, District Judge.
Submitted: June 17, 2009
Decided and Filed: July 13, 2009
*
Before: GILMAN and McKEAGUE, Circuit Judges; GRAHAM, District Judge.
_________________
COUNSEL
ON BRIEF: Marcie E. Goldbloom, DALEY, DeBOFSKY & BRYANT, Chicago,
Illinois, for Appellant. James B. Geren, SOCIAL SECURITY ADMINISTRATION,
OFFICE OF THE GENERAL COUNSEL, Chicago, Illinois, for Appellee.
_________________
OPINION
_________________
RONALD LEE GILMAN, Circuit Judge. Kimberley A. White sought disability
insurance benefits under Title II of the Social Security Act (SSA), claiming that her
bipolar disorder and severe depression have rendered her unable to work. An
Administrative Law Judge (ALJ) determined that White was entitled to disability
*
The Honorable James L. Graham, Senior United States District Judge for the Southern District
of Ohio, sitting by designation.
1
No. 08-2292 White v. Comm’r of Soc. Sec. Page 2
benefits for only a limited period of time between 2002 and 2004. The district court
affirmed the ALJ’s determination on appeal. For the reasons set forth below, we
AFFIRM the judgment of the district court.
I. BACKGROUND
A. Factual background
White’s claim for Social Security disability benefits originally alleged that White
was unable to work due to both physical and mental disabilities. Her appeal, however,
pertains exclusively to the ALJ’s finding that she was not disabled due to mental
impairments either before November 4, 2002 or after July 22, 2004. White’s alleged
physical impairments are thus omitted from the discussion that follows.
1. Mental-health history before November 4, 2002
The first medical documents in the record reflecting White’s mental impairments
come from Dr. Edward Merkel, an obstetrician and gynecologist who examined White
after she had a child in October 1998. Shortly after giving birth, White reported
problems with her sleep, mood, and appetite. In December 1998, White reported that
she had good days and bad days, and that she believed she had postpartum depression.
But Dr. Merkel thought that her symptoms did not support White’s self-diagnosis.
Instead, Dr. Merkel opined that White had “the blues.” Many months later, in October
1999, White reported that she had lost her job and that her boyfriend had both physically
and verbally abused her. The doctor’s notes from February 2000 indicate that
counseling appointments were arranged to help White deal with her psychosocial family
problems.
In March 2000, White reported to Dr. Merkel that she had trouble sleeping, was
always tired, found “no joy in anything,” and was agitated. White said that her
boyfriend continued to be verbally abusive and that she was unable to leave her noxious
home environment because she could not support herself or obtain adequate housing.
Dr. Merkel’s notes reflect that White had “Depression – Psychosocial Family Problems,”
and that he prescribed her a sleep aid as well as Zoloft (an antidepressant). White
No. 08-2292 White v. Comm’r of Soc. Sec. Page 3
declined the sleep aid, however, because she did not want to be sleepy around her
abusive boyfriend. She subsequently reported that her mood improved on Zoloft, but
that the drug wore off by dinner time.
In May 2000, White reported that she was living with her parents and that there
was significant tension in her home life, but that her boyfriend was improving his ability
to control his temper and substance abuse. She was diagnosed with Psychosocial Family
Problems as well as depression. Her Zoloft prescription was renewed.
White told Dr. Merkel in July 2000 that she had stopped taking Zoloft after her
mood and social situation had improved. An August 2000 progress report, however,
noted that her Zoloft prescription had been refilled. Her dosage was later increased in
September 2000. White continued to complain about stress in January 2001 and told Dr.
Merkel that she was engaged in a custody battle over her daughter.
In addition to the preceding treatment records from Dr. Merkel, the record
contains documents from White’s family physician, Dr. David Margolis. One such
report shows that Dr. Margolis prescribed Paxil (an antidepressant) for White in
February 2001 and noted that White showed signs of anxiety. Dr. Margolis’s notes from
March, April, and May 2001 all reflect that White complained of depression. In August
2001, White told Dr. Margolis that she was concerned that she was unable to control her
anxiety disorder with the medications that had been prescribed for her. Dr. Margolis
advised her to pursue psychiatric evaluation and counseling. None of the documents
from this time period indicate that White was unable to function due to her depression.
Despite being advised to undergo a psychiatric examination several times up to
and including August 2001, the record indicates that White did not actually obtain such
an evaluation until November of that year. In that month, White began to attend
psychiatric treatment sessions at a behavioral healthcare center called Hegira Programs.
White was recommended for admission to traditional outpatient services and was
diagnosed as having major depressive disorder. One of her treating physicians
considered bipolar disorder as another possible diagnosis. The attending Hegira
Programs physician noted during White’s initial visit that she was tearful during the
No. 08-2292 White v. Comm’r of Soc. Sec. Page 4
session, had poor sleep, had gained approximately 60 pounds in the last year, admitted
to mood swings, had poor anger management, and had poor self-worth. White was
evaluated using the so-called Global Assessment of Functioning (GAF) test, receiving
a score of between 45 and 50.
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. The United States District Court for the Eastern District of
Michigan has usefully described a GAF score as
a subjective determination that represents the clinician’s judgment of the
individual’s overall level of functioning. It ranges from 100 (superior
functioning) to 1 (persistent danger of severely hurting self or others,
persistent inability to maintain minimal personal hygiene, or serious
suicidal act with clear expectation of death). A GAF score of 31-40
indicates some impairment in reality testing or communication (e.g.,
speech is at times illogical, obscure, or irrelevant) or major impairment
in several areas such as work or school, family relations, judgment,
thinking or mood. A GAF of 41 to 50 means that the patient has serious
symptoms . . . OR any serious impairment in social, occupational, or
school functioning (e.g., no friends, unable to keep a job). A GAF rating
of 51 to 60 signals the existence of moderate difficulty in social or
occupational functioning.
Edwards v. Barnhart, 383 F. Supp. 2d 920, 924 n.1 (E.D. Mich. 2005) (citations,
brackets, and quotation marks omitted).
White underwent five further sessions at Hegira Programs in which physicians
noted depression, sleep disturbance, a flat affect, and tearfulness. Therapist notes from
November 28, 2001 also state that White had shown “some improvement,” had a
“brighter affect,” and expressed a willingness to let go of her “using” boyfriend. But the
notes continued to reflect ongoing depression and sleep disturbance.
White sought further psychiatric help and underwent an evaluation at Hegira
Programs in December 2001. A worksheet from that month shows that White was
anxious and depressed and that she had problems sleeping. The same form states that
she had a “moderate limitation” on functioning. But the report also says that her
No. 08-2292 White v. Comm’r of Soc. Sec. Page 5
memory was good, her psychomotor ability was only “minimally” limited, and that her
mood only minimally limited her overall functioning. White was diagnosed with major
depressive disorder and once again received a GAF score of between 45 and 50.
During her next therapy session later that month, White was tearful, depressed,
and had not refilled her prescription (the record does not identify the prescription that
she failed to refill at the time). The therapist concluded that White was making little
progress because she did not want to end her codependent relationship (presumably with
her boyfriend).
In January 2002, a psychiatrist at Hegira Programs noted that White was not
experiencing any adverse side effects from certain medications that she had been
prescribed, but that she was not feeling any better either. White was prescribed another
antidepressant to improve her sleep. In February 2002, White was discharged from
Hegira Programs with a diagnosis of major depressive disorder and was assigned a GAF
score of 37. The discharge report states that White had made little progress and had not
complied with instructions regarding her medications. A document from the Cherry Hill
Internal Medical Associates indicates that, as of May 2002, her medications generally
were not working well, but that Paxil worked better than the others. Her depression was,
however, under “moderate control.”
2. Mental-health history between November 4, 2002 and July 22, 2004
White began treatment at St. John Health System’s Eastwood Clinic beginning
on November 4, 2002. She reported having symptoms of depression since she was a
teenager, including feelings of helplessness, hopelessness, guilt, disturbed sleep, fatigue,
and exhaustion. White reported that her symptoms were exacerbated when she moved
back in with her boyfriend and that she returned to reside with her mother after living
with him for only a month. (The record does not state when White returned to live with
her boyfriend.) White reported episodes of anxiety, irritability, insomnia, and good days
of normal functioning, but also bad days with extreme difficulty getting out of bed and
problems motivating herself to care for her daughter.
No. 08-2292 White v. Comm’r of Soc. Sec. Page 6
A November 21, 2002 report reflects that White was feeling better even though
she had not been sleeping well. Another report from December 2002 states that White
“has applied to [a] couple places for jobs. Making good progress.” That same month,
however, White was diagnosed with bipolar disorder. By mid-January 2003, White said
that she had enrolled in a school to complete her General Equivalency Diploma (GED)
and had applied for a job. She nevertheless still had bouts of depression as well as
vomiting and diarrhea from her medication.
Notes from her Eastwood Clinic therapist from late January 2003 show that
White was once again very upset and tearful throughout the session. In February 2003,
White reported trouble sleeping. But White had improved mood stability later that
February. She also agreed with the bipolar disorder diagnosis, stating that she has had
lifelong problems with mood instability, insomnia, and impulsiveness. Even though her
mood had stabilized on a new medication, White still had sleep difficulties and admitted
to suicidal ideation on her “bad days.” In April 2003, White appeared cheerful and more
energetic, explaining that she had been going to school to complete her GED and that
she had gone on a “first date.”
By May 2003, however, notes from an Eastwood Clinic therapist reported that
White was feeling down, tired, and sad, and that she was having crying spells. The
treating therapist opined that White might be going through another depressive episode.
White was very depressed, extremely emotional, and tearful during the May 2003
therapy session. Her therapist opined that White appeared very tired, had a significant
disturbance in her activities of daily living, and had another depressive episode. A later
May 2003 therapy session report shows that White was feeling depressed, was tearful,
felt very empty, and that her life was very stressful.
White visited Preeti Venkataraman, M.D., a psychiatrist who was not a staff
member at the Eastwood Clinic, near the end of May 2003. Dr. Venkataraman
concurred with the diagnosis of bipolar disorder and depression and assigned White a
GAF score of between 40 and 50. In July 2003, Dr. Venkataraman restated these
conclusions. White’s GAF score was 50 in August 2003. In September 2003, White had
No. 08-2292 White v. Comm’r of Soc. Sec. Page 7
high anxiety, rigid thinking, and her treating therapist recognized her behavior and belief
system as problematic. White also reported anxiety in October 2003 and was assigned
a GAF score of 45, but said that she was having up to three good days a week.
Basivi Baddigam, M.D., also a psychiatrist, examined White in October 2003 on
behalf of the Michigan state agency charged with evaluating White’s claim for Social
Security benefits. Dr. Baddigam noted that White described having episodes of mania
and depression and mood swings for 10 years. White reported that her manic episodes
typically lasted for one to two days, and her depressive episodes lasted from a few days
to a month. She also recounted that, during her depressive episodes, she was not able
to get out of bed, take care of her basic needs, or socialize, and that she felt exhausted
and cried a lot. White was again diagnosed with bipolar disorder and assigned a GAF
score of 50. Later that October, White’s status was reported as stable and her GAF was
evaluated at 45.
A psychiatrist who worked for the Social Security Administration’s state agency,
H.C. Tien, reviewed White’s claim file in November 2003. Dr. Tien completed a
Psychiatric Review Technique form reflecting that White was mildly limited with regard
to activities of daily living, that she had mild difficulties in maintaining social
functioning, and that she had moderate difficulties in maintaining concentration,
persistence, or pace. White’s file also showed, according to Dr. Tien, that she was
moderately limited in her ability to carry out detailed instructions, maintain attention and
concentration for extended periods, set realistic goals, or make plans independently of
others. Dr. Tien concluded that White was capable of performing a wide range of
simple, unskilled tasks in a regular work environment.
A medication-review form from January 2004 notes that White’s status was
stable, her GAF was assessed between 40 and 50, and that sleep was still a problem.
An Eastwood Clinic progress report from later that month shows that White reported
poor sleep and that she was afraid of her ex-boyfriend. In February 2004, White’s status
was improving and her mood was better, but her GAF was still set between 40 and 50,
she still had sleep problems, and she reported problems “coping.”
No. 08-2292 White v. Comm’r of Soc. Sec. Page 8
In March 2004, White’s symptoms included psychomotor retardation. She said
that she was not doing well, and her counselor encouraged her to write when she felt
paralyzed. Her mood was stable and her GAF was rated by Dr. Venkataraman as
between 45 and 55. In April 2004, White reported feeling overwhelmed.
Treatment notes from May 2004 indicate that White’s status was improving.
They also show, however, that White reported struggles with day-to-day functioning.
Another set of May 2004 treatment notes state that White had increased motivation for
intimacy and felt ready to date. But later that May White reported again feeling
overwhelmed.
On July 1, 2004, Dr. Venkataraman filled out a worksheet for White, which
purportedly described White’s ability (or inability) to work. Dr. Venkataraman opined
that White had poor to no ability to deal with the public, deal with work stresses,
function independently, maintain attention and concentration, deal with changes in a
routine work setting, or understand, remember, and carry out complex and detailed job
instructions. The same document defines “poor” as “[n]o useful ability to function in
this area.” But Dr. Venkataraman also concluded that White had a “fair” ability to
follow work rules, relate to coworkers, use judgment, interact with supervisors,
understand, remember, and carry out simple job instructions, maintain personal
appearance, behave in an emotionally stable manner, relate predictably in social
situations, and demonstrate reliability. A “fair” ability is defined in the form as the
ability to function that is “seriously limited, but not precluded.”
Dr. Venkataraman filled out an “Affective Disorders Assessment” form on the
same date, which concluded that White suffered from sleep disturbance, decreased
energy, difficulty concentrating or thinking, easy distractibility, and paranoid thinking.
The form further opined that White had “marked restrictions” on activities of daily living
and difficulty maintaining social functioning, extreme difficulty maintaining
“concentration, persistence, or pace, and four or more episodes of decompensation.”
“Marked restrictions,” according to the form, are impairments that seriously interfere
with the ability to function independently, appropriately, and effectively (up to 75% of
No. 08-2292 White v. Comm’r of Soc. Sec. Page 9
the time). Although the form included sections for comments or elaboration, the doctor
left those portions blank. On July 22, 2004, Dr. Venkataraman noted that White had
shown improvement, but still considered her to have a GAF of between 40 and 50.
3. Mental-health history after July 22, 2004
Therapist notes from August 2004 describe White as being “overwhelmed,” but
also said that she was “doing better [living in her mother’s] basement.” In September
2004, White was described by a therapist as “underfunctioning.” White also stated that
anything beyond the most basic things she does is “too much for her.”
Dr. Venkataraman reported that White’s status was deteriorating and that her
GAF remained at 50 as of September 2004. In October of the same year, a therapist
noted that White was continuing to “assert herself about [her] disability claim” and that
she was unmotivated to get out of her bed except to care for herself and her animals.
The same therapist notes state that she “is making progress.”
In November 2004, White said that other people were asking too much of her.
White’s status was described as “critical” (a designation that is not explained in the
record) and she was found to be focused “on the negative aspects of her circumstances.”
Also in November 2004, Dr. Venkataraman reported White’s condition as “stable” and
that she had a GAF of 50 at that time. Therapy notes from December 2004 said that
White, although continuing to have difficulty with her mood, was “doing well.”
B. Procedural background
White was 27 years old when she applied for disability insurance and
Supplemental Security Income benefits in June 2003. She claimed to be disabled as of
December 15, 1999 due to bipolar disorder and severe depression. Her application was
initially denied, and White requested an administrative hearing in response to the denial.
At the hearing, the ALJ evaluated White’s personal testimony as well as that of
vocational expert (VE) James Fuller.
No. 08-2292 White v. Comm’r of Soc. Sec. Page 10
White testified that she has a GED. As for her work history, she reported that her
most recent job lasting more than three months involved both shipping and receptionist
duties, adding that the position required her to lift up to 50 pounds occasionally, 20
pounds frequently, and to walk or stand on a constant basis. She stated that the last time
she had worked was during a two-week stint at a pharmacy in 2000. Before the
pharmacy job, she had worked at Target stocking shelves and cashiering for a total of
two months.
White attributed her inability to work more than a few weeks at a time to anxiety,
sleeplessness, and depression. She added that, before her work as a Target stock clerk,
she had worked briefly as a receptionist, a sales clerk, and as a warehouse worker.
White quit the warehousing position to work at Target for “better hours.” She was
discharged from Target after exhibiting symptoms of anxiety and depression. White
testified that, during her stint as a warehouse worker, she missed work because of
depression. She admitted, however, that she was still capable of gainful employment
when she quit.
White said that she first sought mental health treatment in the summer of 2000.
She reported that a psychiatrist initially diagnosed her as having a compulsive disorder,
but that she was rediagnosed because the prescribed medication failed to improve her
condition. White stated that she was subsequently prescribed Paxil by Dr. Margolis.
She began psychiatric treatment at the Eastwood Clinic in 2002. White explained that
her condition was marked by lethargy, racing thoughts, anxiety, agitation, and the
inability to focus. She alleged that her condition had worsened since 2000 due to
medication changes, noting that her “bad” days outnumbered the “good” ones. White
said that Cerapro eased her symptoms of paranoia and that Propanol helped her control
the “jitters.” She reported that, in addition to her mental conditions, she suffered from
endometriosis that required yearly surgery. White admitted that on her good days she
was able to function, but doubted that she could both work and take care of her
school-age daughter.
No. 08-2292 White v. Comm’r of Soc. Sec. Page 11
VE Fuller also testified during the hearing. He was asked to opine on the
availability of jobs for someone sharing White’s basic characteristics and functional
limitations. To that end, the ALJ posed the following hypothetical question:
Assume . . . that our hypothetical Claimant needs work that is in a
relatively clean setting, she needs a low stress environmental and I am
defining low stress as one where there is no requirement to work with the
general public, nor in close contact with co-workers. Our hypothetical
Claimant also needs simple repetitive type work or [sic] because of a
moderate limitation in their ability to maintain attention and
concentration due to mental impairment. There is moderate limitation in
their ability to understand and then to carry out detailed instruction due
to a mental impairment. If you assume that, what jobs would our
hypothetical Claimant be vocationally qualified to perform?
The VE opined that a person with the above limitations could perform “a limited
number” of light, unskilled assembling, packaging, and inspection jobs, finding that
2,000 jobs for each position existed in the regional economy. He found that
approximately 500 additional positions existed for each job listing at the sedentary
exertional level and an addition 500 at the medium level, adding that he limited his
findings to unskilled work based on the hypothetical’s limitation of “simple repetitive
work.” But the VE also said that if the hypothetical individual had “poor or no ability
to deal with work stresses, maintain attention and concentration, and function
independently,” all gainful employment would be precluded.
In light of White’s medical records and the testimony provided at the hearing, the
ALJ found that, although White’s conditions of bipolar disorder and depression (along
with other conditions not relevant to this appeal) were severe impairments based on the
regulations contained in 20 C.F.R. § 404.1520(c), none of them were considered to be
disabilities per se pursuant to the Commissioner’s regulations. This finding required the
ALJ to consider whether White could perform work that she had done in the past. The
ALJ determined that White could not do so. Nevertheless, the ALJ found that White
retained the following residual functional capacity (RFC) from December 15, 1999 to
November 4, 2002, and since July 22, 2004:
No. 08-2292 White v. Comm’r of Soc. Sec. Page 12
[L]ight exertional work in a relatively clean environment in a low stress
setting. Low stress setting means no work with the general public or in
close contact with co-workers. The work must be unskilled to allow for
moderate limitations in an ability to maintain concentration for extended
periods and to carry out detailed instructions due to pain and depression.
Despite this finding, the ALJ found that White was disabled from November 4, 2002 to
July 22, 2004. The ALJ observed that, during this period, White experienced “marked
restrictions.” But the ALJ found that, before and after the closed period of disability,
White was capable of a limited range of light work, including the jobs of assembler,
packager, and visual inspector.
The ALJ also determined that White’s allegations of ongoing disability were “not
fully credible,” finding that, despite the presence of a mental impairment, “the medical
record only shows that it was severe for [a] closed period of time before it responded
well to psychotropic medications and therapy.” Noting the November 2003 Mental
Residual Functional Capacity Assessment finding by Dr. Tien that White could perform
“simple, unskilled work,” the ALJ determined nonetheless that treating records
supported her determination of the closed period of disability.
White requested that the Social Security Appeals Council review the adverse
portion of the ALJ’s decision. After the Appeals Council affirmed the ALJ’s ruling,
White filed a civil action against the Commissioner in federal district court, seeking
judicial review of the ALJ’s decision. The Commissioner filed a motion for summary
judgment, which was assigned to a magistrate judge for study. In his Report and
Recommendation (R&R), the magistrate judge concluded that the ALJ reasonably found
that White’s psychological problems were exacerbated by interpersonal conflicts and
housing arrangements before the closed period and that her condition had improved after
that period. The magistrate judge also found that the ALJ was entitled to reject the
opinion of White’s treating physician Dr. Venkataraman on the basis that it “stood at
odds with therapy notes as well as other portions of the record.” Moreover, the
magistrate judge determined that the ALJ’s adverse credibility determination was not
patently wrong, and that “the hypothetical question to the VE properly accounted for all
No. 08-2292 White v. Comm’r of Soc. Sec. Page 13
of White’s mental deficiencies.” The district court adopted the magistrate judge’s R&R
in July 2008. This timely appeal followed.
II. ANALYSIS
A. Standard of review and legal framework
We exercise de novo review of district court decisions in Social Security cases.
Valley v. Comm’r of Soc. Sec., 427 F.3d 388, 390 (6th Cir. 2005). The Commissioner’s
conclusions must be affirmed absent a determination that the ALJ failed to apply the
correct legal standards or made findings of fact unsupported by substantial evidence in
the record. 42 U.S.C. § 405(g); see also Preslar v. Sec’y of Health & Human Servs.,
14 F.3d 1107, 1110 (6th Cir. 1994) (“We will affirm the Secretary’s decision to deny
benefits as long as the Secretary applied correct legal standards in reaching the decision,
and as long as the Secretary’s findings of fact are supported by substantial evidence.”).
Substantial evidence is “such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Richardson v. Perales,
402 U.S. 389, 401 (1971)
(citation omitted).
This means that administrative findings
are not subject to reversal merely because substantial evidence exists in
the record to support a different conclusion. The substantial evidence
standard presupposes that there is a “zone of choice” within which the
Secretary may proceed without interference from the courts. If the
[administrative] decision is supported by substantial evidence, a
reviewing court must affirm.
Felisky v. Bowen, 35 F.3d 1027, 1035 (6th Cir. 1994) (citations omitted). “Even if
supported by substantial evidence, however, a decision of the Commissioner will not be
upheld where the [Social Security Administration] fails to follow its own regulations and
where that error prejudices a claimant on the merits or deprives the claimant of a
substantial right.” Bowen v. Comm’r of Soc. Sec.,
478 F.3d 742, 746 (6th Cir. 2006).
To receive disability benefits under the SSA, an applicant must be “disabled”
within the meaning of the Act. Individuals are “disabled” under the SSA if they are
No. 08-2292 White v. Comm’r of Soc. Sec. Page 14
“unable 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
twelve months.” 42 U.S.C. § 1382c(a)(3)(A).
Moreover,
an individual shall be determined to be under a disability only if his
physical or mental impairment or impairments are of such severity that
he is not only unable to do his previous work but cannot, considering his
age, education, and work experience, engage in any other kind of
substantial gainful work which exists in the national economy, regardless
of whether such work exists in the immediate area in which he lives, or
whether a specific job vacancy exists for him, or whether he would be
hired if he applied for work.
42 U.S.C. § 1382c(a)(3)(B).
The preceding statutory requirements have been distilled into a regulatory
framework that sets forth a five-step sequential analysis used to determine whether a
particular applicant for disability benefits is indeed “disabled.” This court has
summarized the framework as follows:
The claimant must first show that she is not engaged in substantial
gainful activity. Next, the claimant must demonstrate that she has a
“severe impairment.” A finding of “disabled” will be made at the third
step if the claimant can then demonstrate that her impairment meets the
durational requirement and “meets or equals a listed impairment.” If the
impairment does not meet or equal a listed impairment, the fourth step
requires the claimant to prove that she is incapable of performing work
that she has done in the past. Finally, if the claimant’s impairment is so
severe as to preclude the performance of past work, then other factors,
including age, education, past work experience, and residual functional
capacity, must be considered to determine if other work can be
performed. The burden shifts to the Commissioner at this fifth step to
establish the claimant’s ability to do other work.
Foster v. Halter, 279 F.3d 348, 354 (6th Cir. 2001); see also 20 C.F.R.
§ 404.1520(a)(4)(i)–(v).
No. 08-2292 White v. Comm’r of Soc. Sec. Page 15
In addition to the five-step analysis outlined in 20 C.F.R. § 404.1520, the
Commissioner has promulgated regulations governing evaluations of the severity of
mental impairments. See Kohler v. Astrue, 546 F.3d 260, 265 (2d Cir. 2008) (citing
20 C.F.R. § 404.1520). “These regulations require application of a ‘special technique’
at the second and third steps of the five-step framework.”
Id. (citations omitted).
Because White does not contend on appeal that the ALJ failed to properly apply the
special technique, however, further elaboration of these regulations is unnecessary.
B. Disability finding
The ALJ determined that White’s bipolar disorder and depression were so severe
that they rendered her disabled between November 4, 2002 and July 22, 2004. But the
ALJ found that White was able to work and was therefore not disabled either before or
after those dates. White contests the adverse aspects of the ALJ’s decision.
1. The ALJ’s finding that White was not disabled prior to
November 4, 2002 is supported by substantial evidence
White maintains that the ALJ’s determination that she could work prior to
November 4, 2002 is not supported by substantial evidence. The overall thrust of her
argument is that there is no material difference between the severity of her mental
impairments before November 4, 2002 and the time during the “closed period” when
White was deemed disabled. If she was disabled during the closed period due to her
bipolar disorder and depression, White contends, she must have been disabled before
November 4, 2002. The ALJ’s finding to the contrary, White argues, is thus erroneous.
But we are not persuaded by White’s argument that there is no material
difference in the record before and after November 4, 2002. The difference is subtle, but
it exists. Prior to November 4, 2002, there is little indication that White’s mental
impairments, even though severe, rendered her unable to engage in substantial gainful
activities. White indeed mentioned feeling depressed and sleepless during this earlier
period of time. But her treating counselors and physicians also noted, for example, that
her intellectual functioning was average, her memory was normal, and that she had fair
judgment and insight and good impulse control. Another treatment note from this time
No. 08-2292 White v. Comm’r of Soc. Sec. Page 16
period states that her memory was “good,” that she had “adequate” judgment, and that
her ability to concentrate was only moderately impaired. Moreover, her psychomotor
activities were considered only “minimally” limited.
This is all notably better than her mental condition during the closed period.
Treatment records from that time frame show that she suffered from “debilitating guilt,”
“significant psychomotor retardation,” and “[s]ignificant disturbance of or changes in
patterns of sleep, appetite, or activities in daily living.” White also reported feeling
“paralyzed” during the closed period, which marks another material difference from the
pre-November 4, 2002 time frame. A fair reading of the medical record from White’s
treating sources thus supports a finding that White had a severely limiting—but not
completely disabling—mental condition during the pre-November 4, 2002 time period.
The administrative record also exposes a significant and unexplained gap in
treatment between her withdrawal as a patient at Hegira Programs in May 2002 and the
commencement of treatment at the Eastwood Clinic in November 2002. We recognize
that ALJs must be careful not to assume that a patient’s failure to receive mental-health
treatment evidences a tranquil mental state. For some mental disorders, the very failure
to seek treatment is simply another symptom of the disorder itself. See Pate-Fires v.
Astrue, 564 F.3d 935, 945 (8th Cir. 2009) (listing cases recognizing that a mentally ill
person’s noncompliance with treatment “can be . . . the result of the mental impairment
itself and, therefore, neither willful nor without a justifiable excuse”) (citations, internal
quotation marks, and brackets omitted). But in this case there is no evidence in the
record explaining White’s failure to seek treatment during this half-year gap. A
“reasonable mind” might therefore find that the lack of treatment during the pre-
November 4, 2002 time frame indicated an alleviation of White’s symptoms. See
Richardson v. Perales,
402 U.S. 389, 401 (1971) (describing the substantial-evidence
standard) (citation omitted).
White nevertheless asserts several specific objections to the ALJ’s findings. She
accuses the ALJ of cherry picking treatment notes that paint her condition in a positive
light, while ignoring more troubling aspects, such as White’s repeated expression of
No. 08-2292 White v. Comm’r of Soc. Sec. Page 17
depression, her tearfulness, and her consistently low GAF scores. White also notes that
the ALJ’s no-disability finding presupposed an unsupported diagnosis of White’s
depression as “situational”—i.e., caused primarily by various personal problems as
opposed to her mental disorders.
This last objection is not wholly without merit. The ALJ should not have labeled
White’s depression during the pre-November 4, 2002 time frame as “situational”
because there is no basis in the record for concluding that White’s depression was
primarily caused by her personal problems as opposed to her mental disorders. See
S.S.R. 86-8 (“Reasonable inferences may be drawn, but presumptions, speculations and
suppositions should not be substituted for evidence.”) A person’s personal problems and
his or her mental disorders cannot always be so neatly disentangled. But the ALJ’s
inappropriate characterization of the causes of White’s condition is irrelevant because
the clinical records themselves, such as those describing White’s psychomotor abilities,
support the ALJ’s finding that White’s retained the ability to work before November 4,
2002.
This leaves White’s accusation of “cherry picking.” But we see little indication
that the ALJ improperly cherry picked evidence; the same process can be described more
neutrally as weighing the evidence. White has not persuasively shown that the ALJ
erred in conducting this difficult task.
2. The ALJ’s finding that White was not disabled after July 22, 2004
In addition to challenging the November 4, 2002 start date of the closed period,
White maintains that there is no substantial evidence supporting the ALJ’s determination
that her condition improved after July 22, 2004. She also argues that the ALJ failed to
properly consider the episodic nature of bipolar disorder and depression.
White’s first argument is without merit. Contrary to White’s view, we find
substantial evidence supporting the ALJ’s finding that White’s condition improved after
July 22, 2004. Notes from August through November 2004 showed signs of “progress”
and steady improvement. Indeed, there was evidence suggesting that White’s condition
No. 08-2292 White v. Comm’r of Soc. Sec. Page 18
was improving and stabilizing before July 22, 2004. Dr. Tien’s review of the record in
2003, for example, led him to conclude that White was able to perform certain kinds of
low-skilled work. Although Dr. Tien was a nontreating source, some of White’s treating
sources corroborated this finding. Among those was an Oakwood Hospital report from
February 2003, which showed that Trileptal improved White’s mood stability and was
making her less irritable. Other notes, although somewhat more equivocal, suggest that
White was doing better in July and October of the same year.
Perhaps most tellingly, Dr. Venkataraman—on whose opinion White heavily
relies—opined that as of July 1, 2004 White had a “fair” ability to follow work rules,
relate to coworkers, use judgment, interact with supervisors, understand, remember and
carry out simple job instructions, maintain personal appearance, behave in an
emotionally stable manner, relate predictably in social situations, and demonstrate
reliability. This suggests, if anything, that White’s upward trajectory began before
July 22, 2004. But the ALJ was nevertheless careful not to ascribe too much weight to
these early reports of improvement, presumably due to the episodic nature of White’s
disorder.
White responds by repeating her argument that the ALJ impermissibly cherry
picked data. She asserts that the ALJ ignored the fact that Dr. Venkataraman
continuously applied a low GAF score of between 40 and 50 to White both during and
after the closed period. Moreover, White claims that the ALJ failed to discuss evidence
of White’s condition after July 22, 2004, such as the notes from White’s therapy session
on August 4, 2004 that found that she was once again feeling “overwhelmed.” Two
other reports from September 2004 show that White was “underfunctioning, neg” and
that her status was deteriorating. In October 2004, White was unmotivated to get out of
bed except to care for her child and animals. White contends that this establishes an
overall pattern of decline in her mental state that the ALJ simply ignored.
The problem with White’s cherry picking argument, however, is that it cuts both
ways. She too cherry picks data. Although White correctly notes that she had some
“bad days” after July 22, 2004, she must also recognize that the ALJ gave her the benefit
No. 08-2292 White v. Comm’r of Soc. Sec. Page 19
of the doubt on certain “good days” that occurred during the closed period. More
importantly, substantial evidence supports the Commissioner’s position that these
“down” days after July 22, 2004 simply do not compare with the paralyzing nature of
the depression that White felt during the closed period. The argument that there is no
material difference between the time during the closed period and thereafter is therefore
without merit.
White’s frustration is nevertheless understandable. The dates that the ALJ chose
to mark the beginning and ending of the closed period—November 4, 2002 and July 22,
2004—do not neatly correspond to any “smoking gun” medical documents that
unequivocally explain why the ALJ chose those dates. On the other hand, the dates are
not so wholly arbitrary so as to carry the ALJ’s decision outside the “zone of choice”
that the ALJ possesses in rendering disability decisions. See Felisky v. Bowen, 35 F.3d
1027, 1035 (6th Cir. 1994) (citations omitted). We therefore conclude that the ALJ’s
finding that White had the residual functional capacity to work outside the closed period
is supported by substantial evidence.
C. Dr. Venkataraman’s medical opinion
White next focuses on Dr. Venkataraman’s undated affective-disorders
assessment, which opined that White had “marked” restrictions on daily living and social
functioning, as well as “extreme” difficulties “in maintaining concentration, persistence,
or pace.” Dr. Venkataraman also reported that White had experienced four or more
episodes of decompensation. The ALJ did not consider this assessment to be controlling
in evaluating White’s residual functional capacity.
White argues that the ALJ’s failure to do so violates the treating-physician rule.
This rule directs ALJs to given controlling weight to the medical opinion of a treating
physician if that opinion “is well-supported by medically acceptable clinical and
laboratory diagnostic techniques and is not inconsistent with the other substantial
evidence in your case record . . . .” 20 C.F.R. § 404.1527(d)(2). Opinions of treating
physicians are given great weight even if those opinions are deemed not to be
controlling. S.S.R. 96-2p. ALJs must articulate “good reasons” for not giving the
No. 08-2292 White v. Comm’r of Soc. Sec. Page 20
opinions of a treating physician controlling weight. 20 C.F.R. § 404.1527(d)(2). But
“the ultimate decision of disability rests with the administrative law judge.” Walker v.
Sec’y of Health and Human Servs., 980 F.2d 1066, 1070 (6th Cir. 1992).
The ALJ gave three basic reasons for not affording Dr. Venkataraman’s
affective-disorders assessment controlling weight. First, Dr. Venkataraman’s undated
assessment stands in tension with the doctor’s July 1, 2004 evaluation, which concluded
that White had a “fair” ability to follow work rules, relate to coworkers, use judgment,
interact with supervisors, understand, remember and carry out simple job instructions,
maintain personal appearance, behave in an emotionally stable manner, relate
predictably in social situations, and demonstrate reliability. The form defines “fair” as
an ability to function that is “seriously limited, but not precluded.” Contrary to the
affective-disorders assessment, the work-ability evaluation suggests that White had the
ability to engage in certain kinds of work, albeit severely limited.
The second reason for discounting Dr. Venkataraman’s affective-disorders
assessment is its lack of detail. Conclusory statements from physicians are properly
discounted by ALJs. Buxton v. Halter, 246 F.3d 762, 773 (6th Cir. 2001) (stating that
ALJs are “not bound by conclusory statements of doctors”). Dr. Venkataraman failed
to point to particular documents in White’s medical history supporting the doctor’s
conclusions. For example, although the assessment asserts that White had experienced
four episodes of decompensation, Dr. Venkataraman failed to describe the onset,
duration, or severity of even a single such episode. The fact that the assessment is
undated also harms White’s position because there is no way for the ALJ to know how
long Dr. Venkataraman had been treating White before the doctor rendered her
conclusion regarding White’s severely limited ability to work. This information might
have supported White’s claim that the ALJ’s finding was unjustified.
Finally, the ALJ discounted the assessment because it conflicted with other
evidence in the record that indicated White’s sustained improvement. The ALJ’s finding
in this regard is supported by substantial evidence for the reasons that have already been
discussed above in Part II.B. In light of the foregoing analysis, we find no error in the
No. 08-2292 White v. Comm’r of Soc. Sec. Page 21
ALJ’s proffered rationale for discounting Dr. Venkataraman’s assessment of White’s
ability to work.
In a final effort to undermine the ALJ’s decision to discount the views of Dr.
Venkataraman, White cites Bauer v. Astrue, 532 F.3d 606 (7th Cir. 2008). The Seventh
Circuit in Bauer chided the ALJ for disregarding the opinions of two of the plaintiff’s
treating physicians, both of whom had firmly concluded that the plaintiff’s mental
impairment was so severe that he could not hold down a full-time job.
Id. at 608-09.
Bauer also noted that the ALJ apparently misunderstood the episodic nature of bipolar
disorder.
Id.
But Bauer is readily distinguishable on at least two grounds. First, none of
White’s treating physicians have unequivocally opined, as they did in Bauer, that she
cannot hold a full-time job due to her mental impairments. See
id. Nor is there any
indication that the ALJ ignored the episodic nature of White’s disorders. Indeed, as
noted earlier in Part II.B.2., the ALJ declined to cut off the closed period in 2003 even
though White had shown some signs of improvement during that year. The ALJ
apparently understood that temporary improvements in White’s mood during the closed
period did not suffice to overcome the particularly severe and disabling downturn in her
condition overall during the same time frame. White’s argument that the ALJ erred in
light of Bauer is therefore unpersuasive.
D. Credibility finding
The ALJ also found that White was not fully credible because, contrary to
White’s assertions, the medical record showed that she responded well to medications
and therapy. White argues that substantial evidence does not support the ALJ’s adverse-
credibility finding because she did not in fact improve as a result of the medication she
received. She also maintains that the ALJ did not properly focus on appropriate Social
Security Regulations in assessing her credibility. See S.S.R. 96-7p (setting forth a
nonexhaustive list of multiple factors to consider in determining credibility).
No. 08-2292 White v. Comm’r of Soc. Sec. Page 22
These arguments lack merit. The first one boils down to the same claim rejected
in Part II.B. above; namely, that the administrative record does not support a finding that
White improved, and that the ALJ should have fully believed White’s testimony instead.
But there is nothing patently erroneous in the ALJs decision to rely on her own
reasonable assessment of the record over the claimant’s personal testimony. See S.S.R.
96-7p (stating that ALJs may rely on “[s]tatements and reports from the individual and
from treating or examining physicians or psychologists and other persons about the
individual’s medical history” to assess credibility).
As for the second argument, the ALJ expressly stated that she had considered
S.S.R. 96-7p, which details the factors to address in assessing credibility. There is no
indication that the ALJ failed to do so. This claim therefore lacks merit as well. In light
of this court’s deferential approach to credibility assessments, White has failed to
demonstrate that the ALJ’s adverse-credibility finding was not supported by substantial
evidence. See Barker v. Shalala, 40 F.3d 789, 795 (6th Cir. 1994) (“The ALJ’s
credibility findings are subject to substantial deference on review . . . .”) (citation
omitted).
E. Jobs in the national economy
Finally, White argues that the Commissioner failed to meet his burden of
establishing that there are a significant number of jobs in the national economy that
White can perform. The ALJ found there were such jobs after asking the VE whether
a hypothetical claimant, sharing White’s characteristics and limitations, could do any
work. White argues that the ALJ erred in constructing the hypothetical. In particular,
the ALJ stated that “[o]ur hypothetical Claimant also needs simple repetitive type work
or [sic] because of a moderate limitation in [the] ability to maintain attention and
concentration due to mental impairment.” The ALJ purportedly erred by including the
criterion of “simple repetitive type work.” White contends that this limitation was
misleading because the possibility exists that a claimant’s limited ability to concentrate
might make the performance of even repetitive-type work impossible.
No. 08-2292 White v. Comm’r of Soc. Sec. Page 23
In support of this claim, White cites Edwards v. Barnhart, 383 F. Supp. 2d 920
(E.D. Mich. 2005), which explained that some disability claimants
may be unable to meet quotas, stay alert, or work at a consistent pace,
even at a simple, unskilled, routine job. The current hypothetical
question is not adequate on the issue of moderate limitations of
concentration, persistence and pace for this Court to have any idea as to
the number of the assembly, packing, and sorting or security guard jobs
identified by the VE that would be excluded if quotas or other aspects
related to moderate concentration limitations were added to the
hypothetical question. Each of these jobs seems to require a degree of
sustained concentration, persistence and pace . . . . Thus, the ALJ’s
hypothetical question is insufficient.
Id. at 930-31 (emphasis added). Upon concluding that the hypothetical posed to the VE
did not reflect the moderate limitations on concentration experienced by the plaintiff, the
district court in Edwards remanded the plaintiff’s disability claim to the ALJ.
Id.
The Commissioner responds by contending that Edwards is not good law in light
of Smith v. Halter,
307 F.3d 377, 379 (6th Cir. 2001), which rejected the argument that
an ALJ who found that a claimant “often” had problems concentrating was required to
include that finding in the hypothetical question. But the panel need not address whether
Edwards is consistent with Halter because Edwards itself is distinguishable from
White’s case. The hypothetical claimant posited by the ALJ in Edwards gave the VE
no indication that the plaintiff had “moderate limitations [on] concentration, persistence
and
pace.” 383 F. Supp. 2d at 930-31. In contrast, the hypothetical posed to the VE
during White’s hearing expressly included the condition that the claimant had a
“moderate limitation in [the claimant’s] ability to maintain attention and concentration
due to mental impairment.” White has therefore failed to show that the ALJ’s
hypothetical was an inaccurate representation of White’s functional limitations.
Finally, White objects to the ALJ’s phrasing of the hypothetical. This objection,
raised for the first time on appeal, is that the ALJ misled the VE by stating that White
could “perform work” and then listing “additional limitations.” But “this Court will not
consider claims that are presented for the first time on appeal nor arguments that are not
properly raised below.” See Berryman v. Rieger, 150 F.3d 561, 568 (6th Cir. 1998)
No. 08-2292 White v. Comm’r of Soc. Sec. Page 24
(refusing to consider a qualified-immunity challenge because the defendant failed to
bring it to the attention of the district court). In sum, White has failed to show that the
ALJ erred in constructing the hypothetical question put to the VE.
III. CONCLUSION
For all of the reasons set forth above, we AFFIRM the judgment of the district
court.
