NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                             File Name: 09a0810n.06

                                           No. 08-6473                                    FILED
                                                                                      Dec 18, 2009
                          UNITED STATES COURT OF APPEALS                         LEONARD GREEN, Clerk
                               FOR THE SIXTH CIRCUIT


LARRY W. COLLINS,                                         )
                                                          )
       Plaintiff-Appellant,                               )
                                                          )
v.                                                        )   ON APPEAL FROM THE UNITED
                                                          )   STATES DISTRICT COURT FOR
COMMISSIONER OF SOCIAL SECURITY,                          )   THE EASTERN DISTRICT OF
                                                          )   TENNESSEE
       Defendant-Appellee.                                )
                                                          )
                                                          )


       Before: GRIFFIN and KETHLEDGE, Circuit Judges; and CARR, District Judge.*

       JAMES G. CARR, DISTRICT JUDGE. Plaintiff-Appellant Larry W. Collins appeals from

a district court order affirming the Commissioner’s determination that he was not disabled and,

therefore, not entitled to Disability Insurance Benefits [DIB] or Supplemental Security Income [SSI].

On appeal, Collins challenges the decision of the Administrative Law Judge [ALJ], arguing: 1) the

ALJ’s residual functional capacity [RFC] determination is not supported by substantial evidence;

and 2) the ALJ erred in relying on the Medical-Vocational Guidelines to determine whether there

is other work in the national economy that Collins can perform.

       For the reasons discussed below, we AFFIRM the judgment of the district court.

       *
        The Honorable James G. Carr, Chief Judge of the Northern District of Ohio, sitting by
designation.


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No. 08-6473
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                                            Background

       Claimant applied to the Social Security Administration for DIB and SSI on May 26, 2004.

(Administrative Record [AR] at 53-55). The Commissioner of the Social Security Administration

[Commissioner] denied his applications both initially and on reconsideration, and claimant requested

an administrative hearing.

       Claimant was born on October 30, 1952, and was forty-eight years old on July 15, 2001, the

alleged disability onset date. He has a ninth grade education, and last worked as a laborer in

construction on a pipe crew for three and a half to four years. He was fired from this job on July 15,

2001, after arguing with his boss. He alleges disability based on mental impairments.1

       On November 3, 2004, claimant underwent a consultative examination by Alice Garland,

M.S. 

Claimant reported that he had been depressed and nervous for approximately

eighteen months. He reported that a friend and girlfriend had recently committed suicide. Claimant

reported additionally that he had been taking Zoloft for approximately six months, and that the

medication helped his symptoms, but made him nervous and did not help him sleep. He also reported

that he drank alcohol several times a week, or whenever he could afford it.




       1
          Claimant initially alleged both physical and mental impairments. However, on appeal, he
does not challenge the ALJ’s determination that he has no physical impairment. We, therefore, only
address claimant’s claims of mental impairment. See Hollon v. Comm’r of Soc. Sec., 

,
491 (6th Cir. 2006) (“[W]e limit our consideration to the particular points that [claimant] appears
to raise in her brief on appeal.”).

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        Claimant told Garland that he visited with people daily, did some grocery shopping, and

prepared and ate simple meals. He also told Garland that he thought he could work if his hernia were

fixed and “if he could find a job that he liked and could get along.” 

        Garland diagnosed claimant with major depressive disorder, alcohol abuse, polysubstance

abuse in remission, borderline to low average intellectual functioning, and personality disorder not

otherwise specified. She assigned him a Global Assessment of Functioning [GAF] score of

fifty/fifty-five.2

        On November 9, 2004, a state physician reviewed claimant’s medical records. 

The physician stated that claimant was “able to remember and carry out simple instructions/tasks,

detailed [with] some difficulty at times, but can still do so.” 

The reviewing physician

further opined that claimant was “able to interact [with the] general public [with] some difficulty at

times, but still can do so” and that claimant was “able to respond to routine changes.” 

Lakeshore Mental Health Institute with suicidal ideations from July 29,

2005, to August 3, 2005.

        In September 2005, claimant began receiving treatment from Cherokee Mental Health. 

His treating psychiatrist diagnosed him with bipolar disorder and polysubstance abuse.



        2
         A GAF score of fifty-one to sixty “indicates moderate symptoms (e.g., flat affect and
circumstantial speech, occasional panic attacks), or moderate difficulty in social, occupational, or
school functioning (e.g., few friends, conflicts with peers or co-workers).” Kornecky v. Comm’r of
Soc. Sec., 167 F. App’x 496, 503 (6th Cir. 2006) (internal quotation omitted). A GAF score of forty-
one to fifty “indicates serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent
shoplifting) or any serious impairment in social, occupational, or school functioning (e.g., no friends,
unable to keep a job).” 

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Collins v. Comm’r of Soc. Sec.

He was assigned a GAF score of sixty. In October 2005, the psychiatrist reported that claimant was

“generally pleased” with the benefits of psychotropic medications, but reported he had occasional

visual hallucinations. 

The psychiatrist also noted that claimant’s mood was “reasonably

modulated” and that his thinking was “coherent.” 

claimant a GAF score of fifty-five.

During the course of his treatment at Cherokee Mental Health, claimant’s GAF score increased from

a low of fifty to sixty-five in April 2006, and sixty in July 2006.

       At the hearing before the ALJ on May 9, 2007, claimant testified about his work history,

symptoms and medical treatment. 

He testified that he had applied for work after losing

his job as a construction laborer working on a pipe crew, but had been rejected. He stated that he had

tried to find employment at a body shop and mowing lawns. He testified that he was not hired

because of the medication he was taking, and because he “never could show up on time [because he

would] always miss the ride to work.” 

       Claimant testified that he lived alone in a mobile home and that his sister is his only source

of income. He said he gets his meals from a store near where he lives, and eats them at home. He

also testified that sometimes medication helps his nerves and sometimes it does not, and that when

it does not, he stays inside and sleeps and watches the news and weather on television. Later in the

hearing, he testified that he cannot follow a news program because he cannot “concentrate for a real

long period of time,” and that he gets “angry most of the time at the stuff that’s on TV.” 

52.

       On May 25, 2007, the ALJ found claimant not disabled. The ALJ summarized claimant’s

medical treatment records and determined that: 1) claimant was not engaged in substantial gainful

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Collins v. Comm’r of Soc. Sec.

activity; 2) claimant had several severe impairments: status post hernia repair, hepatitis B, cirrhosis,

depression and a personality disorder; 3) claimant’s impairments are not of listing severity; and 4)

claimant is unable to perform past relevant work.

        The ALJ then determined that claimant had no physical limitations, but some mental

limitations: “[H]e would be able to remember and carry out simple instructions; however, would

have moderate limitation in detailed instructions but still can do [sic]; [he is] able to interact with

general public at times but still can do [sic] and is able to respond to routine changes.” 

The

ALJ determined that claimant’s subjective complaints were not entirely credible, noting his history

of treatment, the reports of the treating and examining medical sources, and the inconsistencies in

claimant’s testimony. The ALJ lastly determined that there are jobs in the national economy that

claimant could perform.

        The ALJ’s decision became the final decision of the Commissioner when the Appeals

Council denied claimant’s request for review on September 24, 2007.

        Claimant subsequently filed the present action with the district court, which overruled

claimant’s objections and adopted the Report and Recommendation of the Magistrate Judge finding

that the ALJ’s decision was supported by substantial evidence. The district court denied claimant’s

motion for summary judgment and granted defendant’s motion for summary judgment. This appeal,

over which we have jurisdiction under 42 U.S.C. § 405(g) and 28 U.S.C. § 1291, followed.




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                                              Discussion

                                        1. Standard of Review

        The Commissioner’s final decision is subject to review under 42 U.S.C. § 405(g), which

provides, inter alia: “The findings of the Commissioner of Social Security as to any fact, if supported

by substantial evidence, shall be conclusive.” Substantial evidence is “‘more than a mere scintilla.

It means such relevant evidence as a reasonable mind might accept as adequate to support a

conclusion.’” Richardson v. Perales, 

, 401 (1971) (quoting Consolidated Edison Co.

v. NLRB, 

, 229 (1938)).

        We “‘must affirm the Commissioner’s conclusions absent a determination that the

Commissioner has failed to apply the correct legal standards or has made findings of fact

unsupported by substantial evidence in the record.’” Colvin v. Barnhart, 

, 729-30 (6th

Cir. 2007) (quoting Walters v. Comm’r of Soc. Sec., 

, 528 (6th Cir. 1997)).

        If we find the Commissioner’s decision supported by substantial evidence, we must defer to

that decision “‘even if there is substantial evidence in the record that would have supported an

opposite conclusion.’” Warner v. Comm’r of Soc. Sec., 

, 390 (6th Cir. 2004) (quoting

Wright v. Massanari, 

, 614 (6th Cir. 2003)).

                                     2. Overview of the Process

        An individual is eligible for SSI benefits on the basis of financial need and either age,

blindness, or disability. 42 U.S.C. § 1382(a). Disability is the inability “[t]o 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

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No. 08-6473
Collins v. Comm’r of Soc. Sec.

of not less than twelve months.” 

An individual will only be determined to be

under a disability if his 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. 

        The ALJ, in determining whether a claimant is disabled, conducts a five-step analysis:

        1. If claimant is doing substantial gainful activity, he is not disabled.

        2. If claimant is not doing substantial gainful activity, his impairment must be severe
        before he can be found to be disabled.

        3. If claimant is not doing substantial gainful activity and is suffering from a severe
        impairment that has lasted or is expected to last for a continuous period of at least
        twelve months, and his impairment meets or equals a listed impairment, claimant is
        presumed disabled without further inquiry.

        4. If claimant's impairment does not prevent him from doing his past relevant work,
        he is not disabled.

        5. Even if claimant's impairment does prevent him from doing his past relevant work,
        if other work exists in the national economy that accommodates his residual
        functional capacity and vocational factors (age, education, skills, etc.), he is not
        disabled.

(citing 20 C.F.R. § 404.1520).

        Under the five-step inquiry, the claimant bears the burden of proof through the first four

steps, and the Commissioner bears the burden of proof at the final step. Jones v. Comm’r of Soc.

Sec., 

, 474 (6th Cir. 2003). To prevail at step five, the Commissioner must “identify a

significant number of jobs in the economy that accommodate the claimant’s residual functioning

capacity,” 

account factors such as age, education, and skills. 

.



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No. 08-6473
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        In this case, the ALJ determined that claimant carried his burden of proof through the first

four steps, and demonstrated that he was “unable to perform any of his past relevant work” under

20 C.F.R. § 404.1565. This court’s inquiry is thus limited to whether substantial evidence supports

the ALJ’s determination at step five of the inquiry—namely, whether substantial evidence supports

the ALJ’s determination of claimant’s RFC and the availability of jobs in significant numbers that

accommodate his limitations.

                                               3. RFC

        Claimant’s first argument on appeal is that the ALJ’s RFC determination is not supported

by substantial evidence. He contends specifically that the record indicates that his mental

impairments are more severe and limiting than determined by the ALJ, and that the ALJ was required

to discuss and provide a basis for rejecting the mental limitations identified by Garland in her report.

The Commissioner argues that the ALJ’s decision is supported by substantial evidence.

        A social security disability claimant’s RFC is an assessment of “the most [he] can still do

despite [his] limitations.” 

        In making this determination, the ALJ must consider all relevant evidence in the case record.

Id.; Social Security Ruling [SSR] 96-8, 

, at *5. This evidence includes medical

records, opinions of treating physicians, and the claimant’s own description of his limitations. 20

C.F.R. § 404.1545(a)(3). The ALJ is required to evaluate every medical opinion received. 

If the ALJ rejects a treating physician’s opinion, he or she must provide a basis for this

rejection. Shelman v. Heckler, 

, 321 (6th Cir. 1987).



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       The ALJ is, additionally, “charged with the responsibility of observing the demeanor and

credibility of witnesses therefore his conclusions should be highly regarded.” Bradley v. Sec’y of

Health & Hum. Servs., 

, 1227 (6th Cir. 1988). Discretion is “vested in the ALJ to

weigh all the evidence.” 

“we are to accord the ALJ’s determinations of credibility

great weight and deference particularly since the ALJ has the opportunity, which we do not, of

observing a witness’s demeanor while testifying.” 

. In reviewing an ALJ’s

credibility determination, “we are limited to evaluating whether or not the ALJ’s explanations for

partially discrediting [claimant’s testimony] are reasonable and supported by substantial evidence

in the record. 

not on appeal “try the case de novo, nor resolve conflicts in evidence .

. . .” Gaffney v. Bowen, 

, 100 (6th Cir. 1987).

       Claimant asserts that the ALJ’s RFC determination is incorrect because the ALJ did not

properly consider Garland’s evaluation. We find the ALJ’s RFC determination is supported by

substantial evidence.

       The ALJ determined that claimant could perform unskilled work at all exertional levels. The

ALJ found explicitly:

       After careful consideration of the entire record, the undersigned finds that the
       claimant has no physical limitation aside. However, he would be able to remember
       and carry out simple instructions; however, would have moderate limitation in
       detailed instructions but still can do [sic]; [he is] able to interact with general public
       with some difficulty at times but still can do [sic] and is able to respond to routine
       changes.

(AR 19).




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No. 08-6473
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       Contrary to claimant’s assertion, the ALJ considered, and did not “summarily reject[]”

Garland’s opinion. This case is thus distinguishable from Shelman, 

, on which claimant

relies. Shelman involved directly contradicting medical opinions, whereas, in the present case the

medical opinions are not contradictory. In Shelman, the court was concerned that the ALJ relied on

the opinion of a medical expert in discounting the opinion of a treating physician. 

       The ALJ in this case did not wholly reject Garland’s opinion as to claimant’s mental

limitations. Garland found that claimant “may be limited in [his] ability to do very detailed and

complex work,” “[his] [c]oncentration was poor,” “[his] ability to get along with people, by history

has been moderately to severely limited,” “[he] would have difficulty responding to criticism and

accepting instructions from others,” and “[his] ability to get along with the public appears to be

moderately to severely limited.” (AR 18, 168).

       In determining claimant’s RFC, the ALJ found that claimant “would have moderate

limitation in detailed instructions but still can do [sic],” and that he would be “able to interact with

general public with some difficulty at times but still can do [sic] and is able to respond to routine

changes.” 

These findings are consistent with Garland’s opinion that “[claimant] does cook,

does visit, [and] does go to the grocery store.” 

       The ALJ noted that claimant “has required only conservative mental health treatment other

than the one time hospitalization in 2005,” and that “[h]is treating mental health clinicians have

treated him conservatively with psychotropics and therapy.” 

The record supports this

finding. The Cherokee Mental Health physician noted that claimant’s symptoms were somewhat



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No. 08-6473
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alleviated by medication and records reflect that claimant’s GAF score improved over time with

medical treatment.

       Garland diagnosed claimant with “[m]ajor depressive disorder, recurrent, moderate to

severe.” 

The ALJ noted Garland’s observation that the depressive disorder “may be more

moderate though based on [his] daily activities.” 

167.

       In determining claimant’s RFC, the ALJ also considered claimant’s testimony about his own

mental limitations. At the hearing before the ALJ, claimant testified that when he is having a bad

day, he stays home and watches the news and weather. The ALJ pointed out that this statement

contradicted claimant’s later statement that he cannot sit and watch a television program without

becoming angry, and that he cannot follow a news program. It is the ALJ’s responsibility to

“observ[e] the demeanor and credibility of witnesses” and his conclusions on these issues “should

be highly regarded.” 

.

       Claimant himself told Garland that he could work “if his hernia were fixed” and “if he could

find a job that he liked and could get along.” (AR 167). The record indicates that, in September

2006, claimant underwent a hernia repair and nothing suggests that he suffers any continuing

symptoms.

       The ALJ found that “claimant’s medically determinable impairments could reasonably be

expected to produce the alleged symptoms, but that the claimant’s statements concerning the

intensity, persistence and limiting effects of these symptoms are not entirely credible.” 

Based on this observation, the ALJ “conclude[d] that the claimant’s testimony concerning his



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symptoms and limitations is not supported by the evidence of record and is deemed not fully

credible.” 

the ALJ’s place, and not the reviewing court’s, to “resolve conflicts in evidence.”

. Based on our review of the record, we therefore hold that the ALJ’s RFC

determination is supported by substantial evidence, including opinion evidence by Garland and the

state agency physician, treatment records from Cherokee Mental Health, and claimant’s own

testimony.

                 4. The ALJ’s Reliance on the Medical-Vocational Guidelines

        Claimant’s second argument on appeal is that the ALJ improperly relied on the Medical-

Vocational Guidelines, 20 C.F.R. Part 404, Subpart P, App’x 2 [Grids], and should instead have

obtained testimony from a vocational expert before determining that there are jobs claimant could

perform.

        The Commissioner has the burden at step five of the disability analysis of showing that there

are a significant number of jobs in the economy that accommodate the claimant’s RFC and

vocational profile. 

.

        The Grids only take account of a claimant’s “exertional” impairments, i.e., impairments that

“affect [a claimant’s] ability to meet the strength demands of jobs.” 20 C.F.R. § 404.1569a(b). A

nonexertional impairment is one that affects a claimant’s “ability to meet the demands of jobs other

than the strength demands.” 

Examples of nonexertional impairments include:

“nervous[ness], anxious[ness], or depress[ion],” “difficulty maintaining attention or concentrating,”

and “difficulty understanding or remembering detailed instructions.” 

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Collins v. Comm’r of Soc. Sec.

       The Commissioner may meet his burden at step five by referring to the Grids unless the

claimant has a “nonexertional limitation[] that significantly limit[s] the range of work permitted by

his exertional limitations.” Cole v. Sec’y of Health & Hum. Servs., 

, 771 (6th Cir. 1987).

“[B]efore reaching the conclusion that the grid will not be applied because [of the alleged]

nonexertional limitations, those limitations must be severe enough to restrict a full range of gainful

employment at the designated level.” Mullins v. Sec’y of Health & Hum. Servs., 

, 985

(6th Cir. 1987).

       The question in the present case is thus whether there is substantial evidence in the record

to support the ALJ’s determination that claimant’s nonexertional limitations were not “significant”

in that they did not have an effect on the occupational base of unskilled work at all exertional levels.

If the nonexertional limitations were not significant, reliance on the Grids was appropriate.

       Where a claimant has solely nonexertional impairments, unskilled jobs at all levels of

exertion make up the potential occupational base. SSR 85-15, 

, *4. The mental

demands of unskilled work are “the abilities (on a sustained basis) to understand, carry out, and

remember simple instructions; to respond appropriately to supervision, coworkers, and usual work

situations; and to deal with changes in a routine work setting.” Id..

       The ruling also describes unskilled jobs at all exertion levels as jobs that “ordinarily involve

dealing primarily with objects, rather than with data or people, and they generally provide substantial

vocational opportunity for persons with solely mental impairments who retain the capacity to meet

the intellectual and emotional demands of such jobs on a sustained basis.” 

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Collins v. Comm’r of Soc. Sec.

       We find that ALJ properly relied on the Grids to find that there is other work in the national

economy that claimant can perform and thus claimant is not disabled.

       At step five in the instant case, the ALJ found:

       If the claimant has solely nonexertional limitations, section 204.00 in the Medical-
       Vocational Guidelines provides a framework for decision-making (SSR 85-15).

       The claimant’s ability to perform work at all exertional levels has been compromised
       by nonexertional limitations. However, these limitations have little or no effect on the
       occupational base of unskilled work at all exertional levels. A finding of “not
       disabled” is therefore appropriate under the framework of section 204.00 of the
       Medical-Vocational Guidelines.

(AR 22) (emphasis added).

       First, although the ALJ did not extensively evaluate SSR 85-15, the ALJ’s RFC

determination tracks the language of the ruling. The ruling describes the mental demands of

unskilled work as “the abilities (on a sustained basis) to understand, carry out, and remember simple

instructions; to respond appropriately to supervision, coworkers, and usual work situations; and to

deal with changes in a routine work setting.” SSR 85-15, 

, *4. In determining

claimant’s RFC, the ALJ found that “[claimant] would be able to remember and carry out simple

instructions; however, [he] would have moderate limitation in detailed instructions but still can do

[sic]; [he is] able to interact with [the] general public with some difficulty at times but still can do

[sic] and [he] is able to respond to routine changes.” (AR 19).

       Second, as discussed above with regard to the ALJ’s RFC determination, substantial evidence

supports the ALJ’s finding that claimant’s mental limitations did not limit his ability to perform

unskilled work at all levels of exertion. Garland indicated that claimant “may be limited in ability


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No. 08-6473
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to do very detailed and complex work,” but did not indicate that claimant would be unable to

perform simple work. 

The Cherokee Mental Health treating psychiatrist reported that

medication helped and records from the psychiatrist show this improvement over time.

        With regard to the ability to “respond appropriately to supervision, coworkers, and usual

work situations,” SSR 85-15, 

, *4, although claimant reported having some

problems dealing with other people, he also reported that he tries to visit people daily. (AR 166).

Garland opined that claimant “appears to be a person who would have difficulty responding to

criticism and accepting instructions from others,” and that “[h]e may have much difficulty with

authority figures.” 

Garland also opined that claimant’s “ability to get along with people,

by history has been moderately to severely limited,” but emphasized that claimant “does visit” with

others. 

to claimant’s ability to respond to routine changes in the workplace, the

reviewing physician opined that claimant would be able to respond to changes. 

Claimant

himself told Garland that “he guessed he could work if his hernia were fixed [and] if he could find

a job he liked and could get along.” 

        There is, thus, substantial evidence in the record to support the ALJ’s determination that

claimant’s mental impairments did not preclude any of the mental demands of unskilled work. His

nonexertional limitations do not “significantly limit the range of work permitted by his exertional

limitations,” 

, and reliance on the Grids was therefore appropriate.3


        3
        Claimant contends that the ALJ’s own findings that: 1) he had no physical limitations; and
2) he could not perform past relevant work, necessitate a finding that his nonexertional limitations

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                                             Conclusion

       For the foregoing reasons, we AFFIRM the judgment of the district court.




have more than “little to no effect” on the occupational base of unskilled work and thus reliance on
the Grids is inappropriate. Claimant’s past work was as a laborer, working construction on a pipe
crew. He described his job duties as “cut[ting] and saw[ing] pipe, put[ting] pipe fittings together and
lay[ing] pipe.” (AR 78). The classification of a job as skilled, semi-skilled, or unskilled, is governed
by 20 C.F.R. § 1568, which provides, inter alia:

       (a) Unskilled work. Unskilled work is work which needs little or no judgment to do
       simple duties that can be learned on the job in a short period of time. The job may or
       may not require considerable strength. For example, we consider jobs unskilled if the
       primary work duties are handling, feeding and offbearing (that is, placing or
       removing materials from machines which are automatic or operated by others), or
       machine tending, and a person can usually learn to do the job in 30 days, and little
       specific vocational preparation and judgment are needed. A person does not gain
       work skills by doing unskilled jobs.

       (b) Semi-skilled work. Semi-skilled work is work which needs some skills but does
       not require doing the more complex work duties. Semi-skilled jobs may require
       alertness and close attention to watching machine processes; or inspecting, testing or
       otherwise looking for irregularities; or tending or guarding equipment, property,
       materials, or persons against loss, damage or injury; or other types of activities which
       are similarly less complex than skilled work, but more complex than unskilled work.
       A job may be classified as semi-skilled where coordination and dexterity are
       necessary, as when hands or feet must be moved quickly to do repetitive tasks.

The ALJ could have reasonably concluded, based on the record, that claimant’s past work was semi-
skilled work. The ALJ’s findings, therefore, that 1) claimant could not perform any past work, and
2) that his nonexertional limitations have little to no effect on the occupational base of unskilled
work, are not inconsistent. Substantial evidence thus supports the ALJ’s factual conclusion that
claimant’s nonexertional limitations are not significant.


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