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 (SSI) benefits. On November 22, 2006, plaintiff filed her applications for benefits alleging a November 8, 1997 onset of disability.
Plaintiff's claims for DIB and SSI benefits were denied on initial review. (A.R. 79-87). On August 20, 2009, she received a hearing before an administrative law judge (ALJ), at which she was represented by counsel. (A.R. 27-75). On August 28, 2009, the ALJ issued a decision finding that plaintiff was not disabled. (A.R. 10-21). On April 22, 2010, the Appeals Council denied review (A.R. 1-3), and the ALJ's decision became the Commissioner's final decision.
On June 18, 2010, plaintiff filed her complaint seeking judicial review of the Commissioner's decision denying her claims for DIB and SSI benefits. She asks the court to overturn the Commissioner's decision on the following grounds:
(Statement of Issues, Plf. Brief at 4, docket #13).
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).
The ALJ found that plaintiff met the disability insured requirement of the Social Security Act from November 8, 1997, through March 31, 2004, but not thereafter. (A.R. 12). Plaintiff had not engaged in substantial gainful activity on or after November 8, 1997.
(A.R. 14). The ALJ found that plaintiff's testimony regarding her subjective limitations was not fully credible. (A.R. 14-19). Plaintiff was unable to perform her past relevant work. (A.R. 19). Plaintiff was 34-years-old as of the date of her alleged onset of disability, 40-years-old when her disability insured status expired, and 46-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. 19). Plaintiff has at least a high-school education and is able to communicate in English. (A.R. 19). The transferability of job skills was not material to a disability determination. (A.R. 19). 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 6,000 jobs in the State of Michigan that the hypothetical person would be capable of performing. (A.R. 71-72). The ALJ found that this constituted a significant number of jobs. Using Rules 201.28 and 201.21 of the Medical-Vocational Guidelines as a framework, the ALJ held that plaintiff was not disabled. (A.R. 20-21).
Plaintiff argues that the ALJ "erred as a matter of law in postulating an RFC that relied on the opinion of an outdated, non-examining SSA assessment and in finding that Ms. VanPortfliet
(Plf. Brief at 15, 20; see Reply Brief at 1-6). Upon review, I find no error. The ALJ's factual finding regarding plaintiff's RFC is supported by more than substantial evidence. The ALJ gave appropriate weight to Dr. Orellana's opinions. RFC is an administrative finding of fact reserved to the Commissioner. See 20 C.F.R. §§ 404.1527(e)(2), 416.927(e)(2). Plaintiff's reliance on various global assessment of functioning scores is misplaced because GAF scores are not objective medical evidence and are not entitled to any particular weight. The ALJ did not rely on "an outdated, non-examining SSA assessment," and he did not commit error when he found that the extreme restrictions suggested by Psychologist Wagner were entitled to little weight.
RFC is the most, not the least, a claimant can do despite her impairments. 20 C.F.R. §§ 404.1545(a), 416.945(a); Kornecky v. Commissioner, 167 F. App'x 496, 499 (6th Cir. 2006). RFC is an administrative finding of fact reserved to the Commissioner. 20 C.F.R. §§ 404.1527(e)(2), 416.927(e)(2); see Deaton v. Commissioner, 315 F. App'x 595, 598 (6th Cir. 2009); Ford v. Commissioner, 114 F. App'x 194, 198 (6th Cir. 2004). "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).
Plaintiff presented extraordinarily little evidence in support of her claim for DIB benefits. She claimed a November 8, 1997 onset of disability; her disability insured status expired on March 31, 2004. Plaintiff was born with a congenital left hip deformity. (A.R. 305). On August 28, 1990, she was admitted to Forest View Hospital with complaints of depression. She was a 27-year-old mother of four children. She and the children were living with her parents. (A.R. 270). Plaintiff was in the process of obtaining a divorce from an unfaithful husband. (A.R. 270). Plaintiff had no history of psychiatric problems. (A.R. 269). "She [had been] active in school, popular and involved in cheerleading. She had many friends and was also involved in dance and civic theater." (A.R. 270). She had achieved a 3.4 GPA in high school and attended some community college classes. (A.R. 270). She stated that she had used cocaine two times in the previous six months. She had some alcohol problems which she "tended to minimize." (A.R. 272).
On May 2, 1999, plaintiff was 35-years-old and was treated for a right arm laceration. She stated that she had been doing yard work and drinking some alcohol. She reported that the glass broke when she pushed on an entry door. She received stitches and was sent home. (A.R. 285-86).
On March 31, 2004, plaintiff's disability insured status expired. The ALJ's factual finding that plaintiff retained the RFC for a limited range of sedentary work as of her date last disability insured is supported by more than substantial evidence. In fact, as of 2004, the record would have supported a much greater RFC.
Plaintiff's medical records after her date last disability insured document her ongoing substance abuse problems. On January 18, 2005, plaintiff appeared for a psychiatric evaluation by Gary L. Rich, M.D. (A.R. 290-93). Dr. Rich reported that plaintiff was 41-years-old and married. She had recently participated in a 30-day substance abuse program. She "really started abusing alcohol when she was 35 years old." (A.R. 290). Her longest period of sobriety in recent years had been two months. (A.R. 290). Plaintiff reported that she was attending classes at Davenport University. She was working towards an applied science degree and wanted to work in the medical field. (A.R. 291). Dr. Rich noted that plaintiff was cooperative during the interview. Her gait, speech, and level of psychomotor movement were within normal limits. (A.R. 292). She was alert and oriented in all three spheres. Her memory, concentration, general fund of knowledge, and ability to abstract were grossly intact. Psychiatrist Rich offered a diagnosis of severe depression, recurrent, ADHD, and alcohol abuse. He gave plaintiff a GAF score of 65. He noted that plaintiff's prognosis was fair. She had a reasonable chance of gaining stability if she maintained sobriety and continued outpatient treatment. (A.R. 292).
Spectrum Health emergency room records dated July 18, 2005, describe plaintiff as a "42-year old female who is an alcoholic and has been drinking tonight. She became angry at her husband and slammed a door. She broke the glass and lacerated her left thumb." (A.R. 308). Plaintiff requested alcohol detox. (A.R. 308). She received stitches and was referred to a social worker to get her into a "detox and alcohol treatment program." (A.R. 308).
On August 23, 2005, plaintiff returned to Dr. Rich. Plaintiff stated that she had relapsed in May 2005. She had been hospitalized in a Florida substance abuse facility from July 27, 2005, through August 19, 2005. (A.R. 294). She returned to Michigan following her discharge from the Florida facility. Dr. Rich encouraged plaintiff to put her energies toward establishing her sobriety. (A.R. 294).
On May 30, 2006, plaintiff gave Cherry Street Health Services a history indicating that she drank "1-2" alcoholic drinks daily, smoked "1-2"packs of cigarettes per day, and had no other history of substance abuse. (A.R. 405). An October 24, 2006 CT scan of plaintiff's thorax was unremarkable. (A.R. 306-07).
On November 22, 2006, plaintiff filed her applications for SSI and DIB benefits. On January 28, 2007, Shahnaz Ali, M.D., of the Ferguson Adult Health Center (Ferguson Center) examined plaintiff. He found that plaintiff had no physical limitations. She could stand and/or walk at least 2 hours in an 8-hour workday. She had no mental limitations. Her condition was stable. Her medications were Cymbalta, Ativan, and Imitrex. (A.R. 406-07). On January 30, 2007, plaintiff returned to the Ferguson Center and reported that a neurologist had previously prescribed Fioricet for her left hip pain. Doctors at Ferguson Center declined to prescribe Fioricet.
On June 25, 2007, Robert J. Baird, Ph.D., conducted a consultative examination. (A.R. 317-22). Plaintiff reported that this was her second application for social security benefits. (A.R. 317). She stated that she was not participating in mental health counseling. (A.R. 317). She gave a history of two suicide attempts, the most recent occurring "in 2000 when she deliberately overdosed on Tylenol and alcohol." (A.R. 318). Plaintiff had attended regular education courses and had never repeated a grade in high school. She had no history of school-related behavioral problems. (A.R. 317). She had participated in multiple extracurricular activities. She had earned significant college credits at Davenport University. (A.R. 318). She had been married and divorced four times. (A.R. 318). When asked about her substance abuse history, plaintiff replied that she had used marijuana approximately two years earlier, but denied use of any other drug, inhalant, or abuse of prescription medications. (A.R. 319). Plaintiff reported that she had been in alcohol rehabilitation on two occasions: "in the Winter of 2003 after which she maintained sobriety for seven months, and the Summer of 2004 when she maintained sobriety for one month." (A.R. 319). Plaintiff stated that her current alcohol use was "on the weekend, maybe a glass of wine." (A.R. 319). Plaintiff was pleasant and cooperative and she appeared of normal intelligence. She was oriented to person, place, and time. She had no history of hallucinations or delusions. Her ambulation and speech were normal. Psychologist Baird offered a diagnosis of "Cyclothymic Disorder" and gave plaintiff a GAF score of 45. (A.R. 321).
Plaintiff argues that the ALJ should have given greater weight to the low GAF score supplied by Psychologist Baird. (Plf. Brief at 15, 20). This argument is meritless. GAF scores are not entitled to any particular 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."
On July 9, 2007, William Schirado, Ph.D., reviewed plaintiff's medical records and completed a "Psychiatric Review Technique" assessment. He noted that plaintiff had been diagnosed with a cyclothemic disorder, but found that it did not rise to the level of a severe impairment. (A.R. 324, 336). Psychologist Schirado indicated that plaintiff's mental impairment fell well below the requirements of listing 12.04 for affective disorders. Plaintiff did not satisfy Part B of Listing 12.04 because she had "mild" restriction of activities of daily living, "mild" difficulties in maintaining social functioning, and "mild" difficulties in maintaining concentration, persistence, or pace, and no episodes of decompensation of extended duration. Plaintiff likewise fell short of the listing's Part C severity requirements. (A.R. 324-33).
Plaintiff is incorrect when she argues that the ALJ "adopted the Mental RFC of Dr. Schirado." (Plf. Brief at 20). If that had actually been the case, plaintiff's RFC would not have included any restrictions based on her mental impairments. The ALJ gave little weight to Psychologist Schirado's opinions: "Concerning mental capacity, the State agency medical consultant found the claimant had no severe mental impairment (Ex. 7F). This was based on very limited evidence and is not supported by the full record." (A.R. 19).
The ALJ's finding that plaintiff retained the RFC for a limited range of sedentary work is further reinforced by the medical records for the period between Psychologist Schirado's evaluation and plaintiff's initial contact with Psychologist Orellana.
On July 31, 2007, June D. Hillelson, D.O., conducted a consultative examination. (A.R. 341-48). Dr. Hillelson wrote: "This 44 year old white female drove herself to the office today with a complaint of low back pain for the last 10 years, due to compensating for a congenital deformed left hip." (A.R. 341). Plaintiff had never participated in physical therapy or required back or hip surgery. Plaintiff stated that she experienced migraine headaches, but could "go for months without having one." (A.R. 341). Dr. Hillelson wrote, "This patient is an alcoholic, who is still drinking, and had her last drink one week ago. (A.R. 342). Plaintiff was alert and oriented in all three spheres. (A.R. 343). Her muscle strength was 5/5 in all muscle groups tested. Plaintiff's extremities had no clubbing, cyanosis, or edema. Dr. Hillelson offered an opinion that plaintiff was capable of performing "sedentary types of activities." She could "stand for 30 minutes, perform some bending and stooping, lift up to ten pounds, use her hands for either fine or gross motor skills, perform some squatting, climb one flight of stairs and walk for 30 minutes at a time." (A.R. 344). Dr. Hillelson advised plaintiff to stop smoking and drinking. (A.R. 344).
On August 10, 2007, a State Agency physician reviewed plaintiff's records and offered an opinion that plaintiff was able to frequently lift and carry ten pounds, stand and/or walk for at least 2 hours in an 8-hour workday, and sit for a total of 6 hours in an 8-hour workday. (A.R. 351-58). August 28, 2007 x-rays of plaintiff's left hip revealed a stable deformity of the left femoral head. (A.R. 401).
On September 12, 2007, plaintiff was examined at Ferguson Center by Thomas C. Platt, M.D. (A.R. 388). Plaintiff's straight leg raising test was slightly positive on the left. Her knees showed a fairly good range of motion with no obvious effusion. There was no ankle edema. Dr. Platt noted that plaintiff's April 14, 2007 chest x-rays showed stable left lung nodules which were most likely post-inflammatory in nature. (A.R. 388). Plaintiff reported that had "done well" on Imitrex for her migraine headaches. (A.R. 388). She reported that her anxiety responded to Ativan, but she frequently had to take two capsules and she quickly ran out of medication. (A.R. 388). On October 3, 2007, plaintiff told Dr. Platt that she occasionally drank alcohol. She stated that her last heavy use had occurred more than three years earlier. She related that she had no other history of substance abuse. She reported that she had smoked a pack of cigarettes per day for thirty years. (A.R. 385). Plaintiff had no muscle pains or weakness. She had a full range of motion in her extremities, with the exception of her left hip. Straight leg raising tests were negative bilaterally. Dr. Platt found that plaintiff's reported neck pain was probably muscular in nature. She did not experience radiculopathy. Dr. Platt advised plaintiff to "continue to stay as active as possible." (A.R. 386).
An October 11, 2007 MRI of plaintiff's left hip revealed no evidence of acute fracture or dislocation. There was evidence of hip displasia. (A.R. 381-82, 399-400). October 24, 2007 x-rays and CT scans of plaintiff's lungs indicated that her left-sided pulmonary nodules were stable. There was no acute infiltrate or pleural effusion. (A.R. 396-98). On October 25, 2007, plaintiff reported that she continued to smoke cigarettes, but denied any current alcohol or drug use. (A.R. 423-24). On November 5, 2007, plaintiff had outpatient arthroscopic surgery performed on her left hip. (A.R. 420-22, 429-31).
On November 16, 2007, plaintiff appeared at the Spectrum Health emergency room complaining of migraine headaches. She related that she had been taking Fioricet at home as well as Excedrin. Plaintiff was treated with Toradol, Benadryl, and Dilaudid which provided her with complete relief from her headache symptoms. (A.R. 363). On November 17, 2007, plaintiff appeared at Spectrum Health and reported that she had been in a fight with her boyfriend. (A.R. 359-66). Upon examination, there were no signs of injury. (A.R. 359). Plaintiff received treatment in response to her headache complaints and was referred to a social worker. (A.R. 360).
On December 13, 2007, a social worker sought an involuntary psychiatric hospitalization. According to the report, plaintiff had been arguing with her boyfriend who encouraged her to kill herself. Plaintiff had been drinking alcohol and apparently responded to her boyfriend's taunts by taking multiple pills.
On January 3, 2008, plaintiff saw Dr. Platt at Ferguson Center. Plaintiff reported that she continued to visit the emergency room for treatment of migraines. Plaintiff stated that at Pine Rest she had received Tylenol #3 and also some Fioricet, and that seemed to help the headaches. She stated that she continued to smoke more than a pack of cigarettes per day. Dr. Platt counseled plaintiff on smoking cessation. He provided plaintiff with a prescription for Tylenol #3 "to try to prevent ER visits." (A.R. 535-36).
On January 15, 2008, plaintiff reported that her left hip pain was worse after arthroscopic surgery. Doctors at Spectrum Health prescribed a course of physical therapy. (A.R. 418-19).
On February 5, 2008, plaintiff was seen at Arbor Circle by Elbin Orellana, M.D. Dr. Orellana described his role on this occasion, and every other meeting with plaintiff, as that of a "consulting psychiatrist." The initial consultative session lasted 45 minutes, and subsequent medication reviews lasted 15 minutes. On February 5, 2008, plaintiff complained that she was depressed, anxious, and that her medications were not working. She related a history of alcoholism from her early thirties through November 2007. Plaintiff was oriented to time, place, and person. Her memory and concentration were grossly intact. Dr. Orellana offered a diagnosis of "Bipolar Disorder II" and "Alcohol Dependence, continuous" and gave plaintiff a GAF score of 45. (A.R. 485).
On April 15, 2008, Dr. Orellana conducted a medication review. Plaintiff denied any hallucinations, delusional thinking, paranoid ideation or suicidal ideation. Her memory and concentration were grossly intact. Dr. Orellana gave plaintiff a GAF score of 50. He continued plaintiff's prescriptions for lithium carbonate and Wellbutrin and initiated a trial of Zoloft. (A.R. 481-82).
On May 1, 2008, plaintiff appeared at St. Mary's Healthcare on a self-referral seeking voluntary admission based on her complaints of worsening depression, nightmares, and irritability. (A.R. 434-35). Plaintiff reported to medical care providers at St. Mary's that she had been diagnosed as having bipolar disorder and that she had attempted suicide on three occasions. (A.R. 438-39). Plaintiff's May 3, 2008 test results were positive for opiates and "barbiturate serum." (A.R. 465). Plaintiff was diagnosed as having bipolar disorder, severe, most recent episode mixed with psychotic features, post traumatic stress disorder, alcohol abuse, nicotine dependence, and a dependent personality disorder. (A.R. 437). On May 4, 2008, plaintiff was evaluated by Psychiatrist Jeffrey J. Vrielink, M.D. She stated that she had been "in a series of four marriages, where she was either abused or her husbands cheated." (A.R. 440). Plaintiff gave a history indicating that she had "been sober for about 5 months." (A.R. 440). She denied illicit substance use. She stated that she had tried cocaine in the past and didn't like it. (A.R. 440). Plaintiff agreed "to abstain from alcohol and marijuana and keep follow-up appointments and continue with medication." (A.R. 437). During plaintiff's stay at St. Mary's, she referred to Dr. Orellana as her "outpatient psychiatrist" and Theresa Canton as her "outpatient therapist" at Arbor Circle. (A.R. 437, 440).
On June 10, 2008, Dr. Orellana met with plaintiff for a medication review. He noted that plaintiff was living with her mother rather than her abusive ex-boyfriend. Plaintiff was oriented in all three spheres. Dr. Orellana offered a diagnosis of bipolar disorder, mixed, in partial remission, and gave plaintiff a GAF score of 50. (A.R. 479-80 ).
On June 17, 2008, Diljit Karayil, M.D., examined plaintiff in preparation for a left total hip arthroplasty. Plaintiff was not in any apparent distress. She was awake, alert and oriented. Dr. Karayil approved plaintiff's surgery, provided that her chest x-rays returned grossly normal results and no other limiting factors were discovered. (A.R. 531-33). Plaintiff had left hip replacement surgery in July 2008. (A.R. 506).
On July 15, 2008, Dr. Orellana conducted a medication review. He noted that plaintiff's condition had stabilized on Abilify and Lithium Carbonate. (A.R. 477). On September 16, 2008, Dr. Orellana described plaintiff as alert, bright, focused, non-delusional. She was not experiencing crying spells and her depression had lifted. There was no evidence of suicidal ideation or evidence of psychotic-like symptoms. (A.R. 475).
On October 9, 2008, Dr. Karayil noted that plaintiff reported feeling better after her hip surgery. She denied any history of headache or visual disturbances. Plaintiff was seeking pain medication. She reported that the Ultram she was taking "did not help her that much." Plaintiff denied alcohol and other substance abuse. She had no gross sensory or motor deficits in her upper or lower extremities. Dr. Karayil stated that he would provide plaintiff with Tylenol #3, but limited the prescription to 30 pills in light of plaintiff's overdose history. (A.R. 529-30).
On December 8, 2008, plaintiff had the last of her 15-minute medication reviews with Dr. Orellana. (A.R. 510). Plaintiff reported that she was recovering from hip surgery. She felt that the surgery was "worth it" because she could "bend more now." (A. R. 510). She was scheduled to "restart physical therapy" the following week. Plaintiff was described as bright, alert, focused, and non-delusional. Her insight and judgment were described as fair. There was "no evidence of psychotic like symptoms." Dr. Orellana gave plaintiff a GAF score of 55. (A.R. 510). On February 28, 2009, Arbor Circle discharged plaintiff as a patient. (A.R. 508). Plaintiff had been ambivalent towards making changes in her life and failed to attend counseling sessions.
Plaintiff argues that the ALJ should have given greater weight to Dr. Orellana's GAF scores because he was a treating psychiatrist. (Plf. Brief at 15, 20; Reply Brief at 1-6). It is doubtful that Dr. Orellana was a treating psychiatrist. He always referred to his role as that of a "consulting psychiatrist," rather than a treating psychiatrist. (A.R. 475, 477, 479, 481, 483, 510, 525). His contact with plaintiff was infrequent and brief. Dr. Orellana met with plaintiff for five brief medication reviews after her initial intake session at Arbor Circle. (A.R. 508). The ALJ carefully considered Dr. Orellana's medication reviews and the fact that plaintiff's condition was improving with treatment. (A.R. 17-18). If plaintiff had submitted Arbor Circle therapy notes in support of her claims, they may have documented a greater role for Dr. Orellana in her care. The ALJ was never provided with the therapy notes, and the records regarding plaintiff's treatment at Pine Rest and River Valley Crisis Center were conspicuously absent from the administrative record. (A.R. 17). Based on the limited evidence provided, it was not error to consider Dr. Orellana as a consulting physician rather than as a treating physician. See Kornecky v. Commissioner, 167 F. App'x at 506-07. In any event, the GAF scores he supplied would not have been entitled to any particular weight. Id. at 511. Dr. Orellana never expressed an opinion that plaintiff's mental impairments would prevent her from performing simple, routine, repetitive tasks.
On July 27, 2009, Victor Wagner, Ph.D., met with plaintiff on a referral from plaintiff's attorney. Wagner described the purpose of his meeting with plaintiff as follows: "The purpose of the meeting was to assess if Robin's capacity to work a fulltime job was limited by a psychological/psychiatric disability." (A.R. 549). Wagner interviewed plaintiff for an unspecified length of time and he did not administer any tests. (A.R. 549-52). His report to plaintiff's attorney offered the following diagnosis:
(A.R. 551). Psychologist Wagner provided his opinion that plaintiff had "extreme" limitations in her ability to deal with work stresses, maintain attention and concentration, understand, remember and carry out complex job instructions, behave in an emotionally stable manner, relate predictably in social situations, demonstrate reliability, and maintain concentration, persistence or pace. Wagner opined that plaintiff had "marked" limitations in all other areas, with the exception of a "moderate" limitation in her ability to remember, carry out and understand simple job instructions, . (A.R. 546-48). Psychologist Wagner's report concluded with an emphatic statement of his opinion that plaintiff was disabled:
(A.R. 552) (bold print in original). The consultative psychologist's opinions on the issues of disability and whether plaintiff met or equaled the requirements of a listed impairment were entitled to no weight because the issues are reserved to the Commissioner. See 20 C.F.R. §§ 404.1527(e)(1), (2), 416.927(e)(1), (2).
The ALJ found that the extreme limitations proffered by Psychologist Wagner were entitled to little weight:
(A.R. 19).
Plaintiff argues that it was "improper to reject a favorable opinion of a consulting physician solely because the examination was arranged by the claimant's representative." (Plf. Brief at 16). 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) (per curiam). Courts have recognized that the results of a consultative examination should not be rejected "solely" because it was arranged and paid for by the plaintiff's attorney. See Hinton v. Massanari, 13 F. App'x 813, 824 (10th Cir. 2001) ("An ALJ may certainly question a doctor's credibility when the opinion, as here, was solicited by counsel. . . . The ALJ may not automatically reject the opinion for that reason alone, however."). Some courts have criticized ALJs for referring to opinions like Wagner's as "purchased opinions," but such statements do not provide a basis for overturning an ALJ's decision. See, e.g., Mason ex rel. Mason v. Astrue, No. 10-621-M, 2011 WL 2670005, at *6 (S.D. Ala. July 6, 2011); Milan v. Commissioner, No. 09-1065, 2010 WL 1372421, at *10 n.3 (D. N.J. Mar. 31, 2010). Here, the ALJ did not reject Wagner's opinions "solely" or even primarily on the basis that the one-time examination occurred on a referral from plaintiff's counsel. It was entirely appropriate for the ALJ to note that Wagner had examined plaintiff on a referral from plaintiff's attorney and that the purpose of the examination was to generate evidence in support of plaintiff's 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) ("[T]he claimant underwent the examination that formed the basis of the opinion in question not in an attempt to seek treatment for symptoms, but rather, through attorney referral and in connection with an effort to generate evidence for the current appeal. Further, the doctor was presumably paid for the report. Although such evidence is certainly legitimate and deserves due consideration, the context in which it was produced cannot be entirely ignored."). Psychologist Wagner saw plaintiff on one occasion and did not perform any tests supporting his conclusions. Mental health records that are "merely a regurgitation of the patient's own subjective history" are of limited utility, because it is the ALJ's job to determine the claimant's credibility. Siterlet v. Secretary of Health & Human Servs., 823 F.2d at 920; see 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."). Opinions based on the claimant's reporting of her symptoms are not entitled to any particular weight. See Young v. Secretary of Health & Human Servs., 925 F.2d 146, 151 (6th Cir. 1990); see also Mitchell v. Commissioner, 330 F. App'x 563, 569 (6th Cir. 2009). I find that the ALJ's decision to give little weight to Psychologist Wagner's opinions is well-supported and entirely consistent with applicable law.
Plaintiff argues that the ALJ erred as a matter of law in assessing the lay testimony of plaintiff's mother and stepfather. (Plf. Brief at 23-25; Reply Brief at 6-8). This argument is patently meritless.
Plaintiff and the VE were the only witnesses who testified at plaintiff's hearing:
(A.R. 31). Plaintiff's mother and stepfather never testified.
Plaintiff argues that the ALJ "erred in failing to apply SSR 06-03p to the lay testimony." (Plf. Brief at 24). The "lay testimony" is a sworn statement plaintiff's attorney elicited from her mother and stepfather in support of her claims for DIB and SSI benefits. (A.R. 247-59). Mr. and Mrs. Davis stated that plaintiff had moved in with them in June 2008 and that she moved out into her own place in January 2009. (A.R. 251-52, 256). Ms. Davis reported that plaintiff was a financial dependent and that she could not afford to keep giving plaintiff money:
(A.R. 252-53).
Plaintiff's counsel obtained testimony regarding plaintiff's migraine headaches, depression, subjective complaints, and inability to work:
(A.R. 250-57). Mr. and Mrs. Davis asserted that plaintiff had never "abused" cocaine and that she did not drink alcohol during the eight and one-half months she lived with them. (A.R. 253-54).
The statement that counsel elicited from Mr. and Mrs. Davis is not evidence from an "acceptable medical source." 20 C.F.R. §§ 404.1513(a), 416.913(a). Only "acceptable medical sources" can: (1) provide evidence establishing the existence of a medically determinable impairment; (2) provide a medical opinion; and (3) be considered a treating source whose medical opinion could be entitled to controlling weight under the treating physician rule. See Titles II and XVI: Considering Opinions and Other Evidence from Sources Who are not `Acceptable Medical Sources' in Disability Claims; Considering Decisions on Disability by Other Governmental and Nongovernmental Agencies, SSR 06-3p (reprinted at 2006 WL 2329939, at *1 (SSA Aug. 9, 2006)); see also Hickox v. Commissioner, No. 1:09-cv-343, 2011 WL 6000829, at *4 (W.D. Mich. Nov. 30, 2011). Parents and other relatives are classified as "other sources" 20 C.F.R. §§ 404.1513(d), 416.913(d). The ALJ is required to "consider" evidence from other sources. 20 C.F.R. §§ 404.1527(b), (d)(4), 416.927(b), (d)(4). This is not a demanding standard, and it was easily met here. The ALJ considered the statement supplied by plaintiff's mother and stepfather, but he did not find it persuasive:
As for the opinion evidence, the record includes a deposition from the claimant's mother and step-father (Exhibit 13E). There is no indication of any professional basis for their opinions, so they are considered non-medical observations. They spoke in terms of the claimant's longitudinal history and the fact that from time to time she is incapacitated by one thing or another.
(A.R. 18). The ALJ rejected the extreme restrictions suggested by Mr. and Mrs. Davis. He found that plaintiff retained the RFC for a limited range of sedentary work and her "mental impairments, historically exacerbated by substance abuse and characterized generally by depression or bi-polar disorder with an underlying dependent personality disorder, which care givers have suggested would be responsive to the claimant's efforts and follow through with ending her dependencies." (A.R. 19).
Plaintiff argues that the ALJ's explanation was inadequate because he did not provide an analysis of Mr. and Ms. Davis's opinions under the factors listed in SSR 06-3p. (Reply Brief at 6-8). SSR 06-3p is phrased in permissive rather than mandatory terms:
2006 WL 2329939, at *6 (emphasis added). SSR 06-3p uses the permissive term "should" in connection with the ALJ's explanation of the "consideration" given to "other source" opinions:
2006 WL 2329939, at *6 (emphasis added). I find no error in the ALJ's consideration of the August 20, 2009 statement elicited from plaintiff's mother and stepfather, or in the weight the ALJ elected to give to the opinions found within the statement.
There is no developed argument in plaintiff's initial or reply brief corresponding to her third claim of error: the "Commissioner erred as a matter of law in assessing Ms. VanPortfliet's credibility." (Plf. Brief at 4, Statement of Issues ¶ III, docket #13, ID#626). Issues raised in a perfunctory manner are deemed waived. See Geboy v. Brigano, 489 F.3d 752, 767 (6th Cir. 2007); see also Allen v. Highland Hosp. Corp., 545 F.3d 387, 406 (6th Cir. 2008); Anthony v. Astrue, 266 F. App'x 451, 458 (6th Cir. 2008).
Even assuming the issue had not been waived, it is without merit. It is the ALJ's function to determine the credibility of the witnesses. See Siterlet v. Secretary of Health & Human Servs., 823 F.2d at 920. Credibility determinations concerning a claimant's subjective complaints are peculiarly within the province of the ALJ. See Gooch v. Secretary of Health & Human Servs., 833 F.2d 589, 592 (6th Cir. 1987). "An ALJ is in the best position to observe witnesses' demeanor and to make an appropriate evaluation of their credibility. Therefore an ALJ's credibility assessment will not be disturbed absent compelling reason." Reynolds v. Commissioner, 424 F. App'x at 417; see Norris v. Commissioner, No. 11-5424, 2012 WL 372986, at *5 (6th Cir. Feb. 7, 2012) ("Because a reasonable mind might accept the evidence as adequate to support an adverse-credibility determination, we conclude that substantial evidence supports the ALJ's finding."). The court does not make its own credibility determinations. See Walters v. Commissioner, 127 F.3d at 528. The court's "review of a decision of the Commissioner of Social Security, made through an administrative law judge, is extremely circumscribed. . . ." Kuhn v. Commissioner, 124 F. App'x 943, 945 (6th Cir. 2005). The Commissioner's determination regarding the credibility of a claimant's subjective complaints is reviewed under the deferential "substantial evidence" standard. "Claimants challenging the ALJ's credibility determination face an uphill battle." Daniels v. Commissioner, 152 F. App'x 485, 488 (6th Cir. 2005). "Upon review, [the court must] accord to the ALJ's determinations of credibility great weight and deference particularly since the ALJ has the opportunity, which [the court] d[oes] not, of observing a witness's demeanor while testifying." Jones, 336 F.3d at 476. "The ALJ's findings as to a claimant's credibility are entitled to deference, because of the ALJ's unique opportunity to observe the claimant and judge her subjective complaints." Buxton v. Halter, 246 F.3d at 773. "Since the ALJ has the opportunity to observe the demeanor of the witness, his conclusions with respect to credibility should not be discarded lightly and should be accorded deference." Casey v. Secretary of Health & Human Servs., 987 F.2d 1230, 1234 (6th Cir. 1993). Here, the ALJ gave a lengthy and detailed explanation why he found that plaintiff's testimony regarding her subjective functional limitations was not fully credible. (A.R. 14-19). I find that the ALJ's factual finding regarding plaintiff's credibility is supported by more than substantial evidence.
Plaintiff argues that the hypothetical question the ALJ posed to the VE was deficient because it "did not reflect Ms. VanPortfliet's limitations." (Plf. Brief at 25). A VE's testimony in response to a hypothetical question accurately reflecting a claimant's impairments provides substantial evidence supporting the Commissioner's decision. See Varley v. Secretary of Health & Human Servs., 820 F.2d 777, 779 (6th Cir. 1987). A hypothetical question is not required to list the claimant's medical conditions, but is only required to reflect the claimant's limitations. Webb v. Commissioner, 368 F.3d 629, 633 (6th Cir. 2004). The ALJ found that plaintiff's subjective complaints were not fully credible. 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); Grant v. Commissioner, 372 F. App'x 582, 585 (6th Cir. 2010) ("[I]n formulating a hypothetical question, an ALJ is only required to incorporate those limitations which he has deemed credible."). I find that the hypothetical question posed to the VE was adequate, and that the VE's testimony in response provides substantial evidence supporting the ALJ's decision.
For the reasons set forth herein, I recommend that the Commissioner's decision be affirmed.
On April 2, 2009, plaintiff returned to the Ferguson Center and was examined by Dr. Platt. Plaintiff stated that she occasionally consumed alcohol and had engaged in heavy alcohol use three years earlier. She denied other substance abuse. (A.R. 520-22).
