Cruse v. Comm Social Security ( 2007 )

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 07a0386p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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Plaintiff-Appellant, -
KIMBERLY L. CRUSE,
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No. 06-5772
v.
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COMMISSIONER OF SOCIAL SECURITY, -
Defendant-Appellee. -
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Appeal from the United States District Court
for the Western District of Tennessee at Jackson.
No. 04-01341—James D. Todd, Chief District Judge.
Argued: January 22, 2007
Decided and Filed: September 24, 2007
Before: SILER, MOORE, and ROGERS, Circuit Judges.
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COUNSEL
ARGUED: Joe H. Byrd, Jr., BYRD & BYRD, Jackson, Tennessee, for Appellant. Janice E.
Barnes-Williams, OFFICE OF THE GENERAL COUNSEL, Kansas City, Missouri, for Appellee.
ON BRIEF: Joe H. Byrd, Jr., BYRD & BYRD, Jackson, Tennessee, for Appellant. Janice E.
Barnes-Williams, OFFICE OF THE GENERAL COUNSEL, Kansas City, Missouri, for Appellee.
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OPINION
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SILER, Circuit Judge. In this appeal, Plaintiff Kimberly L. Cruse (“Cruse”) challenges the
district court’s decision affirming the determination of the Defendant Commissioner of Social
Security (“Commissioner”) that Cruse was not disabled and therefore not entitled to disability
insurance and supplemental security income (“SSI”) benefits under the Social Security Act (the
“Act”). Specifically, she advances four contentions on appeal: 1) the Commissioner afforded less
than the proper amount of weight to the opinions of her treating physician and nurse practitioner;
2) the Commissioner erred in finding Cruse’s testimony about disabling pain, other symptoms, and
functional limitations less than credible; 3) the Commissioner’s decision finding Cruse not disabled
was not supported by substantial evidence; and 4) the Commissioner erred by failing to present
vocational expert testimony. Finding no reversible error, we affirm.
1
No. 06-5772 Cruse v. Comm’r of Soc. Sec. Page 2
I. FACTUAL AND PROCEDURAL BACKGROUND
Cruse was born on May 28, 1981. In 2002, she applied for disability insurance and SSI
benefits pursuant to Titles II and XVI of the Act, 42 U.S.C. §§ 401 et seq. and §§ 1381 et seq.,
alleging disability dating from October 15, 2001. Specifically, Cruse alleged that she was unable
to engage in any substantial gainful activity due to dizziness, an inability to stand without falling,
migraines, and chronic vertigo. Cruse’s claim was denied by the Social Security Administration
(“Administration”) in 2002.
A. Hearing Before Administrative Law Judge
A hearing was held before an Administrative Law Judge (“ALJ”) in 2003. Cruse completed
high school and attended one year of college. She had past relevant work experience as a produce
clerk, cashier, and greeter. She alleged that on October 15, 2001, she came home from school and
passed out. Thereafter, she claimed to have continued suffering from dizziness for which she has
regularly received medical attention.
1. Relevant Medical History
On October 31, 2001, Cruse was admitted to Jackson-Madison General Hospital due to
persistent dizziness. After being released the following day, Dr. Kevin Gray noted that, with
medication, Cruse was fairly asymptomatic. On December 11, 2002, Cruse visited Dr. Gale
Gardner, complaining of dizziness, imbalance, and falling. Dr. Gardner described Cruse’s
impairment as total and1 further noted that she should not return to work pending the outcome of her
neurological work-up. Dr. Gardner assessed that Cruse suffered from idiopathic dizziness. On
December 26, 2001, Dr. Natasha Mahajan, Cruse’s primary care physician, reported that Cruse was
not taking any medications, she was in no acute distress, and her neurological examination was
negative. Dr. Mahajan also noted that Cruse had been wheelchair-bound for the previous couple of
months due to dizziness.
On February 14, 2002, Dr. Anne E. O’Duffy, a neurologist, reported that Cruse’s MRI,
laboratory studies and strength were “normal,” though she did have some “give-way” weakness in
her lower extremities. Dr. O’Duffy further remarked that Cruse’s gait was markedly abnormal “with
swaying and grabbing onto various objects.” At one point during the examination, Cruse fell down
and reported dizziness after being helped onto a chair, though her blood pressure and pulse remained
stable. Noting the lack of neurological explanation for her symptoms, Dr. O’Duffy opined that
Cruse had a conversion disorder,2 and suggested that she undergo a psychiatric evaluation. Dr.
O’Duffy also suggested that Cruse’s dizziness and vertigo could be migraine-related.
On May 3, 2002, a medical consultant, Dr. Louise G. Patikas, indicated that Cruse’s physical
impairments, singly or combined, were not severe. On May 21, 2002, Dr. Renga Vasu, a
neurologist, observed that Cruse “had difficulty standing and could not balance even with two
people holding her even though she could walk with support.” Dr. Vasu assessed that Cruse
suffered from brainstem migraines and somatization, but ruled out conversion disorder. She
suggested that Cruse undergo psychiatric treatment and physical therapy.
Christine Hasselle, a family nurse practitioner, treated Cruse on June 13, 2002, and August
29, 2002. Hasselle reported that Cruse was coherent with a guarded attitude, an appropriate affect,
1
All of Cruse’s subsequent neurological work-ups were normal or unremarkable.
2
Conversion disorder is a psychiatric condition in which emotional distress or unconscious conflict are
expressed through physical symptoms.
No. 06-5772 Cruse v. Comm’r of Soc. Sec. Page 3
adequate judgment, intact memory, and no perceptual abnormalities. Hasselle diagnosed Cruse with
conversion disorder and anxiety disorder. She assessed Cruse’s prognosis as good; however, she
indicated that Cruse was unable to work as of the June 13, 2002 evaluation.
On August 20, 2002, Cruse was again seen by Dr. Mahajan, who diagnosed her with the
following symptoms: 1) abdominal pain; 2) migraine headaches; 3) dizziness; 4) internal
hemorrhoids; and 5) possible conversion reaction.
From August through December 20, 2002, Cruse was examined by Dr. Shankar Natarajan,
a pediatric neurologist. Dr. Natarajan indicated that her physical and neurological examinations
were unremarkable. During the August 30, 2002 examination, Cruse was diagnosed with vertigo
and lower extremity weakness. In an October 14, 2002 letter, Dr. Natarajan advised Cruse not to
return to work until her migraines and dizziness were under control. Dr. Natarajan changed his
diagnosis to conversion disorder at the following examination, but later ruled it out on December
20, 2002. Dr. Natarajan also indicated that Cruse could move her legs easily when sitting in a
wheelchair but “her legs became wobbly” when standing. Cruse refused to be examined during her
December 20, 2002 consultation.
On September 5, 2002, Cruse’s impairments were again described as non-severe by another
medical consultant. Thereafter, Cruse obtained psychiatric treatment from Dr. Martha Gordon from
December 26, 2002, through June 3, 2003. On January 11, 2003, Dr. Gordon assessed Cruse’s
mental capacity for work activity and found that her cognitive work-related limitations were fair to
poor in all categories. Dr. Gordon indicated that Cruse was unable to work due to an inability to
stand or walk, dizziness, dissociative episodes, depression, anxiety, and panic.
Cruse was hospitalized for two weeks during April 2003 for intensive physical therapy,
during which she progressed to walking with the assistance of a rolling walker. Dr. Davidson
Curwen, a rehabilitation specialist, stated that Cruse was able to tolerate all scheduled therapies, and
that her functional limitations were gradually improving. At her first outpatient visit, on May 15,
2003, Cruse indicated to Dr. Curwen that “overall she [was] doing better,” and “[her] strength [had]
improved.” She further indicated that she was able to get around using a walker, although she did
not always need it, and that she was hopeful to be free of the walker within several weeks. Dr.
Curwen noted that Cruse was independent in all aspects of self-care and opined that she would be
totally independent in six to eight weeks and able to resume all aspects of her life.
Following a psychiatric diagnostic interview on April 10, 2003, Kelly Blair, Psy.D., found
that Cruse was alert, cooperative, pleasant, well-oriented, and exhibited appropriate behavior.
Despite Cruse’s assertion that she could not “retain anything,” Dr. Blair believed that she
demonstrated adequate recall of both recent and remote events, while displaying a relevant and
organized train of thought. Dr. Blair opined that Cruse did not appear to suffer from significant
depression or emotional instability. Subsequent progress notes show that Cruse performed
adequately on a brief neurocognitive evaluation. She was able to follow three-step verbal and one-
step written commands. A personality assessment inventory indicated significant elevation on items
measuring concerns about somatic events. Dr. Blair noted that her findings were consistent with
conversion disorder.
On June 2, 2003, Dr Mahajan stated that Cruse complained of shortness of breath. Cruse
indicated to Dr. Mahajan that she had been through physical therapy and that it had helped her a lot.
Dr. Mahajan also noted that Cruse was using a walker and was not in a wheelchair.
Cruse returned to Dr. Mahajan on June 10, 2003, complaining of dizziness and shortness of
breath. While at the lab, she passed out and fell. Cruse stated that while her dizziness had
No. 06-5772 Cruse v. Comm’r of Soc. Sec. Page 4
improved, it was returning. During a July 3, 2003 appointment with Dr. Mahajan, Cruse was again
using a wheelchair. She was diagnosed with asthma in August 2003.
Dr. Robert Kennon conducted a psychological evaluation of Cruse in September 2003.
Cruse related that her daily activities included washing dishes, light cooking and washing clothes,
although these tasks were limited by her pain. She also stated that she regularly attended church and
shopped for clothes and food using a motorized cart. Dr. Kennon opined that Cruse was capable of
managing her own funds. He stated that her stream of thought was logical, clear, and coherent. He
found that Cruse had a conversion disorder with a mixed presentation of motor and sensory
symptoms or deficits and a personality disorder, non-specific, with predominant masochistic traits.
He found that Cruse’s psychological difficulties were at the root of her neurological, somatic, and
motor deficits. As to the impact on her work-related activities, Dr. Kennon stated Cruse was capable
of following simple work rules and using appropriate judgment with the public. However, he
indicated that she may have difficulty sustaining employment due to her somatic complaints and
unfounded belief that she has an neurological condition.
On September 23, 2003, the intake clinician at Pathways of Tennessee, Inc. (“Pathways”)
reported that Cruse was neat, casual, coherent, and restless, with fair judgment, poor insight, an
appropriate mood and affect, adequate impulse control, poor memory, poor concentration/attention,
good eye contact, and a normal, organized, and non-psychotic thought process. The clinician
observed that Cruse was adequately able to express her needs, had good verbal skills, and was
independent in her activities of daily living. Cruse reported that she was able to read, shop, and
spend time with friends without any problems. She was diagnosed with a conversion disorder and
dissociative amnesia.
2. Testimony at the Hearing
Cruse arrived at the hearing using a walker. She stated that she lived with her parents. She
also stated that she was unable to walk at all without the walker.3 She indicated that her therapy
doctor at the time of the hearing advised her to move around as much she could, and that he had not
placed any specific restrictions on her.
Cruse indicated that she believed the cause of her symptoms was dissociative disorder. She
further indicated that her primary disability is her inability to walk unaided. Cruse testified that on
average, she falls two to three times per day after passing out, and gets migraines approximately two
to three times per week. Cruse listed a number of undesirable side-effects caused by her migraine
prescriptions, but stated that she was getting dizzy before she even went on the medication. Cruse
indicated that she did not believe that her symptoms are mental. Cruse also noted that she suffers
from asthma. She reported having problems with concentration and that she was incapable of
managing her own money. Cruse indicated that at the time of the hearing, she had not suffered a
panic attack in over two years.
When asked to describe her typical day, Cruse stated that she is able to get up and bathe
herself, but spends most of the remainder of the day resting with her legs elevated. She indicated
that she has difficulty reading because of her comprehension level. She stated that she was unable
to work because she was seeing so many doctors and had been so ill that she was unable to bathe
herself without her mother’s assistance. She occasionally went to the mall and had even gone to a
national park with her cousins. She also stated that she attends church and sometimes visits her
family.
3
The ALJ later questioned Cruse about her statement to Dr. Curwen that she was sometimes able to get around
without her walker. Cruse never directly responded, only adding that she “was crawling at one point.”
No. 06-5772 Cruse v. Comm’r of Soc. Sec. Page 5
Cruse testified that she had not driven a car since October 15, 2001, though she was never
specifically restricted by a doctor from doing so. Cruse further stated that she gets motion sickness
from traveling in a car, but it had gotten better. She testified that she could not take public
transportation without assistance. Cruse also stated that she would not be able to work at a sit-down
job due to her concentration level.
Cruse’s mother, Hildreth H. Cruse (“Mrs. Cruse”), also testified at the hearing. She testified
about many of the same conditions and limitations already indicated by her daughter, noting that her
daughter still falls every day, but passes out less frequently. Mrs. Cruse also stated that her daughter
had made progress at the time of the hearing, particularly in the area of personal hygiene, bathing,
and dressing herself.
3. Decision of the ALJ and Subsequent Procedural History
On December 11, 2003, the ALJ denied Cruse disability insurance and SSI benefits, finding
that:
1) Cruse met the non-disability requirements for a period of disability and
disability insurance benefits set forth in Section 216(i) of the Act and was
insured for benefits through June 30, 2003, but not thereafter.
2) Cruse has not engaged in substantial gainful activity since her alleged onset
of disability.
3) Cruse’s conversion disorder and asthma are considered “severe” based on the
requirements in the Regulations 20 C.F.R. § 404.1520(b) and 416.920(b), but
do not meet or medically equal one of the listed impairments in Appendix 1,
Subpart P, Regulation No. 4 (Listing of Impairments).
4) Cruse’s allegations regarding her limitations are not supported by the medical
evidence and are less than fully credible.
5) All medical opinions in the record regarding the severity of Cruse’s
impairments have been judiciously considered per 20 C.F.R. §§ 404.1527
and 416.927.
6) Cruse retains the physical residual functional capacity to lift and carry up to
twenty pounds occasionally, ten pounds frequently, and stand, walk or sit up
six hours in an eight-hour day. She should also avoid concentrated exposure
to dust, fumes, gases, odors, chemicals, and other pulmonary irritants.
7) Cruse’s mental capacity for work activity is limited only by occasional lapses
in concentration.
8) Cruse’s past relevant work does not require the performance of work-related
activities precluded by her residual functional capacity.
9) Cruse’s conversion disorder and asthma do not prevent her from performing
her past relevant work.
10) Cruse was not under a “disability” as defined in the Act at any time through
the date of this decision, 20 C.F.R. §§ 404.1520(f) and 416.920(f).
Thereafter, on December 4, 2004, the Appeals Council denied review.
No. 06-5772 Cruse v. Comm’r of Soc. Sec. Page 6
Cruse then filed a complaint in federal district court pursuant to 42 U.S.C. § 405(g),
challenging the Commissioner’s decision. The district court upheld the Commissioner’s decision.
II. ANALYSIS
The Act defines “disability” as the inability to engage in “‘substantial gainful activity,’”
because of a medically determinable physical or mental impairment of at least one year’s expected
duration. See Combs v. Comm’r of Soc. Sec., 459 F.3d 640, 642 (6th Cir. 2006) (en banc) (quoting
42 U.S.C. § 423(d)(1)(A)). To identify claimants who qualify as disabled, the Commissioner uses
a five-step “‘sequential evaluation process.’” Id. (quoting 20 C.F.R. § 404.1520(a)(4)). The five
steps are as follows:
1) A claimant who is engaging in substantial gainful activity will not be found
to be disabled regardless of medical findings.
2) A claimant who does not have a severe impairment will not be found to be
disabled.
3) A finding of disability will be made without consideration of vocational
factors, if a claimant is not working and is suffering from a severe
impairment which meets the duration requirement and which meets or equals
a listed impairment in Appendix 1 to Subpart P of the Regulations.
Claimants with lesser impairments proceed to step four.
4) A claimant who can perform work that he has done in the past will not be
found to be disabled.
5) If a claimant cannot perform his past work, other factors including age,
education, past work experience and residual functional capacity must be
considered to determine if other work can be performed.
Wyatt v. Sec’y of Health & Human Servs., 974 F.2d 680, 683-84 (6th Cir. 1992) (citing 20 C.F.R.
§§ 404.1520(b)-(f), 416.920(b)-(f)); see also Combs, 459 F.3d at 642-43 (citing 20 C.F.R.
§ 404.1520(a)(4)). The initial burden is on Cruse to demonstrate that she is disabled and cannot
engage in her former employment. See Atterberry v. Sec’y of Health & Human Servs., 871 F.2d 567,
569 (6th Cir. 1989) (“The initial burden of proof . . . rests with the claimant to show that he cannot
perform his past relevant work.”). With respect to step three, the Commissioner has promulgated
an extensive list of impairments. See Combs, 459 F.3d at 643 (citing 20 C.F.R. Part 404, Subpart
P, Appx. 1 (2005)). The list, which includes somatoform disorder, provides:
Somatoform Disorders: Physical symptoms for which there are no demonstrable
organic findings or known physiological mechanisms.
The required level of severity for these disorders is met when the requirements in
both A and B are satisfied.
A. Medically documented by evidence of one of the following:
1) A history of multiple physical symptoms of several years duration, beginning
before age 30, that have caused the individual to take medicine frequently, see a
physician often and alter life patterns significantly; or
2) Persistent nonorganic disturbance of one of the following:
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a. Vision; or
b. Speech; or
c. Hearing; or
d. Use of a limb; or
e. Movement and its control (e.g., coordination disturbance, psychogenic seizures,
akinesia, dyskinesia); or
f. Sensation (e.g., diminished or heightened).
3) Unrealistic interpretation of physical signs or sensations associated with the
preoccupation or belief that one has a serious injury;
AND
B. Resulting in at least two of the following:
1) Marked restriction of activities of daily living; or
2) Marked difficulties in maintaining social functioning; or
3) Marked difficulties in maintaining concentration, persistence, or pace; or
4) Repeated episodes of decompensation each of extended duration.
20 C.F.R. Part 404, Subpart P, Appx. 1, § 12.07 (2006).
In this case, the ALJ determined that Cruse’s residual functional capacity does not preclude
her from performing her past relevant work as a cashier and greeter, and that she is not suffering
from a severe impairment that meets or equals a listed impairment. Therefore, the burden of proof
is on Cruse to show that she is disabled. See Jones v. Comm’r of Soc. Sec., 336 F.3d 469, 474 (6th
Cir. 2003) (“Through step four, the claimant bears the burden of proving the existence and severity
of limitations caused by her impairments and the fact that she is precluded from performing her past
relevant work.”). We review the Commissioner’s application of this framework under a deferential
substantial-evidence standard.
A. ALJ’s Treatment of the Medical Opinion Evidence
Cruse contends that in finding her capable of performing her past relevant work, the ALJ
erred “in fail[ing] to give controlling weight to the opinions of [her] treating sources,” Dr. Gordon
and nurse practitioner Hasselle. First, Cruse points to the ALJ’s statement that “the extreme
limitations expressed by Dr. Gordon are not supported by the documented available record, and are,
therefore, afforded little weight.” Cruse insists that the ALJ did not provide any support for this
finding.
In general, we have held that the opinions of treating physicians are entitled to controlling
weight. See Walters v. Comm’r of Soc. Sec., 127 F.3d 525, 529-30 (6th Cir. 1997) (citing 20 C.F.R.
§ 404.1527(d)(2) (1997)). “A physician qualifies as a treating source if the claimant sees her ‘with
a frequency consistent with accepted medical practice for the type of treatment and/or evaluation
required for [the] medical condition.’” Smith v. Comm’r of Soc. Sec., 482 F.3d 873, 876 (6th Cir.
2007) (alteration in original) (quoting 20 C.F.R. § 404.1502). The record shows that Dr. Gordon
performed a “New Patient Evaluation” for Cruse on December 26, 2002, and saw Cruse twice more
No. 06-5772 Cruse v. Comm’r of Soc. Sec. Page 8
thereafter, on January 11 and June 3, 2003. The record also shows that Cruse was treated to a
similar extent by other doctors, including Dr. Mahajan, Dr. Natarajan, and Dr. Curwen, and had
similar initial assessments performed by other doctors, including Dr. Blair and Dr. Kennon. From
this evidence, we cannot say that the ALJ erred by not giving Dr. Gordon’s initial assessment,
performed on January 11, 2003, controlling weight over the opinions, some more recent than Dr.
Gordon’s, of the number of other doctors who were as much treating physicians as was Dr. Gordon.
Cruse also suggests that the ALJ improperly discounted the opinion of nurse practitioner
Hasselle. Hasselle indicated both in her June 13, 2002 evaluation of Cruse, as well as through a
letter dated October 15, 2002, that Cruse was unable to work. While the ALJ summarized Hasselle’s
findings, he did not give Hasselle’s opinion significant weight or explain his reasons for discounting
Hasselle’s findings. As a nurse practitioner, Hasselle is listed under “other [non-medical] sources.”
See 20 C.F.R. § 404.1513 (1997). We have previously held that an ALJ has discretion to determine
the proper weight to accord opinions from “other sources” such as nurse practitioners. See, e.g.,
Walters, 127 F.3d at 530. However, at oral argument, Cruse suggested that a recent Social Security
Ruling controls our analysis. SSR 06-03P was issued effective August 9, 2006, and clarifies how
the Commissioner is to consider opinions and other evidence from sources who are not “acceptable
medical sources.” SSR 06-03P, 2006 WL 2329939 (S.S.A.). While the ruling notes that
information from “other sources” cannot establish the existence of a medically determinable
impairment, the information “may provide insight into the severity of the impairment(s) and how
it affects the individual’s ability to function.” Id. at *3. The ruling goes on to note that:
With the growth of managed health care in recent years and the emphasis on
containing medical costs, medical sources who are not “acceptable medical sources,”
such as nurse practitioners . . . have increasingly assumed a greater percentage of the
treatment and evaluation functions handled primarily by physicians and
psychologists. Opinions from these medical sources who are not technically deemed
“acceptable medical sources,” under our rules, are important and should be evaluated
on key issues such as impairment severity and functional effects, along with the other
evidence in the file.
Id. at *4. Further, the ruling explains that opinions from non-medical sources who have seen the
claimant in their professional capacity should be evaluated by using the applicable factors, including
how long the source has known the individual, how consistent the opinion is with other evidence,
and how well the source explains the opinion. Martin v. Barnhart, 470 F. Supp. 2d 1324, 1328-29
(D. Utah 2006) (citing SSR 06-03P, 2006 WL 2329939 at *5-6). Finally, the ruling states that:
[a]lthough there is a distinction between what an adjudicator must consider and what
the adjudicator must explain in the disability determination or decision, the
adjudicator generally should explain the weight given to opinions for these “other
sources,” or otherwise ensure that the discussion of the evidence in the determination
or decision allows a claimant or subsequent reviewer to follow the adjudicator’s
reasoning, when such opinions may have an effect on the outcome of the case.
SSR 06-03P, 2006 WL 2329939 at *7.
In his decision denying Cruse disability insurance and SSI benefits, the ALJ stated the
findings of nurse practitioner Hasselle, including her letter advising that “[Cruse] was unable to
return to work.” The ALJ’s only explanation for discounting Hasselle’s opinion was that “Hasselle
is neither a medical doctor nor a vocational expert, and thus lacks the credentials for making such
a determination.” As it stands, the ALJ’s decision was devoid of any degree of specific
consideration of nurse practitioner Hasselle’s functional assessments. Following SSR 06-03P, the
ALJ should have discussed the factors relating to his treatment of Hasselle’s assessment, so as to
No. 06-5772 Cruse v. Comm’r of Soc. Sec. Page 9
have provided some basis for why he was rejecting the opinion. However, SSR 06-03P was not
implemented until August 9, 2006, after the Administration had issued its December 4, 2004 final
decision through the Appeals Council.
We are not aware of any constitutional or statutory requirement that the Administration apply
its policy interpretation rulings to appeals then-pending in the federal courts, absent, of course, ex
post facto or due process concerns not present here. Neither in the text of SSR 06-03P nor elsewhere
can we identify any intent on the part of the Administration to apply SSR 06-03P to appeals pending
in the federal courts as of August 9, 2006, and we therefore decline to require that it be applied in
this case.4 See Landgraf v. USI Film Products, 511 U.S. 244, 275 n.29 (1994) (“[T]he mere fact that
a new rule is procedural does not mean that it applies to every pending case. A new rule concerning
the filing of complaints would not govern an action in which the complaint had already been
properly filed under the old regime, and the promulgation of a new rule of evidence would not
require an appellate remand for a new trial. Our orders approving amendments to federal procedural
rules reflect the commonsense notion that the applicability of such provisions ordinarily depends
on the posture of the particular case.”).
B. Substantial Evidence Supports the ALJ’s Credibility Assessment of Cruse
Cruse also argues that the ALJ erred in finding that her claimed limitations were not
supported by the medical evidence and were less than fully credible. “There is no question that
subjective complaints of a claimant can support a claim for disability, if there is also evidence of an
underlying medical condition in the record.” Jones, 336 F.3d at 475 (citing Young v. Sec’y of Health
& Human Servs., 925 F.2d 146, 150-51 (6th Cir. 1990)). Here, it is uncontested that doctors
diagnosed Cruse with illnesses including conversion disorder and asthma, treated her for those
disorders, and have “therefore supplied the requisite objective medical condition to support” Cruse’s
claim. Id. However, “an ALJ is not required to accept a claimant’s subjective complaints and may
. . . consider the credibility of a claimant when making a determination of disability.” Id. at 476
(citing Walters, 127 F.3d at 531). Notably, an ALJ’s credibility determinations about the claimant
are to be given great weight, “particularly since the ALJ is charged with observing the claimant’s
demeanor and credibility.” However, they must also be supported by substantial evidence. Walters,
127 F.3d at 531 (citations omitted).
Here, the ALJ specifically set forth his reasons for discrediting Cruse’s subjective complaints
based on the medical evidence and inconsistencies in her testimony. Namely, the ALJ noted that
Cruse’s testimony regarding her activities was “hardly reflective of any totally disabling disorder.”
During her September 2003 evaluation by Dr. Kennon, Cruse indicated that her daily activities
included washing dishes, light cooking, and doing the laundry. Cruse also reported to the Pathways
intake physician that she was able to shop, read, and spend time with friends without any problems.
During the hearing, Cruse reported being able to bathe herself, attend church, visit friends, go to the
mall, and travel to a national park. See id. at 532 (“An ALJ may also consider household and social
activities engaged in by the claimant in evaluating the claimant’s assertion of pain or ailments.”)
(citing Blacha v. Sec’y of Health & Human Servs., 927 F.2d 228, 231 (6th Cir. 1990)).
Additionally, the record is replete with medical evidence that Cruse’s symptoms were not
as severe as she suggested. As noted by the ALJ, Cruse claimed that she could not walk without her
walker despite the fact that she had told Dr. Curwen that she did not always need the walker and
hoped to be free of it within weeks. During Cruse’s April 2003 hospitalization for physical therapy,
Dr. Curwen noted that she was able to tolerate all scheduled therapies and that her functional
limitations were improving. Cruse also indicated that her condition had improved during a May 15,
4
Should Cruse bring another claim before the Administration, the ALJ would be bound by SSR 06-03P.
No. 06-5772 Cruse v. Comm’r of Soc. Sec. Page 10
2003 outpatient visit with Dr. Curwen. Thereafter, Dr. Curwen noted that Cruse was independent
in all aspects of self-care and opined that she would be “totally independent” in six to eight weeks.
Moreover, at the time of the hearing, Cruse stated that her therapy doctor advised her to move
around as much as she could, and that he had not placed her on any specific restrictions.
There are also inconsistencies regarding Cruse’s testimony about her concentration. While
Cruse stated that she was incapable of managing her own funds, Dr. Kennon opined that she was
capable of this function. Despite Cruse’s assertion that she was plagued by an inability to
concentrate, Dr. Blair found that Cruse demonstrated adequate recall of both recent and remote
events, while displaying a relevant and organized train of thought. Moreover, Dr. Kennon indicated
that Cruse’s stream of thought was logical, clear and coherent. Therefore, substantial evidence
supports the ALJ’s decision to treat Cruse’s testimony as less than credible. See Walters, 127 F.3d
at 531 (“Discounting credibility to a certain degree is appropriate where an ALJ finds contradictions
among medical reports, claimant’s testimony, and other evidence.”) (citing Bradley v. Sec’y of
Health & Human Servs., 862 F.2d 1224, 1227 (6th Cir. 1988)).
C. Substantial Evidence Supports the ALJ’s Finding that Cruse’s Impairments Do Not
Preclude Her from Performing Her Past Relevant Work
Cruse also contends that substantial evidence does not support the ALJ’s conclusion that she
can return to her past relevant work as a cashier or greeter.5 The ALJ agreed that Cruse suffered
from a conversion disorder and asthma, but determined that the impairments were not severe enough
to meet or medically equal the requirements for any listing in Appendix 1 to Subpart P of the
Regulations. Specifically, the ALJ found that Cruse suffered from a conversion disorder and,
therefore, satisfied Part A of § 12.07. However, the ALJ determined that Cruse had: 1) no difficulty
tending to her activities of daily living; 2) no difficulty in maintaining proper social functioning; 3)
only moderate difficulties in sustaining concentration, persistence and pace; and 4) no evidence of
episodes of decompensation. Therefore, Cruse failed to satisfy Part B of § 12.07. Substantial
evidence supports the ALJ’s conclusion that Cruse did not have a listed impairment.
Cruse is able to do a variety of daily activities. She takes care of her personal needs and does
the dishes and light cooking, talks on the telephone, shops for food and clothes, and occasionally
goes to church. While Cruse stated that she is unable to drive or take public transportation, the ALJ
is permitted to treat these assertions as less than credible. The ALJ also properly discounted Dr.
Gordon’s opinion about Cruse’s inability to function independently. Therefore, the ALJ’s finding
that Cruse has no difficulty attending to her activities of daily living is amply supported by the
evidence. See Young, 925 F.2d at150 (finding that claimant failed to show marked restriction in
activities of daily living where the evidence of record exemplified that claimant was able to perform
“a variety of daily activities”).
Social functioning refers to an individual’s capacity to interact appropriately and
communicate effectively with others, including family members, friends, and merchants. 20 C.F.R.
Part 404, Subpart P, § 12.00(C)(2). There is no indication that Cruse’s social functioning is
impaired. She attends church and enjoys visiting with family and friends, occasionally goes to the
mall, and has even traveled to a national park with her cousins. Moreover, Dr. Blair found that
Cruse was cooperative, pleasant and exhibited appropriate behavior. Furthermore, Dr. Kennon
indicated that Cruse was capable of using appropriate judgment with the public. Finally, the ALJ
5
In her brief on appeal, Cruse states as an issue presented that substantial evidence does not support the ALJ’s
conclusion at step four that she can return to her past relevant work as a cashier or greeter. However, in the argument
section of her brief, Cruse contends that substantial evidence does not support the ALJ’s conclusion at step three that
her condition did not meet or equal a listed impairment in Appendix 1 to Subpart P of the Social Security Regulations.
Accordingly, we address here Cruse’s argument as she developed it in the argument section of her brief.
No. 06-5772 Cruse v. Comm’r of Soc. Sec. Page 11
properly discounted the opinion of Dr. Gordon regarding Cruse’s ability to use judgment with the
public. Therefore, substantial evidence supports the ALJ’s finding that Cruse did not have marked
difficulties in maintaining social functioning.
Concentration, persistence, and pace refers to the “ability to sustain focused attention
sufficiently long to permit the timely completion of tasks commonly found in work settings.”
20 C.F.R. Part 404, Subpart P, § 12.00(C)(3). While Cruse reported that she did have difficulty with
concentration, the ALJ was free to treat her claims as less than credible. Moreover, the ALJ
properly discounted the opinion of Dr. Gordon as to Cruse’s attention and concentration. Dr. Blair
determined that Cruse demonstrated adequate recall of both recent and remote events, while
displaying a relevant and organized train of thought. Dr. Kennon stated that Cruse could follow
simple work rules. Only the Pathways intake clinician found that Cruse suffered from poor
attention. Therefore, substantial evidence supports the ALJ’s determination that Cruse suffered only
moderate difficulties in maintaining concentration, persistence, or pace.
Arguably, the ALJ failed to identify substantial evidence in the record to show that Cruse
did not experience repeated instances of deterioration or decompensation in work-like settings,
causing her to withdraw from the situation or to experience exacerbation of signs and symptoms.
20 C.F.R. Part 404, Subpart P, § 12.00(C)(4). Namely, Dr. Kennon stated that Cruse may have
difficulty sustaining employment due to her somatic complaints and unfounded belief that she has
a neurological disorder. Even so, Cruse has only demonstrated that she suffers from one, not the
required two, of the four categories under § 12.07(B). Accordingly, Cruse did not meet the listing
requirements of § 12.07 and failed to meet her burden of showing that she is unable to perform her
past relevant work as a cashier and greeter. See Atterberry, 871 F.2d 569 (noting that burden is on
claimant to show she cannot perform past relevant work).
D. The ALJ Did Not Err by Failing to Obtain the Testimony of a Qualified Vocational Expert
Cruse also suggests that the ALJ committed reversible error by failing to secure the
testimony of a vocational expert. This argument lacks merit. As previously discussed, substantial
evidence supports the ALJ’s conclusion that Cruse’s limitations did not render her incapable of
performing her past relevant work. Therefore, the burden of proof remained with Cruse. See Jones,
336 F.3d at 474 (“Through step four, the claimant bears the burden of proving the existence and
severity of limitations caused by her impairments and the fact that she is precluded from performing
her past relevant work, but at step five . . . the burden shifts to the Commissioner to identify a
significant number of jobs in the economy that accommodate the claimant’s residual functional
capacity . . . and vocational profile.”) (citation omitted).
AFFIRMED.