Griffith v. Commissioner of Social Security , 582 F. App'x 555 ( 2014 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 14a0606n.06
Case No. 13-6570
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
CATHERINE D. GRIFFITH, ) Aug 07, 2014
) DEBORAH S. HUNT, Clerk
Plaintiff-Appellant, )
) ON APPEAL FROM THE
v. ) UNITED STATES DISTRICT
) COURT FOR THE EASTERN
COMMISSIONER OF SOCIAL SECURITY, ) DISTRICT OF KENTUCKY
)
Defendant-Appellee. )
)
) OPINION
BEFORE: GIBBONS and McKEAGUE Circuit Judges, and LAWSON, District Judge.*
McKeague, Circuit Judge. Catherine Griffith challenges the denial of her application
for Supplemental Security Income. Two issues are presented on appeal: (1) whether the
administrative law judge improperly concluded that Ms. Griffith does not have a “medically
determinable mental impairment” and (2) whether the administrative law judge also erred by
relying upon vocational testimony that was allegedly based on inaccurate information. For the
following reasons, we AFFIRM the decision of the administrative law judge.
*
The Honorable David M. Lawson, United States District Judge for the Eastern District of
Michigan, sitting by designation.
Case No. 13-6570
Griffith v. Comm’r of Social Security
I. FACTS
In March of 2010, Catherine Griffith (“Griffith”) applied for Supplemental Security
Income, claiming that she suffered from bipolar disorder, depression, and nerves. As part of her
application, Griffith was evaluated by several psychiatrists and doctors. The Social Security
Administration also considered intellectual testing from Griffith’s high school and other
psychological/medical evaluations. We briefly summarize the various reports considered by the
Administrative Law Judge (“ALJ”).
In March of 2005, Cassaundra Murray (“Murray”), a certified school psychologist of the
Lincoln County Schools, evaluated Griffith’s intelligence when she was approximately 16 years
old and determined that she fell in the “Below Average” range with a “Full Scale IQ Score” of
62, which falls in the lowest 2% of the population.1 While noting that Griffith’s communication
skills were “commensurate with her peers” and that she “was able to successfully solve problems
requiring abstract reasoning and auditory short-term memory,” Murray indicated that Griffith
had a “mild cognitive disability.”
Murray also performed an Adaptive Behavior Assessment that tested the daily “skills
necessary to function effectively in [Griffith’s] environment . . . .” This included testing her
“Home Living,” “Health and Safety,” “Self-Care,” and “Self-Direction” skills. Griffith received
a composite score of 81, which fell in the “Low Average” range, and as Murray reported, “is not
consistent with her overall intellectual functioning . . . .”
On April 26, 2010, Psychiatrist Syed Raza (“Raza”) evaluated Griffith and diagnosed
anxiety disorder and depressive disorder. Griffith scored “slightly low” in the assessment ratings
for societal/role functioning and interpersonal functioning, but displayed no impairment with
1
Murray used the Wechsler Intelligence Scale for Children – Fourth Edition. The Wechsler
Intelligence Scale is used as a “measure of general intellectual functioning.”
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respect to her “daily living/personal care functioning,” “physical functioning,” or
“cognitive/intellectual functioning.” In a follow-up appointment on August 2, 2010, Raza noted
that Griffith was alert, “oriented to place, person and situation,” and had fair judgment, fair
insight, and linear thoughts.
Griffith underwent another evaluation on September 9, 2010, at age 21, with Dr. Timothy
Baggs (“Dr. Baggs”). During this evaluation, Griffith told Dr. Baggs that she had previously
worked part-time at a Kroger’s deli, but that this employment had only lasted a few months.
Griffith also reported that she held a valid driver’s license, though she did not drive much, and
indicated that she was able to perform common household tasks, to care for her personal
hygiene, to manage her personal finances, and to shop for herself. When asked about her social
interactions with others, Griffith indicated that her family relationships were “alright,” but
expressed “difficulty in initiating and maintaining social relationships.”
In assessing her mental status, Dr. Baggs observed that Griffith “appeared to be
experiencing moderate to possibly moderately severe psychological distress in the form of
depression,” but noted that her “thought processes did appear to be rational,” “[t]here was no
suggestion of mental confusion or disorientation,” and that “[i]nsight and personal judgment
were deemed fair.” He ultimately estimated that her intellectual functioning fell in the low
average range. Dr. Baggs further opined that Griffith “had the ability to understand and
remember simple instructions,” that “[s]he seemed capable of maintaining sustained
concentration and persistence in completion of tasks in a normal amount of time,” and that she
“may experience moderate difficulty relating appropriately with people in either a workplace
environment or social setting.”
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Dr. Ann Demaree, Ph.D. (“Dr. Demaree”) reviewed the Baggs Report and completed a
Mental Residual Functional Capacity Assessment on September 23, 2010. In Section III of the
assessment, Dr. Demaree concluded that Griffith remained able to “understand/complete simple,
routine tasks;” to “relate adequately to peers and supervisors where she has casual contact and no
public contact;” and to “adapt in a task oriented work setting with few changes in routine.” Dr.
Jay Athy, Ph.D. (“Dr. Athy”) reviewed the Baggs Report and found the same moderate
limitations on Griffith’s abilities.
After reviewing the entire record and following a hearing where Griffith and a vocational
expert testified, the ALJ issued a decision on September 13, 2011. At the time of the decision,
Griffith was twenty-two years old, had completed eleventh grade in a special education program,
and had limited work experience in the form of her part-time employment at the Kroger deli.
Taking all of this information, as well as the various psychological and medical reports into
account, the ALJ determined that Griffith suffered from anxiety disorder and depressive disorder
that were “severe” in combination, but further determined there was no medically determinable
mental impairment with regard to her intellectual functioning. The ALJ further concluded that
Griffith had the residual functional capacity to perform “work that involves only simple, routine
tasks with no more than casual contact with coworkers and the general public” with a “task-
oriented setting that involves few changes in routine.” Then relying upon the testimony of a
vocational expert, who indicated that substantial jobs existed in the national economy for a
person with these limitations, the ALJ determined that Griffith was not disabled and denied her
Supplemental Security Income.
Griffith subsequently requested review from the Appeals Council, which was denied on
December 12, 2012. Having exhausted her administrative remedies, Griffith brought suit in the
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United States District Court for the Eastern District of Kentucky and moved for summary
judgment. On October 7, 2013, the district court denied the motion and affirmed the ALJ’s
decision. Griffith appeals the ALJ’s decision and the district court’s affirmance.
II. STANDARD OF REVIEW
This court reviews a district court’s decision on a social security case de novo. Rabbers
v. Comm’r Soc. Sec., 582 F.3d 647, 651 (6th Cir. 2009). Our review is limited, however, to
whether the Commissioner’s decision “is supported by substantial evidence and was made
pursuant to proper legal standards.” Id. (quoting Rogers v. Comm’r Soc. Sec., 486 F.3d 234, 241
(6th Cir. 2007)). “Substantial evidence is such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.” Heston v. Comm’r Soc. Sec., 245 F.3d 528, 534
(6th Cir. 2001) (internal citation and quotation marks omitted). Ultimately, if the
commissioner’s decision is based upon substantial evidence, we must affirm even if we would
have ruled differently in the first instance. See Ealy v. Comm’r Soc. Sec., 594 F.3d 504, 512 (6th
Cir. 2010).
III. ANALYSIS
Under the Social Security Act, a person qualifies for supplemental security income if they
have a disability. Disability is defined as the “inability to engage in any substantial gainful
activity by reason of any medically determinable physical or mental impairment which can be
expected to result in death or which has lasted or can be expected to last for a continuous period
of not less than 12 months.” Simpson v. Comm’r Soc. Sec., 344 F. App’x. 181, 188 (6th Cir.
2009) (quoting 42 U.S.C. § 423(d)(1)(A)). A five-step sequential evaluation is used to determine
if a claimant has established a disability under 20 C.F.R. § 416.920.2 While the claimant bears
2
Our case law clearly sets outs the five-step evaluation process:
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the burden through step four of proving the existence and severity of limitations caused by her
impairments, the burden shifts to the Commissioner at step five to identity a significant number
of jobs in the national economy that the claimant can perform. See Jones v. Comm’r Soc. Sec.,
336 F.3d 469, 474 (6th Cir. 2003); 20 C.F.R. § 416.912(a). Here, Griffith contends that the ALJ:
(1) erred when he failed to find that Griffith has a medically determinable mental impairment
with regard to her intellectual functioning, and (2) further erred by relying upon vocational
testimony that was allegedly based on inaccurate information. We begin with the first
contention.
1. Does the complainant have a medically determinable mental impairment
with regard to her intellectual functioning?
Griffith alleges that she was disabled on the “basis of major depression, anxiety, and
borderline intellectual functioning,” and that the ALJ erred by failing to find that she has a
medically determinable mental impairment based on her low I.Q. In order to be classified as
disabled, Griffith must “have a severe impairment,” which “significantly limits [her] physical or
First, plaintiff must demonstrate that she is not currently engaged in “substantial
gainful activity” at the time she seeks disability benefits. Abbott v. Sullivan, 905
F.2d 918, 923 (6th Cir. 1990) (citing 20 C.F.R. §§ 404.1520(b) and
416.920(b)(2000)). Second, plaintiff must show that she suffers from a “severe
impairment” in order to warrant a finding of disability. Third, if plaintiff is not
performing substantial gainful activity, has a severe impairment that is expected
to last for at least twelve months, and the impairment meets a listed impairment,
plaintiff is presumed to be disabled regardless of age, education or work
experience. 20 C.F.R. §§ 404.1520(d) and 416.920(d)(2000). Fourth, if the
plaintiff’s impairment does not prevent her from doing her past relevant work,
plaintiff is not disabled. For the fifth and final step, even if the plaintiff’s
impairment does prevent her from doing her past relevant work, if other work
exists in the national economy that plaintiff can perform, plaintiff is not disabled.
Abbott, 905 F.2d at 923.
Heston, 245 F.3d at 534.
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mental ability to do basic work activities.” 20 C.F.R. § 416.920(c). A severe mental impairment
is “established by medical evidence consisting of signs, symptoms, and laboratory findings, not
only by [a complaint’s] statement of symptoms.” 20 C.F.R. § 416.908. Basic work activities
include physical and mental tasks, ranging from walking and standing to remembering simple
instructions. 20 C.F.R. § 416.921. Griffith bears the burden of showing a severe impairment by
medical evidence. 20 C.F.R. § 416.908.
The ALJ rejected Griffith’s argument because the record as a whole indicated that her
intellectual functioning was not as low as her I.Q. score indicated.3 Griffith counters that the
ALJ has confused intellectual ability with adaptive functioning, which generally references a
“claimant’s effectiveness in areas such as social skills, communication, and daily living skills.”
West v. Comm’r Soc. Sec., 240 F. App’x 692, 698 (6th Cir. 2007). In actuality, Griffith has
conflated the existence of a medically determinable mental impairment with a low I.Q. score.
The ALJ’s assessment does not begin and end solely on the basis of I.Q.
While it is well established that an intelligence score may be helpful in assessing whether
an individual has a medically determinable mental impairment, it is not the sole determinative
criteria, and notably the complainant has not cited a single case where a low I.Q. score was the
sole basis for finding an intellectual disability. See 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.00
(D)(6)(a); 20 C.F.R. § 404.1520a. As the C.F.R. clarifies, “intelligence tests are only part of the
overall assessment.” 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.00 (D)(6)(a). “The narrative
report that accompanies the test results should comment on whether the I.Q. scores are
3
Griffith claims that the “Commissioner conceded in her brief to the District Court that the
ALJ’s finding of ‘no medically determinable intellectual impairment’ was in error.” This is
simply incorrect. The Commissioner never conceded this point, but instead asserted “the ALJ’s
characterization of Plaintiff’s intellectual functioning as ‘not medically determinable’ is no more
than harmless error.” The Commissioner has consistently argued that the ALJ’s finding was not
in error, but that even if it was erroneous, that the error was harmless.
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considered valid and consistent with the developmental history and the degree of functional
limitation.” Id. (emphasis added). Case law is consistent on this point. As we emphasized in
Brown v. Secretary of Health & Human Services:
The I.Q. score must reflect the plaintiff’s true abilities as demonstrated by his or
her performance at work, household management and social functioning. The
regulations do not limit the question of validity to test results alone in isolation
from other factors. In assessing the validity of a claimant’s I.Q., [i]nformation
from both medical and nonmedical sources may be used to obtain detailed
descriptions of the individual’s activities of daily living; social functioning;
concentration, persistance [sic] and pace; or ability to tolerate increased mental
demands (stress).
948 F.2d 268, 269 (6th Cir. 1991) (internal citations and quotation marks omitted) (emphasis
added). Thus, both the C.F.R. and the case law indicate that I.Q. scores should be read as part of
an overall assessment that includes the individual’s adaptive functioning and daily activities.
Here, the ALJ acknowledged Griffith’s low I.Q. of 62, but concluded that this test, which
was performed when Griffith was 17 years-old, was not representative of her actual intellectual
functioning. In support of this determination, the ALJ noted that the impact statement following
Griffith’s I.Q. score described her as having only a “mild cognitive disability.” The ALJ also
referenced Griffith’s concession that she did not qualify for “intellectual disability,” which is a
listed disorder under 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.05, because she “did not have
significant deficits in adaptive functioning prior to the end of the development period.”4 While
4
Griffith conceded this point when the ALJ inquired as to why she was not pursuing an
“Intellectual Disability” determination under 20 C.F.R. Pt. 404, Subpt. P, App. 1. “Intellectual
Disability” is a term of art that “refers to significantly subaverage general intellectual functioning
with deficits in adaptive functioning initially manifested during the developmental period (before
age 22).” 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.05. Griffith indicated that “while there were
no reservations about the validity of the school age I.Q. scores, the school age test results also
showed that the claimant did not have significant deficits in adaptive function prior to the end of
the development period, as would be required to satisfy the diagnostic description in 12.00 of of
[sic] 20 C.F.R. Part 404 . . . .” Thus, while Griffith concedes, as she must, that she lacks an
“intellectual disability” because of her adaptive functioning, she nonetheless argues that her
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Griffith’s concession is not dispositive on the question of whether she suffered from a medically
determinable mental impairment, the ALJ did not err in taking the concession under
consideration when assessing her intellectual functioning.
Moreover, there is ample evidence in the record as a whole and elsewhere in the ALJ’s
opinion that Griffith had a higher degree of intellectual functioning than her single I.Q. score
indicated. For example, in section II of the order, the ALJ extensively discussed Griffith’s
normal level of adaptive functioning, including her ability to count change, perform household
tasks, live independently, manage her food stamp benefits, maintain personal hygiene, drive a
car, use a home computer, and maintain relationships with various extended family members.
Along with those abilities, the ALJ also noted Griffith’s only slightly low interpersonal
functioning, her appropriate behavior during her various interviews, and her ability to answer
questions without difficulty during her disability interview.
In her reply brief, Griffith counters that several cases in the Sixth Circuit have found that
adaptive abilities may be consistent with an I.Q. in the 60s. See, e.g., Mowery v. Heckler,
771 F.2d 966, 971 (6th Cir. 1985) (finding reliance on work history alone could not discount the
individual’s I.Q. of 66); Brown, 948 F.2d at 270 (finding that claimant’s abilities to use public
transit, possess a driver’s license, visit friends, and make change were not inconsistent with an
I.Q. of 68). While this is true, all of the cases that Griffith has cited involved an analysis of
20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.05(c), which Griffin has conceded is not at play in the
present case. Additionally, Griffith has not offered an alternative to section 12.05(c), under
which she would qualify as mentally impaired. Perhaps, most importantly, the ALJ in the
cognitive impairment should still be recognized as a medically determinable impairment. Again,
however, Griffith has failed to cite to any cases or regulations that indicate that an I.Q. score like
hers, by itself, qualifies as a medically determinable impairment.
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present case, unlike in the cited cases, did not rely solely on Griffith’s adaptive abilities for his
conclusion that her intellectual disability did not qualify as “severe.”
In particular, the ALJ expressly discussed the various psychological evaluations which
indicated that Griffith only had a “mild cognitive impairment” or was “below average.” See R.
4-1, Baggs Report, PageID # 290 (“Griffith’s intellectual functioning likely fell in the Low
Average range.”); Murray Report, PageID # 217, 219 (describing Griffith as possessing a “mild
cognitive disability” and further indicating that her “adaptive behavior [was] not consistent with
her overall intellectual functioning, which fell in the below average range”); Raza Report,
PageID # 250, 266 (indicating Griffith did not have a “cognitive/intellectual” functional
impairment and estimating Griffith’s intelligence to be merely “Below Average,” instead of
“Borderline Intellectual Functioning” or “Mental Retardation.”); Demaree Report, PageID # 299
(failing to mention a cognitive impairment despite prompting from the psychiatric review form).5
The opinions of these medical professionals consistently indicated that Griffith fell in the below-
average range for general intelligence but eschewed a direct finding of borderline intellectual
functioning or mental retardation. Taken together, these various psychological opinions in
combination with the extensive evidence of Griffith’s adaptive functioning provide substantial
evidence for the ALJ to have concluded that Griffith did not have a severe mental impairment
with regard to her intellectual functioning. See Longworth v. Comm’r Soc. Sec., 402 F.3d 591,
5
Raza additionally indicated in his diagnostic impression “R/O Borderline Intellectual
Functioning.” The district court believed that this meant “any borderline intellectual functioning
had been ruled out for Griffith.” Griffith argues that Raza’s note was intended as a differential
diagnosis, meaning borderline intellectual functioning needed to be “ruled out.” We do not rely
on the meaning of “R/O” for purposes of our judgment, and therefore, we need not definitively
resolve this dispute. But we do note that elsewhere in his functional assessment, Raza indicated
that Griffith did not suffer from a cognitive/intellectual functioning impairment. Raza also
estimated, when assessing Griffith’s “estimated intelligence,” that she was only “below average,”
which is a category above “borderline intellectual functioning” and “mental retardation.” Thus,
the evidence supports the district court’s interpretation of the meaning of “R/O.”
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597 (6th Cir. 2005) (relying on prior work experience and medical testimony to reject claimant’s
argument that her 51 I.Q. alone placed her in the bottom ten percent of the population in
intelligence level).
Next, we address whether the ALJ impermissibly substituted his own medical judgment
for those of trained professionals when he considered Griffith’s adaptive functioning in assessing
her intellectual functioning. See Meece v. Barnhart, 192 F. App’x 456, 465 (6th Cir. 2006).
Again, intellectual functioning is determined not just by considering raw I.Q. but more
holistically taking into account the degree of functional limitation. Moreover, while the ALJ
must base his findings of fact and legal conclusions on medical information that has been
provided, we note that solicitation of an expert medical opinion is discretionary.
See 20 C.F.R. § 416.927(e)(2); Simpson, 344 F. App’x at 189 (discussing 20 C.F.R.
§§ 404.1527(f)(2)(iii) and 416.927(f)(2)(iii)).
In Foster v. Halter, 279 F.3d 348, 356 (6th Cir. 2001), we held that the ALJ did not abuse
his discretion in denying a request for additional expert testimony when there was sufficient
evidence in the record for the ALJ to evaluate the claimant. See also Landsaw v. Sec’y of Health
& Human Servs., 803 F.2d 211, 214 (6th Cir. 1986) (“[T]he regulations do not require an ALJ to
refer a claimant to a consultative specialist, but simply grant him the authority to do so if the
existing medical sources do not contain sufficient evidence to make a determination.”).
Similarly here, the record was amply developed by the psychological reports from Murray, Raza,
Baggs, Demaree, and Athy. Moreover, the data consistently indicated that Griffith had low
intelligence and a comparatively higher degree of adaptive functioning, making solicitation of
additional medical opinions unnecessary. As the ALJ properly reviewed and weighed the reports
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to make a legal determination that is supported by substantial evidence, the assertion that the
ALJ was “playing doctor” is unsupported.
For all of these reasons, we conclude that substantial evidence supports the ALJ’s
determination that Griffith did not suffer from medically determinable mental impairment with
regard to her intellectual functioning.
2. Did the ALJ improperly rely on expert testimony from a vocational expert
that was based on a flawed hypothetical?
In assessing at step 5 the availability of suitable work for a complainant, the ALJ may
rely upon the testimony of a vocational expert. Such testimony can constitute substantial
evidence, but it “must be given in response to a hypothetical question that accurately describes
the plaintiff in all significant, relevant respects.” Felisky v. Bowen, 35 F.3d 1027, 1036 (6th Cir.
1994). Failure to describe a complainant’s limitations in all relevant respects, especially where
the ALJ otherwise relies upon an expert’s assessment of a claimant’s limitations, can result in a
finding of error. See Ealy, 594 F.3d at 516.
Here, the ALJ asked the vocational expert to assume a younger individual with an
eleventh grade education, no exertional limitations, no more than occasional contact with co-
workers and supervisors, and no contact with the general public. The ALJ also indicated that the
person would be limited to one, two, and three-step instructions and would be required to work
in a task-oriented setting with few changes in routine. Based on this hypothetical, the vocational
expert determined that three jobs—kitchen helper, janitor, and laundry worker—existed in
sufficient numbers in the national economy for an individual with such limitations.
Griffith argues that the ALJ’s hypothetical was flawed because it failed to take into
account other relevant restrictions. Both Drs. Demaree and Athy concluded in Section I of their
Mental Residual Functional Capacity Assessment that Griffith would experience moderate
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difficulty in a variety of areas, including working in coordination with or in proximity to others,
completing a normal work day and performing work at a consistent pace without an
unreasonable number of rest periods, and getting along with coworkers or peers without
distracting them or exhibiting behavioral extremes. Griffith contends that these restrictions were
relevant and should have been provided to the vocational expert.
We are not persuaded. Claimant concedes, as she must, that Section I of the Mental
Residual Functional Capacity Assessment is a “worksheet” and “does not constitute the
[Residual Functional Capacity] assessment.” As the actual assessment document itself explains,
Section I is intended for evaluators to record “summary conclusions,” while the “[d]etailed
explanation of the degree of limitation for each category . . . as well as any other assessment
information . . . is to be recorded in Section III.” The webpage for the Department of Social
Security, to which Griffith draws our attention, also confirms that “Section I is merely a
worksheet . . . and does not constitute the RCF assessment.” POMS DI 24510.060 Mental
Residual Functional Capacity Assessment (last visited 7/18/2014), available at
https://secure.ssa.gov/apps10/poms.nsf/lnx/0424510060 (emphasis added). In contrast, Section
III is where “the actual [Residual Functional Capacity] assessment is recorded” and explains “the
conclusions indicated in section I, in terms of the extent to which these mental capacities or
functions could or could not be performed in work settings.” Id.
These multiple sources make clear that Section III not only provides a more thorough and
detailed assessment than the checklist in Section I, but also reflects the doctors’ actual findings
regarding their understanding of Griffith’s work-related limitations. Additionally, the
hypothetical that the ALJ ultimately posed to the vocational expert closely tracked the limitations
detailed in Section III of the functional capacity assessment. It is apparent that the ALJ, in
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relying solely on the Section III analysis, was not acting arbitrarily or merely cherry picking
from the record, as Griffith contends, but was properly applying the doctors’ actual findings. We
therefore conclude that the ALJ did not err in creating a hypothetical that solely referenced the
Section III assessment. See Webb. v. Comm’r Soc. Sec., 368 F.3d 629, 633 (6th Cir. 2004)
(indicating that “a hypothetical question need only reference all of a claimant’s limitations,
without reference to the claimant’s medical conditions.”). Our determination on this point is
consistent with several district courts and with the Third Circuit. See, e.g., Smith v. Comm’r Soc.
Sec., 631 F.3d 632, 636–37 (3d Cir. 2010) (holding, and listing cases, that indicate that a
complainant cannot rely on the worksheet component of the Mental Residual Functional
Capacity Assessment to contend that a hypothetical question was deficient).
Griffith next contends that the ALJ failed to advise the vocational advisor as to all of the
restrictions identified by Dr. Baggs. For example, Dr. Baggs indicated that Griffith “may
experience moderate difficulty relating appropriately with people in either a workplace
environment or social setting” and that her “ability to adapt and respond effectively to pressures
found in normal work settings seemed moderately less to possibly much less than the average
worker.” In comparison, the ALJ indicated in his hypothetical that the worker should have “no
more than occasional contact with coworkers and supervisors, [and] no contact with [sic] general
public.”
Both the ALJ’s opinion and the Baggs Report speak to Griffith’s social difficulties and
problems adapting to the work environment, but while the Baggs Report speaks in terms of
possible restrictions—the claimant “may” have or “seems” to have problems—the ALJ sought to
provide the vocational expert with more concrete information regarding Griffith’s limitations.
Thus, the distinction between the ALJ’s language and the Baggs report is partially attributable to
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the need to provide the vocational expert with actionable guidance, and as this circuit has
previously indicated, “a hypothetical question may be incomplete, yet still accurately portray a
claimant’s limitations.” Brock v. Comm’r Soc. Sec., 368 F. App’x 622, 626 (6th Cir. 2010).
But even assuming that the ALJ’s language is less restrictive than the language from the
Baggs Report, the ALJ was not required to discuss the Baggs Report verbatim. The opinion of a
nontreating source or one-time examiner, such as Dr. Baggs, is not entitled to the degree of
deference that is granted to a treating physician. See Smith v. Comm’r Soc. Sec., 482 F.3d 873,
875 (6th Cir. 2007). Moreover, the ALJ is not required to simply accept the testimony of a
medical examiner based solely on the claimant’s self-reports of symptoms, but instead is tasked
with interpreting medical opinions in light of the totality of the evidence. See
20 C.F.R. § 416.927(b); Bell v. Barnhart, 148 F. App’x 277, 285 (6th Cir. 2005) (declining to
give weight to a doctor’s opinion that was only supported by the claimant’s reported symptoms).
The ALJ did precisely this.
The ALJ acknowledged Griffith’s claim that her ability to respond to normal work stress
was moderately less to possibly much less than the average worker, but then rejected this
argument in light of the totality of the evidence. The ALJ first noted that Dr. Baggs found that
Griffith was capable of understanding and remembering simple instructions; that she was capable
of maintaining sustained concentration and persistence to complete tasks; and that she was
oriented to person, place, and time with intact memory. The ALJ then turned to Dr. Demaree’s
conclusion in her functional capacity assessment that Griffith remained able to
“understand/complete simple, routine tasks” and “relate adequately to peers and supervisors
where she has casual contact and no public contact.” Dr. Athy affirmed Dr. Demaree’s
assessment. For purposes of his vocational expert hypothesis, the ALJ effectively co-opted the
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language from Dr. Demaree’s Functional Capacity Assessment. The ALJ finally noted that
Griffith did not exhibit any unusual or inappropriate social behavior during either her disability
interview or her disability hearing, although both had the “potential to increase social stress.”
Based on this evidence—the opinions of two doctors that Griffith could “relate
adequately to peers” under limited circumstances, the testimony of a third doctor regarding
Griffith’s general functional capacity, and Griffith’s conduct throughout the proceedings—the
ALJ crafted a hypothetical restriction that he believed best matched the totality of the evidence
and complainant’s medical conditions. See Webb, 368 F.3d at 633 (rejecting the claim that a
hypothetical must include a listing of all of the complainant’s medical conditions). As
substantial evidence supports the ALJ’s hypothetical, the ALJ did not err in failing to describe
the exact restrictions referenced by Dr. Baggs to the vocational expert.
Lastly, Griffith attacks the ALJ’s hypothetical on the grounds that it failed to indicate that
Griffith’s learning ability falls within bottom decile of the national population. Because all of
the jobs put forth by the vocational expert required a General Learning Ability6 above the bottom
decile, Griffith argues that the vocational expert should have been advised of her capability. See,
e.g., Frazee v. Barnhart, 259 F. Supp. 2d 1182, 1200–01 (D. Kan. 2003) (indicating that the ALJ
should have listed the plaintiff’s I.Q. of 79 as an impairment); Sizemore v. Astrue, No. 09–cv–
109–KKC, 2010 WL 3001711, at *9 (E.D. Ky. July 28, 2010) (indicating that borderline
intellectual functioning was a severe impairment that should be included in the hypothetical to
the vocational expert).
6
General Learning Ability refers to “aptitude ability” or “[t]he ability to ‘catch on’ or understand
instructions and underlying principles; the ability to reason and make judgments.” Gibson v.
Astrue, No. CV 06-5046 JC, 2008 WL 5101822, at *3 FN6 (C.D. Cal. Nov. 30, 2008). The
Dictionary of Occupational Titles, which is commonly relied upon by ALJs in evaluating
whether a claimant can perform other work, indicates the General Learning Ability that is
required for each job.
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Case No. 13-6570
Griffith v. Comm’r of Social Security
Griffith’s argument fails for a number of reasons. Leaving aside the fact that Griffith
improperly conflates I.Q. with General Learning Ability,7 she has provided no evidence apart
from her I.Q. to demonstrate that her General Learning Ability fell within the bottom decile of
the general population. In contrast, the ALJ referenced substantial evidence for his conclusion
that Griffith’s General Learning Ability did not fall within the bottom decile. Many of these
points are familiar by now. The ALJ thoroughly discussed the Murray Report, acknowledging
that Griffith’s cognitive skills were below her peers but that her verbal and nonverbal skills were
average. The ALJ additionally noted that Griffith’s adaptive behavior assessment was deemed
“average” and that the longitudinal record established “that the claimant is able to function
independently, read most things, work when she chooses, maintain and operate her own vehicle
and deal with simple instructions, [and that] her most recent mental health treatment notes reflect
no evidence of impairment in the area of daily living/personal care.” The record supports each
of these conclusions.
Moreover, as discussed previously in section one above, the ALJ had substantial evidence
to conclude that Griffith had not demonstrated a medically determinable intellectual impairment.
Because Griffith’s impairment was not determined to be “severe,” the ALJ was not required to
reference it in his hypothetical question to the vocational expert. See Russell v. Barnhart, 58 F.
App’x 25, 30 (4th Cir. 2003) (“Finally, the hypothetical question may omit non-severe
impairments, but must include those that the ALJ finds to be severe.”); Benenate v. Schweiker,
7
See, e.g., Hintersteiner v. Astrue, No. 5:11-00240, 2013 WL 1337375, at *4 (S.D.W. Va. Mar.
29, 2013) (finding “that Claimant has offered no authority that the general learning ability in the
DOT correlates to an I.Q. score.”); Rubalcava v. Astrue, No. CV 11-9393-PJW, 2012 WL
3656430, at *1 (C.D. Cal. Aug. 24, 2012) (“The general learning ability aptitude scale is not
comparable to I.Q.”); McNemar v. Astrue, No. 1:10-CV-2079, 2011 WL 5554051, at *5 (N.D.
Ohio Aug. 29, 2011) (similar); Wilson v. Astrue, 834 F. Supp. 2d. 1295, 1303 (N.D. Okla. Nov.
30, 2011) (similar); Gibson v. Astrue, No. CV 06-5046 JC, 2008 WL 5101822, at *5–6 (C.D.
Cal. Nov. 30, 2008) (similar).
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Case No. 13-6570
Griffith v. Comm’r of Social Security
719 F.2d 291, 292 (8th Cir. 1983) (similar). Griffith acknowledges that her reasoning relies on a
determination that the ALJ erred in not concluding that she suffered from a medically
determinable intellectual impairment. Thus, as her first claim falls, so does her second.
IV. CONCLUSION
For the aforementioned reasons, we AFFIRM the district court’s grant of summary
judgment and the decision of the administrative law judge.
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