Dennis Johnson v. Commissioner of Social Security ( 2013 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 13a0888n.06
No. 12-2249
FILED
UNITED STATES COURT OF APPEALS Oct 15, 2013
FOR THE SIXTH CIRCUIT DEBORAH S. HUNT, Clerk
DENNIS JOHNSON, )
)
Plaintiff-Appellant, )
)
v. ) ON APPEAL FROM THE UNITED
) STATES DISTRICT COURT FOR THE
COMMISSIONER OF SOCIAL SECURITY, ) EASTERN DISTRICT OF MICHIGAN
)
Defendant-Appellee. ) OPINION
Before: DAUGHTREY, MOORE and STRANCH, Circuit Judges.
JANE B. STRANCH, Circuit Judge. Claimant Dennis Johnson applied for disability
insurance benefits. After his application was denied by the state disability determination service,
an administrative law judge (ALJ) determined that Johnson was not disabled. The appeals council
denied Johnson’s request for review. Johnson subsequently sought judicial review of the ALJ’s
decision in district court. The district court affirmed the denial of benefits, and Johnson now
appeals. For the following reasons, we AFFIRM.
Johnson v. Comm’r of Soc. Sec.
No. 12-2249
I. Background1
Beginning in the late 1980s, claimant Dennis Johnson sought treatment at the Department
of Veterans Affairs (VA) for low back pain and right leg radiculopathy. In January 2002, Johnson
injured his back while working as a baggage handler and has not worked since his injury.2 A few
days after his accident, Johnson saw Dr. David Pommerening. His patient statement indicated that
he hurt his leg while carrying luggage, but Dr. Pommerening noted that the pain was located in the
right sacral region. Johnson had numbness in several of his right toes, and the pain radiated down
his right leg. He also had a positive straight-leg raise on the right side. Johnson exhibited
tenderness at the right sacrum and decreased range of motion and an X-ray showed narrowing of the
L4-L5 and L5-S1 disc space. Dr. Pommerening recommended physical therapy and medication.
On January 11, 2002, Johnson saw Dr. Pommerening again, and reported that while
medications improved his pain, his one session of physical therapy did not make him feel better.
At that time, Johnson’s straight-leg raises were negative. He was instructed to avoid excessive
bending, squatting, kneeling, standing, or walking; and to avoid lifting over 10 pounds. He was also
prescribed pain medication. On January 16, Johnson reported improvement, and his restrictions
were changed somewhat. Johnson appears to have engaged in physical therapy on January 15 and
16.
1
The history discussed occurred between January 3, 2002 and the last date insured, March
31, 2007. And while there is a substantial amount of medical evidence concerning Johnson’s mental
impairments—posttraumatic stress disorder and depression—the main focus of his appeal is on his
physical condition. Accordingly, the recitation of facts focuses primarily on physical findings.
2
During the relevant time period discussed below, Johnson was seen regularly by his primary
care physician, Dr. Rodney Poling.
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On January 21, Johnson saw Dr. Pommerening and reported that his symptoms had
worsened. Johnson again had a positive leg raise on the right, tenderness on the lower spine, and
decreased range of motion. Dr. Pommerening prescribed additional medication and referred Johnson
to a physiatrist. Johnson went to Dr. Aaron Sable, who found no radiculopathy but noted discomfort
and reduced range of motion. Johnson experienced slight discomfort in the straight-leg raise to the
right. Dr. Sable recommended physical therapy, prescribed several medications, and suggested an
MRI. He also recommended restrictions on certain physical movements—such as sitting, standing,
and walking—and that Johnson avoid lifting over 10 pounds. An MRI revealed a disc herniation
at L5-S1 and a mild disc displacement at L4-L5 with “mild leftward proximal L5 root sleeve
effacement.”
On April 20, 2002, Johnson was examined by Dr. Phillip F. Krogol, a neurosurgeon who
found Johnson was experiencing “moderate discomfort” and his gait was affected on the right side.
He also noted limits in Johnson’s range of motion, tenderness, and pain with straight-leg raises on
the right and diagnosed “[l]umbar myofascitis with radiculitis secondary to herniated disc L5-S1 on
the right.” Dr. Krogol recommended that Johnson continue physical therapy as directed by his
treating physician, Dr. Poling, but noted that surgery would be an option if he did not improve.
Nerve conduction tests performed in May 2002 were within normal limits. A second MRI
taken in October 2002 revealed a “narrowing and desiccation of L4-5 and L5-S1 discs” and a
“[c]entral disc herniation at L4-5 . . . extend[ing] slightly more prominently to the right of midline
[that] does encroach upon the proximal portion of the right neural foramen at this level.” A third
MRI from February 2004 showed mild disc space narrowing, mild circumferential disc bulging at
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L4-L5, as well as mild disc space narrowing and “a large central right paracentral” herniation with
“mild S1 nerve root edema.”
In May 2004, Johnson was examined by Dr. Norman J. Rotter, a neurologist. Johnson’s gait
was normal, he had minimal low back tenderness, his range of motion was mildly limited, and his
strength and coordination were good. Straight-leg raises on the right produced “radicular type
findings,” and Dr. Rotter discussed the option of surgery. Dr. Fred Junn, another neurologist, also
consulted on this referral. He was uncertain that surgery was the best option, but noted that it might
be in order should Johnson’s condition progress. Rather than undergo surgery, Johnson decided to
consider his options further.
In April 2006, a new MRI of Johnson’s spine was compared with an older one. The findings
appeared relatively similar. Dr. Poling referred Johnson to pain management that month. At that
time, he did not use an assistive device for ambulation and reported taking narcotic pain relievers
and medication for panic disorders and depression. Johnson’s straight-leg raise on the right was
“mildly positive” and his muscle strength was 5/5. His range of motion in the lumbar spine was
slightly diminished, but there was no tenderness. Based on Johnson’s symptoms, the recommended
treatment plan was a series of three epidural steroid injections. Although the first two provided
some relief, Johnson decided to wait on the third because he had recently had a reaction to a drug
he was taking for depression.
In October 2006, Dr. Poling referred Johnson to Dr. Teck Mun Soo, a neurological surgeon.
At that time, Johnson rated his pain as an 8/10 for his back and a 7/10 for his leg and reported taking
narcotic medication for pain and anxiety medication. Johnson’s lumbar spine was not tender; there
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was a normal range of motion; and his straight-leg raises were negative on both sides. Dr. Soo
recommended an L4-S1 lumbar fusion that Johnson wanted to think about. On March 29, 2007, Dr.
Poling examined Johnson and identified a decreased range of motion. He provided an April 5 letter
stating the following work restrictions: (1) no lifting over 10 pounds; (2) no excessive standing,
sitting, or bending; and (3) Johnson should be allowed to lie down as needed to relieve pain.
On September 4, 2007, Johnson was evaluated by Dr. Rojas, an internist, for the Michigan
Disability Determination for Social Security Administration. Johnson reported that he had been
using a cane for around eighteen months. Dr. Rojas noted Johnson’s mobility was slightly impaired
and that his lumbar area was moderately tender and diagnosed chronic low back pain due to
degenerative disc disease and a herniated disc at L5-S1 with radiculopathy on the right side.
Johnson was also evaluated by a psychiatrist, Dr. Ibrahim Youssef, on that same day. Dr. Youssef
diagnosed Johnson as suffering from PTSD, depression, and assessed a Global Assessment of
Functioning (GAF) of 45 to 50. He evaluated Johnson’s prognosis as “[g]uarded due to the
chronicity” of his condition.
II. Administrative Proceedings
In May 2007, Johnson filed an application for disability insurance benefits and in a June
2007 disability report, noted his use of pain and sleep medication. He stated that he used a cane,
could not be on his feet for more than 30 minutes, and could walk one block before he needed to
stop and rest. Johnson prepared his son’s meals, but did not prepare his own. He reported doing
dusting and light cleaning, but had to take frequent breaks. He also went grocery shopping once a
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week and was able to pay bills. Although Johnson did not spend time with others, he attended PTSD
group therapy once a week.
Johnson’s wife, Lorie Johnson, also filled out a third-party function report. She stated that
Johnson cooked dinner when he was able and could sometimes help with errands, but that he did no
housework or yard work. She claimed that Johnson took his mother to the mall occasionally. Mrs.
Johnson listed her husband’s interests as watching television, watching his son’s sports
competitions, and walking to a yard sale if he was able. He also paid the bills. Mrs. Johnson
observed that Johnson spent some time with others. She estimated that he could walk about a mile,
although he would be in pain for the remainder of the day. She agreed that Johnson had a cane, but
was unsure whether a doctor prescribed it.
In November 2008, Dr. Poling filled out a residual functional capacity (RFC) questionnaire.
He estimated that Johnson could walk less than one city block without rest or experiencing severe
pain; sit and stand for 30 minutes, but not more than one hour; and sit and stand/walk less than two
hours during an eight-hour work day. Dr. Poling also opined that Johnson would require a job that
permitted shifting positions at will from sitting, standing or walking and allowed unscheduled
breaks. He also noted that Johnson would need a cane for standing/walking; could occasionally lift
less than 10 pounds; could rarely lift 10 pounds; and should never lift 20 lbs.
At a hearing before the ALJ in December 2008, Johnson testified that his previous work
experience included driving 10 hours a day as a hotel shuttle driver from March 1993 until the date
of his back injury. He also delivered pizza for a time. Johnson claimed that he could not return to
such work because of the pain in his lower back. As to daily activities, he testified that he took his
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son to the bus in the morning and picked him up in the afternoon. He stated that he prepared meals
about once a day and went to the grocery store about once a week, but that he did not perform any
household chores. While at the grocery store, he utilized an electric wheelchair. He stated that he
visited with people, or they visited him, about three times a week and claimed that he did not pay
bills.
Johnson stated that, on average, his pain was “moderate to severe” and was continuous. He
stated that he regularly used a cane and that he spent at least seven hours a day on the floor. Johnson
claimed that he could stand for 15 to 20 minutes and could sit for 20 to 25. He stated that he could
potentially walk two blocks. He had not been to the emergency room or the hospital in the past 12
months.
A vocational expert (VE) also appeared at the hearing. The ALJ posed a number of
hypotheticals to the VE. The first involved the type of work available to an individual with a light
RFC and Johnson’s history who could lift, push, or pull 20 pounds occasionally and 10 frequently;
walk and stand frequently; and sit, stoop, or bend occasionally. Although such a person could not
return to Johnson’s previous work, the VE opined that there were 8,000 light, unskilled
housekeeping positions; 40,500 light, unskilled cashier positions; and 2,150 light, unskilled parking
lot attendant positions.
For the second hypothetical, the ALJ asked the VE to assume that the person was “non-
exertional,” and unlimited in attention, concentration, understanding, and memory; had “intact and
unlimited” vision, hearing, reach, and fine manipulative abilities; a slight limitation in gross
manipulative ability with the right dominant features; was slightly limited in routine tasks; had no
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environmental restrictions; would have unlimited contact with the public and needed occasional
supervision; and who suffered from slight to moderate pain. The VE hypothesized that this would
result in a 10 percent erosion of the available jobs.
The VE was then asked to assume that this same person had slight limitations in attention,
concentration, understanding, and memory; and was moderately limited in gross manipulative ability
“with the right dominant feature.” He opined that there would be a 90 percent reduction in the
housekeeping and cashier positions, as well as an 80 percent reduction in the parking lot attendant
positions. Assuming that the person’s pain level was “moderate to severe, but remain[ed] only
slightly limited in the ability to do SRT [simple routine tasks],” the VE stated that there would be
a 95 percent reduction in the housekeeping and cashier positions and an 85 percent reduction in the
parking lot attendant positions. Assuming that the person was “moderately limited in the ability to
do SRT,” the VE stated that there was a 100 percent reduction.
For the third hypothetical, the VE was asked to assume that a person with Johnson’s history
had a sedentary RFC, and that he could lift, push, pull 10 pounds occasionally and five frequently;
that he could walk, stand, stoop, bend occasionally; and sit frequently. The VE stated that there
were 2,500 sedentary, unskilled order clerk positions; 1,500 sedentary, unskilled grinding machine
operator positions; and 2,000 sedentary, unskilled ticket counter jobs available.
For the fourth hypothetical, the VE was asked to assume the following non-exertionals: no
limitation in attention, concentration, understanding, and memory; intact vision, hearing, reach, and
fine manipulative abilities; slight limitation in gross manipulative ability with the right dominant
feature; slight limitation in ability to do routine tasks; no environmental restrictions; unlimited
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contact with the public; occasional supervision; and slight to moderate pain. The VE concluded that
this would result in a 20 percent reduction in the available jobs. Adding a slight limitation in
attention, concentration, understanding, and memory; and moderate limitations in gross manipulative
ability with the right dominant feature, the VE found a 100 percent reduction.
Johnson’s counsel asked what effect the use of a cane would have on the light work
positions, and the VE opined that it would eliminate housekeeping positions; cashier positions would
be reduced by 80 percent; and the parking lot attendant positions would be reduced by 95 percent.
Johnson’s counsel questioned the VE about the source of his information; he responded that it came
from the Dictionary of Occupational Titles and the Occupational Employment Quarterly of
Statistics.
The ALJ determined that Johnson had not engaged in substantial gainful activity during the
relevant time period and that he suffered from the following severe impairments: degenerative
changes of the lumbosacral spine; a history of fracture of the right arm; “prolonged and chronic”
posttraumatic stress disorder; depression; and cannabis dependence. Because the ALJ concluded
that the impairments did not meet or equal one of the relevant listings, he analyzed Johnson’s
residual functional capacity (RFC). The ALJ determined that Johnson had the RFC to lift and carry
20 pounds occasionally and 10 pounds frequently; that he could stand and/or walk frequently; that
he could occasionally sit, stoop, and bend; that he had no limitations in fine manipulation, but
moderate limitations in gross manipulation with his right dominant upper extremity; that he had
slight limitations in attention, concentration, understanding, and memory; that he had slight
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limitations in his ability to perform simple routine tasks; that he required only occasional
supervision; and that he had slight to moderate pain.
Although finding that Johnson’s medically determinable impairment “could have been
reasonably expected” to produce his subjective complaints, the ALJ concluded that Johnson’s
statements were not entirely credible. Specifically, the ALJ noted that Johnson claimed that his
inability to work stemmed from his physical problems, but in September 2007, he told a consultative
psychiatrist that he could not work due to anger and inability to trust people. And although the ALJ
observed that various tests revealed disc herniation and dessication; possible nerve root involvement;
and radiculopathy, he found the clinical evidence to be “less impressive,” noting that Johnson had
generally exhibited normal gait and muscle function. Rather than crediting the RFC submitted by
Dr. Poling, the ALJ attributed significant weight to the report of Dr. Soo, a specialist, who noted
negative straight-leg raises and found Johnson’s range of motion, strength, and sensation to be
normal. The ALJ found the fact that Johnson exhibited spinal problems prior to the January 2002
incident to speak to his credibility because he claimed that a traumatic injury occurred on this date,
but, in reality, he had a preexisting condition. The ALJ likewise concluded that Johnson’s treatment
history was inconsistent with significant impairment; although he was offered surgery, he declined
to have it; and after two successful steroid injections, he failed to obtain a third.
The ALJ pointed out that in June 2007 (shortly after the last date insured), Johnson described
greater functioning than he did at the hearing and attended group therapy despite claiming that he
wanted to avoid everyone but his wife and son. The ALJ also noted that he had been inconsistent
in reporting to various physicians the medications he was taking and noted that he at times took
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medication while using marijuana, against the instructions of his doctors. Although Mrs. Johnson’s
description of her husband’s daily activities was generally the same as his, it described greater
functioning at various points.
The ALJ noted that Johnson’s inconsistencies regarding cane usage were “troubling,” and
that Dr. Soo’s clinical findings did not suggest that he needed one. And although Johnson expressed
distress at a nurse’s questioning him about whether he wanted to get well or was “only in it for the
money,” the ALJ found “this consistent with his refusal of a third injection and failure to pursue
recommended surgery.” The ALJ also observed that Johnson had not sought hospital treatment or
visited the emergency room in the past 12 months.
Turning to the medical opinions, the ALJ determined that Dr. Poling’s notes from March and
April 2007 merely recorded Johnson’s subjective complaints, and that the clinical findings recorded
by Dr. Soo did not support the given restrictions. The ALJ also declined to accept Dr. Poling’s
assessment on Johnson’s RFC because it reflected his condition in November 2008 and conflicted
with Dr. Soo’s report, which he deemed more relevant. The ALJ ultimately concluded that Johnson
was not disabled because jobs existed in significant numbers in the national economy that he could
perform.
The Appeals Council denied Johnson’s request for review. In doing so, it considered both
the allegations of error and the additional evidence submitted by Johnson.3 Johnson then filed suit
3
This information included medical records demonstrating that Johnson had back surgery on
January 8, 2010; records showing reinstatement of his workers’ compensation benefits in September
2010; and a medical marijuana card issued on July 7, 2010.
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in federal court seeking judicial review of the decision.4 The Commissioner’s motion for summary
judgment was granted after the district court concluded that substantial evidence supported the
ALJ’s decision.
Johnson appeals, alleging that: (1) proper deference was not given to Dr. Poling’s opinion;
(2) the ALJ did not consider the record as a whole in making his credibility determination; (3) the
ALJ failed to assess the impact of his “severe” impairments on his ability to engage in basic work
activities and do a “function by function” analysis; and (4) his case should be remanded pursuant
to sentence six of 42 U.S.C. § 405(g) to consider evidence submitted after the ALJ’s decision.
III. DISCUSSION
A. Standard of Review
This court reviews district court decisions in social security cases de novo. Ealy v. Comm'r
of Soc. Sec., 594 F.3d 504, 512 (6th Cir. 2010). However, that review “is limited to determining
whether the Commissioner’s decision ‘is supported by substantial evidence and was made pursuant
to proper legal standards.’” Id. (quoting Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 241 (6th Cir.
2007)). This standard requires us to affirm the Commissioner’s findings if they are supported by
“such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”
Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consolidated Edison Co. v. NLRB, 305
U.S. 197, 229 (1938)) (internal quotation marks omitted). When the Commissioner’s decision is
supported by substantial evidence, we defer to it, even if “substantial evidence in the record . . .
4
The parties consented to having a magistrate judge resolve the matter.
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would have supported an opposite conclusion.” Colvin v. Barnhart, 475 F.3d 727, 730 (6th Cir.
2007) (quoting Longworth v. Comm’r of Soc. Sec. Admin., 402 F.3d 591, 595 (6th Cir. 2005))
(internal quotation marks omitted).
B. Treating physician’s opinion
Johnson argues that proper deference was not given to the opinion of his treating physician,
Dr. Poling, regarding the severity of his impairments. Under the pertinent regulations, more weight
is generally given to the opinion of a treating physician. See 20 C.F.R. § 404.1527(c)(2). As long
as the treating physician’s opinion regarding the nature and severity of the claimant’s impairment
“is well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not
inconsistent with the other substantial evidence,” it will be given controlling weight. Id. If the ALJ
chooses not to give the treating physician’s opinion controlling weight, he or she must determine
what weight to give it by looking at various factors, including the length of the treatment
relationship and the frequency of examination; the nature and extent of the treatment relationship;
the supportability of the opinion; its consistency with the record as a whole; the specialization of the
physician or doctor rendering the opinion; and other factors that support or contradict the opinion.
Id. § 404.1527(c)(2)–(6).
However, “a treating physician’s opinion is only entitled to such . . . deference when it is a
medical opinion.” Turner v. Comm’r of Soc. Sec., 381 F. App’x 488, 492-93 (6th Cir. 2010). If the
treating physician instead submits an opinion on an issue reserved to the Commissioner—such as
whether the claimant is disabled, unable to work, the claimant’s RFC, or the application of
vocational factors—“his decision need only ‘explain the consideration given to the treating source’s
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opinion.’” Id. at 493 (quoting Soc. Sec. Rul. 96-5p, 61 Fed. Reg. 34474). The opinion, however,
“is not entitled to any particular weight.” Id. In essence, the ALJ afforded no weight to Dr. Poling’s
opinions from March and April 2007 and November 2008. He concluded that Dr. Soo’s opinion was
more probative because (a) Dr. Soo was a specialist and (b) Dr. Poling’s assessment of Johnson’s
impairment was inconsistent with Dr. Soo’s objective findings. The ALJ also observed that two of
Dr. Poling’s opinions were rendered after the last date insured, whereas Dr. Soo’s was rendered
before that date.
As did the district court, we find the ALJ’s decision supported by substantial evidence.
Johnson appears to rely largely on Dr. Poling’s November 2008 RFC questionnaire on this point.
The regulations, however, do not require that such an opinion be given any special significance. See
20 C.F.R. § 404.1527(d)(3). Moreover, the ALJ explained that the questionnaire—created well after
the date last insured—likely described a deterioration in Johnson’s condition, rather than Johnson’s
condition during the time period in question. In contrast, Dr. Soo’s evaluation contained clinical
findings indicating that Johnson’s performance on certain tests was within the normal range. And
although Johnson had an extensive history with Dr. Poling, his treatment consisted mainly of
prescribing Johnson medication and referring him to specialists. Dr. Soo specifically examined
Johnson in order to evaluate his back condition and was an expert in this area. We find the ALJ’s
explanations as to why he placed greater weight on Johnson’s non-treating physician to be adequate
and supported by the record as a whole.
C. Credibility determination
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The ALJ determined that Johnson’s complaints of pain were not entirely credible because
they did not align with the clinical findings and medical evidence. Johnson argues that the ALJ
erroneously considered only select portions of the record.
Credibility determinations regarding the applicant’s subjective complaints of pain rest with
the ALJ and are afforded great weight and deference as long as they are supported by substantial
evidence. See Torres v. Comm’r of Soc. Sec., 490 F. App’x 748, 755 (6th Cir. 2012). In assessing
an individual’s credibility, “the ALJ must [first] determine whether a claimant has a medically
determinable physical or mental impairment that can reasonably be expected to produce the
symptoms alleged.” Calvin v. Comm’r of Soc. Sec., 437 F. App’x 370, 371 (6th Cir. 2011). The
ALJ made this finding here. Next, the ALJ must evaluate the intensity, persistence, and functional
limitations of the symptoms by considering objective medical evidence, as well as: (1) daily
activities; (2) the location, duration, frequency, and intensity of pain or other symptoms; (3)
precipitating and aggravating factors; (4) the type, dosage, effectiveness, and side effects of any
medication taken to alleviate pain or other symptoms; (5) treatment, other than medication, received
for relief of pain or other symptoms; (6) any measures used to relieve pain or other symptoms; and
(7) other factors concerning functional limitations and restrictions. 20 C.F.R. § 404.1529(c)(1)–(3).
We conclude that the ALJ’s credibility determination was supported by substantial evidence.
The ALJ observed that Johnson’s answers to his disability questionnaire in June 2007 “described
greater functioning” than did his hearing testimony because he stated that he did some housework;
could pay bills and manage bank accounts; and attended group therapy for PTSD, despite claiming
that he avoided everyone except his wife and son. The ALJ also determined that Johnson’s wife’s
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comments did not demonstrate disability because she described slightly greater functioning than did
Johnson’s testimony.
The ALJ also appropriately based its credibility determination on the clinical findings, which
were inconsistent with total disability and indicated that Johnson’s condition during the relevant
time period was not rapidly deteriorating. It was also appropriate for the ALJ to rely on the
limitations reported to the agency in June 2007 over the limitations Johnson reported at the hearing,
as the ALJ explained that the former were closer to the last date insured. And overall, Johnson’s
treatment was modest, which, as the district court pointed out, we have generally found to be
“inconsistent with a finding of total disability.” Helm v. Comm’r of Soc. Sec., 405 F. App’x 997,
1001 (6th Cir. 2011).
We defer to the ALJ’s properly supported credibility determination but pause to address
certain arguments of ALJ error with which we agree. That Johnson chose to attend group therapy
for PTSD should not have diminished his credibility regarding his claim that he avoided everyone
except his wife and son. A claimant should not be penalized for following through with treatment
related to a claimed disability. The ALJ also viewed Johnson’s statement to Dr. Youssef—that he
could not work due to anger and inability to trust people—to indicate that Johnson’s physical
complaints were only secondary. Although Dr. Youssef listed the mental problems first, he was
evaluating Johnson for psychiatric purposes; Johnson never specifically claimed that his physical
problems were “secondary.” In this context, the statement does not discredit Johnson.
The ALJ’s consideration of Johnson’s failure to proceed with surgery and his limited
engagement in physical therapy is a bit more concerning. In general, it is appropriate for the ALJ
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to consider a claimant’s treatment (other than medication) in evaluating his or her symptoms and
pain, see 20 C.F.R. § 404.1529(c)(3)(v), and a claimant must follow prescribed treatment in order
to obtain benefits absent good reason. See 20 C.F.R. § 404.1530. The record, however, indicates
that these were only recommended treatment options. Neurosurgeon Dr. Fred Junn opined that
Johnson’s surgical outcome “would be suboptimal” and that surgical intervention might not be the
best choice. Moreover, Social Security Ruling 96-7p strongly suggests that a claimant should be
allowed to explain his or her reasons for not pursuing certain treatment options. See Carmickle v.
Comm’r, 533 F.3d 1155, 1162 (9th Cir. 2008) (“[A]lthough a conservative course of treatment can
undermine allegations of debilitating pain, such fact is not a proper basis for rejecting the claimant’s
credibility where the claimant has a good reason for not seeking more aggressive treatment.”) The
better course here would have been to allow Johnson the opportunity to explain his choices.
The presence of these errors, however, does not warrant reversal. We recently held that even
if an ALJ’s adverse credibility determination is based partially on invalid reasons, harmless error
analysis applies to the determination, and the ALJ’s decision will be upheld as long as substantial
evidence remains to support it. See Ulman v. Comm’r of Soc. Sec., 693 F.3d 709, 714 (6th Cir.
2012). We find the ALJ’s errors in this case to be harmless and conclude that substantial evidence
supports the adverse credibility determination regarding Johnson’s complaints of pain.
D. Failure to properly evaluate severity of Johnson’s impairments
Johnson argues that the ALJ did not properly evaluate his severe impairments by assessing
their impact on basic work activities and doing a “function by function” analysis. More specifically,
he contends that the ALJ: (1) failed to consider his obesity in combination with his back condition
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in determining his ability to walk and stand; (2) failed to assess the restrictions caused by his post-
traumatic stress disorder and depression; (3) failed to assess his need for a cane; and (4) failed to rely
on Dr. Youssef’s report, which demonstrated more limited functioning.
We agree with the district court’s conclusion that the ALJ properly considered Johnson’s
impairments and, contrary to his arguments, considered all of them, whether severe or not, in
combination with one another. First, the ALJ did consider Johnson’s obesity, but observed that there
is scant mention in the medical records of Johnson’s weight. There is certainly nothing to indicate
that any doctor who saw him was concerned that his weight was affecting his mobility. The ALJ
did not err on this point. Second, Johnson simply disagrees with the extent to which the ALJ
concluded his mental impairments limited his ability to work. The conclusion that Johnson’s PTSD
and depression did not render him disabled was supported by substantial evidence. Third, the ALJ
did consider whether Johnson required the use of a cane, but found inconsistencies in Johnson’s own
testimony that one was prescribed and found a lack of evidence in the medical record demonstrating
a need. Because the ALJ found that the evidence did not suggest that Johnson needed a cane, it was
not erroneous for the ALJ to exclude this factor in determining Johnson’s RFC.
Last, as to the argument that Dr. Youssef’s report—which diagnosed Johnson with PTSD
and depression and assigned him a GAF of 45 to 50—demonstrates that his functioning was more
limited, no particular amount of weight is required to be placed on a GAF score. See, e.g., Howard
v. Comm’r of Soc. Sec., 276 F.3d 235, 241 (6th Cir. 2002) (noting that a GAF “is not essential to the
RFC’s accuracy”). The ALJ explained that it was relying on Johnson’s medical records and non-
medical opinions in assessing the extent of Johnson’s mental impairments. The ALJ considered the
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fact that Johnson suffered from PTSD and depression and we find that the ALJ’s assessment of the
severity of Johnson’s impairments was supported by substantial evidence.
E. Conflicts between VE’s testimony and Dictionary of Occupational Titles (DOT)
Social Security Ruling 00-4P instructs an ALJ to “identify and obtain a reasonable
explanation for any conflicts between occupational evidence provided by VEs or VSs and
information in the . . . [DOT] . . . .” SSR 00-4P, 2000 WL 1898704, at *1 (Dec. 4, 2000). In the
Sixth Circuit, the ALJ’s duty is satisfied if he or she asks the VE whether his or her testimony is
consistent with the DOT. See Martin v. Comm’r of Soc. Sec., 170 F. App’x 369, 374 (6th Cir. 2006).
Although the ALJ himself did not inquire as to whether there were conflicts between the vocational
expert’s testimony and the DOT, Johnson’s counsel asked the VE about his source, which he stated
was the DOT. At that point, Johnson did not allege that any conflicts existed. The ALJ is not
required to affirmatively “conduct an independent investigation into the testimony of witnesses to
determine if they are correct.” Martin, 170 F. App’x at 374. Although Johnson attempts to identify
conflicts at this juncture, we agree with the Commissioner that they are irrelevant. Accordingly, any
error is harmless. Cf. Poppa v. Astrue, 569 F.3d 1167, 1174 (10th Cir. 2009) (finding “the ALJ’s
error in not inquiring about potential conflicts [to be] harmless” where no conflicts existed between
the VE’s testimony and the DOT’s job descriptions).
F. Motion for remand
Johnson contends that the district court erred by not remanding his case to the ALJ for
consideration of documents demonstrating that he underwent back surgery in January 2010; obtained
a medical marijuana prescription in July 2010; and that his workers’ compensation benefits for his
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Johnson v. Comm’r of Soc. Sec.
No. 12-2249
back injury were reinstated in September 2010. A remand pursuant to sentence six of 42 U.S.C. §
405(g) is appropriate “only if the evidence is ‘new’ and ‘material’ and ‘good cause’ is shown for the
failure to present the evidence to the ALJ.” Ferguson v. Comm’r of Soc. Sec., 628 F.3d 269, 276
(6th Cir. 2010). Evidence is “new” if it did not exist at the time of the administrative proceeding
and “material” if there is a reasonable probability that a different result would have been reached
if introduced during the original proceeding. Id. “Good cause” is demonstrated by “a reasonable
justification for the failure to acquire and present the evidence for inclusion in the hearing before
the ALJ.” Foster v. Halter, 279 F.3d 348, 357 (6th Cir. 2001).
The district court concluded that the evidence, although new, is not material because it does
not relate to Johnson’s condition on the last date insured. While evidence of subsequent surgery and
reinstatement of workers’ compensation benefits could be material in some situations, here the
events of 2010 are not adequately related to the analysis of Johnson’s condition as of March 2007
to qualify for remand. Johnson has not demonstrated a reasonable probability that the new evidence
would have caused the ALJ to reach a different result. Remand under sentence six is therefore not
warranted in this case.
III. CONCLUSION
For the foregoing reasons, we AFFIRM the judgment of the district court upholding the
Commissioner’s decision.
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