Kornecky v. Commissioner of Social Security

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 06a0103n.06
Filed: February 9, 2006
No. 04-2171
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
SHERI L. KORNECKY, )
) ON APPEAL FROM THE
Plaintiff-Appellant, ) UNITED STATES DISTRICT
) COURT FOR THE EASTERN
v. ) DISTRICT OF MICHIGAN
)
COMMISSIONER OF SOCIAL SECURITY, )
)
Defendant-Appellee. )
__________________________________________
BEFORE: SILER and GRIFFIN, Circuit Judges, and KATZ, District Judge.*
PER CURIAM.
Sheri Kornecky applied for social security disability insurance benefits (“DIB”) and
supplemental security income benefits (“SSI”) under the Social Security Act (“SSA”), citing
generalized anxiety and personality disorders, and the Commissioner of the Social Security
Administration denied her application. The Commissioner agreed that Kornecky suffered from
mental impairments, but found that they did not prevent her from performing simple, low-stress,
repetitive work that did not involve much social interaction. He relied on a vocational expert’s
testimony that such jobs existed in significant numbers in the regional economy. Kornecky contends
that the Commissioner erred in failing to consider the opinion of Dr. Lian, a psychiatrist whom she
*
The Honorable David A. Katz, United States District Judge for the Northern District of
Ohio, sitting by designation.
No. 04-2171
Kornecky v. Comm’r of Soc. Sec.
characterizes as a treating physician. The Commissioner responds that Lian was not a treating
physician because he saw Kornecky only once, that he failed to adequately support his mental
residual functional capacity (“RFC”) assessment, and that his opinion was inconsistent with more
well-supported opinions rendered by other sources. For the reasons that follow, we affirm.
I.
In order to qualify for SS benefits, Kornecky had to establish that she had a disability on or
before her date last insured (“DLI”), June 30, 2001. The Act defines disability 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.” 42 U.S.C. § 423(d)(1)(A). A subjective
allegation of disabling symptoms alone is insufficient; the claimant must substantiate the symptoms
by objective clinical or lab findings.1 Buxton v. Halter, 246 F.3d 762, 773 (6th Cir. 2001).
In Social Security Ruling (“SSR”) 96-4p,2 the SSA explained what is needed under the
regulations to show a medically determinable impairment: “[a]lthough the regulations provide that
the existence of a medically determinable physical or mental impairment must be established by
1
“Laboratory findings are anatomical, physiological, or psychological phenomena which can
be shown by the use of medically acceptable laboratory diagnostic techniques” such as X-rays,
electrocardiograms, electroencephalograms, chemical tests, and psychological tests. 20 C.F.R. §
404.1528(c).
2
SSRs are binding on the SSA, 20 C.F.R. § 402.35(b)(1), but they do not have the force of
law. As the agency’s interpretation of its own regulations, however, a SSR “is entitled to substantial
deference and will be upheld unless plainly erroneous or inconsistent with the regulation.” Wilson
v. Comm’r of Soc. Sec., 378 F.3d 541, 549 (6th Cir. 2004) (citations omitted).
-2-
No. 04-2171
Kornecky v. Comm’r of Soc. Sec.
medical evidence consisting of signs, symptoms, and laboratory findings, the regulations further
provide that under no circumstances may the existence of an impairment be established on the basis
of symptoms alone.” The ruling also explains the distinction between symptoms and signs:
“symptoms . . . are an individual’s own perception or description of the impact of his or her physical
or mental impairment(s) . . . . [W]hen any of these manifestations is an anatomical, physiological,
or psychological abnormality that can be shown by medically acceptable clinical diagnostic
techniques, it represents a medical ‘sign’ rather than a ‘symptom.’” SSR 96-4p n.2; see also 20
C.F.R. §§ 404.1528(a)-(b) & 416.928(a)-(b).
There is a five-step process to determine whether a claimant can perform substantial gainful
work. Longworth v. Comm’r of Soc. Sec., 402 F.3d 591, 595 (6th Cir. 2005). The claimant bears
the burden of proof in the first four steps; if she does so, the Commissioner bears the burden in the
fifth. Id. (citation omitted). In step one, if the claimant is performing a substantial gainful activity,
she is ineligible, regardless of her condition. 20 C.F.R. §§ 416.920(a)(4)(I) & (b).
In step two, the Commissioner considers the severity of the impairment. If the claimant does
not have a medically determinable impairment or combination thereof that is “severe” and is
expected to result in death or to last at least twelve months, she is not disabled. 20 C.F.R. §§
416.920(a)(4)(ii) & (c). An impairment is severe if it limits the ability to do basic work activities
such as walking, standing, sitting, lifting, pushing, pulling, reaching, carrying, handling, seeing,
hearing, speaking, following instructions, using judgment, and responding appropriately to co-
workers, supervisors, and usual workplace situations and changes. 20 C.F.R. § 416.921. Because
-3-
No. 04-2171
Kornecky v. Comm’r of Soc. Sec.
Kornecky claims multiple impairments, the Commissioner must consider whether their combined
effect can be expected to be severe for at least twelve months. 20 C.F.R. § 416.922(b).
Mental impairments are evaluated in four functional areas: daily living; social functioning;
concentration, persistence, or pace; and episodes of decompensation.3 In the first three areas, the
claimant’s limitation is rated none, mild, moderate, marked, or extreme; episodes of decompensation
are rated none, one or two, three, or four or more. 20 C.F.R. § 416.920a(c)(3)-(4).
In step three, the Commissioner again considers the severity of the impairments. If the
impairment is at least as severe as one in the Listing of Impairments in Appendix 1 and is expected
to result in death or to last at least twelve months, the claimant is disabled. 20 C.F.R. §§
416.920(a)(4)(iii) & (d). If the findings about the impairment are not precisely listed in the
regulations, the Commissioner considers whether “the medical findings are at least equal in severity
and duration to the listed findings,” comparing the “symptoms, signs, and laboratory findings about
3
Decompensation is “[t]he appearance or exacerbation of a mental disorder due to failure of
defense mechanisms.” STEDMAN’S MEDICAL DICTIONARY 462 (27th ed. 2000) (“STEDMAN’S”).
The regulations provide, “Episodes of decompensation are exacerbations or temporary increases in
symptoms or signs accompanied by a loss of adaptive functioning, as manifested by difficulties in
. . . maintaining concentration, persistence, or pace.” 20 C.F.R., pt. 404, subpt. P, app. 1, §
12.00(C)(4).
The Railroad Retirement Act regulations provide a useful explanation of how
decompensation manifests itself in a work setting. In the workplace, decompensation manifests as
a “repeated failure to adapt to stressful circumstances which cause the individual either to withdraw
from that situation or to experience exacerbation of signs or symptoms . . . with an accompanying
difficulty in maintaining . . . concentration, persistence, or pace (i.e., deterioration which may
include deterioration of adaptive behaviors). Stresses common to the work environment include
decisions, attendance, schedules, completing tasks, interactions with supervisors, interactions with
peers, etc.” 20 C.F.R., pt. 220, app. 1, § 12.00(C)(4).
-4-
No. 04-2171
Kornecky v. Comm’r of Soc. Sec.
[the claimant’s] impairment(s), as shown in the medical evidence . . . with the corresponding
medical criteria shown for any listed impairment.” 20 C.F.R. § 416.926(a).
If the claimant does not have a listed impairment at the requisite degree of severity, the
Commissioner proceeds to step four. There the Commissioner compares the claimant’s residual
functional capacity (“RFC”), which is the most she can still do despite her limitations, to the
physical and mental demands of her past relevant work. 20 C.F.R. §§ 416.920(f), 416.945(a)(1).
In assessing RFC, the Commissioner considers statements by medical sources, whether or not they
are based on a formal examination. The Commissioner will also consider observations about the
claimant’s impairments and limitations, including her pain, from the claimant, friends, relatives,
neighbors or others. Lastly, the RFC assessment considers the limitations caused by all
impairments, even those which were not severe. 20 C.F.R. § 416.945(a)(3).
When comparing RFC to past relevant work, the Commissioner considers only work done
within the last fifteen years that was substantial gainful activity “and that lasted long enough for
[her] to learn to do it.” 20 C.F.R. § 416.960(b)(1). The Commissioner may consult a vocational
expert (“VE”) as to the demands of the past relevant work, either as performed by the claimant or
as generally performed in the national economy, and may pose hypotheticals to the VE as to whether
someone with the claimant’s limitations can meet those demands. 20 C.F.R. § 416.960(b)(2).
If the claimant can still do her past relevant work, she is not disabled. 20 C.F.R. §
416.960(3). If the claimant cannot do her past relevant work, the Commissioner proceeds to step
five, where he must show that the claimant’s RFC, viewed in light of her age, education, training
-5-
No. 04-2171
Kornecky v. Comm’r of Soc. Sec.
and work experience, enables her to adjust to other “substantial gainful work which exists in the
national economy, regardless of whether a specific job vacancy exists for [her], or whether [s]he
would be hired if [s]he applied for work.” 42 U.S.C. § 423(d)(2)(A). The other work must exist “in
significant numbers in the national economy,” not necessarily in the claimant’s region. 20 C.F.R.
§ 416.960(c)(1) & (2). “Isolated jobs that exist only in very limited numbers in relatively few
locations outside of the [claimant’s] region . . . are not considered ‘work which exists in the national
economy.’” 20 C.F.R. § 416.966(b). If the claimant can adjust to such other work, she is not
disabled; if she cannot, she is disabled. 20 C.F.R. § 416.920(a)(4)(v) & (g)(1).
II.
The district court’s determination that substantial evidence supports the ALJ’s decision is
a legal conclusion that we review de novo. Valley v. Comm’r of Soc. Sec., 427 F.3d 388, 390 (6th
Cir. 2005) (citation omitted).
The district court was obligated to accord deference to the Commissioner’s decision, as are
we. The courts may not try the case de novo, resolve conflicts in evidence, or decide questions of
credibility. Smith v. Halter, 307 F.3d 377, 379 (6th Cir. 2001) (citation omitted). “Under 42 U.S.C.
§ 405(g), the ALJ’s findings are conclusive as long as they are supported by substantial evidence,”
Foster v. Halter, 279 F.3d 348, 353 (6th Cir. 2001) (citation omitted), which means “more than a
mere scintilla. It means such relevant evidence as a reasonable mind might accept” as adequate to
support a conclusion. Id. Notably, substantial evidence is less than a preponderance of the
evidence. Bell v. Comm’r of Soc. Sec., 105 F.3d 244, 246 (6th Cir. 1996) (citation omitted); accord
-6-
No. 04-2171
Kornecky v. Comm’r of Soc. Sec.
Draper v. Barnhart, 425 F.3d 1127, 1130 (8th Cir. 2005) (citation omitted). The Commissioner’s
determinations are not subject to reversal merely because there is substantial evidence in the record
that would support the opposite conclusion. Longworth, 402 F.3d at 595 (citation omitted).
III.
In November 2000, forty-six-year-old Sheri Kornecky applied for DIB and SSI benefits. She
alleged that she had been disabled since May 1996 due to emotional problems and stress. The state
agency that determines disability for the Commissioner denied Kornecky’s applications, and she
obtained a hearing before an ALJ in July 2002. Kornecky was represented by counsel, and she and
her brother testified. In April 2003, the ALJ found that Kornecky was not disabled. The ALJ found
that although Kornecky had severe mental impairments, she could perform work that required only
limited contact with the public and co-workers, was low in stress, and involved simple, repetitive
tasks. The ALJ found that Kornecky’s limitations prevented her from returning to her past work as
a secretary, sales clerk, or photo lab clerk but did not prevent her from adjusting to work as a
cleaner, laundry worker, or hand-packer, jobs that existed in significant numbers in the region. The
SSA Appeals Council denied review, leaving the ALJ’s decision as the Commissioner’s final
decision.
In September 2003, Kornecky appealed to the United States District Court for the Eastern
District of Michigan. The district court entered final judgment affirming the denial of benefits on
July 6, 2004, and Kornecky filed a notice of appeal in September 2004.
IV.
-7-
No. 04-2171
Kornecky v. Comm’r of Soc. Sec.
Kornecky completed high school, one year of college, and some clerical training. She has
worked as a secretary, office manager, sales clerk, cleaning person, and photo lab technician and can
type eighty-five words per minute. Her last position, as a secretary and office manager, ended in
April 1999. Kornecky testified that she left jobs in 1995 and 1996 due to inappropriate conversation
or harassment by her supervisor, co-workers, and customers, and was laid off from other jobs. She
applied for work, but eventually stopped looking because she felt demeaned when she received no
calls or offers.
According to Kornecky’s December 2000 questionnaire, she lived with her mother and
brother and did chores inside and outside the house – laundry, vacuuming, dusting, mopping,
sweeping, washing dishes, taking care of the lawn, gardening, and trimming trees and bushes. She
read, watched TV, crocheted clothing, and occasionally shopped for yarn or personal items.
Kornecky’s questionnaire stated that she would engage in other activities if she had more money.
She reported having no friends but occasionally visiting her sister, nieces, and nephews.
Kornecky tried to avoid stressful situations; her adult daughter reported that Kornecky got
along “fine” with family but was nervous in groups and avoided people whom she did not know.
Anderson opined that Kornecky might get angry if she felt “harassed” but said that this did not
happen often because Kornecky was able to set boundaries and avoid potentially stressful situations.
In 2001, Kornecky similarly reported her daily activities as washing dishes three times a day,
vacuuming, bathing and dressing, taking out the trash and checking the yard for trash, making her
bed, reading, crocheting, doing laundry, watching TV, and cleaning the house. She also reported
-8-
No. 04-2171
Kornecky v. Comm’r of Soc. Sec.
doing other activities less frequently than every day: watering plants, washing the windows,
changing sheets, dusting, cutting the grass, cleaning the refrigerator, sweeping the porch, trimming
trees and bushes, planting flowers, mopping, and cleaning up the cupboards. Kornecky occasionally
attended appointments, visited family, visited friends, and did some babysitting.
At the ALJ hearing in July 2002, Kornecky described herself as cordial and polite but said
she did not have the money to be more socially active. She reported feeling anxious, particularly
about legal difficulties related to her failure to pay child support. Kornecky’s brother said that she
refused to obtain mental health treatment because she thought there was nothing wrong with her, and
that she did things “either her way or no way at all” and did not trust people. Kornecky had told
psychiatrists that her mother and brother were hypercritical and verbally abusive.
The medical evidence relating to Kornecky’s mental impairments included case management
and outpatient therapy records from the Michigan Psychiatric Association (“MPA Group”), where
she was treated briefly in 2000 and again in 2002, and examination reports and opinions from four
psychiatrists and psychologists: psychologist Charles McGinnis, Ph.D. (February 2001), psychiatrist
Ronald Fine, M.D. (March 2001), psychologist Laura Morris, Ph.D. (January 2003), and psychiatrist
T. Lian, M.D., and his physician’s assistant Donna Merrill (March 2003).
A. MPA Group Records
Beginning in April 2000, Kornecky visited social workers, therapists, and case managers at
the MPA Group. In April 2000, Kornecky saw social worker Alison Hartman three times,
complaining of isolation because she did not have a phone or a car and describing her living
-9-
No. 04-2171
Kornecky v. Comm’r of Soc. Sec.
environment as stressful. She reported that she cooked, read, played solitaire, and helped her mother
with yardwork and housework. Hartman observed agitated motor activity and pressured speech and
described Kornecky as “suspicious” and “domineering.” Hartman’s summary stated, “She states
her belief that she is reliable, responsible, energetic and enthusiastic, but projects most limitations
on others. Because of her limited insight and cognitive distortions, short term prognosis is guarded
and long-term prognosis is uncertain because it is unclear how entrenched her problems are.”
Hartman diagnosed generalized anxiety disorder (“GAD”)4 and could not rule out post-
4
One authoritative definition sets out six criteria for diagnosing GAD:
The essential feature of Generalized Anxiety Disorder is excessive anxiety and worry
(apprehensive expectation), occurring more days than not for a period of at least 6
months, about a number of events or activities. (Criterion A). The individual finds
it difficult to control the worry. (Criterion B). The anxiety and worry are
accompanied by at least three additional symptoms from a list that includes
restlessness, being easily fatigued, difficulty concentrating, irritability, muscle
tension, and disturbed sleep . . . (Criterion C). The focus of the anxiety and worry
is not confined to features of another Axis I disorder such as . . . Panic Disorder
. . . Social Phobia . . . Obsessive-Compulsive Disorder . . . and the anxiety and worry
do not occur exclusively during Posttraumatic Stress Disorder (Criterion D).
Although individuals with [GAD] may not always identify the worries as
“excessive,” they report subjective distress due to constant worry, have difficulty
controlling the worry, or experience related impairment in social, occupational, or
other important areas of functioning (Criterion E). The disturbance is not due to the
direct physiological effects of a substance (i.e., a drug of abuse, a medication, or
toxin exposure) or a general medical condition and does not occur exclusively during
a Mood Disorder, a Psychotic Disorder, or a Pervasive Developmental Disorder
(Criterion F).
AM. PSYCHIATRIC ASS’N, DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS 472-73
(4th ed., Text Revision 2000) (“DSM-IV-TR”).
- 10 -
No. 04-2171
Kornecky v. Comm’r of Soc. Sec.
traumatic stress disorder.5 She recommended at least three months of individual therapy to help
Kornecky develop self-esteem and autonomy, which would improve her chances of finding a job
and a place to live. Kornecky attended eleven therapy sessions from April through July 2000, and
social workers opined that she had somewhat improved her self-worth. Kornecky chose to
discontinue therapy.
About two years later, in July 2002, Kornecky re-established contact with MPA at the
request of her guardian ad litem,6 who thought she needed mental-health services to deal with
paranoia and confusion. Case manager Tammy Ewald gave Kornecky a Global Assessment of
5
The essential feature of PTSD is the development of:
characteristic symptoms following exposure to an extreme traumatic stressor
involving direct personal experience of an event that involves actual or threatened
death or serious injury, or other threat to one’s physical integrity; or witnessing an
event that involves death, injury, or a threat to the physical integrity of another
person; or learning about unexpected or violent death, serious harm, or threat of
death or injury experienced by a family member or other close associate (Criterion
A1). The person’s response to the event must involve intense fear, helplessness, or
horror . . . (Criterion A2). The characteristic symptoms . . . include persistent
reexperiencing of the traumatic event (Criterion B), persistent avoidance of stimuli
associated with the trauma and numbing of general responsiveness (Criterion C), and
persistent symptoms of increased arousal (Criterion D). The full symptom picture
must be present for more than 1 month (Criterion E), and the disturbance must cause
clinically significant distress or impairment in social, occupational, or other
important areas of functioning (Criterion F).
DSM-IV-TR at 463.
6
On March 20, 2002, a Michigan state court for the 18th Judicial Circuit issued a consent
order that dismissed an order to show cause that was related to Kornecky’s failure to pay child
support. The judge wrote, “The Plaintiff agrees to appointment of a guardian ad litem to assist her
in any social security or disability claim.”
- 11 -
No. 04-2171
Kornecky v. Comm’r of Soc. Sec.
Functioning (“GAF”) 7 score of 40-45. Ewald also noted that Kornecky had a “sketchy and erratic
history of emotional problems,” tended to isolate herself, blamed others for all her problems, and
refused to make changes to improve her situation.
Kornecky initially refused mental-health services but later called to schedule an appointment,
stating that the judge at her SSI court hearing ordered her to receive mental health treatment.
Between September and November 2002, Kornecky visited (1) social worker Ewald, with whom she
discussed housing, transportation support, and a therapy referral, and (2) therapist Patricia Straney,
with whom she discussed stress related to family and her home environment. Straney stated that
Kornecky found her living environment stressful but declined help with moving to her own
residence.
In January 2003, the MPA Group closed Kornecky’s case after she cancelled an appointment
and made no further contact with the group.
B. Report of Psychologist McGinnis (Ph.D.)
7
GAF is a clinician’s subjective rating, on a scale of zero to 100, of an individual’s overall
psychological functioning. At the low end, GAF 1-10 indicates “[p]ersistent danger of severely
hurting self or others (e.g., recurrent violence) or persistent inability to maintain minimal personal
hygiene or serious suicidal act with clear expectation of death.” DSM-IV-TR at 34 (boldface and
capitalization omitted). At the high end, GAF 91-100 indicates “[s]uperior functioning in a wide
range of activities, life’s problems never seem to get out of hand, is sought out by others because
of his or her many positive qualities. No symptoms.” Id. (boldface omitted). A GAF score may
help an ALJ assess mental RFC, but it is not raw medical data. Rather, it allows a mental health
professional to turn medical signs and symptoms into a general assessment, understandable by a lay
person, of an individual’s mental functioning.
- 12 -
No. 04-2171
Kornecky v. Comm’r of Soc. Sec.
At the request of the state agency, psychologist Charles McGinnis, Ph.D., examined
Kornecky in February 2001. Kornecky complained of anxiety and nervousness in stressful
situations but said she got along “fine” with others and reported that she cleaned her house,
crocheted, gardened, and watched TV. McGinnis described Kornecky as anxious and depressed,
observing “pressured” speech and hand-wringing, but found no evidence of odd or illogical
thoughts. Kornecky had good manners, was appropriately dressed, and evinced no delusional or
psychotic thinking. McGinnis performed tests and found that Kornecky could repeat several
numbers forwards and backwards, recall three objects after a lapse of time, identify several large
cities and famous people, and perform a “serial-seven subtraction task” and other calculations
largely correctly.
McGinnis diagnosed GAD and assigned a GAF score of 50 to 55. A GAF of 51-60 indicates
“[m]oderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks), or
moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with
peers or co-workers).” DSM-IV-TR at 34 (capitalization and boldface omitted). GAF 41-50
indicates “serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting)
or any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to
keep a job).” Id. (capitalization and boldface omitted).
C. Report of Psychiatrist Fine (M.D.)
A month later, state agency psychiatrist Ronald Fine, M.D., reviewed the MPA Group’s
records and McGinnis’s exam report. Fine did not examine Kornecky. Noting the earlier findings
- 13 -
No. 04-2171
Kornecky v. Comm’r of Soc. Sec.
of pressured speech, nervousness, hand-wringing and frequent worrying, Fine agreed with the
diagnosis of GAD. Fine opined that Kornecky would not do well at complex or technical tasks and
might have difficulty intensively interacting with the public. Nonetheless, he stated that Kornecky
could learn, understand, remember and perform simple, rote tasks on a sustained basis.
D. Report of Psychologist Morris (Ph.D.)
At the ALJ’s request, Laura Morris, Ph.D., L.P., examined Kornecky in January 2003 and
reviewed her social functioning and daily activities. Morris noted that Kornecky had little interest
in social interaction and experienced conflict with her mother and brother. Morris also noted that
Kornecky’s daily activities included making beds, washing dishes, cleaning bathrooms, crocheting,
doing puzzles and crafts, listening to music, and reading. Morris described Kornecky as polite and
pleasant, but nervous and restless; her speech was “copious,” she was difficult to redirect, and she
was focused on herself. In tests, Kornecky repeated five digits forward and backward but could not
remember items after a delay. She did subtract serial sevens from 100 and completed other
calculations correctly, and she was able to identify large cities, famous people, and current events.
Morris administered a personality test, which revealed that Kornecky suffered from chronic
anxiety, tension, and worry that interfered with general functioning; lacked true assertive qualities
and abilities but tended to be argumentative, demanding, and resentful when things did not go her
way or when she felt threatened. Morris diagnosed GAD, dysthymic disorder, and personality
- 14 -
No. 04-2171
Kornecky v. Comm’r of Soc. Sec.
disorder8 not-otherwise-specified with borderline and paranoid personality traits. Morris gave
Kornecky a GAF score of 52, in the same 50-55 range as McGinnis’s exam two years earlier.
Like Fine, Morris opined that Kornecky could understand, remember, and carry out
instructions and make simple work-related decisions. Morris stated that Kornecky’s ability to
interact appropriately with supervisors and co-workers and respond to routine changes in a work
setting was “slightly restricted” and her ability to interact appropriately with the public and respond
appropriately to work pressures was “moderately limited.”
E. Report of Psychiatrist Lian (M.D.) and Physician’s Assistant Merrill
Two months later, in March 2003, psychiatrist T. Lian, M.D., and physician’s assistant
Donna Merrill examined Kornecky at the request of her attorney. Kornecky again reported stress
related to her living situation. Lian apparently did not ask Kornecky about her daily activities. Lian
and Merrill observed that Kornecky was sad and angry, exhibited “slightly pressured” speech and
repetitive thoughts, and was defensive and self-centered. Kornecky was appropriately dressed, alert,
oriented, and denied hallucinations or delusions. Lian diagnosed major depressive disorder, GAD,
and personality disorder. They also could not rule out paranoid personality disorder or organic brain
8
“The essential feature of Dysthymic Disorder is a chronically depressed mood that occurs
for most of the day more days than not for at least 2 years (Criterion A). . . . . During periods of
depressed mood, at least two of the following additional symptoms are present: poor appetite or
overeating, insomnia or hypersomnia, low energy or fatigue, low self-esteem, poor concentration
or difficulty making decisions, and feelings of hopelessness (Criterion B).” DSM-IV-TR at 376-77.
Personality disorder is “an enduring pattern of inner experience and behavior that deviates markedly
from the expectations of the individual’s culture, is pervasive and inflexible, has an onset in
adolescence or early adulthood, is stable over time, and leads to distress or impairment.” Id. at 685.
- 15 -
No. 04-2171
Kornecky v. Comm’r of Soc. Sec.
syndrome9 related to an unspecified head injury. Lian gave Kornecky a GAF 46 and recommended
that she resume outpatient therapy and consider taking psychotropic medication.
After the exam, Lian and Merrill completed a mental RFC assessment, concluding that she
was “markedly limited” in seven of twenty areas of mental functioning, namely the ability to:
• maintain attention and concentration for extended periods;
• complete a normal workday and work week without interruptions from
psychologically-based symptoms;
• interact appropriately with the public;
• accept instructions and respond appropriately to criticism from supervisors;
• get along with co-workers and peers;
• maintain socially appropriate behavior;
• set realistic goals.
Merrill commented that Kornecky had significant anxiety, depression and paranoid features, lacked
insight into her stressors, had a labile (i.e. widely fluctuating) mood, and “clearly has issues from
her past that continue to impede her progress.”
F. Testimony of Vocational Expert
The ALJ asked vocational expert Tim Shaner to posit someone of Kornecky’s age, education,
and work experience who could perform simple, low-stress repetitive work that involved limited
contact with the public and with co-workers. Shaner testified that such a person could work as a
cleaner, laundry worker, hand-packer, machine operator, and assembler, and the ALJ found that
there were over 90,000 such positions in the regional economy.
9
Organic brain syndrome is characterized by “a constellation of behavioral or psychological
signs and symptoms including problems with attention, concentration, memory, confusion, anxiety,
and depression caused by transient or permanent dysfunction of the brain.” STEDMAN’S at 1762.
- 16 -
No. 04-2171
Kornecky v. Comm’r of Soc. Sec.
V.
Kornecky contends that the ALJ committed reversible error when he failed to evaluate or
discuss the psychiatric evaluation and mental RFC assessment done by Lian and Merrill. Kornecky
relies on regulations in Title 20 C.F.R. that set forth what evidence the Commissioner will consider
and how he will determine the weight to accord that evidence, including:
§ 404.1520(a)(1), which states that the purpose of section 1520 is to set forth the
five-step sequential process for determining disability;
§ 404.1527(a)(2), which defines medical opinions;
§ 404.1527(b), which states, “[i]n deciding whether you are disabled, we will always
consider the medical opinions in your case record together with the rest of the
relevant evidence we receive.”
§ 404.1527(c), which states, “After we review all of the evidence relevant to your
claim, including medical opinions, we make findings . . . .”
§ 404.1527(d), which states in part, “[r]egardless of its source, we will evaluate every
medical opinion we receive.”
§ 404.1528(b), which defines “signs” as “anatomical, physiological or psychological
abnormalities which can be observed, apart from your statements (symptoms)” and
defines a psychiatric sign as a “medically demonstrable phenomena that indicate
specific . . . abnormalities of behavior, mood, thought, memory, orientation,
development, or perception.”
§ 404.1545(c), which states, “[w]hen we assess your mental abilities, we first assess
the nature and extent of your mental limitations and restrictions and then determine
your [RFC] for work activity on a regular and continuous basis.”
§ 404.1545(e), which states, “[w]e will consider the limiting effects of all your
impairment(s), even those that are not severe, in determining your [RFC].”
(Emphasis added.)
- 17 -
No. 04-2171
Kornecky v. Comm’r of Soc. Sec.
Kornecky characterizes Lian as a treating physician, but this characterization is not
persuasive. A treating physician is “your own physician, psychologist, or other acceptable medical
source who provides you, or has provided you with medical treatment or evaluation and who has,
or has had, an ongoing treatment relationship with you.” 20 C.F.R. § 404.1502 (emphasis added).
Kornecky asserts that Lian’s single exam should qualify him as a treating physician because “this
examination was only three weeks prior to the time the ALJ rendered his decision and therefore is
too early for the reviewing court to characterize whether or not it is an opinion of a treating
physician.” But the relevant inquiry is not whether Lian might have become a treating physician
in the future if Kornecky had visited him again. The question is whether Lian had the ongoing
relationship with Kornecky to qualify as a treating physician at the time he rendered his opinion.
Moreover, Kornecky points to nothing that prevented her from visiting a single psychiatrist
or psychologist multiple times early enough for that source to qualify as a treating source by the time
of her application, or by the time of the hearing. Likewise, Kornecky points to nothing that
prevented her from visiting Lian regularly after their one visit, which might have rendered Lian a
treating source before the ALJ’s decision. Then Kornecky could have asked the ALJ to supplement
the record with an opinion from Lian that was based on those subsequent visits.
Accordingly, we conclude that given the nature and prolonged course of Kornecky’s mental
difficulties, a single examination did not suffice to render Lian a treating physician.10 “The treating
10
Kornecky seems to claim she visited Lian after the March 2003 visit that is documented
in the record: “Additionally militating towards the [application?] of the treating source rule is [the]
fact [that] Ms. Kornecky did return for regular treatment.” The record, however, contains no
- 18 -
No. 04-2171
Kornecky v. Comm’r of Soc. Sec.
physician doctrine is based on the assumption that a medical professional who has dealt with a
claimant and his maladies over a long period of time will have a deeper insight into the medical
condition of the claimant than will a person who has examined a claimant but once . . . .” Barker
v. Shalala, 40 F.3d 789, 794 (6th Cir. 1994) (“Dr. Ruff examined Mr. Barker on only one occasion,
and the rationale of the treating physician doctrine simply does not apply here.”).
Kornecky cites no authority where a federal court has found a source to be a treating source
after only one visit. However, a plethora of decisions unanimously hold that a single visit does not
constitute an ongoing treatment relationship. See, e.g., White v. Barnhart, 415 F.3d 654, 658 (7th
Cir. 2005) (occupational medicine specialist who evaluated claimant only once was not a treating
physician). Indeed, depending on the circumstances and the nature of the alleged condition, two or
three visits often will not suffice for an ongoing treatment relationship. See, e.g., Cunningham v.
Shalala, 880 F. Supp. 537, 551 (N.D. Ill. 1995) (where physician saw claimant five times in two
years, it was “hardly a foregone conclusion” that his opinion should be afforded great weight).
Kornecky relies on Wilson v. Comm’r of Soc. Sec., 378 F.3d 541 (6th Cir. 2004), for the
proposition that the ALJ committed reversible error by failing to articulate his reasons for rejecting
Lian’s opinion. This reliance is misplaced. In Wilson, the treating physician stated that there were
great restrictions on the claimant’s ability to work since 1993, i.e. including the insured period. Id.
at 545. The ALJ summarily dismissed that opinion and found lesser restrictions on the claimant’s
evidence of any such subsequent visits, and Kornecky does not specify when they took place or what
examination, diagnosis, prescription, or treatment resulted. In any event, visits to Lian after his RFC
assessment could not retroactively render him a treating physician at the time of the assessment.
- 19 -
No. 04-2171
Kornecky v. Comm’r of Soc. Sec.
ability to work. The ALJ stated only that he had “considered” the treating physician’s opinion and
that while “this opinion may be an accurate assessment of [Wilson’s] current limitations, the
undersigned must assess the claimant’s limitations on March 31, 1995, the date he was last insured
for benefits.” Id.
The Commissioner argued, and the district court agreed, that the ALJ’s misinterpretation of
Wilson’s treating physician’s opinion was harmless because the ALJ “could have” relied on other
substantial record evidence to the contrary – namely, the claimant’s own testimony and the opinions
of two consulting physicians. Id. at 546.
This court reversed, citing 20 C.F.R. §404.1527(d)(2). That regulation requires an ALJ to
give controlling weight to a treating physician’s opinion if it is “well-supported by medically
acceptable clinical and laboratory diagnostic techniques” and “not inconsistent with the other
substantial evidence in [the] case record.” Id. The regulation also guarantees claimants that the
agency will “always give good reasons” for how much weight it accords the treating physician’s
opinion. 20 C.F.R. §404.1527(d)(2). Because a federal agency is obligated to follow its own
regulations, and because that regulation confers a procedural protection on disability claimants, the
ALJ’s failure to give good reasons for rejecting Wilson’s treating physician’s opinion could not be
harmless error. Wilson, 378 F.3d at 547-48.
Here, by contrast, the ALJ neither misstated nor ignored a treating physician’s opinion; he
merely failed to explain why he favored several examining physicians’ opinions over another’s. The
regulation at issue in Wilson simply does not apply, and there is no reason to depart from the usual
- 20 -
No. 04-2171
Kornecky v. Comm’r of Soc. Sec.
harmless-error rule. See generally 5 U.S.C. § 706 (when a court determines whether agency action
was lawful, “due account shall be taken of the rule of prejudicial error”); see, e.g., Heston v. Comm’r
of Soc. Sec., 245 F.3d 528, 535 (6th Cir. 2001) (refusal to even acknowledge the opinion of a
treating physician was harmless error, because physician provided no objective basis for his
conclusions and his opinion was contradicted by the weight of the other evidence).
No purpose would be served by remanding for the ALJ to explicitly address the
shortcomings of Lian’s opinion and the evidence and methods underlying it. Cf. Fisher v. Bowen,
869 F.2d 1055, 1057 (7th Cir. 1989) (citation omitted) (“No principle of administrative law or
common sense requires us to remand a case in quest of a perfect opinion unless there is reason to
believe that remand might lead to a different result.”). While it might be ideal for an ALJ to
articulate his reasons for crediting or discrediting each medical opinion, it is well settled that:
[a]n ALJ can consider all the evidence without directly addressing in his written
decision every piece of evidence submitted by a party. Nor must an ALJ make
explicit credibility findings as to each bit of conflicting testimony, so long as his
factual findings as a whole show that he implicitly resolved such conflicts.
Loral Defense Systems-Akron v. N.L.R.B., 200 F.3d 436, 453 (6th Cir. 1999) (citations and internal
quotation marks omitted).
Given our finding that Lian was merely an examining physician, his opinion was not entitled
to the presumptive weight accorded a treating physician’s opinion. In turn, the ALJ was not
obligated to agree with Kornecky’s belief that the Lian report was “the most critical” of all the
opinions in the record. The regulations provide:
- 21 -
No. 04-2171
Kornecky v. Comm’r of Soc. Sec.
(d) . . . Unless we give a treating source’s opinion controlling weight under
paragraph (d)(2) of this section, we consider all of the following factors in deciding
the weight we give to any medical opinion:
(1) Examining relationship. Generally, we give more weight to the opinion of a
source who has examined you than to the opinion of a source who has not . . . .
(2) Treatment relationship. Generally, we give more weight to opinions from your
treating sources . . . .
....
(3) Supportability. The more a medical source presents relevant evidence to support
an opinion, particularly medical signs and laboratory findings, the more weight we
will give that opinion. The better an explanation a source provides for an opinion,
the more weight we will give that opinion. Furthermore, because nonexamining
sources have no examining or treating relationship with you, the weight we will give
their opinions will depend on the degree to which they provide supporting
explanations for their opinions. We will evaluate the degree to which these opinions
consider all of the pertinent evidence in your claim, including opinions of treating
and other examining sources.
(4) Consistency. Generally, the more consistent an opinion is with the record as a
whole, the more weight we will give to that opinion.
(5) Specialization. We generally give more weight to the opinion of a specialist
about medical issues related to his or her area of specialty than to the opinion of a
source who is not a specialist.
(6) Other factors. When we consider how much weight to give to a medical opinion,
we will also consider any factors you or others bring to our attention, or of which we
are aware, which tend to support or contradict the opinion.
20 C.F.R. § 404.1527(d)(1)-(6).
Applying this standard, the ALJ reasonably found that Lian’s opinion was not as well
supported as the other medical opinions, and that his assessment of Kornecky’s limitations was not
consistent with the record as a whole. See 20 C.F.R. § 404.1527(d)(3)-(4). As the district court
- 22 -
No. 04-2171
Kornecky v. Comm’r of Soc. Sec.
noted, Lian’s assistant “Merrill provides a terse one paragraph conclusion concerning Plaintiff’s
psychological problems. There is a dearth of discussion pertaining to why Plaintiff was evaluated
as she was for any given category. . . . Dr. Lian does not adequately set forth the reasons to support
his conclusory assessment of Plaintiff’s mental health.” A review of the Lian report reveals that
neither Lian nor Merrill purports to explain how their exam findings led to their RFC assessment.
In contrast to Lian’s examination, the regulations provide that a comprehensive mental status
examination “generally includes a narrative description of [the claimant’s] appearance, behavior,
and speech; thought process (e.g., loosening of associations); thought content (e.g., delusions);
perceptual abnormalities (e.g., hallucinations); mood and affect (e.g., depression, mania); sensorium
and cognition (e.g., orientation, recall, memory, concentration, fund of information, and
intelligence); and judgment and insight.” 20 C.F.R. part 404, subpart P, app. 1, § 12.00(D)(4)
(“Mental status examination”).
Lian’s assessment of Kornecky’s social functioning was limited to a discussion of her
relationship with her mother; he did not test Kornecky’s memory or concentration and did not ask
about her daily activities. Lian opined that Kornecky would have moderate difficulty carrying out
even simple one- or two-step instructions, but his only direct observation of her cognitive abilities
was that she was alert and oriented. He claimed Kornecky’s ability to concentrate for extended
periods was “markedly limited,” yet he provided no observation of, or discussion with, Kornecky
to support this assertion. Lian also claimed that Kornecky had a “markedly impaired” ability to
- 23 -
No. 04-2171
Kornecky v. Comm’r of Soc. Sec.
maintain socially appropriate behavior and adhere to basic standards of neatness and cleanliness, but
he did not observe any inappropriate behavior and described her appearance as appropriate.
Thus, Lian’s opinion runs afoul of the rule that the ALJ “is not bound by conclusory
statements of doctors, particularly where they are unsupported by detailed objective criteria and
documentation.” Buxton, 246 F.3d at 773 (citation omitted).
In contrast, Morris and McGinnis made more detailed observations of Kornecky’s attitude,
behavior, stream of mental activity, thought content, and emotional reactions. Morris’s December
2002 Mental Status Report described Kornecky as follows:
Social Functioning:
Sheri is not very much interested in social interactions at this point. However, she
said that she will visit with other people if they drop by her home, but makes no
effort to really go out and see others. During this evaluation Sheri appeared to be a
person who tended to compulsively overwork topics and seemed to be focused on
expressing excessive attention to details which made it difficult for her to grasp on
[sic] the larger issue at hand.
....
General Observations:
Sheri came to this appointment with her sister. They were on time. They denied
having any trouble finding this location. Sheri presented as a slim woman but not
undernourished. Her gait and posture were normal. Sheri was polite but obsessed
over details. She presented as nervous, outwardly restless, and spoke of how
dysfunctional her current situation is, meaning that she’s living with her mother and
brother.
Mental Status:
Attitude and Behavior:
Sheri was pleasant but difficult to redirect as she often went off on tangents. She
seemed, throughout this assessment, to be overly focused on herself. . . . Her speech
was copious and over detailed. Sheri talked a lot with her hands, meaning that she
was very animated with hand gestures. She tended to be very outwardly focused on
blaming others for her problems.
- 24 -
No. 04-2171
Kornecky v. Comm’r of Soc. Sec.
....
Stream of Mental Activity:
Sheri was certainly spontaneous and went on tangents, but stayed on topic. At times
she had a difficult time to find words to express herself and would often pause and
collect herself and then would continue to speak.
Mental Trend/ Thought Content:
Sheri denied hallucinations, delusions, persecutory trends, although she reports
herself as perfectionistic. Obsessive behaviors were denied. She denied thoughts
controlled by others and unusual powers. In terms of worthlessness, she does report
having these types of feelings. When asked about being suicidal she said that that’s
nothing that has occurred to her.
....
Emotional Reaction:
. . . . Sheri appears to be a very reactive lady, one who is easily excitable, defensive,
and emotionally labile.
....
Prognosis:
Sheri appears to have a characteristic way of relating to the world which appears to
be antagonistic. She also appears to be a woman who is quite insecure and unsure
of herself. For these reasons, prognosis is poor.
(Boldface omitted.) Morris’s Psychological Assessment, also done in December 2002, opined that
Kornecky’s habit of becoming “very demanding and argumentative and resentful when things don’t
go her way or when she feels threatened” alienated other people.
Ultimately, Morris found that Kornecky’s personality and behavior would moderately restrict
her ability to interact appropriately with the public and to respond appropriately to work pressures.
Significantly, however, Morris found no restriction on Kornecky’s ability to understand, remember
and carry out short, simple instructions and even detailed instructions, nor did Morris find any
restriction on Kornecky’s ability to make judgments on simple work-related matters. Morris found
- 25 -
No. 04-2171
Kornecky v. Comm’r of Soc. Sec.
only slight restrictions on Kornecky’s ability to interact appropriately with supervisors and co-
workers and to respond appropriately to changes in a routine work setting.
Kornecky contends that Morris’s narrative evaluation contradicts her RFC assessment.
Perhaps Morris’s exam findings could support a more pessimistic RFC. But we cannot say as a
matter of law that Morris’s RFC analysis conflicted with her findings (i.e. was internally
inconsistent) or was otherwise not worthy of credence.
For his part, Dr. Fine also found that Kornecky was moderately limited in her ability to
interact appropriately with the general public, but that she was not significantly limited in her ability
to understand, remember and carry out short, simple instructions, perform an ordinary routine
without special supervision, make simple work-related decisions, and respond appropriately to
changes in the work setting. Consistent with these findings, Fine opined that while Kornecky
“would not do well” at complex or technical tasks, she could perform simple rote tasks on a
sustained basis without intensive interaction with the public. Dr. McGinnis found that Kornecky
had “good contact with reality,” normal motor activity except for hand-wringing, and had pressured
speech but no odd or illogical thoughts, no delusions, and no other psychotic trends.
Kornecky provides no basis for us to conclude that these physicians’ techniques were
methodologically unsound, that their conclusions were illogical based on their exam findings, or that
their assessments could not reasonably be credited by the ALJ on the whole record.
Kornecky points to the fact that Lian and MPA case manager Ewald assigned GAF scores
of 46 and 40-45, respectively, reflecting their opinion that Kornecky had “serious symptoms” or a
- 26 -
No. 04-2171
Kornecky v. Comm’r of Soc. Sec.
“serious impairment” in social or occupational functioning. For five reasons, however, these low
GAF scores fail to show that the ALJ’s decision was not supported by substantial evidence.
First, given the inadequate explanation for Lian’s mental RFC assessment, the ALJ could
properly find Lian generally to be not credible or reliable. Lacking confidence in Lian’s opinions,
the ALJ could place more stock in GAF scores assigned by other medical sources. As to Ewald, she
had a bachelor’s degree in social work and SWT (“Social Work Technician”) and CSM (“Client
Service Manager”) degrees or certifications, so the ALJ could properly give less weight to her
assessment than those of psychiatrists or psychologists who had earned an M.D., Ph.D. or Psy.D.
See Duncan v. Barnhart, 368 F.3d 820, 823 (8th Cir. 2004) (citation omitted) (in determining how
much weight to give a medical opinion, one factor is the degree of specialization).
Second, McGinnis and Morris both assessed Kornecky’s GAF a bit more positively, 50-55
and 52, respectively. While those scores still reflect mental problems, a 51-60 indicates moderate
symptoms or moderate difficulty in social or occupational functioning, rather than the more serious
symptoms or difficulty in functioning suggested by a score in the 40s. DSM-IV-TR at 34.
Third, according to the DSM’s explanation of the GAF scale, a score may have little or no
bearing on the subject’s social and occupational functioning. A 41-50 reflects the assessor’s opinion
that the subject has serious symptoms or serious impairment of social or occupational functioning.
Likewise, a 51-60 reflects the opinion that the subject has moderate symptoms or moderate
impairment of social or occupational functioning. Cf. Quaite v. Barnhart, 312 F. Supp. 2d 1195,
1200 (E.D. Mo. 2004) (citation omitted) (“In the absence of any evidence indicating that Dr.
- 27 -
No. 04-2171
Kornecky v. Comm’r of Soc. Sec.
Leonberger assigned this GAF score [50] because he perceived an impairment in plaintiff’s ability
to work, the score, standing alone, does not establish an impairment seriously interfering with
plaintiff’s ability to perform basic work activities.”). Moreover, McGinnis and Morris did not
accompany their relatively low GAF scores with any suggestion that Kornecky was unable to do any
work.
Fourth, we are not aware of any statutory, regulatory, or other authority requiring the ALJ
to put stock in a GAF score in the first place. See, e.g., Howard v. Comm’r of Soc. Sec., 276 F.3d
235, 241 (6th Cir. 2002) (ALJ’s failure to refer to GAF score did not make his RFC analysis
unreliable).
If other substantial evidence (such as the extent of the claimant’s daily activities) supports
the conclusion that she is not disabled, the court may not disturb the denial of benefits to a claimant
whose GAF score is as low as Kornecky’s or even lower. See, e.g., Jones v. Comm’r of Soc. Sec.,
336 F.3d 469 (6th Cir. 2003) (claimant had 55 GAF but said she was able to drive daughter to school
and pick her up each day and maintained a regular schedule).
Fifth, even if the ALJ placed some weight on Kornecky’s GAF scores, any tendency they
had to suggest that Kornecky could not work was countered by the vocational expert’s testimony
that someone with her limitations could still do certain widely available work.
Kornecky claims that a Michigan state court appointed a guardian ad litem (“GAL”) to
represent her because of her mental problems. This argument is unfounded and misleading. The
record contains only one item related to the appointment of a GAL: in March 2002, a state court
- 28 -
No. 04-2171
Kornecky v. Comm’r of Soc. Sec.
issued a consent order that dismissed an order to show cause related to Kornecky’s failure to pay
child support. The judge wrote, “[t]he Plaintiff agrees to appointment of a [GAL] to assist her in
any social security or disability claim.” The order did not suggest that Kornecky is incompetent
because of delusions or otherwise. The only logical inference is that the court appointed the GAL
to help Kornecky secure income from which she could meet at least part of her child support
obligations.
Kornecky also refers to a notation made by Lian’s physician’s assistant, “Delusional?
[counsel] Mr. Seward mentioned this – in appeal for SSI?? She knows for a fact that she can receive
SSI – ??” This vague and unexplained notation cannot remotely be construed as a diagnosis of a
delusional state. This is particularly true given that Merrill’s notes from the very same examination
record Kornecky as saying, “‘I am burned out’ – denies voices, delusions . . . .”
Lastly, Kornecky’s counsel’s opinion that she is delusional is not competent evidence.
VI.
“A judicial award of benefits is proper only where the proof of disability is overwhelming
or where the proof of disability is strong and evidence to the contrary [is] lacking.” Felisky v.
Bowen, 35 F.3d 1027, 1041 (6th Cir. 1994) (citation omitted). Kornecky’s proof of disability was
far from overwhelming and there was substantial evidence and medical opinion to the contrary.
Accordingly, we affirm the denial of benefits.
- 29 -