Griffeth v. Commissioner of Social Security

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 07a0113n.06
Filed: February 9, 2007
No. 06-1236
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
GARY D. GRIFFETH, )
)
Plaintiff-Appellant, ) ON APPEAL FROM THE
) UNITED STATES DISTRICT
v. ) COURT FOR THE EASTERN
) DISTRICT OF MICHIGAN
COMMISSIONER OF SOCIAL )
SECURITY, )
)
Defendant-Appellee. )
BEFORE: MOORE and CLAY, Circuit Judges; BELL, District Judge.*
BELL, District Judge. Plaintiff Gary D. Griffeth appeals the district court order
affirming the Commissioner of Social Security’s denial of disability benefits. For the reasons
set forth in this opinion we AFFIRM.
I.
Gary D. Griffeth was born on April 20, 1947. He has a high school diploma and
worked from 1965 through 2001 as a carpenter, highway contractor, highway foreman,
*
The Honorable Robert Holmes Bell, Chief United States District Judge for the
Western District of Michigan, sitting by designation.
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Griffeth v. Comm. of Social Security
building code enforcement officer and scheduler. Griffeth was laid off from his employment
on September 26, 2001, for reasons unrelated to his alleged disability, and he has not worked
since that date.
Griffeth applied for Social Security Disability Insurance Benefits on July 2, 2002,
alleging disability due to limitations caused by his colostomy, shoulder pain, back pain, knee
pain, difficulty sleeping, depression, and problems with memory and concentration. An
Administrative Law Judge (“ALJ”) determined that Griffeth’s degenerative disc disease and
depression were “severe” impairments. The ALJ determined, however, that these
impairments would have little effect on Griffeth’s ability to perform basic work-related
activities. The ALJ denied disability benefits based upon his determination that Griffeth
retained the residual functional capacity to perform his past relevant work as a scheduler and
code enforcement officer. The Appeals Council denied his request for review. Griffeth filed
for judicial review. The district court granted the Commissioner’s motion for summary
judgment and affirmed the final order denying benefits. This timely appeal followed.
II.
Judicial review of a final decision of the Commissioner of Social Security is limited
to determining whether the ALJ applied the correct legal standards in reaching his decision
and whether there is substantial evidence in the record to support his findings. Longworth
v. Comm’r Soc. Sec., 402 F.3d 591, 595 (6th Cir. 2005). The Commissioner’s findings of
fact, “if supported by substantial evidence, shall be conclusive.” 42 U.S.C. § 405(g).
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Griffeth v. Comm. of Social Security
All three issues Griffeth has raised on appeal1 stem from the ALJ’s finding that his
depression was a “severe” impairment. Griffeth contends that given that finding, there was
not substantial evidence to support treating the impairment as non-severe; it was inconsistent
to find that Griffeth had only mild limitations in the degree of functional loss; and it was
improper to omit the “severe” impairment from the hypothetical given to the vocational
expert.
The Commissioner uses a five step sequential evaluation process to determine whether
a claimant is disabled. 20 C.F.R. § 404.1520(a)(1). At the second step of the sequential
evaluation process, the Commissioner must determine whether the claimant has a severe
impairment. § 404.1520(a)(4)(ii). The regulations define a “severe” impairment as one
which “significantly limits” the claimant's physical or mental ability to do basic work
activities.” § 404.1520(c).
At step two of the sequential evaluation process the ALJ found that Griffeth’s
depression caused some limitations on Griffeth’s ability to perform some basic work-related
activities, and therefore concluded that it was a “severe” impairment within the meaning of
the regulations. The ALJ determined, however, that Griffeth’s testimony regarding the extent
of his limitations was not credible. The ALJ concluded that Griffeth’s depression resulted
in only mild limitations on his ability to perform activities of daily living and to maintain
1
Although Griffeth originally raised four issues on appeal, at oral argument he
withdrew his third issue regarding use of the grid.
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Griffeth v. Comm. of Social Security
attention and concentration for extended periods, and that it had little effect on his ability to
perform basic work activities. The ALJ determined that Griffeth retained the residual
functional capacity (“RFC”) to perform his past relevant work as a scheduler and code
enforcement officer. If at step four of the sequential evaluation process the ALJ finds that
an individual’s RFC allows him to perform work he has done in the past, a finding of not
disabled will be made. 20 C.F.R. § 404.1520(f). The ALJ accordingly denied disability
benefits at step four of the sequential evaluation process.
Griffeth’s first contention is that the ALJ’s analysis was not supported by substantial
evidence. Substantial evidence is “such relevant evidence as a reasonable mind might accept
as adequate to support a conclusion.” Buxton v. Halter, 246 F.3d 762, 772 (6th Cir. 2001)
(quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)). It is “more than a mere scintilla
of evidence, but less than a preponderance.” Bell v. Comm’r of Soc. Sec., 105 F.3d 244, 245
(6th Cir.1996) (citing Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). “If
substantial evidence supports the Commissioner’s decision, this Court will defer to that
finding ‘even if there is substantial evidence in the record that would have supported an
opposite conclusion.’” Longworth, 402 F.3d at 595 (citing Warner v. Comm’r of Soc. Sec.,
375 F.3d 387, 390 (6th Cir. 2004)).
Although the record contains evidence that Griffeth suffers from depression,
Griffeth’s family doctor, Dr. Oliver, indicated that his depressive symptoms were under
reasonable control as long as he stayed on his medication. Griffeth’s therapist, Jerry Walden,
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Griffeth v. Comm. of Social Security
indicated that Griffeth’s emotional well being and ability to concentrate improved when he
was able to get adequate rest and did not push himself physically. Dr. Krause, the state
agency psychiatrist, found that Griffeth had only mild functional limitations in daily living
activities and maintaining concentration, and that he had no difficulties in maintaining social
functioning and no episodes of decompensation of extended duration.
The record also contains evidence that Griffeth was able to engage in a wide variety
of daily activities including cooking, visiting friends, fishing, helping friends with projects,
working in his wood-working shop, doing minor maintenance on his apartment building,
mowing his lawn, attending church, and riding his motorcycle. He has also taken trips out
of state and overseas.
Griffeth does not challenge the accuracy of the evidence on which the ALJ relied. He
does not suggest that the record established greater limitations than those found by the ALJ
nor does he suggest that his past jobs required duties incompatible with the limitations found
by the ALJ. He merely contends that the evidence is not sufficient to support the ALJ’s
conclusion. We disagree. Reasonable minds could accept the medical evidence and
Griffeth’s own testimony concerning his daily activities as adequate to support the conclusion
that his depression has little effect on his ability to perform basic work-related activities.
Accordingly, the ALJ’s determination is supported by substantial evidence.
Griffeth’s second contention is that the ALJ’s analysis was internally inconsistent
because he classified Griffeth’s impairment as “severe” but treated it as “non-severe.” At
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Griffeth v. Comm. of Social Security
step two of the sequential evaluation process the ALJ determined that because Griffeth’s
depression was a medically determinable impairment that caused “some” limitations of his
ability to perform “some” basic work-related activities, it was a “severe” impairment. Later
in his analysis he determined that Griffeth’s depression had only a minimal effect on his
ability to concentrate.
The regulations define a “severe” impairment as “any impairment or combination of
impairments which significantly limits your physical or mental ability to do basic work
activities.” 20 C.F.R. § 404.1520(c). Griffeth contends that the ALJ’s finding of “some”
rather than “significant” limitations was improper and led to an inappropriate finding of
non-disability at step four.
The ALJ did not misinterpret the severity regulation. At step two “significant” is
liberally construed in favor of the claimant. The regulations provide that if the claimant’s
degree of limitation is none or mild, the Commissioner will generally conclude the
impairment is not severe, “unless the evidence otherwise indicates that there is more than a
minimal limitation in your ability to do basic work activities.” 20 CFR § 404.1520a(d). The
purpose of the second step of the sequential analysis is to enable the Commissioner to screen
out “totally groundless claims.” Farris v. Sec’y of HHS, 773 F.2d 85, 89 (6th Cir. 1985). We
have construed the step two severity regulation as a “de minimis hurdle” in the disability
determination process. Higgs v. Bowen, 880 F.2d 860, 862 (6th Cir. 1988). Under a Social
Security policy ruling, if an impairment has “more than a minimal effect” on the claimant’s
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Griffeth v. Comm. of Social Security
ability to do basic work activities, the ALJ is required to treat it as “severe.” SSR 96-3p
(July 2, 1996).
The ALJ’s determination that Griffeth’s depression caused “some” limitation of his
ability to do work activity is consistent with a finding that Griffeth’s depression caused more
than a minimal limitation in his ability to do basic work activities. The ALJ’s finding that
the limitation was more than minimal, however, was not inherently inconsistent with his
finding that the limitation has “little effect” on the claimant’s ability to perform basic work-
related activities. Because the ALJ gave Griffeth the benefit of the doubt at step two of the
sequential analysis, the ALJ went on to consider not only Griffeth’s “severe” impairments,
but all of Griffeth’s other impairments as well, and made his determination based upon the
effects of the combination of impairments on Griffeth’s ability to perform basic work-related
activities. See 20 C.F.R. § 404.1545(e) (“When you have a severe impairment(s), but your
symptoms, signs, and laboratory findings do not meet or equal those of a listed impairment
in Appendix 1 of this subpart, we will consider the limiting effects of all your impairment(s),
even those that are not severe, in determining your residual functional capacity.”). This
expanded review worked to Griffeth’s benefit, not to his detriment.
Furthermore, even if the ALJ erroneously found Griffeth’s depression to be “severe,”
such an erroneous finding was, at most, harmless error, because we have already found
substantial evidence to support the finding of “not disabled” at step four. We are not
required to remand where to do so would be an idle and useless formality. Wilson v. Comm’r
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Griffeth v. Comm. of Social Security
of Soc. Sec., 378 F.3d 541, 547 (6th Cir. 2004) (quoting NLRB v. Wyman-Gordon, 394 U.S.
759, 766 n.6 (1969)).
Griffeth’s final assignment of error is that the hypothetical given to the ALJ was
flawed because it contained no limitations related to his “severe” impairment of depression.
According to Griffeth, because the hypothetical was flawed, the vocational expert’s opinion
did not constitute substantial evidence to support the ALJ’s conclusion at step four of the
sequential analysis that Griffeth was able to perform his past relevant work.
“Substantial evidence may be produced through reliance on the testimony of a
vocational expert in response to a ‘hypothetical’ question, but only ‘if the question accurately
portrays [plaintiff’s] individual physical and mental impairments.’” Varley v. Sec’y HHS,
820 F.2d 777, 779 (6th Cir. 1987) (quoting Podedworny v. Harris, 745 F.2d 210, 218 (3d Cir.
1984)). In Howard v. Comm’r of Soc. Sec., 276 F.3d 235 (6th Cir. 2002), we found that the
exclusion of the claimant’s major depressive disorder from the hypothetical did not
accurately describe the claimant’s impairments, and accordingly held that the vocational
expert’s testimony in reliance on the hypothetical was not substantial evidence for the ALJ’s
conclusion that the claimant could perform “other work.” 276 F.3d at 241.
The regulations permit an ALJ to use the services of a vocational expert at step four
to determine whether a claimant can do his past relevant work, given his RFC. 20 C.F.R.
§ 404.1560(b)(2). RFC is an assessment of the most a claimant can still do despite his
limitations. 20 C.F.R. § 404.1545(a)(1). The RFC describes “the claimant’s residual abilities
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Griffeth v. Comm. of Social Security
or what a claimant can do, not what maladies a claimant suffers from – though the maladies
will certainly inform the ALJ’s conclusion about the claimant’s abilities.” Howard, 276 F.3d
at 240. “A claimant’s severe impairment may or may not affect his or her functional capacity
to do work. One does not necessarily establish the other.” Yang v. Comm’r of Soc. Sec.,
No. 00-10446-BC, 2004 WL 1765480, at *5 (E.D. Mich. July 14, 2004). Howard does not
stand for the proposition that all impairments deemed “severe” in step two must be included
in the hypothetical. The regulations recognize that individuals who have the same severe
impairment may have different RFCs depending on their other impairments, pain, and other
symptoms. 20 C.F.R. § 404.1545(e).
“The rule that a hypothetical question must incorporate all of the claimant’s physical
and mental limitations does not divest the ALJ of his or her obligation to assess credibility
and determine the facts.” Redfield v. Comm’r of Soc. Sec., 366 F. Supp. 2d 489, 497 (E.D.
Mich. 2005). In fashioning a hypothetical question to be posed to a vocational expert, the
ALJ is required to incorporate only those limitations that he accepts as credible. Casey v.
Sec'y of HHS, 987 F.2d 1230, 1235 (6th Cir. 1993). An ALJ is not required to accept a
claimant’s subjective complaints, and “can present a hypothetical to the VE on the basis of
his own assessment if he reasonably deems the claimant’s testimony to be inaccurate.” Jones
v. Comm’r of Soc. Sec., 336 F.3d 469, 476 (6th Cir. 2003).
In this case the ALJ found that Griffeth’s assertion that he was unable to work due to
depression was not supported by the record as a whole and was not credible. The
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Griffeth v. Comm. of Social Security
hypothetical the ALJ posed to the vocation expert was consistent with the ALJ’s factual
determination that Griffeth was able to engage in light work and that his depression had little
effect on his ability to perform basic work-related activities. The vocational expert testified
that such a person could perform Griffeth’s past relevant work as a code enforcement officer
and scheduler. The vocational expert’s testimony constituted substantial evidence to support
the ALJ’s determination that Griffeth was able to perform his past relevant work and was not
disabled.
III.
For the reasons stated, we AFFIRM the district court’s decision upholding the
Commissioner’s final order denying disability benefits.