Yer Her v. Commissioner of Social Security

*This decision was originally issued as an “unpublished decision”
filed on December 16, 1999. On February 1, 2000, the court designated
the opinion as one recommended for full-text publication.
**The Honorable Sandra S. Beckwith, United States District Judge for
the Southern District of Ohio, sitting by designation.
1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2000 FED App. 0048P (6th Cir.)
File Name: 00a0048p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
YER HER,
Plaintiff-Appellant,
v.
C OMMISSIONER OF S OCIAL
S ECURITY ,
Defendant-Appellee.
;>

1
No. 99-1033
Appeal from the United States District Court
for the Western District of Michigan at Grand Rapids.
No. 98-00025—Gordon J. Quist, District Judge.
Argued: December 14, 1999
Decided and Filed: December 16, 1999*
Before: MERRITT and SILER, Circuit Judges;
BECKWITH, District Judge.**

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2 Her v. Comm’r of Soc. Sec. No. 99-1033
_________________
COUNSEL
ARGUED: Timothy A. O’Rourke, HAY & O’ROURKE,
Lansing, Michigan, for Appellant. Kathryn A. Beverly,
SOCIAL SECURITY ADMINISTRATION, OFFICE OF
THE GENERAL COUNSEL, REGION V, Chicago, Illinois,
for Appellee. ON BRIEF: Timothy A. O’Rourke, HAY &
O’ROURKE, Lansing, Michigan, for Appellant. Kathryn A.
Beverly, SOCIAL SECURITY ADMINISTRATION,
OFFICE OF THE GENERAL COUNSEL, REGION V,
Chicago, Illinois, for Appellee.
_________________
OPINION
_________________
MERRITT, Circuit Judge. Administrative Law Judge Paula
Zera denied plaintiff Yer Her’s request for Social Security
disability and Supplemental Security Income benefits, a
decision which the Commissioner of Social Security affirmed.
After plaintiff’s appeal to the District Court, that court also
affirmed the decision finding that Yer Her was not disabled.
For the reasons laid out below, we AFFIRM the decision of
the District Court.
In reviewing the decision of the District Court, we must
determine whether the Administrative Law Judge’s decision
was supported by substantial evidence, which is generally
defined as such relevant evidence as a reasonable mind might
accept as adequate to support the conclusion. See Richardson
v. Perales, 402 U.S. 389, 401 (1971). Even if the evidence
could also support another conclusion, the decision of the
Administrative Law Judge must stand if the evidence could
reasonably support the conclusion reached. See Key v.
Callahan, 109 F.3d 270, 273 (6th Cir. 1997).
Plaintiff-appellant Yer Her is presently 39 years old, and
was 35 years old at the time of the ALJ’s decision. She is

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6 Her v. Comm’r of Soc. Sec. No. 99-1033
stages one through four, when the claimant is proving the
extent of his impairments. If a claimant does not secure an
official “Residual Functional Capacity” assessment by a
medical or psychological examiner, and simply relies on other
evidence to prove his impairments, it does not follow that the
Commissioner subsequently must provide the RFC
assessment at step five. The step five analysis is meant to
determine, given the severity of the impairments already
proven, whether there are jobs in the economy which a
claimant can perform.
Plaintiff argues that some ambiguous language in Abbott v.
Sullivan, 905 F.2d 918 (6th Cir. 1990), demonstrates that the
burden of proving RFC also shifts to the Commissioner at
step five. The pertinent language states that “[a]t this point
[step five], the Secretary bears the burden of demonstrating
that, notwithstanding the claimant’s impairment, he retains
the residual functional capacity to perform specific jobs
existing in the national economy.” Abbott v. Sullivan, 905
F.2d 918, 926 (6th Cir. 1990). The Abbott case, however, did
not specifically address the issue before this court. Taken in
context, the language was meant only to emphasize that the
burden of proof shifts at step five in order to prove the
availability of jobs in the national economy, and should not be
read to expand that requirement. To require the
Commissioner to prove a claimant’s RFC at step five is
essentially to partially shift the burden of proof required of a
claimant at step four to the Commissioner. For these reasons,
we reject the argument that if Residual Functional Capacity is
not proven by the claimant before step five, the burden of
proving it shifts to the Commissioner.
For the foregoing reasons, we AFFIRM the opinion of the
District Court.
No. 99-1033 Her v. Comm’r of Soc. Sec. 3
from Laos and is completely illiterate in English. Her’s
alleged disabilities include hearing impairments, a mood
disorder characterized by depression and fear, and a number
of mental impairments which Her attributes to a traumatic
injury to her head as a child. She was employed from October
1981 to June 1987 on an assembly line preparing donuts, at
which time she discontinued that employment in order to care
for her two children. At the hearing before the ALJ, plaintiff
Her testified through an interpreter. Plaintiff Her testified that
she had considerable hearing loss which was only partially
aided by hearing aids. In addition, she testified that she could
not leave the house alone because she could not remember
how to return to her home. Plaintiff Her complained that she
often cried two or three times per day, and experienced great
depression and fear under normal, everyday circumstances.
Finally, Her noted that she experienced blurred vision, back
pain, and a pain and “heaviness” in her head, all of which she
attributed to the head injury she sustained as a child.
Plaintiff Her’s sister also testified on her behalf. She
indicated that when the sisters worked in the donut factory,
plaintiff Her was unable to independently determine which
donuts to glaze and which donuts to fill, and required the
regular assistance of her sister in order to complete the job.
In addition, Her’s sister testified that although Her was able
to care for her own grooming needs, she was unable to do
housework, cook, or care for her children, and her sister daily
undertook these tasks on her behalf.
The ALJ had before her a record replete with medical
examinations and analyses of Her’s hearing problem. Based
on this and on the rest of the evidence, including Her’s
testimony, she concluded that Her’s hearing impairment was
severe in nature. The ALJ did not find, however, that Her’s
alleged mental and emotional impairments were severe. The
only medical opinion in the record indicating that Her
suffered from disabling mental and emotional impairments
was the recommendation of Dr. Bradley that Her receive full
disability. There were no other medical opinions in the record
dealing with Her’s mental and emotional state, aside from a

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4 Her v. Comm’r of Soc. Sec. No. 99-1033
note from one physician that “depression” could have been
one of a number of possible causes for a sudden weight loss
Her experienced. Dr. Bradley was not Her’s treating
physician, and so his opinion was not due any special
deference by the ALJ. Indeed, Dr. Bradley’s assessment was
made only upon the suggestion of plaintiff’s attorney. In
addition, Dr. Bradley’s examination was conducted through
an interpreter. His assessment indicated that Her suffered
from both auditory and mental hallucinations, that she had
hearing impairments and other physical weaknesses, and that
she had a Global Assessment of Functioning of 25-30. He did
not recommend any further treatment.
The ALJ determined that Dr. Bradley’s examination was
not wholly credible due to a number of factors. First, Her
never complained that she suffered from auditory or mental
hallucinations in any other context, including her testimony
before the ALJ. This evidence led the ALJ to believe that
Bradley could have misunderstood some of Her’s responses.
Second, the ALJ noted the opinion of psychological experts
that psychological testing can never be fully accurate through
an interpreter, because it involves many cultural and linguistic
nuances that could easily be distorted through the language
barrier. Third, the ALJ heard the testimony of a vocational
expert who testified after first listening to both Yer Her’s
testimony and her sister’s testimony. Considering all of the
testimony, as well as Her’s language difficulties, her hearing
problems, and her small stature, the vocational expert still
concluded that there were a number of light, unskilled,
repetitive jobs which Her could perform and which would be
less taxing on her than her previous job at the donut factory.
The vocational expert also called into question Dr. Bradley’s
assessment by noting that a Global Assessment of
Functioning score under 40 indicates such severe impairment
and lack of functioning that hospitalization, or at the very
least further treatment, should have been recommended. In
this case, the ALJ was startled by the juxtaposition of such an
extremely low GAF score, absolutely no recommendation for
future treatment or assessment, and Dr. Bradley’s prominent
request for reimbursement. All of these factors led the ALJ
No. 99-1033 Her v. Comm’r of Soc. Sec. 5
to reasonably conclude that Dr. Bradley’s assessment was not
wholly credible, and that plaintiff Yer Her could perform
light, unskilled, repetitive jobs, such as folding clothes in a
laundry, working as a dishwasher, or working on an assembly
line doing repetitive three- and four-step tasks. We believe
this conclusion to be based upon substantial evidence.
Plaintiff Yer Her further argues that the Commissioner did
not meet his burden of proof once plaintiff proved that she
was unable to perform her past relevant work. Specifically,
Her argues that the Commissioner should have had the burden
of proving plaintiff’s Residual Functional Capacity.
Disability benefit claims are assessed using an established
five-step analysis. As an initial matter, we note that the
burden of proof lies with the claimant at steps one through
four of the process, culminating with a claimant’s proof that
she cannot perform her past relevant work. The burden of
proof shifts to the Commissioner only if the fifth step, proving
that there is work available in the economy that the claimant
can perform, is reached. See Bowen v. Yuckert, 482 U.S. 137,
146 (1987); Walters v. Comm. of Soc. Sec., 127 F.3d 525 (6th
Cir. 1997). The rationale behind this rule is simple. It is
thought to be unfair to require a lay claimant to prove that
there are no jobs available in the economy which he can
perform because such a determination requires a level of
expertise in vocational matters. On the other hand, it is not
unfair to require a claimant to prove the extent of his
impairments. See Bowen v. Yuckert, 482 U.S. at 146 n.5 (“It
is not unreasonable to require the claimant, who is in a better
position to provide information about his own medical
condition, to do so.”)
Bearing in mind this rationale behind the shifting of the
burden of proof in disability cases, we reject plaintiff’s
contention that once the burden of proof shifts to the
Commissioner at step five, the Commissioner is then required
to prove a claimant’s Residual Functional Capacity. The
determination of a claimant’s Residual Functional Capacity
is a determination based upon the severity of his medical and
mental impairments. This determination is usually made at

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