Angela M. Jones v. Commissioner of Social Security

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RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2003 FED App. 0231P (6th Cir.)
File Name: 03a0231p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
ANGELA M. JONES,
Plaintiff-Appellee,
v.
COMMISSIONER OF SOCIAL
SECURITY,
Defendant-Appellant.
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No. 01-2315
Appeal from the United States District Court
for the Eastern District of Michigan at Detroit.
No. 00-74924—Anna Diggs Taylor, District Judge.
Argued: March 27, 2003
Decided and Filed: July 15, 2003
Before: BOGGS, SUHRHEINRICH, and SILER, Circuit
Judges.
_________________
COUNSEL
ARGUED: Sharon Swingle, UNITED STATES
DEPARTMENT OF JUSTICE, CIVIL DIVISION,
Washington, D.C., for Appellant. Kenneth F. Laritz, Clinton
2 Jones v. Commissioner of Soc. Sec. No. 01-2315
Township, Michigan, for Appellee. ON BRIEF: Sharon
Swingle, John C. Hoyle, UNITED STATES DEPARTMENT
OF JUSTICE, CIVIL DIVISION, Washington, D.C., for
Appellant. Kenneth F. Laritz, Clinton Township, Michigan,
for Appellee.
_________________
OPINION
_________________
BOGGS, Circuit Judge. In December 1999 and February
2000, Angela M. Jones applied for disability insurance
benefits and supplemental security income, claiming that she
had been disabled since August 23, 1999 as a result of severe
panic attacks, an anxiety disorder, and a depressive disorder.
After the denial of her application for benefits, Ms. Jones
requested a hearing before an Administrative Law Judge
(ALJ), who found that she was not disabled within the
meaning of the Social Security Act (the Act). The ALJ’s
decision became the final decision of the Commissioner of
Social Security (the Commissioner) and Ms. Jones
subsequently sought judicial review of that decision by the
district court. The district court held that the ALJ’s findings
were not supported by substantial evidence in the record and
ruled in favor of Ms. Jones. The Commissioner now appeals
the district court’s judgment, arguing that there was
substantial evidence in the record to support the ALJ’s
decision. We agree with the Commissioner and reverse the
district court’s decision.
I
Ms. Jones alleges that she has been unable to work since
August 23, 1999, when she left her job as a machine operator
in a plastics company. She was 28 years old at the time and
had previously worked as a recycling collector, a waitress,
and a babysitter. Ms. Jones continued to apply for jobs, but
reported that she was unable to sustain them for more than a

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No. 01-2315 Jones v. Commissioner of Soc. Sec. 3
few hours because of panic attacks and crying spells, which
would cause her to leave work.
Ms. Jones first sought medical treatment for her condition
on November 6, 1999, at a local health center, where she was
diagnosed as having a panic disorder with agoraphobia, and
a recurrent major depressive disorder, pending an initial
evaluation by a psychiatrist. On November 23, 1999, Ms.
Jones was seen by Dr. Burgoyne, a psychiatrist at the center,
who noted that she complained of longstanding panic attacks,
depression, insomnia, low motivation and dizzy spells on
most days, but that she was “very organized,” and was
peaceful in appearance. He prescribed Imipramine and
Xanax.
On December 11, Dr. Burgoyne again saw Ms. Jones, for
a formal evaluation of her condition. After listing the various
symptoms reported by Ms. Jones, including the fact that she
had left at least seven jobs since August 1999 as a result of
her panic attacks, Dr. Burgoyne stated in his report that:
Ms. Jones presents as oriented to time, place, person,
and situation. She is cooperative and does not
demonstrate untoward anxiety. There are no signs of
psychomotor deficit, physical limitation, or tremors. Her
weight is proportionate to her height. Her clothing and
self care are appropriate. Her thinking is organized, goal
directed, spontaneous, and progressive. She denies
suicidal and homicidal ideas. There are no significant
form or content deficits in speech. Her mood is euthymic
in appearance. Her affect is appropriate to the situation,
however it does not reflect the depression and anxiety
that she complains of.
Dr. Burgoyne further noted that Ms. Jones had reported an
improvement in her condition over the last three weeks,
“since she [had] been taking Imipramine 100mg, and Xanax
.25 mg sublingual prn impending panic.” Dr. Burgoyne
assigned Ms. Jones a GAF (Global Assessment of
4 Jones v. Commissioner of Soc. Sec. No. 01-2315
Functioning) score of 55 and diagnosed her as having a
“panic disorder with agoraphobia” and a mild first episode of
major depression without psychotic features. The doctor
continued her treatment with medication and directed that she
return in a month for further analysis.
Ms. Jones also visited a counselor at the clinic: Kathleen
Berrisford, MSW, CSW. On December 15, 1999, Berrisford
reported that Ms. Jones was crying because she had “run out
of gas,” but that the medication was helping. On January 12,
2000, Berrisford reported that Ms. Jones was depressed most
of the time, but noted that Ms. Jones was only taking one-
third of her medications. On February 9, 2000, Berrisford
reported that Ms. Jones was smiling and apparently felt better,
concluding that the medication was having an impact on Ms.
Jones’s condition. In March 2000, however, Ms. Jones’s
condition appeared to worsen again. A different counselor,
filling in for Berrisford, noted that Ms. Jones came late to the
appointment, and that although Xanax had reduced the
number of panic attacks and eliminated the reoccurring pains
in her chest, Ms. Jones reported that she was “crying more
days than not.”
On March 28, 2000, Mary Gerwoll, a psychologist,
examined Ms. Jones. She diagnosed Ms. Jones as having a
mild recurrent major depressive order and a personality
disorder with borderline features. Dr. Gerwoll noted that Ms.
Jones’s panic attacks were “situationally predisposed,” and
did not appear to meet the full criteria for a panic disorder.
Dr. Gerwoll assigned Ms. Jones a GAF score of 60 and noted
that her prognosis was “guarded - due to early onset and
chronicity.” In her notes on Ms. Jones’s personal history, Dr.
Gerwoll stated that “[s]ince being fired [Ms. Jones] has gotten
about 20 jobs and just walked out.”
In April 2000, a clinical assessment form reflected that Ms.
Jones’s status was improving and that she was to start taking
20mg of Paxil in addition to Imipramine and Xanax. On
April 9, 2000, Dr. Kriauciunias, a licensed psychologist,

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No. 01-2315 Jones v. Commissioner of Soc. Sec. 5
reviewed Ms. Jones’s file and filled out a Psychiatric Review
Form for the Social Security Administration. Dr.
Kriauciunias concluded that Ms. Jones suffered from an
affective disorder and a personality disorder, and checked the
box that stated “a severe impairment is present which does
not meet or equal a listed impairment.” Dr. Kriauciunias’s
functional assessment was that Ms. Jones was moderately
limited in her ability to remember detailed instructions, to
maintain regular attendance, attention, and concentration for
extended periods, and also in her ability to interact with the
general public. However Dr. Kriauciunias concluded that she
could perform simple, low-stress unskilled work.
In June and July of 2000, clinical assessment forms
reflected that Ms. Jones’s status was deteriorating. After an
appointment on June 28, 2000, Berrisford reported that Ms.
Jones was depressed, crying, unmotivated, missing
appointments, and sleeping night and day. According to
Berrisford, Ms. Jones regarded the medications as no longer
working, since she was experiencing a “loss of concentration,
fatigue, loss of all pleasure, [and could not] work or
socialize,” but she was not suicidal. In July, Dr. Burgoyne
adjusted her medication by lowering the amount of Paxil and
increasing her dosage of Imipramine, in an effort to return to
the dosages being taken by Ms. Jones in May, when she had
been feeling better.
On August 1, 2000, a clinical assessment form filled out by
Dr. Burgoyne reflected that Ms. Jones was once again
improving, but prescribed a new drug for Ms. Jones,
Depakote, in order to deal with her “mood instability.”
Nevertheless, on August 19, another assessment form filled
out by Dr. Burgoyne noted that the “gatekeeper” had not
ordered Depakote and thus Ms. Jones had not yet been started
on the drug. In addition, the form noted that she exhibited
“mild pressured speech” and reported that she was unable to
get out of bed three days a week, was irritable, angry, and
depressed. On September 16, 2000, a clinical assessment
form reflected that Ms. Jones was improving, although she
6 Jones v. Commissioner of Soc. Sec. No. 01-2315
1Depako te, Paxil, Imipramine, and Xanax.
had not yet begun taking Depakote. Ms. Jones denied having
disabling panic and depression. At the hearing in October
2000, Ms. Jones testified that she was taking all four drugs.1
II
The Administrative Law Judge’s Hearing
The Social Security Act defines disability as the inability to
engage in any substantial gainful activity by reason of a
medically determinable physical or mental impairment that
can be expected to result in death or that 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), (d)(2)(A); 20 C.F.R.
§ 404.1505; see also 20 C.F.R. § 404.1509. To be found
disabled, Ms. Jones’s impairments must not only prevent her
from doing her previous work, but, considering her age (29 at
the time of the ALJ’s decision), education (eighth grade
education), and work experience (machine operator, recycling
collector, waitress, and babysitter), must also render her
unable to engage in any other kind of work that exists in
significant numbers in the national economy. 42 U.S.C.
§ 1382c(a)(3)(B); Bogle v. Sullivan, 998 F.2d 342, 347 (6th
Cir. 1993).
To determine if a claimant is disabled within the meaning
of the Act, the ALJ employs a five-step inquiry defined in 20
C.F.R. § 404.1520; Abbott v. Sullivan, 905 F.2d 918, 923 (6th
Cir. 1990) (citing 20 C.F.R. § 404.1520). Through step four,
the claimant bears the burden of proving the existence and
severity of limitations caused by her impairments and the fact
that she is precluded from performing her past relevant work,
but at step five of the inquiry, which is the focus of this case,
the burden shifts to the Commissioner to identify a significant
number of jobs in the economy that accommodate the
claimant’s residual functional capacity (determined at step

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No. 01-2315 Jones v. Commissioner of Soc. Sec. 7
four) and vocational profile. See Bowen v. Yuckert, 482 U.S.
137, 146 n.5 (1987).
At the hearing, the vocational expert (VE) testified to the
fact that if Ms. Jones’s testimony regarding her constant
crying spells, daily panic attacks, inability to leave the house,
and inability to get along with others were to be credited,
there were no jobs that would fit her needs. However, the
ALJ did not find Ms. Jones’s testimony to be entirely credible
and instead constructed a hypothetical question for the VE
that incorporated his own assessment of Ms. Jones’s
limitations, asking the VE to assume that Ms. Jones would be
capable only of light work, which was not at an “unprotected
height,” that did not require Ms. Jones to drive, climb, or
work around dangerous or hazardous machinery, was
“relatively simple and routine in nature, not requiring more
than very few steps,” and that the work be low in stress and
include only very limited contact with other people. The VE
responded that under such circumstances, Ms. Jones could
perform light janitorial work, some stock positions, and
material handling positions, all of which were unskilled, light
work that did not “involve much contact with people.” The
VE further testified that there were a significant number of
these jobs available in the Detroit metropolitan area.
The ALJ subsequently performed the required five-step
evaluation and found that Ms. Jones’s claim survived the
requirements of the first four steps, but did not meet the
requirements of step five, since there are jobs other than her
past relevant work that exist in significant numbers in the
national economy, which can accommodate her residual
functional capacity. Accordingly, the ALJ denied Ms. Jones’s
application for benefits, having determined that she was not
disabled for purposes of the Act.
8 Jones v. Commissioner of Soc. Sec. No. 01-2315
Is there substantial evidence to support the
Commissioner’s decision?
In order to affirm the Commissioner’s determination, the
decision must be supported by substantial evidence in the
record as a whole. 42 U.S.C. § 405(g); Walters v.
Commissioner, 127 F.3d 525, 528 (6th Cir. 1997).
“‘Substantial evidence’ is defined as ‘such relevant evidence
as a reasonable mind might accept as adequate to support a
conclusion.’” Stanley v. Secretary of Health & Human Servs.,
39 F.3d 115, 117 (6th Cir. 1994) (quoting Richardson v.
Perales, 402 U.S. 389, 401 (1971)). Furthermore, we must
defer to an agency’s decision “even if there is substantial
evidence in the record that would have supported an opposite
conclusion, so long as substantial evidence supports the
conclusion reached by the ALJ.” Key v. Callahan, 109 F.3d
270, 273 (6th Cir. 1997).
The ALJ stated in his written order that Ms. Jones was
moderately impaired in social functioning, given her crying
spells and her problems with anger, and had a moderate
impairment of concentration, persistence, and pace.
Nevertheless, the ALJ concluded that Ms. Jones’s statements
regarding the severity of her symptoms and her attempts to
find work were not fully credible, and that she was capable of
showing up at a job every day, despite Dr. Kriauciunias’s
assessment that she was moderately impaired in her ability to
maintain attendance. Moreover, the ALJ found that she was
limited to a light level of exertion on the basis of her lowered
energy level resulting from her depression. Accordingly, the
ALJ determined that Ms. Jones should be capable of
performing light work, but work that did not include
unprotected heights, driving, climbing or operating hazardous
machinery, and perhaps most importantly, required only very
limited contact with “the public, co-workers and supervisors.”
Ms. Jones contends that the ALJ’s conclusion that she is
capable of performing light work, even where the contact
with others is limited, is not supported by substantial

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No. 01-2315 Jones v. Commissioner of Soc. Sec. 9
evidence. More specifically, Ms. Jones contends that the ALJ
should not have disregarded her testimony and presented the
VE with a hypothetical based on his own assessment, since in
her opinion, her testimony was consistent with the analysis of
the various mental health professionals that saw her. Had the
ALJ credited Ms. Jones’s testimony, she would have been,
according to the VE’s testimony at the ALJ’s hearing,
incapable of holding a job and would, therefore, be
considered disabled pursuant to the Act. In addition, Ms.
Jones contends that the ALJ improperly disregarded Dr.
Kriauciunias’s conclusion that she could not maintain regular
attendance, which would also preclude her from working. We
first deal with the issue of whether the ALJ’s determination
of Ms. Jones’s credibility was supported by substantial
evidence.
There is no question that subjective complaints of a
claimant can support a claim for disability, if there is also
objective medical evidence of an underlying medical
condition in the record. See Young v. Secretary of Health &
Human Servs., 925 F.2d 146, 150-51 (6th Cir. 1990); Duncan
v. Secretary of Health & Human Servs., 801 F.2d 847, 852
(6th Cir. 1986). The doctors in this case diagnosed Ms. Jones
with various disorders, medicated her for those disorders, and
have therefore supplied the requisite objective medical
condition to support Ms. Jones’s claim for disability.
Nevertheless, an ALJ is not required to accept a claimant’s
subjective complaints and may properly consider the
credibility of a claimant when making a determination of
disability. See Walters v. Commissioner of Social Sec., 127
F.3d 525, 531 (6th Cir. 1997) (citing Kirk v. Secretary of
Health & Human Servs., 667 F.2d 524, 538 (6th Cir. 1981)).
In addition, the ALJ 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. See Townsend v.
Secretary of Health & Human Servs., 762 F.2d 40, 44 (6th
Cir. 1985). See also Blacha v. Secretary of Health & Human
Servs., 927 F.2d 228, 231 (6th Cir. 1990) (holding that the
ALJ had an adequate basis to discount Mr. Blacha’s
10 Jones v. Commissioner of Soc. Sec. No. 01-2315
credibility, where his behavior and the medical evidence was
inconsistent with the claimant’s testimony).
Here, the ALJ found that Ms. Jones was not credible in
light of the observations made by her own treating physician,
the psychologists that separately evaluated her, and various
inconsistencies in her own statements. Upon review, we are
to accord the ALJ’s determinations of credibility great weight
and deference particularly since the ALJ has the opportunity,
which we do not, of observing a witness’s demeanor while
testifying. Walters, 127 F.3d at 528 (citations omitted).
Therefore, we are limited to evaluating whether or not the
ALJ’s explanations for partially discrediting Ms. Jones are
reasonable and supported by substantial evidence in the
record.
The ALJ first found that Ms. Jones’s symptoms were not as
severe as she suggested in her testimony. Dr. Burgoyne’s
reports support this finding, since he did not find her
symptoms or her disorder to be severe and even noted in one
of his reports that her complaints were “less than credible.”
Additionally, in Dr. Burgoyne’s original assessment on
December 11, 1999, he reported that Ms. Jones’s appearance
did “not reflect the depression and anxiety that she
complain[ed] of.” Furthermore, Dr. Kriauciunias found that
Ms. Jones was “[n]ot significantly limited for simple, low-
stress unskilled work.” On several occasions, the mental
health professionals who spent time with Ms. Jones noted that
she was pleasant and had a normal appearance. Berrisford’s
notes from her therapy sessions with Ms. Jones provide the
best support for Ms. Jones’s testimony, in that they verify that
she would have crying spells and was not always cooperative
and pleasant. However, the ALJ did not dispute that Ms.
Jones has the disorders she has been diagnosed with, only the
severity of her symptoms, which he viewed as being in
contradiction with the observations made by the medical
personnel who evaluated her.

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No. 01-2315 Jones v. Commissioner of Soc. Sec. 11
2On November 6 , 199 9, the initial report filled out b y the clinic
reflects Ms. Jone s’s stateme nt that she had “applied for 1 5 jobs and will
not go d ue to her anxiety and depression.” Dr. Burgoyne’s report of
December 11, 1999, states that Ms. Jones informed him that she had to
leave “seven or more jo bs since August of 1999 .” Dr. Gorwell’s report
from March 28, 2000, states that Ms. Jones reported having “gotten about
20 jobs” in which she “just walked out.” Dr. Gorwell’s report, which the
ALJ determined to be in conflict with these previous statements, was
filled out over three and a half months after Dr. Burgoyne’s report, and
thus it is not impossible that M s. Jones’s statements are consistent, if, for
example, she secured a number of jo bs during that time period. In fact,
it may be that Ms. Jones was consolidating in her answer to Dr. Go rwell
those jobs that she applied for and did not go to, with those jobs that she
had started and left, and that this “discrepancy” is a misunderstanding.
Nevertheless, Ms. Jones does not argue on appeal that these seemingly
inconsistent statements are reconcilable. Instead she argues that these
inconsistencies are part of her disab ility. We do not see how this is
helpful to her p osition.
The ALJ’s credibility determination with respect to Ms.
Jones’s testimony regarding her unsuccessful efforts to obtain
work is also reasonable. The ALJ explained in his written
order that he found it likely that Ms. Jones, had she been
telling the truth about having left so many jobs as a result of
crying spells and panic attacks, would have discussed such
events with Berrisford, in whose reports such events were
notably lacking. Furthermore, the ALJ relied on the fact that
there were several discrepancies in Ms. Jones’s testimony
regarding the number of job attempts made. Although the
discrepancies are potentially reconcilable,2 Ms. Jones does
not argue this on appeal and the ALJ’s conclusions appear to
be reasonable.
Finally, the ALJ disregarded only one conclusion made by
a medical professional, and that is Dr. Kriauciunias’s
assessment that Ms. Jones was moderately limited in her
ability to maintain regular attendance. A treating physician’s
opinion is normally entitled to substantial deference, but the
ALJ is not bound by that opinion. See Shelman v. Heckler,
821 F.2d 316, 321 (6th Cir. 1987). The treating physician’s
opinion must be supported by sufficient medical data. See
12 Jones v. Commissioner of Soc. Sec. No. 01-2315
Harris v. Heckler, 756 F.2d 431, 435 (6th Cir. 1985). If the
treating physician’s opinion is not supported by objective
medical evidence, the ALJ is entitled to discredit the opinion
as long as he sets forth a reasoned basis for her rejection. See
Shelman, 821 F.2d at 321. Here, we are dealing with a
reviewing physician’s opinion, which is due, if anything, less
deference than the treating physician’s opinion and thus the
same standard may be applied. There was no objective
medical evidence supporting Dr. Kriauciunias’s assessment
that Ms. Jones was limited in her ability to maintain regular
attendance and the ALJ discredited his opinion by carefully
reasoning that since it was undisputed that Ms. Jones was able
to take her daughter to school each morning and pick her up
each afternoon, she was capable of maintaining a regular
schedule. The ALJ’s determination was, therefore, reasonable
and supported by the evidence.
The district court focused in its brief ruling from the bench
on Ms. Jones’s testimony regarding her crying spells, and
found that since the ALJ did not explain “why [Ms. Jones]
was totally disbelieved about the crying spells[,] . . . the
evidence militates toward supporting [Ms. Jones’s] position.”
This analysis is troublesome in two respects. First, as noted
above, the ALJ did not in fact “disbelieve” Ms. Jones’s
testimony entirely as to her crying spells; he only disputed the
severity of her symptoms. Furthermore, the ALJ articulated
his reasons for rejecting Ms. Jones’s testimony in some detail.
Second, the substantial deference accorded the ALJ’s findings
of credibility, and the standard of review for the
Commissioner’s findings of fact pursuant to 42 U.S.C.
§ 405(g), militate in favor of upholding the Commissioner’s
decision even if the district court would have viewed the
evidence differently. As noted above, the Commissioner’s
decision cannot be overturned if substantial evidence, or even
a preponderance of the evidence, supports the claimant’s
position, so long as substantial evidence also supports the
conclusion reached by the ALJ. In this case there was more
than enough evidence to support the ALJ’s finding.

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No. 01-2315 Jones v. Commissioner of Soc. Sec. 13
In sum, it was entirely proper for the ALJ to present the
vocational expert with the hypothetical he constructed, which
did not reflect Ms. Jones’s complaints, including the constant
crying spells, since the hypothetical was supported by
substantial evidence in the record. We therefore affirm the
Commissioner’s final decision.
New Evidence
In this appeal, Ms. Jones proffers new evidence of her
deteriorating mental state, including a letter from her sister
dated September 24, 2001, and records from a counseling
service dated October 17, 2001, in support of her claim.
However, this information comes over a year after the ALJ’s
denial of benefits and several months after the district court’s
reversal and award of benefits, and cannot, therefore, be
considered by this court on review. See Wyatt v. Secretary of
Health & Human Servs., 974 F.2d 680, 685 (6th Cir. 1992)
(holding that this court is “confined to review evidence that
was available to the [ALJ], and to determine whether the
decision of the [ALJ] is supported by substantial evidence.”).
As we have noted previously, “[e]vidence of a subsequent
deterioration or change in condition after the administrative
hearing is deemed immaterial.” Ibid.
The records included in the Appellee’s brief from New
Passages, a psychiatric clinic, reflect that Ms. Jones has
“impaired insight and judgment,” and that her general
appearance and behavior was “[a]lert, un-groomed,
cooperative, but anxious and nervous at times, crying, and
also occasionally inattentive to direct questions.” The clinic
assigned her a GAF score of 40. These observations are
inconsistent with the medical evidence that was presented to
the ALJ in this case and could suggest that Ms. Jones’s
condition has deteriorated. Although this evidence cannot be
considered by us for the aforementioned reasons, Ms. Jones
has available the option of filing a new claim based on a
different period of disability than the one considered here.
14 Jones v. Commissioner of Soc. Sec. No. 01-2315
III
For the reasons given above, we REVERSE the district
court’s judgment.

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