Kimberly White v. Commissioner Social Security A

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 09a0245p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_________________

X

-

KIMBERLY A. WHITE,

-

Plaintiff-Appellant,

-

-

No. 08-2292

v.

,

>

-

Defendant-Appellee. -

COMMISSIONER OF SOCIAL SECURITY,

-

N

Appeal from the United States District Court

for the Eastern District of Michigan at Detroit.

No. 07-13489—Nancy G. Edmunds, District Judge.

Submitted: June 17, 2009

Decided and Filed: July 13, 2009

*

Before: GILMAN and McKEAGUE, Circuit Judges; GRAHAM, District Judge.

_________________

COUNSEL

ON BRIEF: Marcie E. Goldbloom, DALEY, DeBOFSKY & BRYANT, Chicago,

Illinois, for Appellant. James B. Geren, SOCIAL SECURITY ADMINISTRATION,

OFFICE OF THE GENERAL COUNSEL, Chicago, Illinois, for Appellee.

_________________

OPINION

_________________

RONALD LEE GILMAN, Circuit Judge. Kimberley A. White sought disability

insurance benefits under Title II of the Social Security Act (SSA), claiming that her

bipolar disorder and severe depression have rendered her unable to work. An

Administrative Law Judge (ALJ) determined that White was entitled to disability

*

The Honorable James L. Graham, Senior United States District Judge for the Southern District

of Ohio, sitting by designation.

1

No. 08-2292 White v. Comm’r of Soc. Sec. Page 2

benefits for only a limited period of time between 2002 and 2004. The district court

affirmed the ALJ’s determination on appeal. For the reasons set forth below, we

AFFIRM the judgment of the district court.

I. BACKGROUND

A. Factual background

White’s claim for Social Security disability benefits originally alleged that White

was unable to work due to both physical and mental disabilities. Her appeal, however,

pertains exclusively to the ALJ’s finding that she was not disabled due to mental

impairments either before November 4, 2002 or after July 22, 2004. White’s alleged

physical impairments are thus omitted from the discussion that follows.

1. Mental-health history before November 4, 2002

The first medical documents in the record reflecting White’s mental impairments

come from Dr. Edward Merkel, an obstetrician and gynecologist who examined White

after she had a child in October 1998. Shortly after giving birth, White reported

problems with her sleep, mood, and appetite. In December 1998, White reported that

she had good days and bad days, and that she believed she had postpartum depression.

But Dr. Merkel thought that her symptoms did not support White’s self-diagnosis.

Instead, Dr. Merkel opined that White had “the blues.” Many months later, in October

1999, White reported that she had lost her job and that her boyfriend had both physically

and verbally abused her. The doctor’s notes from February 2000 indicate that

counseling appointments were arranged to help White deal with her psychosocial family

problems.

In March 2000, White reported to Dr. Merkel that she had trouble sleeping, was

always tired, found “no joy in anything,” and was agitated. White said that her

boyfriend continued to be verbally abusive and that she was unable to leave her noxious

home environment because she could not support herself or obtain adequate housing.

Dr. Merkel’s notes reflect that White had “Depression – Psychosocial Family Problems,”

and that he prescribed her a sleep aid as well as Zoloft (an antidepressant). White

No. 08-2292 White v. Comm’r of Soc. Sec. Page 3

declined the sleep aid, however, because she did not want to be sleepy around her

abusive boyfriend. She subsequently reported that her mood improved on Zoloft, but

that the drug wore off by dinner time.

In May 2000, White reported that she was living with her parents and that there

was significant tension in her home life, but that her boyfriend was improving his ability

to control his temper and substance abuse. She was diagnosed with Psychosocial Family

Problems as well as depression. Her Zoloft prescription was renewed.

White told Dr. Merkel in July 2000 that she had stopped taking Zoloft after her

mood and social situation had improved. An August 2000 progress report, however,

noted that her Zoloft prescription had been refilled. Her dosage was later increased in

September 2000. White continued to complain about stress in January 2001 and told Dr.

Merkel that she was engaged in a custody battle over her daughter.

In addition to the preceding treatment records from Dr. Merkel, the record

contains documents from White’s family physician, Dr. David Margolis. One such

report shows that Dr. Margolis prescribed Paxil (an antidepressant) for White in

February 2001 and noted that White showed signs of anxiety. Dr. Margolis’s notes from

March, April, and May 2001 all reflect that White complained of depression. In August

2001, White told Dr. Margolis that she was concerned that she was unable to control her

anxiety disorder with the medications that had been prescribed for her. Dr. Margolis

advised her to pursue psychiatric evaluation and counseling. None of the documents

from this time period indicate that White was unable to function due to her depression.

Despite being advised to undergo a psychiatric examination several times up to

and including August 2001, the record indicates that White did not actually obtain such

an evaluation until November of that year. In that month, White began to attend

psychiatric treatment sessions at a behavioral healthcare center called Hegira Programs.

White was recommended for admission to traditional outpatient services and was

diagnosed as having major depressive disorder. One of her treating physicians

considered bipolar disorder as another possible diagnosis. The attending Hegira

Programs physician noted during White’s initial visit that she was tearful during the

No. 08-2292 White v. Comm’r of Soc. Sec. Page 4

session, had poor sleep, had gained approximately 60 pounds in the last year, admitted

to mood swings, had poor anger management, and had poor self-worth. White was

evaluated using the so-called Global Assessment of Functioning (GAF) test, receiving

a score of between 45 and 50.

GAF examinations measure psychological, social, and occupational functioning

on a continuum of mental-health status from 0 to 100, with lower scores indicating more

severe mental limitations. The United States District Court for the Eastern District of

Michigan has usefully described a GAF score as

a subjective determination that represents the clinician’s judgment of the

individual’s overall level of functioning. It ranges from 100 (superior

functioning) to 1 (persistent danger of severely hurting self or others,

persistent inability to maintain minimal personal hygiene, or serious

suicidal act with clear expectation of death). A GAF score of 31-40

indicates some impairment in reality testing or communication (e.g.,

speech is at times illogical, obscure, or irrelevant) or major impairment

in several areas such as work or school, family relations, judgment,

thinking or mood. A GAF of 41 to 50 means that the patient has serious

symptoms . . . OR any serious impairment in social, occupational, or

school functioning (e.g., no friends, unable to keep a job). A GAF rating

of 51 to 60 signals the existence of moderate difficulty in social or

occupational functioning.

Edwards v. Barnhart, 383 F. Supp. 2d 920, 924 n.1 (E.D. Mich. 2005) (citations,

brackets, and quotation marks omitted).

White underwent five further sessions at Hegira Programs in which physicians

noted depression, sleep disturbance, a flat affect, and tearfulness. Therapist notes from

November 28, 2001 also state that White had shown “some improvement,” had a

“brighter affect,” and expressed a willingness to let go of her “using” boyfriend. But the

notes continued to reflect ongoing depression and sleep disturbance.

White sought further psychiatric help and underwent an evaluation at Hegira

Programs in December 2001. A worksheet from that month shows that White was

anxious and depressed and that she had problems sleeping. The same form states that

she had a “moderate limitation” on functioning. But the report also says that her

No. 08-2292 White v. Comm’r of Soc. Sec. Page 5

memory was good, her psychomotor ability was only “minimally” limited, and that her

mood only minimally limited her overall functioning. White was diagnosed with major

depressive disorder and once again received a GAF score of between 45 and 50.

During her next therapy session later that month, White was tearful, depressed,

and had not refilled her prescription (the record does not identify the prescription that

she failed to refill at the time). The therapist concluded that White was making little

progress because she did not want to end her codependent relationship (presumably with

her boyfriend).

In January 2002, a psychiatrist at Hegira Programs noted that White was not

experiencing any adverse side effects from certain medications that she had been

prescribed, but that she was not feeling any better either. White was prescribed another

antidepressant to improve her sleep. In February 2002, White was discharged from

Hegira Programs with a diagnosis of major depressive disorder and was assigned a GAF

score of 37. The discharge report states that White had made little progress and had not

complied with instructions regarding her medications. A document from the Cherry Hill

Internal Medical Associates indicates that, as of May 2002, her medications generally

were not working well, but that Paxil worked better than the others. Her depression was,

however, under “moderate control.”

2. Mental-health history between November 4, 2002 and July 22, 2004

White began treatment at St. John Health System’s Eastwood Clinic beginning

on November 4, 2002. She reported having symptoms of depression since she was a

teenager, including feelings of helplessness, hopelessness, guilt, disturbed sleep, fatigue,

and exhaustion. White reported that her symptoms were exacerbated when she moved

back in with her boyfriend and that she returned to reside with her mother after living

with him for only a month. (The record does not state when White returned to live with

her boyfriend.) White reported episodes of anxiety, irritability, insomnia, and good days

of normal functioning, but also bad days with extreme difficulty getting out of bed and

problems motivating herself to care for her daughter.

No. 08-2292 White v. Comm’r of Soc. Sec. Page 6

A November 21, 2002 report reflects that White was feeling better even though

she had not been sleeping well. Another report from December 2002 states that White

“has applied to [a] couple places for jobs. Making good progress.” That same month,

however, White was diagnosed with bipolar disorder. By mid-January 2003, White said

that she had enrolled in a school to complete her General Equivalency Diploma (GED)

and had applied for a job. She nevertheless still had bouts of depression as well as

vomiting and diarrhea from her medication.

Notes from her Eastwood Clinic therapist from late January 2003 show that

White was once again very upset and tearful throughout the session. In February 2003,

White reported trouble sleeping. But White had improved mood stability later that

February. She also agreed with the bipolar disorder diagnosis, stating that she has had

lifelong problems with mood instability, insomnia, and impulsiveness. Even though her

mood had stabilized on a new medication, White still had sleep difficulties and admitted

to suicidal ideation on her “bad days.” In April 2003, White appeared cheerful and more

energetic, explaining that she had been going to school to complete her GED and that

she had gone on a “first date.”

By May 2003, however, notes from an Eastwood Clinic therapist reported that

White was feeling down, tired, and sad, and that she was having crying spells. The

treating therapist opined that White might be going through another depressive episode.

White was very depressed, extremely emotional, and tearful during the May 2003

therapy session. Her therapist opined that White appeared very tired, had a significant

disturbance in her activities of daily living, and had another depressive episode. A later

May 2003 therapy session report shows that White was feeling depressed, was tearful,

felt very empty, and that her life was very stressful.

White visited Preeti Venkataraman, M.D., a psychiatrist who was not a staff

member at the Eastwood Clinic, near the end of May 2003. Dr. Venkataraman

concurred with the diagnosis of bipolar disorder and depression and assigned White a

GAF score of between 40 and 50. In July 2003, Dr. Venkataraman restated these

conclusions. White’s GAF score was 50 in August 2003. In September 2003, White had

No. 08-2292 White v. Comm’r of Soc. Sec. Page 7

high anxiety, rigid thinking, and her treating therapist recognized her behavior and belief

system as problematic. White also reported anxiety in October 2003 and was assigned

a GAF score of 45, but said that she was having up to three good days a week.

Basivi Baddigam, M.D., also a psychiatrist, examined White in October 2003 on

behalf of the Michigan state agency charged with evaluating White’s claim for Social

Security benefits. Dr. Baddigam noted that White described having episodes of mania

and depression and mood swings for 10 years. White reported that her manic episodes

typically lasted for one to two days, and her depressive episodes lasted from a few days

to a month. She also recounted that, during her depressive episodes, she was not able

to get out of bed, take care of her basic needs, or socialize, and that she felt exhausted

and cried a lot. White was again diagnosed with bipolar disorder and assigned a GAF

score of 50. Later that October, White’s status was reported as stable and her GAF was

evaluated at 45.

A psychiatrist who worked for the Social Security Administration’s state agency,

H.C. Tien, reviewed White’s claim file in November 2003. Dr. Tien completed a

Psychiatric Review Technique form reflecting that White was mildly limited with regard

to activities of daily living, that she had mild difficulties in maintaining social

functioning, and that she had moderate difficulties in maintaining concentration,

persistence, or pace. White’s file also showed, according to Dr. Tien, that she was

moderately limited in her ability to carry out detailed instructions, maintain attention and

concentration for extended periods, set realistic goals, or make plans independently of

others. Dr. Tien concluded that White was capable of performing a wide range of

simple, unskilled tasks in a regular work environment.

A medication-review form from January 2004 notes that White’s status was

stable, her GAF was assessed between 40 and 50, and that sleep was still a problem.

An Eastwood Clinic progress report from later that month shows that White reported

poor sleep and that she was afraid of her ex-boyfriend. In February 2004, White’s status

was improving and her mood was better, but her GAF was still set between 40 and 50,

she still had sleep problems, and she reported problems “coping.”

No. 08-2292 White v. Comm’r of Soc. Sec. Page 8

In March 2004, White’s symptoms included psychomotor retardation. She said

that she was not doing well, and her counselor encouraged her to write when she felt

paralyzed. Her mood was stable and her GAF was rated by Dr. Venkataraman as

between 45 and 55. In April 2004, White reported feeling overwhelmed.

Treatment notes from May 2004 indicate that White’s status was improving.

They also show, however, that White reported struggles with day-to-day functioning.

Another set of May 2004 treatment notes state that White had increased motivation for

intimacy and felt ready to date. But later that May White reported again feeling

overwhelmed.

On July 1, 2004, Dr. Venkataraman filled out a worksheet for White, which

purportedly described White’s ability (or inability) to work. Dr. Venkataraman opined

that White had poor to no ability to deal with the public, deal with work stresses,

function independently, maintain attention and concentration, deal with changes in a

routine work setting, or understand, remember, and carry out complex and detailed job

instructions. The same document defines “poor” as “[n]o useful ability to function in

this area.” But Dr. Venkataraman also concluded that White had a “fair” ability to

follow work rules, relate to coworkers, use judgment, interact with supervisors,

understand, remember, and carry out simple job instructions, maintain personal

appearance, behave in an emotionally stable manner, relate predictably in social

situations, and demonstrate reliability. A “fair” ability is defined in the form as the

ability to function that is “seriously limited, but not precluded.”

Dr. Venkataraman filled out an “Affective Disorders Assessment” form on the

same date, which concluded that White suffered from sleep disturbance, decreased

energy, difficulty concentrating or thinking, easy distractibility, and paranoid thinking.

The form further opined that White had “marked restrictions” on activities of daily living

and difficulty maintaining social functioning, extreme difficulty maintaining

“concentration, persistence, or pace, and four or more episodes of decompensation.”

“Marked restrictions,” according to the form, are impairments that seriously interfere

with the ability to function independently, appropriately, and effectively (up to 75% of

No. 08-2292 White v. Comm’r of Soc. Sec. Page 9

the time). Although the form included sections for comments or elaboration, the doctor

left those portions blank. On July 22, 2004, Dr. Venkataraman noted that White had

shown improvement, but still considered her to have a GAF of between 40 and 50.

3. Mental-health history after July 22, 2004

Therapist notes from August 2004 describe White as being “overwhelmed,” but

also said that she was “doing better [living in her mother’s] basement.” In September

2004, White was described by a therapist as “underfunctioning.” White also stated that

anything beyond the most basic things she does is “too much for her.”

Dr. Venkataraman reported that White’s status was deteriorating and that her

GAF remained at 50 as of September 2004. In October of the same year, a therapist

noted that White was continuing to “assert herself about [her] disability claim” and that

she was unmotivated to get out of her bed except to care for herself and her animals.

The same therapist notes state that she “is making progress.”

In November 2004, White said that other people were asking too much of her.

White’s status was described as “critical” (a designation that is not explained in the

record) and she was found to be focused “on the negative aspects of her circumstances.”

Also in November 2004, Dr. Venkataraman reported White’s condition as “stable” and

that she had a GAF of 50 at that time. Therapy notes from December 2004 said that

White, although continuing to have difficulty with her mood, was “doing well.”

B. Procedural background

White was 27 years old when she applied for disability insurance and

Supplemental Security Income benefits in June 2003. She claimed to be disabled as of

December 15, 1999 due to bipolar disorder and severe depression. Her application was

initially denied, and White requested an administrative hearing in response to the denial.

At the hearing, the ALJ evaluated White’s personal testimony as well as that of

vocational expert (VE) James Fuller.

No. 08-2292 White v. Comm’r of Soc. Sec. Page 10

White testified that she has a GED. As for her work history, she reported that her

most recent job lasting more than three months involved both shipping and receptionist

duties, adding that the position required her to lift up to 50 pounds occasionally, 20

pounds frequently, and to walk or stand on a constant basis. She stated that the last time

she had worked was during a two-week stint at a pharmacy in 2000. Before the

pharmacy job, she had worked at Target stocking shelves and cashiering for a total of

two months.

White attributed her inability to work more than a few weeks at a time to anxiety,

sleeplessness, and depression. She added that, before her work as a Target stock clerk,

she had worked briefly as a receptionist, a sales clerk, and as a warehouse worker.

White quit the warehousing position to work at Target for “better hours.” She was

discharged from Target after exhibiting symptoms of anxiety and depression. White

testified that, during her stint as a warehouse worker, she missed work because of

depression. She admitted, however, that she was still capable of gainful employment

when she quit.

White said that she first sought mental health treatment in the summer of 2000.

She reported that a psychiatrist initially diagnosed her as having a compulsive disorder,

but that she was rediagnosed because the prescribed medication failed to improve her

condition. White stated that she was subsequently prescribed Paxil by Dr. Margolis.

She began psychiatric treatment at the Eastwood Clinic in 2002. White explained that

her condition was marked by lethargy, racing thoughts, anxiety, agitation, and the

inability to focus. She alleged that her condition had worsened since 2000 due to

medication changes, noting that her “bad” days outnumbered the “good” ones. White

said that Cerapro eased her symptoms of paranoia and that Propanol helped her control

the “jitters.” She reported that, in addition to her mental conditions, she suffered from

endometriosis that required yearly surgery. White admitted that on her good days she

was able to function, but doubted that she could both work and take care of her

school-age daughter.

No. 08-2292 White v. Comm’r of Soc. Sec. Page 11

VE Fuller also testified during the hearing. He was asked to opine on the

availability of jobs for someone sharing White’s basic characteristics and functional

limitations. To that end, the ALJ posed the following hypothetical question:

Assume . . . that our hypothetical Claimant needs work that is in a

relatively clean setting, she needs a low stress environmental and I am

defining low stress as one where there is no requirement to work with the

general public, nor in close contact with co-workers. Our hypothetical

Claimant also needs simple repetitive type work or [sic] because of a

moderate limitation in their ability to maintain attention and

concentration due to mental impairment. There is moderate limitation in

their ability to understand and then to carry out detailed instruction due

to a mental impairment. If you assume that, what jobs would our

hypothetical Claimant be vocationally qualified to perform?

The VE opined that a person with the above limitations could perform “a limited

number” of light, unskilled assembling, packaging, and inspection jobs, finding that

2,000 jobs for each position existed in the regional economy. He found that

approximately 500 additional positions existed for each job listing at the sedentary

exertional level and an addition 500 at the medium level, adding that he limited his

findings to unskilled work based on the hypothetical’s limitation of “simple repetitive

work.” But the VE also said that if the hypothetical individual had “poor or no ability

to deal with work stresses, maintain attention and concentration, and function

independently,” all gainful employment would be precluded.

In light of White’s medical records and the testimony provided at the hearing, the

ALJ found that, although White’s conditions of bipolar disorder and depression (along

with other conditions not relevant to this appeal) were severe impairments based on the

regulations contained in 20 C.F.R. § 404.1520(c), none of them were considered to be

disabilities per se pursuant to the Commissioner’s regulations. This finding required the

ALJ to consider whether White could perform work that she had done in the past. The

ALJ determined that White could not do so. Nevertheless, the ALJ found that White

retained the following residual functional capacity (RFC) from December 15, 1999 to

November 4, 2002, and since July 22, 2004:

No. 08-2292 White v. Comm’r of Soc. Sec. Page 12

[L]ight exertional work in a relatively clean environment in a low stress

setting. Low stress setting means no work with the general public or in

close contact with co-workers. The work must be unskilled to allow for

moderate limitations in an ability to maintain concentration for extended

periods and to carry out detailed instructions due to pain and depression.

Despite this finding, the ALJ found that White was disabled from November 4, 2002 to

July 22, 2004. The ALJ observed that, during this period, White experienced “marked

restrictions.” But the ALJ found that, before and after the closed period of disability,

White was capable of a limited range of light work, including the jobs of assembler,

packager, and visual inspector.

The ALJ also determined that White’s allegations of ongoing disability were “not

fully credible,” finding that, despite the presence of a mental impairment, “the medical

record only shows that it was severe for [a] closed period of time before it responded

well to psychotropic medications and therapy.” Noting the November 2003 Mental

Residual Functional Capacity Assessment finding by Dr. Tien that White could perform

“simple, unskilled work,” the ALJ determined nonetheless that treating records

supported her determination of the closed period of disability.

White requested that the Social Security Appeals Council review the adverse

portion of the ALJ’s decision. After the Appeals Council affirmed the ALJ’s ruling,

White filed a civil action against the Commissioner in federal district court, seeking

judicial review of the ALJ’s decision. The Commissioner filed a motion for summary

judgment, which was assigned to a magistrate judge for study. In his Report and

Recommendation (R&R), the magistrate judge concluded that the ALJ reasonably found

that White’s psychological problems were exacerbated by interpersonal conflicts and

housing arrangements before the closed period and that her condition had improved after

that period. The magistrate judge also found that the ALJ was entitled to reject the

opinion of White’s treating physician Dr. Venkataraman on the basis that it “stood at

odds with therapy notes as well as other portions of the record.” Moreover, the

magistrate judge determined that the ALJ’s adverse credibility determination was not

patently wrong, and that “the hypothetical question to the VE properly accounted for all

No. 08-2292 White v. Comm’r of Soc. Sec. Page 13

of White’s mental deficiencies.” The district court adopted the magistrate judge’s R&R

in July 2008. This timely appeal followed.

II. ANALYSIS

A. Standard of review and legal framework

We exercise de novo review of district court decisions in Social Security cases.

Valley v. Comm’r of Soc. Sec., 427 F.3d 388, 390 (6th Cir. 2005). The Commissioner’s

conclusions must be affirmed absent a determination that the ALJ failed to apply the

correct legal standards or made findings of fact unsupported by substantial evidence in

the record. 42 U.S.C. § 405(g); see also Preslar v. Sec’y of Health & Human Servs.,

14 F.3d 1107, 1110 (6th Cir. 1994) (“We will affirm the Secretary’s decision to deny

benefits as long as the Secretary applied correct legal standards in reaching the decision,

and as long as the Secretary’s findings of fact are supported by substantial evidence.”).

Substantial evidence is “such relevant evidence as a reasonable mind might accept as

adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971)

(citation omitted).

This means that administrative findings

are not subject to reversal merely because substantial evidence exists in

the record to support a different conclusion. The substantial evidence

standard presupposes that there is a “zone of choice” within which the

Secretary may proceed without interference from the courts. If the

[administrative] decision is supported by substantial evidence, a

reviewing court must affirm.

Felisky v. Bowen, 35 F.3d 1027, 1035 (6th Cir. 1994) (citations omitted). “Even if

supported by substantial evidence, however, a decision of the Commissioner will not be

upheld where the [Social Security Administration] fails to follow its own regulations and

where that error prejudices a claimant on the merits or deprives the claimant of a

substantial right.” Bowen v. Comm’r of Soc. Sec., 478 F.3d 742, 746 (6th Cir. 2006).

To receive disability benefits under the SSA, an applicant must be “disabled”

within the meaning of the Act. Individuals are “disabled” under the SSA if they are

No. 08-2292 White v. Comm’r of Soc. Sec. Page 14

“unable 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

twelve months.” 42 U.S.C. § 1382c(a)(3)(A).

Moreover,

an individual shall be determined to be under a disability only if his

physical or mental impairment or impairments are of such severity that

he is not only unable to do his previous work but cannot, considering his

age, education, and work experience, engage in any other kind of

substantial gainful work which exists in the national economy, regardless

of whether such work exists in the immediate area in which he lives, or

whether a specific job vacancy exists for him, or whether he would be

hired if he applied for work.

42 U.S.C. § 1382c(a)(3)(B).

The preceding statutory requirements have been distilled into a regulatory

framework that sets forth a five-step sequential analysis used to determine whether a

particular applicant for disability benefits is indeed “disabled.” This court has

summarized the framework as follows:

The claimant must first show that she is not engaged in substantial

gainful activity. Next, the claimant must demonstrate that she has a

“severe impairment.” A finding of “disabled” will be made at the third

step if the claimant can then demonstrate that her impairment meets the

durational requirement and “meets or equals a listed impairment.” If the

impairment does not meet or equal a listed impairment, the fourth step

requires the claimant to prove that she is incapable of performing work

that she has done in the past. Finally, if the claimant’s impairment is so

severe as to preclude the performance of past work, then other factors,

including age, education, past work experience, and residual functional

capacity, must be considered to determine if other work can be

performed. The burden shifts to the Commissioner at this fifth step to

establish the claimant’s ability to do other work.

Foster v. Halter, 279 F.3d 348, 354 (6th Cir. 2001); see also 20 C.F.R.

§ 404.1520(a)(4)(i)–(v).

No. 08-2292 White v. Comm’r of Soc. Sec. Page 15

In addition to the five-step analysis outlined in 20 C.F.R. § 404.1520, the

Commissioner has promulgated regulations governing evaluations of the severity of

mental impairments. See Kohler v. Astrue, 546 F.3d 260, 265 (2d Cir. 2008) (citing

20 C.F.R. § 404.1520). “These regulations require application of a ‘special technique’

at the second and third steps of the five-step framework.” Id. (citations omitted).

Because White does not contend on appeal that the ALJ failed to properly apply the

special technique, however, further elaboration of these regulations is unnecessary.

B. Disability finding

The ALJ determined that White’s bipolar disorder and depression were so severe

that they rendered her disabled between November 4, 2002 and July 22, 2004. But the

ALJ found that White was able to work and was therefore not disabled either before or

after those dates. White contests the adverse aspects of the ALJ’s decision.

1. The ALJ’s finding that White was not disabled prior to

November 4, 2002 is supported by substantial evidence

White maintains that the ALJ’s determination that she could work prior to

November 4, 2002 is not supported by substantial evidence. The overall thrust of her

argument is that there is no material difference between the severity of her mental

impairments before November 4, 2002 and the time during the “closed period” when

White was deemed disabled. If she was disabled during the closed period due to her

bipolar disorder and depression, White contends, she must have been disabled before

November 4, 2002. The ALJ’s finding to the contrary, White argues, is thus erroneous.

But we are not persuaded by White’s argument that there is no material

difference in the record before and after November 4, 2002. The difference is subtle, but

it exists. Prior to November 4, 2002, there is little indication that White’s mental

impairments, even though severe, rendered her unable to engage in substantial gainful

activities. White indeed mentioned feeling depressed and sleepless during this earlier

period of time. But her treating counselors and physicians also noted, for example, that

her intellectual functioning was average, her memory was normal, and that she had fair

judgment and insight and good impulse control. Another treatment note from this time

No. 08-2292 White v. Comm’r of Soc. Sec. Page 16

period states that her memory was “good,” that she had “adequate” judgment, and that

her ability to concentrate was only moderately impaired. Moreover, her psychomotor

activities were considered only “minimally” limited.

This is all notably better than her mental condition during the closed period.

Treatment records from that time frame show that she suffered from “debilitating guilt,”

“significant psychomotor retardation,” and “[s]ignificant disturbance of or changes in

patterns of sleep, appetite, or activities in daily living.” White also reported feeling

“paralyzed” during the closed period, which marks another material difference from the

pre-November 4, 2002 time frame. A fair reading of the medical record from White’s

treating sources thus supports a finding that White had a severely limiting—but not

completely disabling—mental condition during the pre-November 4, 2002 time period.

The administrative record also exposes a significant and unexplained gap in

treatment between her withdrawal as a patient at Hegira Programs in May 2002 and the

commencement of treatment at the Eastwood Clinic in November 2002. We recognize

that ALJs must be careful not to assume that a patient’s failure to receive mental-health

treatment evidences a tranquil mental state. For some mental disorders, the very failure

to seek treatment is simply another symptom of the disorder itself. See Pate-Fires v.

Astrue, 564 F.3d 935, 945 (8th Cir. 2009) (listing cases recognizing that a mentally ill

person’s noncompliance with treatment “can be . . . the result of the mental impairment

itself and, therefore, neither willful nor without a justifiable excuse”) (citations, internal

quotation marks, and brackets omitted). But in this case there is no evidence in the

record explaining White’s failure to seek treatment during this half-year gap. A

“reasonable mind” might therefore find that the lack of treatment during the pre-

November 4, 2002 time frame indicated an alleviation of White’s symptoms. See

Richardson v. Perales, 402 U.S. 389, 401 (1971) (describing the substantial-evidence

standard) (citation omitted).

White nevertheless asserts several specific objections to the ALJ’s findings. She

accuses the ALJ of cherry picking treatment notes that paint her condition in a positive

light, while ignoring more troubling aspects, such as White’s repeated expression of

No. 08-2292 White v. Comm’r of Soc. Sec. Page 17

depression, her tearfulness, and her consistently low GAF scores. White also notes that

the ALJ’s no-disability finding presupposed an unsupported diagnosis of White’s

depression as “situational”—i.e., caused primarily by various personal problems as

opposed to her mental disorders.

This last objection is not wholly without merit. The ALJ should not have labeled

White’s depression during the pre-November 4, 2002 time frame as “situational”

because there is no basis in the record for concluding that White’s depression was

primarily caused by her personal problems as opposed to her mental disorders. See

S.S.R. 86-8 (“Reasonable inferences may be drawn, but presumptions, speculations and

suppositions should not be substituted for evidence.”) A person’s personal problems and

his or her mental disorders cannot always be so neatly disentangled. But the ALJ’s

inappropriate characterization of the causes of White’s condition is irrelevant because

the clinical records themselves, such as those describing White’s psychomotor abilities,

support the ALJ’s finding that White’s retained the ability to work before November 4,

2002.

This leaves White’s accusation of “cherry picking.” But we see little indication

that the ALJ improperly cherry picked evidence; the same process can be described more

neutrally as weighing the evidence. White has not persuasively shown that the ALJ

erred in conducting this difficult task.

2. The ALJ’s finding that White was not disabled after July 22, 2004

In addition to challenging the November 4, 2002 start date of the closed period,

White maintains that there is no substantial evidence supporting the ALJ’s determination

that her condition improved after July 22, 2004. She also argues that the ALJ failed to

properly consider the episodic nature of bipolar disorder and depression.

White’s first argument is without merit. Contrary to White’s view, we find

substantial evidence supporting the ALJ’s finding that White’s condition improved after

July 22, 2004. Notes from August through November 2004 showed signs of “progress”

and steady improvement. Indeed, there was evidence suggesting that White’s condition

No. 08-2292 White v. Comm’r of Soc. Sec. Page 18

was improving and stabilizing before July 22, 2004. Dr. Tien’s review of the record in

2003, for example, led him to conclude that White was able to perform certain kinds of

low-skilled work. Although Dr. Tien was a nontreating source, some of White’s treating

sources corroborated this finding. Among those was an Oakwood Hospital report from

February 2003, which showed that Trileptal improved White’s mood stability and was

making her less irritable. Other notes, although somewhat more equivocal, suggest that

White was doing better in July and October of the same year.

Perhaps most tellingly, Dr. Venkataraman—on whose opinion White heavily

relies—opined that as of July 1, 2004 White had a “fair” ability to follow work rules,

relate to coworkers, use judgment, interact with supervisors, understand, remember and

carry out simple job instructions, maintain personal appearance, behave in an

emotionally stable manner, relate predictably in social situations, and demonstrate

reliability. This suggests, if anything, that White’s upward trajectory began before

July 22, 2004. But the ALJ was nevertheless careful not to ascribe too much weight to

these early reports of improvement, presumably due to the episodic nature of White’s

disorder.

White responds by repeating her argument that the ALJ impermissibly cherry

picked data. She asserts that the ALJ ignored the fact that Dr. Venkataraman

continuously applied a low GAF score of between 40 and 50 to White both during and

after the closed period. Moreover, White claims that the ALJ failed to discuss evidence

of White’s condition after July 22, 2004, such as the notes from White’s therapy session

on August 4, 2004 that found that she was once again feeling “overwhelmed.” Two

other reports from September 2004 show that White was “underfunctioning, neg” and

that her status was deteriorating. In October 2004, White was unmotivated to get out of

bed except to care for her child and animals. White contends that this establishes an

overall pattern of decline in her mental state that the ALJ simply ignored.

The problem with White’s cherry picking argument, however, is that it cuts both

ways. She too cherry picks data. Although White correctly notes that she had some

“bad days” after July 22, 2004, she must also recognize that the ALJ gave her the benefit

No. 08-2292 White v. Comm’r of Soc. Sec. Page 19

of the doubt on certain “good days” that occurred during the closed period. More

importantly, substantial evidence supports the Commissioner’s position that these

“down” days after July 22, 2004 simply do not compare with the paralyzing nature of

the depression that White felt during the closed period. The argument that there is no

material difference between the time during the closed period and thereafter is therefore

without merit.

White’s frustration is nevertheless understandable. The dates that the ALJ chose

to mark the beginning and ending of the closed period—November 4, 2002 and July 22,

2004—do not neatly correspond to any “smoking gun” medical documents that

unequivocally explain why the ALJ chose those dates. On the other hand, the dates are

not so wholly arbitrary so as to carry the ALJ’s decision outside the “zone of choice”

that the ALJ possesses in rendering disability decisions. See Felisky v. Bowen, 35 F.3d

1027, 1035 (6th Cir. 1994) (citations omitted). We therefore conclude that the ALJ’s

finding that White had the residual functional capacity to work outside the closed period

is supported by substantial evidence.

C. Dr. Venkataraman’s medical opinion

White next focuses on Dr. Venkataraman’s undated affective-disorders

assessment, which opined that White had “marked” restrictions on daily living and social

functioning, as well as “extreme” difficulties “in maintaining concentration, persistence,

or pace.” Dr. Venkataraman also reported that White had experienced four or more

episodes of decompensation. The ALJ did not consider this assessment to be controlling

in evaluating White’s residual functional capacity.

White argues that the ALJ’s failure to do so violates the treating-physician rule.

This rule directs ALJs to given controlling weight to the medical opinion of a treating

physician if that opinion “is well-supported by medically acceptable clinical and

laboratory diagnostic techniques and is not inconsistent with the other substantial

evidence in your case record . . . .” 20 C.F.R. § 404.1527(d)(2). Opinions of treating

physicians are given great weight even if those opinions are deemed not to be

controlling. S.S.R. 96-2p. ALJs must articulate “good reasons” for not giving the

No. 08-2292 White v. Comm’r of Soc. Sec. Page 20

opinions of a treating physician controlling weight. 20 C.F.R. § 404.1527(d)(2). But

“the ultimate decision of disability rests with the administrative law judge.” Walker v.

Sec’y of Health and Human Servs., 980 F.2d 1066, 1070 (6th Cir. 1992).

The ALJ gave three basic reasons for not affording Dr. Venkataraman’s

affective-disorders assessment controlling weight. First, Dr. Venkataraman’s undated

assessment stands in tension with the doctor’s July 1, 2004 evaluation, which concluded

that White had a “fair” ability to follow work rules, relate to coworkers, use judgment,

interact with supervisors, understand, remember and carry out simple job instructions,

maintain personal appearance, behave in an emotionally stable manner, relate

predictably in social situations, and demonstrate reliability. The form defines “fair” as

an ability to function that is “seriously limited, but not precluded.” Contrary to the

affective-disorders assessment, the work-ability evaluation suggests that White had the

ability to engage in certain kinds of work, albeit severely limited.

The second reason for discounting Dr. Venkataraman’s affective-disorders

assessment is its lack of detail. Conclusory statements from physicians are properly

discounted by ALJs. Buxton v. Halter, 246 F.3d 762, 773 (6th Cir. 2001) (stating that

ALJs are “not bound by conclusory statements of doctors”). Dr. Venkataraman failed

to point to particular documents in White’s medical history supporting the doctor’s

conclusions. For example, although the assessment asserts that White had experienced

four episodes of decompensation, Dr. Venkataraman failed to describe the onset,

duration, or severity of even a single such episode. The fact that the assessment is

undated also harms White’s position because there is no way for the ALJ to know how

long Dr. Venkataraman had been treating White before the doctor rendered her

conclusion regarding White’s severely limited ability to work. This information might

have supported White’s claim that the ALJ’s finding was unjustified.

Finally, the ALJ discounted the assessment because it conflicted with other

evidence in the record that indicated White’s sustained improvement. The ALJ’s finding

in this regard is supported by substantial evidence for the reasons that have already been

discussed above in Part II.B. In light of the foregoing analysis, we find no error in the

No. 08-2292 White v. Comm’r of Soc. Sec. Page 21

ALJ’s proffered rationale for discounting Dr. Venkataraman’s assessment of White’s

ability to work.

In a final effort to undermine the ALJ’s decision to discount the views of Dr.

Venkataraman, White cites Bauer v. Astrue, 532 F.3d 606 (7th Cir. 2008). The Seventh

Circuit in Bauer chided the ALJ for disregarding the opinions of two of the plaintiff’s

treating physicians, both of whom had firmly concluded that the plaintiff’s mental

impairment was so severe that he could not hold down a full-time job. Id. at 608-09.

Bauer also noted that the ALJ apparently misunderstood the episodic nature of bipolar

disorder. Id.

But Bauer is readily distinguishable on at least two grounds. First, none of

White’s treating physicians have unequivocally opined, as they did in Bauer, that she

cannot hold a full-time job due to her mental impairments. See id. Nor is there any

indication that the ALJ ignored the episodic nature of White’s disorders. Indeed, as

noted earlier in Part II.B.2., the ALJ declined to cut off the closed period in 2003 even

though White had shown some signs of improvement during that year. The ALJ

apparently understood that temporary improvements in White’s mood during the closed

period did not suffice to overcome the particularly severe and disabling downturn in her

condition overall during the same time frame. White’s argument that the ALJ erred in

light of Bauer is therefore unpersuasive.

D. Credibility finding

The ALJ also found that White was not fully credible because, contrary to

White’s assertions, the medical record showed that she responded well to medications

and therapy. White argues that substantial evidence does not support the ALJ’s adverse-

credibility finding because she did not in fact improve as a result of the medication she

received. She also maintains that the ALJ did not properly focus on appropriate Social

Security Regulations in assessing her credibility. See S.S.R. 96-7p (setting forth a

nonexhaustive list of multiple factors to consider in determining credibility).

No. 08-2292 White v. Comm’r of Soc. Sec. Page 22

These arguments lack merit. The first one boils down to the same claim rejected

in Part II.B. above; namely, that the administrative record does not support a finding that

White improved, and that the ALJ should have fully believed White’s testimony instead.

But there is nothing patently erroneous in the ALJs decision to rely on her own

reasonable assessment of the record over the claimant’s personal testimony. See S.S.R.

96-7p (stating that ALJs may rely on “[s]tatements and reports from the individual and

from treating or examining physicians or psychologists and other persons about the

individual’s medical history” to assess credibility).

As for the second argument, the ALJ expressly stated that she had considered

S.S.R. 96-7p, which details the factors to address in assessing credibility. There is no

indication that the ALJ failed to do so. This claim therefore lacks merit as well. In light

of this court’s deferential approach to credibility assessments, White has failed to

demonstrate that the ALJ’s adverse-credibility finding was not supported by substantial

evidence. See Barker v. Shalala, 40 F.3d 789, 795 (6th Cir. 1994) (“The ALJ’s

credibility findings are subject to substantial deference on review . . . .”) (citation

omitted).

E. Jobs in the national economy

Finally, White argues that the Commissioner failed to meet his burden of

establishing that there are a significant number of jobs in the national economy that

White can perform. The ALJ found there were such jobs after asking the VE whether

a hypothetical claimant, sharing White’s characteristics and limitations, could do any

work. White argues that the ALJ erred in constructing the hypothetical. In particular,

the ALJ stated that “[o]ur hypothetical Claimant also needs simple repetitive type work

or [sic] because of a moderate limitation in [the] ability to maintain attention and

concentration due to mental impairment.” The ALJ purportedly erred by including the

criterion of “simple repetitive type work.” White contends that this limitation was

misleading because the possibility exists that a claimant’s limited ability to concentrate

might make the performance of even repetitive-type work impossible.

No. 08-2292 White v. Comm’r of Soc. Sec. Page 23

In support of this claim, White cites Edwards v. Barnhart, 383 F. Supp. 2d 920

(E.D. Mich. 2005), which explained that some disability claimants

may be unable to meet quotas, stay alert, or work at a consistent pace,

even at a simple, unskilled, routine job. The current hypothetical

question is not adequate on the issue of moderate limitations of

concentration, persistence and pace for this Court to have any idea as to

the number of the assembly, packing, and sorting or security guard jobs

identified by the VE that would be excluded if quotas or other aspects

related to moderate concentration limitations were added to the

hypothetical question. Each of these jobs seems to require a degree of

sustained concentration, persistence and pace . . . . Thus, the ALJ’s

hypothetical question is insufficient.

Id. at 930-31 (emphasis added). Upon concluding that the hypothetical posed to the VE

did not reflect the moderate limitations on concentration experienced by the plaintiff, the

district court in Edwards remanded the plaintiff’s disability claim to the ALJ. Id.

The Commissioner responds by contending that Edwards is not good law in light

of Smith v. Halter, 307 F.3d 377, 379 (6th Cir. 2001), which rejected the argument that

an ALJ who found that a claimant “often” had problems concentrating was required to

include that finding in the hypothetical question. But the panel need not address whether

Edwards is consistent with Halter because Edwards itself is distinguishable from

White’s case. The hypothetical claimant posited by the ALJ in Edwards gave the VE

no indication that the plaintiff had “moderate limitations [on] concentration, persistence

and pace.” 383 F. Supp. 2d at 930-31. In contrast, the hypothetical posed to the VE

during White’s hearing expressly included the condition that the claimant had a

“moderate limitation in [the claimant’s] ability to maintain attention and concentration

due to mental impairment.” White has therefore failed to show that the ALJ’s

hypothetical was an inaccurate representation of White’s functional limitations.

Finally, White objects to the ALJ’s phrasing of the hypothetical. This objection,

raised for the first time on appeal, is that the ALJ misled the VE by stating that White

could “perform work” and then listing “additional limitations.” But “this Court will not

consider claims that are presented for the first time on appeal nor arguments that are not

properly raised below.” See Berryman v. Rieger, 150 F.3d 561, 568 (6th Cir. 1998)

No. 08-2292 White v. Comm’r of Soc. Sec. Page 24

(refusing to consider a qualified-immunity challenge because the defendant failed to

bring it to the attention of the district court). In sum, White has failed to show that the

ALJ erred in constructing the hypothetical question put to the VE.

III. CONCLUSION

For all of the reasons set forth above, we AFFIRM the judgment of the district

court.