1

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
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 onethird 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,
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

1

Depakote, 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), andwork 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
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
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, lowstress 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. 
No. 01-2315 Jones v. Commissioner of Soc. Sec. 11

2

On November 6, 1999, the initial report filled out by the clinic

reflects Ms. Jones’s statement that she had “applied for 15 jobs and will

not go due 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 jobs 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 Ms. Jones’s statements are consistent, if, for

example, she secured a number of jobs during that time period. In fact,

it may be that Ms. Jones was consolidating in her answer to Dr. Gorwell

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 disability. We do not see how this is

helpful to her position. 

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 determinationwas, 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 theALJ’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.
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.