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UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

REBECCA LYNN KLEIN,

Plaintiff,

Case No. 09-13516

-vs- HON. AVERN COHN

COMMISSIONER OF SOCIAL SECURITY,

Defendant.

 /

MEMORANDUM AND ORDER

 ADOPTING MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION

 AND 

GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

AND DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT

 I. Introduction

This is a Social Security case. Plaintiff Rebecca Klein (Klein) appeals from the

final decision of the Commissioner of Social Security (Commissioner) denying her

application for Social Security disability benefits. Klein claims disability since 2002, due

to fibromyalgia, neuropathy, vertigo, anxiety, carpal tunnel, herniated cervical discs,

sleep apnea, and bursitis. 

The parties filed cross motions for summary judgment. The motions were

referred to a Magistrate Judge (MJ) for a report and recommendation (MJRR). The MJ

recommends that Klein’s motion for summary judgment be denied and that the

Commissioner’s motion for summary judgment be granted. Klein filed timely objections

to the MJRR. For reasons that follow, the Court adopts the MJRR.

II. Background

A. Facts
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As noted in the ALJ’s Decision, Klein’s second application states an alleged onset

disability date of September 12, 2002, which is one day after Klein’s first application was

denied, on September 11, 2002. 

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The MJRR sets forth the facts, many of which are repeated here. 

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This is Klein’s second application for disability benefits. Klein’s first application

alleged a March 11, 2000, disability onset date and was denied by an Administrative

Law Judge (ALJ) on September 11, 2002. 

2.

Klein’s second application for disability benefits was filed on November 15, 2006,

alleging a September 12, 2002, onset of disability, due to fibromyalgia, neuropathy,

vertigo, anxiety, carpal tunnel, herniated cervical discs, sleep apnea, and bursitis.1

Klein’s application was denied on March 23, 2007, and a hearing was held before an

ALJ on March 10, 2009, at Klein’s request. The ALJ issued a decision denying benefits,

finding that Klein did not have a disability as defined under the Social Security Act. The

Appeals Council later denied review. 

 Klein then brought this action for judicial review, arguing that 1) the ALJ’s

decision that she is capable of engaging in a limited range of sedentary work is not

supported by substantial evidence, 2) the ALJ erred in assessing her credibility related

to the severity of her symptoms, and 3) the ALJ erred in finding that her depression is

not a disability. The MJRR rejected Klein’s assertions and found that there is

substantial evidence in the record to support the ALJ’s decisions on all three counts.

B. MJRR Objections

Klein now objects to the MJRR on the same grounds that the MJ erred 1) in
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concluding she was not disabled as defined under the Social Security Act, despite her 

fibromyalgia diagnosis and what she asserts is “ample opinion evidence” about her

inability to perform sedentary work, 2) in supporting the ALJ’s adverse credibility

determination related to her symptoms, and 3) in disregarding her Global Assessment

Function (GAF) score of 50 when concluding that her depression is not a disability.

III. Standard of Review

Judicial review of a Social Security disability benefits application is limited to

determining whether the “the commissioner has failed to apply the correct legal

standards or has made findings of fact unsupported by substantial evidence in the

record.” Walters v. Comm’r of Soc. Sec., 127 F.3d 525, 528 (6th Cir. 1997). A

reviewing court may not resolve conflicts in the evidence or decide questions of

credibility. Brainard v. Sec’y of HHS, 889 F.2d 679, 681 (6th Cir. 1989). 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). It is “more

than a scintilla but less than a preponderance.” Consol. Edison Co. v. NLRB, 305 U.S.

197, 299 (1938). The substantiality of the evidence must be based upon the record

taken as a whole. Futernick v. Richardson, 484 F.2d 647, 649 (6th Cir. 1973). The

substantial evidence standard “presupposes that there is a zone of choice within which

the decisionmakers can go either way, without interference with the courts.” Mullen v.

Bowen, 800 F.2d 535, 545 (6th Cir. 1986). The portions of the MJRR that the claimant

finds objectionable are reviewed de novo. 28 U.S.C. § 636(b)(1)(C); Smith v. Detroit

Fed’n of Teachers, Local 231, 829 F.2d 1370, 1373 (6th Cir. 1987). 

IV. Discussion
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As stated, Klein raises three objections to the MJRR. For the following reasons,

the Court finds the objections to be without merit. 

A. Substantial Evidence of Ability to Perform Sedentary Work

First, Klein says that the MJ erred in finding that she is able to perform sedentary

work because the decision ignores ample evidence to the contrary from her own

treating physicians. Klein asserts that her treating physician’s opinions should be given

more weight than a non-treating physician. Smith v. Comm’r of Soc. Sec., 482 F.3d

873, 875 (6th Cir. 2007). 

Indeed, Smith states that the Commissioner should “give more weight to the

opinion of a source who has examined [the claimant] than to the opinion of a source

who has not examined her.” Smith, 482 F.3d at 875 (quoting 20 C.F.R. §

404.1527(d)(1)) (internal quote marks omitted). Here, however, the treating and nontreating physician opinions are consistent with the ALJ’s assessment in that no

physician states that Klein is disabled, nor do they state that she is unable to perform

sedentary work activities. Further, Klein’s characterization of Dr. Guernsey’s and Dr.

Newcomb’s statements, which she uses to support her argument, is inaccurate.

Particularly, the statements that “Klein has difficulty with almost all activities of daily

activities of daily living,” that she has “severe fatigue,” and that “the problem interfere[s]

with her daily activities of living” are symptoms that she reported to the physicians and

not the physicians’ medical opinions. In fact, the physicians do not opine that she has

greater restrictions than that determined by the ALJ. Rather, they diagnose Klein with

fibromyalgia, which standing alone does not require a disability finding. 

Finally, Klein says that an opinion by treating physician Dr. Englemen that “she is
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unable to work” proves her work limitations. This statement too is presented out of

context, as it is again a record of Klein’s reported symptoms and not Dr. Englemen’s

opinion. Dr. Englemen simply concludes that Klein suffers from certain medical

conditions, including fibromyalgia, osteoarthritis (OA), congestive heart failure (CHF),

and narcolepsy. 

Thus, the Court agrees that the Commissioner’s decision to deny benefits was

within the allowable “zone of choice” and that it was supported by substantial evidence

from both treating and non-treating physicians, consistent with Smith.

B. Substantial Evidence of Adverse Credibility Assessment

Next, Klein says that the ALJ’s adverse credibility finding is not supported by

substantial evidence. Klein seems to further suggest that her fibromyalgia diagnosis

proves the accuracy of her reported symptoms and, thus, her disability. 

An ALJ’s findings regarding a claimant’s credibility “are to be accorded great

weight and deference, particularly since an ALJ is charged with the duty of observing a

witness’s demeanor and credibility.” Walters v. Comm’r of Soc. Sec., 127 F.3d 525, 531

(6th Cir. 1997). Any credibility assessment made by an ALJ must be supported by

substantial evidence in the record. Id. However, “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.” White v. Comm’r of Soc. Sec., 572 F. 3d 272, 287 (6th

Cir. 2009). 

Here, the ALJ found that Klein’s testimony about her work limitations lacked

credibility because of her conservative treatment regime, medical opinion evidence that

her ability to move was normal, and evidence that shows Klein over-stated medication
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See White v. Comm'r of Soc. Sec., 572 F. 3d 272, 287 (6th Cir. 2009) (“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).”). 

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side effects. Regarding the latter, in 2002 Klein reported that morphine made her a

“little groggy,” and in 2009 Klein reported no medication side effects at all. 

Thus, the Court agrees that there is substantial evidence to support the ALJ’s

adverse credibility finding, especially in light of the deference given to ALJ’s related to

these determinations.

C. Substantial Evidence of Moderate Depression 

Lastly, Klein argues that the ALJ erred by not considering her GAF score of 50

when weighing the evidence regarding her depression.2

 Klein says that, while the GAF

score alone is not determinative, it should have been considered when determining

whether her depression is a disability. This argument is without merit.

“While a GAF score may be of considerable help to the ALJ in formulating the

[residual functional capacity (RFC)], it is not essential to the RFC’s accuracy.” Howard

v. Comm’r of Soc. Sec., 276 F.3d 235, 241 (6th Cir. 2002). Further, an ALJ is not

required to reference the GAF score in making a disability determination. Id.; see also

Smith, 572 F.3d at 284 (lack of mental disability decision affirmed where ALJ

reasonably weighed medical evidence and not GAF score in the high 40s, low 50s).

Finally, a GAF score of 50 does not require a disability finding. DeBoard v. Comm’r of

Soc. Sec., 211 F. App’x 411, 415 (6th Cir. 2006).

Here, the ALJ relied on opinions from both a non-examining physician and an

examining psychologist and found that the two opinions were “largely consistent” related

to Klein’s depression in that they found symptoms of depression, but also concluded
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that she was able to perform simple and routine tasks. Further, the ALJ considered

testimony from a vocational expert who stated that a hypothetical person in Klein’s

condition could perform a significant number of sedentary level jobs including working

as a cashier, surveillance monitor, or information clerk. Klein asserts that the

hypothetical is defective because it failed to include her reported limitation of a required

two hour rest period during the work day. Klein relies on Dr. Newcomb’s medical

opinion to support this limitation, however, his opinion does not state that she requires

rest during the workday. Rather, Dr. Newcomb’s opinion notes Klein’s reported

symptoms of severe fatigue for which he suggests continued evaluation and treatment.

Finally, the ALJ appropriately considered that Klein has not sought psychological

treatment for her depression. See White, 572 F.3d at 283 (“A reasonable mind might

find that the lack of treatment . . . indicate[s] an alleviation of symptoms.”). 

Thus, the Court agrees that the ALJ reasonably weighed the evidence and found

that Klein is not disabled due to her mental condition. 

V. Conclusion

For the reasons stated above and in the MJRR, Klein’s motion for summary

judgment is DENIED and the Commissioner’s motion for summary judgment is

GRANTED. The case is DISMISSED.

SO ORDERED.

Dated: September 3, 2010 S/Avern Cohn 

AVERN COHN

UNITED STATES DISTRICT JUDGE

I hereby certify that a copy of the foregoing document was mailed to the attorneys of record on

this date, September 3, 2010, by electronic and/or ordinary mail.

 S/Julie Owens 

Case Manager, (313) 234-5160