                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 19a0312n.06

                                         Case No. 18-2358

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT

                                                                                      FILED
                                                                                Jun 19, 2019
CHARLES MAX LIVINGSTON,                               )
                                                                            DEBORAH S. HUNT, Clerk
                                                      )
       Plaintiff-Appellant,                           )
                                                      )      ON APPEAL FROM THE UNITED
v.                                                    )      STATES DISTRICT COURT FOR
                                                      )      THE WESTERN DISTRICT OF
COMMISSIONER OF SOCIAL SECURITY,                      )      MICHIGAN
                                                      )
       Defendant-Appellee.                            )


       BEFORE: MOORE, COOK, and READLER, Circuit Judges.

       COOK, Circuit Judge. Charles Max Livingston appeals a district court decision affirming

the Commissioner of Social Security’s denial of his disability insurance benefits application.

Because substantial evidence supports the Commissioner’s findings, we AFFIRM.

                                                 I.

       Livingston, a forty-nine-year-old high school graduate with a turbulent work history,

applied for a period of disability and disability insurance benefits under the Social Security Act in

2013, citing the following work-inhibiting health problems: generalized anxiety disorder,

attention-deficit/hyperactivity   disorder,   deficient   memory,    irritable   bowel    syndrome,

gastroesophageal reflux disease, an unspecified learning disability, depression, and a possible

receptive language disorder. The agency denied his application. Following a hearing convened

over two years later, so did an administrative law judge (“ALJ”).
Case No. 18-2358, Livingston v. Comm’r of Soc. Sec.


       After the appeals council denied review, transforming the ALJ’s opinion into the

Commissioner’s final decision, Livingston filed this action. Hearing the case with the parties’

consent, the magistrate judge affirmed, finding that substantial evidence supported the agency’s

decision, and Livingston now appeals.

                                                  II.

       We take a fresh look at a district court’s Social Security benefits decision, Miller v. Comm’r

of Soc. Sec., 811 F.3d 825, 833 (6th Cir. 2016), but must affirm the Commissioner’s underlying

conclusions if substantial evidence supports them and the agency applied the correct legal

standard, see Colvin v. Barnhart, 475 F.3d 727, 729–30 (6th Cir. 2007). “Substantial evidence

requires ‘more than a mere scintilla’ but less than a preponderance,” and constitutes “such ‘relevant

evidence as a reasonable mind might accept as adequate to support a conclusion.’” Miller, 811

F.3d at 833 (quoting Buxton v. Halter, 246 F.3d 762, 772 (6th Cir. 2001)). “Even if the evidence

could also support another conclusion, the decision of the [ALJ] must stand if the evidence could

reasonably support the conclusion reached.” Her v. Comm’r of Soc. Sec., 203 F.3d 388, 389–90

(6th Cir. 1999).

       In denying Livingston benefits, the ALJ applied the Social Security Administration’s

familiar five-step disability analysis, asking:

       (1) Does the claimant show [he] is not engaged in “substantial gainful activity”?
       (2) Does the claimant have a severe impairment? (3) Does the impairment meet
       any one of the items on a “list of impairments presumed severe enough to render
       one disabled”? (4) Can the claimant perform [his] past jobs? (5) Can the claimant
       perform other jobs that exist in significant numbers in the national economy?

Taskila v. Comm’r of Soc. Sec., 819 F.3d 902, 903 (6th Cir. 2016) (quoting Barnhart v. Thomas,

540 U.S. 20, 24–25 (2003)); see 20 C.F.R. § 404.1520(a)(4). Livingston’s cause failed at the




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Case No. 18-2358, Livingston v. Comm’r of Soc. Sec.


fourth step, when the ALJ found that he retained sufficient residual functional capacity to perform

past work as a janitor. The residual functional capacity conclusion stated:

       I find that the claimant has the residual functional capacity to perform light work
       as defined in 20 CFR 404.1567(b), except that he can only occasionally climb
       ladders, ropes, and scaffolds and can no more than frequently climb ramps and
       stairs. . . . He is limited to simple, routine, repetitive tasks, and he must be employed
       in a low-stress job (meaning a job that requires less than occasional decision-
       making and less than occasional changes in the work setting). The claimant must
       have work that is not at a production rate or pace. He can have no more than
       occasional interaction with the public and with co-workers (and no tandem tasks
       with any co-workers), and he can have no more than occasional supervision (which
       must be on-site). Finally, the claimant must be permitted to be off-task for five
       percent of the workday, for health reasons.

R. 8-2, PageID 46–47. The ALJ relied on several sources, including medical evidence supplied

by three consulting professionals—Dr. Jessica Caldwell, Ph.D., Dr. Gary Kilpela, Psy.D., and

Michael Varney LLP, CAP—and analysis provided by state agency examiner Dr. Bruce G.

Douglass, Ph.D.1

       Livingston principally argues that the ALJ improperly weighed the medical source

opinions en route to determining his residual functional capacity, thus acting contrary to the

Administration’s regulations. We disagree. In contrast to Livingston’s assertions, the ALJ reached

his residual functional capacity findings after sensibly evaluating the record, and substantial

evidence supports his weighing of the medical source opinions.               We address the ALJ’s

consideration of each medical professional’s opinion.

       Mr. Varney. In November 2013, Varney—a counselor Livingston visited for mental health

services—conducted a psychological evaluation. Varney assessed below-average scores on tests

measuring Livingston’s problem solving, abstract reasoning, and intellectual functioning abilities.


       1
        The ALJ also discussed a multiple-choice questionnaire completed by Tracey Nelson, a
nurse practitioner. But because Nelson’s questionnaire does not feature prominently in the
argument section of Livingston’s brief, we do not specifically address it here.
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Case No. 18-2358, Livingston v. Comm’r of Soc. Sec.


He also found deficient Livingston’s memory, learning skills, and impulse control. Varney

assigned Livingston a Global Assessment of Functioning (“GAF”) score of 55.

       The ALJ gave Varney’s opinion “some weight.” He questioned the accuracy of some of

Varney’s characterizations, citing the apparently erroneous claim that Livingston’s IQ fell in the

below-average (rather than average) range. He also credited the memory deficits Varney observed.

But citing some of Livingston’s attested daily activities—driving, cooking simple meals, shopping,

doing the laundry, and managing personal finances—the ALJ concluded that Livingston could

perform simple, routine tasks notwithstanding his deficits. Finally, he found Varney’s GAF score

consistent with the record and reflective of moderate psychological symptoms not expected to fully

preclude gainful employment.

       Livingston argues that the ALJ focused too heavily on peripheral issues raised by Varney’s

opinion and minimized Varney’s findings regarding his “severe anxiety.” But Livingston fails to

direct us to any relevant cases or regulations, and his bare assertions do not convince us that the

ALJ erred in weighing Varney’s assessment. As an initial matter, ALJs must give “good reasons”

only for their weighing of “treating source” opinions, 20 C.F.R. § 404.1527(c)(2); see Smith v.

Comm’r of Soc. Sec., 482 F.3d 873, 876 (6th Cir. 2007), and Livingston does not argue that Varney

qualifies as a “treating source.” For non-treating sources, ALJs look to several considerations,

including “[s]upportability,” “[c]onsistency,” and other factors tending “to support or contradict

the medical opinion.” 20 C.F.R. § 404.1527(c); see Gayheart v. Comm’r of Soc. Sec., 710 F.3d

365, 376 (6th Cir. 2013). Thus, the ALJ properly cited Livingston’s daily activities and the GAF

score’s consistency with the whole record in weighing Varney’s opinion.            See 20 C.F.R.

§ 404.1527(c); Miller v. Comm’r of Soc. Sec., 524 F. App’x 191, 194 (6th Cir. 2013) (citing the

ability “to engage in significant daily activities” as a factor the ALJ appropriately considered);


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Case No. 18-2358, Livingston v. Comm’r of Soc. Sec.


Ealy v. Comm’r of Soc. Sec., 594 F.3d 504, 514 (6th Cir. 2010). Substantial evidence supports the

ALJ’s evaluation of Varney’s opinion.

       Dr. Caldwell. About eight months after the appointment with Varney, Livingston visited

Dr. Caldwell for a neuropsychological consultation. As the ALJ relayed in his opinion, Caldwell

described Livingston as well-groomed, casually dressed, and fully oriented, except that he could

not recall the exact date. Caldwell observed that Livingston showed reduced eye contact, followed

social cues, committed occasional paraphasic speech errors, engaged in tangential thought

processes, exhibited no signs of a formal thought disorder, denied suicidal ideation, reported an

anxious and depressed mood, displayed increased positivity and humor as the evaluation

progressed, and successfully concentrated throughout the evaluation. Caldwell reported “average”

test scores with respect to intelligence, general intellectual ability, attention and processing speed,

verbal fluency, visuospatial skills, and motor skills. She flagged “severe” impairments in visual

organization and planning, and in recalling a list of words.           She also noted that “[o]n a

computerized test of sustained attention, he showed very impaired performance consistent with

ADHD.” R. 8-7, PageID 330.

       The ALJ neglected to assign specific weight to Caldwell’s assessment, but discussed her

findings at length in the residual functional capacity section of the opinion. For instance, he relied

on Caldwell’s observations in finding Livingston able to perform simple, routine tasks and noted

consistency between Caldwell’s results and the GAF score assigned by Varney.

       Livingston complains that the ALJ failed to credit the consistencies between Caldwell and

Varney’s opinions, specifically with respect to “severe impairments” in sustained attention, visual

organization, and remembering lists of words. But the ALJ considered these impairments and

mentioned them in his findings. Viewing the entire record, he concluded that the bulk of the


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Case No. 18-2358, Livingston v. Comm’r of Soc. Sec.


medical evidence—and Livingston’s own testimony—militated in favor of finding that Livingston

retained the ability to perform light work. As with his assessment of Varney’s opinion, the ALJ’s

weighing of Dr. Caldwell’s opinion fell safely within the constraints imposed by the regulations

and our precedent. See 20 C.F.R. § 404.1527(c); Ealy, 594 F.3d at 514.

       Dr. Kilpela. At Livingston’s first consultative examination, Dr. Kilpela, a psychologist

hired by the state agency, evaluated Livingston’s mental state.          Kilpela reported several

observations about Livingston: “[h]is grooming and hygiene were disheveled. He looked rather

odd, wide eyed, and seemed a bit dazed. His eye-contact was minimal. His mood was anxious.”

R. 8-7, PageID 309.        Kilpela noted Livingston’s anxiety issues, speculated that they were

connected to Livingston’s memory deficits, and acknowledged that eccentricity might explain

Livingston’s odd presentation. Kilpela assigned Livingston a GAF score of 48. Wrapping up his

observations, Kilpela concluded that “[i]f the way [Livingston] presented today is indicative of

how he would be in a social setting (like work), it would be difficult to imagine him being

successful.” Id. at PageID 310.

       The ALJ accorded Kilpela’s report “limited weight.” He observed the atypical nature of

Livingston’s anxious presentation at that appointment and contrasted it with Livingston’s

presentation at Dr. Caldwell’s consultation and other medical appointments in 2015. The ALJ also

concluded that Livingston’s anxiety would not stop him “from performing simple, routine, and

repetitive tasks at a familiar worksite where there would be few stressors, little interpersonal

contact, and no work at a production rate or pace.” R. 8-2, PageID 51. He stated that this “would

be especially true” with a 5% off-task allowance. Id. Finally, the ALJ highlighted a treatment

note in Livingston’s medical records suggesting that infrequent doses of Ativan significantly

ameliorated his anxiety.


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Case No. 18-2358, Livingston v. Comm’r of Soc. Sec.


       Livingston challenges the ALJ’s treatment of Dr. Kilpela’s findings about his anxiety. But,

as outlined above, the ALJ supported his conclusions by citing inconsistencies with behavior at

other appointments and the positive effect of medication on Livingston’s mood. These reasons

pass muster under the regulatory framework and constitute substantial evidence. See 20 C.F.R.

§ 404.1527(c); Ealy, 594 F.3d at 514.

       Dr. Douglass. Dr. Douglass, a state agency psychologist, reviewed Livingston’s case in

October 2013 and completed a report for Livingston’s initial benefits determination. At the time

of Douglass’s report, only Dr. Kilpela had performed a consultative examination. After relaying

many of Kilpela’s findings, Douglass concluded that Livingston “retains the capacity to perform

routine, 2-step tasks on a sustained basis.” R. 8-3, PageID 101.

       The ALJ assigned Douglass’s assessment “substantial weight” because he found it

“consistent with the record as a whole.” R. 8-2, PageID 52. Livingston maintains that the ALJ

erred by according Douglass’s opinion more weight than the examining medical opinions and, in

doing so, ignored the section of Douglass’s report detailing concentration and persistence

impairments. We disagree with both contentions. First, nothing required the ALJ to assign less

weight to Douglass’s opinion than the examining sources. While § 404.1527(c) reads that the

agency “[g]enerally” gives more weight to examining sources, it fails to mandate such prioritizing

and lists several other factors that the ALJ must consider, including consistency with the whole

record. 20 C.F.R. § 404.1527(c); see also Soc. Sec. Rul. No. 96-6p, 1996 WL 374180, at *3 (“In

appropriate circumstances, opinions from State agency medical and psychological consultants . . .

may be entitled to greater weight than the opinions of . . . examining sources.”). Second, nothing

required the ALJ to address each section of Douglass’s assessment independently; the ALJ’s

summary of Douglass’s overall conclusions sufficed.


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Case No. 18-2358, Livingston v. Comm’r of Soc. Sec.


          Remaining arguments. Livingston also lodges several undeveloped complaints against the

ALJ’s adjudication. For example, he blames the ALJ for substituting his own lay opinion for that

of the medical professionals. But Livingston points us to no specific examples, and reviewing the

ALJ’s opinion, we find none. In the single case from this circuit that Livingston cites for this

proposition, the ALJ “play[ed] doctor” by casting aside a treating physician’s opinion in favor of

an “independent determination” about the claimant’s pain. See Simpson v. Comm’r of Soc. Sec.,

344 F. App’x 181, 194 (6th Cir. 2009). Here, the ALJ neither discarded medical evidence nor

independently determined Livingston’s psychological symptoms but instead properly weighed

each medical opinion, tethering his residual functional capacity conclusions to those findings. To

the extent that Livingston’s “lay opinion” critique reflects discomfort with the ALJ’s evaluating

functional capabilities at all, that, of course, is precisely the ALJ’s role.          See 20 C.F.R.

§ 404.1527(d)(2).

          Livingston further alleges that the ALJ failed to articulate “good reasons” for not following

the examining source opinions. But the ALJ stopped short of disregarding any of the consulting

opinions and merely assigned some of them limited weight. Moreover, as discussed above, the

“good reasons” requirement applies only to treating physicians, and Livingston concedes that the

ALJ considered only “examining source opinions.”               Appellant Br. at 30; see C.F.R. §

404.1527(c)(2); Allen v. Comm’r of Soc. Sec., 561 F.3d 646, 651 (6th Cir. 2009); Smith, 482 F.3d

at 876.

          Livingston also asserts in passing that the “burden of proof at step five [of the regulatory

framework] rests with the Commissioner.” But the ALJ’s analysis ended at step four, and the

claimant bears the burden of proof through that stage. See 20 C.F.R. § 404.1520(a)(4); Jones v.

Comm’r of Soc. Sec., 336 F.3d 469, 474 (6th Cir. 2003); Her, 203 F.3d at 391.


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Case No. 18-2358, Livingston v. Comm’r of Soc. Sec.


       Finally, Livingston briefly argues two points relating to the ALJ’s ultimate residual

functional capacity determination. First, he complains that the ALJ failed to define terms in the

residual functioning conclusion and did not explain how he arrived at the final determination. But

the ALJ’s detailed consideration of the record evidence in reaching the residual functional capacity

conclusion directly contradicts these allegations.

       Second, although Livingston waives his challenge to the hypothetical questions, Appellant

Br. at 3 n.2, he still asserts that the ALJ failed to articulate why he arrived at the 5% off-task

restriction rather than the 20% off-task limitation the ALJ presented in a hypothetical to a

vocational expert at the hearing. The ALJ asked this question only after posing three other

questions with the 5% restriction. Additionally, the ALJ asked the hypothetical incorporating the

20% off-task limitation in relation to Livingston’s statements about frequent bathroom visits,

rather than his psychological impairments. After considering Livingston’s responses at the

hearing, and his ability to sit through the one-hour session without a break, the ALJ concluded that

Livingston could physically and psychologically “perform adequately at a job that conforms to the

parameters set forth in this assessment,” which incorporated a 5% off-task finding. R. 8-2, PageID

48. This, combined with the ALJ’s thorough marshalling of the record evidence, provided

substantial evidence for his ultimate residual functional capacity determination.

                                                III.

       We AFFIRM.




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