                 NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                            File Name: 07a0670n.06
                            Filed: September 7, 2007

                                            Nos. 06-6582

                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT


RACHEL KENNEDY                                  )
                                                )
  Plaintiff-Appellant,                          )
                                                )
v.                                              )               ON APPEAL FROM THE UNITED
                                                )               STATES DISTRICT COURT FOR
MICHAEL J. ASTRUE,                              )               THE EASTERN DISTRICT OF
COMMISSIONER OF SOCIAL                          )               KENTUCKY
SECURITY                                        )
                                                )
  Defendant-Appellee.                           )


        Before: CLAY and SUTTON, Circuit Judges; and GREER, District Judge.*

                GREER, District Judge. Rachel Kennedy (Kennedy) was found disabled as of

September 1, 1994, by the Social Security Administration (SSA) and awarded supplemental security

income (SSI) benefits. SSA found that Kennedy’s psychological disorder and obesity imposed

limitations that precluded work and rendered her disabled. On May 14, 2003, SSA notified Kennedy

that a review of her medical records showed that her condition had improved and she was no longer

disabled. Her disability benefits were terminated in July, 2003. After a hearing before an

administrative law judge (ALJ), the initial determination was upheld and the ALJ found that the

medical evidence established an “improvement in the claimant’s psychological and physical



        *
          The Honorable J. Ronnie Greer, United States District Judge for the Eastern District of
Tennessee, sitting by designation.
No. 06-6582
Kennedy v. Astrue


condition” and that, while her impairments remain severe, she retains the residual functional capacity

to perform work “except work that requires more than a limited ability to withstand work stresses

in a routine eight hour day” at all exertional levels. The ALJ determined that Kennedy’s disability

ceased as of May 1, 2003.1

                After SSA’s appeals council denied her request for review, Kennedy filed suit in the

federal district court. The district court granted summary judgment to the Commissioner of Social

Security (Commissioner) and this appeal followed. For the reasons set forth below, we REVERSE

the judgment of the district court with instructions to remand the case to the Commissioner for an

award of continuing benefits.

                       FACTUAL AND PROCEDURAL BACKGROUND

                At the time of the initial determination of disability, Kennedy was a 23 year old high

school graduate who had completed one year of college with no relevant work history.2 She reported

physical and mental problems of high blood pressure, depression, hormone imbalance, fluid

retention, overweight, TB “germ” and bronchitis. She was determined to be disabled by SSA as the

result of an affective disorder (depressive syndrome) and morbid obesity. As part of the initial



        1
            The ALJ’s decision is internally contradictory on the issue of when disability ceased. At page
12 of the ALJ’s decision, the ALJ finds that disability ceased as of February 1, 2002, and that her
eligibility for benefits ended as of April 1, 2002. On page 13 of the ALJ’s decision, however, the ALJ
finds that Kennedy’s disability ceased as of May 1, 2003, and her eligibility ceased as of July 1, 2003.
        2
            Kennedy listed her birth date as February 12, 1971, on her SSI application and testified at the
hearing before the ALJ that her date of birth is February 12, 1971. All medical records in the file also
indicate a date of birth of February 12, 1971. The ALJ, however, found a date of birth of July 4, 1973.
No explanation for the ALJ’s finding is apparent from the record.

                                                     2
No. 06-6582
Kennedy v. Astrue


determination process, she was referred by SSA for both a medical and a psychological consultative

examination.

               A psychological consultative examination was performed by Bob Winston, M.D.,

on February 16, 1995. Dr. Winston described Kennedy as an obese, white female wearing

appropriate and clean clothing who was cooperative throughout the interview. She was alert,

coherent and logical but her mood was described as “sad affect.” Dr. Winston described her insight

as “shallow” and judgment as “fair.” Dr. Winston diagnosed “major depression, recurrent” (Axis

I) and obesity, tuberculosis by history, and hypertension (Axis III). Kennedy had a global assessment

function (“GAF”) score of 55. Dr. Winston described her as “markedly impaired.”

               A consultative medical exam was done by Shantae Lucas, M.D., on January 28, 1995.

Dr. Lucas reported Kennedy’s weight as 276 pounds. Kennedy could bend to 90 degrees and squat

without difficulty. She had no neurological deficits and joint flexion was normal. Her diagnosis was

morbid obesity, well controlled asthma and well controlled hypertension. Dr. Lucas found

Kennedy’s “tolerance for standing, walking, stooping, bending, lifting, sitting and traveling is

diminished by obesity” and described her functional impairment to be mild.

               Based upon the available medical and psychological data, state agency physicians

found Kennedy disabled because of affective mood disorder and obesity. The state agency

physicians noted slight to moderate restrictions of daily activities, moderate difficulties in

maintaining social functioning, moderately limited ability to work in coordination with or proximity

to others without being distracted by them and moderately limited ability to interact appropriately


                                                 3
No. 06-6582
Kennedy v. Astrue


with the general public.

               Kennedy was determined to have the mental capacity to understand/remember

instructions; perform unskilled/semi-skilled tasks for adequate time intervals; respond adequately

in settings that do not require complex interaction or cooperation with others; and adapt to the usual

demands of a competitive work setting. A state agency physician found exertional limitations of

occasionally lifting and/or carrying twenty pounds; frequently lifting and/or carrying ten (10) pounds;

standing and/or walking at least two hours in an eight-hour work day; sitting about six hours in an

eight-hour work day; and unlimited pushing and/or pulling based upon her obesity and other

conditions.

               During the years between the initial onset of disability and the 2003 review initiated

by SSA, Kennedy sought treatment for a variety of maladies and was prescribed medication for

various conditions through her family physician. She had a recurrent diagnosis of depression, treated

with Zoloft, and obesity, treated most recently with weight loss medications. Her weight fluctuated

from a high of 320 pounds on July 2, 2002, to a low of 247 pounds on June 23, 2004.

               During the review process, Kennedy was referred to Gary Maryman, Psy.D., licensed

clinical psychologist, for a consultative psychiatric exam. She was examined on March 18, 2003.

Maryman described her to be moderately obese, casual, clean and appropriately attired. She was

fully alert at the time of the examination, seemed to be reasonably well composed and “showed no

signs of anxiety, timidity, or depression.” Maryman diagnosed dysthymic disorder (Axis I) and an

axis IV rating of severe. Kennedy had a GAF score of 60. In summary, Maryman said:


                                                  4
No. 06-6582
Kennedy v. Astrue


               Ms. Kennedy was regarded to be an individual of sufficient
               intellectual ability that would permit her to understand, retain, and
               carry out a simple to somewhat more complicated instruction and
               task. In the main, during this examination she showed the likelihood
               that she would have sufficient focus, concentration, and persistence
               to where she should be able to complete and carry out a work
               assignment within a reasonable time frame and across a routine work
               schedule. It is felt that she should have no problems interacting
               appropriately with fellow workers and supervisors and would not
               appear necessarily precluded from having the ability to interact and
               deal with the general public reasonably well, even though it would
               certainly appear that she would be moderately limited in that respect.
               Finally, it would appear that this young lady should be able to adjust
               and adapt reasonably well to stressers and pressures associated with
               a routine work atmosphere. She would appear to be better suited for
               a medium to lower stress work environment and somewhat more
               restricted in a more fast paced and high pressure work atmosphere.

               No consultative medical exam was obtained during the review process; however, a

consultation request was sent to an agency physician seeking assessment of Kennedy’s physical

disorders. The request, noting allegations of “asthma, TB, vision, stomach,” sought a current

physical assessment and says “looks LTS.” C. Hernandez, M.D., wrote in response: “You are

correct!! LTS. Thanks.” Interestingly, Kennedy’s obesity was not noted and no assessment of her

obesity and its effects on her ability to do work related activities was completed.

                                           ANALYSIS

               Pursuant to 42 U.S.C. § 405(g), this Court has jurisdiction to review the

Commissioner's decisions. Judicial review of the Commissioner's decisions is limited to determining

whether the Commissioner's findings are supported by substantial evidence and whether the

Commissioner employed the proper legal standards. Richardson v. Perales, 402 U.S. 389, 401, 91


                                                 5
No. 06-6582
Kennedy v. Astrue


S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971). Substantial evidence is more than a scintilla of evidence

but less than a preponderance; it is such relevant evidence as a reasonable mind might accept as

adequate to support a conclusion. Kirk v. Secretary of Health & Human Services, 667 F.2d 524, 535

(6th Cir.1981), cert. denied, 461 U.S. 957, 103 S.Ct. 2428, 77 L.Ed.2d 1315 (1983). This Court does

not try the case de novo, nor resolve conflicts in the evidence, nor decide questions of credibility.

Brainard v. Secretary of Health & Human Services, 889 F.2d 679, 681 (6th Cir.1989); Garner v.

Heckler, 745 F.2d 383, 387 (6th Cir.1984).

               In determining the existence of substantial evidence, this court must examine the

administrative record as a whole. Kirk, 667 F.2d at 536. If the Commissioner's decision is supported

by substantial evidence, it must be affirmed even if the reviewing court would decide the matter

differently, Kinsella v. Schweiker, 708 F.2d 1058, 1059 (6th Cir.1983), and even if substantial

evidence also supports the opposite conclusion, Mullen v. Bowen, 800 F.2d 535, 545 (6th Cir.1986)

(en banc).

               When the cessation of benefits is at issue, as here, the central question is whether the

claimant’s medical impairments have improved to the point where she is able to perform substantial

gainful activity. 42 U.S.C. § 423(f)(1). Improvement is measured from “the most recent favorable

decision” that the claimant was disabled. 20 C.F.R. § 416.994(b)(1)(i). There is no presumption of

continuing disability. Cutlip v. Secretary of Health and Human Services, 25 F.3d 284, 286-287 n.1

(6th Cir. 1994). Instead, the Commissioner applies the procedures that are outlined in 20 C.F.R. §§

404.1594 and 416.994 to determine whether a claimant’s disability has ended and that she is now


                                                  6
No. 06-6582
Kennedy v. Astrue


able to work.

                The first part of the evaluation process, then, focuses on medical improvement. The

implementing regulations define a medical improvement as “any decrease in the medical severity

of your impairment(s) which was present at the time of the most recent favorable medical decision

that you were disabled or continued to be disabled.” 20 C.F.R. § 404.1594(b)(1). A determination

of medical improvement “must be based on changes (improvement) in the symptoms, signs and/or

laboratory findings associated with your impairment(s).”Id. And a medical improvement is related

to an individual’s ability to work only “if there has been a decrease in the severity . . . of the

impairment(s) present at the time of the most recent favorable medical decision and an increase in

your functional capacity to do basic work activities. . .” 20 C.F.R. § 404.1594(b)(3). See also

Nierzwick v. Commissioner of Social Security, 7 Fed. Appx. 358, 2001 WL 303522 (6th Cir. 2001).

                The second part of the evaluation process relates to ability to engage in substantial

gainful activity. Here the implementing regulations incorporate many of the standards set forth in

regulations governing initial disability determinations. See 20 C.F.R. § 404.1594(b)(5) and (f)(7).

The difference, of course, is that the ultimate burden of proof lies with the Commissioner in

termination proceedings. Id.; Griego v. Sullivan, 940 F.2d 942, 944 (5th Cir. 1991).

                With this legal framework in mind, we have reviewed the medical records and the

decision of the ALJ. This case turns on whether substantial evidence shows there has been medical

improvement in Kennedy’s impairments, other than improvement which is not related to her ability

to work. We conclude that there is not.


                                                  7
No. 06-6582
Kennedy v. Astrue


       Psychological Impairment

               The ALJ’s decision pointed to three factors “consistent with significant improvement

in psychological functioning.” (ALJ Decision at 6). According to the ALJ, “[n]o treating or

examining source has noted a blunted effect or depressed mood” since 1995 and GAF scores

increased from 55 to 60. Id. The ALJ also noted that the state agency psychological consultant

assessed mild limitations in activities of daily living, moderate limitation in social functioning, mild

limitations in concentration, persistence and pace, and that she could “understand, remember and

carry out, and sustain simple tasks, adapt to workplace changes and function more effectively in a

task verses public setting.” Id. at 7. With the exception of Kennedy’s ability to function effectively

in a public setting, which was not assessed in 1995, these functional abilities are the same as those

assessed in 1995.

               While the ALJ correctly pointed to various functional abilities possessed by Kennedy,

including her ability to understand, retain and carry out simple to somewhat more complicated

instructions and tasks, sufficient focus, concentration and persistence to be able to complete and

carry out a work assignment and her ability to interact appropriately with fellow workers, no effort

was made by the ALJ nor any medical source to compare her abilities or her limitations to those

possessed at the time of the initial determination. Medical improvement is any decrease in the

medical severity of the claimant’s impairment which was present at the time of the prior favorable

decision. Medical improvement “is determined by a comparison of prior and current medical

evidence . . .” 20 CFR § 404.1594(c)(1). As noted above, Kennedy appears to have had essentially


                                                   8
No. 06-6582
Kennedy v. Astrue


the same functional abilities 1995 as these noted by the ALJ in support of his finding of medical

improvement. The conclusions of the Commissioner and the ALJ that these functional abilities

indicate medical improvement is not supported by substantial evidence and is in fact contrary to the

evidence in the record.

               The ALJ’s finding that “[n]o treating or examining source has noted a blunted affect

or depressed mood” since 1995 is also contradicted by the record. Contrary to the Commissioner’s

assertions that Dr. Maryman found no signs of depression on continuing disability review, Dr.

Maryman’s diagnosis was dysthymic disorder, listed as a mood disorder characterized by “a

chronically depressed mood” in the Diagnostic and Statistical Manual of Mental Disorders, 4th

Edition. (DSM-IV). Kennedy’s treating physician diagnosed her repeatedly from 1994 through 2003

as suffering from depression. It is true that Dr. Maryman did not report that he observed a blunted

affect on the date of his examination; however, such a failure to observe this condition on the day

of examination does not logically lead to a conclusion of medical improvement. Likewise, Dr.

Maryman’s observation that Kennedy, at the time of the examination, “showed no signs of acute

emotional distress” and “no signs of anxiety, timidity, or depression” does not necessarily indicate

the lack of “depressed mood,” which “is consistent with significant improvement in psychological

function.”

               Perhaps the most troubling aspect of the Commissioner’s position concerning

Kennedy’s psychological impairment relates to her GAF score. Dr. Winston assigned a GAF score

of 55 in 1995. Dr. Maryman found a 2003 GAF equal to 60. The ALJ considerd the increase from


                                                 9
No. 06-6582
Kennedy v. Astrue


55 to 60 to “reflect improvement in mental functioning” and the Commissioner points to the current

score of 60 as an “improved GAF.” (Appellee’s Brief at 15).

               A GAF score of 60 indicates a moderate impairment in psychological functioning.

See Kornecky v. Commissioner of Social Security, 167 Fed. Appx. 496, 503 (6th Cir. 2006)

(explaining that a “GAF of 51-60 indicates moderate symptoms (e.g., flat affect and circumstantial

speech, occasional panic attacks), or moderate difficulty in social, occupational, or school

functioning (e.g. few friends, conflict with peers or co-workers).” Id. (internal quotation marks

omitted) GAF is a clinician’s subjective rating of an individual’s overall psychological functioning.

A GAF score may help an ALJ assess mental RFC, but it is not raw medical data. Rather, it allows

a mental health professional to turn medical signs and symptoms into a general assessment,

understandable by a lay person, of an individual’s mental functioning. Id. at n.7.

               Furthermore, the Commissioner “has declined to endorse the [GAF] score for ‘use

in the Social Security and SSI disability programs,’ and has indicated that [GAF] scores have no

‘direct correlation to the severity requirements of the mental disorders listings.’” DeBoard v.

Commissioner of Social Security, 211 Fed. Appx. 411 (6th Cir. 2006) (quoting Wind v. Barnhart,

No. 04-16371, 2005 WL 1317040, at *6 n.5, 133 Fed. Appx. 684 (11th Cir. June 2, 2005) (quoting

65 Fed. Reg. 50746, 50764-65 (Aug. 21, 2000)). The GAF scores, therefore, are not raw medical

data and do not necessarily indicate improved symptoms or mental functioning. Even if that were

the case, the improvement in score alone has not been shown to be significant in this case since the

1995 GAF score (55) is in the same range as the 2003 score (60). Both scores indicate moderate


                                                 10
No. 06-6582
Kennedy v. Astrue


symptoms or moderate difficulty in social, occupational or school functioning. The argument of the

Commissioner and the finding of the ALJ that the increased GAF score reflects “improvement in

mental functioning” is not supported by substantial evidence.

       Obesity

               At the time of the prior determination, Kennedy weighed 276 pounds. Based upon

her “morbid obesity,” a state agency physician, Logan M. Mahaffey, M.D., found exertional

limitations with lifting, standing and sitting. The agency physician found that Kennedy had the

physical functional capacity of lifting and/or carrying 20 pounds occasionally and 10 pounds

frequently, of standing at least two hours in an eight-hour workday (but not about 6 hours in an eight-

hour workday) and of sitting about six hours in an eight-hour workday. Dr. Mahaffey also found

occasional (occurring from very little up to one-third of an eight-hour workday, cumulative)

limitations in climbing, balancing, stooping, keeling, crouching and crawling.

               On April 30, 2003, the day before the ALJ determined her disability to have ceased,

Kennedy weighed 299 pounds.3 At the time of her hearing on April 13, 2005, Kennedy weighed 265

pounds. Throughout the entire period between the 1994 decision and the 2003 decision, Kennedy’s

weight fluctuated. The only medical evidence in the file concerning any physical impairment is the

report of a state agency physician, C. Hernandez, M.D. Dr. Hernandez’s total report consists of the

handwritten notation: “You are correct!! LTS. Thanks.” From this notation, the ALJ concludes, by



       3
         The ALJ’s decision cites a weight of 285 pounds in April, 2003. This was actually the weight
documented in the medical records for May 28, 2003.

                                                  11
No. 06-6582
Kennedy v. Astrue


comparing Dr. Hernandez’s conclusion of “less than severe physical impairments” to the limitation

in 1994 to light physical exertion, that there is “medical improvement.” The Commissioner argues,

in his brief, that Dr. Hernandez’s opinion “that claimant’s physical impairments do not limit her

ability to work,” not contradicted by any evidence from a treating or examining source, constitutes

substantial evidence in support of the ALJ’s decision. (Appellee’s Brief at 20).

                We disagree. The reliance of the Commissioner and the ALJ on Dr. Hernandez’s

conclusion is flawed for a very simple reason. A review of the consultation request sent to Dr.

Hernandez indicates physical disorders of “asthma, TB, vision, stomach.” No mention is made of

Kennedy’s obesity and no evidence appears in the record suggesting that Dr. Hernandez evaluated

the effects of her obesity on her physical functioning. Furthermore, as the Commissioner correctly

argues, a mere diagnosis of obesity does not establish either the condition’s severity or its effect on

Kennedy’s functional limitations.

                Because the record contains no evidence of improvement in physical functioning

related to Kennedy’s obesity, both parties focus their arguments on Kennedy’s weight at various

points since the prior decision and on whether SSR 02-1P, 2000 WL 628049 (S.S.A.), applies to this

case. Kennedy argues that SSR 02-1P dictates a finding that there has been no medical improvement

in her obesity since the prior decision.4 The Commissioner, on the other hand, argues that SSR 02-

1P has no application to this case but rather applies only to cases where the claimant was previously



        4
           SSR 02-1P provides that SSA will consider obesity to have medically improved if an
individual maintains a consistent loss of at least ten percent of body weight for at least twelve months.

                                                    12
No. 06-6582
Kennedy v. Astrue


found disabled under the now deleted listing 9.09. Kennedy was not found disabled under listing

9.09. 5

               We need not decide the reach of SSR 02-1P for the purposes of this appeal. It is for

a more basic reason that we find that no substantial evidence supports the decision of the ALJ that

improved physical functioning has been established in this case. This record contains nothing to

indicate that any effort was made to determine what, if any, effect Kennedy’s obesity has on her

current level of physical functioning and no comparison was made of Kennedy’s impairments at the

time of the review and those present at the time of the prior determination. The Commissioner

concedes that evaluation of obesity requires “an individualized assessment of the impact of obesity

on an individual’s functioning,” and that obesity is “properly assessed by its actual impact on other

systems through increased functional limitation.” (Appellee’s Brief at 18). This is exactly what was

not done in this case.

               Because this is a case which requires a showing of changed circumstances (i.e.,

medical improvement) in order to displace earlier findings, Drummond v. Commissioner of Social

Security, 126 F.3d 837, 842 (6th Cir. 1997) (holding that “when the Commissioner has made a final

decision concerning a claimant’s entitlement to benefits, the Commissioner is bound by this

determination absent changed circumstances”), a comparison between circumstances existing at the


          5
          The Commissioner deleted listing 9.09 effective October 25, 1999. The listing was met
by a claimant with weight equal to or greater than set forth in certain tables (100 percent above
desired level) and arthritis in any weight bearing joint, hypertension with diastolic blood pressure
persistently in excess of 100 mm. Hg, history of congestive heart failure, chronic venous
insufficiency or respiratory disease with hypoxemia.

                                                 13
No. 06-6582
Kennedy v. Astrue


time of the prior decision and circumstances existing at the time of the review is necessary. When

the cessation of benefits is the issue, the Commissioner is not to make a new medical determination

but rather is to determine whether there has been “medical improvement,” (i.e., a decrease in the

severity of impairment). 20 C.F.R. § 416.994(b)(1)(i). The required comparison simply was not

made in this case.

                                          CONCLUSION

               Having found that substantial evidence does not support the Commissioner’s decision

in this case, we must then determine the nature of the remand. Kennedy seeks a remand of the case

to the Commissioner for an award of continuing benefits. The Court can reverse a decision of the

Commissioner and immediately award benefits only if all essential factual issues have been resolved

and the record adequately establishes a plaintiff’s entitlement to benefits. Faucher v. Secretary, 17

F.3d 171, 176 (6th Cir. 1994); Abbott v. Sullivan, 905 F.2d 918, 927 (6th Cir. 1990). A judicial

award of benefits is proper only where the proof of disability is overwhelming or where the proof

of disability is strong and evidence to the contrary is lacking. Mowery v. Heckler, 771 F.2d 966, 973

(6th Cir. 1985). On the other hand, 42 U.S.C. § 405(g) gives the court the power to remand for a

rehearing, and the court is obliged to do so if all essential factual issues have not yet been resolved.

Newkirk v. Shalala, 25 F.3d 316, 318 (6th Cir. 1994).

               The question of whether to remand to the district court for an immediate award of

benefits or to remand for further fact finding is a close one in this case. On the one hand, the

ultimate burden is on the Commissioner in termination proceedings and we have found that


                                                  14
No. 06-6582
Kennedy v. Astrue


substantial evidence does not support the termination. On the other hand, while there is some

evidence in this case of some medical improvement in Kennedy’s psychological impairment in that

she would “appear to be better suited for a medium to lower stress work environment,” there was

no comparison of prior and current medical evidence as required by the law and there was no

evidence concerning how Kennedy’s obesity affects her physical functional capacity.

               In this termination of benefits case, it was incumbent upon the Commissioner to

provide evidence of medical improvement and to develop the record at the evidentiary hearing before

the ALJ. He failed to do so. Because evidence of medical improvement is lacking in the record, we

see no reason to remand for further factual development.

               We therefore REVERSE the judgment of the district court and REMAND with

instructions to the district court to remand the case for an award of continuing benefits.




                                                 15
