        RECOMMENDED FOR FULL-TEXT PUBLICATION
             Pursuant to Sixth Circuit Rule 206               2    Jones v. Commissioner of Soc. Sec.          No. 01-2315
    ELECTRONIC CITATION: 2003 FED App. 0231P (6th Cir.)
                 File Name: 03a0231p.06                       Township, Michigan, for Appellee. ON BRIEF: Sharon
                                                              Swingle, John C. Hoyle, UNITED STATES DEPARTMENT
                                                              OF JUSTICE, CIVIL DIVISION, Washington, D.C., for
UNITED STATES COURT OF APPEALS                                Appellant. Kenneth F. Laritz, Clinton Township, Michigan,
                                                              for Appellee.
               FOR THE SIXTH CIRCUIT
                 _________________                                                _________________
                                                                                      OPINION
 ANGELA M. JONES,                 X                                               _________________
            Plaintiff-Appellee, -
                                   -                            BOGGS, Circuit Judge. In December 1999 and February
                                   -  No. 01-2315             2000, Angela M. Jones applied for disability insurance
           v.                      -                          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.
 COMMISSIONER OF SOCIAL            -
 SECURITY,                                                    After the denial of her application for benefits, Ms. Jones
                                   -                          requested a hearing before an Administrative Law Judge
         Defendant-Appellant. -                               (ALJ), who found that she was not disabled within the
                                   -                          meaning of the Social Security Act (the Act). The ALJ’s
                                  N                           decision became the final decision of the Commissioner of
      Appeal from the United States District Court            Social Security (the Commissioner) and Ms. Jones
     for the Eastern District of Michigan at Detroit.         subsequently sought judicial review of that decision by the
   No. 00-74924—Anna Diggs Taylor, District Judge.            district court. The district court held that the ALJ’s findings
                                                              were not supported by substantial evidence in the record and
                 Argued: March 27, 2003                       ruled in favor of Ms. Jones. The Commissioner now appeals
                                                              the district court’s judgment, arguing that there was
            Decided and Filed: July 15, 2003                  substantial evidence in the record to support the ALJ’s
                                                              decision. We agree with the Commissioner and reverse the
 Before: BOGGS, SUHRHEINRICH, and SILER, Circuit              district court’s decision.
                    Judges.
                                                                                            I
                   _________________
                                                                Ms. Jones alleges that she has been unable to work since
                       COUNSEL                                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
ARGUED:        Sharon Swingle, UNITED STATES                  had previously worked as a recycling collector, a waitress,
DEPARTMENT OF JUSTICE, CIVIL DIVISION,                        and a babysitter. Ms. Jones continued to apply for jobs, but
Washington, D.C., for Appellant. Kenneth F. Laritz, Clinton   reported that she was unable to sustain them for more than a

                            1
No. 01-2315         Jones v. Commissioner of Soc. Sec.         3   4    Jones v. Commissioner of Soc. Sec.           No. 01-2315

few hours because of panic attacks and crying spells, which        Functioning) score of 55 and diagnosed her as having a
would cause her to leave work.                                     “panic disorder with agoraphobia” and a mild first episode of
                                                                   major depression without psychotic features. The doctor
  Ms. Jones first sought medical treatment for her condition       continued her treatment with medication and directed that she
on November 6, 1999, at a local health center, where she was       return in a month for further analysis.
diagnosed as having a panic disorder with agoraphobia, and
a recurrent major depressive disorder, pending an initial              Ms. Jones also visited a counselor at the clinic: Kathleen
evaluation by a psychiatrist. On November 23, 1999, Ms.            Berrisford, MSW, CSW. On December 15, 1999, Berrisford
Jones was seen by Dr. Burgoyne, a psychiatrist at the center,      reported that Ms. Jones was crying because she had “run out
who noted that she complained of longstanding panic attacks,       of gas,” but that the medication was helping. On January 12,
depression, insomnia, low motivation and dizzy spells on           2000, Berrisford reported that Ms. Jones was depressed most
most days, but that she was “very organized,” and was              of the time, but noted that Ms. Jones was only taking one-
peaceful in appearance. He prescribed Imipramine and               third of her medications. On February 9, 2000, Berrisford
Xanax.                                                             reported that Ms. Jones was smiling and apparently felt better,
                                                                   concluding that the medication was having an impact on Ms.
   On December 11, Dr. Burgoyne again saw Ms. Jones, for           Jones’s condition. In March 2000, however, Ms. Jones’s
a formal evaluation of her condition. After listing the various    condition appeared to worsen again. A different counselor,
symptoms reported by Ms. Jones, including the fact that she        filling in for Berrisford, noted that Ms. Jones came late to the
had left at least seven jobs since August 1999 as a result of      appointment, and that although Xanax had reduced the
her panic attacks, Dr. Burgoyne stated in his report that:         number of panic attacks and eliminated the reoccurring pains
                                                                   in her chest, Ms. Jones reported that she was “crying more
     Ms. Jones presents as oriented to time, place, person,        days than not.”
  and situation. She is cooperative and does not
  demonstrate untoward anxiety. There are no signs of                On March 28, 2000, Mary Gerwoll, a psychologist,
  psychomotor deficit, physical limitation, or tremors. Her        examined Ms. Jones. She diagnosed Ms. Jones as having a
  weight is proportionate to her height. Her clothing and          mild recurrent major depressive order and a personality
  self care are appropriate. Her thinking is organized, goal       disorder with borderline features. Dr. Gerwoll noted that Ms.
  directed, spontaneous, and progressive. She denies               Jones’s panic attacks were “situationally predisposed,” and
  suicidal and homicidal ideas. There are no significant           did not appear to meet the full criteria for a panic disorder.
  form or content deficits in speech. Her mood is euthymic         Dr. Gerwoll assigned Ms. Jones a GAF score of 60 and noted
  in appearance. Her affect is appropriate to the situation,       that her prognosis was “guarded - due to early onset and
  however it does not reflect the depression and anxiety           chronicity.” In her notes on Ms. Jones’s personal history, Dr.
  that she complains of.                                           Gerwoll stated that “[s]ince being fired [Ms. Jones] has gotten
                                                                   about 20 jobs and just walked out.”
Dr. Burgoyne further noted that Ms. Jones had reported an
improvement in her condition over the last three weeks,              In April 2000, a clinical assessment form reflected that Ms.
“since she [had] been taking Imipramine 100mg, and Xanax           Jones’s status was improving and that she was to start taking
.25 mg sublingual prn impending panic.” Dr. Burgoyne               20mg of Paxil in addition to Imipramine and Xanax. On
assigned Ms. Jones a GAF (Global Assessment of                     April 9, 2000, Dr. Kriauciunias, a licensed psychologist,
No. 01-2315        Jones v. Commissioner of Soc. Sec.       5    6        Jones v. Commissioner of Soc. Sec.        No. 01-2315

reviewed Ms. Jones’s file and filled out a Psychiatric Review    had not yet begun taking Depakote. Ms. Jones denied having
Form for the Social Security Administration.               Dr.   disabling panic and depression. At the hearing in October
Kriauciunias concluded that Ms. Jones suffered from an           2000, Ms. Jones testified that she was taking all four drugs.1
affective disorder and a personality disorder, and checked the
box that stated “a severe impairment is present which does                                           II
not meet or equal a listed impairment.” Dr. Kriauciunias’s
functional assessment was that Ms. Jones was moderately                       The Administrative Law Judge’s Hearing
limited in her ability to remember detailed instructions, to
maintain regular attendance, attention, and concentration for      The Social Security Act defines disability as the inability to
extended periods, and also in her ability to interact with the   engage in any substantial gainful activity by reason of a
general public. However Dr. Kriauciunias concluded that she      medically determinable physical or mental impairment that
could perform simple, low-stress unskilled work.                 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
  In June and July of 2000, clinical assessment forms            months. 42 U.S.C. §§ 423(d)(1)(A), (d)(2)(A); 20 C.F.R.
reflected that Ms. Jones’s status was deteriorating. After an    § 404.1505; see also 20 C.F.R. § 404.1509. To be found
appointment on June 28, 2000, Berrisford reported that Ms.       disabled, Ms. Jones’s impairments must not only prevent her
Jones was depressed, crying, unmotivated, missing                from doing her previous work, but, considering her age (29 at
appointments, and sleeping night and day. According to           the time of the ALJ’s decision), education (eighth grade
Berrisford, Ms. Jones regarded the medications as no longer      education), and work experience (machine operator, recycling
working, since she was experiencing a “loss of concentration,    collector, waitress, and babysitter), must also render her
fatigue, loss of all pleasure, [and could not] work or           unable to engage in any other kind of work that exists in
socialize,” but she was not suicidal. In July, Dr. Burgoyne      significant numbers in the national economy. 42 U.S.C.
adjusted her medication by lowering the amount of Paxil and      § 1382c(a)(3)(B); Bogle v. Sullivan, 998 F.2d 342, 347 (6th
increasing her dosage of Imipramine, in an effort to return to   Cir. 1993).
the dosages being taken by Ms. Jones in May, when she had
been feeling better.                                               To determine if a claimant is disabled within the meaning
                                                                 of the Act, the ALJ employs a five-step inquiry defined in 20
  On August 1, 2000, a clinical assessment form filled out by    C.F.R. § 404.1520; Abbott v. Sullivan, 905 F.2d 918, 923 (6th
Dr. Burgoyne reflected that Ms. Jones was once again             Cir. 1990) (citing 20 C.F.R. § 404.1520). Through step four,
improving, but prescribed a new drug for Ms. Jones,              the claimant bears the burden of proving the existence and
Depakote, in order to deal with her “mood instability.”          severity of limitations caused by her impairments and the fact
Nevertheless, on August 19, another assessment form filled       that she is precluded from performing her past relevant work,
out by Dr. Burgoyne noted that the “gatekeeper” had not          but at step five of the inquiry, which is the focus of this case,
ordered Depakote and thus Ms. Jones had not yet been started     the burden shifts to the Commissioner to identify a significant
on the drug. In addition, the form noted that she exhibited      number of jobs in the economy that accommodate the
“mild pressured speech” and reported that she was unable to      claimant’s residual functional capacity (determined at step
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            1
                                                                         Depako te, Paxil, Imipramine, and Xanax.
No. 01-2315         Jones v. Commissioner of Soc. Sec.         7    8    Jones v. Commissioner of Soc. Sec.           No. 01-2315

four) and vocational profile. See Bowen v. Yuckert, 482 U.S.                 Is there substantial evidence to support the
137, 146 n.5 (1987).                                                                  Commissioner’s decision?
  At the hearing, the vocational expert (VE) testified to the         In order to affirm the Commissioner’s determination, the
fact that if Ms. Jones’s testimony regarding her constant           decision must be supported by substantial evidence in the
crying spells, daily panic attacks, inability to leave the house,   record as a whole. 42 U.S.C. § 405(g); Walters v.
and inability to get along with others were to be credited,         Commissioner, 127 F.3d 525, 528 (6th Cir. 1997).
there were no jobs that would fit her needs. However, the           “‘Substantial evidence’ is defined as ‘such relevant evidence
ALJ did not find Ms. Jones’s testimony to be entirely credible      as a reasonable mind might accept as adequate to support a
and instead constructed a hypothetical question for the VE          conclusion.’” Stanley v. Secretary of Health & Human Servs.,
that incorporated his own assessment of Ms. Jones’s                 39 F.3d 115, 117 (6th Cir. 1994) (quoting Richardson v.
limitations, asking the VE to assume that Ms. Jones would be        Perales, 402 U.S. 389, 401 (1971)). Furthermore, we must
capable only of light work, which was not at an “unprotected        defer to an agency’s decision “even if there is substantial
height,” that did not require Ms. Jones to drive, climb, or         evidence in the record that would have supported an opposite
work around dangerous or hazardous machinery, was                   conclusion, so long as substantial evidence supports the
“relatively simple and routine in nature, not requiring more        conclusion reached by the ALJ.” Key v. Callahan, 109 F.3d
than very few steps,” and that the work be low in stress and        270, 273 (6th Cir. 1997).
include only very limited contact with other people. The VE
responded that under such circumstances, Ms. Jones could               The ALJ stated in his written order that Ms. Jones was
perform light janitorial work, some stock positions, and            moderately impaired in social functioning, given her crying
material handling positions, all of which were unskilled, light     spells and her problems with anger, and had a moderate
work that did not “involve much contact with people.” The           impairment of concentration, persistence, and pace.
VE further testified that there were a significant number of        Nevertheless, the ALJ concluded that Ms. Jones’s statements
these jobs available in the Detroit metropolitan area.              regarding the severity of her symptoms and her attempts to
                                                                    find work were not fully credible, and that she was capable of
  The ALJ subsequently performed the required five-step             showing up at a job every day, despite Dr. Kriauciunias’s
evaluation and found that Ms. Jones’s claim survived the            assessment that she was moderately impaired in her ability to
requirements of the first four steps, but did not meet the          maintain attendance. Moreover, the ALJ found that she was
requirements of step five, since there are jobs other than her      limited to a light level of exertion on the basis of her lowered
past relevant work that exist in significant numbers in the         energy level resulting from her depression. Accordingly, the
national economy, which can accommodate her residual                ALJ determined that Ms. Jones should be capable of
functional capacity. Accordingly, the ALJ denied Ms. Jones’s        performing light work, but work that did not include
application for benefits, having determined that she was not        unprotected heights, driving, climbing or operating hazardous
disabled for purposes of the Act.                                   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    10   Jones v. Commissioner of Soc. Sec.           No. 01-2315

evidence. More specifically, Ms. Jones contends that the ALJ     credibility, where his behavior and the medical evidence was
should not have disregarded her testimony and presented the      inconsistent with the claimant’s testimony).
VE with a hypothetical based on his own assessment, since in
her opinion, her testimony was consistent with the analysis of      Here, the ALJ found that Ms. Jones was not credible in
the various mental health professionals that saw her. Had the    light of the observations made by her own treating physician,
ALJ credited Ms. Jones’s testimony, she would have been,         the psychologists that separately evaluated her, and various
according to the VE’s testimony at the ALJ’s hearing,            inconsistencies in her own statements. Upon review, we are
incapable of holding a job and would, therefore, be              to accord the ALJ’s determinations of credibility great weight
considered disabled pursuant to the Act. In addition, Ms.        and deference particularly since the ALJ has the opportunity,
Jones contends that the ALJ improperly disregarded Dr.           which we do not, of observing a witness’s demeanor while
Kriauciunias’s conclusion that she could not maintain regular    testifying. Walters, 127 F.3d at 528 (citations omitted).
attendance, which would also preclude her from working. We       Therefore, we are limited to evaluating whether or not the
first deal with the issue of whether the ALJ’s determination     ALJ’s explanations for partially discrediting Ms. Jones are
of Ms. Jones’s credibility was supported by substantial          reasonable and supported by substantial evidence in the
evidence.                                                        record.

   There is no question that subjective complaints of a             The ALJ first found that Ms. Jones’s symptoms were not as
claimant can support a claim for disability, if there is also    severe as she suggested in her testimony. Dr. Burgoyne’s
objective medical evidence of an underlying medical              reports support this finding, since he did not find her
condition in the record. See Young v. Secretary of Health &      symptoms or her disorder to be severe and even noted in one
Human Servs., 925 F.2d 146, 150-51 (6th Cir. 1990); Duncan       of his reports that her complaints were “less than credible.”
v. Secretary of Health & Human Servs., 801 F.2d 847, 852         Additionally, in Dr. Burgoyne’s original assessment on
(6th Cir. 1986). The doctors in this case diagnosed Ms. Jones    December 11, 1999, he reported that Ms. Jones’s appearance
with various disorders, medicated her for those disorders, and   did “not reflect the depression and anxiety that she
have therefore supplied the requisite objective medical          complain[ed] of.” Furthermore, Dr. Kriauciunias found that
condition to support Ms. Jones’s claim for disability.           Ms. Jones was “[n]ot significantly limited for simple, low-
Nevertheless, an ALJ is not required to accept a claimant’s      stress unskilled work.” On several occasions, the mental
subjective complaints and may properly consider the              health professionals who spent time with Ms. Jones noted that
credibility of a claimant when making a determination of         she was pleasant and had a normal appearance. Berrisford’s
disability. See Walters v. Commissioner of Social Sec., 127      notes from her therapy sessions with Ms. Jones provide the
F.3d 525, 531 (6th Cir. 1997) (citing Kirk v. Secretary of       best support for Ms. Jones’s testimony, in that they verify that
Health & Human Servs., 667 F.2d 524, 538 (6th Cir. 1981)).       she would have crying spells and was not always cooperative
In addition, the ALJ can present a hypothetical to the VE on     and pleasant. However, the ALJ did not dispute that Ms.
the basis of his own assessment if he reasonably deems the       Jones has the disorders she has been diagnosed with, only the
claimant’s testimony to be inaccurate. See Townsend v.           severity of her symptoms, which he viewed as being in
Secretary of Health & Human Servs., 762 F.2d 40, 44 (6th         contradiction with the observations made by the medical
Cir. 1985). See also Blacha v. Secretary of Health & Human       personnel who evaluated her.
Servs., 927 F.2d 228, 231 (6th Cir. 1990) (holding that the
ALJ had an adequate basis to discount Mr. Blacha’s
No. 01-2315             Jones v. Commissioner of Soc. Sec.                11     12   Jones v. Commissioner of Soc. Sec.           No. 01-2315

   The ALJ’s credibility determination with respect to Ms.                       Harris v. Heckler, 756 F.2d 431, 435 (6th Cir. 1985). If the
Jones’s testimony regarding her unsuccessful efforts to obtain                   treating physician’s opinion is not supported by objective
work is also reasonable. The ALJ explained in his written                        medical evidence, the ALJ is entitled to discredit the opinion
order that he found it likely that Ms. Jones, had she been                       as long as he sets forth a reasoned basis for her rejection. See
telling the truth about having left so many jobs as a result of                  Shelman, 821 F.2d at 321. Here, we are dealing with a
crying spells and panic attacks, would have discussed such                       reviewing physician’s opinion, which is due, if anything, less
events with Berrisford, in whose reports such events were                        deference than the treating physician’s opinion and thus the
notably lacking. Furthermore, the ALJ relied on the fact that                    same standard may be applied. There was no objective
there were several discrepancies in Ms. Jones’s testimony                        medical evidence supporting Dr. Kriauciunias’s assessment
regarding the number of job attempts made. Although the                          that Ms. Jones was limited in her ability to maintain regular
discrepancies are potentially reconcilable,2 Ms. Jones does                      attendance and the ALJ discredited his opinion by carefully
not argue this on appeal and the ALJ’s conclusions appear to                     reasoning that since it was undisputed that Ms. Jones was able
be reasonable.                                                                   to take her daughter to school each morning and pick her up
                                                                                 each afternoon, she was capable of maintaining a regular
  Finally, the ALJ disregarded only one conclusion made by                       schedule. The ALJ’s determination was, therefore, reasonable
a medical professional, and that is Dr. Kriauciunias’s                           and supported by the evidence.
assessment that Ms. Jones was moderately limited in her
ability to maintain regular attendance. A treating physician’s                     The district court focused in its brief ruling from the bench
opinion is normally entitled to substantial deference, but the                   on Ms. Jones’s testimony regarding her crying spells, and
ALJ is not bound by that opinion. See Shelman v. Heckler,                        found that since the ALJ did not explain “why [Ms. Jones]
821 F.2d 316, 321 (6th Cir. 1987). The treating physician’s                      was totally disbelieved about the crying spells[,] . . . the
opinion must be supported by sufficient medical data. See                        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
    2
       On November 6 , 199 9, the initial re port filled out b y the clinic      testimony entirely as to her crying spells; he only disputed the
reflects Ms. Jone s’s stateme nt that she had “a pplied for 1 5 jobs and will    severity of her symptoms. Furthermore, the ALJ articulated
not go d ue to her anxiety and depression.” Dr. Burgoyne’s report of             his reasons for rejecting Ms. Jones’s testimony in some detail.
December 1 1, 1 999, states th at M s. Jones informed him that she had to        Second, the substantial deference accorded the ALJ’s findings
leave “seven or more jo bs since August of 1 999 .” Dr. Gorwell’s report
from March 28, 2000, states that Ms. Jones reported having “gotten about         of credibility, and the standard of review for the
20 jobs” in which she “just walked out.” Dr. Gorwell’s report, which the         Commissioner’s findings of fact pursuant to 42 U.S.C.
ALJ determined to be in conflict with these previous statements, was             § 405(g), militate in favor of upholding the Commissioner’s
filled out over three and a half months after Dr. Burgoyne’s report, and         decision even if the district court would have viewed the
thus it is not impossible that M s. Jones’s statements are consistent, if, for   evidence differently. As noted above, the Commissioner’s
example, she secured a number of jo bs du ring that time period. In fact,
it may be that Ms. Jones was consolidating in her answer to Dr. Go rwell         decision cannot be overturned if substantial evidence, or even
those jobs that she applied for and did not go to, with those jobs that she      a preponderance of the evidence, supports the claimant’s
had started and left, and that this “discrepancy” is a misunderstanding.         position, so long as substantial evidence also supports the
Nevertheless, Ms. Jones does not argue on appeal that these seemingly            conclusion reached by the ALJ. In this case there was more
inconsistent statements are reconcilab le. Instead she argues that these         than enough evidence to support the ALJ’s finding.
inconsistencies are part of her disab ility. We do not see how this is
helpful to her p osition.
No. 01-2315         Jones v. Commissioner of Soc. Sec.       13    14   Jones v. Commissioner of Soc. Sec.   No. 01-2315

  In sum, it was entirely proper for the ALJ to present the                                   III
vocational expert with the hypothetical he constructed, which
did not reflect Ms. Jones’s complaints, including the constant       For the reasons given above, we REVERSE the district
crying spells, since the hypothetical was supported by             court’s judgment.
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.
