                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 12a0498n.06

                                           No. 10-2583
                                                                                          FILED
                          UNITED STATES COURT OF APPEALS                             May 15, 2012
                               FOR THE SIXTH CIRCUIT                           LEONARD GREEN, Clerk


COLLEEN MALONEY,                                         )
                                                         )
       Plaintiff-Appellant,                              )        ON APPEAL FROM THE
                                                         )        UNITED STATES DISTRICT
               v.                                        )        COURT FOR THE EASTERN
                                                         )        DISTRICT OF MICHIGAN
COMMISSIONER OF SOCIAL SECURITY,                         )
                                                         )
       Defendant-Appellee.                               )
                                                         )


BEFORE: MERRITT and ROGERS, Circuit Judges, and POLSTER, District Judge.*

       ROGERS, Circuit Judge. Colleen Maloney, a woman who suffers from schizophrenia,

appeals the denial of her application for Social Security disability benefits.         After a full

administrative hearing, an ALJ denied Maloney’s application. In doing so, the ALJ discounted the

opinion of Maloney’s treating physician, and excluded the lay witness testimony of Maloney’s sister-

in-law. The Appeals Council of the Social Security Administration denied Maloney’s administrative

appeal, and the district court affirmed. This was proper because the treating physician’s opinion

conflicted with the overwhelming record evidence, and Maloney waived the lay witness issue.

                                                 I.

       Maloney, a diagnosed schizophrenic, filed this disability claim alleging that she became

unable to work on August 8, 2003. The magistrate judge summarized the record evidence:

       *
        The Honorable Dan Aaron Polster, United States District Judge for the Northern District of
Ohio, sitting by designation.
No. 10-2583
Maloney v. Comm’r of Soc. Sec.


               A review of the record evidence indicates that Plaintiff was treated at Catholic
       Services of Macomb for mental health issues from 2001-04. In 2004, R. Hasan,
       M.D., diagnosed Plaintiff with schizophrenia, paranoid type in partial remission at
       Axis I, deferred on Axis II, bladder problem[s] and acid reflux disease on Axis III,
       moderate on Axis IV and a GAF score of 50 to 55 on Axis V. Her prognosis was fair
       with treatment.1

               In 2004, a Psychiatric Review Technique indicated that Plaintiff has
       schizophrenic, paranoid, or other psychotic disorder (12.03) which moderately limit
       her ability to maintain social functioning and maintain concentration, persistence and
       pace, and which mildly restricts her activities of daily functioning. A Residual
       Functional Capacity (RFC) Assessment completed at the same time concluded that
       Plaintiff is moderately limited in the ability to complete a normal workday and
       workweek without interruptions and to perform at a consistent pace without an
       unreasonable number and length of rest periods, the ability to get along with
       coworkers or peers without distracting them or exhibiting behavioral extremities, and
       in the ability to set realistic goals or make plans independently of others.

                Plaintiff was also treated at the Evergreen Counseling Centers from late 2004
       through in 2005. In March of 2005, Plaintiff was not hearing voices but she did have
       some tangential thinking with mild paranoia and was struggling with past compulsive
       buying and thoughts of an imaginary relationship with a man she met on a cruise
       ship. Throughout 2005, her counselors noted that Plaintiff was looking for a job, was
       hopeful that she would get job training or a job, and the counselors were supporting
       her in that search and were helping her make more structured use of her leisure time.

               In 2005, another Psychiatric Review Technique indicated that Plaintiff has
       affective disorders (12.04) and personality disorders (12.08) which moderately limit
       her ability to maintain concentration, persistence or pace and which mildly restrict
       her activities of daily living and ability to maintain social functioning. An RFC
       Assessment completed at the same time found Plaintiff moderately limited in the


       1
          “The [Global Assessment of Functioning] GAF scale is a method of considering
psychological, social, and occupational function on a hypothetical continuum of mental health. The
GAF scale ranges from 0 to 100, with serious impairment in functioning at a score of 50 or below.
Scores between 51 and 60 represent moderate symptoms or a moderate difficulty in social,
occupational, or school functioning, whereas scores between 41 and 50 represent serious symptoms
or serious impairment in these areas.” Norris v. Comm’r of Soc. Sec., No. 11-5424, 2012 WL
372986 (6th Cir. Feb. 7, 2012).

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Maloney v. Comm’r of Soc. Sec.


      ability to carry out detailed instructions, the ability to interact appropriately with the
      general public, and the ability to set realistic goals or make plans independently of
      others. It was also noted that although Plaintiff has been on psychotropic medication
      since 1968, “currently [she] is alert, coherent, relevant, cooperative, no evidence of
      thought disorder.”

              Plaintiff also sought counseling at Advanced Counseling Services, P.C. in St.
      Clair Shores, Michigan, from 2006-07. In November of 2007, A.L. Hughett, M.D.,
      noted that “[i]t is difficult to make a diagnosis. She has been hospitalized before with
      extensive depression. Her judgement has been poor in the past.” Dr. Hughett found
      that Plaintiff had several serious limitations and estimated that Plaintiff’s
      impairments would cause her to be absent form work about two days per month.

              In her daily activity report, it was reported that Plaintiff watches television,
      goes to church, has no problems with personal care and hygiene, prepares her own
      meals, vacuums, dusts, washes mirrors and dishes, goes outside twice a day, walks,
      drives and rides in a car, is able to go out alone, shops in stores, shops by mail, is
      able to pay bills and handle personal finances.

            Plaintiff testified that she does housework, attends church, drives herself,
      watches television, visits with friends, grocery shops on her own, takes care of her
      own personal needs.

              Plaintiff testified that she can sit for a couple or three hours, and can stand for
      about three hours, can walk for a quarter or half a mile, and can manipulate her arms
      and fingers. Plaintiff further testified that she can lift around 10 pounds, and can
      carry between 10 and 20 pounds, that she has difficulty bending but does not have
      any trouble pushing or pulling. Plaintiff also testified that she does not have any
      trouble understanding detailed instructions, nor does she have any trouble
      concentrating but she does have difficulty maintaining attention. Plaintiff also
      indicated that she wears hearing aids, has around 20% hearing ability, does not
      tolerate dust or chemicals well, can climb stairs but is afraid of ladders, can kneel on
      the church kneeler but cannot get up from the floor, does not have any trouble
      squatting but has trouble crawling. Plaintiff testified that she has not been
      hospitalized lately.

              Plaintiff testified that she believes she was terminated form her job of thirty
      years because she had not kept up with the production standards and because her
      supervisors were “very negative, and they wanted to get rid of me.” Plaintiff testified
      that she does better if allowed to work at her own pace.

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Maloney v. Comm’r of Soc. Sec.


                Plaintiff also testified that she gets up around 9:00 to go to work part-time,
       i.e., 20 hours per week, for the Detroit Urban League’s family community center.
       Plaintiff works as a clerical receptionist there and does not have to do any typing;
       rather, she greets people, shows them where they are to go, escorts them, and passes
       out emergency groceries. She stated that she does not have any problems relating
       with people on the job. When the Vocational Expert (“VE”) asked Plaintiff if she
       could come into work for eight hours a day, five days a week, she responded that she
       could and when further asked whether she would have any problems doing that,
       Plaintiff responded, “No, I wouldn’t have any problems.”

                The VE testified that Plaintiff could return to her prior work or that she
       maintains the RFC to perform other sedentary, semi-skilled jobs such as data entry,
       receptionist, order clerk, and scheduler jobs that are available in the amount of
       approximately 6,500 in the Detroit area and double that number in the state. The VE
       further testified that his testimony was consistent with the Dictionary of Occupational
       Titles (DOT).

R. 21, Report and Recommendation, at 7-10 (internal citations omitted).

       The ALJ denied Maloney’s application because Maloney did not have a cognizable disability

under the Commissioner’s five-step disability analysis. The ALJ found that Maloney passed step

one because she had not engaged in substantial gainful activity since the alleged onset date of her

disability. The ALJ found that Maloney also passed step two because she had several severe

impairments: schizoaffective disorder, anxiety disorder and depression. However, Maloney did not

pass step three because there was no evidence that her impairments met or equaled one of the

recognized impairments set forth by regulation. Further, the ALJ found Maloney failed step four

because she had the residual functional capacity to perform her past relevant work as a claims

collection and support clerk. Finally, the ALJ found that Maloney failed step five because she had

the residual functional capacity to perform jobs involving semi-skilled work. The Appeals Council

denied Maloney’s administrative appeal.

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       Maloney sought review by the district court. She argued that the ALJ erroneously refused

to allow JoAnn Bolek, Maloney’s sister-in-law, to testify at the hearing. The district court held that

Maloney had waived this argument by failing to raise it to either the ALJ or the Appeals Council.

Maloney v. Comm’r of Soc. Sec., No. 09-13867, 2010 WL 3941284, at *2 (E.D. Mich. Oct. 6, 2010).

Alternatively, the district court held that Bolek’s testimony was unnecessary because the ALJ had

already heard substantial evidence about Maloney’s condition. Id. The district court also found that

the ALJ had properly discounted the opinion of Maloney’s treating physician because the opinion

was inconsistent with other medical evidence and Maloney’s own testimony. Id. at *4-5. The

district court granted judgment for the Commissioner and Maloney appeals.

                                                 II.

       Maloney argues that the ALJ ignored the opinion of her treating physician and erroneously

excluded Bolek from testifying. As explained below, Maloney’s arguments are not well founded.

1.     Treating Physician

       The ALJ properly rejected the opinion of Maloney’s treating physician, Dr. Hughett. An ALJ

gives “controlling weight” to a treating physician’s opinion if the opinion “is not inconsistent with

the other substantial evidence in [the claimant's] case record.” 20 C.F.R. § 404.1527(d), (d)(2). The

ALJ must provide “good reasons” should he decide the treating physician’s opinion deserves less

than controlling weight. Id. Here, the ALJ provided good reasons for rejecting the testimony of Dr.

Hughett, who opined that Maloney’s limitations rendered her unable to meet the basic standards

necessary to perform even unskilled work. The ALJ noted that this opinion conflicted with the


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Maloney v. Comm’r of Soc. Sec.


weight of the other medical evidence. For example, the ALJ found that clinical notes from

Advanced Counseling Services “reveal that throughout the relevant time period [Maloney] has

received essentially routine and conservative treatment for her allegedly disabling mental

impairments.” Further, the ALJ noted that, “the record indicates that [Maloney] has been able to

successfully manage her symptoms with conservative mental health treatment. . . . In fact, in May

2007[,] the records indicate she was doing well on her medications.” The conflict between the

clinical notes and Hughett’s opinion gave the ALJ good reason to discount Dr. Hughett’s opinion.2

        Moreover, Dr. Hughett’s opinion was inconsistent with Maloney’s own testimony regarding

“her ability to engage in [an] array of daily activities and to function socially with no difficulties.”

Further, Hughett’s opinion conflicted with the portions of Maloney’s testimony “regarding her ability

to work, and with the earnings documentation of record that shows she had been able to successfully

maintain employment for several years since the alleged onset date.”

        Finally, as the ALJ noted, Dr. Hughett’s “opinion” consisted only of a check-off sheet that

he completed months after last treating Maloney. On the form, Dr. Hughett had checked boxes

which indicated that Maloney was “seriously limited” in adhering to the basic standards of

cleanliness, public interaction, socially appropriate behavior, and ability to travel. The ALJ noted

that Dr. Hughett had examined Maloney on November 13, 2007, at which time the doctor had



        2
         The parties dispute whether Dr. Hughett was Maloney’s treating physician because, in
forming his opinion, he relied on the opinion of Maloney’s actual treating therapist. However, we
need not decide this issue because, even assuming that Dr. Hughett was Maloney’s treating
physician, his opinion runs counter to the overwhelming weight of the evidence.

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Maloney v. Comm’r of Soc. Sec.


declined to complete the form. Dr. Hughett only completed the form on January 22, 2008, after

receiving additional information from Maloney’s treating therapist and without further examining

Maloney. Based on these facts, the ALJ reasoned that Dr. Hughett’s opinion was not based on a

personal treating relationship. For these reasons — the conflict between Dr. Hughett’s opinion and

the contemporaneous clinical notes and Maloney’s own testimony, as well as the nature of the

opinion—the ALJ had good reason to give Dr. Hughett’s opinion less than controlling weight.

2.      Lay witness testimony

        To the extent Maloney argues that the ALJ wrongfully refused to hear Bolek’s testimony, she

has waived this argument. The ALJ first learned that Maloney’s counsel intended to call Bolek as

a witness at the very end of the hearing, during the examination of the vocational expert. In pertinent

part, the transcript reads:

        Atty: Okay. If she’s data entry, like you said, she can’t just sit there and do nothing. She’s
              got to . . .

        VE:     Well, I don’t want to argue with you. But she’s working, she’s getting paid. She
                indicated that if it was full-time, she could do it. I don’t know what else —

        Atty: I understand. We’re going to have Ms. [Bolek] testify to —

        ALJ:    No, we’re not.

        Atty: You’re not going to let Ms. [Bolek] testify?

        ALJ:    No, I’m not.

        Atty: Well, that’s fine, Your Honor. I think I have grounds for an appeal.

        ALJ:    You may have. Go ahead.


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       Atty: All right. I mean, you’re not—seriously, you’re not going to let Joan [Bolek] testify?

       ALJ:    What is—what’s the relationship that she’s going to testify to? Is she a—

       Atty: That she cannot do the jobs that Ms.—the expert witness says.

In the subsequent opinion, the ALJ wrote, “Claimant’s sister was present at the hearing but did not

testify as a witness. Claimant’s counsel never informed the undersigned that he intended to present

[the sister] as a witness when he asked if she could sit in on the hearing. Otherwise, she would have

been excluded from the hearing before testifying.”

       Maloney has waived any argument stemming from the exclusion of Bolek’s testimony. It

is axiomatic that “a court should not consider an argument that has not been raised in the agency

proceeding that preceded the appeal.” City of Riverview v. Surface Transp. Bd., 398 F.3d 434, 443-

44 (6th Cir. 2005). Maloney did not raise the issue to the Appeals Council. Maloney contends she

could not have raised the issue to the ALJ, because the ALJ did not explain why he excluded the

testimony until he issued his opinion. This may be true, but it is immaterial. Maloney had to raise

the issue to the agency, and had that opportunity during her administrative appeal to the Appeals

Council. Her failure to do so constitutes a waiver. Bolek’s affidavit was presented for the first time

to the district court, precluding agency review of the issue.

       At oral argument, Maloney’s counsel asserted that the administrative record omitted a letter

he sent to the Appeals Council, which included the Bolek affidavit. “Several reasons justify

supplementation of the administrative record, such as when an agency deliberately or negligently

excludes certain documents . . . .” Sierra Club v. Slater, 120 F.3d 623, 638 (6th Cir. 1997). In


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Maloney v. Comm’r of Soc. Sec.


general, a party seeking to add information to an administrative record must do so by a petition to

the court or by joint stipulation. See Fed. R. App. P. 16. Counsel has not requested such relief via

a petition or a stipulation, nor are we persuaded that the circumstances justifying supplementation

exist here. Counsel has not provided the court with a copy of the letter he purports to have sent to

the Appeals Council, and nothing in the record indicates that the Appeals Council received and

reviewed this information in making its decision. Accordingly, the court declines to exercise its

discretion to supplement the record.

       Even if Maloney had preserved the issue, the ALJ’s refusal to hear the testimony is not

reversible error. An ALJ in a social security proceeding has a “duty to investigate the facts and

develop the arguments both for and against granting benefits.” Sims v. Apfel, 530 U.S. 103, 111

(2000) (plurality). If lay witness testimony is provided, the ALJ cannot disregard it without

comment, and must give reasons for not crediting the testimony that are germane to each witness.

Nguyen v. Chater, 100 F.3d 1462, 1467 (9th Cir. 1996). But even if the ALJ erroneously disregards

a lay witness’s testimony, the error is harmless if “no reasonable ALJ, when fully crediting the

testimony, could have reached a different disability determination.” Stout v. Comm’r of Soc. Sec.,

454 F.3d 1050, 1056 (9th Cir. 2006). Here, any error was harmless because no reasonable ALJ could

have reached a different disability determination based on Bolek’s testimony. In Bolek’s undated,

electronically-signed affidavit, she avers that she would have testified that:

               (a) I believe Colleen Maloney is unable to work because of her mental
               problems.



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Maloney v. Comm’r of Soc. Sec.


               (b) For example she is obsessively compulsive about any adult male
               who treats her with kindness. She took a trip on a cruise ship and fell
               in love with a waiter from the Middle East who waited on her. She
               proposed marriage to him.

               (c) Colleen Maloney has a part time job which the Vocational Expert
               used to support the VE’s opinion that Colleen Maloney is capable of
               substantial gainful activity. This job however is no more than a make
               shift clerical job paid for by government funds that is very low stress.
               There are no phone duties. There is no filing. Colleen spends most of
               her time reading novels.

               (d) Colleen is unable to understand her own problems and does not
               think there is anything wrong with her, when in fact she cannot cope
               with the normal stress of day to day life.

               (e) I have read the report of Dr. Hughett and I would have
               substantiated his findings from a lay person’s observations

There is no indication how Maloney’s purported obsession with “a waiter from the Middle East”

makes her unable to work. Further, the testimony runs counter to the weight of the medical evidence

and testimony. Maloney’s medical records indicate that she was responding well to a conservative

regime of treatment that enabled her to live alone and interact with others. Further, Maloney herself

testified that she was able to work part-time, would accept a full-time position at her current job if

it was offered to her, and was capable of living alone and working. Finally, the vocational expert

testified that Maloney is capable of gainful employment. Even considering the testimony of Bolek,

the ALJ would not have reached a different disability determination.

       Maloney’s reliance on a distinguishable case from the Eleventh Circuit does not compel a

different conclusion. In Brown v. Shalala, 44 F.3d 931 (11th Cir. 1995), the court considered a

disability claim by a woman who proceeded before the ALJ on a pro se basis. The court noted that

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Maloney v. Comm’r of Soc. Sec.


where a claimant proceeds pro se, the ALJ has a “special duty” to develop the record, which requires

the ALJ to “scrupulously and conscientiously probe into, inquire of, and explore for all the relevant

facts.” Id. at 934-35 (citations omitted). Applying this special duty, the Brown court noted that the

ALJ should have called for the testimony of the claimant’s husband when it noticed that the claimant

had provided incoherent, rambling testimony. Id. at 936. In contrast, Maloney was represented by

counsel, and presented cogent testimony that was credited by the ALJ.

       Maloney argues that she told the ALJ’s assistant that Bolek was to testify, but there is no

support for this argument in the record. On the first page of the hearing transcript, the ALJ made an

opening statement in which he introduced himself to Maloney and then explained that the VE would

also testify. There is no indication that the ALJ knew that Bolek was to testify. Further, the ALJ

himself said that counsel “never informed the undersigned that he intended to present [the sister] as

a witness when he asked if she could sit in on the hearing.” Maloney cannot point to anything in the

record that contradicts this statement.

                                                III.

       The judgment of the district court is affirmed.




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