            NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                       File Name: 07a0113n.06
                       Filed: February 9, 2007

                                        No. 06-1236

                       UNITED STATES COURT OF APPEALS
                            FOR THE SIXTH CIRCUIT




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


BEFORE: MOORE and CLAY, Circuit Judges; BELL, District Judge.*

       BELL, District Judge. Plaintiff Gary D. Griffeth appeals the district court order

affirming the Commissioner of Social Security’s denial of disability benefits. For the reasons

set forth in this opinion we AFFIRM.

                                               I.

       Gary D. Griffeth was born on April 20, 1947. He has a high school diploma and

worked from 1965 through 2001 as a carpenter, highway contractor, highway foreman,




       *
       The Honorable Robert Holmes Bell, Chief United States District Judge for the
Western District of Michigan, sitting by designation.
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Griffeth v. Comm. of Social Security

building code enforcement officer and scheduler. Griffeth was laid off from his employment

on September 26, 2001, for reasons unrelated to his alleged disability, and he has not worked

since that date.

       Griffeth applied for Social Security Disability Insurance Benefits on July 2, 2002,

alleging disability due to limitations caused by his colostomy, shoulder pain, back pain, knee

pain, difficulty sleeping, depression, and problems with memory and concentration. An

Administrative Law Judge (“ALJ”) determined that Griffeth’s degenerative disc disease and

depression were “severe” impairments.         The ALJ determined, however, that these

impairments would have little effect on Griffeth’s ability to perform basic work-related

activities. The ALJ denied disability benefits based upon his determination that Griffeth

retained the residual functional capacity to perform his past relevant work as a scheduler and

code enforcement officer. The Appeals Council denied his request for review. Griffeth filed

for judicial review. The district court granted the Commissioner’s motion for summary

judgment and affirmed the final order denying benefits. This timely appeal followed.

                                             II.

       Judicial review of a final decision of the Commissioner of Social Security is limited

to determining whether the ALJ applied the correct legal standards in reaching his decision

and whether there is substantial evidence in the record to support his findings. Longworth

v. Comm’r Soc. Sec., 402 F.3d 591, 595 (6th Cir. 2005). The Commissioner’s findings of

fact, “if supported by substantial evidence, shall be conclusive.” 42 U.S.C. § 405(g).
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Griffeth v. Comm. of Social Security

          All three issues Griffeth has raised on appeal1 stem from the ALJ’s finding that his

depression was a “severe” impairment. Griffeth contends that given that finding, there was

not substantial evidence to support treating the impairment as non-severe; it was inconsistent

to find that Griffeth had only mild limitations in the degree of functional loss; and it was

improper to omit the “severe” impairment from the hypothetical given to the vocational

expert.

          The Commissioner uses a five step sequential evaluation process to determine whether

a claimant is disabled. 20 C.F.R. § 404.1520(a)(1). At the second step of the sequential

evaluation process, the Commissioner must determine whether the claimant has a severe

impairment. § 404.1520(a)(4)(ii). The regulations define a “severe” impairment as one

which “significantly limits” the claimant's physical or mental ability to do basic work

activities.” § 404.1520(c).

          At step two of the sequential evaluation process the ALJ found that Griffeth’s

depression caused some limitations on Griffeth’s ability to perform some basic work-related

activities, and therefore concluded that it was a “severe” impairment within the meaning of

the regulations. The ALJ determined, however, that Griffeth’s testimony regarding the extent

of his limitations was not credible. The ALJ concluded that Griffeth’s depression resulted

in only mild limitations on his ability to perform activities of daily living and to maintain


          1
       Although Griffeth originally raised four issues on appeal, at oral argument he
withdrew his third issue regarding use of the grid.
No. 06-1236                                    4
Griffeth v. Comm. of Social Security

attention and concentration for extended periods, and that it had little effect on his ability to

perform basic work activities. The ALJ determined that Griffeth retained the residual

functional capacity (“RFC”) to perform his past relevant work as a scheduler and code

enforcement officer. If at step four of the sequential evaluation process the ALJ finds that

an individual’s RFC allows him to perform work he has done in the past, a finding of not

disabled will be made. 20 C.F.R. § 404.1520(f). The ALJ accordingly denied disability

benefits at step four of the sequential evaluation process.

       Griffeth’s first contention is that the ALJ’s analysis was not supported by substantial

evidence. Substantial evidence is “such relevant evidence as a reasonable mind might accept

as adequate to support a conclusion.” Buxton v. Halter, 246 F.3d 762, 772 (6th Cir. 2001)

(quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)). It is “more than a mere scintilla

of evidence, but less than a preponderance.” Bell v. Comm’r of Soc. Sec., 105 F.3d 244, 245

(6th Cir.1996) (citing Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). “If

substantial evidence supports the Commissioner’s decision, this Court will defer to that

finding ‘even if there is substantial evidence in the record that would have supported an

opposite conclusion.’” Longworth, 402 F.3d at 595 (citing Warner v. Comm’r of Soc. Sec.,

375 F.3d 387, 390 (6th Cir. 2004)).

       Although the record contains evidence that Griffeth suffers from depression,

Griffeth’s family doctor, Dr. Oliver, indicated that his depressive symptoms were under

reasonable control as long as he stayed on his medication. Griffeth’s therapist, Jerry Walden,
No. 06-1236                                    5
Griffeth v. Comm. of Social Security

indicated that Griffeth’s emotional well being and ability to concentrate improved when he

was able to get adequate rest and did not push himself physically. Dr. Krause, the state

agency psychiatrist, found that Griffeth had only mild functional limitations in daily living

activities and maintaining concentration, and that he had no difficulties in maintaining social

functioning and no episodes of decompensation of extended duration.

       The record also contains evidence that Griffeth was able to engage in a wide variety

of daily activities including cooking, visiting friends, fishing, helping friends with projects,

working in his wood-working shop, doing minor maintenance on his apartment building,

mowing his lawn, attending church, and riding his motorcycle. He has also taken trips out

of state and overseas.

       Griffeth does not challenge the accuracy of the evidence on which the ALJ relied. He

does not suggest that the record established greater limitations than those found by the ALJ

nor does he suggest that his past jobs required duties incompatible with the limitations found

by the ALJ. He merely contends that the evidence is not sufficient to support the ALJ’s

conclusion. We disagree. Reasonable minds could accept the medical evidence and

Griffeth’s own testimony concerning his daily activities as adequate to support the conclusion

that his depression has little effect on his ability to perform basic work-related activities.

Accordingly, the ALJ’s determination is supported by substantial evidence.

       Griffeth’s second contention is that the ALJ’s analysis was internally inconsistent

because he classified Griffeth’s impairment as “severe” but treated it as “non-severe.” At
No. 06-1236                                  6
Griffeth v. Comm. of Social Security

step two of the sequential evaluation process the ALJ determined that because Griffeth’s

depression was a medically determinable impairment that caused “some” limitations of his

ability to perform “some” basic work-related activities, it was a “severe” impairment. Later

in his analysis he determined that Griffeth’s depression had only a minimal effect on his

ability to concentrate.

       The regulations define a “severe” impairment as “any impairment or combination of

impairments which significantly limits your physical or mental ability to do basic work

activities.” 20 C.F.R. § 404.1520(c). Griffeth contends that the ALJ’s finding of “some”

rather than “significant” limitations was improper and led to an inappropriate finding of

non-disability at step four.

       The ALJ did not misinterpret the severity regulation. At step two “significant” is

liberally construed in favor of the claimant. The regulations provide that if the claimant’s

degree of limitation is none or mild, the Commissioner will generally conclude the

impairment is not severe, “unless the evidence otherwise indicates that there is more than a

minimal limitation in your ability to do basic work activities.” 20 CFR § 404.1520a(d). The

purpose of the second step of the sequential analysis is to enable the Commissioner to screen

out “totally groundless claims.” Farris v. Sec’y of HHS, 773 F.2d 85, 89 (6th Cir. 1985). We

have construed the step two severity regulation as a “de minimis hurdle” in the disability

determination process. Higgs v. Bowen, 880 F.2d 860, 862 (6th Cir. 1988). Under a Social

Security policy ruling, if an impairment has “more than a minimal effect” on the claimant’s
No. 06-1236                                    7
Griffeth v. Comm. of Social Security

ability to do basic work activities, the ALJ is required to treat it as “severe.” SSR 96-3p

(July 2, 1996).

       The ALJ’s determination that Griffeth’s depression caused “some” limitation of his

ability to do work activity is consistent with a finding that Griffeth’s depression caused more

than a minimal limitation in his ability to do basic work activities. The ALJ’s finding that

the limitation was more than minimal, however, was not inherently inconsistent with his

finding that the limitation has “little effect” on the claimant’s ability to perform basic work-

related activities. Because the ALJ gave Griffeth the benefit of the doubt at step two of the

sequential analysis, the ALJ went on to consider not only Griffeth’s “severe” impairments,

but all of Griffeth’s other impairments as well, and made his determination based upon the

effects of the combination of impairments on Griffeth’s ability to perform basic work-related

activities. See 20 C.F.R. § 404.1545(e) (“When you have a severe impairment(s), but your

symptoms, signs, and laboratory findings do not meet or equal those of a listed impairment

in Appendix 1 of this subpart, we will consider the limiting effects of all your impairment(s),

even those that are not severe, in determining your residual functional capacity.”). This

expanded review worked to Griffeth’s benefit, not to his detriment.

       Furthermore, even if the ALJ erroneously found Griffeth’s depression to be “severe,”

such an erroneous finding was, at most, harmless error, because we have already found

substantial evidence to support the finding of “not disabled” at step four. We are not

required to remand where to do so would be an idle and useless formality. Wilson v. Comm’r
No. 06-1236                                    8
Griffeth v. Comm. of Social Security

of Soc. Sec., 378 F.3d 541, 547 (6th Cir. 2004) (quoting NLRB v. Wyman-Gordon, 394 U.S.

759, 766 n.6 (1969)).

       Griffeth’s final assignment of error is that the hypothetical given to the ALJ was

flawed because it contained no limitations related to his “severe” impairment of depression.

According to Griffeth, because the hypothetical was flawed, the vocational expert’s opinion

did not constitute substantial evidence to support the ALJ’s conclusion at step four of the

sequential analysis that Griffeth was able to perform his past relevant work.

       “Substantial evidence may be produced through reliance on the testimony of a

vocational expert in response to a ‘hypothetical’ question, but only ‘if the question accurately

portrays [plaintiff’s] individual physical and mental impairments.’” Varley v. Sec’y HHS,

820 F.2d 777, 779 (6th Cir. 1987) (quoting Podedworny v. Harris, 745 F.2d 210, 218 (3d Cir.

1984)). In Howard v. Comm’r of Soc. Sec., 276 F.3d 235 (6th Cir. 2002), we found that the

exclusion of the claimant’s major depressive disorder from the hypothetical did not

accurately describe the claimant’s impairments, and accordingly held that the vocational

expert’s testimony in reliance on the hypothetical was not substantial evidence for the ALJ’s

conclusion that the claimant could perform “other work.” 276 F.3d at 241.

       The regulations permit an ALJ to use the services of a vocational expert at step four

to determine whether a claimant can do his past relevant work, given his RFC. 20 C.F.R.

§ 404.1560(b)(2). RFC is an assessment of the most a claimant can still do despite his

limitations. 20 C.F.R. § 404.1545(a)(1). The RFC describes “the claimant’s residual abilities
No. 06-1236                                  9
Griffeth v. Comm. of Social Security

or what a claimant can do, not what maladies a claimant suffers from – though the maladies

will certainly inform the ALJ’s conclusion about the claimant’s abilities.” Howard, 276 F.3d

at 240. “A claimant’s severe impairment may or may not affect his or her functional capacity

to do work. One does not necessarily establish the other.” Yang v. Comm’r of Soc. Sec.,

No. 00-10446-BC, 2004 WL 1765480, at *5 (E.D. Mich. July 14, 2004). Howard does not

stand for the proposition that all impairments deemed “severe” in step two must be included

in the hypothetical. The regulations recognize that individuals who have the same severe

impairment may have different RFCs depending on their other impairments, pain, and other

symptoms. 20 C.F.R. § 404.1545(e).

       “The rule that a hypothetical question must incorporate all of the claimant’s physical

and mental limitations does not divest the ALJ of his or her obligation to assess credibility

and determine the facts.” Redfield v. Comm’r of Soc. Sec., 366 F. Supp. 2d 489, 497 (E.D.

Mich. 2005). In fashioning a hypothetical question to be posed to a vocational expert, the

ALJ is required to incorporate only those limitations that he accepts as credible. Casey v.

Sec'y of HHS, 987 F.2d 1230, 1235 (6th Cir. 1993). An ALJ is not required to accept a

claimant’s subjective complaints, and “can present a hypothetical to the VE on the basis of

his own assessment if he reasonably deems the claimant’s testimony to be inaccurate.” Jones

v. Comm’r of Soc. Sec., 336 F.3d 469, 476 (6th Cir. 2003).

       In this case the ALJ found that Griffeth’s assertion that he was unable to work due to

depression was not supported by the record as a whole and was not credible.              The
No. 06-1236                                   10
Griffeth v. Comm. of Social Security

hypothetical the ALJ posed to the vocation expert was consistent with the ALJ’s factual

determination that Griffeth was able to engage in light work and that his depression had little

effect on his ability to perform basic work-related activities. The vocational expert testified

that such a person could perform Griffeth’s past relevant work as a code enforcement officer

and scheduler. The vocational expert’s testimony constituted substantial evidence to support

the ALJ’s determination that Griffeth was able to perform his past relevant work and was not

disabled.

                                             III.

       For the reasons stated, we AFFIRM the district court’s decision upholding the

Commissioner’s final order denying disability benefits.
