Martin v. Comm Social Security , 170 F. App'x 369 ( 2006 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 06a0162n.06
Filed: March 1, 2006
No. 04-4551
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
ADRIAN MARTIN,
Plaintiff-Appellant, ON APPEAL FROM THE
UNITED STATES DISTRICT
v. COURT FOR THE SOUTHERN
DISTRICT OF OHIO
COMMISSIONER OF
SOCIAL SECURITY,
Defendant-Appellee.
_______________________________________/
BEFORE: BOGGS, Chief Judge, and BATCHELDER, Circuit Judges; COHN, District
Judge*
AVERN COHN, District Judge. This is a Social Security case. Plaintiff-Appellant Adrian J.
Martin (Martin) appeals from a decision rendered by an Administrative Law Judge (ALJ) and
upheld by a Magistrate Judge denying her Social Security benefits. Martin applied for disability
benefits and supplemental security income benefits from Defendant-Appellee Commissioner of
Social Security (SSA). Martin argues that the ALJ made errors of law and fact that resulted in an
incorrect decision to deny benefits, and that the Magistrate Judge improperly upheld the decision.
For the reasons that follow, the decision of the Magistrate Judge is AFFIRMED.
*
The Honorable Avern Cohn, United States District Judge for the Eastern District
of Michigan, sitting by designation.
I. BACKGROUND
Martin applied for benefits from the SSA in August, 1999, after she allegedly became
disabled. Martin was a 32-year-old packer and machine operator. She claimed that lower back and
leg pain, obesity, depression, and anxiety caused her to become disabled on May 15, 1999, when
she last worked. Dr. Robert Whitten (Dr. Whitten), a physiatrist, treated Martin in mid-1999. She
underwent an MRI and surgery in August, 1999, for a herniated disk performed by Dr. William
Tobler. In November, 1999, Martin was seen by Dr. Rashid Khan (Dr. Khan), an internist, who
said that Martin could not work for more than 1.5 hours in an 8-hour day. In 2000, Martin
underwent a second MRI, which showed improvement. Several doctors saw Martin during this
time, the majority of whom reported improvement and an ability of Martin to perform light work.
Dr. Khan continued to report that Martin was disabled.
Martin’s requested benefits were denied initially and in reconsideration hearings. Martin
requested a hearing with a Social Security Administrative Law Judge. The ALJ held a hearing and
found Martin “not disabled” and “not entitled to benefits.” The ALJ found that while Martin could
not perform tasks from her past work, she could perform three unskilled sedentary jobs. Martin
appealed the ALJ decision to the Social Security Appeals Council (Appeals Council). The Appeals
Council remanded the decision to deny benefits to consider conflicts in the testimony of a
vocational expert and the Dictionary of Occupational Titles (DOT). The ALJ held a second hearing
in 2002. The second ALJ hearing also resulted in a finding of “not disabled” and “not entitled to
benefits.” On March 17, 2003, the Appeals Council upheld the denial of benefits.
Following the Appeals Council decision, Martin filed a civil action in the United States
District Court for the Southern District of Ohio. The parties consented to the jurisdiction of a
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Magistrate Judge. The Magistrate Judge found that the ALJ decision was supported by substantial
evidence that Martin could perform an unskilled sedentary job as an assembler. Martin filed a
timely motion under Fed. R. Civ. P. 59(e) to alter or amend the decision. The SSA did not file a
response; the Magistrate Judge denied the motion. The Magistrate Judge held: that the ALJ
complied with Social Security regulations governing the evaluation of medical opinion evidence;
that the court gives deference to the ALJ’s findings and resolution of conflicts in the record; and,
that Martin failed to raise the argument regarding the vocational expert’s conflict in description and
the DOT in her Statement of Specific Errors. This appeal followed.
II. STANDARD OF REVIEW
“When reviewing the Commissioner's finding that a claimant is not disabled within the
meaning of the Social Security Act, [the Sixth Circuit] consider[s] only whether the decision is
supported by substantial evidence and whether the ALJ employed the proper legal standards.”
Schuler v. Comm'r of Soc. Sec., 109 F. App’x 97, 99 (6th Cir. 2004); 42 U.S.C. § 405(g) (2004).
The standard for substantial evidence requires “more than a scintilla of evidence but less than a
preponderance.” Brainard v. Sec'y of Health & Human Servs., 889 F.2d 679, 681 (6th Cir. 1989).
All that is required to uphold the Commissioner's findings is that the record contain evidence that “a
reasonable mind might accept as adequate to support a conclusion.” Buxton v. Halter, 246 F.3d
762, 772 (6th Cir. 2001) (internal quotations and citations omitted). The court may not review the
case de novo, resolve conflicts in evidence, or decide questions of credibility. Schuler, 109 F.
App’x at 99. The court reviews questions of law de novo. Wright v. Comm’r of Soc. Sec., 321
F.3d 611, 614 (6th Cir. 2003).
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III. ANALYSIS
1. The ALJ Reasonably Evaluated the Physicians’ Opinions.
Martin contends that the judgment of the ALJ was incorrect because 1) the ALJ
improperly considered Dr. Whitten to be the “treating doctor;” and, 2) the ALJ erred as a matter of
law by only considering the issue of giving Dr. Khan “controlling weight” instead of the “most
weight” in the record.
The Sixth Circuit recognizes that:
The ALJ normally gives considerable weight to opinions from treating sources, since they
are most likely to have a full understanding of the claimant's condition. The opinion of a
treating physician will be given controlling weight if it is well-supported by medically
acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the
other substantial evidence in the claimant's case record. The ALJ, however, retains the
responsibility for making the ultimate determination of whether the claimant is disabled.
Schuler, 109 F. App’x at 101(internal citations omitted). In making a determination of disability,
the ALJ reviews “all of the medical findings and other evidence that support a medical source's
statement that [the claimant is] disabled.” 20 C.F.R. § 404.1527(e)(1).
When there are multiple doctors with opposing opinions, an ALJ’s decision to reject the
opinion of a treating doctor is reviewed under the substantial evidence standard. Schuler, 109 F.
App’x at 101; See also Robinson v. Barnhart, 124 F. App’x 405 (6th Cir. 2005); Edwards v.
Comm’r of Soc. Sec., 97 F. App’x 567 (6th Cir. 2004). Even when a treating source’s medical
opinion is not given controlling weight because it is not well-supported by medically acceptable
clinical and laboratory diagnostic techniques or is inconsistent with other substantial evidence in the
record, it does not necessarily mean that the opinion should be completely rejected; the weight to be
given to the opinion is determined by a set of factors that guides the weight given to the medical
opinion, including treatment relationship, supportability, consistency, specialization, and other
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factors. See Social Security Ruling 96-2p (July 2, 1996): Titles II and XVI: Giving Controlling
Weight to Treating Source Medical Opinions (SSR 96-2p); 20 C.F.R. § 404.1527(d).
In this case, Dr. Khan was an internist who evaluated Martin and found she was disabled.
Dr. Khan treated Martin the longest. However, all the other doctors evaluating Martin contradicted
Dr. Khan’s findings, including: Dr. Whitten, a specialist who treated Martin before Dr. Khan; Dr.
Quillan, a doctor working for the Ohio Bureau of Disability Determination; Dr. Swank, an
orthopedic specialist and treating physician; and Dr. Groh, a specialist with the Pain Care Institute.
Furthermore, information in Martin’s medical records reflected that Martin had full strength, intact
sensation, and a smooth gait. (Tr. 266, 308-309, 313). Martin also told a social worker that her
leisure activities included decorating and going to activities related to her three children, ages 9, 11,
and 12. (Tr. 290). Martin’s assertion that Dr. Whitten did not treat her as long or as recently as Dr.
Khan and thus cannot be a “treating doctor” goes to the issue of credibility that is properly to be
determined by the ALJ.
Dr. Khan’s opinion was contradicted by other doctors and information in Martin’s medical
records. The ALJ said Dr. Khan’s treatment records “show a lack of positive signs and findings,”
(Tr. 22), and were inconsistent with the record. Dr. Khan was a generalist, whereas Dr. Whitten
was a specialist. The Magistrate Judge discussed these and other factors relevant to the weight of
Dr. Khan’s opinion, found that the ALJ reasonably rejected Dr. Khan’s opinion, and found that
substantial evidence supported the ALJ decision. The ALJ found that Dr. Whitten’s opinion “was
supported by his treatment records.” (Tr. 22). A “treating physician” is a doctor “who provides
you, or has provided you, with medical treatment or evaluation and who has, or has had, an ongoing
treatment relationship with you.” 20 C.F.R. § 404.1502. Though there is some factual dispute
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about when Dr. Whitten last treated Martin, under both parties’ view Dr. Whitten does qualify as a
“treating doctor.” The ALJ had the duty to resolve conflicts in medical evidence, Richardson v.
Perales, 402 U.S. 389, 399 (1971), which it did against Martin. It is unnecessary to explore the
appropriate amount of weight to allocate among multiple treating doctors. The Magistrate Judge
did not err in denying Dr. Khan’s opinion increased weight, and did not err in considering Dr.
Whitten a “treating doctor.”
2. The ALJ’s Credibility Findings are Supported by Substantial Evidence.
Martin next argues that the ALJ improperly relied on past activities to evaluate pain,
credibility, and subjective complaints. Martin says the Magistrate Judge and ALJ did not consider
all relevant factors and erroneously relied on old activities to discount her pain and credibility.
In evaluating a claimant’s allegations of pain and limitations, the ALJ considers (1) whether
the objective medical evidence shows “the existence of a medical impairment(s) which ...could
reasonably be expected to produce the pain or other symptoms alleged;” and (2) the intensity and
persistence of the symptoms to evaluate a person’s capacity for work, considering all available
evidence. 20 C.F.R. § 404.1529. The ALJ’s determinations of credibility are given great weight,
and are reviewed for substantial evidence. Jones v. Comm’r of Soc. Sec., 336 F.3d 469, 476 (6th
Cir. 2003).
Martin says the ALJ and Magistrate Judge erred when they considered activities, such as
decorating and attending her children’s events, that she only did before becoming disabled, or after
which she experienced considerable pain. Martin says these errors support her credibility. Martin
also says her credibility is bolstered by factors not considered by the ALJ, such as certain medical
reports, daily activities, and medications taken. The SSA responds that the ALJ’s credibility
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finding is supported by a number of factors, including the medical evidence, physician opinion,
treatment, medication, and activities of daily living, and notes that the ALJ did acknowledge that
Martin had significant limitations by concluding that Martin could perform only a reduced range of
sedentary work. Therefore, the SSA says the ALJ’s determination is supported by substantial
evidence.
This court does not reexamine questions of credibility or reevaluate conflicting evidence
when reviewing denials of Social Security benefits. Schuler, 109 F. App’x at 99. The above
evidence is conflicting. Given the highly deferential standard for reviewing the ALJ’s decision
relating to a denial of benefits, the decision is supported by substantial evidence.
3. The ALJ Properly Considered the Vocations Listed by the Vocational Expert.
The vocational expert testified that Martin could work as an assembler, telephone operator,
or general office clerk. (Tr. 415-416). In response to a question from Martin’s counsel, the
vocational expert stated that the Specific Vocational Preparation ratings (SVPs) for these positions
were 1 or 2. (Tr. 418). The ALJ asked if there was a conflict between the DOT description of the
SVP for the third position. (Tr. 417). The vocational expert testified that there was not. (Tr. 417).
Unfortunately, there was a conflict between the vocational expert’s testimony and the SVPs
of two of the positions, telephone operator and general office clerk, which both have an SVP of 3 in
the DOT. The DOT description of the SVP for the third position, assembler, is consistent with the
vocational expert’s testimony. Martin did not bring this discrepancy to the ALJ’s attention, and
first raised the issue that a conflict existed upon filing her brief in the district court. (Docket no. 3).
Martin argues that because the vocational expert’s testimony was incorrect with regard to
the SVP of two of the positions offered, the vocational expert cannot be deemed credible with
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regard to the third position. The SSA argues that the ALJ reasonably relied on the vocational
expert’s testimony because the assertion that Martin could perform the jobs identified by the
vocational expert was uncontradicted, and, alternatively, because the vocational expert was correct
regarding the third position.
A Social Security Ruling sets forth the actions required of an ALJ when there is an apparent
conflict between the testimony of the vocational expert and the DOT. See Social Security Ruling
00-4p (December 4, 2000): Titles II and XVI: Use of Vocational Expert and Vocational Specialist
Evidence, and Other Reliable Occupational Information in Disability Decisions (SSR 00-4p). The
SSR 00-4p does not address what to do when a conflict is not apparent. Under the SSR 00-4p, the
ALJ is entitled to evaluate the testimony of a vocational expert, the DOT, and other relevant
evidence, but is not required to rely on any of these sources.
Consistent with the SSR 00-4p, the ALJ asked if there was a conflict. (Tr. 417). The
vocational expert testified that there was not. (Tr. 417). Martin did not bring the vocational
expert’s mistake to the ALJ’s attention. Nothing in SSR 00-4p places an affirmative duty on the
ALJ to conduct an independent investigation into the testimony of witnesses to determine if they are
correct. Furthermore, even if there is a conflict between the expert’s testimony and the DOT,
“neither the DOT or [the expert’s testimony] automatically trumps when there is a conflict.” SSR
00-4p. When there is a conflict, the ALJ must resolve the conflict by determining if the explanation
given by the expert is reasonable and provides a basis for agreeing with the expert rather than the
DOT information. SSR 00-4p. Because Martin did not bring the conflict to the attention of the
ALJ, the ALJ did not need to explain how the conflict was resolved. Here, the ALJ specifically
asked if there was a conflict and the uncontradicted testimony of the vocational expert indicated that
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no conflict existed.
Furthermore, even if the two positions about which there were inconsistencies had been
excluded, the ALJ still could have reasonably found that Martin could perform the third position of
assembler. In Troxal v. Comm’r of Soc. Sec., 113 F. App’x 80, 83 (6th Cir. 2004), the court
rejected the argument of a claimant that the testimony of the vocational expert was inconsistent with
the description of certain jobs in the DOT because sufficient positions existed in the national
economy to constitute a significant number of jobs even if all of the disputed jobs were eliminated.
While there are only 107,826 assembler jobs in the United States, 870 of the jobs are concentrated
in Martin’s geographic region. Contrary to Martin’s position, 870 jobs can constitute a significant
number in the geographic region. See Stewart v. Sullivan, 904 F.2d 708 (6th Cir. 1990)(125 jobs in
the local area is a significant number of jobs).
4. The Decision of the ALJ to Deny Benefits was Supported by Substantial
Evidence Based Upon the Record as a Whole.
With regard to the finding that Martin was “not disabled,” all of the doctors who evaluated
Martin and her medical records with the exception of Dr. Khan noted improvement in her condition
and consistently indicated that she could perform light work. Even Dr. Khan’s medical records
regarding Martin included information that is consistent with the ALJ’s finding that Martin could
perform a reduced range of sedentary work. Recognizing that the substantial evidence standard is
“more than a scintilla of evidence but less than a preponderance,” Brainard, 889 F.2d at 681, there
is sufficient material in the record to show that the decision of the ALJ was supported by substantial
evidence.
The ALJ’s finding that a significant number of jobs existed for Martin is also supported by
substantial evidence because the uncontradicted testimony of the vocational expert identified three
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potential positions with a significant number of jobs available. Once the ALJ asked the vocational
expert if her testimony was consistent with the DOT, the ALJ satisfied its requirements under the
SSR 00-4p. It was Martin’s duty, acting through counsel, to present her case to the ALJ.
IV. CONCLUSION.
For the above reasons, the decision of the Magistrate Judge upholding the Commissioner of
Social Security's denial of disability benefits is AFFIRMED.
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