                        NOT RECOMMENDED FOR PUBLICATION
                                File Name: 10a0144n.06

                                          No. 09-5673

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT

                                                                               FILED
RUTH A. BROCK,                                    )                         Mar 08, 2010
                                                  )                   LEONARD GREEN, Clerk
       Plaintiff-Appellant,                       )
                                                  )
v.                                                )    ON APPEAL FROM THE UNITED
                                                  )    STATES DISTRICT COURT FOR THE
COMMISSIONER                OF     SOCIAL         )    EASTERN DISTRICT OF KENTUCKY
SECURITY,                                         )
                                                  )
       Defendant-Appellee.                        )
                                                  )
                                                  )



BEFORE:           MERRITT, COOK, and KETHLEDGE, Circuit Judges.


       MERRITT, Circuit Judge.         Ruth Brock appeals from the District Court’s decision to

uphold the Commissioner of Social Security’s denial of her application for disability insurance and

supplemental security income benefits. Brock claims that the administrative law judge reviewing

her application failed to properly weigh her treating physician’s opinion and failed to adequately

represent her mental limitations to the vocational expert. After reviewing the record, we find that

the administrative law judge gave proper weight to the treating physician’s opinion and that his

denial of benefits was based on substantial evidence. We, therefore, AFFIRM the decision of the

District Court.

                              I. Factual and Procedural History
No. 09-5673
Brock v. Commissioner of Social Security

       On February 20, 2004, Brock protectively filed an application for disability insurance

benefits, and on December 5, 2003, she protectively filed an application for Supplemental Security

Income. She alleges a disability beginning in October 2003, due to a combination of ailments

including hypertension, coronary artery disease, hypothyroidism, fibromyalgia, degenerative disc

disease, chronic lower back pain, morbid obesity, anxiety and depression.

       Brock’s applications were denied initially and again upon reconsideration. At Brock’s

request, an administrative law hearing was held on August 25, 2006. During the hearing, the

administrative law judge heard testimony from Brock and vocational expert Anne Thomas. The

judge made findings pursuant to the governing five-step sequential analysis. See 20 C.F.R. §

416.920. At step one, he found that Brock had not engaged in substantial gainful employment since

the alleged onset date of disability. At steps two and three, the administrative law judge found

Brock’s medically determinable impairments were severe, but determined that none of them met

the listing found in Appendix 1 of the regulations. At step four, the judge determined that while

Brock could perform a limited range of light work, she would be unable to perform past relevant

work. Finally, at step five, he found that there were significant jobs in the economy that Brock could

perform. Consequently, the administrative law judge found that she was not disabled and not

entitled to disability insurance benefits. The Appeals Council declined to review the decision, and

Brock sought judicial review. The District Court below affirmed the decision, and Brock timely

appeals.

                                            II. Analysis



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Brock v. Commissioner of Social Security

       Brock raises three arguments on appeal: (1) the administrative law judge did not properly

weigh the opinion of her treating physician, Dr. Charles Moore; (2) the administrative law judge did

not provide an adequate rationale for rejecting the opinion of Dr. Moore; and (3) the hypothetical

question that the administrative law judge posed to the vocational expert should have included

mental limitations assessed by consultative examiners Drs. Pamela Starkley and Kevin Eggerman.

Because the first two arguments have significant overlap, we will address them together.

       This Court’s review is limited to determining whether the Commissioner’s decision was

supported by substantial evidence and was made according to proper legal standards. 42 U.S.C. §

405(g); Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007).

                             A. Treatment of Dr. Moore’s Opinion

       Brock argues that the administrative law judge failed to give the opinion of her treating

physician the proper weight and failed to provide an adequate justification for rejecting Dr. Moore’s

opinion. The controlling regulations instruct the administrative law judge to give the treating

physician's opinion substantial weight if: (1) it is “well-supported by medically acceptable clinical

and laboratory diagnostic techniques” and (2) it is “not inconsistent with the other substantial

evidence” in the case record. 20 C.F.R. § 404.1527(d)(2). The regulations also provide that the

administrative law judge will give “good reasons” for the weight given to a treating physician’s

opinion. Id.; see also Shelman v. Heckler, 821 F.2d 316, 321 (6th Cir. 1987). Further, if the opinion

of a treating physician is not given controlling weight, the administrative law judge must consider

specific factors in determining what weight the treating physician’s opinion should be given. Wilson

v. Comm’r of Soc. Sec., 378 F.3d 541, 544-46 (6th Cir. 2004). Those factors include: “the length,

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Brock v. Commissioner of Social Security

frequency, nature, and extent of the treatment relationship; the supportability and consistency of the

physician's conclusions; [and] the specialization of the physician.” Rogers, 486 F.3d at 240.

       In Wilson, this Court found error when an administrative law judge did not give good reasons

for failing to give weight to a treating physician’s opinion. 378 F.3d at 544-46. This Court noted

that the purpose for giving “good reasons” is so a claimant can understand the outcome of her case.

Id. at 544. This is especially important when a claimant knows that her physician classified her as

disabled and, therefore, “might be especially bewildered when told by an administrative bureaucracy

that she is not, unless some reason for the agency’s decision is supplied.” Id.

       It is uncontested that Dr. Moore was Brock’s treating physician. In June 2006, in addition

to his previous diagnoses listed above, Dr. Moore opined that Brock could only continuously sit,

stand, or walk for one hour each during an eight-hour work day and that she could only occasionally

lift or carry up to five pounds. Administrative Record (“AR”) at 439. When addressing the opinions

and diagnoses of Dr. Moore, the administrative law judge found the following:

       As for the opinion evidence, the undersigned is fully cognizant of the usual deference
       afforded treating medical source opinions. However, Dr. Moore’s opinion that the
       claimant is “100% disabled” is unsupported by his essentially benign clinical data.
       Moreover, the determination of disability is an issue ultimately determined by the
       Commissioner of Social Security. Additionally, Dr. Moore cited diagnoses of
       “Degenerative disc disease, including the knees, ankles and wrist” and fibromyalgia,
       all without benefit of diagnostic or radiological studies. The undersigned also notes
       Dr. Monderewicz’s statement that the claimant “appeared to have tender points
       consistent with the diagnosis [fibromyalgia].” However, he did not recommend
       further investigative measures. Regardless, the undersigned has carefully considered
       the doctor’s overall opinion in the determination of the claimant’s residual functional
       capacity.

AR at 25. (internal citations omitted).


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Brock v. Commissioner of Social Security

       Here, the administrative law judge’s decision to reject the opinion of Dr. Moore was

supported by substantial evidence in the record and provided “good reasons” to inform Brock of why

Dr. Moore’s opinion was not being credited. As an initial matter, he correctly disregarded Dr.

Moore’s statement that Brock was “100% disabled,” as the regulations reserve this determination

for the Social Security Secretary. 20 C.F.R. § 404.1527(e)(1). Subsection (e)(3) further states that

no “special significance” will be given to opinions of disability, even those made by the treating

physician. 20 C.F.R § 404.1527(e)(3).

       Additionally, the administrative law judge’s findings challenge the supportability and

consistency of Dr. Moore’s diagnoses with the other evidence in the record in an indirect but clear

way, as was the case in Nelson v. Commissioner of Social Security, 195 F. App’x 462 (6th Cir. 2006)

(when administrative law judge attacks the supportability and consistency of treating physician’s

opinion describing its faults, then treating physician’s opinion may not be consistent with the record

as a whole and, therefore, not entitled to controlling weight). The administrative law judge noted

that Dr. Moore’s findings did not have the support of clinical data. AR at 25. Dr. Moore’s diagnoses

for degenerative disc disease or fibromyalgia were not confirmed by diagnostic or radiological

studies. Id. Additionally, the judge considered evaluations by other examining doctors. He noted

that cardiologist Dr. Michelle Friday found in October of 2003 that Brock had normal arteries with

only minimal plaquing and normal left ventricular function. AR at 18. The judge found that in May

2004, Dr. Jules Barefoot performed a consultive exam finding “no significant motor, sensory, or

reflex deficits and no evidence of any disorder.” Id. He further addressed a consultive evaluation

performed in October of 2005 by Dr. Monderewicz. Dr. Monderewicz stated that Brock had tender

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Brock v. Commissioner of Social Security

points consistent with Dr. Moore’s diagnosis of fibromyalgia but did not recommend any further

testing. AR at 19, 25. The judge also found that Brock’s pain appeared to be adequately controlled

by the medication prescribed by Dr. Moore. AR at 24. All of the preceding factual findings are

supported by the record evidence. Finally, the administrative law judge also considered Brock’s

demeanor and testimony during the hearing when evaluating her claims of disability. See Ashworth

v. Sullivan, 951 F.2d 348 (6th Cir. 1991) (table) (noting that claimant’s demeanor at the hearing

belied her doctor’s conclusions of disability). He found that she did not exhibit the behavior of an

individual in “prolonged or severe pain or any other debilitating symptomatology.” AR at 24.

        In sum, the administrative law judge addressed in-depth the findings of Dr. Moore’s

examinations, including evaluations in February 2005 and June 2006. AR at 18-19. He explicitly

stated that he was aware of the usual deference given to a treating physician’s opinion and that he

considered Dr. Moore’s overall findings when determining Brock’s residual functioning capacity.

AR at 25. However, as noted above, he did not believe Dr. Moore’s findings were supported by

clinical data. Id. Because there is substantial evidence in the record to support the administrative

law judge’s determination, we find that he afforded the proper weight to the opinion of Dr. Moore

and that he provided good reasons for the weight he was affording.

                     C. Hypothetical Question Posed to Vocational Expert

        Brock contends that the hypothetical question posed to the vocational expert did not

accurately describe her mental limitations. In order for the Commissioner to rely upon the vocational

expert’s testimony to meet his burden, “the testimony must be given in response to a hypothetical

question that accurately describes the plaintiff in all significant, relevant respects; for a response to

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Brock v. Commissioner of Social Security

a hypothetical question to constitute substantial evidence, each element of the hypothetical must

accurately describe the claimant.” Felisky v. Bowen, 35 F.3d 1027, 1036 (6th Cir. 1994).

Consequently, we must determine whether the information contained in the hypothetical question

was accurate.

       The record reflects that two consultative mental evaluations were performed on Brock, one

in May 2004 and another in October 2005, by Psychologist Starkley and Dr. Eggerman, respectively.

In May 2004, Starkley determined that Brock was likely to have mild difficulty with simple

instructions, moderate difficultly with skills needed for completing tasks in work settings and

household routines, and moderate difficulty with the normal pressures of a work setting. AR at 186.

Further, Starkley concluded that Brock’s ability to relate to people was mildly impaired. Id. When

Dr. Eggerman evaluated Brock in October 2005, his conclusions were not as restrictive as those

determined by Dr. Starkley more than a year before. For instance, Eggerman found that Brock was

not limited in her ability to remember simple instructions. AR at 331-32. He also determined that

she was only mildly limited in her ability to complete detailed instructions, make simple

work-related judgments, and interact appropriately with co-workers and supervisors. Id. Finally,

somewhat similarly to Dr. Starkley, he determined that she would have mild to moderate difficultly

responding to work related pressures. Id. at 332.

       Using these consultations, the administrative law judge made the following finding regarding

Brock’s mental capabilities:

       [T]he undersigned agrees with the opinions of Psychologist Starkley and Dr.
       Eggerman, who found the claimant retains the capacity to understand, remember and
       carry out at least short, simple instructions. Moreover, after the more recent

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No. 09-5673
Brock v. Commissioner of Social Security

       evaluation by Dr. Eggerman, it was determined the claimant retained adequate
       capacity to understand, remember, and carry out even detailed instructions; interact
       appropriately with the public, supervisors, and coworkers; and respond appropriately
       to changes in a routine work setting.


AR at 25. The administrative law judge asked the vocational expert to assume that Brock could

“engage in occasional and superficial contact with coworkers, supervisors and the general public.”

AR at 519. Brock claims that because the question failed to include her ability to tolerate work

pressures, maintain attention, maintain attendance and other various restrictions, then the vocational

expert's testimony is unreliable.

       Contrary to Brock’s suggestion, the administrative law judge agreed with the findings of both

mental health professionals. But the findings reflect that he focused more on the recent assessment

completed by Dr. Eggerman, who found that Brock’s mental limitations were less restrictive than

those found by Dr. Starkley. The administrative law judge’s question accurately reflected the

findings of Dr. Eggerman, as Dr. Eggerman believed that Brock was only mildly limited in all

assessments with the exception of responding to work related pressures. Further, a hypothetical

question may be incomplete, yet still accurately portray a claimant’s limitations. See, e.g.,

Infantadao v. Astrue, 263 F. App’x 469, 477 (6th Cir. 2008). Such is the case here. While the

hypothetical question could have contained more restrictions, it contained an accurate portrayal of

Brock’s mental limitations.

       Consequently, the vocational expert’s opinion constitutes substantial evidence.           The

vocational expert identified jobs that Brock could complete given her mental limitations, and the

administrative law judge appropriately relied on this opinion. The Commissioner met his burden

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Brock v. Commissioner of Social Security

of proving the existence of alternative work for Brock, and the District Court’s opinion is

AFFIRMED.




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