                 NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                            File Name: 04a0018n.06
                            Filed: October 12, 2004
                                  No. 03-6076

                             UNITED STATES COURT OF APPEALS
                                  FOR THE SIXTH CIRCUIT


SHARON DYKES, o/b/o LINDA A.                     )
BRYMER, deceased,                                )
                                                 )
        Plaintiff-Appellant,                     )
                                                 )    ON APPEAL FROM THE UNITED
v.                                               )    STATES DISTRICT COURT FOR THE
                                                 )    EASTERN DISTRICT OF TENNESSEE
JO ANNE B. BARNHART, Commissioner                )
of Social Security,                              )
                                                 )
        Defendant-Appellee.                      )




Before: MARTIN, COLE, and GIBBONS, Circuit Judges.

        JULIA SMITH GIBBONS, Circuit Judge. Linda Brymer applied for social security

disability insurance benefits (DIB) in 1998. After a hearing, an Administrative Law Judge (ALJ)

found that Brymer could perform her past relevant work as a fast food supervisor and denied

benefits. Brymer sought judicial review of the decision, and the district court affirmed the denial

of benefits. Brymer appeals, arguing that the ALJ erred in failing to offer reasons for disregarding

the findings of a doctor performing a consultative examination. Brymer requests that this court

reverse or remand the decision denying benefits. For the reasons set forth below, we affirm the

district court’s decision.




                                               -1-
                                                 I.

       Linda Brymer was born in 1945 and had a high school education.1 She worked as a back-

line fast food supervisor at Hardee’s until some point late in 1998 and did not work in any job

afterwards. Her previous job is classified as light work for the purposes of the medical-

vocational guidelines under 20 C.F.R. pt. 404, subpart P, app. 2. See 20 C.F.R. § 404.1567(b).

       Brymer alleged that beginning October 15, 1998, she had a disabling condition entitling

her to social security DIB. On her application for DIB, she listed numerous illnesses, injuries,

and conditions that limited her ability to work, including high blood pressure as well as pain in

her lungs, spine, stomach, and arms. At a hearing before an ALJ, Brymer alleged other

impairments, including asthma, pulmonary disease, degenerative disc disease, diabetes, sleep

apnea, depression, and panic disorder with agoraphobia.

       Numerous doctors conducted medical examinations of Brymer over the relevant period of

time for consideration of her disability claim. A summary of the notable examinations follows:

(a)    Between January 1996 and January 2000, Brymer was treated at the Optima Health

       Center for bronchitis, asthma, hypertension, and other conditions. A letter from the

       Optima Health Center dated November 30, 1999, stated that Brymer had severe

       degenerative disc disease, arthritis, pulmonary disease and asthma.

(b)    In April 1998, Brymer underwent surgery for removal of a cyst from her abdomen.

(c)    Between October 1998 and August 1999, Thomas Fulbright, M.D., treated Brymer for

       back pain. Brymer underwent surgery for neck and back pain in October 1998. By


       1
         Brymer died on April 26, 2002. The cause of death was listed as cardiopulmonary arrest,
respiratory failure, and severe chronic obstructive pulmonary disease. Brymer’s daughter Sharon
Dykes prosecuted this case on behalf of her mother, but for the sake of convenience this opinion will
refer only to Brymer.

                                                -2-
       August 1999, Brymer’s neck pain was “much better,” and she could move her cervical

       spine “without complaint.”

(d)    From December 1998 to April 1999, Brymer was treated for psychological conditions at

       the Fortwood Center.

(e)    In January 1999, Thomas Mullady, M.D., performed a consultative examination of

       Brymer’s back pain at the request of the Department of Human Services’ Disability

       Determination Section.2 He made numerous observations, including that knee reflexes

       were absent, range of lower back motion was limited, and range of motion on the cervical

       spine was normal. He noted Brymer’s history of cervical disc disease, asthma, sleep

       apnea, pulmonary disease, diabetes, high blood pressure, and carpal tunnel syndrome. He

       concluded that Brymer could frequently lift and/or carry up to ten pounds from one-third

       to two-thirds of an eight-hour workday. Also, he reported that Brymer “would be able to

       stand and/or walk with normal breaks for a total of at least two hours in an 8-hour

       workday and would be able to sit with normal breaks for a total of about six hours in an

       8-hour workday.”

(f)    In February 1999 and May 1999, respectively, Drs. H.T. Lavely, Jr. and Louise Patikas

       prepared residual functional capacity assessments of Brymer based on a review of the

       records. Both doctors reached the conclusion that Brymer could stand and/or walk for

       six hours in an eight-hour day and sit for six hours in an eight-hour day and that plaintiff




       2
       “A consultative examination is a physical or mental examination or test purchased for [the
claimant] at [the Agency’s] request and expense from a treating source or another medical source....”
20 C.F.R. § 404.1519.

                                                -3-
       could frequently lift at least ten pounds. These conclusions contradicted Dr. Mullady’s

       conclusions.

(g)    From March to July 1999, Lynn Crosby, M.D., treated Brymer for a ruptured Achilles

       tendon. In July 1999, Dr. Crosby reported that Brymer felt “comfortable” walking with

       the help of a brace.

(h)    In August 1999, Trina McLeod, M.D., prepared a medical source statement regarding

       Brymer’s mental health. Dr. McLeod wrote that Brymer could not be relied upon to

       show up for a job on time on a consistent basis and perform adequately while present

       because of “social discomfort and withdrawal, impaired ability to maintain attention and

       unreliable ability to behave in an emotionally stable manner.”

(i)    From October to December 1999, Gregory Ball, M.D., treated Brymer for chronic back

       and neck pain. In a letter written one week before Brymer’s hearing in December 1999,

       Dr. Ball wrote that due to Brymer’s “chronic pain,” it would be “difficult for [her] to find

       any form of full-duty permanent employment.”

(j)    In November 1999, Dr. A. Supan prepared a medical source statement regarding

       Brymer’s mental health, stating that Brymer was “apt to have difficulty functioning in an

       occupational setting due to physical problems.”

       After Brymer’s hearing, the ALJ determined that she had the residual functional capacity

to perform light exertional work - in other words, that she could still do her previous job.3 See


       3
         The federal social security regulations provide that disability claims are evaluated through
a five-step approach. 20 C.F.R. § 404.1520. If, at any step, a claimant is determined to be disabled
or not disabled, the analysis ends. Id. § 404.1520(a)(4). In this case, the ALJ determined that
Brymer had not engaged in substantial gainful activity after January 1, 1999; that she was severely
impaired; and that her impairments did not meet or equal an impairment listed in 20 C.F.R. pt. 404,
subpart P, app. 1. See id. § 404.1520(b)-(d). Since these first three steps did not yield a conclusion,

                                                 -4-
20 C.F.R. §§ 404.1520(e), 404.1567(b). Therefore, the ALJ determined that Brymer was not

disabled. In reaching this conclusion, the ALJ stated that he “carefully considered all the

documents identified in the record as exhibits, the testimony at the hearing and the arguments

presented.” The ALJ cited numerous exhibits in his decision, including many of the doctor’s

reports discussed above. The ALJ gave reasons for discrediting some of the reports that tended

to show that Brymer had a disability, including those offered by Dr. Ball, Dr. Supan, the

Fortwood Center, and the Optima Health Center. For the purposes of this appeal, it should be

noted that the ALJ referred to Dr. Mullady’s report only once in his discussion, stating: “The

only mention [of diabetes] is made by consultative examiner Dr. Thomas Mullady who reports

diabetes by history.”



                                                II.

           Linda Brymer filed her application for social security DIB on November 12, 1998.4 The

application was denied, both upon initial review and upon reconsideration. Brymer requested a

hearing before an ALJ, and one was held on December 13, 1999. The ALJ issued his decision

on June 1, 2000. The Appeals Council of the Social Security Administration denied Brymer’s




the ALJ proceeded to evaluate Brymer’s residual functional capacity, “based on all the relevant
medical and other evidence” in the case record. Id. § 404.1520(e). Brymer does not contest the
ALJ’s determinations as to the first three steps of the analysis.
       4
        It should be noted that Brymer also applied for supplemental security income benefits,
which are paid only to the spouse of the deceased. See 20 C.F.R. § 416.542(b)(1). Brymer was
divorced from her spouse in 1988 and never remarried. Sharon Dykes did not assert any basis for
standing to pursue this claim, and the appellant concedes in her brief that supplemental security
income benefits are not involved in this appeal.

                                                -5-
request for review of the decision on September 27, 2001, thereby giving the ALJ’s decision

final status as the decision of the Commissioner of Social Security.

       In November 2001, Brymer appealed the ALJ’s decision to federal district court. United

States Magistrate Judge William B. Carter issued a report and recommendation on Brymer’s

case in January 2003, recommending that because the Commissioner’s decision was not

supported by substantial evidence, the decision should be reversed and remanded. The

Commissioner filed objections to the report and recommendation; Brymer responded; and on

March 28, 2003, United States District Judge R. Allan Edgar rejected the report and

recommendation, concluding that “the record contains substantial evidence to support the ALJ’s

decision.” Brymer moved to alter or amend the district court’s judgment pursuant to Fed. R.

Civ. P. 59(e), but the district court denied her motion on June 16, 2003. Brymer appealed to

this court on August 13, 2003.



                                               III.

       When reviewing the Commissioner’s decision on whether a claimant is disabled, this

court is limited to determining whether there is substantial evidence in the record to support the

ALJ’s findings of fact and whether the ALJ complied with applicable legal criteria. Key v.

Callahan, 109 F.3d 270, 273 (6th Cir. 1997); Abbott v. Sullivan, 905 F.2d 918, 922 (6th Cir.

1990). Even if there is substantial evidence in the record to support an opposite conclusion, the

ALJ’s decision should be affirmed as long as it too is supported by substantial evidence. Smith

v. Chater, 99 F.3d 780, 782 (6th Cir. 1996); see also 42 U.S.C. § 405(g) (“The findings of the

Commissioner of Social Security as to any fact, if supported by substantial evidence, shall be

conclusive....”). Substantial evidence is “such relevant evidence as a reasonable mind might

                                               -6-
accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971)

(quotation omitted). Judicial review of the ALJ’s findings must be based on the record as a

whole, and therefore this court can consider any evidence in the record. Heston v. Comm’r of

Soc. Sec., 245 F.3d 528, 535 (6th. Cir. 2001).

           At the fourth step of the sequential approach described in 20 C.F.R. § 404.1520, it is the

claimant’s burden to show that she is unable to perform her previous type of work. See

Studaway v. Sec’y of Health & Human Servs., 815 F.2d 1074, 1076 (6th Cir. 1987). Here, the

ALJ determined that Brymer had not met this burden. Brymer’s argument on appeal is that the

ALJ’s failure to explain why he rejected Dr. Mullady’s assessment of Brymer’s condition is

error requiring this court to reverse the Commissioner’s decision.5 Specifically, Brymer argues

that Dr. Mullady’s analysis of how much she could walk, stand, and lift during an eight-hour

day constituted a determination that Brymer was able to perform only sedentary work, not light

work, under 20 C.F.R. § 404.1567. If Brymer were limited to sedentary exertion, and

considering Brymer’s age and education, the medical-vocational guidelines would direct a

finding of “disabled.” See 20 C.F.R. pt. 404, subpart P, app. 2, rule 201.14. Therefore, Brymer

argues, if the ALJ had given credence to Dr. Mullady’s report, the ALJ would have reached a

different conclusion. When one combines Brymer’s argument with the standard of review for




       5
         Brymer lists three arguments in the “statement of the issues” in her brief, but the latter two
– that Dr. Mullady’s opinion is consistent with other sources in the record, and that the failure to
address his opinion cannot be rehabilitated via post hoc rationalizations – are merely variants or
amplifications of her primary argument. Brymer herself seems to recognize this, at least with regard
to the second argument, conceding that whether Dr. Mullady’s opinion is consistent with other
sources is “technically not relevant to the legal error of the ALJ’s failure to address Dr. Mullady’s
opinion.”

                                                  -7-
this court on appeal, the argument can essentially be seen as an argument that the ALJ’s finding

was not supported by substantial evidence. However it is articulated, the argument fails.

                                                 A.

       The Commissioner of Social Security is required to provide a statement discussing the

evidence and reasons upon which the decision to deny benefits is based. See 42 U.S.C. §

405(b)(1). In her brief, Brymer fails to cite this circuit’s most apposite precedent interpreting

this requirement. In Heston, a claimant for DIB appealed the denial of benefits, arguing that the

ALJ hearing her case failed to state reasons for rejecting the report of the claimant’s treating

physician. 245 F.3d at 531. In finding that the ALJ’s decision was supported by substantial

evidence in the record deriving from other medical sources, the court held that the ALJ’s failure

to even mention the treating physician’s report was harmless error. Id. at 535-36. Likewise, the

Eighth Circuit, confronting a fact situation similar to Brymer’s, concluded that even if an ALJ

cited only part of a doctor’s report in his decision, the ALJ could still have considered (and

rejected) another portion of the same report:

       Although required to develop the record fully and fairly, an ALJ is not required to
       discuss all the evidence submitted, and an ALJ’s failure to cite specific evidence does
       not indicate that it was not considered. In addition to the report by [the treating
       physician], the record also contains the opinions of two consulting physicians, neither of
       whom made any observations that would support [the claimant]’s allegations of
       complete disability. Thus, given the ALJ's explicit reliance on some of [the treating
       physician]’s conclusions, we find it “highly unlikely that the ALJ did not consider and
       reject” those portions of his report that [the claimant] now points to in support of her
       appeal.

Craig v. Apfel, 212 F.3d 433, 436 (8th Cir. 2000) (citations omitted).

       The present case involves the opinion of a consultative examiner, whose opinion is

usually entitled to less weight than that of a treating physician. See 20 C.F.R. § 404.1527(d).

Logically, then, if the refusal to even acknowledge the opinion of a treating physician was

                                                -8-
harmless error in Heston, then the ALJ’s failure in the present case to discuss thoroughly the

opinion of a consultative examiner does not warrant reversal. After all, the ALJ did not ignore

Dr. Mullady’s opinion altogether; there was a reference to Dr. Mullady’s treatment of Brymer

in the ALJ’s decision. Moreover, just as in Craig, the record in Brymer’s case includes

opinions from other treating physicians and doctors performing residual functional capacity

assessments that support the ALJ’s conclusion and contradict the opinion of Dr. Mullady.

       Brymer asserts that an ALJ is required to articulate reasons for rejecting the opinion of a

consultative examiner that the claimant is disabled. Brymer’s reliance on Hurst v. Sec’y of

Health & Human Servs., 753 F.2d 517 (6th Cir. 1985), and similar cases for this proposition is

misplaced. In Hurst, the ALJ failed to address a treating physician’s assessment of the

claimant’s condition. Id. at 518-19. The court held that the decision was not supported by

substantial evidence. Id. at 520-21. However, the court’s holding was not based solely on the

ALJ’s failure to address the treating physician’s assessment. Numerous other reasons were

cited for the court’s conclusion, including: that the Agency relied on potentially fraudulent

consultative examinations; that the ALJ incorrectly characterized some of the physician’s

earlier reports as contradictory to her subsequent assessment; and that the ALJ incorrectly

dismissed objective medical findings. See id. at 519-21. Also, Hurst involved a treating

physician, not a consultative examiner. Hurst thus does not govern this case; Heston does, and

the ALJ’s failure in the present case to explain why he disregarded part of the opinion of a

consultative examiner does not warrant reversal.

                                                B.

       Even if the ALJ committed error in failing to explicitly reject Dr. Mullady’s assessment,

the error is harmless, as the fundamental question for this court is whether the ALJ’s decision is

                                               -9-
supported by substantial evidence. See Heston, 245 F.3d at 535-36. A few examples from the

record, most of which were cited by the ALJ in his decision, will suffice to demonstrate that

substantial evidence supports the finding that Brymer was not disabled. Dr. Fulbright’s

assessments of Brymer’s neck and back pain in August 1999 indicate that her pain had

subsided, and this conclusion was affirmed by Dr. Ball in October of that year. Dr. Ball’s

reports did not suggest that any of Brymer’s conditions would affect her ability to work, and he

even indicated that Brymer’s ailments were improving. Similarly, although Brymer ruptured

her Achilles tendon in March 1999, her doctor reported that by July Brymer had responded well

to treatment. The doctor released Brymer from a follow-up appointment. In the same month,

another doctor stated that Brymer had responded well to medication for her “mild to moderate

obstructive airways disease,” and she also showed “good clinical response” with regard to her

sleep apnea. Evidence indicating that the claimant’s impairments can be controlled with

medication can serve as substantial support for an ALJ’s conclusion. See Houston v. Sec’y of

Health & Human Servs., 736 F.2d 365, 367 (6th Cir. 1984).

       A final example of the evidence supporting the finding that Brymer was not disabled is

provided by Dr. Mullady’s report itself. Dr. Mullady’s report asserted that Brymer had normal

range of motion on her cervical spine and all joints other than her lower back; normal gait,

balance, and grip strength; and no sensory deficits. In addition, Dr. Mullady advised that

Brymer could “stand and/or walk for a total of at least two hours in an 8 hour workday.”

(Emphasis added.) Even though Brymer reads this opinion as limiting her to sedentary work, it

could be also interpreted as allowing the “good deal of walking or standing” required by light

work, thereby yielding the conclusion that Brymer was not disabled. See 20 C.F.R. §

404.1567(b). In any event, while the ALJ did not explicitly address the parts of Dr. Mullady’s

                                              - 10 -
opinion that were favorable to Brymer’s claim, he also did not address these portions of Dr.

Mullady’s opinion that would have tended to disprove Brymer’s claim. The information that

undermines Brymer’s claim augments the evidence underlying the ALJ’s decision, which, taken

together, is substantial.



                                                IV.

        For the foregoing reasons, we affirm the district court’s decision.




                                               - 11 -
