                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                             File Name: 14a0424n.06

                                         Case No. 13-6024
                                                                                      FILED
                                                                                Jun 11, 2014
                          UNITED STATES COURT OF APPEALS                    DEBORAH S. HUNT, Clerk
                               FOR THE SIXTH CIRCUIT


JOANIE WOLFENBARGER DYER,                          )
                                                   )
       Plaintiff-Appellant,                        )
                                                   )        ON APPEAL FROM THE UNITED
v.                                                 )        STATES DISTRICT COURT FOR
                                                   )        THE EASTERN DISTRICT OF
SOCIAL SECURITY ADMINISTRATION,                    )        KENTUCKY
                                                   )
       Defendant-Appellee.                         )        OPINION
                                                   )
____________________________________/              )


Before: Merritt, Cook, and Stranch, Circuit Judges.

       MERRITT, Circuit Judge. Plaintiff Joanie Wolfenbarger Dyer appeals from the district

court decision upholding the Commissioner of Social Security’s denial of her application for

disability insurance and supplemental security income. Dyer claims that the administrative law

judge failed to give adequate weight to her treating physician’s opinion about her ability to work

and that the administrative law judge gave a hypothetical to the vocational expert that did not

adequately reflect Dyer’s physical and mental limitations. After reviewing the administrative

record, we hold that the denial of benefits was based on substantial evidence. We therefore

affirm the judgment of the district court.
No. 13-6024, Dyer v. Soc. Sec. Admin.


                                       I. Factual and Procedural History

        Dyer filed applications for disability insurance benefits and social security income in

December 2009, alleging she became disabled on November 1, 2008.1 A hearing was conducted

before an administrative law judge on March 15, 2011, at which Dyer, her attorney and a

vocational expert appeared. The administrative law judge issued an opinion on March 24, 2011,

denying her applications.2 The Appeals Council denied her request for review, leaving the

administrative law judge’s decision as the final decision. Dyer then sought judicial review and

the district court affirmed the Commissioner’s decision. Dyer v. Colvin, Acting Comm’r of Soc.

Sec., No. 12-0098 (E.D. Ky. May 28, 2013).

        The administrative law judge applied the five-step sequential evaluation process. See

20 C.F.R. §§ 404.1520(a) and 416.920(a). At step one, the administrative law judge determined

that Dyer had not engaged in substantial gainful activity since November 1, 2008, the alleged

onset disability date. At step two, the judge found that Dyer had a combination of severe

impairments, including a history of coronary artery disease (post-stenting), carotid artery stenosis

without infarction, chronic obstructive pulmonary disease, acromioclavicular joint crepitus of the

right shoulder, degenerative disc disease of the cervical spine, bilateral carpal tunnel release

(post-surgery), bipolar disorder, anxiety disorder with post-traumatic stress disorder and pain

1
  Dyer filed prior applications for disability insurance and social security income in 2006 that were denied. These
applications are not at issue in this appeal.
2
  Dyer was born on November 1, 1962, and was 48 years old at the time of the administrative decision on her
claims. When the Social Security Commission decides whether a claimant is disabled, it considers her
chronological age in combination with residual functional capacity, education, and work experience. In determining
the extent to which age affects a claimant’s ability to adjust to other work, the Commission considers advancing age
to be an increasingly limiting factor in the claimant’s ability to make such an adjustment. See 20 C.F.R. § 404.1563.
Dyer is now 51 years old. Age 50 serves as a demarcation line between “younger person” (less than 50 years of age)
and “person closely approaching advanced age” (50–54 years of age) for purposes of analyzing disability claims. Id.
As a person closely approaching advanced age, the Commission will consider that her age along with severe
impairments and limited work experience may seriously affect her ability to adjust to other work. But, in order to
have her case considered a “closely-approaching-advanced-age” case, Dyer will have to refile her claim and engage
the administrative process anew.

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No. 13-6024, Dyer v. Soc. Sec. Admin.


disorder. ALJ Decision at 4. At step three, the administrative law judge found that Dyer did not

have an impairment or combination of impairments that met or medically equaled a listed

impairment. Id. at 8. Because the administrative law judge found that Dyer did not have a listed

impairment, he went on to determine her residual functional capacity. At steps four and five, he

found that Dyer retained the residual functional capacity to perform light work,3 including her

past work as a utility and assembly line inspector, with certain limitations on the frequency of

lifting and carrying, limiting standing or walking to 6 hours in an 8-hour workday, limiting

sitting to 6 hours in an 8-hour workday, limiting the frequency of pushing or pulling with her

right arm, limited climbing of stairs or ramps, no climbing on ladders, ropes or scaffolds, only

occasionally balancing, kneeling, crouching or crawling, limitations on the amount of overhead

reaching with both arms and avoiding concentrated exposure to extremes in the environment,

such as temperatures, vibration or air-borne contaminants and fumes. Id. at 10.

         In addressing Dyer’s mental impairments, the administrative law judge found she would

be able to understand, remember and carry out simple work instructions and procedures requiring

brief learning periods, that she could sustain focus, effort and pace for simple work tasks

requiring little independent judgment and involving minimal variation, that she was able to

interact as needed with supervisors and coworkers but should interact with the public only

occasionally and that she could adapt adequately to situational conditions and changes with

reasonable support and structure. Id. at 10-11.

         Based on Dyer’s medical record, her testimony and the opinion of the vocational expert,

the administrative law judge found that she could perform her past relevant work with the listed


3
  “Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing
up to 10 pounds. . . . [A] job is in this category when it requires a good deal of walking or standing, or when it
involves sitting most of the time with some pushing and pulling of arm or leg controls.” 20 C.F.R. §§ 404.1567(b),
416.967(b).

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No. 13-6024, Dyer v. Soc. Sec. Admin.


limitations.   The judge went on to find that she could also perform other jobs such as

housekeeper, gate keeper and assembler and other work existing in significant numbers in the

national economy. Accordingly, the administrative law judge made a finding that Dyer is “not

disabled” and not entitled to disability insurance benefits. Id. at 15.

                                                    I.

       Dyer raises three issues on appeal: (1) the administrative law judge did not give proper

weight to the opinion of her treating physician; (2) the administrative law judge gave a

hypothetical to the vocational expert with an inaccurate residual functional capacity; and (3) the

vocational expert failed to resolve inconsistencies between the work-related functions of the

identified jobs Dyer could perform and their definitions in the Dictionary of Occupational Titles.

On review, we are 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. Weight Given Dr. Dunaway’s Opinion

       Dyer’s appeal focuses mainly on the discrepancies between the opinion of one of her

treating physicians, Dr. Dunaway, and the findings of the administrative law judge as to Dyer’s

physical limitations. When according weight to the opinion of a treating physician, the opinion

must 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] case record.” 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2); Wilson v. Comm’r of Soc. Sec.,

378 F.3d 541, 544 (6th Cir. 2004). However, the treating physician’s opinion can be properly

discounted if there is substantial medical evidence to the contrary or the physician provided a

“conclusory opinion that claimant is unable to work.” Tate v. Comm’r of Soc. Sec., 467 F. App’x



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No. 13-6024, Dyer v. Soc. Sec. Admin.


431, 433 (6th Cir. 2012). For example, in Tate we affirmed an administrative law judge’s

decision not to give controlling weight to a treating physician’s opinion where that opinion was

inconsistent with other evidence in the record or the assessment relied on subjective symptoms

without support of objective findings. Id. The administrative law judge must give “good

reasons” for the weight—or lack of weight—given a treating physician’s opinion. 20 C.F.R. §

404.1527(c)(2). The administrative law judge must consider specific factors to determine what

weight the treating physician’s opinion will be given, and the judge’s “good reasons” must be

supported by the evidence in the record. Wilson, 378 F.3d at 544-46.

       Dr. Dunaway opined, based on Dyer’s cervical spine MRI, that Dyer could lift less than

10 pounds, stand and walk less than two hours, and sit about two hours. Dr. Dunaway stated that

Dyer must change positions every 10-15 minutes when sitting and 5-10 minutes when standing.

He opined that Dyer would need to shift at will from sitting or standing and that she would need

to lie down twice in a normal work day of 8 hours. In contrast, the administrative law judge

found that she could carry 10 pounds frequently and 20 pounds occasionally, and sit or stand and

walk, depending on the job, for 6 hours out of an 8-hour workday. Dyer argues that the

administrative law judge failed to give Dr. Dunaway’s opinion proper weight in determining her

residual functional capacity.

       In support of the decision to give little weight to Dr. Dunaway’s opinion, the

administrative law judge acknowledged that the opinions of Dyer’s treating physicians are

entitled to “great weight unless there is persuasive contradictory evidence. . . . [but little] weight

is accorded the opinions of these physicians inasmuch as they are inconsistent with the weight of

the medical evidence of record and her activities of daily living.” ALJ Decision at 13-14. The




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No. 13-6024, Dyer v. Soc. Sec. Admin.


administrative law judge went on to detail the reasons why he did not give much weight to Dr.

Dunaway’s opinion and to explain why he gave other opinions more weight.

       The administrative law judge gave considerable weight to nontreating, consultative

examiner Dr. Beard in regard to Dyer’s residual functional capacity assessment. See Carrelli v.

Comm’r of Soc. Sec., 390 F. App’x 429, 436-38 (6th Cir. 2010) (administrative law judge gave

considerable weight to a nontreating physician’s assessment that was consistent with objective

medical evidence such as MRIs and with the claimant’s self-reported daily activities). Dr. Beard

found no evidence of hypertensive or diabetic retinopathy and no organ damage due to diabetes

mellitus. Dr. Beard also found her chronic obstructive pulmonary disease, restrictive pulmonary

disease and dyspnea after exertion to be “mild” or “very mild.” He found mild tenderness or

mild pain in the cervical spine and the shoulder joint. He found her wrists nontender and

nonswollen. Her grip strength was only “mildly diminished” and she was able to make a fist,

pick up a button and coins with either hand, write with her dominant hand with no difficulty and

had no intrinsic hand atrophy or sensory loss from carpal tunnel syndrome. She could stand on

one leg at a time with no difficulty and was able to walk on heels and toes. Dr. Beard noted that

Dyer is limited in terms of repetitious or prolonged use of the hands, repetitive bending and

heavy lifting or carrying. ALJ Decision at 12-13.

       Dyer’s cardiac and vascular system testing likewise show full revascularization after

angioplasty and a stenting procedure, a normal EKG and blood pressure within an acceptable

range with medication.

       The administrative law judge also did not give controlling weight to Dr. Dunaway’s

opinion because it was inconsistent with the evidence about her activities of daily living. He

related at length in his decision the “wide range of varied activities of daily living” engaged in by



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No. 13-6024, Dyer v. Soc. Sec. Admin.


Dyer according to her own testimony, citing Dyer’s ability to take care of her personal hygiene

and grooming, cooking, cleaning, laundry, driving, shopping, visiting with friends and family,

caring for her ill mother, and taking care of her pet bird. ALJ Decision at 13. He found that

Dyer

       is trying to make her symptoms sound significantly more severe than they actually
       are. The . . . symptoms alleged by the claimant [are] significantly greater than
       that which can be reasonably anticipated based upon the objective physical
       findings. The medical evidence simply fails to establish the presence of . . .
       impairment that could reasonably be expected to cause symptoms of the great
       degree alleged.


Id. at 12. The judge concluded that “[i]t appears that the claimant has exaggerated her

physical limitations.” Id.

       Dyer counters that undertaking these activities causes her to experience “days of pain”

and further restriction of movement and that there are times when her sister must help her wash

her hair.   She also relates that family members help her with “most” household chores.

Appellant’s Br. at 21.       We have affirmed findings in similar situations, holding that daily

activities such as those reported by Dyer herself can constitute substantial evidence in support of

a finding that a claimant is not disabled. See Tyra v. Sec’y of Health & Human Servs., 896 F.2d

1024, 1030 (6th Cir. 1990).

       Dyer also challenges the administrative law judge’s findings of her mental status and

capabilities, particularly her ability to remember instructions. While one examining physician,

Dr. Lima, noted that Dyer would have difficulty remembering simple instructions, there is

substantial evidence in the record from other mental health professionals that Dyer could

remember simple instructions requiring brief learning periods and instructions that were

repetitive in day-to-day situations.



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No. 13-6024, Dyer v. Soc. Sec. Admin.


       The administrative law judge carefully summarized the results of all of Dyer’s medical

records. He explained why each of her stated impairments—back, neck and shoulder pain,

neurologic damage from degenerative disc disease, pulmonary disease, coronary artery disease,

diabetes, carpal tunnel syndrome and mental impairments, including depression—do not meet,

alone or in combination, a listed impairment and why Dr. Dunaway’s opinion is inconsistent

with these findings. The reasons given are well supported on the record.

       The objective medical evidence simply fails to support Dr. Dunaway’s opinion. Dr.

Dunaway’s own treatment records do not support the extremely restrictive limitations on Dyer’s

work-related activities he gave in his opinion. For example, after diagnosing Dyer with cervical

stenosis in 2007, later examinations noted full range of motion in her shoulders, fairly strong and

symmetric grip strength with normal sensation and back flexibility and bending near normal.

These findings are similar to those made by Dr. Beard, the consultative physician to whose

opinion the administrative law judge gave considerable weight.

       An administrative law judge may give more weight to the opinions of examining or

consultative sources where the treating physician’s opinion is not well-supported by the objective

medical records. See, e.g., Gayheart v. Comm’r of Soc. Sec., 710 F.3d 365, 376, 379-80 (6th Cir.

2013). Substantial evidence supports the administrative law judge’s finding that Dr. Dunaway’s

proposed severe limitations were inconsistent with the evidence in the record and the treating

physician rule was not violated.

                          B. The Vocational Expert’s Testimony

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

accurately describe her residual functional capacity and that it was therefore error for the




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No. 13-6024, Dyer v. Soc. Sec. Admin.


Commissioner to rely upon his testimony.4 For a vocational expert’s response to a hypothetical

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 if the information in the hypothetical question posed to the vocational expert by the

administrative law judge was accurate.

           After detailing the medical evidence entered by Dyer’s treating physicians and the

consultative physicians, the administrative law judge based Dyer’s residual functional capacity

on the opinions of the consultative examiners, the claimant’s activities of daily living and the

opinion of Dyer’s treating cardiologist, Dr. Lohman. ALJ Decision at 14. For all the reasons

given in the preceding section, the administrative law judge did not err in determining Dyer’s

residual functional capacity as it was based on the medical evidence in the record. Accordingly,

the hypothetical posed to the vocational expert properly took into account the well-supported

findings by the administrative law judge concerning Dyer’s functional limitations. A vocational

expert’s testimony in response to an accurate hypothetical represents substantial evidence that


4
    The following hypothetical was given to the vocational expert:

           [T]he claimant has residual functional capacity to perform light exertional work activities. That
           [means she may] occasionally lift or carry 20 pounds, frequently 10 pounds; stand or walk a total
           of six hours in an eight-hour workday; sit a total of six hours in an eight-hour workday; no more
           than frequent push/pull with right upper extremity; only occasionally climbing . . . stairs or ramp,
           never ladder or rope; only occasional balancing, kneeling, crouching, or crawling; no more than
           frequent handling bilaterally—and handling is defined, Ms. Taber, as seizing, holding, grasping,
           turning, or otherwise working primarily with the whole hand or hands—no more than frequent
           overhead reaching bilaterally; she should avoid concentrated exposure to extreme cold, heat,
           humidity, full-body vibration, fumes, odors, dust, or gases, and all hazards such as unprotected
           heights and dangerous machinery. She also suffers with mental impairments, however, she would
           be able to understand, remember, and carry out simple, repetitive work instructions and procedures
           requiring brief learning periods; sustain concentration and effort and pace for simple work tasks
           requiring little independent judgment and involving minimal variations, and doing so at a
           prerequisite schedules of work and breaks. [She would] be able to interact frequently as needed
           with supervisors and coworkers sufficiently for task completion yet requiring no more than
           occasional interaction with the general public, and she’d be able to adapt adequately to situational
           conditions and changes with reasonable supported structure.

Transcript of Hearing before Administrative Law Judge Don C. Paris at 40-41 (Mar. 15, 2011).

                                                          -9-
No. 13-6024, Dyer v. Soc. Sec. Admin.


the claimant has the vocational qualifications to perform specific jobs. Smith v. Halter, 307 F.3d

377, 378 (6th Cir. 2001) (citing Varley v. Sec’y of Health & Human Servs., 820 F.2d 777, 779

(6th Cir. 1987)). The vocational expert testified that based on the hypothetical given, Dyer can

perform her past relevant work and a significant number of jobs in the economy. ALJ Decision

at 14-15.

                           C. Dictionary of Occupational Titles

       Dyer briefly argues that the vocational expert’s testimony was inconsistent with the

Dictionary of Occupational Titles. Specifically, Dyer contends that the descriptions in the

Dictionary of Occupational Titles of the jobs identified by the vocational expert all require the

ability to remember and carry out “detailed” instructions, but the hypothetical given by the

administrative law judge specified that the job requirements entail only “simple” instructions.

The administrative law judge asked the vocational expert at the hearing if her testimony was

consistent with the Dictionary of Occupational Titles and she answered yes. Dyer’s counsel did

not object or otherwise ask for any clarification or follow up to this single question about the

Dictionary of Occupational Titles and no further discussion occurred. See Lindsley v. Comm’r of

Soc. Sec., 560 F.3d 601, 606 (6th Cir. 2009) (where the administrative law judge has already

fulfilled his obligation to ask the vocational expert whether his testimony conflicts with the

Dictionary of Occupational Titles, the judge need not independently investigate conflicts in

vocational expert’s testimony not brought to the judge’s attention).

       In any event, the Dictionary of Occupational Titles defines the jobs assigned to persons

with Dyer’s educational level (a General Equivalency Diploma) to require the ability to “[a]pply

commonsense understanding to carry out detailed but uninvolved written or oral instructions

[and to deal] with problems involving a few concrete variables in or from standardized



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No. 13-6024, Dyer v. Soc. Sec. Admin.


situations.”   Dictionary of Occupational Titles 706.684-030.        Dyer cites no authority to

demonstrate that this definition is inconsistent with the hypothetical given to the vocational

expert that stated that Dyer was capable of understanding, remembering and carrying out simple

instructions. We concede that the phrase “detailed but uninvolved” is confusing, but it does not

contradict the hypothetical.

       For the foregoing reasons, the judgment of the district court is affirmed.




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