                        NOT RECOMMENDED FOR PUBLICATION
                                File Name: 10a0218n.06
                                                                                           FILED
                                            No. 09-5623                                Apr 07, 2010
                                                                                  LEONARD GREEN, Clerk
                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT


GORDON GANT,                                            )
                                                        )
       Plaintiff-Appellant,                             )
                                                        )
v.                                                      )    ON APPEAL FROM THE UNITED
                                                        )    STATES DISTRICT COURT FOR
                                                        )    THE WESTERN DISTRICT OF
COMMISSIONER OF SOCIAL SECURITY,                        )    TENNESSEE
                                                        )
       Defendant-Appellee.                              )


Before: MARTIN, SILER, and MOORE, Circuit Judges.

       SILER, Circuit Judge. Plaintiff Gordon Gant appeals the district court’s decision upholding

the Commissioner’s denial of disability benefits. We review the decision of the district court de

novo. White v. Comm’r of Soc. Sec., 572 F.3d 272, 281 (6th Cir. 2009). For the following reasons,

we affirm.

       Gant applied for Social Security benefits, basing his claim on the following conditions:

degenerative disc disease, spinal stenosis, congestive heart failure, hypertension, cardiovascular

disease, rheumatoid arthritis, osteoarthritis, prostate disorder, and sleep apnea. In 2007, the

administrative law judge (“ALJ”) found that: (1) Gant met the disability insured status requirements

through December 31, 2004; (2) he has not engaged in substantial gainful activity since the alleged

onset of disability; (3) he has severe impairments: degenerative disc disease of the lumbar spine with

history of surgery, congestive heart failure, hypertension, and obstructive sleep apnea; however, he
No. 09-5623
Gant v. Commissioner

does not have impairments, either alone or in combination, that meet or equal the requirements of

any listed impairment contained in 20 C.F.R. §§ 404.1520(d), 404.1525, and 404.1526; (4) Gant’s

subjective allegations were not entirely credible; (5) he has the residual functional capacity to

perform a significant range of sedentary work, although he is unable to perform his past relevant

work; (6) based on vocational testimony and considering Gant’s age, education, past work

experience, and residual functional capacity, there are significant numbers of jobs in the national

economy that he can perform; (7) he was not under a disability as defined by Title II of the Social

Security Act at any time from July 2, 2003 through December 31, 2004, the date last insured.

       “We must affirm the Commissioner’s conclusions absent a determination that the

Commissioner has failed to apply the correct legal standards or has made findings of fact

unsupported by substantial evidence in the record.” Colvin v. Barnhardt, 475 F.3d 727, 729 (6th Cir.

2007) (internal quotation marks omitted). An individual is eligible for social security benefits on

the basis of financial need and either age, blindness, or disability. 42 U.S.C. § 1382(a). An

individual will only be determined to be under a disability if his impairment or impairments are of

such severity that he is not only unable to do his previous work, but cannot, considering his age,

education and work experience, engage in any other kind of substantial gainful work which exists

in the national economy. Id. § 1382c(a)(3)(B).

       This case arises out of the ALJ’s finding that Gant has the residual functional capacity to

perform a significant number of jobs in the national economy. The Commissioner had the burden

of identifying “a significant number of jobs in the economy that accommodate the claimant’s

residual functioning capacity.” Jones v. Comm’r of Soc. Sec., 336 F.3d 469, 474 (6th Cir. 2003).

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No. 09-5623
Gant v. Commissioner

The ALJ based his finding on the testimony of a vocational expert (“VE”) in response to a

hypothetical question. The VE testified that a hypothetical individual with Gant’s physical

impairments as identified by Kamal J. Mohan, M.D., could perform the sedentary jobs of office

helper, bill sorter, and receptionist. The VE further testified that, regionally, there are 11,000 such

jobs and, nationally, there are 570,080 such jobs. Gant contends that this finding is not supported

by substantial evidence (1) because the ALJ inappropriately rejected medical opinion testimony in

formulating the hypothetical question to the VE, and (2) because the ALJ’s hypothetical question

to the VE did not include any restrictions from Gant’s sleep apnea or obesity.

       The ALJ discredited the medical opinion of Angela D. Watson, D.O., Gant’s treating

physician, because she failed to submit records supporting her findings and because her assessment

was inconsistent with the record as a whole. See 20 C.F.R. § 404.1527(d)(4) (“Generally, the more

consistent an opinion is with the record as a whole, the more weight we will give to that opinion.”).

Dr. Watson’s treatment notes do not fully support her November 14, 2004 opinion. In fact, her

treatment notes from May 2004 to February 2006 reveal no significant findings. Because the record

adequately supports the finding that Dr. Watson’s medical opinion was not supported by her own

treatment notes and was inconsistent with the record as a whole, the ALJ was warranted in

discrediting her opinion.

       The ALJ also discredited the January 18, 2005 medical opinion of Jesse E. McGee, M.D.,

stating that Gant has sleep apnea and was 100 percent disabled. Conclusory medical opinions are

properly discounted as only the Commissioner can make the ultimate determination of disability.

See 20 C.F.R. § 404.1527(e)(1). In addition, Dr. McGee is a cardiologist and not a sleep disorder

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No. 09-5623
Gant v. Commissioner

specialist. See 20 C.F.R. § 404.1527(d)(5) (more weight should be given to a specialist about

medical issues to his or her area of specialty than to the opinion of a source who is not a specialist).

James M. Andrews, M.D., who treated Gant’s sleep apnea, only opined that Gant was functionally

limited by his sleep apnea as to his ability to drive and operate heavy machinery. Moreover, the

record shows that Gant’s sleep apnea was controlled with a continuous airway pressure (“CPAP”)

machine. Because Dr. McGee’s medical opinion about sleep apnea was inconsistent with the record

as a whole and related to a matter outside his area of expertise, the ALJ was warranted in not

accepting his opinion.

        The ALJ found the August 30, 2005 medical opinion of Rodney Olinger, M.D., credible but

determined that it was not relevant because it did not relate to Gant’s limitations prior to December

31, 2004. Dr. Olinger’s opinion was based on medical observations taken after Gant’s insured status

expired. Moreover, Dr. Olinger did not state that his opinion related back to Gant’s condition prior

to December 31, 2004. Similarly, the ALJ found the September 1, 2006 medical opinion of Barry

Siegel, M.D., credible but not relevant because it did not relate to Gant’s limitations prior to

December 31, 2004.

        The ALJ found Dr. Mohan’s March 8, 2005 medical opinion credible and relevant. Dr.

Mohan diagnosed Gant with the following: chronic lower back pain, status post laminectomy in

1999; obstructive sleep apnea, currently using CPAP machine; hypertension well controlled;

pulmonary hypertension; obesity; hypersomnolence; bronchial asthma; hypercholesterolemia; and

gastroesphageal reflux disease. He opined that Gant had the following functional capacities and

limitations: lifting/carrying twenty pounds occasionally; standing/walking at least four hours in a

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No. 09-5623
Gant v. Commissioner

eight-hour workday, with breaks; periodically alternating sitting and standing; occasionally climbing,

balancing, kneeling, crouching, crawling, or stooping; and limited in pushing/pulling with his upper

and lower extremities. Dr. Mohan also identified Gant’s environmental limitations, which included

temperature extremes, dust, humidity/wetness, hazards, fumes, odors, chemicals, and gases.

Although it was provided approximately two months after the expiration of Gant’s insured status,

Dr. Mohan’s medical opinion is consistent with the record evidence that existed prior to December

31, 2004. Consequently, substantial record evidence supports the ALJ’s determination to rely upon

Dr. Mohan’s medical opinion over the opinions of the other doctors. See 20 C.F.R. § 404.1527.

       The VE’s response to the ALJ’s hypothetical question was reliable and constitutes substantial

evidence for denying Gant’s application for benefits. See Varley v. Secretary of Health & Human

Servs., 820 F.2d 777, 779 (6th Cir. 1987) (stating that substantial evidence may be produced through

reliance on the testimony of a vocational expert in response to a hypothetical if the question

accurately portrays the plaintiff’s individual physical and mental impairments). Gant contends that

the VE’s response to the hypothetical question relied on by the ALJ is unreliable because it did not

include all of his limitations. However, in formulating a hypothetical question, an ALJ is only

required to incorporate those limitations which he has deemed credible. Stanley v. Secretary of

Health & Human Servs., 39 F.3d 115, 118-19 (6th Cir. 1994). Because the ALJ properly discounted

the medical opinions of the other doctors, he also properly excluded the limitations assessed by those

doctors from the hypothetical question. See id.

       Gant also contends that the ALJ’s hypothetical question was faulty because it did not include

any limitations related to Gant’s sleep apnea or obesity. Impairments that are controllable or

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Gant v. Commissioner

amenable to treatment cannot support a finding of disability. See 20 C.F.R. § 404.1529(c); see also

Houston v. Secretary of Health & Human Servs., 736 F.2d 365, 367 (6th Cir. 1984). Because the

record indicates that Gant’s sleep apnea was being controlled with treatment, there is substantial

evidence to conclude that he was not functionally limited by his sleep apnea. Moreover, the record

does not indicate that Gant’s obesity imposes limitations that would preclude his performing the

sedentary jobs identified by the VE. Because the hypothetical question included those limitations

which the ALJ found credible and excluded only those limitations which were discredited for a

legally sufficient reason, there is substantial evidence to support the Commissioner’s determination

that Gant can perform a significant number of jobs in the national economy. See Blacha v. Secretary

of Health & Human Servs., 927 F.2d 228, 231 (6th Cir. 1990).

       AFFIRMED.




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