                     NOT RECOMMENDED FOR PUBLICATION
                            File Name: 07a0101n.06
                             Filed: February 8, 2007

                                          No. 06-5545

                      UNITED STATES COURT OF APPEALS
                           FOR THE SIXTH CIRCUIT


TIMOTHY C. TEMPLETON,

       Plaintiff-Appellant,

              v.                                                On Appeal from the United
                                                                States District Court for the
COMMISSIONER OF SOCIAL SECURITY,                                Eastern District of Tennessee

       Defendant-Appellee.


                                                          /

Before:       GUY, SUHRHEINRICH, and GRIFFIN, Circuit Judges.

       PER CURIAM.            Plaintiff Timothy C. Templeton appeals from the district court’s

order affirming the denial of his application for social security disability benefits. First,

seeking reversal, Templeton contends that there was not substantial evidence to support the

ALJ’s conclusion that he retained the capacity to perform unskilled light work that allowed

for frequent postural changes. Second, Templeton argues that the district court erred by

refusing to remand his claim for consideration of new evidence concerning his residual

functional capacity. For the reasons that follow, we affirm in all respects.

                                               I.

       Templeton applied for disability insurance benefits alleging that his disability began

on May 30, 2003, after he injured his back at work. Templeton, who completed high school,
No. 06-5545                                                                               2

had past relevant work experience as a shipper and a crane operator. His prior relevant work

required heavy exertion, which it is undisputed he could no longer perform. Plaintiff

maintained that he was disabled due to a herniated disc at L5-S1 and constant pain in his

lower back radiating down both legs.        His application was denied initially and on

reconsideration, and a hearing was held before an ALJ on February 3, 2005.

       In a written decision issued April 11, 2005, the ALJ found that plaintiff had

demonstrated a severe impairment that was expected to last more than 12 months which

would preclude him from performing his past relevant work. The ALJ also concluded,

however, that Templeton retained the capacity to perform simple, unskilled, light work that

allowed for frequent postural changes. Relying on the vocational expert’s testimony that a

significant number of such jobs existed in the national economy, the ALJ concluded that

plaintiff was not disabled under the Social Security Act. Plaintiff submitted additional

evidence with his request for review by the Appeals Council. The Appeals Council denied

review on June 30, 2005, and the ALJ’s decision became the final agency action.

       Plaintiff brought this action seeking judicial review of the denial of benefits, and

cross-motions for summary judgment were filed. The district court granted summary

judgment to the Commissioner on March 9, 2006, finding that substantial evidence supported

the ALJ’s decision and denying the request for remand under sentence six of 42 U.S.C. §

405(g). Plaintiff filed a motion to alter or amend judgment, which was also denied, and this

appeal followed.

                                            II.
No. 06-5545                                                                                                 3

        A five-step sequential process is used to determine whether a claimant is disabled

within the meaning of the Social Security Act. See 20 C.F.R. § 404.1520; Warner v. Comm’r

of Soc. Sec., 375 F.3d 387, 390 (6th Cir. 2004); Foster v. Halter, 279 F.3d 348, 353 (6th Cir.

2001); Heston v. Comm’r of Soc. Sec., 245 F.3d 528, 535 (6th Cir. 2001).1 The claimant

bears the burden of proof on steps one through four, and then the burden shifts to the

Commissioner to establish that there are a significant number of jobs in the national economy

that the claimant can perform. Warner, 375 F.3d at 390. In this case, the ALJ acting for the

Commissioner found in plaintiff’s favor on each of the first four steps, but concluded at the

fifth and final step that there was work Templeton could perform and denied his application

for benefits.

        “This court 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.” Walters v. Comm’r of Soc. Sec., 127

F.3d 525, 528 (6th Cir. 1997); see also 42 U.S.C. § 405(g). Substantial evidence is “‘such

relevant evidence as a reasonable mind might accept as adequate to support a conclusion.’”

Richardson v. Perales, 402 U.S. 389, 401 (1971) (citation omitted). In reviewing the


        1
           The claimant must first demonstrate that he is not engaged in any “substantial gainful activity” at
the time he seeks disability benefits, and then that he suffers from a “severe impairment” that “significantly
limits . . . physical or mental ability to do basic work activities.” 20 C.F.R. § 404.1520(b) and (c) and §
416.920(c). Third, if the claimant’s severe impairment is expected to last for at least 12 months and the
impairment “meets or equals a listed impairment,” he is presumed to be disabled. 20 C.F.R. § 404.1520(d)
and § 416.920(d). Fourth, if the impairment does not meet or equal a listed impairment and does not prevent
the claimant from doing past relevant work, he is not disabled. 20 C.F.R. § 404.1520(e). If he cannot
perform past relevant work, other factors are considered at the fifth and final step including age, education,
work experience, and residual functional capacity, to determine whether the claimant can make an
adjustment to other work. 20 C.F.R. § 404.1520(f) and § 404.1545. If he can, he is not disabled under the
Social Security Act.
No. 06-5545                                                                                 4

Commissioner’s conclusions, we may not resolve conflicts in the evidence or decide

questions of credibility. Gaffney v. Bowen, 825 F.2d 98, 100 (6th Cir. 1987). Even if

substantial evidence would have supported the opposite conclusion, the Commissioner’s

findings must be affirmed if supported by substantial evidence. Key v. Callahan, 109 F.3d

270, 273 (6th Cir. 1997).

A.     Evidence

       Plaintiff was diagnosed and treated by neurosurgeon John Raff, M.D., for a herniated

disc at L5-S1 and pain in the low back and legs between May 2003 and January 2004.

Surgery was rejected as a treatment option given the risk of a poor outcome due in part to the

fact he weighed over 300 pounds. Plaintiff received physical therapy and underwent several

spinal injections, but neither resolved his complaints. The doctor who administered the

injections, Timothy Smyth, M.D., of Pain Medicine Associates, diagnosed plaintiff as having

lumbar spondylosis without myelopathy, mild lumbar degenerative disc disease, and mild

lumbar herniated nucleus pulposus. Plaintiff’s primary care doctors, first Dr. John Ille and

later Dr. Mark Dalle-Ave, also treated plaintiff for hypertension, low back pain, neuropathy,

depression, anxiety, stress, and reflux disease.

       Dr. Raff referred plaintiff to occupational therapist Jeff Snodgrass for a functional

capacity evaluation, which was conducted in December 2003. After examining plaintiff, the

therapist concluded that plaintiff was able to stand, walk, bend, and stoop occasionally, and

needed to be able to alternate between positions as his symptoms required. Plaintiff could

also climb stairs occasionally—but not ladders—and could not crouch, squat, twist, or
No. 06-5545                                                                                5

perform low level work. Snodgrass found that plaintiff was limited to sedentary physical

demands for lifting (up to 10 pounds occasionally); light physical demands for carrying,

pushing, and pulling (up to 20 pounds occasionally); and should initially return to work for

only three to four hours per day. This evaluation concluded that plaintiff was capable of

sedentary to light work.

       In a letter dated January 13, 2004, Dr. Raff opined that plaintiff had reached

“maximum medical improvement and [was] not likely to become appreciably better or worse

in the foreseeable future.” With respect to his functional capacity, Dr. Raff concluded as

follows:

       Based on his history and physical examination, imaging, and functional
       capacities evaluation, I would consider Mr. Templeton in a sedentary/light
       capacity of work which would allow freedom in the work space to sit or stand
       at will, move around the work space, and not be mandated to maintain any
       static postures longer than he is comfortable. It is likely he will require to be
       in/out [of] a seated or walking position about every 30 minutes. His work
       should not require lifting greater than 20 lbs. occasionally, 10 lbs. frequently,
       or 5 lbs. continuously, and lifting should be restricted to between the hips and
       shoulders. He should not do any forward extended lifting, i.e., non-ergonomic
       positions.

Dr. Raff released plaintiff from his care at that time and recommended that he continue pain

management through his primary care doctor or a pain management specialist. Dr. Raff did

not examine or treat plaintiff after that, and was on active military duty in Afghanistan

between May 2004 and May 2005.

       The ALJ chose to credit Dr. Raff’s opinion concerning the extent of plaintiff’s

physical limitations over the conclusions of two non-examining agency reviewers who

concluded plaintiff’s exertional capacity was limited to sedentary work. The ALJ also
No. 06-5545                                                                                    6

discounted the opinion of Norman Hankins, Ed.D., a psychologist who did a vocational

evaluation of plaintiff, that there were no jobs that the plaintiff could perform on a full-time

basis.   Although Hankins conducted tests of the plaintiff’s intellectual capacities, his

evaluation of plaintiff’s physical limitations was based on the limitations identified by Dr.

Raff.

         Plaintiff testified during the administrative hearing in February 2004 that he

experienced pain almost all of the time, that the pain would radiate into one or both legs, and

that he usually could not sit or stand for more than 15 to 20 minutes. He explained that when

the pain is worse, which was one to three days a week, he could hardly get out of bed. At the

time of the hearing, plaintiff was taking Neurontin and Lortab for pain. Plaintiff testified that

he took 10 mg. of Lortab three times per day, and that it sometimes made him drowsy or “sort

of sleepy.”

         The ALJ posed several hypothetical questions to vocational expert Cathy Sanders.

Specifically, Sanders was asked to assume that an individual with plaintiff’s age, education,

and work experience had the capacity to do simple, unskilled light work activity that involved

lifting up to 20 pounds occasionally and 10 pounds frequently, and that allowed for frequent

postural changes. Sanders testified that a person with those vocational characteristics and

functional capacities could work as a gate guard, parking lot attendant, information clerk, or

ticket clerk. She added that 1,100 such jobs existed in the regional economy and 30,000 in

the national economy.
No. 06-5545                                                                                   7

       When the ALJ asked Sanders to include as an additional limitation that pain would

frequently interfere with the individual’s ability to concentrate and persist at work tasks, she

indicated that this limitation would eliminate the jobs she had identified.          On cross-

examination, Sanders agreed that the side effects of pain medication could also interfere with

the ability to perform those jobs. Finally, when asked about sedentary work, Sanders

responded that there were no unskilled sedentary jobs that would allow for frequent postural

changes.

B.     Analysis

       The ALJ credited Dr. Raff’s assessment of the plaintiff’s physical limitations,

discounted plaintiff’s testimony concerning the extent of his pain and the side effects of his

medication, and concluded that plaintiff could do unskilled light work if it allowed for

frequent postural changes and that a significant number of such jobs existed in the national

economy. The regulations define light work as involving lifting no more than 20 pounds at

a time with frequent lifting or carrying of up to 10 pounds, while sedentary work involves

lifting no more than 10 pounds at a time and occasionally lifting and carrying of small

objects. A job will also be light work if it requires a good deal of walking or standing, or

involves sitting most of the time with some pushing and pulling. 20 C.F.R. § 404.1567(b).

Plaintiff contends on appeal that substantial evidence does not support the ALJ’s

determination that he was capable of performing light work that allowed for frequent postural

changes.
No. 06-5545                                                                                   8

        First, plaintiff argues that the ALJ improperly disregarded the vocational expert’s

testimony that even those jobs would be eliminated if pain frequently interfered with his

ability to concentrate and persist at work tasks or if the side effects of medication interfered

with his ability to do those jobs. The ALJ did not reject the vocational expert’s testimony,

but simply found that neither plaintiff’s pain nor the side effects of medication were of such

severity that it would interfere with his ability to perform the identified jobs. We must affirm

this conclusion unless it is not supported by or consistent with the evidence. Cline v.

Comm’r of Soc. Sec., 96 F.3d 146 (6th Cir. 1996). The ALJ credited the treating physicians’

assessments and diagnoses, evaluated the extent to which the severity of the plaintiff’s pain

could reasonably be accepted as consistent with the medical evidence, and found plaintiff’s

testimony about the extent of his pain was not fully credible. “[A]n ALJ’s findings based on

the credibility of the applicant are to be accorded great weight and deference, particularly

since an ALJ is charged with the duty of observing a witness’s demeanor and credibility.”

Walters, 127 F.3d at 531. Nevertheless, an ALJ’s assessment of a claimant’s credibility must

be supported by substantial evidence. Id. We find that there is substantial evidence in the

record to support the ALJ’s adverse credibility finding and conclusions that neither plaintiff’s

pain nor the side effects of pain medication precluded him from performing the identified

jobs.

        Next, it is argued that the ALJ mischaracterized the physical limitations identified by

Dr. Raff as allowing light work. On the contrary, the ALJ’s finding that the restrictions were

consistent with a range of light work is supported by substantial evidence. There was no
No. 06-5545                                                                                                    9

limitation imposed on the amount of time plaintiff could stand or sit in a work day, only the

requirement that the work provide him the freedom to alternate between sitting and standing

as needed. Plaintiff seems to argue that because he could not perform a full range of light

work, he should have been restricted to sedentary work and found disabled because there are

no unskilled sedentary jobs that allow for frequent postural changes. When a claimant’s

functional abilities exactly meet the definition for a category of work, i.e., light work, the

Medical-Vocational Guidelines, or “grids,” allow the ALJ to take notice of the number of

jobs available in the national economy. Heston, 245 F.3d at 537. When, however, the

claimant’s characteristics do not exactly match the definition of, for example, light work, his

residual functional capacity is used as the proper framework to determine whether he is

disabled. Wright v. Massanari, 321 F.3d 611, 615 (6th Cir. 2003). This is precisely what the

ALJ did in this case when he determined the plaintiff’s specific limitations and posed a

hypothetical to the vocational expert concerning the number of simple, unskilled light work

jobs that would also allow for frequent postural changes.2

        After de novo review of the administrative record, we find the ALJ’s conclusions are

supported by substantial evidence and affirm.

                                                      III.




        2
         Social Security Rule 83-12 explains that when an individual’s residual functional capacity does
not coincide with the definitions of any one of the ranges of work, the occupational base is affected and,
when that effect is not clear, the ALJ is to consult a vocational resource. If the exertional level falls between
two “grids” that would direct opposite conclusions concerning disability, more difficult judgments are
involved as to the sufficiency of the remaining occupational base and the assistance of a vocational expert
is advised.
No. 06-5545                                                                                   10

       In the alternative, plaintiff argues for remand for consideration of evidence that was

not before the ALJ, but was submitted to the Appeals Council with the request for review.

When the Appeals Council considers new evidence but declines to review the application for

disability benefits, that evidence may not be considered as part of the record for purposes of

the substantial evidence review. Foster v. Halter, 279 F.3d 348, 357 (6th Cir. 2001); Cline,

96 F.3d at 148. Remand under sentence six of 42 U.S.C. § 405(g) requires that the evidence

be both new and material, and that there was good cause for not presenting it in the prior

proceeding. Foster, 279 F.3d at 357. Evidence is “new” only if it was not in existence or

was not available prior to the ALJ’s decision. Id. Such evidence is “material” if there is a

reasonable probability that the ALJ would have reached a different decision had the

additional evidence been presented. Id. A claimant shows “good cause” by demonstrating

a reasonable justification for the failure to acquire and present the evidence at the hearing

before the ALJ. Id.

       At issue here is a one-page functional capacity assessment prepared by Dr. Raff in

May 2005, after the ALJ’s decision finding that plaintiff was not disabled. On that form, Dr.

Raff indicated that plaintiff could only lift 10 pounds occasionally and 5 pounds frequently,

could only work four hours a day, and would have to be free to alternate between sitting and

standing at will. Dr. Raff also noted that he had been out of the country on military duty

between May 11, 2004, and May 2, 2005, and confirmed that he was not available to answer

interrogatories, act administratively, or clinically attend to plaintiff’s care during that time.
No. 06-5545                                                                                               11

        To be sure, this assessment reflected greater exertional restrictions that would not be

consistent with light work. We agree with the district court that this evidence is not material,

however, because Dr. Raff offered no explanation for why his opinion of plaintiff’s

functional capacity had changed from January 2004. This is particularly significant as Dr.

Raff had released plaintiff from his care and was out of the country from May 2004 through

May 2005. Without an explanation for the change, it is not likely that the ALJ would have

reached a different decision had the additional evidence been presented. The evidence is also

not new because plaintiff could have requested a second assessment by Dr. Raff after

receiving the letter in January 2004, or after the first denial of his application in March 2004.

Plaintiff has not met the burden of demonstrating that a sentence six remand is warranted.3

        AFFIRMED.




        3
         While it is not clear whether the district court’s decision not to remand should be reviewed de novo
or for abuse of discretion, we need not resolve the question because we would affirm under either standard.
Compare Perkins v. Apfel, 14 Fed. App’x 593 (6th Cir. 2001), and Cranfield v. Comm’r, Soc. Sec., 79 Fed.
App’x 852 (6th Cir. 2003).
