                         RECOMMENDED FOR FULL-TEXT PUBLICATION
                              Pursuant to Sixth Circuit Rule 206
                                      File Name: 09a0256p.06

                 UNITED STATES COURT OF APPEALS
                                  FOR THE SIXTH CIRCUIT
                                    _________________


                                                  X
                                                   -
 TERRY HENSLEY,
                                                   -
                                 Plaintiff-Appellant,
                                                   -
                                                   -
                                                      No. 08-6389
          v.
                                                   ,
                                                    >
                                                   -
                                                   -
 MICHAEL J. ASTRUE, COMMISSIONER OF

                         Defendant-Appellee. -
 SOCIAL SECURITY,
                                                   -
                                                  N
                   Appeal from the United States District Court
                  for the Eastern District of Kentucky at London.
                No. 07-00246—David L. Bunning, District Judge.
                                    Submitted: June 16, 2009
                               Decided and Filed: July 21, 2009
                                                                                       *
             Before: MOORE, GIBBONS, and FRIEDMAN, Circuit Judges.

                                      _________________

                                           COUNSEL
ON BRIEF: Julie Anne Atkins, ATKINS LAW OFFICE, Harlan, Kentucky, for
Appellant. Jerome M. Albanese, Anita Kay Brotherton, Holly Abernethy Grimes, Mary
Ann Sloan, Dennis Robert Williams, SOCIAL SECURITY ADMINISTRATION,
OFFICE OF GENERAL COUNSEL, Atlanta, Georgia, John S. Osborn III, ASSISTANT
UNITED STATES ATTORNEY, Lexington, Kentucky, for Appellee.
                                      _________________

                                            OPINION
                                      _________________

        FRIEDMAN, Circuit Judge. Once again, we reject the Commissioner of Social
Security’s denial of a claim for social security disability benefits because the
administrative law judge (“administrative judge”) who adjudicated the claim failed to

        *
         The Honorable Daniel M. Friedman, Circuit Judge of the United States Court of Appeals for the
Federal Circuit, sitting by designation.


                                                  1
No. 08-6389               Hensley v. Comm’r of Soc. Sec.                             Page 2


give controlling weight to a medical evaluation by the claimant’s treating physician or
to explain his reasons for such action. We therefore vacate the judgment of the United
States District Court for the Eastern District of Kentucky, which upheld the
administrative judge’s decision, and remand the case to that court for it to return the case
to the Commissioner of Social Security for further proceedings that follow the proper
standard for dealing with the claimant’s treating physician’s medical opinion, as
explained in this opinion.

                                              I

        The appellant Terry Hensley has a history of elbow, arm, hand, and spine
problems. In December 2001 he filed an application for social security disability
benefits. After his application initially was denied, the district court reversed and
remanded for further proceedings, based on its determination that the administrative
decision was not supported by substantial evidence. An additional hearing was held
before a different administrative judge, who again ruled that Hensley was not entitled
to disability benefits.

        Under settled practice, an administrative judge “making a determination as to
[social security] disability . . . undertakes a five-step sequential evaluation process
mandated by regulation.” Wilson v. Comm’r of Soc. Sec., 378 F.3d 541, 548 (6th Cir.
2004). In the first four steps, which are not at issue here, the claimant is required to
show specified matters that establish disability. If the claimant does so, including
establishing that under the claimant’s “residual functional capacity the claimant can [not]
perform his past relevant work,” the burden then shifts to the Commissioner to show that
“based on the claimant’s residual functional capacity, as well as his age, education, and
work experience, the claimant can make an adjustment to other work, in which case the
claimant is not disabled.” Id.

        The issue in the present case involves the fifth step of the adjudicatory process.
More specifically, it involves the validity of the administrative judge’s determination
that Hensley had the residual capacity to perform certain specified jobs and therefore
was not disabled. The dispute relates to the medical evidence involving a particular
No. 08-6389           Hensley v. Comm’r of Soc. Sec.                                Page 3


aspect of Hensley’s “residual functional capacity,” namely, his ability to use his hands
for repetitive pushing and pulling.

       The medical evidence on this issue consisted of the opinions of two physicians.
One, who had treated Hensley at Department of Veterans Affairs’ medical facilities
numerous times between 2002 and 2005, was Dr. Cross, who in social security jargon
is known as the claimant’s “treating physician.” The other was the Commissioner’s
medical witness, Dr. Muffly, who conducted a single consultative physical examination
of Hensley in 2005.

       Neither physician testified at the hearing before the administrative judge.
Instead, each submitted a one-page “Functional Capacities Form,” on which the
physician checked various block spaces to answer specific questions on the form. The
relevant particular medical information thus provided was as follows:

       The form asked:

       “Patient/claimant can use hands for repetitive actions such as:” It then listed
three kinds of such actions, including

                                      Pushing/Pulling

                             Right:____      Yes_____ No

                               Left:____     Yes_____ No

       Dr. Cross, Hensley’s treating physician, checked “No” for both hands. Dr.
Muffly, the Commissioner’s medical witness, checked “Yes” for both hands.

       In dealing with these conflicting medical opinions, the administrative judge
stated only the following:

       I also considered opinion evidence in accordance with the requirements
       of 20 C.F.R. 404.1527 and SSRs 96-2p, 96-5p, and 96-6p. As for
       treating source opinion, I have adopted the assessment of Dr. Cross at
       Exhibit 14F, p. 3, and have incorporated these limitations in the residual
       functional capacity that I have determined. Despite that Dr. Muffly
       found no impairment in the claimant’s ability to engage in repetitive
No. 08-6389            Hensley v. Comm’r of Soc. Sec.                                 Page 4


        pushing and pulling (Exhibit 13F, p. 7), Dr. Cross opined he could not do
        this repetitively. Therefore, I find that this function can be performed
        only occasionally; and in poundages equivalent to no more than Dr.
        Cross’s opinion with regard to lifting/carrying, viz., 10 pounds frequently
        and 20 pounds occasionally. (Exhibit 14F, p.3).
        Although in other contexts the difference between any pushing and pulling and
doing so “only occasionally” might be de minimis, the record indicates that in social
security disability cases the word “occasionally” is a term of art: it means up to one-third
of someone’s working time. Cf. S.S.R. 83-10 (1983), 1983 SSR LEXIS 30, at * 13
(“‘Occasionally’ means occurring from very little up to one-third of the time”.)

        At the hearing, the Commissioner presented a vocational expert who was asked
two hypothetical questions. One of them was based on Dr.Muffly’s evaluation of
Hensley’s physical condition. The other was based on Dr. Cross’ evaluation, modified
to reflect the administrative judge’s change that repetitive pushing and pulling would be
done “only occasionally,” i.e., for not more than one-third of Hensley’s working hours.
The vocational expert gave the same answer to both hypothetical questions. Asked
whether there were jobs available in the national economy that an individual with the
physical limitations stated in the question could perform, he answered affirmatively and
stated that there were two such jobs: toll collector and packer. Accepting this expert
evidence, the administrative judge concluded that Hensley was not disabled.

        On judicial review, the district court, adopting the opinion of the magistrate
judge, ruled that substantial evidence supported the administrative judge’s analysis. The
court held that the administrative judge’s determination that Hensley could perform
repetitive hand pushing and pulling “only occasionally” - although neither examining
physician had so evaluated him - was not error because it adopted Dr. Cross’s
assessment “for the most part,” and that rejecting it in part was not procedural error,
despite a lack of explanation.
No. 08-6389            Hensley v. Comm’r of Soc. Sec.                              Page 5


                                            II

       In social security cases involving a claimant’s disability, the Commissioner’s
regulations require that if the opinion of the claimant’s treating physician is “‘well-
supported by medically acceptable clinical and laboratory diagnostic techniques’ and [is]
‘not inconsistent with the other substantial evidence in [the] case record,’” it must be
given “controlling weight.” Wilson, supra, 378 F.3d at 544; 20 C.F.R. § 404.1527(d)(2).
“If the opinion of a treating source is not accorded controlling weight, an ALJ must
apply certain factors - namely, the length of the treatment relationship and the frequency
of examination, the nature and extent of the treatment relationship, supportability of the
opinion, consistency of the opinion with the record as a whole, and the specialization of
the treating source - in determining what weight to give the opinion.” Wilson, 378 F.3d
at 544 (quoted with approval in Bowen v. Comm’r of Soc. Sec., 478 F.3d 742, 747 (6th
Cir. 2007)). Even if the treating physician’s opinion is not given controlling weight,
“there remains a presumption, albeit a rebuttable one, that the opinion of a treating
physician is entitled to great deference.” Rogers v. Commissioner of Social Sec., 486
F.3d 234, 242 (6th Cir. 2007)

       The administrative judge stated that he had “adopted the assessment of Dr.
Cross” on Hensley’s residual functional capacity set forth in Dr. Cross’ functional
capacities form and had “incorporated these limitations in the residual functional
capacity that I have determined.”      That statement is inconsistent with what the
administrative judge did.     Each physician made an unequivocal statement about
Hensley’s ability to engage in repetitive pushing and pulling. Dr. Cross said he could
not do that; Dr. Muffly said he could. The administrative judge did not accept either
physician’s medical evaluation. Instead, he made his own medical evaluation , reaching
a conclusion that lay between the two conflicting absolute views of the physicians. The
administrative judge concluded that Hensley could do repetitive pushing and pulling, but
“only occasionally” - a standard that neither physician had adopted. The administrative
judge gave no explanation for his own conclusion.
No. 08-6389            Hensley v. Comm’r of Soc. Sec.                               Page 6


       The only stated reason the administrative judge gave for rejecting the treating
physician’s medical opinion that Hensley could not engage in repetitive pushing and
pulling was that another physician had reached the opposite conclusion. That was not
an adequate basis for rejecting Dr. Cross’ opinion. The governing regulation states that
if the treating physician’s opinion is “well-supported by medically acceptable clinical
and laboratory diagnostic techniques and [is] ‘not inconsistent with the other substantial
evidence in [the] case record,” it must be given “controlling weight.” 20 C.F.R.
§ 404.1527(d)(2). The administrative judge did not find that Dr. Cross’ opinion did not
meet those substantive requirements. The regulation also requires that if such opinion
is not given controlling weight, the administrative judge “must apply” specified factors
in determining what weight to give the opinion, and give “good reasons . . . for the
weight we give [claimant’s] treating source’s opinion.” Id. The administrative judge did
not give any other reasons for rejecting Dr. Cross’ opinion that Hensley could not
repetitively perform hand pushing or pulling. Nothing in the regulations indicates, or
even suggests, that the administrative judge may decline to give the treating physician’s
medical opinion less than controlling weight simply because another physician has
reached a contrary conclusion.

       Indeed, the administrative judge’s reason for declining to give Dr. Cross’ opinion
controlling weight would seriously undermine the Commissioner’s position that
controlling weight ordinarily should be given to the opinion of the treating physician.
In most cases such as this, there will be conflicting medical opinions. If the existence
of such a conflict is enough to justify denying the treating physician’s report controlling
weight, it would be a rare case indeed in which such weight would be accorded.

       We have stated that “[w]e do not hesitate to remand when the Commissioner has
not provided ‘good reasons’ for the weight given to a treating physician’s opinion and
we will continue remanding when we encounter opinions from ALJ’s that do not
comprehensively set forth the reasons for the weight assigned to a treating physician’s
opinion.” Wilson, 378 F.3d at 545 (6th Cir. 2004), quoting Halloran v. Barnhart, 362
F.3d 28, 32-33 (2d Cir. 2004). We follow that course here.
No. 08-6389            Hensley v. Comm’r of Soc. Sec.                             Page 7


                                    CONCLUSION

       The judgment of the district court is vacated, and the case is remanded to that
court for it to return the case to the Commissioner for further proceedings addressing
whether the treating physician’s opinion should be given controlling weight, and, if not,
the reasons for whatever weight it is given, as explained in this opinion.
