                 NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                            File Name: 06a0162n.06
                              Filed: March 1, 2006

                                            No. 04-4551

                              UNITED STATES COURT OF APPEALS
                                   FOR THE SIXTH CIRCUIT




ADRIAN MARTIN,

       Plaintiff-Appellant,                                 ON APPEAL FROM THE
                                                            UNITED STATES DISTRICT
v.                                                          COURT FOR THE SOUTHERN
                                                            DISTRICT OF OHIO
COMMISSIONER OF
SOCIAL SECURITY,

       Defendant-Appellee.

_______________________________________/

BEFORE:        BOGGS, Chief Judge, and BATCHELDER, Circuit Judges; COHN, District

               Judge*

AVERN COHN, District Judge. This is a Social Security case. Plaintiff-Appellant Adrian J.

Martin (Martin) appeals from a decision rendered by an Administrative Law Judge (ALJ) and

upheld by a Magistrate Judge denying her Social Security benefits. Martin applied for disability

benefits and supplemental security income benefits from Defendant-Appellee Commissioner of

Social Security (SSA). Martin argues that the ALJ made errors of law and fact that resulted in an

incorrect decision to deny benefits, and that the Magistrate Judge improperly upheld the decision.

For the reasons that follow, the decision of the Magistrate Judge is AFFIRMED.


         *
        The Honorable Avern Cohn, United States District Judge for the Eastern District
 of Michigan, sitting by designation.
                                        I. BACKGROUND

       Martin applied for benefits from the SSA in August, 1999, after she allegedly became

disabled. Martin was a 32-year-old packer and machine operator. She claimed that lower back and

leg pain, obesity, depression, and anxiety caused her to become disabled on May 15, 1999, when

she last worked. Dr. Robert Whitten (Dr. Whitten), a physiatrist, treated Martin in mid-1999. She

underwent an MRI and surgery in August, 1999, for a herniated disk performed by Dr. William

Tobler. In November, 1999, Martin was seen by Dr. Rashid Khan (Dr. Khan), an internist, who

said that Martin could not work for more than 1.5 hours in an 8-hour day. In 2000, Martin

underwent a second MRI, which showed improvement. Several doctors saw Martin during this

time, the majority of whom reported improvement and an ability of Martin to perform light work.

Dr. Khan continued to report that Martin was disabled.

       Martin’s requested benefits were denied initially and in reconsideration hearings. Martin

requested a hearing with a Social Security Administrative Law Judge. The ALJ held a hearing and

found Martin “not disabled” and “not entitled to benefits.” The ALJ found that while Martin could

not perform tasks from her past work, she could perform three unskilled sedentary jobs. Martin

appealed the ALJ decision to the Social Security Appeals Council (Appeals Council). The Appeals

Council remanded the decision to deny benefits to consider conflicts in the testimony of a

vocational expert and the Dictionary of Occupational Titles (DOT). The ALJ held a second hearing

in 2002. The second ALJ hearing also resulted in a finding of “not disabled” and “not entitled to

benefits.” On March 17, 2003, the Appeals Council upheld the denial of benefits.

       Following the Appeals Council decision, Martin filed a civil action in the United States

District Court for the Southern District of Ohio. The parties consented to the jurisdiction of a


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Magistrate Judge. The Magistrate Judge found that the ALJ decision was supported by substantial

evidence that Martin could perform an unskilled sedentary job as an assembler. Martin filed a

timely motion under Fed. R. Civ. P. 59(e) to alter or amend the decision. The SSA did not file a

response; the Magistrate Judge denied the motion. The Magistrate Judge held: that the ALJ

complied with Social Security regulations governing the evaluation of medical opinion evidence;

that the court gives deference to the ALJ’s findings and resolution of conflicts in the record; and,

that Martin failed to raise the argument regarding the vocational expert’s conflict in description and

the DOT in her Statement of Specific Errors. This appeal followed.


                                   II. STANDARD OF REVIEW

       “When reviewing the Commissioner's finding that a claimant is not disabled within the

meaning of the Social Security Act, [the Sixth Circuit] consider[s] only whether the decision is

supported by substantial evidence and whether the ALJ employed the proper legal standards.”

Schuler v. Comm'r of Soc. Sec., 109 F. App’x 97, 99 (6th Cir. 2004); 42 U.S.C. § 405(g) (2004).

The standard for substantial evidence requires “more than a scintilla of evidence but less than a

preponderance.” Brainard v. Sec'y of Health & Human Servs., 889 F.2d 679, 681 (6th Cir. 1989).

All that is required to uphold the Commissioner's findings is that the record contain evidence that “a

reasonable mind might accept as adequate to support a conclusion.” Buxton v. Halter, 246 F.3d

762, 772 (6th Cir. 2001) (internal quotations and citations omitted). The court may not review the

case de novo, resolve conflicts in evidence, or decide questions of credibility. Schuler, 109 F.

App’x at 99. The court reviews questions of law de novo. Wright v. Comm’r of Soc. Sec., 321

F.3d 611, 614 (6th Cir. 2003).




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                                            III. ANALYSIS

                  1. The ALJ Reasonably Evaluated the Physicians’ Opinions.

       Martin contends that the judgment of the ALJ was incorrect because 1) the ALJ

improperly considered Dr. Whitten to be the “treating doctor;” and, 2) the ALJ erred as a matter of

law by only considering the issue of giving Dr. Khan “controlling weight” instead of the “most

weight” in the record.

       The Sixth Circuit recognizes that:

       The ALJ normally gives considerable weight to opinions from treating sources, since they
       are most likely to have a full understanding of the claimant's condition. The opinion of a
       treating physician will 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 claimant's case record. The ALJ, however, retains the
       responsibility for making the ultimate determination of whether the claimant is disabled.

Schuler, 109 F. App’x at 101(internal citations omitted). In making a determination of disability,

the ALJ reviews “all of the medical findings and other evidence that support a medical source's

statement that [the claimant is] disabled.” 20 C.F.R. § 404.1527(e)(1).

       When there are multiple doctors with opposing opinions, an ALJ’s decision to reject the

opinion of a treating doctor is reviewed under the substantial evidence standard. Schuler, 109 F.

App’x at 101; See also Robinson v. Barnhart, 124 F. App’x 405 (6th Cir. 2005); Edwards v.

Comm’r of Soc. Sec., 97 F. App’x 567 (6th Cir. 2004). Even when a treating source’s medical

opinion is not given controlling weight because it is not well-supported by medically acceptable

clinical and laboratory diagnostic techniques or is inconsistent with other substantial evidence in the

record, it does not necessarily mean that the opinion should be completely rejected; the weight to be

given to the opinion is determined by a set of factors that guides the weight given to the medical

opinion, including treatment relationship, supportability, consistency, specialization, and other

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factors. See Social Security Ruling 96-2p (July 2, 1996): Titles II and XVI: Giving Controlling

Weight to Treating Source Medical Opinions (SSR 96-2p); 20 C.F.R. § 404.1527(d).

       In this case, Dr. Khan was an internist who evaluated Martin and found she was disabled.

Dr. Khan treated Martin the longest. However, all the other doctors evaluating Martin contradicted

Dr. Khan’s findings, including: Dr. Whitten, a specialist who treated Martin before Dr. Khan; Dr.

Quillan, a doctor working for the Ohio Bureau of Disability Determination; Dr. Swank, an

orthopedic specialist and treating physician; and Dr. Groh, a specialist with the Pain Care Institute.

Furthermore, information in Martin’s medical records reflected that Martin had full strength, intact

sensation, and a smooth gait. (Tr. 266, 308-309, 313). Martin also told a social worker that her

leisure activities included decorating and going to activities related to her three children, ages 9, 11,

and 12. (Tr. 290). Martin’s assertion that Dr. Whitten did not treat her as long or as recently as Dr.

Khan and thus cannot be a “treating doctor” goes to the issue of credibility that is properly to be

determined by the ALJ.

       Dr. Khan’s opinion was contradicted by other doctors and information in Martin’s medical

records. The ALJ said Dr. Khan’s treatment records “show a lack of positive signs and findings,”

(Tr. 22), and were inconsistent with the record. Dr. Khan was a generalist, whereas Dr. Whitten

was a specialist. The Magistrate Judge discussed these and other factors relevant to the weight of

Dr. Khan’s opinion, found that the ALJ reasonably rejected Dr. Khan’s opinion, and found that

substantial evidence supported the ALJ decision. The ALJ found that Dr. Whitten’s opinion “was

supported by his treatment records.” (Tr. 22). A “treating physician” is a doctor “who provides

you, or has provided you, with medical treatment or evaluation and who has, or has had, an ongoing

treatment relationship with you.” 20 C.F.R. § 404.1502. Though there is some factual dispute


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about when Dr. Whitten last treated Martin, under both parties’ view Dr. Whitten does qualify as a

“treating doctor.” The ALJ had the duty to resolve conflicts in medical evidence, Richardson v.

Perales, 402 U.S. 389, 399 (1971), which it did against Martin. It is unnecessary to explore the

appropriate amount of weight to allocate among multiple treating doctors. The Magistrate Judge

did not err in denying Dr. Khan’s opinion increased weight, and did not err in considering Dr.

Whitten a “treating doctor.”

          2. The ALJ’s Credibility Findings are Supported by Substantial Evidence.

       Martin next argues that the ALJ improperly relied on past activities to evaluate pain,

credibility, and subjective complaints. Martin says the Magistrate Judge and ALJ did not consider

all relevant factors and erroneously relied on old activities to discount her pain and credibility.

       In evaluating a claimant’s allegations of pain and limitations, the ALJ considers (1) whether

the objective medical evidence shows “the existence of a medical impairment(s) which ...could

reasonably be expected to produce the pain or other symptoms alleged;” and (2) the intensity and

persistence of the symptoms to evaluate a person’s capacity for work, considering all available

evidence. 20 C.F.R. § 404.1529. The ALJ’s determinations of credibility are given great weight,

and are reviewed for substantial evidence. Jones v. Comm’r of Soc. Sec., 336 F.3d 469, 476 (6th

Cir. 2003).

       Martin says the ALJ and Magistrate Judge erred when they considered activities, such as

decorating and attending her children’s events, that she only did before becoming disabled, or after

which she experienced considerable pain. Martin says these errors support her credibility. Martin

also says her credibility is bolstered by factors not considered by the ALJ, such as certain medical

reports, daily activities, and medications taken. The SSA responds that the ALJ’s credibility


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finding is supported by a number of factors, including the medical evidence, physician opinion,

treatment, medication, and activities of daily living, and notes that the ALJ did acknowledge that

Martin had significant limitations by concluding that Martin could perform only a reduced range of

sedentary work. Therefore, the SSA says the ALJ’s determination is supported by substantial

evidence.

        This court does not reexamine questions of credibility or reevaluate conflicting evidence

when reviewing denials of Social Security benefits. Schuler, 109 F. App’x at 99. The above

evidence is conflicting. Given the highly deferential standard for reviewing the ALJ’s decision

relating to a denial of benefits, the decision is supported by substantial evidence.

       3. The ALJ Properly Considered the Vocations Listed by the Vocational Expert.

        The vocational expert testified that Martin could work as an assembler, telephone operator,

or general office clerk. (Tr. 415-416). In response to a question from Martin’s counsel, the

vocational expert stated that the Specific Vocational Preparation ratings (SVPs) for these positions

were 1 or 2. (Tr. 418). The ALJ asked if there was a conflict between the DOT description of the

SVP for the third position. (Tr. 417). The vocational expert testified that there was not. (Tr. 417).

        Unfortunately, there was a conflict between the vocational expert’s testimony and the SVPs

of two of the positions, telephone operator and general office clerk, which both have an SVP of 3 in

the DOT. The DOT description of the SVP for the third position, assembler, is consistent with the

vocational expert’s testimony. Martin did not bring this discrepancy to the ALJ’s attention, and

first raised the issue that a conflict existed upon filing her brief in the district court. (Docket no. 3).

        Martin argues that because the vocational expert’s testimony was incorrect with regard to

the SVP of two of the positions offered, the vocational expert cannot be deemed credible with


                                                     7
regard to the third position. The SSA argues that the ALJ reasonably relied on the vocational

expert’s testimony because the assertion that Martin could perform the jobs identified by the

vocational expert was uncontradicted, and, alternatively, because the vocational expert was correct

regarding the third position.

       A Social Security Ruling sets forth the actions required of an ALJ when there is an apparent

conflict between the testimony of the vocational expert and the DOT. See Social Security Ruling

00-4p (December 4, 2000): Titles II and XVI: Use of Vocational Expert and Vocational Specialist

Evidence, and Other Reliable Occupational Information in Disability Decisions (SSR 00-4p). The

SSR 00-4p does not address what to do when a conflict is not apparent. Under the SSR 00-4p, the

ALJ is entitled to evaluate the testimony of a vocational expert, the DOT, and other relevant

evidence, but is not required to rely on any of these sources.

       Consistent with the SSR 00-4p, the ALJ asked if there was a conflict. (Tr. 417). The

vocational expert testified that there was not. (Tr. 417). Martin did not bring the vocational

expert’s mistake to the ALJ’s attention. Nothing in SSR 00-4p places an affirmative duty on the

ALJ to conduct an independent investigation into the testimony of witnesses to determine if they are

correct. Furthermore, even if there is a conflict between the expert’s testimony and the DOT,

“neither the DOT or [the expert’s testimony] automatically trumps when there is a conflict.” SSR

00-4p. When there is a conflict, the ALJ must resolve the conflict by determining if the explanation

given by the expert is reasonable and provides a basis for agreeing with the expert rather than the

DOT information. SSR 00-4p. Because Martin did not bring the conflict to the attention of the

ALJ, the ALJ did not need to explain how the conflict was resolved. Here, the ALJ specifically

asked if there was a conflict and the uncontradicted testimony of the vocational expert indicated that


                                                   8
no conflict existed.

       Furthermore, even if the two positions about which there were inconsistencies had been

excluded, the ALJ still could have reasonably found that Martin could perform the third position of

assembler. In Troxal v. Comm’r of Soc. Sec., 113 F. App’x 80, 83 (6th Cir. 2004), the court

rejected the argument of a claimant that the testimony of the vocational expert was inconsistent with

the description of certain jobs in the DOT because sufficient positions existed in the national

economy to constitute a significant number of jobs even if all of the disputed jobs were eliminated.

While there are only 107,826 assembler jobs in the United States, 870 of the jobs are concentrated

in Martin’s geographic region. Contrary to Martin’s position, 870 jobs can constitute a significant

number in the geographic region. See Stewart v. Sullivan, 904 F.2d 708 (6th Cir. 1990)(125 jobs in

the local area is a significant number of jobs).

            4. The Decision of the ALJ to Deny Benefits was Supported by Substantial
                          Evidence Based Upon the Record as a Whole.

       With regard to the finding that Martin was “not disabled,” all of the doctors who evaluated

Martin and her medical records with the exception of Dr. Khan noted improvement in her condition

and consistently indicated that she could perform light work. Even Dr. Khan’s medical records

regarding Martin included information that is consistent with the ALJ’s finding that Martin could

perform a reduced range of sedentary work. Recognizing that the substantial evidence standard is

“more than a scintilla of evidence but less than a preponderance,” Brainard, 889 F.2d at 681, there

is sufficient material in the record to show that the decision of the ALJ was supported by substantial

evidence.

       The ALJ’s finding that a significant number of jobs existed for Martin is also supported by

substantial evidence because the uncontradicted testimony of the vocational expert identified three

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potential positions with a significant number of jobs available. Once the ALJ asked the vocational

expert if her testimony was consistent with the DOT, the ALJ satisfied its requirements under the

SSR 00-4p. It was Martin’s duty, acting through counsel, to present her case to the ALJ.

                                       IV. CONCLUSION.

       For the above reasons, the decision of the Magistrate Judge upholding the Commissioner of

Social Security's denial of disability benefits is AFFIRMED.




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