            NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                       File Name: 12a0228n.06

                                      No. 10-3820

                      UNITED STATES COURT OF APPEALS
                           FOR THE SIXTH CIRCUIT
                                                                              FILED
                                                                          Feb 27, 2012
KEVIN ESLINGER,                          )
                                         )                          LEONARD GREEN, Clerk
       Plaintiff-Appellant,              )
                                         )
v.                                       )      ON APPEAL FROM THE UNITED
                                         )      STATES DISTRICT COURT FOR
COMMISSIONER OF                          )      THE NORTHERN DISTRICT OF
SOCIAL SECURITY,                         )      OHIO
                                         )
       Defendant-Appellee.               )

Before: COOK, MCKEAGUE, and ROTH, Circuit Judges.*

       JANE ROTH, Circuit Judge.

       Kevin N. Eslinger appeals the judgment of the District Court for the Northern

District of Ohio affirming the denial of disability insurance benefits. For the following

reasons, we affirm the judgment of the District Court.

I.     Background

       Eslinger applied for Social Security Disability Insurance and Supplemental

Security Income benefits, alleging that he became disabled on January 1, 2001,

subsequently amended to January 26, 2004, due to anxiety, depression, and physical

injuries.

       Eslinger visited numerous doctors for evaluation and treatment over the years.

From April through August 2005, Eslinger received cognitive therapy with psychologist

Meryl A. Orlando, Ph.D. When asked in a questionnaire about Eslinger’s daily activities
*
 The Honorable Jane R. Roth, United States Circuit Judge for the United States Court of
Appeals for the Third Circuit, sitting by designation.
No. 10-3820
Eslinger v. Comm’r of Soc. Sec.


to “describe and give examples of anything that might prevent work activities for a usual

work day or work week,” Dr. Orlando responded: “Low stress tolerance. At times, would

call off for ‘mental health’ days.” Over the course of several years, Eslinger was treated

primarily for physical ailments by his family practice physician Rex W. Dinsmore, M.D.

In February 2007, Dr. Dinsmore completed a questionnaire indicating that Eslinger’s

mental ability to perform work-related activities was “fair” or “poor or none” and opined

that Eslinger’s impairments would cause him to miss work more than three times per

month.      From March 2006 through March 2008, Eslinger received therapy from

psychologist Frank Gorbett, Ph.D., who similarly classified Eslinger’s mental abilities to

perform work activities as “fair” or “poor or none” and indicated that his impairments

would cause him to miss work more than three times per month.

        Eslinger’s claims were denied initially and upon reconsideration. On May 14,

2008, a hearing was held before an Administrative Law Judge (ALJ), who concluded that

Eslinger was not disabled and denied his applications in a written decision dated June 13,

2008. At step four, the ALJ explained:

        After careful consideration of the entire record, I find that Mr. Eslinger has
        the residual functional capacity to perform light work as defined in 20
        C.F.R. §§ 404.1567(b) and 416.967(b) with restrictions. Specifically, Mr.
        Eslinger can lift, carry, push, and pull up to 20 pounds occasionally and 10
        pounds frequently; sit for six hours of an eight-hour day, and stand and/or
        walk for six hours of an eight-hour day. Mr. Eslinger is limited to simple,
        routine work with no high production quotas or piece work. He cannot
        perform work with more than superficial interaction with co-workers and
        the public, e.g. without negotiation or confrontation. Mr. Eslinger cannot
        work at unprotected heights. Mr. Eslinger can occasionally stoop and climb
        ramps or stairs.




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Eslinger v. Comm’r of Soc. Sec.


In reaching his conclusion, the ALJ assigned “full weight” to the opinions of Dr. Orlando,

“little weight” to those of Dr. Dinsmore, and “less weight” to those of Dr. Gorbett. On

February 26, 2009, the Appeals Council declined to review the ALJ’s decision, and thus

the ALJ’s decision became the final decision of the Social Security Administration

(SSA). See 20 C.F.R. §§ 404.955 and 404.981.

        On April 21, 2009, Eslinger filed a complaint in the United States District Court

for the Northern District of Ohio, seeking review of his disability benefits determination.

On April 22, 2010, the Magistrate Judge issued a Report and Recommendation that

suggested reversing and remanding for another hearing “for consideration of the

vocational effect of plaintiff’s restriction to jobs allowing for absences of more than three

days each month.” In reaching that recommendation, the Magistrate Judge explained that

“the ALJ was not supported by substantial evidence when he disregarded the consistent

and uncontradicted medical opinions that Eslinger could not sustain work activity and this

would result in absences of more than three days a month.”

        On May 21, 2010, in a two-page Memorandum Opinion and Order, the District

Court sustained the SSA’s objection to the Report and Recommendation, finding that “a

fair reading of Dr. Orlando’s report does not suggest the interpretation provided by the

Magistrate Judge, namely that Plaintiff would miss work at least three times per month.”

Accordingly, the District Court entered judgment in favor of the SSA.

        Eslinger appealed.




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No. 10-3820
Eslinger v. Comm’r of Soc. Sec.


II.     Jurisdiction and Standard of Review

        The District Court had jurisdiction pursuant to 42 U.S.C. §§ 405(g) and

1383(c)(3). We have jurisdiction pursuant to 28 U.S.C. § 1291 and 42 U.S.C. §§ 405(g)

and 1383(c)(3).

        We review de novo the District Court’s decision in a social security case. Ealy v.

Comm’r of Soc. Sec., 594 F.3d 504, 512 (6th Cir. 2010). Our review is limited, however,

to determining whether the ALJ’s decision “is supported by substantial evidence and was

made pursuant to proper legal standards.” Rogers v. Comm’r of Soc. Sec., 486 F.3d 234,

241 (6th Cir. 2007). Substantial evidence means “more than a scintilla of evidence but

less than a preponderance; it is such relevant evidence as a reasonable mind might accept

as adequate to support a conclusion.” Id. Even when substantial evidence supports the

ALJ’s decision, we must remand if the ALJ failed to follow the SSA’s procedural

regulations. See Wilson v. Comm’r of Soc. Sec., 378 F.3d 541, 544-45 (6th Cir. 2004).

III.    Discussion

        Eslinger contends that the ALJ erred by assigning him a residual functional

capacity that failed to account for a sustainability limitation based on “mental health”

days, despite assigning “full weight” to Dr. Orlando’s opinions. Eslinger also argues that

the ALJ improperly applied the treating physician rule with respect to Dr. Orlando.

        A five-step analysis applies to determine whether a claimant meets the statutory

standard for disability.          20 C.F.R. § 404.1520(a).   The ALJ assesses the claimant’s

residual functional capacity to determine whether the claimant can perform his past

relevant work (step four) and whether the claimant can adjust to other work (step five).

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No. 10-3820
Eslinger v. Comm’r of Soc. Sec.


20 C.F.R. § 404.1520(a)(4)(iv)-(v). In formulating a residual functional capacity, the ALJ

evaluates all relevant medical and other evidence and considers what weight to assign to

treating, consultative, and examining physicians’ opinions. 20 C.F.R.                   §

404.1545(a)(3).

        According to the treating physician rule, the opinion of a treating physician is

entitled to controlling weight as long as it is well-supported by medically acceptable

clinical and laboratory diagnostic techniques and not inconsistent with other substantial

evidence in the record.           20 C.F.R. § 404.1527(d)(2); see Rogers, 486 F.3d at 242

(explaining treating physician rule).

        Dr. Orlando is a treating physician because she “has, or has had, an ongoing

treatment relationship” with Eslinger.        See 20 C.F.R. § 404.1502 (defining “treating

source”). In explaining the residual functional capacity determination, the ALJ stated:

“Dr. Orlando’s opinions are consistent with the evidence and are given full weight.” In

reaching that finding, the ALJ reiterated many of Dr. Orlando’s questionnaire responses

about Eslinger’s daily activities, including his abilities to care for himself, perform

household chores, and withstand normal work pressures.

         In that same questionnaire, when asked whether anything might prevent Eslinger’s

work activities for a usual work day or week, Dr. Orlando indicated that Eslinger had

“low stress tolerance” and “at times” would take “mental health” days. In this appeal,

Eslinger has linked that answer to the conclusions drawn by Drs. Dinsmore and Gorbett

that Eslinger would miss work more than three times a month. Eslinger complains that

the ALJ did not include these three monthly absences in his determination of Eslinger’s

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Eslinger v. Comm’r of Soc. Sec.


ability to sustain a light work regime with restrictions. The ALJ, however, gave “little

weight” to Dr. Dinsmore’s conclusions and “less weight” to Dr. Gorbett’s. But, without

the incorporation of these two rejected views into Dr. Orlando’s opinion, there is no basis

to conclude that the fact that Eslinger might at times need “mental health” days when

confronted with a stressful situation, would support a finding that he would miss more

than 3 days each month.           Without this rejected evidence, there is no support for a

conclusion that Eslinger might not be able to sustain employment with the restrictions

determined by the ALJ.

        From our review of Dr. Orlando’s opinion, therefore, we conclude that the

decision of the ALJ was supported by substantial evidence.

IV.       Conclusion

        For the foregoing reasons, we affirm the judgment of the District Court.




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