812 F.2d 1408
Unpublished DispositionNOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.Virginia POWELL, Plaintiff-Appellant,v.SECRETARY OF HEALTH AND HUMAN SERVICES, Defendant-Appellee.
No. 85-2021.
United States Court of Appeals, Sixth Circuit.
Jan. 19, 1987.

Before LIVELY, Chief Judge, WEICK and CONTIE, Senior Circuit Judges.
PER CURIAM.


1
Appellant Virginia Powell appeals from the decision of the district court affirming the Secretary's denial of disability benefits.

I.

2
Appellant Powell filed an application for disability insurance benefits on January 22, 1981, claiming a disability onset date of April 2, 1978.  A hearing was held, and on January 29, 1982, the Administrative Law Judge (ALJ) denied her request for disability benefits.  The decision of the Appeals Council was appealed to the district court.  The district court remanded the case because the ALJ erred in relying solely on the grid.  The district court opined that because non-exertional impairments were present it was improper to rely on the grid.  Pursuant to the remand order, the Secretary obtained additional medical and psychological evidence.


3
On July 19, 1984, the ALJ found that Powell was not disabled.  He determined that Powell was able to perform sedentary work with a sit-stand option, and since her last job was in this category, he reasoned that there was no need to determine if the appellant could perform other work.  However, the ALJ determined that even were he to find that Powell could not perform her former job, she was able to perform other work.  The ALJ relied on the grid as a guide as well as the testimony of a vocational expert, to reach this conclusion.  The Appeals Council denied Powell's request for review on September 7, 1984.  On October 28, 1985, the United States District Court affirmed the Secretary's decision.  Claimant filed this timely appeal.


4
Powell was born on June 18, 1924, and was 59 years old at the time of the second hearing.  She is a widow and she has a high school education.


5
Powell's most recent job was that of an assembler.  As an assembler, Powell performed final assembly work of a light exertional level and subassembly work of a sedentary exertional level.  The vocational expert, Dr. Fortiu, considered these jobs to be semi-skilled, and felt that these jobs provided skills transferable to other occupations.  Such skills included the ability to apply varied techniques in the manufacture and assembly of electronic products, the ability to perform a variety of assembly tasks and to adjust to a change in assembly tasks, the ability to be perceptive to detail, the ability to use hand tools, and the ability to work in accordance with instructions.


6
Prior to working as an assembler, Powell worked as a machine operator.  This job was characterized by Dr. Fortiu as unskilled work, ranging from light to medium in exertional level.  Powell had performed other unskilled work as well.


7
Powell alleges that she became disabled on April 2, 1978.  Powell injured her back when she slipped in the parking lot at work in March of 1978.  She testified that she has both sharp and dull pain in her lower back, and that the pain worsens when she walks.  Appellant also states that she experiences a burning sensation and pain in her legs just above the knees.  Powell stated that as a result of her impairments her ability to stand and sit is limited to about 20 to 30 minutes for each activity.  She has difficulty climbing stairs, but she is able to dress and feed herself and care for her personal needs.  She is also able to perform light household chores, such as sewing, dusting, washing dishes, cooking and making the bed.


8
Powell underwent back surgery in 1971 and carpal tunnel surgery on her right upper extremity in 1977.  Although she had returned to work after her surgeries in 1971 and 1977, she has not returned to work since her fall in March of 1978.


9
Since her fall, several physicians have examined Powell.  Dr. Zachary Endress examined Powell on July 11, 1978.  He found tenderness throughout the lumbar spine and noted that straight leg raising caused pain in her back and both hips.  Dr. Endress noted that he believed Powell's complaints of pain were exaggerated.


10
Dr. Chess also examined Powell in July of 1978.  Powell complained to Dr. Chess that she could not sit or stand for a long period and that she was unable to bend at the waist because of pain.  There was some subjective weakness of the right lower extremity and a depressed right ankle jerk.  Because of her complaints of increasing pain in September of 1978, she was referred to a pain clinic for treatment.


11
Powell was hospitalized in February of 1979 as a result of low back pain.  Although Dr. Michael Fugle recommended a lumbar myelogram, Powell refused to undergo the procedure.  Dr. Fugle's diagnoses were acute lumbar myositis and chronic lumbosacral sprain and strain.  A follow-up examination showed no change in Powell's condition.


12
Powell was also under the care of Dr. Hamilton.  His diagnosis was chronic lumbosacral myositis with nerve root irritation at S1 on the right.  His report of September 12, 1979, indicated that in the past nine months Powell had made little or no progress and that he believed she was presently unable to work.  Dr. LePere, an associate of Dr. Hamilton's, stated in November of 1980, that Powell was totally and possibly permanently disabled.  Dr. LePere stated that Powell would be unable to perform a job that entailed prolonged sitting, standing, walking or bending.


13
In October of 1981, Dr. Seo examined Powell.  This physician found no neurological disorder but treated her for sacroilitis.  Dr. Seo noted that Powell was reluctant to be evaluated and treated and felt her prognosis was rather guarded due to her mental attitude.


14
Dr. LePere made an updated report on September 2, 1983.  He determined that there had been no overall improvement.  He felt that only if Powell was 10 years younger, had surgery and did not work for six months would she be able to do sedentary work in the future.


15
A lumbar myelogram was performed by Dr. Fugle during a hospitalization in September of 1983.  His diagnoses were L4 disc degeneration, extradural nerve root adhesions, and acute lumbar myositis.


16
A consultative examination was performed by Dr. Theodoulou on March 6, 1984.  He reported that Powell walked with a normal gait and her lower extremity strength was normal.  In evaluating Powell's ability to perform work related activities, Dr. Theodoulou estimated that she was able to sit, that she could stand one-half hour at a time, and that she could lift and carry objects weighing up to 10 pounds.  He opined that she could push, pull and handle light objects and could bend occasionally.


17
A psychiatric consultation in November of 1978, evidenced no significant physical pathology that could be corrected surgically and indicated that emotional factors were strongly suspected as causing her symptomatology.  Powell was described as despondent, hostile, and suffering from repressed anger.  She was placed on anti-depressant medications.


18
Christian R. Barrett, a licensed psychologist, evaluated Powell on March 3, 1984.  He found that Powell was reasonably cooperative, readily complied with all tasks and directions, displayed a good sense of humor, and had the ability to relate well with other people.  Dr. Barrett stated that, "[T]he personality profile does not reveal any elements of mental illness which would prohibit making occupational, personal or social adjustments, although her adaption to new situations is likely to be difficult for her."


19
A psychiatric examination was conducted by Dr. Fuller on April 7, 1984.  He found no impairment of Powell's memory, attention, concentration or sensorium.  Dr. Fuller opined that claimant had adopted the role of an invalid, attributing all of her difficulties in life to her back pain.  Dr. Fuller diagnosed psychogenic pain disorder which allowed her to escape from working, and granted her benefits which would otherwise be unobtainable.

II.

20
The only issue on appeal is whether there is substantial


21
evidence to support the Secretary's decision to deny the


22
claimant disability benefits.  Substantial evidence is


23
defined as "such relevant evidence as a reasonable mind


24
might accept as adequate to support a conclusion."  It is


25
more than a scintilla, but less than a preponderance.


26
Richardson v. Perales, 402 U.S. 389, 401 (1971).  The scope


27
of judicial review is limited to determining whether the


28
findings of fact made by the Secretary are supported by


29
substantial evidence, and deciding whether the Secretary


30
employed the proper legal criteria in reaching those


31
findings.  Gibson v. Secretary of Health, Education &


32
Welfare, 678 F.2d 653 (6th Cir.1982).  Thus, the court may


33
not try the case de novo by resolving conflicts in the


34
evidence or deciding questions of credibility.


35
Powell argues that because of her back and leg pain, her


36
ability to sit, stand and walk is so limited she cannot


37
perform even sedentary work.  She claims that the medical


38
and lay testimony clearly support this proposition.


39
Although Powell states that her pain is so severe she is


40
unable to work, her testimony does not necessarily


41
corroborate this since she performs such activities as


42
crocheting, sewing, dusting, making the bed, cooking,


43
washing dishes, shopping and driving.


44
Powell contends that the ALJ attempted to summarily dismiss


45
her back and leg pain on the basis of her ability to sit


46
through a 37 minute hearing and on the statements made by


47
Dr. Endress in his report.  We conclude that appellant's


48
contention is without merit, since the ALJ relied on other


49
evidence in the record.


50
Powell further contends that the ALJ substituted his opinion


51
for that of the physicians.  The ALJ found that Powell's


52
impairments consisted of lumbar myositis, status post-back


53
surgery and non-severe psychogenic pain disorder with


54
depression.  The ALJ found that the physicians' reports do


55
not suggest total disability, and that Powell's allegations


56
of extreme pain and severe restrictions are inconsistent


57
with the objective medical records.  It is our opinion that


58
the ALJ did not substitute his opinion for that of the


59
physicians.  Although the reports of the physicians show


60
that Powell's physical activity is limited because of her


61
pain, these reports do not suggest total disability but


62
indicate a capacity for sedentary activity.


63
Appellant relies heavily on Dr. LePere's report in which he


64
stated that Powell was "disabled" and unable to work.


65
However, as the ALJ noted, there is no indication that Dr.


66
LePere's use of the word "disabled" was based on the meaning


67
of "disabled" as defined by Congress.  It is the ALJ's


68
responsibility to review all the evidence, including


69
physicians' reports, and to make the ultimate determination


70
of disability.  The ALJ must review both the vocational and


71
medical evidence, and cannot be bound by a physician's


72
opinion on the ultimate issue.


73
Powell also argues that the ALJ erred when he asked the


74
vocational expert a hypothetical question.  The


75
challenged question reads:


76
Assume I find the claimant able to sustain an eight hour


77
work day, working at the sedentary level, with a sit-stand


78
option, during the course of this she would have the full


79
use of her upper extermities [sic] for repetitive movements,


80
and pushing and pulling of arm controls, gross manipulation, reaching.


81
That she would not be able to use her lower extremities for


82
repetitive pushing and pulling of leg controls and


83
that she would be able to bend occasionally.


84
Would these findings permit performance by the claimant in


85
any of her previous jobs?


86
The vocational expert answered the question in the


87
affirmative.  Powell felt that the question was defective


88
because it did not take into account the medical or lay


89
testimony or the non-exertional impairments described by Dr.


90
Fuller.  We reject this argument.  This question has built


91
into it many qualifications so that the ALJ could determine


92
if there are jobs that Powell can perform even though she


93
does not have full use of each body part.  If the ALJ's


94
conclusions as to Powell's physical limitations and her


95
residual capabilities are supported by substantial evidence,


96
clearly this was an appropriate question to ask the vocational expert.


97
In addition, Powell argues that the ALJ erred in determining


98
that she could perform her past work.  She claims that the


99
vocational expert first testified that appellant could


100
perform her former job as a subassembler, but later changed


101
his mind and opined that she could not.  She further


102
contends that the vocational expert testified that if her


103
former job required more than occasional bending, she would


104
be unable to perform that job.  The vocational expert did


105
make a statement to the effect that if claimant's prior job


106
required frequent bending, she would not be able to perform


107
it, but the appellant's testimony does not support the


108
conclusion that she had to bend more than occasionally.


109
Although it is true that the vocational expert's testimony


110
could have been more clear, he did testify that appellant


111
could perform her prior work.  The vocational expert


112
answered the ALJ's hypothetical question in the affirmative,


113
stating that appellant could do sedentary work with a


114
sit-stand option, and that there were available jobs that


115
she could perform.  The expert said there were approximately


116
3,000 of these subassembly jobs in the Detroit area and


117
6,000 in the State of Michigan.


118
As previously mentioned, appellant claims that her back pain


119
is so severe she cannot work.  The two-pronged test for


120
reviewing claims of disabling pain is set forth in Duncan v.


121
Secretary of HHS, 801 F.2d 847, 853 (6th Cir.1986):


122
First, we examine whether there is objective medical


123
evidence of an underlying medical condition.  If there is,


124
we then examine:  (1) whether objective medical evidence


125
confirms the severity of the alleged pain arising from the


126
condition;  or (2) whether the objectively established


127
medical condition is of such a severity that it can


128
reasonably be expected to produce the alleged disabling pain.


129
See also S.Rep. No. 466, 98th Cong., 2d Sess. 24, reprinted


130
in 130 Cong.Rec. Sec. 6221 (daily ed. May 22,

1984);  Landry v. Heckler, 782 F.2d
1551, 1553-54 (11th Cir.1986)

131
(per curiam).


132
The ALJ found appellant had lumbar myositis, status


133
post-back surgery and non- severe psychogenic pain disorder


134
with depression.  This satisfies the first part of the test.


135
However, the ALJ found that appellant's allegations of


136
extreme pain and severe restriction in functional capacity


137
were inconsistent with the objective record and were not


138
credible.  These findings are supported by substantial


139
evidence, and therefore, the first alternative of the second


140
part of the test is not satisfied.  The second alternative


141
of the second prong of the Duncan test is also not satisfied


142
because there is substantial evidence in the record to


143
support the ALJ's conclusion that appellant's medical


144
conditions are not so severe that they reasonably could be


145
expected to produce disabling pain.


146
It is our opinion that there is substantial evidence to


147
support the Secretary's decision that the


148
appellant is capable of performing her


149
past work.  Accordingly, the


150
judgment is AFFIRMED.

