                                      File Name: 06a0458n.06
                                        Filed: June 29, 2006

                          NOT RECOMMENDED FOR PUBLICATION

                                            No. 05-6549

                            UNITED STATES COURT OF APPEALS
                                 FOR THE SIXTH CIRCUIT

GERRY E. BINGAMAN,                        )
                                          )
      Plaintiff-Appellant,                )
                                          )                 ON APPEAL FROM THE
v.                                        )                 UNITED STATES DISTRICT COURT
                                          )                 FOR THE EASTERN DISTRICT OF
COMMISSIONER OF SOCIAL SECURITY,          )                 KENTUCKY
                                          )
      Defendant-Appellee.                 )
__________________________________________)                 OPINION

Before: GILMAN and GRIFFIN, Circuit Judges; and DUGGAN, District Judge*

       PATRICK J. DUGGAN, District Judge. Gerry E. Bingaman (“Bingaman” or “Claimant”)

applied for and was denied disability insurance benefits and Supplemental Security Income under

Titles II and XVI of the Social Security Act. The district court affirmed the adverse decision of the

Administrative Law Judge (ALJ). Bingaman appeals that ruling, claiming that (1) his impairments

meet or equal the Listing of Impairments, (2) the ALJ’s finding that Bingaman can perform work

within his residual functional capacity is not supported by substantial evidence; rather, the ALJ

made residual functional capacity findings based on his own, unaided interpretation of medical data;

and (3) in determining Bingaman’s residual functional capacity, the ALJ failed to accord proper




       *
        The Honorable Patrick J. Duggan, Senior United States District Judge for the Eastern District of
Michigan, sitting by designation.
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weight to the determination of the treating physician. For the reasons set forth below, we AFFIRM

the judgment of the district court.

                                       I. BACKGROUND

A.     Factual background

       Bingaman was born on March 21, 1956, and was forty-seven years old at the time of his

hearing before the ALJ. He completed high school and is able to read, write, and do simple math.

Bingaman has previously worked as a utility technician and a freezer operator. He last worked as

a truck scale technician for Procter & Gamble Co., doing data entry. He has not worked since

February 2000.

       In 1980, Bingaman sustained a gunshot wound to his lower back. The bullet could not be

removed because it was located behind the sciatic nerve. In 1990, Bingaman fractured his left

calcaneus, or heel bone, which was surgically repaired with hardware. In 1998, Bingaman

underwent a second surgery to remove the hardware from his heel. After the hardware was

removed, Bingaman developed arthritis in the calcaneus, which affected his ability to stand, walk,

bend, stoop, squat, and climb ladders and stairs.

       In January 1999, Dr. Wayne Amendt evaluated Bingaman for complaints of consistent foot

pain. Dr. Amendt placed work restrictions on claimant and instructed him not to walk over fifteen

minutes at a time or more than one hour each day, not to lift over ten pounds, not to stand over five

minutes without a break and not to climb.




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        Bingaman continued to experience back pain, which his doctors believed was exacerbated

by his limping due to his calcaneous fracture. A November 2000 MRI revealed degenerative disc

disease with minimal bulging at T11-12, L3-4, L4-5, and L5-S1, but there was no significant nerve

root impairment.     Moreover, since 1998, Bingaman has experienced neck pain, which has

contributed to hand, wrist, and arm weaknesses, as well as gripping problems. He also has problems

with dizziness, severe headaches, blurred vision, breathing, depression, anxiety, insomnia, and

irritability with his family.

        Bingaman continued to work as a truck scale technician until February 8, 2000, when he

alleges an onset of disability. In a report dated February 8, 2000, Dr. Amendt stated that Bingaman

was unable to work because of his foot problems.

B.      Procedural background

        Bingaman filed an application for disability insurance benefits and Supplemental Security

Income benefits on August 24, 2000. He alleged disability as of February 9, 2000. His application

was denied initially and upon reconsideration by the Social Security Administration. Following a

hearing held on July 2, 2002, the ALJ issued a decision on July 24, 2002, denying the claim for

benefits. The Appeals Council denied Bingaman’s request for review, and he appealed to the United

States District Court for the Eastern District of Kentucky. On May 28, 2003, the district court

granted the Commissioner’s motion to remand the matter to the Commissioner because the tape of

the hearing held on July 2, 2002, was blank and could not be transcribed.




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       On November 10, 2003, Bingaman and a vocational expert appeared before the ALJ for a

second hearing. On March 24, 2004, the ALJ again denied the claim for benefits. The case returned

to the district court and, on August 2, 2005, the district court affirmed the Commissioner’s denial

of benefits. This appeal followed.



                                         II. ANALYSIS

A.     Standard of review

       Under 42 U.S.C. § 405(g), the ALJ’s findings are conclusive so long as they are supported

by substantial evidence. Our review “is limited to determining whether there is substantial evidence

in the record to support the findings.” Duncan v. Sec’y of Health and Human Servs., 801 F.2d 847,

851 (6th Cir. 1986). The substantial evidence standard is met if a “reasonable mind might accept

the relevant evidence as adequate to support a conclusion.” Longworth v. Comm’r of Soc. Sec., 402

F.3d 591, 595 (6th Cir. 2005) (citations omitted). Furthermore, if substantial evidence supports the

Commissioner’s decision, we must defer to that finding “even if there is substantial evidence in the

record that would have supported an opposite conclusion.” Id.

B.     Legal framework for evaluating disability claims

       A five-step inquiry is employed by administrative law judges to determine whether a

claimant is disabled within the meaning of the Social Security Act. 20 C.F.R. § 404.1520. First, the

claimant must show that he is not engaged in substantial gainful activity. 20 C.F.R. § 404.1520(b).

Second, the claimant must demonstrate that he has a “severe impairment.” 20 C.F.R. § 404.1520(c).



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Third, to be found “disabled,” the claimant must then demonstrate that his impairment meets the

durational requirement and “meets or equals a listed impairment.” 20 C.F.R. § 404.1520(d). If the

impairment does not meet or equal a listed impairment, the fourth step requires the claimant to prove

that he is incapable of performing work that he has done in the past. 20 C.F.R. § 404.1520(e).

Finally, if the claimant’s impairment is so severe as to preclude the performance of past work, then

other factors, including age, education, past work experience, and residual functional capacity, must

be considered to determine if other work can be performed. 20 C.F.R. § 404.1520(f). The

Commissioner bears the burden of proof at the final step. Jones v. Comm’r of Soc. Sec., 336 F.3d

469, 474 (6th Cir. 2003).

C.     Listing 1.03 determination

       Bingaman argues that the ALJ erred by failing to find that his impairment meets or equals

Listing 1.03, which requires evidence of “[r]econstructive surgery or surgical arthrodesis of a major

weight-bearing joint, with inability to ambulate effectively, as defined in 1.00B2b . . . .” Listing

1.00B2b provides:

       (1) Definition. Inability to ambulate effectively means an extreme limitation of the
       ability to walk; i.e., an impairment(s) that interferes very seriously with the
       individual’s ability to independently initiate, sustain, or complete activities.
       Ineffective ambulation is defined generally as having insufficient lower extremity
       functioning (see 1.00J) to permit independent ambulation without the use of a hand-
       held assistive device(s) that limits the functioning of both upper extremities . . . .

       (2) To ambulate effectively, individuals must be capable of sustaining a reasonable
       walking pace over a sufficient distance to be able to carry out activities of daily
       living. They must have the ability to travel without companion assistance to and
       from a place of employment or school. Therefore, examples of ineffective
       ambulation include but are not limited to, the inability to walk without the use of a

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        walker, two crutches or two canes, the inability to walk a block at a reasonable pace
        on rough or uneven surfaces, the inability to use standard public transportation, the
        inability to carry out routine ambulatory activities, such as shopping or banking, and
        the inability to climb a few steps at a reasonable pace with the use of a single hand
        rail. The ability to walk independently about one’s home without the use of an
        assistive device does not, in and of itself, constitute effective ambulation.

20 C.F.R. Pt. 404, Subpt. P, App. 1, § 1.00B2b.

        Bingaman argues the ALJ erred in finding that Bingaman did not meet Listing 1.03 despite

the fact that: (1) Claimant could only stand and walk for fifteen minutes at a time and then must sit

for five minutes, and (2) Claimant only goes grocery shopping with the assistance of his wife. As

noted above, Bingaman bears the burden of demonstrating that his impairment meets or equals

Listing 1.03.

        Substantial evidence exists to support the ALJ’s conclusion that Bingaman does not meet

Listing 1.03. Although Bingaman has a “slight limp, favoring the left foot,” he does not require a

hand-held assistive device to walk. At the hearing, Bingaman testified that despite some difficulty,

on an average day he was able to perform household chores such as cleaning, cooking, washing

dishes, and doing laundry. He also testified that he was able to mow the lawn with a riding mower

and vacuum the house. Therefore, Bingaman failed to meet his burden of proving that his

impairment meets the requirements of Listing 1.03.

D.      Residual functional capacity finding

        Bingaman next claims that the ALJ’s finding that Bingaman can perform work within his

residual functional capacity (“RFC”) is not supported by substantial evidence and Plaintiff is entitled

to reversal at Step 5.

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       The ALJ posed two hypothetical questions to the vocational expert. First, consistent with

the ALJ’s ultimate RFC finding, the ALJ asked:

       Okay. All right, would you assume, please, an individual of the same age, education,
       and work experience as the claimant, with the following limitations: The individual
       can lift, carry, push and pull up to 10 pounds occasionally and five frequently; can,
       in combination, stand and/or walk up to two hours in an eight hour workday, and up
       to 15 minutes at a time, after which he’d need to be able to sit for at least five
       minutes; the individual can sit for up to two hours at a time, after which he must be
       able to stand or walk for at least five minutes; the individual can occasionally stoop,
       kneel, crouch, and climb ramps and stairs; cannot crawl, or climb ladders, ropes or
       scaffolds, or use the left leg to operate controls or perform other forceful work; no
       more than occasional firm, forceful gripping with the hands, by which I don’t mean
       to exclude the fine or gross manipulation or general handling that doesn’t involve
       forceful gripping; no more than occasional work above the shoulder level with the
       upper extremities; no operating automotive equipment or working at unprotected
       heights or around hazardous machinery; the individual is unable to remember or
       carry out detailed instructions; and no more than occasional interaction with the
       general public.

       After the vocational expert indicated that such an individual could not perform any of

Claimant’s past work, the expert found that the hypothetical individual could perform types of two

sedentary jobs that exist in the national and local economy.

       In the ALJ’s second hypothetical, he asked whether any jobs were available to an individual

of the same age, education, and work experience as the Claimant with the characteristics described

in the RFC form completed by Dr. Allnutt, Bingaman’s treating physician. After evaluating

Bingaman on November 7, 2003, Dr. Allnutt found: Bingaman could lift and carry ten pounds

occasionally; stand and walk for an hour total during a workday and just five minutes at a time; sit

for a total of five to six hours during the workday for twenty minutes at a time; perform no postural

activities; that he was restricted in reaching, handling, feeling, pushing/pulling; and that he was

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restricted from heights, moving machinery, dust, and vibrations. Taking into account Dr. Allnutt’s

RFC form, the vocational expert found that such an individual could not perform Claimant’s past

work nor any other work.

       First, Bingaman argues that the ALJ erred in making RFC findings based on his own,

unaided interpretation of medical data. See Hall v. Celebrezze, 314 F.2d 686, 690 (6th Cir. 1963)

(finding that the Secretary of Health may not supplant his own opinions regarding physical

disabilities for those of the uncontradicted medical experts). Bingaman contends that the following

excerpt from the ALJ’s opinion reveals that the ALJ, without the aid of a medical advisor, made

RFC findings based upon his own interpretation of medical data:

       In combination with his degenerative disc disease, his ability to perform postural
       activities is also reduced, but not completely precluded. Objective radiographic
       studies fail to show findings which would support more restrictive limitations. An
       MRI from November 2000 showed degenerative disc disease but with only minimal
       bulging at several levels . . . .

(Emphasis added).

       Although in this section of the ALJ’s opinion, he did not specifically attribute these findings

to medical professionals, earlier in the opinion, the ALJ explained:

       [Claimant] was seen by Dr. Hoblitzell in September 2000. At that time, the claimant
       was felt to have chronic lower back strain, exacerbated by his limping due to his
       calcaneal fracture. Dr. Hoblitzell performed EMG studies in October 2000 which
       showed the possibility of mild left S1 radiculopathy. These studies showed no
       evidence of carpal tunnel syndrome, ulnar neuropathy, radiculopathy or plexopathy
       of the upper extremities.

       Exhibits 6F and 24F are the medical reports and EMG studies of Dr. Richard Hoblitzell. Dr.

Hoblitzell’s EMG studies revealed that there was “minimal bulging” at T11-12, L3-4, L4-5, and L5-

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S1. Moreover, Dr. Hoblitzell stated that Bingaman’s “EMG studies of the upper extremities reveal

no significant abnormalities” and the “EMG studies of the lower extremities show[] perhaps a mild

left S1 radiculopathy.” Dr. Hoblitzell also found that Bingaman’s “MRI scan shows some

degenerative disc in his lumbar spine, but no significant nerve root impingement.” Therefore, the

ALJ did not improperly interpret the medical data in the record when he found only minimal bulging

at several discs.

        Second, Bingaman argues that Dr. Allnutt’s RFC is entitled to “controlling weight” because

Dr. Allnutt was a treating physician who treated Bingaman during the entire period of claimed

disability. See Harris v. Heckler, 756 F.2d 431, 435 (6th Cir. 1985) (“The medical opinions and

diagnoses of treating physicians are generally accorded substantial deference, and if the opinions

are uncontradicted, complete deference.”).

        The ALJ is ultimately responsible for determining a claimant’s RFC based on relevant

medical and other evidence in the record. See 20 C.F.R. § 404.1546(c), § 404.1545(a)(3).

The evidence submitted by the claimant may contain medical opinions. 20 C.F.R. § 404.1527(a)(2).

Acceptable medical sources, such as physicians or psychologists, can provide evidence to establish

whether a claimant has medically determinable impairments. 20 C.F.R. § 404.1513(a). Although

the opinion of a treating physician is generally accorded great weight, such deference applies only

where the physician’s opinion is based upon sufficient medical data. Miller v. Sec’y of Health and

Human Servs., 843 F.2d 221, 224 (6th Cir. 1988). The ALJ must provide “good reasons” for a




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decision not to give controlling weight to the treating physician’s opinion. See 20 C.F.R. §

404.1527(d)(2); Wilson v. Comm’r of Soc. Sec., 378 F.3d 541, 545 (6th Cir. 2004).

        In this case, the ALJ found that “the objective evidence in this record simply does not

support disabling impairment in this case.” The ALJ adequately explained why he did not give

controlling weight to Dr. Allnutt’s opinions: the opinions were inconsistent with both another

treating physician’s opinion and other evidence in the record. The ALJ reasoned:

        Current neurosurgical consultation by Dr. Mullen in November 2003 failed to show
        findings to support limited functioning. He had good range of motion, intact
        reflexes, and no focal upper extremity weakness or atrophy.1

        The ALJ further reasoned that Dr. Mullen’s findings “refute many of the claimant’s

complaints.”

        The undersigned also carefully considered medical assessments submitted by Dr.
        Allnutt, a treating source. These assessments show limitations somewhat more
        restrictive than the above-described residual functional capacity. These assessments
        are not adopted as they are inconsistent with each other with respect to the ability to
        sit, with one stating the claimant can sit for a total of five or six hours or 20 minutes
        without interruption and the other stating the claimant can sit a total of six or seven

        1
          Claimant contends that this is another instance where the ALJ improperly substituted his own
interpretation of the medical data for the opinion of the medical professional. However, Dr. Mullen explicitly
found:
         The neck is supple with full range of motion. There is no thyroid enlargement. There is no
         lymphadenopathy or cartoid bruits. He has good range of motion of his neck and is able to
         lift his arms above the horizontal at the shoulder. There is no focal upper extremity
         weakness, and no atrophy of his upper extremity musculature. . . . There is no lower
         extremity motor weakness or atrophy. He has intact posterior tibalis pulses. There is no
         edema of the ankles. He is able to ambulate without antalgia and there is no evidence of
         cerebellar ataxia. . . .
         A cervical MRI scan reveals very minimal discogenic changes at C5-6. I do not appreciate
         a surgical lesion on that imaging study.
Consequently, the ALJ’s assertion that Dr. Mullen’s November 2003 consultation fails to support limited
functioning is supported by substantial evidence in the record.

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       hours or 15 minutes at a time. There is no explanation for this change in the
       functional capacity assessed. Nor is there any documentation in the medical records
       showing why this would be so. Further, his assessment is not supported by the
       objective evidence. As noted above, radiographic examination has shown mostly
       mild findings with respect to his cervical and lumbar spines. Further, EMG and
       nerve conduction studies have generally shown negative results. Current neurologic
       examination by Dr. Mullen also shows lack of specific pathology which would
       support the level of limitation found in these assessments.

       Although we do not find that there is a significant inconsistency in these assessments, the

ALJ went on to note that both the objective medical studies and another doctor contradicted Dr.

Allnutt’s assessment:

       Further, [Dr. Allnutt’s] assessment is not supported by the objective evidence. As
       noted above, radiographic examination has shown mostly mild findings with respect
       to his cervical and lumbar spines. Further, EMG and nerve conduction studies have
       generally shown negative results. Current neurologic examination by Dr. Mullen also
       shows lack of specific pathology which would support the level of limitation found
       in these assessments.

       Because the ALJ found that both objective medical studies and Dr. Mullen’s findings

contradicted Dr. Allnutt’s findings, the ALJ did not err as a matter of law by choosing not to accord

Dr. Allnutt’s RFC controlling weight. See Miller, 843 F.2d at 224. Therefore, substantial evidence

supports the ALJ’s RFC determination.

                                       III. CONCLUSION

       For all of the reasons set forth above, we AFFIRM the judgment of the district court.




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