Filed: Aug. 16, 2016
Latest Update: Mar. 03, 2020
Summary: NOT RECOMMENDED FOR PUBLICATION File Name: 16a0472n.06 No. 15-2364 FILED Aug 16, 2016 DEBORAH S. HUNT, Clerk UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT ROBERT GIBBENS, ) ) Plaintiff-Appellant, ) ON APPEAL FROM THE ) UNITED STATES DISTRICT v. ) COURT FOR THE WESTERN ) DISTRICT OF MICHIGAN COMMISSIONER OF SOCIAL SECURITY, ) ) OPINION Defendant-Appellee. ) ) BEFORE: GILMAN, WHITE, and STRANCH, Circuit Judges. JANE B. STRANCH, Circuit Judge. Appellant Robert Gibbens challenges the decision
Summary: NOT RECOMMENDED FOR PUBLICATION File Name: 16a0472n.06 No. 15-2364 FILED Aug 16, 2016 DEBORAH S. HUNT, Clerk UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT ROBERT GIBBENS, ) ) Plaintiff-Appellant, ) ON APPEAL FROM THE ) UNITED STATES DISTRICT v. ) COURT FOR THE WESTERN ) DISTRICT OF MICHIGAN COMMISSIONER OF SOCIAL SECURITY, ) ) OPINION Defendant-Appellee. ) ) BEFORE: GILMAN, WHITE, and STRANCH, Circuit Judges. JANE B. STRANCH, Circuit Judge. Appellant Robert Gibbens challenges the decision ..
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NOT RECOMMENDED FOR PUBLICATION
File Name: 16a0472n.06
No. 15-2364 FILED
Aug 16, 2016
DEBORAH S. HUNT, Clerk
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
ROBERT GIBBENS, )
)
Plaintiff-Appellant, )
ON APPEAL FROM THE
)
UNITED STATES DISTRICT
v. )
COURT FOR THE WESTERN
)
DISTRICT OF MICHIGAN
COMMISSIONER OF SOCIAL SECURITY, )
)
OPINION
Defendant-Appellee. )
)
BEFORE: GILMAN, WHITE, and STRANCH, Circuit Judges.
JANE B. STRANCH, Circuit Judge. Appellant Robert Gibbens challenges the
decision of the Commissioner of Social Security to deny his claim for disability benefits. He
contends that the administrative law judge who presided over his hearing erred by (1) rejecting
the medical opinion of his treating physician, and (2) formulating hypothetical questions for the
vocational expert that did not accurately reflect his limitations in concentration, persistence, and
pace. Because the Commissioner’s decision is supported by substantial evidence, we AFFIRM
the judgment of the district court.
I. PROCEDURAL HISTORY
Gibbens applied for disability insurance benefits on June 27, 2007, and supplemental
security income on October 2, 2007, alleging disability since March 1, 2006. At the time, he was
twenty-five years old. Gibbens claimed that conditions in his lower back, left arm, and right
knee limit his ability to work, as do attention deficit disorder and a learning disability. In a
No. 15-2364, Gibbens v. Comm’r of Social Security
disability report filed a few months later, he noted a further decline in memory and physical
condition that reduced his ability to care for himself or his children.
Gibbens’s application was denied initially in January 2008, and by decision after an
administrative hearing in October 2009. The Appeals Council vacated the decision and
remanded with instructions to the administrative law judge (ALJ) to further evaluate Gibbens’s
mental impairment and obesity, consider his residual functional capacity with “specific reference
to evidence of record in support of the assessed limitations,” and to obtain evidence from a
vocational expert clarifying the effect of these limitations on his ability to work.
A second ALJ presided over the hearing on remand and denied Gibbens’s application for
benefits at the final step of the disability analysis. The ALJ concluded that, despite Gibbens’s
severe impairments and significant functional limitations that precluded past relevant work,
Gibbens retained the capacity to perform a limited range of sedentary work. The Appeals
Council denied Gibbens’s request for review on July 1, 2014, making the ALJ’s decision the
final decision of the Commissioner of Social Security. The district court affirmed.1
II. FACTS
As the result of a brachial plexus injury at birth, Gibbens is afflicted by Erb’s Palsy of the
left upper extremity, which causes deformation and decreased mobility. Gibbens has also been
diagnosed with borderline intellectual functioning and a probable learning disability. He
completed the eleventh grade and asserts that he attended special education classes throughout
school. Gibbens states that he intended to pursue his GED at one point, but did not think he
could do it and was unable to after starting a family.
1
Gibbens’s motion for summary judgment before the district court claimed that the ALJ erred on four counts, but
only two of those form the basis of his appeal. We generally do not review arguments raised before the district court
but not raised on appeal, thus only the two issues before us are considered. See, e.g., Robinson v. Jones, 142 F.3d
905, 906 (6th Cir. 1998).
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Gibbens has been married since 2003 and lives with his wife and two children. He
enjoys a good relationship with family and visits with friends regularly. Gibbens requires
assistance with things like bathing and tying his shoes because he has little to no use of his left
arm and hand. However, he is able to help care for his children and complete some household
chores. Gibbens likes to watch television and use the computer. He takes naps frequently
because he suffers from sleep apnea and fatigues easily due to persistent pain. Since the alleged
onset of his disabling conditions, Gibbens has intermittently relied on a cane or walker to
ambulate. His wife handles the family’s finances.
Gibbens worked as a cart pusher and truck unloader at Walmart from approximately 2004
to early 2006, but quit due to back and arm pain. He then worked briefly in another manual
labor position until approximately May 2006.2 He has not worked since this time.
A. Medical History
In 2007, Gibbens experienced growing discomfort in his left arm and fingers from
numbness and tingling that dissipated when he shook his hand. A subsequent examination,
which included a nerve conduction study and electromyography (EMG), revealed abnormality in
his median, ulnar, and left radial nerves, as well as chronic denervation.
Gibbens first met with his treating physician, Dr. Katalin Szloboda, in June 2012. Dr.
Szloboda noted that Gibbens was morbidly obese and had been diagnosed with type II diabetes
the previous year. An MRI administered the following week indicated that Gibbens suffered
from multilevel lumbar spondylosis. Despite these challenges, Gibbens’s condition appears to
have improved under Dr. Szloboda’s care. At a July 2012 follow-up examination, Dr. Szloboda
observed that Gibbens’s diabetes was “doing much better” now that he was on a good diet,
losing weight, and taking his medications. Gibbens’s arthritis also improved, but he continued to
2
Gibbens stated elsewhere in the record that he worked until 2003, but this appears to be a misunderstanding.
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No. 15-2364, Gibbens v. Comm’r of Social Security
experience significant back pain. Dr. Szloboda referred Gibbens to neurosurgeon Dr. Coccia,
who determined in fall 2012 that Gibbens’s symptoms were not related to degenerative disc
disease and that surgery was unnecessary. Dr. Coccia recommended possible epidural injections
and physical therapy for pain management.
A short time after his neurosurgery evaluation, Gibbens was sent to the emergency room
when he experienced a sudden onset of weakness and numbness in both legs after he “felt a pop”
while getting into his car. He rated his pain around that time as nine on a ten-point scale.
Gibbens was discharged with a prescription for physical therapy and noted “some significant
improvement” after one month, including decreased pain and greater mobility. Two months
later, he was described as “doing well,” and reported that he never felt pain beyond a five or six,
though he continued to experience numbness in his lower legs. An EMG taken around this time
revealed no significant abnormality.
Gibbens underwent a cervical fusion in January 2013. When he was discharged the
following day, “[h]is preoperative pain ha[d] mostly resolved.” At the time of the hearing,
Gibbens had not yet seen the surgeon for a follow-up evaluation. The record contains no
significant medical events after this date.
B. The Administrative Hearing
Gibbens testified at the administrative hearing that, although he had always suffered pain
in his neck, shoulders, lower back, and knees, his condition had worsened since 2009 when he
began seeking treatment from specialists. He testified that his wife helped him bathe, that he
could not drive long distances, clean, shop, or do laundry, and that he could cook only “very
little.” Gibbens visited the emergency room three times between 2009 and 2010 for pain in his
neck, shoulders, and upper back. He testified that he did not think the cervical fusion procedure
the month prior had helped, though he understood that it was still early and that he may yet
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No. 15-2364, Gibbens v. Comm’r of Social Security
regain feeling in his legs. Gibbens noted that he did not like to go out because people stare at
him. Finally, he explained that his chronic pain, lower extremity numbness, and fatigue were
particularly troubling because they kept him from spending time with his children.
The ALJ posed three hypothetical questions to a vocational expert. First, he described a
person of Gibbens’s age, level of education and work experience, who is,
unable to lift and carry more than 10 pounds frequently, 20 pounds
occasionally, would be unable to climb ladders, ropes, and
scaffolds, unable to have effective use of left upper extremity,
that’s non-dominant. . . .
Unable to climb stairs, balance, stoop, kneel, crouch or crawl more
than occasionally, would need to avoid concentrated exposure to
vibration and hazards, would be unable to maintain the attention or
concentration necessary to perform detailed or complex tasks. And
unable to have more than occasional interaction with co-workers,
supervisors, or the public.
The vocational expert confirmed that there was work available that a hypothetical individual
with these limitations could perform, including order filler, shipping clerk, and production
inspector.
The ALJ then asked the vocational expert to consider the same hypothetical individual
with the added limitations that he could not lift or carry more than ten pounds, could not stand or
walk for more than two hours during an eight-hour workday, and would require use of a cane to
walk. The vocational expert responded that there were jobs available in the economy for this
hypothetical individual including packer, inspector, and production helper. Finally, the ALJ
added a last limitation to both of the prior hypotheticals—the individual required unscheduled
breaks of undetermined duration. The vocational expert testified that this limitation would
preclude all competitive employment.
Gibbens’s attorney asked the vocational expert to consider the first hypothetical
individual with the added limitation that he could “not do any report completion, even to the
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point of counting, and no use of computers, [or] laptops for operation.” The vocational expert
found that this would eliminate some of the representative examples he had offered, like
shipping clerk positions, but that the hypothetical individual could still work in positions like
order filler or production inspector. The ALJ asked whether those positions were still available
if the same hypothetical individual required a cane to ambulate. The vocational expert
responded that this limitation eliminated employment.
C. The Decision of the Social Security Commissioner
The ALJ denied Gibbens’s claim for benefits in a written decision on April 3, 2013. He
noted as a preliminary matter that Gibbens met the insured status requirements of the Social
Security Act until September 20, 2011. At the first step of the sequential evaluation process,
20 C.F.R. §§ 404.1520(a), 416.920(a), the ALJ found that Gibbens had not engaged in
substantial gainful activity since the alleged onset of his disability on March 1, 2006. At the
second step, the ALJ concluded that Gibbens suffered from several severe impairments,
including Erb’s Palsy of the left upper extremity, obesity, peripheral neuropathy, diabetes,
cervical and lumbar degenerative disc disease, general anxiety disorder, attention deficit
hyperactivity disorder, dysthymia, and borderline intellectual functioning. At step three, the ALJ
determined that Gibbens’s impairments, or combination of impairments, did not meet or
medically equal one of the impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1.
20 C.F.R. §§ 404.1520(d), 404.1525, 404.1526.
The ALJ found at step four that Gibbens retained the residual functional capacity to
perform sedentary work with a number of nonexertional limitations:
unable to have effective use of the left upper extremity except to
assist the right with lifting; unable to climb ladders, ropes or
scaffolds; only occasional balancing, stooping, kneeling, crouching
or crawling; must be able to use a cane to ambulate; must avoid
concentrated exposure to vibration or hazards; unable to maintain
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No. 15-2364, Gibbens v. Comm’r of Social Security
the attention or concentration necessary to perform detailed or
complex tasks; only occasional interaction with co-workers,
supervisors or the public.
The ALJ found that Gibbens’s medically determinable physical and mental impairments could
reasonably be expected to cause the symptoms he alleged, but that Gibbens’s statements
concerning their intensity, persistence, and limiting effects were not entirely credible. In
particular, the ALJ gave little weight to the opinion of Gibbens’s treating physician, Dr.
Szloboda, because her assessment was not supported by objective medical evidence.
At step five, the ALJ concluded, based on the testimony of the vocational expert, that
significant numbers of jobs existed in the regional and national economy that Gibbens could
perform. Though Gibbens could not perform his past relevant manual labor work, his status as a
younger individual, 20 C.F.R. §§ 404.1563, 416.963, and his residual functional capacity in
conjunction with the Medical Vocational Guidelines, 20 C.F.R. Part 404, Subpart P, Appendix 2,
indicated that he could perform a range of light work. Thus, the ALJ concluded that Gibbens
was not eligible for benefits and denied his application.
The Appeals Council denied Gibbens’s request for review. The district court affirmed.
III. ANALYSIS
The district court’s disability benefits determination is reviewed de novo. Gayheart v.
Comm’r of Soc. Sec., 710 F.3d 365, 374 (6th Cir. 2013). We uphold the Social Security
Commissioner’s decision if it “is supported by substantial evidence” and “made pursuant to
proper legal standards.” Rogers v. Comm’r of Soc. Sec.,
486 F.3d 234, 241 (6th Cir. 2007).
Substantial evidence lies between a preponderance and a scintilla; it refers to relevant evidence
that “a reasonable mind might accept as adequate to support a conclusion.”
Id. Even if an ALJ’s
findings are justified on the record, a “failure to follow agency rules and regulations denotes a
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No. 15-2364, Gibbens v. Comm’r of Social Security
lack of substantial evidence.” Cole v. Astrue, 661 F.3d 931, 937 (6th Cir. 2011) (internal
quotation marks omitted).
The Social Security Act defines a person who is “disabled” as one whose “physical or
mental impairment or impairments are of such severity that he is not only unable to do his
previous work but cannot, considering his age, education, and work experience, engage in any
other kind of substantial gainful work which exists in the national economy.” 42 U.S.C.
§ 423(d)(2)(A). To qualify, a claimant must establish the existence of a medically determinable
physical or mental impairment that could be expected to result in death or that has lasted or could
be expected to last for a continuous period of not less than twelve months, and that such
impairment(s) render such claimant unable to engage in any substantial gainful activity.
Id. § 423(d)(1)(A).
A. The Treating Physician’s Opinion
Due to the unique nature of the “ongoing treatment relationship” between a patient and
his doctor, the medical opinion of an applicant’s treating physician is afforded special
consideration under the Social Security Act. See 20 C.F.R. §§ 404.1502, 404.1527(c)(2). The
Act recognizes that a treating physician is best placed “to provide a detailed, longitudinal picture
of [a claimant’s] medical impairment(s)” and “may bring a unique perspective to the medical
evidence that cannot be obtained from the objective medical findings alone or from reports of
individual examinations, such as consultative examinations or brief hospitalizations.” Id.
§ 404.1527(c)(2).
A treating physician’s opinion on the nature and severity of a claimant’s impairment(s) is
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] case
record.” Id. If not, the ALJ evaluates the opinion with reference to a number of factors
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No. 15-2364, Gibbens v. Comm’r of Social Security
including: “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.” Wilson v. Comm’r of
Soc. Sec., 378 F.3d 541, 544 (6th Cir. 2004); see also 20 C.F.R. § 404.1527(c)(2) (listing
factors). The ALJ’s decision “must contain specific reasons for the weight given to the treating
source’s medical opinion, supported by the evidence in the case record, and must be sufficiently
specific to make clear to any subsequent reviewers the weight the adjudicator gave to the treating
source’s medical opinion and the reasons for that weight.” SSR 96-2p,
1996 WL 374188, at *5
(July 2, 1996).
Gibbens contends that the ALJ erred by rejecting the opinion of his treating physician,
Dr. Szloboda. Although the ALJ stated explicitly that he afforded Dr. Szloboda’s opinion little
weight based on four discrete reasons, Gibbens asserts that the ALJ did not satisfy the treating
physician rule because his justifications were cherry-picked from the record, do not address the
enumerated regulatory factors, and do not constitute “good reasons.” See 20 C.F.R.
§ 404.1527(c)(2) (requiring a decision to provide “good reasons” when controlling weight is not
given to a treating source opinion); see also Cole, 661 F.3d at 937 (explaining the good reasons
requirement is a “safeguard [on] the claimant’s procedural rights,” and more than “simply a
formality”). Failure to comply with the treating physician rule requires reversal, even when
“substantial evidence otherwise supports the decision,” unless the error is harmless.
Wilson,
378 F.3d at 544, 547; see also
Cole, 661 F.3d at 940 (noting circumstances in which violation of
the rule may constitute harmless error).
Dr. Szloboda submitted two letters in support of Gibbens’s disability claim. The first,
written in December 2012, six months after Dr. Szloboda began treating Gibbens, states
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No. 15-2364, Gibbens v. Comm’r of Social Security
generally that Gibbens is “unable to keep a meaningful job because of his condition”—which she
noted included diabetes, low thyroid, degenerative disc disease causing chronic pain, peripheral
neuropathy, weakness in the lower extremities, and Erb’s palsy—and that he should be
considered for disability. Two months later, Dr. Szloboda followed up with a second letter in
which she reiterated Gibbens’s medical conditions in slightly more detail and predicted that,
despite undergoing a cervical fusion the month before, the neurological symptoms that Gibbens
had experienced for years would continue “for the foreseeable future.” Dr. Szloboda opined that,
“[b]ased upon all of his conditions and physical limitations and restrictions, he should be eligible
for social security disability.”
Dr. Szloboda attached a physical residual functional capacity assessment to the second
letter that listed the following exertional limitations: no use of left arm, lift or carry less than ten
pounds in right arm, stand or walk for a total of less than two hours in an eight-hour work day,
and sit for a total of one to two hours in an eight-hour workday. The assessment further noted
that Gibbens could never climb, balance, kneel, crouch or crawl, but could occasionally stoop,
and that he had limited manipulative abilities. However, no visual or communicative limitations
were listed.
The ALJ listed four reasons for giving Dr. Szloboda’s opinion little weight. First, he
found that the record evidence did not support her opinion regarding Gibbens’s neuropathy. As
stated in her second letter: “As a result of [Gibbens’s] diabetes as well as contributed to by his
degenerative disk [sic] disease, he has peripheral neuropathy and weakness in both lower
extremities. This was tested by EMG.” In fact, the EMG, performed after Gibbens began to
experience increasing lower back pain and numbness from the waist down, “failed to reveal
significant abnormality.” Dr. Johnson, who administered the EMG, observed that “[t]he etiology
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No. 15-2364, Gibbens v. Comm’r of Social Security
of [Gibbens’s] symptoms remains uncertain.” He was unable to find the signs of large fiber
neuropathy and, while small fiber neuropathies could “be elusive on EMG,” this also seemed
“less likely” given the position of Gibbens’s symptoms. Dr. Johnson concluded the case was
“somewhat quizzical.”
In light of Dr. Johnson’s interpretation, Dr. Szloboda’s reference to the EMG provides
little support for her diagnosis of neuropathy; the ALJ found it “difficult to understand Dr.
Szloboda’s conclusion, regarding her diagnosis of neuropathy, when the EMG gives no basis for
it.” To the extent that her opinion was “based (at least in part) on the erroneous assumption that
an EMG supports a finding of neuropathy, when it does not,” the ALJ gave little credit to Dr.
Szloboda’s opinion on this count.
Gibbens maintains that Dr. Szloboda’s reference to the EMG is not an “erroneous
statement.” He notes that the EMG results indicated vibratory sensation loss, and that
small-fiber neuropathy is difficult to diagnose in this manner. Although the EMG produced
negative results, “it could not establish conclusively the source of Gibbens’[s] neuropathy,” and
no medical expert has explicitly disagreed with that diagnosis, thus, Gibbens concludes that “the
AJL’s finding is, at best, speculative.”
Gibbens misunderstands the ALJ’s concern on this count. The ALJ did not dispute the
neuropathy diagnosis—in fact, he found it to be a severe impairment. Instead, Dr. Szloboda’s
citation to the EMG, which did not support the referenced diagnosis, indicates that her medical
opinion—at least insofar as it concerns neuropathy—is not supported by a clinical diagnostic
technique. See 20 C.F.R. § 404.1527(c)(2). Moreover, this aspect of her opinion is inconsistent
with other substantial evidence in the medical record, specifically Dr. Johnson’s finding that the
EMG results were normal and that small fiber neuropathy, though difficult to detect, was “less
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No. 15-2364, Gibbens v. Comm’r of Social Security
likely” given the location of Gibbens’s symptoms. The ALJ’s reasoning on this point is
supported by substantial evidence and satisfies the good reasons requirement for giving less
weight to Dr. Szloboda’s opinion. See Key v. Callahan, 109 F.3d 270, 273 (6th Cir. 1997)
(noting that the ALJ’s decision “is not subject to reversal, even if there is substantial evidence in
the record that would have supported an opposite conclusion, so long as substantial evidence
supports the conclusion reached by the ALJ”).
The second reason that the ALJ afforded Dr. Szloboda’s opinion little weight is that her
prognosis regarding Gibbens’s upper extremity pain failed to take into account Gibbens’s recent
cervical discectomy, which the ALJ concluded “should alleviate some, if not all of his upper
extremity pain.” Gibbens’s January 2013 cervical discectomy and fusion was undertaken to
address his severe C6-7 cervical spinal stenosis and mild cord compression, which he reported
caused growing pain in his shoulders and arms during the year prior. Evidence in the record
indicates that the operation was a success. When Gibbens was discharged the following day, he
was able to walk and reported that his preoperative pain had “mostly resolved,” though he had
some residual pain related to surgery. With this in mind, Dr. Szloboda’s assessment made the
following month that Gibbens would continue to experience his preoperative symptoms “for the
foreseeable future” is puzzling, particularly in the absence of any explanation as to why she
thought the discectomy and fusion would have no ameliorative effect.
Gibbens contends that the ALJ’s assertion amounts to “playing doctor” because the ALJ
substitutes his own medical findings for those of Gibbens’s treating physician. An ALJ may not
“play doctor.” However, the post-surgery records support the ALJ’s conclusion. Though
Gibbens testified at the administrative hearing that he saw no change in his condition, he agreed
that it was early to judge while he was still healing. Moreover, we read the ALJ’s finding on this
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No. 15-2364, Gibbens v. Comm’r of Social Security
issue in the context of other record evidence, described above, that indicates Gibbens’s
degenerative disc disease has often been manageable. Substantial evidence supports the ALJ’s
reasoning.
The third reason that the ALJ declined to give Dr. Szloboda’s opinion controlling weight
was the lack of evidentiary support for her physical residual functional capacity assessment,
specifically, the exertional limitation that Gibbens could sit for only one to two hours per day.
Instead, the ALJ found Gibbens’s “lumbar degenerative disc disease is rather mild with no
evidence of neurological abnormalities.” He found little record support for Dr. Szloboda’s
assessment that Gibbens could sit for only one to two hours in an eight-hour workday. In
response, Gibbens directs the court to the many instances in the record where his disc
degeneration is characterized as severe and notes that “no one stated that his lumbar spine
problem[s] were mild.”
The record is split on this point. A June 2012 examination and MRI revealed lumbar
spondylosis and moderate-to-severe central canal stenosis at L4-5. But in a July examination,
Dr. Szloboda characterized Gibbens, while in distress due to back pain, as “otherwise doing
pretty well.” In October of the same year, Dr. Szloboda reported that she did not think Gibbens’s
“mild amount of stenosis at the L4-5 level is directly related to his clinical symptoms.” She
noted that Dr. Coccia, who did not think surgery was necessary, agreed with her and had
characterized Gibbens’s complaints as “diffuse and nonspecific.” Around that time, Gibbens
went to the emergency room complaining of weakness and numbness in both legs after he
injured himself getting out of a car. His condition improved significantly after physical therapy,
which helped him to walk more easily and increased his spinal flexibility. Yet, he did not regain
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full sensation below the knees. By the end of 2012, Gibbens reported during an examination that
he was “doing well” and never experienced pain beyond five or six on a scale of ten.
Our review of this mixed evidence is not intended to minimize Gibbens’s ordeal. The
mere presence of “periodic improvements and cessation of treatment” cannot support an ALJ’s
decision to discount the severity of a claimant’s medical condition when the ALJ fails to
consider other record evidence of declining health. Gentry v. Comm’r of Soc. Sec., 741 F.3d
708, 723-24 (6th Cir. 2014) (holding that the ALJ erred by discounting claimant’s impairments
on the basis that she ceased certain treatments where her decision to go without those
prescriptions was driven by serious side effects of her medication rather than recovery).
However, that is not the circumstance in the present case. Our standard of review requires that
we uphold the Commissioner’s decision if it is supported by substantial evidence—as long as a
reasonable mind might accept the proffered evidence as adequate to support the ALJ’s
determination.
Rogers, 486 F.3d at 241. That standard is met here.
The fourth and final reason that the ALJ declined to give controlling weight to Dr.
Szloboda’s opinion is that her assessment of his limitations differed from the opinion of the state
agency consultant. The physical residual functional capacity assessment completed by
consultant Dr. Tanna in early 2008 noted that Gibbens could perform unskilled light work that
did not require the use of his left arm, only occasional overhead reaching with his right arm, and
that allowed for use of a cane during prolonged ambulation.
The ALJ acknowledged that Dr. Tanna’s assessment was made five years prior to the
hearing, but gave it significant weight because there was “little evidence that [Gibbens’s]
objective medical condition has changed much in recent years.” This is not to say that Gibbens
experienced no changes to his health in the intervening time. As acknowledged in the decision,
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Gibbens experienced both increasing pain and periods of respite. He went to the emergency
room three times for neck pain and once for numbness in his legs. He saw multiple specialists
and underwent a cervical fusion. However, Gibbens also gained control of his diabetes and lost
weight, experienced a decrease in back pain from a nine on a scale of ten to five or six, and
improved his gait significantly with the help of a physical therapist.
On this record, reasonable minds could conclude that the evidence supports Dr. Tanna’s
opinion regarding Gibbens’s physical limitations over Dr. Szloboda’s more restrictive functional
limitations. The record as reviewed by Dr. Tanna in January 2008 included the immediately
preceding physical examination performed by medical consultant Dr. Abel in December 2007,
and conforms to that opinion. Dr. Abel observed full grip and pincher grasp in Gibbens’s right
hand with only mild digital dexterity loss, normal gait without assistance, and no difficulty
heel-toe walking, balancing, squatting, or rising. Dr. Abel further indicated that, although
Gibbens had suffered back pain as a teenager and had never been able to use his left arm or
shoulder, he was generally “independent with his activities of daily living,” and could drive,
prepare simple meals, perform some chores around the house, walk two blocks, and climb a
flight of stairs. The opinions of two state psychological consultants prepared in 2006 and 2007
reached similar conclusions based on Gibbens’s own reports of his abilities.
State agency medical consultants are “highly qualified physicians and psychologists who
are experts in the evaluation of the medical issues in disability claims under the [Social Security]
Act”; thus, in some cases, “an ALJ may assign greater weight to a state agency consultant’s
opinion than to that of a treating . . . source.” Miller v. Comm’r of Soc. Sec., 811 F.3d 825, 834
(6th Cir. 2016) (first alteration in original) (internal quotation marks omitted). We are more
likely to uphold a decision to this effect when the consultant conducts an in-person examination
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rather than formulating an opinion based solely on a review of the medical record. See 20 C.F.R.
§ 404.1527(c)(1). Where a non-examining source “did not review a complete case record, ‘we
require some indication that the ALJ at least considered these facts before giving greater
weight’” to that opinion. Miller, 811 F.3d at 834 (quoting Blakley v. Comm’r of Soc. Sec.,
581 F.3d 399, 409 (6th Cir. 2009)).
The ALJ has satisfied this requirement. Though, as noted in the decision, Dr. Tanna’s
assessment was completed in 2008, the ALJ’s own analysis clearly spanned the entire record—
through the final degenerative changes to Gibbens’s spine that culminated in a cervical
discectomy and fusion, the last medical event included in the record. The decision was informed
by both Dr. Tanna’s assessment and the findings of Dr. Abel’s complete physical examination,
as well as medical evidence later entered into the record, including Dr. Johnson’s interpretation
of the EMG, the initial neurosurgery evaluation by Dr. Coccia and his notes following the 2013
surgery, and the observations of Gibbens’s physical therapy team.
Finally, insofar as Dr. Tanna’s assessment contradicts Dr. Szloboda’s conclusion that
Gibbens is eligible for Social Security benefits, Dr. Szloboda’s opinion is not controlling. While
“[a] doctor’s conclusion that a patient is disabled from all work may be considered,” it is not
“given special significance because it may invade the ultimate disability issue reserved to the
Commissioner.” Gentry, 741 F.3d at 727 (internal quotation marks omitted).
To the extent that Gibbens challenges the ALJ’s treatment of Dr. Szloboda’s medical
assessment rather than her conclusion that he is disabled, our review looks to whether the
findings of the Commissioner are supported by the record as a whole. Shelman v. Heckler, 821
F.2d 316, 320 (6th Cir. 1987). The ALJ’s consideration of the 20 C.F.R. § 404.1527(c)(2)
factors was sufficient to enable our review on appeal. We find that the ALJ’s weighing of Dr.
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Szloboda’s opinion—and his determination that it was not supported by medically accepted
diagnostic techniques or objective evidence—for the four distinct reasons articulated in the
decision, demonstrates that the ALJ considered the appropriate regulatory factors and is
supported by substantial evidence. See Key, 109 F.3d at 273. 3
B. Hypothetical Questions Posed To the Vocational Expert
In his second challenge to the decision, Gibbens contends that the ALJ did not provide
the vocational expert with complete hypothetical questions that accurately incorporated
limitations to Gibbens’s concentration, persistence, and pace. In response, the Commissioner
avers that the questions posed, and the decision’s conclusion on residual functional capacity for
sedentary work, were accurate and complete.
In addition to considering a claimant’s subjective complaints and the objective medical
evidence in the record, an ALJ may present hypothetical questions to a vocational expert “on the
basis of his own assessment if he reasonably deems the claimant’s testimony to be inaccurate.”
Jones v. Comm’r of Soc. Sec., 336 F.3d 469, 476 (6th Cir. 2003). The ALJ may rely on the
vocational expert’s testimony in response. See Longworth v. Comm’r Soc. Sec. Admin.,
402 F.3d
591, 596 (6th Cir. 2005) (citing 20 C.F.R. § 416.960(b)-(c)). In order to constitute substantial
evidence that the claimant can perform work available in the national economy, the ALJ’s
questions to the vocational expert must “accurately portray[] [the claimant’s] individual physical
and mental impairments.’” Howard v. Comm’r of Soc. Sec.,
276 F.3d 235, 238 (6th Cir. 2002)
(quoting Varley v. Sec’y of Health & Human Servs.,
820 F.2d 777, 779 (6th Cir. 1987)).
3
To the extent Gibbens argues that the ALJ erred because, in disregarding Dr. Szloboda’s opinion, he “failed to
account for pain at all,” that argument is unsupported by the record. The ALJ’s opinion demonstrates that he
considered Gibbens’s claims of pain, and concluded that although Gibbens’s “medically determinable impairments
could reasonably be expected to cause the alleged symptoms[,] . . . [Gibbens’s] statements concerning the intensity,
persistence and limiting effects of these symptoms are not entirely credible for the reasons explained in th[e]
decision.”
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Gibbens argues that the ALJ’s finding regarding his “moderate difficulties” with
concentration, persistence, or pace were not reflected in questions to the vocational expert. To
review, all three questions posed by the ALJ to the vocational expert contemplated a hypothetical
individual who “would be unable to maintain the attention or concentration necessary to perform
detailed or complex tasks” and was “unable to have more than occasional interaction with co-
workers, supervisors, or the public.” The third hypothetical added that the individual would need
unscheduled breaks of undetermined duration. The first two limitations correlated to the ALJ’s
finding that Gibbens had “moderate difficulties” with regard to concentration, persistence, or
pace, specifically that Gibbens “is functioning with borderline intellectual capabilities but has
demonstrated the capacity for unskilled work.”
Gibbens relies on Ealy v. Commissioner of Social Security, where we found that a
vocational expert’s testimony that Ealy could work in a number of unskilled jobs did not serve as
substantial evidence for the ALJ’s conclusion that Ealy could in fact perform such work because
the hypothetical question posed to the vocational expert inadequately described Ealy’s
limitations. 594 F.3d 504, 517 (6th Cir. 2010). A state psychological consultant limited Ealy’s
ability to focus on a simple, repetitive task to two-hour segments in an eight-hour workday where
speed was not critical.
Id. at 516. On the basis of this opinion, and other record evidence, the
ALJ determined that Ealy had “moderate difficulties” with concentration, persistence, or pace.
Id. at 510. Despite this finding, the ALJ’s hypothetical question asked the vocational expert, in
relevant part, to “assume this person [is] limited to simple, repetitive tasks and instructions in
non-public work settings.”
Id. at 516 (alteration in original) (internal quotation marks omitted).
On appeal, we distinguished Ealy’s claim from that in Smith v. Halter, 307 F.3d 377, 379
(6th Cir. 2001), in which we upheld the ALJ’s omission of a concentration limitation in a
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hypothetical question where the ALJ found that the weight of the medical evidence went against
the single physician who opined on that impairment. Ealy, 594 F.3d at 517. The ALJ
considering Ealy’s claim, however, accepted the assessment of the state psychological consultant
and then “streamlined” the hypothetical to omit “these speed- and pace-based restrictions
completely” such that the hypothetical question did not accurately portray Ealy’s mental
impairment.
Id. at 516-17.
We agree with Gibbens that Ealy is applicable to the current case, but read it to support
the Commissioner’s position. Contrary to Gibbens’s argument that the present hypothetical
question conveyed only a limitation to simple, routine, or unskilled work, which “does not
always equate with the difficulty of staying on task,” we read the ALJ’s proposed limitations
regarding (1) an inability to concentrate and short attention span, and (2) limited capacity for
interaction with others to directly reflect Gibbens’s moderate difficulties with concentration,
persistence, and pace based on his borderline intellectual capabilities.
The most conservative opinion regarding Gibbens’s mental limitations comes from
Michael Varney, allegedly a licensed clinical professional counselor who regularly met with
Gibbens.4 Varney completed a number of physical and psychological evaluations concluding
that Gibbens had extreme mental and physical limitations.
The ALJ was highly skeptical of Varney, given a number of discrepancies in his
background and opinion. While Varney called himself a “psychologist” in medical source
statements, he was elsewhere identified as “LLP, CAP,” and was referred to as a Licensed
Clinical Professional Counselor by Gibbens’s attorney. His psychological evaluations submitted
in 2009 and 2010 appeared to be identical, with the exception of one alteration to the final
4
Varney was also appointed Gibbens’s representative for at least a portion of the administrative proceedings and
filed the request for hearing on Gibbens’s behalf.
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paragraph. On this basis, the ALJ gave Varney’s opinion that Gibbens could not perform any
type of work “no weight whatsoever as there is no indication that Mr. Varney has any physical
medical training at all.” Gibbens does not challenge this conclusion on appeal.
The hypothetical questions posed to the vocational expert at the hearing fairly portrayed
Gibbens’s limitations as supported by objective evidence. See Ealy, 594 F.3d at 516. To the
extent that the questions did not reflect the limitations offered by Varney, which were unique to
the record in the extent to which they diminished Gibbens’s mental functioning, the ALJ found
his opinion to be not credible. Therefore, the ALJ was under no obligation to include Varney’s
limitations in his examination of the vocational expert. See Casey v. Sec. of Health and Human
Servs.,
987 F.2d 1230, 1235 (6th Cir. 1993) (noting it is “well established” that an ALJ need
“incorporate only those limitations accepted as credible by the finder of fact” into hypothetical
questions asked of a vocational expert).
Because the hypothetical questions adequately represented the ALJ’s assessment of
Gibbens’s limitations in concentration, persistence, and pace, we find that Gibbens’s second
claim lacks merit. See Longworth, 402 F.3d at 596 (disposing of a claim that the ALJ’s
hypothetical failed to take into account claimant’s shoulder problems when, in fact, the question
described an individual who could not reach overhead or complete a task requiring heavy
grasping because of shoulder limitations).
IV. CONCLUSION
We arrive at our conclusion in this close case not on the basis that we agree with the
Commissioner’s decision, but rather, because the decision is supported by substantial evidence
and was made pursuant to the prescribed legal standards—observation of the treating physician
rule and good reasons requirement, credibility findings grounded in objective evidence and
sufficient for subsequent review, and consideration of the entire record. Reasonable minds could
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agree that the record evidence supports the determination that Gibbens, though impaired, retains
the residual functional capacity to perform work. Therefore, we AFFIRM the judgment of the
district court in favor of the Commissioner of Social Security.
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