Cindy J. Fry v. Commissioner of Social Security

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 12a0414n.06
No. 11-1192
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
CINDY J. FRY,
Plaintiff-Appellant,
v.
COMMISSIONER OF SOCIAL SECURITY,
Defendant-Appellee.
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ON APPEAL FROM THE
UNITED STATES DISTRICT
COURT FOR THE WESTERN
DISTRICT OF MICHIGAN
Before: DAUGHTREY and ROGERS, Circuit Judges; ZOUHARY, District Judge.*
PER CURIAM. Plaintiff-Appellant Cindy J. Fry appeals a district court judgment affirming
the denial of her application for social security disability benefits. See 42 U.S.C. § 405(g). We have
jurisdiction under 28 U.S.C. § 1291 and now affirm.
In March 2009, an administrative law judge (“ALJ”) conducted a hearing on Fry’s claim for
disability benefits, finding she had the following severe impairments: degenerative joint disease of
the left knee, drug and alcohol addiction, and a major depressive disorder. Although these
impairments are not equivalent to any of the impairments listed in Appendix 1 of the social security
regulations, the ALJ found she could not perform her past work. However, relying on the testimony
of a vocational expert, the ALJ held Fry was not disabled because a significant number of light and
The Honorable Jack Zouhary, United States District Judge for the Northern District of Ohio,*
sitting by designation.

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sedentary jobs were available to her. The ALJ’s opinion became the final decision of the
Commissioner when the Appeals Council declined further review. See 20 C.F.R. § 404.955(b).
Fry filed a timely complaint seeking judicial review under Section 405(g). In January 2011,
the district court adopted the magistrate judge’s recommendation, affirming the Commissioner’s
decision to deny benefits. We review de novo the district court’s conclusion that the ALJ’s decision
is supported by substantial evidence. See Bass v. McMahon, 499 F.3d 506, 509 (6th Cir. 2007). As
this Court previously held:
When deciding under 42 U.S.C. § 405(g) whether substantial evidence supports the
ALJ’s decision, we do not try the case de novo, resolve conflicts in evidence, or
decide questions of credibility. Instead, we consider the ALJ’s decision
determinative if there is such relevant evidence as a reasonable mind might accept
as sufficient to support the ALJ’s conclusion. The substantial evidence standard is
less exacting than the preponderance of evidence standard. If the ALJ’s decision is
supported by substantial evidence, then reversal would not be warranted even if
substantial evidence would support the opposite conclusion.
Id. (citations and internal quotations omitted).
Fry does not dispute the ALJ’s finding that she retained the functional capacity to perform
the exertional demands of light and sedentary work. Instead, she argues the ALJ failed to give
adequate deference to the opinion of Dr. Laurence Domino, her treating psychiatrist who indicated
Fry’s non-exertional impairments prevented her from performing even simple, unskilled tasks
without supervision and other unspecified considerations. The opinion of a treating physician may
be afforded “controlling weight” if it is consistent with the evidence and supported by sufficient
clinical findings. Smith v. Comm’r of Soc. Sec., 482 F.3d 873, 877 (6th Cir. 2007). However, an
ALJ is not bound by a treating physician’s conclusory opinion that a claimant is unable to work,
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Bass, 499 F.3d at 511, and may even discount the physician’s opinion if there is substantial medical
evidence to the contrary. Smith, 482 F.3d at 877.
Here, the ALJ discounted Dr. Domino’s opinion because it was contradicted by objective
clinical findings in his treatment notes, as well as by other evidence in the record. See Warner v.
Comm’r of Soc. Sec., 375 F.3d 387, 391 (6th Cir. 2004); Walters v. Comm’r of Soc. Sec., 127 F.3d
525, 530 (6th Cir. 1997). The medical evidence in this case, as the ALJ correctly noted, reveals that
Fry’s impairments are well controlled with therapy and medication. Indeed, Dr. Domino himself
repeatedly “noted during the treatment period that [Fry] was stable on her medications with some
episodes of anxiety and depression.” Moreover, Dr. Domino’s opinion was inconsistent with other
evidence, including the consulting report of Dr. Dennis Beshara, who reviewed the medical record
in 2006 and determined Fry had the residual functional capacity to perform unskilled work. See
Hardaway v. Sec’y of Health & Human Servs., 823 F.2d 922, 927 (6th Cir. 1987) (discounting
treating physician’s opinion and finding there was substantial evidence supporting the denial of
benefits because “other consulting physicians” concluded the claimant was capable of working).
According to Fry, Dr. Beshara’s opinion was inadequate because it was based on a review
of the record before she began treatment with Dr. Domino. However, the ALJ properly considered
Dr. Beshara’s report as opinion evidence. See 20 C.F.R. § 404.1527(f)(2)(i). The ALJ also
considered Fry’s treatment from Dr. Domino, even though Dr. Domino’s treatment notes, as
previously discussed, were inconsistent with his opinion that Fry could not perform simple, unskilled
work without supervision.
Fry also argues that while her condition was periodically stable, that fact is insufficient to
rebut the evidence of disability. However, “disability” is defined as the “inability to engage in any
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substantial gainful activity by reason of any medically determinable physical or mental impairment
which can be expected to result in death or which has lasted or can be expected to last for a
continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A) (emphasis added).
Moreover, the determination of Fry’s residual functional capacity was based on the severity of her
“medical and mental impairments” -- a determination made when Fry had the burden of “proving
the extent of [her] impairments.” Her v. Comm’r of Soc. Sec., 203 F.3d 388, 391–92 (6th Cir. 1999).
Substantial evidence supports the ALJ’s finding that Fry did not meet her burden, given that she was
unable to perform simple, unskilled work.
We conclude the ALJ gave sufficient reasons for discounting the opinion of Fry’s treating
physician. See Bass, 499 F.3d at 511–12. Although Dr. Domino’s opinions were contradicted by
his own treatment notes, as well as by other record evidence, the ALJ did not completely ignore
them. Instead, the ALJ gave Dr. Domino’s opinions adequate deference by finding Fry had severe
impairments that precluded her past work and significantly limited the kind of work she could
perform. Id. at 512; Warner, 375 F.3d at 391–92. At that point, the burden shifted to the
Commissioner to establish by substantial evidence that a significant number of jobs exist in the
national economy that Fry could perform, her limitations notwithstanding. See Richardson v. Sec’y
of Health & Human Servs., 735 F.2d 962, 964 (6th Cir. 1984).
While the ALJ is not required to question a vocational expert on this issue, “a finding
supported by substantial evidence that a claimant has the vocational qualifications to perform
specific jobs” is required to meet the burden. O’Banner v. Sec’y of Health, Educ. & Welfare, 587
F.2d 321, 323 (6th Cir. 1978). This standard requires more than the ALJ’s intuition or conjecture
that a claimant can perform specific jobs in the national economy. See Richardson, 735 F.2d at 964.
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For this reason, ALJs routinely question vocational experts in an attempt to determine whether a
significant number of jobs exist that the claimant can perform, limitations notwithstanding. Such
was the case here, where a vocational expert testified that over 13,000 light and sedentary jobs
existed in Michigan’s lower peninsula that an individual with Fry’s residual functional capacity
could perform. This testimony satisfied the Commissioner’s burden of showing that a significant
number of jobs were available to Fry, even if she could not perform her past work. See Harmon v.
Apfel, 168 F.3d 289, 291–92 (6th Cir. 1999).
Accordingly, substantial evidence in the record supports the ALJ’s decision to accord less
than controlling weight to Dr. Domino’s opinion, as well as the Commissioner’s determination that
Fry is not entitled to disability benefits. The record contains no evidence supporting the limitations
expressed by Dr. Domino and, to the extent Fry’s impairments limit her ability to perform work
activities, such limitations are adequately accounted for in the ALJ’s determination. The judgment
is AFFIRMED.
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