NOT RECOMMENDED FOR FULL-TEXT PUBLICATION File Name: 05a0911n.06 Filed: November 18, 2005 No. 04-2065 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT RONALD J. NIEMASZ, Plaintiff-Appellant,

v. JO ANNE B. BARNHART, COMMISSIONER OF SOCIAL SECURITY, Defendant-Appellee. ) ) ) ) ) ) ) ) ) ) ) ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN

Before: MERRITT, MOORE, and SUTTON, Circuit Judges. SUTTON, Circuit Judge. Ronald Niemasz seeks re view of the district court’s determination that an administrative law judge (ALJ) permissibly denied his application for disability benefits under the Social Security Act. Because the ALJ used the proper standard to evaluate Niemasz’s claim and because substantial evidence supports the ALJ’s finding that Niemasz’s condition has improved to the point where he no longer has a compensable disability, we affirm.

I. Born in 1960, Ronald Niemasz worked as a foreman for 17 years before injuring his back in November 1996 while lifting a heavy object at wo rk. After the injury, his treating physician, Dr.No. 04-2065 Niemasz v. Commissioner

- 2 - Easton, diagnosed severe degenerative disc diseas e and central disc protrusions, cond itions that cause chronic lower back pain. Conservative treatment of his injury (physical therapy and pain medication) failed to provide relief, and Dr. Easton soon diagnosed more back abnormalities, including a herniated disc. Dr. Easton eventu ally recommended, and in December 1997 Niemasz underwent, thoracic spine surgery with discectomy (which removes a herniated disc to relieve pressure on surrounding nerve roots) and fusion (whi ch stops the motion at a vertebral segment to decrease pain generated by the joint). At an examination two weeks after the operation, Dr. Easton noted that Niemasz’s “x-rays today look good” and that he “is feeling well” despite reporting “that he is having persistence of some like symptoms.” JA 187. About eight w eeks after surgery, Dr. Easton again noted Niemasz “is doing well” but that “[h]e still has some persistence of his symptoms,” which Dr. Easton considered “normal for his situation.” Id

. Niemasz continued to complain of pain to Dr. Easton and other specialists, although x-rays demonstrated that his back was fused and hea ling properly. In November 1998, Dr. Friedman, a neurological surgeon, interpreted Niemasz’s test results as “suggestive of some spinal cord dysfunction.” JA 259. In January 1999, Dr. Easton concluded that Niemasz had a “permanently disability.” JA 281. In reaching this conclusion, he stated that Niemasz was “permanently impaired from doing functions at work and home” and that he“has to have the ability to sit/stand during any point in time during the day and [ ] cannot lift more than five pounds,” “cannot do any lifting, twisting, [or] bending,” and “needs unrestricted rest.” Id . At roughly this same time (DecemberNo. 04-2065 Niemasz v. Commissioner

- 3 - 1998), a government doctor concluded that Niemasz could perform light work with some limits. On October 6, 1998, Niemasz filed an applicati on for disability insurance benefits based on pain and muscle spasms in his lower back and legs . After the Social Security Administration denied the application, Niemasz sought a hearing. After th e hearing, the ALJ grante d Niemasz’s application for benefits for a closed period of time—beginning on the date he injured his back at work and ending on January 26, 1998—and denied his request fo r benefits after that date. The Appeals Council affirmed the ALJ’s finding of disability for the closed period but found insufficient his explanation for denying Niemasz’s benefits afterw ards. The Council vacated that portion of the opinion and remanded the case for a new hearing. At the second hearing, Niemasz told the ALJ that his symptoms have persisted since his surgery and that his pain has worsened. Niem asz also presented several additional pieces of evidence about his condition. In a letter dated April 26, 2001, Dr. Easton noted that Niemasz continued to have “symptoms of numbness in his le gs and pain in his back and buttocks.” JA 289. An MRI performed in December 2000 revealed a ne w disc herniation. Dr. Easton also noted that the most recent MRI revealed three herniations, and commented that “[t]his patient may require more surgery in the future.” JA 289. He rep eated his earlier opinion that Niemasz “is permanently disabled,” “cannot do any lifting over 5 lbs., no tw isting, bending, or pushing” and “can sit and stand as tolerated with unrestricted rest.” Id

. Accepting Niemasz’s treatment requirements and allegations of pain, a vocational expert testified that Niemasz would be unable to perform any jobs in the national economy. When the ALJNo. 04-2065 Niemasz v. Commissioner

- 4 - posed a variation on this question to the same vocational expert—namely, a hypothetical person of the same age, with the same education and work experience as Niemasz, who could perform routine tasks in a sedentary job that required him to lif t no more than five pounds, did not require twisting or bending and afforded him the option of si tting, standing and changi ng positions at will—the expert identified a number of jobs available to someone under these restrictions. At the end of the second hearing, the ALJ again found that Niemasz was not entitled to disability benefits after January 26, 1998. He found Niemasz’s residual functional capacity for sedentary work consisted of “no lifting over 5 pounds, a sit/stand option, no twisting or bending and only simple and routine tasks.” JA 19. Based on this assessment, the ALJ found that Niemasz could perform a significant number of j obs in the national economy, incl uding “clerical work,” working as a “cashier in a self-serve gas station,” and “inspection and sorting” work. JA 20. The Appeals Council denied Niemasz’s request for review. Niemasz sought review in the district court, where a magistrate judge recommended that the court grant summary judgment in favor of the Commissioner. The district court accepted the magistrate’s recommendation and affirmed the ALJ’s decision.

II. We give fresh review to the distri ct court’s summary judgment decision. Walker v. Sec’y of HHS , 980 F.2d 1066, 1069 (6th Cir. 1992). Because th e Commissioner adopted the ALJ’s decision as the Commissioner’s own, it is the ALJ’s decision that we review, Wilson v. Comm’r of Soc. Sec. ,No. 04-2065 Niemasz v. Commissioner

- 5 - 378 F.3d 541, 543–44 (6th Cir. 2004), and we will uphold that decision when substantial evidence supports it, 42 U.S.C. § 405(g); see Warner v. Comm’r of Soc. Sec ., 375 F.3d 387, 390 (6th Cir. 2004). On appeal, Niemasz argues (1) that the evidence establishes that he was disabled after the closed period and (2) that the ALJ failed to appl y the required “medical improvement” standard in evaluating his claim.

A With respect to the first argument, Niemasz c ontends that the ALJ failed to account for his complaints of pain and the opinions of his trea ting physician (that he was “permanently disabled” and required “unrestricted rest”). Attempting to bol ster these contentions, he points out that the ALJ “cites no documentary, testimonial or other medical opinion or evidence[] to discount Plaintiff’s complaints or his treating physician’s conclusions.” Niemasz Br. at 14. The ALJ, however, cited medical examinations indicating that Niemasz had not experienced total motor loss, muscle weakness or atrophy, or loss of reflexes. These materials constitute objective data that an ALJ may use to assess subjective complaints of pain. See 20 C.F.R. § 404.1529(c)(2). Although Niemasz testified that he was severely restricted in his daily activities, he acknowledged that he could walk short distances and stand for limited pe riods of time. And in a questionnaire Niemasz filled out on November 24, 1998, he noted that he could perform some chores at home, including doing the “dishes” and “s it[ting] and fold[ing] cl othes.” JA 118. All ofNo. 04-2065 Niemasz v. Commissioner

- 6 - this amounts to sufficient evidence to support the ALJ’s finding that Niemasz can perform sedentary work that involves lifting very light objects, allows him discretion to sit or stand and allows him to avoid twisting or bending his back. As for Dr. Easton’s opinions, we (like the ALJ) are not sure what to make of his conclusion that Niemasz needed “unrestricted rest.” The ALJ noted that Dr. Easton provided “no explanation” for this assessment, ALJ Op. at 3, and we agree with the ALJ that such a conclusory statement cannot by itself support a finding of di sability. Taken literally, this conclusion is in tension with Dr. Easton’s assessment that Niemasz can do some lif ting (just not over five pounds) and can sit and stand (so long as he does not twis t or bend). To the extent th e phrase means something less than absolute rest, Niemasz fails to explain why the re striction would not be c overed by the option to sit or stand that the ALJ included in his findings re garding Niemasz’s residual functional capacity. As we are not aware of a single fede ral or state case that refers to, much less accepts, a limitation of “unrestricted rest,” the ALJ was not required to accept Dr. Easton’s conclusory statement when it lacked elaboration and connection to a specific aspect of Niemasz’s condition. See Wilson , 378 F.3d at 544 (a treating physician’s opinion receives controlling weight only when it is “well-supported by medically acceptable clinical and laboratory diagnos tic techniques” and is “not inconsistent with the other substantial evidence”) (quoting 20 C.F.R. § 404.1527(d)(2)). Also without merit is the applicant’s reliance on Dr. Easton’s opinion of “permanent disability.” A treating physician’s disability c onclusion cannot bind the Commissioner, who retains authority to decide the ultimate issue of disability. See 20 C.F.R. § 404.1527(e)(1). Under theNo. 04-2065 Niemasz v. Commissioner

- 7 - Commissioner’s regulations, disability is defined as “the inability to do any substantial gainful activity by reason of any medically determinable physical or mental impairment which . . . has lasted or can be expected to last for a continuous period of not less than 12 months.” 20 C.F.R. § 404.1505(a). In Niemasz’s case, the ALJ explained, “the medical evidence does not indicate that [he] is precluded from all work activity.” ALJ Op. at 4. Because the vo cational expert listed a number of jobs that Niemasz could perform under all of the other limits that his treating physician described (aside from truly “unrestricted rest”), substantial evidence supports the ALJ’s finding that he is not “disabled” under the statutory definition of that term. See 20 C.F.R. § 404.1505 (a disabled person “must have a severe impairment(s) that make s [him or her] unable to do [his or her] past relevant work . . . or any other substantial gainful work that exists in the national economy.”).

B. In advancing his second argument, Niemasz correctly states the ground rules for assessing a closed-benefits claim. Once an ALJ finds a claimant disabled, he must find a medical improvement in the claimant’s condition to end his benefits, a finding that requires “substantial evidence” of a “medical improvement ” and proof that he is “now able to engage in substantial gainful activity.” 42 U.S.C. § 423(f)(1). In criticizing the ALJ’s treatment of the closed -benefits claim, Niemasz contends that the ALJ did not apply this standard because he never “mentions that he is applying” it. Niemasz Br. at 22. But even though the ALJ did not mention the standard by name, he did apply the comparisonNo. 04-2065 Niemasz v. Commissioner

- 8 - that the standard requires. In his first decisi on, the ALJ found Niemasz disabled from the date of his injury at work until January 26, 1998. In his second deci sion, he referred to Niemasz’s conditions during the period of disability by discu ssing the moderate success of the surgery and the fact that it altered the conditions that caused his previous disability. Niemasz next argues that even if the ALJ attempted to apply the medical-improvement standard, he did so improperly because “it is clear [Niemasz] has basically the same symptoms [after January 26 as he had before that date]; but objectively, more disc herniations.” Id . at 27. While that may be true, it does not alter the reality that we must affirm the ALJ’s d ecision when substantial evidence supports it, even if the evidence could also support another conclusion. Relying on record evidence, the ALJ showed that Niemasz’s surgery alleviated several components of Niemasz’s condition that had caused the ALJ pr eviously to find him disabled, an analysis that comports with the medical-improvement inquiry. The ALJ also c onsidered Niemasz’s conditions that arose after the surgery and showed that they did not render him disabled. Niemasz’s characterization of his improvement as a temporary remission also fails to compel a reversal of the ALJ’s decision. When there is a respite in a claimant’s impairment, it is true, the ALJ must ensure that the improvement is perman ent before finding that a claimant is no longer disabled. See 20 C.F.R. § 404.1594(c)(3)(iv) (factors to cons ider include “the longitudinal history of the impairments, including the occurrence of prior remission, and prospects for future worsenings”). Back injuries, however, are notgenerally subject to temporary remissions. Cf . Social Security Administration, Program Operations Manual System § DI 28010.115(B)(2), available atNo. 04-2065 Niemasz v. Commissioner

- 9 - http://policy.ssa.gov/poms.nsf/aboutpom s (examples of impairments subject to temporary remissions include: multiple sclerosis, rheumatoid arthritis , many mental impairments, epilepsy, and asthma). Niemasz also failed to present evidence of any te mporary remissions in his condition either before or after his surgery. Under these circumstances, substantial evidence supports the ALJ’s decision to treat Niemasz’s improvement as more than a temporary remission.

III. For these reasons, we affirm.