NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION F ile Nam e: 12a0157n.06 No. 10-5784 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT
KATHY W. L eF EVERS, Plaintiff-Appellant,
v. COMMI SSI ONER OF SOCI AL SECURI TY, Def endant- Appellee
. ) ) ) ) ) ) ) ) ) ON APPEALFROM THE U NI TED STATES DI STRI CT COURT FOR THE EASTERN DI STRI CT OF KENTUCKY

Be fore : SUHRHEI

NRI CH, SUTTON and COOK , Circuit J udg es. SUTTON, Circuit J udg e. Kathy L eF ever s asks us to reve rse the district court’s conclusion that an administrative law judge (AL J ) permissibly denied her benef its under the So c ia l Se c u

r ity Act. Be cause substantial evidence supports the AL J ’s dec ision, we aff irm.
I
. After a car accide nt in September 2000, L eF ever s rec eived ch iroprac tic trea tment for pain in her neck and restrict ed movement in her left arm. I n Dec ember 2001, she beg an seeing Dr. Talmadg e Hay s, a primary car e phy sician who deter mined that L eF ever s suffe red from bulging discs i n her cervic al s pine and spinal cord compression. Dr. Hay s ref err ed L eF ever s to Dr. Henry Tutt,
a neurosur g eon who evaluated L eF ever s the same month and rec ommended surg ery to fuse some of L eF ever s’s ce rvica l vertebr ae. L eF ever s ref used surg ery .No. 10-5784

LeFev ers v. Comm’ r of Soc. Sec

. I n May 2005, L eF ever s saw sever al doctors for ev al u at i o n and trea tment. She visited Dr. Hay s in Aug ust and November o f 2 0 0 5 fo r medication ref ills. Dr. Hay s followed up in J anuar y 2006, conducting an assessment of L eF ever s’s ability to perf orm work-r elated activities. He found that L eF ever s: (1) could sit, stand or walk for one hour eac h out of an eig ht-hour workda y ; (2) could lift up to te n pounds occa sionally , but c ould ne ver lift more than that or car ry any weig ht at all; (3)
co u l d o ccasionally bend but could not squat, cra wl, climb, g rasp with either hand, or reach abov e shoulder level; and (4) was “af raid to undergo n ec [ es s ar y ] surg ery .” AR 179. I n May 2006, L eF ever s had a second car acc ident and ag ain came to Dr. Hay s complaining of pain in her neck, arm and bac k.
I n Au gu s t 2007, L eF ever s visited Dr. Ronald Dubin, an orthopedist who evaluated L eF ever s’s neck, back and MRI scans. He found sever al bulging discs in her cer vical verte brae and
one bulging disc in her lumbrosacr al spine. Dr. Dubin conclude d that L eF ever s’s lower back problems were the resul t of her rec ent accident, but that 50% of her cervic al s pine problems wer e
cause d by the acc ident nine y ear s ear lier. Dr. Dubin rec ommended spinal decompr ession for L eF ever s’s lumbrosacr al spine. L eF ever s underw ent the spinal decompr ession, and it relieve d much of the pain in her lower back. Dr. Dub i n n oted that L eF ever s had rea ched maxi mum medical improvement but would rema in impaired due to the second car acc id ent and would be unable to perf orm any work re quiring “re petitive bending , stooping, lifting or cr awling .”
I n May 2008, L eF ever s visited Dr. Br adley Davis. Dr. Dav i s found that L eF ever s had decr ease d rang e of motion in her ne ck and lowe r bac k but no joint deformities or decr ease d rang e - 2 -No. 10-5784

LeFev ers v. Comm’ r of Soc. Sec

. of motion in her upper extremiti es. Due to her decr ease d rang e of motion, Dr. Davis rec ommended that L eF ever s be mildly restric ted in “lifting , car rying, rea ching, pushing, pulling, climbing,
cra wling, and environmenta l [ex po s u re to] vibrations.” AR 346. He found no evidenc e that L eF ever s had a reduc ed toleranc e for “stooping , bending , sitti ng , standing , moving about, handling objects, or trave ling.” Id. Dr. Davis found that L eF ever s could stand, si t o r wa l k for eig ht hours during the work da

y and could ope rate foot controls continuously
. L eF ever s applied fo r d isability benef its in 2005, claiming she had been disabled since the 2000 acc ident. The ag ency denied benef its, and the AL J aff

irmed the denial. At the reque st of the Commi ssioner, the district court rema nded her case for further consideration. The AL J held a second hear ing, compiling more information about the second acc ident and additional trea tment notes from Drs. Ha y s, Dubin and Davis. The AL J ag ain found no disability , and the district cour t affir med.
I I
. L eF ever s pre s s es t wo claims on appea l: (1) the AL J reje cted the opinion of Dr. Hay s, her trea ting phy sician, without providing g ood rea sons for doing so; and (2) the AL J relied on a vocational e x pert’s te stimony based on f

lawed hy potheticals. Treating physician
. AL J s must “eva luate ever y medical o p i n i on [t hey ] rec eive” about a claimant and g ive “contr olling weig ht” to opinions from trea t i n g s o u rces “[i] f [t hey ] find that a treat i n g s o u rce ’s opinion
. . . is well-supporte d by medically acc eptable clinical and labora tory diag nostic techniques and is not inconsistent with the other substantial evidenc e in [t he claimant’s] - 3 -No. 10-5784

LeFev ers v. Comm’ r of Soc. Sec

. case rec ord.” 20 C.F.R. § 404.1527(d), (d)( 2). An AL J must provide “g ood rea sons” for not g iving a tre ating phy sician’s opinion controlling weig ht. Id
. I n this instance, the AL J considere d the trea tment notes from Dr. Hay s, but g ave them “little weig ht” beca

use the assessments wer e “over stated” and “not consis tent with the weig ht of the longitudinal medical trea tment showing only sporadic, conser vative trea tment.” AR 250. The AL J relied on sever al fe at u re s of L eF ever s’s trea tment history that wer e inconsistent with Dr. Hay s’s assessment: L eF ever s ref used t o underg o nece ssary surg ery out of fear and declined to have nonsurg ical decompr ession perf ormed on her cer

vical spine, even though the same proce dure alleviated the pain in her lower back; she claimed she could not aff ord the surg ery , an acc ount inconsistent with the $42,000 settlement she rec eived from the two acc idents; she opted for conser vative trea tment of the pain, which was incon s i s t ent with Dr. Hay s’s assessments of sever e, life-a ltering pain; she
rec eived only sporadic car e and t ried not to take her m edica tions unless absolutely nece ssary , and
even then often took half-dose s; and she was able to perf orm “esse ntially normal activities of daily living,” which i ncluded caring for her children and her 20-y ear old daug hter. The AL J found that this “ e v ide nce demonstrates mild chronic pain with modera te, infreque nt, episodes of exacer bation,” as opposed to the kind of de bilitating condition descr ibed by Dr. Ha y s. AR 249.
Al l o f t h i s amounts to “g ood rea sons” for ref using to g ive controlling weig ht to a trea ting phy sician’s opinion. The AL J permissibly opted not to g ive Dr. Hay s’s opinion controlling weig ht.

- 4 -No. 10-5784

LeFev ers v. Comm’ r of Soc. Sec

. V o ca t i o nal expe rt testimony
. The AL J also found L eF ever s was not entitled to benefi t s b ec ause the Commi ssioner identified many jobs in the national economy that L eF ever s coul d perf orm. AR 252. See 20 C.F.R. §§ 404.1560(c) , 404.1566. An AL J may rely on the opinions of
a vocational ex p er t p re m i sed on an acc urate portray al of the claimant’s impairments. Ealy v. Comm’r of Soc. Sec. , 594 F.3d 504, 512–13 (6th Cir. 2010). Had t h e AL J improperly discounted Dr. Hay s’s opinion, L eF ever s would have a serious argument here , as the hy pothetical premised on the Hay s opinion shows few available jobs. Yet beca use the AL J permissibly discounted the Hay s opinion, that require s L eF ever s to show that the vocational hy pothetical on which t h e ALJ relied did not ref

lect the assessments of two other opinions, those of Drs. Dubin and Davis, which the AL J
cre dited. AR 250. No reve rsible er ror oc curr ed.
The AL J asked the vocational e x pert:
Assume the Claimant would be capa ble of l i gh t ex er tion, would be not capa ble of doing any climbing of ra m p s o r ladder s or scaf folds, no balanc ing, no exposure to vibrating equipment or torso vibration—either one. Simpl e instructions, occa sional and casua l contac t with supervisors or co-w orker s, capa ble of m aking occa sional adjustments to work place or work routine settings, work schedule
. . . . The Claimant require s an object-f

ocused environment. Now with these limit ations and considering the Claimant’s ag e and education level would there be jobs in the reg ional or national economy such a pe rson might pe rfor m?
AR 430. The ex pert identified 6,400 positions in the s tate of Kentucky and 305,000 in the nation for a person fac ing these qualifica tions a nd limit ations. AR 431. The AL J followed up by asking :
L ight exertion, no climbing of ladder s, ropes, or scaf folds, no cra

wling, no more than occa sional climbing of ramps or stairs or stooping or bending or crouc hing, no sitti ng - 5 -No. 10-5784

LeFev ers v. Comm’ r of Soc. Sec

. or standing and eac h in excess of 3 0 minutes uninterrupted, no overhe ad motions wi t h t h e . . . non-dominant left upper extremity
. No more than fre quent rea ching, pushing, or pulling—and when I say re aching I mean rea ching in other direc tions other than of overhe ad—with a non-dominant left upper extremity
. . . . Wit h these additional limit ations, [ ] would this effe ct the answ er to the pr ior hy pothetical?
AR 431. The expert responde d that these limit ations would reduc e the number of available jobs by half, lea ving 3,200 jobs in the re g ion and 146,000 in the nation. AR 431.
As L eF ever s sees it, these hy potheticals omitted restric tions identified by t h e d o ct o rs on whom the AL J relied: (1) Dr. Dubin’s opinion that L eF ever s could not perf orm “re petitive” lifting and (2) Dr. Davis’s restric tion on more than occa sional rea ching
. As to the fi rs t point, the hy pothetical assumed L eF ever s could perf orm light work, define d to inc lude “lifting no more than 2 0 pounds at a time with frequent lifting or car rying of objects weig hing up to 10 pounds.” 20 C.F.R. § 404.1567(b) (empha sis a dded). Dr. Dubin is not an ag ency doctor, and nothing indicates h e wa s using the term “re petitive”—or not using the term “fr equent” —in any technica l sense. I n ordinary nomenclatur e, a prohibition on “re petiti v e” lifting does not prec lude a capa city for “fr equent” lifting, a s the district court held. No r ever sible inconsistency exis ts.
As to the second point, the rele vant hy pothetical assumes that L eF ever s ca n h andle jobs requiring “no more than fre quent rea ching .” L eF ever s complains that this assessment is inconsistent with an ag ency disability form filled out by Dr. Davis, in which he chec ks a box saying that she could eng ag e in “occa s i o n al[ ]” rea ching
. She is rig ht about the inconsistency but wrong to say it makes a differ ence . Dr. Davis issued a four- pag e repor t about his trea tment of L eF ever s an d h er
- 6 -No. 10-5784

LeFev ers v. Comm’ r of Soc. Sec

. medical condition, which conclude d that there was only a “mild restric tion in [L eF ever s’] toleranc e for
. . . rea ching .” AR 346. Any discrepa ncy betwee n the form and the repor t w as resolved by the AL J in his finding s conce rning L eF ever s’ residual functional capa city
. There , the AL J finds she can perf orm “no more than fre quent
. . . rea ch i n g. ” AR 2 4 5–46. L eF ever s has not challeng ed the validity of this finding (other than to say Dr. Hay s’s opinion should not have been discounted), and
acc ording ly cannot cre dibly co m p l ai n that it should not have been a premise of this hy pothetical prese nted to the vocational expert. No err or occ urre d.
I I I
. For these re asons, we a ffirm the de nial of bene fits.

- 7 -