NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION F ile Nam e: 12a1309n.06
No. 11-5633
UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT

BRAD H . DUNL AP, J R., Plaintiff-Appellant,

v. COMMI SSI ONER OF SOCI AL SECURI TY, Def endant- Appellee

. ) ) ) ) ) ) ) ) ) ) ON APPEAL FROM THE UNI TED STATES DI STRI CT COU RT FOR THE EASTERN DI STRI CT OF TEN NESSEE

Be fore : DAUGHT REY and CL AY, Circuit J udg es; CL EL AND, District Judge

. *

MARTHA CRAI G D A U G H T RE Y , Ci r c u it Judg e. Plaintiff Br ad Dunlap appea ls the district
court’s judgme nt aff

irming the denial of Social Security disability benef its by the Commi ssioner of Social Security

. Dunlap’s application for benef its in 2006 had b een denied administratively both initially and on rec onsideration, prompting Dunlap to reque st a hear ing befor e an administrative law judge

. At the hear ing in October 2007, Dunlap testified that he had become unable to work in 2005 when a pre- exis ting injury flare d up, ca u s ing severe pain i n his lower back that radia ted down his leg

. I n a written decision rende red on J anuar y 16, 2008, the administrative law judge found that Dunlap was not disabled for purposes of the Social Security Act beca use, despite his impairments, he could pe rfor

m his past releva

nt work.

T h e Hon. Robert H. Cleland, United Sates District J udg e for the Easter n Di s t ri ct o f * Michig an, sitting by

desig nation.Dunlap v. Commissioner

No. 11-5633 Dunlap appea led the administrative law judge ’s decision to the App ea l s C o uncil, but the Council denied his petition for review, and the admini strative law judge ’s ruli ng beca me t he final decision of the Commi ssi o n er . Du n l ap then filed a civil action in district court, seeking judicial revie w of that decision. Ba sed on the administrative rec ord, a mag istrate judge rec ommended that the district court uphold the denial of relief , and the district court did so in a written opinion adopting the mag istrate judge ’s repor t and enter ing final judgme nt in the Commi ssioner’s favor

. Dunlap now
appea ls that decision in this court, contending , as he did in the district court, that the administrative law judge relied on the opin i o n s of two non-treating phy sicians who revie wed Dunlap’s medical

rec ords, but then failed to “set forth g ood rea sons to reje ct the trea ting phy sician’s rep o rt s and opinions,” as re quired by

the Social Secur ity

Administration’s “trea ting sourc e” r ule.

That rule require s an administrative law judge , in assessing medical evidenc e in a disability

case , to g ive g rea ter weig ht to t h e o p i n i o ns of a trea ting phy sician than to those of non-treating phy sicians. See Blakley v. Comm’r of Soc. Sec. , 581 F.3d 399, 406 (6t h C ir. 2009). I ndeed, a
trea ting phy sician ’s opinion is entitled to controlling weig ht if it “is well-supporte d by medically

acc eptable clinical an d l abora tory diag nostic techniques and is not inconsistent with the other substantial evidenc e in [t he] case rec ord.” 20 C.F.R. § 404.1527(c) (2); see Cole. v. Astrue , 661 F.3d 931, 937 (6th Cir. 2011). Moreove r, if the administrative law judge does not g ive a trea ting source ’s opinion controlling we i gh t , t h e judge is require d by reg ulation to balanc e the following fac tors to deter mine the appropr iate weig ht to g ive it: “the leng th of the trea tment re l at i o n s h i p and the fre quency of examination, the nature and extent of the trea tment rela tionship, supportability of the

o p i n i o n , consistency of the opinion with the rec ord as a whole, and specia liz ation of the trea tingDunlap v. Commissioner

No. 11-5633

source .” W

ilson v. Comm’r of Soc. Sec. , 378 F.3d 541, 544 (6th Cir

. 2004) (citing 20 C.F.R. § 404.1527(d)( 2)). “Eve n if the trea ting phy sician’s opinion is not g iven controlling weig ht, ‘there

rema ins a presumption, albeit a rebuttable one, that the opinion of a trea ting phy sician is entitled to
g rea t defe renc e.’” Hensley v. Astrue , 573 F.3d 263, 266 (6th Cir. 2009) (quoting Rogers v. Comm’r of Soc. Sec

. , 486 F.3d 234, 242 ( 6th Cir. 2007)). Fa ilure to a ssign a specific weig ht to the tr eating phy sician’s a ssessment “alone constitutes error .” Cole , 661 F.3d a t 938.

The administrative law judge ’s decision as to how much weig ht to acc ord a medical opinion
must also be acc ompanied by rea sons that are “supported by the evidenc e in t h e case rec ord, and [t hat are ] sufficie ntly specific to make clea r to any subsequent revie wer s the weig ht the adjudicator
g ave to the trea ting source ’s medical opinion and the rea sons for that weig ht.” W ilson , 378 F.3d at 544 (quoting Soc. Sec. Rul. 96-2p, 1996 WL 374188, at *5 (Jul y 2, 1996)). This proce dural “g ood

rea sons” rule serve s both to ensure adequa cy of revie w and to g ive the claimant a better understanding of the dispositi on of his case . See Rogers , 486 F.3d at 2 4 2

. T h ese proce dural require ments are “not simply a formality ” and are intended “to safe g uard the claimant’s proce dural rig hts.” Cole , 66 1 F. 3 d at 9 3 7. As a result, we will rema nd “‘w hen we encounte r opinions from [admini strative law judge s] that do not compre hensively set forth the rea sons for the weig ht assig ned
to a trea ting phy sician’s opinion.’” W ilson , 378 F.3d at 545 (quoting Halloran v. Barnhart , 362 F.3d 28, 33 (2d Cir. 2004)).

The dispute in this case conce rns what Dunlap char acte rizes as “medica l opinions” from his primary car e phy sician, Eric Redmon, M.D. There are two. The first is a one-se ntence note writtenDunlap v. Commissioner

No. 11-5633 in Ma y 2007: “ I n my medical opinion, Mr. Dunlap has sever e low back pain and due to his pain is unable to work.” The second is a more compre hensive repor t, completed in November 2007, which reiter ated Dr. Redmon’s p r e v io u s f in d in g s a t le ng th and conclude d: “Dunlap has a medical condition,

co n fi rm ed by objective measure ment of nerve function, that would rea sonably be expected t o produce sever e pain. Mr. Dunlap’s sever e pain has also been consistent with clinical observa tions

over an extended period of time.” After setting out the medical evidenc e in detail, the administrative law judge reje cted Dr. Redmon’s May 2007 opinion, f ound that Dunlap’s complaints of pain wer e
not severe enoug h to preve nt employ ment, and conclude d that he was there fore ineligible for disability benef its.

The administrative law judge rec o gn i z ed that Dunlap had a “seve re combination of impairments,” including hi s “bac k d i sorder ” and pain s temming from that disorder. I n particula r, the administrative law judge found that the trea ting phy sician' s repor

ts indicated that Dunlap was sufferi n g fr o m chronic back pain and mental impairments. To rea ch this conclusion, the administrative law judge re v i ewed Dunlap' s trea tment history and found that diag nostic testing

reve aled only a minor disc bulge , some disc deg ener ation, and "le ft tibial nerve A-wa ve chang es that

wer e non-loca liz ed and normal," all of which neede d clinical corr oboration. Dr. Redmon' s rec ords further showed that Dunlap did not suffe r from spasms and could walk normally , and they reve aled
"no fra cture s, destructive lesions, or acute finding s." Anot h er phy sician, in consultation with Dr. Redmon, found that a CT scan showed only minimal damag e to Dunlap' s spine. The rec ords further indicated that in J anuar

y 2007, Dunlap was abl e to trave l and that, with his course of pain medications, "the pain was tolerable ." Finally , based on the evidenc e prese nted by the trea tingDunlap v. Commissioner

No. 11-5633 phy sician, the administrative law judge found that Dunlap' s testimony with respe ct to the "intensity , persistenc e and limiting e ffe cts" of the sy mptoms was not entirely

cre dible.

I n addit ion to the evidenc e prese nted from the trea ting phy sician, the administrative l aw judge considere d evidenc e from other, non-treating phy sicians, g iving it "g rea t weig ht." One item

was a repor

t submitt ed in 2006 by a p h y s ician in the Tenne ssee Disability Deter mination Service concluding that althoug h Dunlap had some mental and phy sical limit ations, "the y d[i d] not signific antly erode his occupational base." I n 2008, a second disability service phy sician reiter ated these finding s and repor ted that Dunlap was able to work for approximat el y s ix hours of an eig ht-hour wor

k day and ca rry loads up to 50 pounds on occa sion.
Weighing this evidence , the administrative law judg e explained:

I t is well known that pain i s a subj ective sy mptom that is no t m ea s u ra b l e, and it is rec og nized that there are many disorders in which the common sy mptom is constant, unremitting pain which i s n o t responsive to thera peutic measure s. Pain can be an important fac tor in causing functional loss. Howeve r, it can constitute disability for Social Security purposes only if it is not reme diable, if it is of such deg ree as t o prec lude an individual from eng ag ing in substantial g ainful activity , an d if it is associate d with rele vant abnorma l findings

. T h ese fac tors are not of a signific ant d eg ree as evidenc ed by this claimant’s rec ords. I n this case , the medical ev i d en ce does not doc ument a continuing impair ment of inca

pacitating proportions, i.e., one which would produce pain of such inte n s i t y t h at the ordinary phy sical activity to perf orm basic wor

k-re lated func tions would be im possible or contraindicated for a continuous period of twelve months or more. The [undersigne d] does not imply that the claimant is sy

mptom fre e, but a revie w of the evidenc e in this case persua des the undersig ned that the claimant’s complaints of pain and incapa citation are n o t c r e d ible when viewed in light of the medical finding s. The claimant wa s n ever ref err ed for pain manag ement.Dunlap v. Commissioner

No. 11-5633 On appea l, Dunlap contends that the administrative law judge ’s decision ignor ed or, at least, failed to g ive proper wei g ht to the medical opinions of his trea ting phy sician. I n response , the Commi ssioner arg ues – corr ectly , we conclude – that the May 2007 statement by Dr. Redmon does
not constitute a medical opinion, citing 20 C.F.R. § 404.1527(a) (2), which define s a medical opinion

as one “that ref

lects[s] ju d g me n ts about the nature and sever ity of y our impairment(s), including y our
sy mptoms, diag nosis and prog nosis, what y ou can still do despite impairment(s), and y our phy sical

or mental restric tions.” I ndeed, the reg ulations specific ally exclude from considera tion opinions on

cer tain issues, such as conclusory statements that a claimant is disable d or unable to w ork. See 20
C.F.R. § 404.1527(d). Thus, the administrative law judge corr ectly ruled that t h e conclusion expressed by Dr. Redmon in his single -sentenc e note of May 2007 was one proper ly rese rved to the Commi ssioner.

L ikewise, the Commi ssioner contends that the November 2007 repor t cannot constitute a medical opinion, beca

use it consists primarily of a restate ment, often verbatim, of the underlying evidenc e contained in D unlap’s medical rec ords – evidenc e that the administrative law judge fully considere d and set out in his decision. Henc e, Dunlap’s complaint that the administrative law judge did not specific ally ref

er to the November 2007 repor t in his J anuar

y 2008 order is beside the point,
g iven that the judge fully considere d the underly ing evidenc e in making his deter mination, including the information that wa s reiter ated in the Nove mber 2007 re port.

But, even if we wer e to hold that the two documents in question constituted medical opinions by Dunlap’s trea ting phy sician, such that the administrative law judge was require d to g ive rea sonsDunlap v. Commissioner

No. 11-5633 for reje cting Dr. Redmon’s opinions and cre diting those of the non-treating phy sicians instead, it is clea r from the quoted portion of the judge ’s order that an explanation for his reje ction appea rs on the

rec ord. As a result, the administrative law judge ’s decision was “suff iciently specific to make clea r
to any subsequent revie wer s” – in this case , us – “the weig ht the adjudicator g ave to t h e trea ting

source ’s medical opinion” – in this case , none – “and the rea sons for that weig ht” – in this case , as
set out above. The administrative law judge ’s failure to label his explanation as “g ood rea sons” for his determination was ha

rmless err or, at most.

We conclude that the finding s of the administrative law judge wer e supported by substantial evidenc e and that the district court did not err in upholding the C o m m i s s i o n er’s decision. We there fore AFF I RM the judgment of the district court.