Jimmy Ealy v. Commissioner of Social Security

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 10a0026p.06

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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X
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JIMMY DEARL EALY,
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Plaintiff-Appellant,
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No. 09-5451
v.
,
>
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Defendant-Appellee. -
COMMISSIONER OF SOCIAL SECURITY,
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Appeal from the United States District Court
for the Eastern District of Kentucky at London.
No. 08-00235—Danny C. Reeves, District Judge.
Submitted: January 12, 2010
Decided and Filed: February 5, 2010
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Before: MARTIN and WHITE, Circuit Judges; ZOUHARY, District Judge.

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COUNSEL
ON BRIEF: Julie Atkins, ATKINS LAW OFFICE, Harlan, Kentucky, for Appellant.
Robert E. Hodum, Jr., Holly A. Grimes, Brian C. Huberty, Mary Ann Sloan, Dennis R.
Williams, SOCIAL SECURITY ADMINISTRATION, OFFICE OF THE GENERAL
COUNSEL, Atlanta, Georgia, John S. Osborn III, ASSISTANT UNITED STATES
ATTORNEY, Lexington, Kentucky, for Appellee.
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OPINION
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HELENE N. WHITE, Circuit Judge. Plaintiff-Appellant Jimmy Ealy appeals
from the district court order affirming the decision of the Commissioner of Social
Security denying Ealy’s claim for disability insurance benefits under 42 U.S.C §§ 416(i),

*
The Honorable Jack Zouhary, United States District Judge for the Northern District of Ohio,
sitting by designation.

1
No. 09-5451 Ealy v. Comm’r of Soc. Sec. Page 2

423(d). We reverse the judgment of the district court with instructions to remand the
case to determine whether jobs exist consistent with Ealy’s mental limitations.

I. BACKGROUND

A. Factual Background

1. Medical Records – Physical

In January 2006, Ealy claimed disability for the period beginning December 2,
2005, based on seizures, heart trouble, sleep apnea, restless leg syndrome, trouble with
memory, high blood pressure, and gout. Ealy had worked as a spray line operator and
coiler when he had a stroke in October 2002. A.R. at 176, 184. He returned to work
with restrictions that he not climb, operate equipment, or be around heavy equipment.
Also, before December 2005, Ealy was diagnosed with obstructive sleep apnea and
restless leg syndrome and was prescribed medication for swelling in his right ankle.

On December 2, 2005, Ealy went to the hospital complaining of loss of
consciousness. While in the hospital, he had episodes of slurred speech and spells
during which he stared blankly and was unable to speak. A.R. at 270. He was
transferred to a different hospital to receive a higher level of care, eventually diagnosed
with “new-onset seizure” and “focal motor seizure,” and given antiepileptic medication.
A.R. at 271, 279. The discharge notes on the doctor’s report stated that Ealy was not to
work or drive for a month, at which point he could be reevaluated. A.R. at 280.

Ealy sought treatment from Dr. Gregory Wheatley, a neurologist, from January
through August of 2006. Ealy was instructed in January 2006 not to drive for six
months, not to swim or climb ladders, and to remain off work “because of the type of
work that he has described and [the need] to investigate other options.” A.R. at 357. By
February 2006, Dr. Wheatley noted that Ealy “relates no definite episodes of any
alterations in awareness” A.R. at 355. Dr. Wheatley also noted that Ealy “will need to
remain on anticonvulsants for the indefinite future. The main concern presently is the
choice of anticonvulsants.” Id. Dr. Wheatley saw Ealy again in March 2006 and noted
that Ealy had not had recurrent seizures. About Ealy’s job, Dr. Wheatley wrote, “[h]e
No. 09-5451 Ealy v. Comm’r of Soc. Sec. Page 3

has not been able to return to work as he does do a heavy, potentially hazardous job. He
will be under restriction from this for six months from his last seizure.” A.R. at 354.
When Ealy saw Dr. Wheatley in May 2006, the doctor noted that Ealy “relates no
convulsive events since I last saw him but he has had some brief episodes in which he
believes he may have some brief alteration in his awareness, or some symptoms
suggestive of partial seizure.” Dr. Wheatley increased Ealy’s dosage of Trileptal and
noted, “I am not sure if these lesser symptoms are related to any brief partial seizure
activity or not. He seems to have done fairly well otherwise. He does have the residual
deficits from his remote left hemorrhage. He remains off work and I think that he is
going to likely be chronically disabled from employment.” A.R. at 353. Ealy followed
up with Dr. Wheatley in August 2006. Ealy reported and his wife confirmed that he had
not had any seizures. A.R. at 545. Dr. Wheatley wrote that “Ealy has remained stable
from a neurologic standpoint. He is tolerating the Trileptal and his seizure control is
good.” A.R. at 545. Dr. Wheatley concluded that he did not need any other studies, that
Ealy would follow up with another doctor locally, and that he would be happy to see
Ealy if any future seizure problems arose.

Meanwhile, in February and May of 2006, Ealy had visited his treating
physician, Dr. Rhonda Sivley, complaining of (among other things) shortness of breath.
Dr. Sivley suspected deconditioning and noted in February that the “plan” was for Ealy
to increase his exercise and lose weight. A.R. at 371. In May, Sivley noted the need for
Ealy to exercise and lose weight, and also noted that he might benefit from a pulmonary
function test. A.R. at 376. In May, Ealy underwent a cardiolite stress test that yielded
“borderline” results “with a very minimally reversible apical defect” which may have
“represented a very small region of ischemia but the myocardium at risk would be felt
to be quite small.” A.R. at 393. Ealy exhibited “normal ventricular function” and
showed a “[m]ild exercise intolerance for the patient’s age, sex, and physical condition.”
A.R. at 392-93.

Dr. Sivley referred Ealy to Dr. Barry Michelson for evaluation of Ealy’s chest
pain and shortness of breath. A.R. at 474. In May 2006, Dr. Michelson recommended
No. 09-5451 Ealy v. Comm’r of Soc. Sec. Page 4

that Ealy undergo a cardiac catheterization in order to obtain a definitive diagnosis. A.R.
at 475. In June 2006, Ealy underwent a heart catheterization and stent placement. A.R.
at 441-42. Dr. Michelson noted “single-vessel coronary disease” and “successful
deployment of . . . stent.” A.R. at 442. Upon Ealy’s June 10th discharge, Dr. Michelson
indicated that he could return to work on June 12th, but that he should not lift greater
than ten pounds for a one-week period. A.R. at 444.

In July 2006, Ealy followed up with Dr. Michelson for his coronary artery
disease. According to Dr. Michelson’s notes, Ealy did not have chest pain, but he did
have “breathing problems with activity.” A.R. at 472. Dr. Michelson also noted that
Ealy “does complain of smothering, but is morbidly obese.” Id. Dr. Michelson
reviewed with Ealy the importance of regular exercise and weight reduction and planned
a follow-up visit in six months.

During his February 2007 visit to Dr. Michelson, Ealy reported increasing
shortness of breath with activity and a hot sensation in his upper chest and face. A.R.
at 527. Ealy again underwent a stress test, and in March 2007, Dr. Michelson conducted
a “left heart catheterization.” A.R. 512. Dr. Michelson noted “small vessel disease
distal posterior descending artery (left dominant system),” but “normal left ventricular
function,” and concluded “[b]ecause of the small vessel size, medical management has
been recommended. We will add a beta blocker to his therapeutic regimen.” A.R. at
513. Ealy was again instructed to avoid lifting more than ten pounds for a one-week
period.

Ealy followed up with Dr. Michelson in April 2007. Although Ealy did not have
chest pain, he did complain of smothering. A.R. at 525. Dr. Michelson noted that Ealy’s
“left ventricular function is normal by catheterization. I do not feel that this is the
etiology of his shortness of breath. I have therefore recommended, given his smoking
history, that [pulmonary function tests] be performed.” A.R. at 525. In the
“recommendations” portion of his report, Dr. Michelson wrote that he “did discuss with
[Ealy] the importance of weight reduction. I believe that this and regular exercise may
help his dyspnea [(shortness of breath)] as well.” A.R. at 526.
No. 09-5451 Ealy v. Comm’r of Soc. Sec. Page 5

In a May 2007 pulmonary function study, Ealy showed a moderate lung
restriction. A.R. at 544. In his May 2007 medical appointment, Ealy complained of
shortness of breath. The advanced registered nurse practitioner who treated Ealy
assessed hypertension, sleep apnea, and seizure disorder, and recommended additional
labs, including bloodwork, but did not indicate that Ealy had any physical or
work-related restrictions. A.R. at 534.

2. Non-Examiner Reviews

In March 2006, Stacy Justice, a medical consultant for the state agency, reviewed
the available medical evidence and completed a residual functional capacity (“RFC”)
assessment. Justice concluded that Ealy had no exertional limitations, but he could not
drive or operate dangerous machinery, or climb ladders, ropes, or scaffolds. A.R. at 338-
45. This RFC was completed before Ealy underwent his first stress test and
catheterization. In September 2006, Dr. Carlos Hernandez, also a state agency medical
consultant, reviewed the available medical evidence and affirmed Justice’s prior RFC.
Dr. Hernandez noted, “[n]ew [medical evidence of record] does not appear to change
initial RFC dated 3/30/06.” A.R. at 495. In the time period between the dates of the
Justice RFC and the Hernandez RFC, Dr. Wheatley had seen Ealy two additional times
and Dr. Michelson had performed the first heart catheterization and stent insertion.

3. Medical Records – Mental

The state agency referred Ealy to a psychologist, Jeanne M. Bennett, Psy.D., who
performed a consultative examination on March 11, 2006. Dr. Bennett observed that
Ealy’s attention and concentration were intact, his thoughts were organized in a logical
and goal-oriented manner, and his thought content was appropriate to mood and
circumstances. Dr. Bennett characterized Ealy’s recall for recent events as “spotty” and
found his global intellectual functioning to be in the borderline range. Dr. Bennett noted
that Ealy avoided eye contact and had a depressed affect. Ealy stated that he had “[a]
little depression,” and Dr. Bennett wrote that “[h]e appeared very depressed to the
examiner as tears roll silently down his cheeks during the assessment.” A.R. at 317.
Relating to stress, Dr. Bennett wrote, “[w]hen asked about stressors, he replied that he
No. 09-5451 Ealy v. Comm’r of Soc. Sec. Page 6

was stressed by his illness. He has also been experiencing grief and loss, even though
his son has been deceased for five years. He has coped with stress by taking walks and
watching birds.” A.R. at 318

Dr. Bennett’s diagnoses were “rule out vascular dementia” and “major depressive
disorder, single episode, moderate to severe.” Id. Dr. Bennett gave Ealy a global
assessment function (GAF) score of 45, indicating severe symptoms. Under “functional
capacities,” Dr. Bennett concluded that 1) Ealy’s ability to understand, remember, and
carry out instructions towards performance of simple repetitive tasks was not affected
by his impairments, 2) Ealy’s ability to tolerate stress and pressure of day-to-day
employment was markedly limited, 3) Ealy’s ability to sustain attention and
concentration for simple repetitive tasks was moderately limited, and 4) Ealy’s ability
to respond appropriately to supervisors, coworkers, and work pressures in a work setting
was moderately limited. A.R. 318-19. Dr. Bennett characterized Ealy’s prognosis for
improvement as “good with mental health intervention. In the absence of treatment, the
prognosis is guarded.” A.R. 319.

On March 29, 2006, a state agency psychological consultant, Stephen Scher,
Ph.D., reviewed the available medical record, including Dr. Bennett’s examination, and
completed a psychiatric review technique form and a mental residual functional capacity
(mental RFC) form. Dr. Scher criticized Bennett’s assessment as involving “inconsistent
interpretation of evidence.” A.R. at 322. Dr. Scher noted that “[Claimant] allegations
are credible but not to marked degree of severity for mental.” Id. Dr. Scher concluded
that Ealy retained the mental ability to 1) understand and remember simple instructions,
2) sustain attention to complete simple repetitive tasks for two-hour segments over an
eight-hour day where speed was not critical, 3) tolerate coworkers and supervisors in a
non-public setting, and 4) adapt to routine changes in a simple work setting.

On July 18, 2006, a second state agency psychological consultant, Edward
Stodola, Ph.D., reviewed the available medical evidence and affirmed Dr. Scher’s
psychiatric review technique form and mental RFC assessment. A.R. at 478.
No. 09-5451 Ealy v. Comm’r of Soc. Sec. Page 7

The state agency denied Ealy’s claim in October 2006 and denied his request to
reconsider the same month.

B. Administrative Hearing

The administrative law judge (“ALJ”) held a hearing on June 14, 2007, at which
Ealy and a vocational expert testified.

Ealy testified that he had problems with seizures, heart trouble, high blood
pressure, gout, heel spurs, breathing trouble, restless leg syndrome, and sleep apnea. He
testified that his seizures occur three to four times per week and that he had had one that
morning. Ealy mentioned that he had stents put into his heart in December 2005 and
said that he continues to smother, have chest pain, and have shortness of breath with
some regularity. Ealy testified that he could stand only two or three minutes before he
needed to sit or lie down. He testified that he takes numerous medications for his
medical problems, and often lays down because his medicine makes him tired or dizzy.
He stated that he does not drive. Ealy also testified that he had problems with learning,
reading, and spelling.

Ealy mentioned that his doctor encouraged him to exercise and that he could
walk the 200 to 300 feet to his father-in-law’s house. Regarding his daily activities, Ealy
testified that he could dress and groom himself, fold clothes, wash dishes, and fix cereal
or an apple to eat. He stated that he spent his time at home lying on a lounge chair and
that he accompanied his wife to the store and to church.

After Ealy testified, the ALJ described the following hypothetical to the
vocational expert:

Please assume, first, someone of Mr. Ealy’s age, education, and [] work
experience. And assume this person [is] limited to simple, repetitive
tasks and instructions in non-public work settings, where, based on
seizure disorder, they would be precluded from exposure to heights,
hazards, climbing, operating dangerous or moving machinery, and
driving. Also, based upon cardiopulmonary limitations or impairments,
assume they should be restricted from exposures to concentrated dust,
smoke, fumes, temperature [and] humidity extremes and the like.
No. 09-5451 Ealy v. Comm’r of Soc. Sec. Page 8

A.R. at 62-63. The vocational expert testified that manufacturing jobs could
accommodate the restrictions, including hand assemblers, small-parts-inspecting jobs,
hand-packing jobs, and related production workers.1 However, the expert agreed with
the ALJ that, if “the person is intolerant of routine work setting type stress such that they
would not be able to” work on an eight-hour-per-day, five-day-per-week basis, or
maintain a similar sustained schedule, that the person could not do any of those jobs.
A.R. at 64.

C. ALJ Decision

On September 4, 2007, the ALJ issued its decision concluding that Ealy was not
disabled. The ALJ followed the sequential five-step analysis explained in 20 C.F.R.
§ 404.1520. The ALJ found that Ealy’s seizure disorder, history of stroke, sleep apnea,
hypertension, obesity, and depression were severe impairments, and that they precluded
him from returning to his past occupations. A.R. at 13, 17. The ALJ further concluded,
however, that Ealy was capable of performing other work that exists in significant
numbers in the national economy, and thus he was not disabled for purposes of the
Social Security Act. A.R. at 18.

In reaching its decision, the ALJ determined that Ealy’s testimony concerning
the “intensity, persistence, and limiting effects” of the symptoms of his medical
impairments were “not entirely credible.” A.R. at 16-17. In particular, the ALJ found
Ealy’s claim of seizure activity three-to-four times a week to be not entirely credible
because the records of Ealy’s treating physician (Dr. Wheatley) did not indicate any
recent seizure activity. A.R. at 17. Concerning Ealy’s mental capacity, the ALJ agreed
with Dr. Scher in rejecting Dr. Bennett’s finding that Ealy would have marked limitation
in tolerating everyday work stress. The ALJ explained that Dr. Bennett’s conclusion
was neither supported by her own materials nor the record as a whole and noted that
Ealy had not received any mental health treatment nor complained of psychological

1
The vocational expert testified that regionally, there were 2,500 hand-assembler jobs, 2,500
small-parts-inspecting jobs, 3,200 hand-packing jobs, and about 6,000 jobs in related production work.
A.R. at 64.
No. 09-5451 Ealy v. Comm’r of Soc. Sec. Page 9

symptoms while pursuing any other form of medical care. A.R. at 17. The ALJ also
observed that Ealy demonstrated no abnormal social behaviors during the hearing and
was able to understand and follow the proceedings and all lines of questioning. A.R. at
14-15. However, the ALJ noted that Ealy “has moderate difficulties” with regard to
concentration, persistence, or pace. A.R. at 15.

The ALJ found that Ealy “has the residual functional capacity to perform a full
range of work at all exertional levels but with the following non-exertional limitations:
no heights, hazards, climbing, operating dangerous or moving machinery, driving, and
no exposure to dust, smoke, fumes or temperature/humidity extremes. He is limited to
simple, repetitive type jobs in a non-public work setting.” A.R. at 15. Recognizing that
Ealy’s non-exertional limitations compromised his ability to work at all exertional levels,
the ALJ relied on the testimony of the vocational expert that there are significant number
of jobs in the national economy for someone of Ealy’s age, education, work experience,
and residual functional capacity. A.R. at 18.

The Appeals Council denied Ealy’s request for review of the ALJ’s decision on
May 29, 2008.

D. District Court Proceedings

In July 2008, Ealy filed a civil action to review the Commissioner’s decision.
Ealy moved for summary judgment, arguing that the ALJ had incorrectly relied on the
physical assessments of Justice and Dr. Hernandez even though Justice and Dr.
Hernandez were not aware of later treatment records reflecting Ealy’s heart
catheterization, diagnosis of small vessel disease, and episodes of respiratory distress.
Ealy also argued that the ALJ’s hypothetical was flawed because it omitted 1) Dr.
Bennett’s findings about Ealy’s limitations concerning the stress of daily employment
and the ability to respond appropriately to supervisors and co-workers in a work setting,
and 2) Dr. Scher’s account of Ealy’s limitations as identified in the Section I “Summary
Conclusions” portion of the mental RFC assessment. The Commissioner moved for
summary judgment.
No. 09-5451 Ealy v. Comm’r of Soc. Sec. Page 10

Concluding that the ALJ “took into account all credible information and issued
a decision supported by substantial evidence,” the district court granted the
Commissioner’s motion and entered judgment affirming the agency decision. The
district court took issue with the premise of Ealy’s physical assessment argument,
explaining that the ALJ did not adopt the Hernandez/Justice assessment, but instead
found Ealy to have more restrictions than they did. The district court noted that the ALJ
considered evidence of Ealy’s heart procedures, shortness of breath, and chest pain, and
in response it unilaterally added additional restrictions to Ealy’s list of work limitations
concerning temperature and airborne contaminants.

The district court also noted that Ealy’s medical records after his heart
catheterization did not necessarily contradict Dr. Hernandez’s assessment. Ealy’s
treating physician, and the surgeon who performed Ealy’s 2006 catheterization, Dr.
Michelson, recommended that Ealy return to work less than a week after the
catheterization and only restricted Ealy from lifting more than ten pounds during the
week following the procedure. Dist. Ct. J. at 6. When Ealy later complained of
shortness of breath, Dr. Michelson indicated that he did not think that Ealy’s heart
function was the cause and discussed with Ealy the importance of weight reduction and
exercise. Id. Dr. Michelson did not recommend any physical limitations for Ealy,
workplace or otherwise.

Regarding Ealy’s argument concerning his mental limitations, the district court
concluded that the ALJ properly discounted Dr. Bennett’s assessment because Dr.
Bennett’s finding that Ealy had a marked limitation in tolerating the stress and pressure
of day-to-day employment was not supported by the “small portion of her interview”
with Ealy that addressed stress. Dist. Ct. J. at 7. The district court also found that Dr.
Bennett’s own examination notes and observations did not support her conclusion that
Ealy would have difficulty responding appropriately to supervisors or co-workers in a
work setting. Id. at 7-8.

Finally, the district court rejected Ealy’s argument that the ALJ was obligated to
incorporate Dr. Scher’s “Summary Conclusions” into the hypothetical question to the
No. 09-5451 Ealy v. Comm’r of Soc. Sec. Page 11

vocational expert. The district court noted that the form that Dr. Scher completed
required him to explain his summary conclusions in the portion of the form entitled
“Functional Capacity Assessment” and that Dr. Scher had done just that. Dist. Ct. J. at
8-9. The district court further concluded that the ALJ’s hypothetical question fairly
incorporated Dr. Scher’s functional capacity assessment. Dist. Ct. J. at 9.

II. ANALYSIS

A. Legal Standards

We review district court decisions in social security cases de novo. See Jordan
v. Comm’r of Soc. Sec., 548 F.3d 417, 422 (6th Cir. 2008). However, our review is
limited to determining whether the Commissioner’s decision “is supported by
substantial evidence and was made pursuant to proper legal standards.” Rogers v.
Comm’r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007). “Substantial evidence is ‘such
relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.’” Lindsley v. Comm’r of Soc. Sec., 560 F.3d 601, 604 (6th Cir. 2009)
(quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)). If the Commissioner’s
decision is based upon substantial evidence, we must affirm, even if substantial evidence
exists in the record supporting a different conclusion. Id. at 604-05.

A social security disability determination is made according to the five-step
analysis set out in 20 C.F.R. § 404.1520:

First, [Ealy] must demonstrate that [he] is not currently engaged in
substantial gainful employment at the time of the disability application.
20 C.F.R. § 404.1520(b). Second, [Ealy] must show that [he] suffers
from a severe impairment. 20 C.F.R. § 404.1520(c). Third, if [Ealy] is
not engaged in substantial gainful employment and has a severe
impairment which is expected to last for at least twelve months, which
meets or equals a listed impairment, [he] will be considered disabled
without regard to age, education, and work experience. 20 C.F.R.
§ 404.1520(d). Fourth, if the Commissioner cannot make a
determination of disability based on medical evaluations and current
work activity and [Ealy] has a severe impairment, the Commissioner will
then review [Ealy’s] residual functional capacity (RFC) and relevant past
No. 09-5451 Ealy v. Comm’r of Soc. Sec. Page 12

work to determine if [he] can do past work; if so, [he] is not disabled. 20
C.F.R. § 404.1520(e).

Howard v. Comm’r of Soc. Sec., 276 F.3d 235, 238 (6th Cir. 2002). If Ealy’s impairment
prevents him from doing past work, the analysis proceeds to the fifth step: the
“Commissioner will consider [his] RFC, age, education and past work experience to
determine if [he] can perform other work. If [he] cannot perform other work, the
Commissioner will find [him] disabled. 20 C.F.R. § 404.1520(f).” Id.

For the fifth step, the burden of proof shifts to the Commissioner. See
McClanahan v. Comm’r of Soc. Sec., 474 F.3d 830, 836 (6th Cir. 2006). To meet this
burden,

the Commissioner must make a finding “supported by substantial
evidence that [Ealy] has the vocational qualifications to perform specific
jobs.” Varley v. Sec’y of Health & Human Servs., 820 F.2d 777, 779 (6th
Cir. 1987). This kind of “[s]ubstantial evidence may be produced
through reliance on the testimony of a vocational expert (VE) in response
to a ‘hypothetical’ question, but only ‘if the question accurately portrays
[Ealy’s] individual physical and mental impairments.’” Id. (citations
omitted).

Howard, 276 F.3d at 238.

B. Application

On appeal, Ealy argues that the ALJ’s decision was not supported by substantial
evidence and does not comply with applicable procedural requirements. First, Ealy
argues that the ALJ improperly relied on the residual functional capacity assessments of
Justice and Dr. Hernandez even though Justice and Dr. Hernandez were not aware of
a) later treatment records reflecting Ealy’s heart catheterization, diagnosis of small
vessel disease, and episodes of respiratory distress, or b) Dr. Wheatley’s May 2006
statement about Ealy’s disability status. Second, Ealy contends that the ALJ did not
specifically discuss several notations from Dr. Wheatley concerning Ealy’s residual
deficits from his stroke or Dr. Wheatley’s statement. Third, Ealy argues that the ALJ
erred in determining Ealy’s mental residual functional capacity by rejecting the opinion
No. 09-5451 Ealy v. Comm’r of Soc. Sec. Page 13

of Dr. Bennett, the only mental health source to have examined Ealy, and by failing to
include Dr. Scher’s and Dr. Stodola’s accounts of Ealy’s limitations as identified in the
Section I “Summary Conclusions” portion of the mental RFC assessment.

Ealy’s arguments concerning Dr. Wheatley’s May 2006 statement and the ALJ’s
failure to discuss certain specific evidence were raised for the first time on appeal. The
district court did not have an opportunity to pass on these arguments, and we will not
address them. See Young v. Sec’y of Health & Human Servs., 925 F.2d 146, 149 (6th
Cir. 1990) (a social security disability claimant “cannot raise an issue before the court
of appeals that was not raised before the district court”); see also Kidd v. Comm’r of
Soc. Sec., 283 F. App’x 336, 344 (6th Cir. 2008) (unpublished) (apparent that claimant
had a fair opportunity to pursue her argument in the district court where court’s
reasoning echoed that relied upon by the ALJ).

Turning to the arguments that Ealy did raise in the district court, we first address
the complaint that it was improper for the ALJ to rely on the RFC assessments of Justice
and Dr. Hernandez because they were unaware of Ealy’s shortness of breath, small
vessel disease, and heart catheterizations. As a preliminary matter, it appears that the
premise of Ealy’s argument is flawed. Dr. Hernandez’s (September 2006) RFC was
completed after Ealy had undergone his first catheterization (June 2006). It appears
from the record that Dr. Hernandez did have these additional medical records before him
and thus would have been aware of Ealy’s complaints of shortness of breath, small
vessel disease issues, and the resulting first heart catheterization and stenting.

Even if Dr. Hernandez’s RFC was completed without knowledge of these issues,
however, the record reflects that the ALJ considered them. In its opinion, the ALJ
specifically noted Ealy’s June 2006 heart catheterization and stenting and his March
2007 heart catheterization. A.R. at 13. The ALJ also noted Ealy’s small vessel disease
and his reports of chest pain and dyspnea or shortness of breath. Id. Specifically to
address these issues, the ALJ added to the work limitations recommended by Dr.
Hernandez’s RFC, including restricting Ealy’s exposure to concentrated dust, smoke,
fumes, and temperature and humidity extremes. A.R. at 63. Further, there is no
No. 09-5451 Ealy v. Comm’r of Soc. Sec. Page 14

indication that these additional restrictions reflected insufficient consideration of Ealy’s
catheterizations, small vessel disease, and shortness of breath concerns. The physicians
who treated Ealy for these things never recommended any ongoing significant
restrictions. After Ealy’s catheterizations, Ealy’s only restriction was not to lift more
than ten pounds within a week; he was to return to work within a few days of the
procedure. The record contains no restrictions related to the results of Ealy’s later
pulmonary function study.

We next address Ealy’s arguments concerning his mental residual functional
capacity. First, Ealy argues that the ALJ was incorrect in rejecting Dr. Bennett’s opinion
as Dr. Bennett was the only mental health source to have examined Ealy. Ealy is correct
that the ALJ concurred with Dr. Scher in rejecting Dr. Bennett’s interpretation of the
record evidence. In order to determine whether the ALJ acted properly in disagreeing
with a medical source, we must first determine the medical source’s classification. Of
the three types of medical sources – nonexamining sources, nontreating (but examining)
sources, and treating sources – Dr. Bennett was the second. See 20 C.F.R. § 404.1502;
Smith v. Comm’r of Soc. Sec., 482 F.3d 873, 875 (6th Cir. 2007) (“A ‘nontreating
source’ (but examining source) has examined the claimant ‘but does not have, or did not
have, an ongoing treatment relationship with’ [him].”). In contrast, Dr. Scher was a
“nonexamining source.” See Smith, 482 F.3d at 875 (“A ‘nonexamining source’ is ‘a
physician, psychologist, or other acceptable medical source who has not examined [the
claimant] but provides a medical or other opinion in [the claimant’s] case.’”).

The Social Security Administration gives the most weight to opinions from a
claimant’s treating source; accordingly, an ALJ is procedurally required to “give good
reasons in [its] notice of determination or decision for the weight [it gives the claimant’s]
treating source’s opinion.” Id. However, this requirement only applies to treating
sources. Id. at 876. With regard to nontreating, but examining, sources, the agency will
simply “[g]enerally [] give more weight to the opinion of a source who has examined
[the claimant] than to the opinion of a source who has not examined” him. 20 C.F.R.
§ 404.1527(d)(1); see also Smith, 482 F.3d at 875. Because Dr. Bennett should not have
No. 09-5451 Ealy v. Comm’r of Soc. Sec. Page 15

been afforded controlling weight, in order to determine how much weight to give Dr.
Bennett’s opinion, the ALJ should consider factors including the length and nature of the
treatment relationship, the evidence that the physician offered in support of her opinion,
how consistent the opinion is with the record as a whole, and whether the physician was
practicing in her specialty. See 20 C.F.R. 404.1527(d).

The record shows that the ALJ considered relevant factors in its determination
to credit Dr. Scher’s assessment over Dr. Bennett’s. The ALJ agreed with Dr. Scher in
rejecting Dr. Bennett’s finding that Ealy would have marked limitation in tolerating
everyday work stress. The ALJ found that Dr. Bennett’s conclusion was not fully
supported by her own materials or the record as a whole. Dr. Bennett opined that Ealy
was markedly limited in his “ability to tolerate stress and pressure of day-to-day
employment.” A.R. at 318.2 As the Commissioner points out, Dr. Bennett’s report
contains very little information specifically on Ealy’s tolerance of stress. Dr. Bennett
reports that “[w]hen asked about stressors, he replied that he was stressed by his illness.
He has also been experiencing grief and loss, even though his son has been deceased for
five years. He has coped with stress by taking walks and watching the birds.” Although
other portions of Dr. Bennett’s report referencing Ealy’s apparent sadness could perhaps
be read broadly to refer to stress, the ALJ’s conclusion — that Dr. Bennett’s “markedly
limited” functional capacity conclusion is not fully supported by the notes of her single
meeting with Ealy — is supported by substantial evidence. Further, the ALJ cited the
absence in the record of other evidence that Ealy lacked the mental ability to perform
any work activity. The ALJ noted that Ealy had not received any mental health
treatment nor complained of psychological symptoms while pursuing any other form of
medical care. The ALJ also observed that Ealy demonstrated no abnormal social
behaviors during the hearing and was able to understand and follow the proceedings and
all lines of questioning. The ALJ pointed out Ealy’s ability to function in an appropriate
manner in the public domain in doctors offices, grocery stores, church, restaurants, and

2
Dr. Bennett also concluded that Ealy had moderate limitations in his ability to sustain attention
and concentration for simple repetitive tasks and his ability to respond appropriately to supervisors,
coworkers, and work pressures in a work setting. Dr. Scher’s assessment is consistent with these findings.
No. 09-5451 Ealy v. Comm’r of Soc. Sec. Page 16

elsewhere.3 The ALJ also noted that Ealy visited relatives, friends, and neighbors
several times per week. The ALJ’s decision to place more weight on the conclusions of
Dr. Scher than those of Dr. Bennett is supported by substantial evidence.

Ealy also argues that the ALJ’s hypothetical should have incorporated the
limitations included in the Section I “Summary Conclusions” portion of Dr. Scher’s and
Dr. Stodola’s mental RFC assessments. A mental residual functional capacity
assessment form contains three sections – Section I is titled “Summary Conclusions,”
Section II, “Remarks,” and Section III, “Functional Capacity Assessment.” The
Summary Conclusions section consists of a list of twenty individual mental functional
abilities. Next to each listed ability are five category boxes for the evaluator to check:
not significantly limited, moderately limited, markedly limited, no evidence of limitation
in this category, and not ratable on available evidence. The directions to the Summary
Conclusions section state, “[d]etailed explanation of the degree of limitation for each
category, as well as any other assessment information you deem appropriate, is to be
recorded in Section III (Functional Capacity Assessment).” A.R. at 320. Drs. Scher and
Stodola both checked “not significantly limited” for twelve of the abilities and
“moderately limited” for the remaining eight. These eight are: 1) the ability to
understand and remember detailed instructions; 2) the ability to carry out detailed
instructions; 3) the ability to maintain attention and concentration for extended periods;
4) the ability to complete a normal workday and workweek without interruptions from
psychologically-based symptoms and to perform at a consistent pace without an
unreasonable number and length of rest periods; 5) the ability to interact appropriately
with the general public; 6) the ability to get along with coworkers or peers without
distracting them or exhibiting behavioral extremes; 7) the ability to respond
appropriately to changes in the work setting; and 8) the ability to travel in unfamiliar
places or use public transportation. A.R. at 320-21; 476-77.

3
In the notes of one medical visit, a nurse practitioner noted that Ealy had cried during the exam
and indicated that that was abnormal. A.R. at 534.
No. 09-5451 Ealy v. Comm’r of Soc. Sec. Page 17

In Section III, Dr. Scher concluded that Ealy retained the mental ability to:
1) understand and remember simple instructions; 2) sustain attention to complete simple
repetitive tasks for two-hour segments over an eight-hour day where speed was not
critical; 3) tolerate coworkers and supervisors in a non-public setting; and 4) adapt to
routine changes in a simple work setting. Dr. Stodola affirmed Dr. Scher’s findings.

Though the parties argue at length whether and under what circumstances it is
sufficient for an ALJ to include in a vocational hypothetical only the Section III
Functional Capacity Assessment and not also the more specific checked limitations in
Section I, we need not resolve this issue. Even assuming, favorably to the
Commissioner, that Dr. Scher’s conclusions in Section III sufficiently incorporate all of
the information that a vocational expert would need to make a legitimate assessment, the
ALJ’s hypothetical failed to provide the vocational expert with a fair summary of those
conclusions.

In order for a vocational expert’s testimony in response to a hypothetical question
to serve as substantial evidence in support of the conclusion that a claimant can perform
other work, the question must accurately portray a claimant’s physical and mental
impairments. See Howard, 276 F.3d at 239, 241 (6th Cir. 2002); see also Webb v.
Comm’r of Soc. Sec., 368 F.3d 629, 633 (6th Cir. 2004) (though an ALJ need not list a
claimant’s medical conditions, the hypothetical should provide the vocational expert
with ALJ’s assessment of the what the claimant “can and cannot do.”). Here, the ALJ
relied on the vocational expert’s testimony in response to a hypothetical question that
stated, in relevant part, “assume this person [is] limited to simple, repetitive tasks and
instructions in non-public work settings.” Although the ALJ posed an alternative
hypothetical – adding to the original the fact that the person is “intolerant of routine
work setting type stress such that they would not be able to” work on an eight-hour-per-
day, five-day-per-week basis, or maintain a similar sustained schedule – the court
ultimately rejected the factual basis for this alternative hypothetical and incorporated the
first hypothetical into its RFC finding. In reality, Dr. Scher’s assessment falls
somewhere between the two hypotheticals.
No. 09-5451 Ealy v. Comm’r of Soc. Sec. Page 18

Dr. Scher specifically limited Ealy’s ability to sustain attention to complete
simple repetitive tasks to “[two-hour] segments over an eight-hour day where speed was
not critical.” This description of Ealy’s abilities speaks to some of the restrictions – in
pace, speed, and concentration – that both Dr. Scher and the ALJ found Ealy to have.4
The ALJ’s streamlined hypothetical omitted these speed- and pace-based restrictions
completely. The hypothetical posed by the ALJ should have included the restriction that
Ealy could work two-hour work segments during an eight-hour work day, and that speed
of his performance could not be critical to his job. Accordingly, Ealy’s limitations were
not fully conveyed to the vocational expert. See Edwards v. Barnhart, 383 F. Supp. 2d
920, 930-31 (E.D. Mich. 2005) (hypothetical limiting claimant to “jobs entailing no
more than simple, routine, unskilled work” not adequate to convey moderate limitation
in ability to concentrate, persist, and keep pace) (“Plaintiff may be unable to meet
quotas, stay alert, or work at a consistent pace, even at a simple, unskilled, routine job.”);
see also Whack v. Astrue, No. 06-4917, 2008 WL 509210, at *8 (E.D. Pa. 2008)
(unpublished) (citing cases for the proposition that hypothetical restrictions of “simple”
or “low-stress” work do not sufficiently incorporate the claimant’s medically established
limitations where claimant has moderate deficiencies in concentration, persistance or
pace).

Additionally, the instant case is distinguishable from Smith v. Halter, 307 F.3d
377, 379 (6th Cir. 2001), where this Court upheld the ALJ’s failure to include a
concentration impairment in a hypothetical to the VE. The ALJ in Smith found that four
of five physicians were correct in assessing the claimant with minimal or negligible
concentration problems, while the fifth’s determination that the claimant suffered “an
inability to concentrate” was not credible. Because of this finding, the ALJ did not
include a concentration impairment in its hypothetical, and the hypothetical accurately
portrayed the claimant’s limitations. Here, however, the ALJ relied upon Dr. Scher’s

4
Dr. Scher noted Ealy’s moderate limitations in 1) ability to maintain attention and concentration
for extended periods and 2) ability to complete a normal workday and workweek without interruptions
from psychologically based symptoms and to perform at a consistent pace without an unreasonable number
and length of rest periods. Similarly, the ALJ concluded that Ealy had moderate difficulties with regard
to “concentration, persistence or pace.” A.R. at 15. The ALJ also noted that his assessment was consistent
with Dr. Scher’s opinion. A.R. at 15.
No. 09-5451 Ealy v. Comm’r of Soc. Sec. Page 19

assessment, yet the ALJ did not fairly reflect that assessment in the hypothetical because
the court failed to include Ealy’s time and speed restrictions.

Because the controlling hypothetical inadequately described Ealy’s limitations,
the expert’s conclusion that Ealy could work as an assembler, inspector, packer, or
production worker does not serve as substantial evidence that Ealy could perform this
work. Compare Edwards, 383 F. Supp. 2d at 931 (insufficiency of hypothetical posed
by ALJ evidenced by fact that jobs the vocational expert recommended – assembler,
packer, sorter, and security guard – generally require a sustained degree of
concentration, persistence, and pace). The ALJ’s conclusion in this regard was error.

III. CONCLUSION

Although the ALJ did not err in the other respects Ealy alleges, we conclude that
the ALJ’s determination that Ealy was able to perform a substantial number of other jobs
was not supported by substantial evidence. Accordingly, we REVERSE the judgment
of the district court upholding the Commissioner’s decision and REMAND with
instructions to return the claim to the Commissioner for further proceedings consistent
with this opinion.