Burlingame v. Commissioner of Social Security

Filing 17

REPORT AND RECOMMENDATIONS re 3 Complaint filed by Michael Todd Burlingame. It is RECOMMENDED that the decision of the Commissioner be affirmed and this action be dismissed. Objections to R&R due by 8/6/2012. Signed by Magistrate Judge Norah McCann King on 7/19/2012. (nmk0)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
MICHAEL TODD BURLINGAME,
Plaintiff,
vs.

Civil Action 2:11-CV-817
Judge Sargus
Magistrate Judge King

MICHAEL J. ASTRUE, Commissioner
of Social Security,
Defendant.
REPORT AND RECOMMENDATION
I.
Introduction and Background
This is an action instituted under the provisions of 42
U.S.C. §405(g) for review of a final decision of the Commissioner
of Social Security denying plaintiff’s application for disability
insurance

benefits.

This

matter

is

now

before

the

Court

on

plaintiff’s Statement of Errors, Doc. No. 13 and the Commissioner’s
Memorandum in Opposition, Doc. No. 16.
Plaintiff Michael Todd Burlingame filed his application
for benefits on September 8, 2009, alleging that he has been
disabled since May 25, 2009, as a result of a heart condition and
acid reflux disease. PAGEID 136-37, 155. The application was denied
initially and upon reconsideration and plaintiff requested a de
novo hearing before an administrative law judge.
An administrative hearing was held on November 30, 2010,
at which plaintiff, represented by counsel, appeared and testified,
as did Eric W. Pruitt, who testified as a vocational expert. In a
decision dated December 16, 2010, the administrative law judge
found that, despite plaintiff’s severe impairments, plaintiff can
nevertheless perform jobs that exist in significant numbers in the
national economy and that he is therefore not disabled within the

meaning of the Social Security Act. PAGEID 50-59. That decision
became the final decision of the Commissioner of Social Security
when the Appeals Council declined review on July 29, 2011. PAGEID
41-43.
Plaintiff
administrative

law

Plaintiff

a

has

was

45

judge

ninth

years

issued

grade,

of

his

age

on

the

administrative

“limited,”

education

date

the

decision.
and

prior

relevant work experience as a mason, brick layer and brick layer
supervisor. PAGEID 57, 71, 150-52, 160. Plaintiff was last insured
for disability insurance purposes on September 30, 2010.

At the

time of the administrative hearing, plaintiff was performing parttime masonry work, although the administrative law judge found that
this activity did not meet the income requirements for substantial
gainful activity.

PAGEID 52.

Plaintiff suffered an episode of ventricular fibrillation
and cardiac arrest on May 25, 2009. See PAGEID 245-95. After
undergoing an internal cardiac defibrillator insertion, he was
discharged on June 4, 2009 with diagnoses of cardiac arrest,
alcohol abuse, cardiomyopathy and bacterial pneumonia. PageID 251.
Plaintiff testified at the administrative hearing that
the greatest impediment to his ability to return to work is
fatigue. PAGEID 71-72.

He naps every day. PAGEID 74. He also

suffers severe memory problems because of the lack of oxygen that
he experienced during his cardiac episode.

He must rely on his

wife to remind him to take his medications.

PAGEID 75. His

concentration is also impaired: “I”ll drift a lot,” PAGEID 76,
although he can follow television shows, PAGEID 75.
drive, PAGEID 70; he has difficulty reading.

Plaintiff can

PAGEID 71.

He

experiences headaches, which last a couple hours, PAGEID 77,
although he is not sure that his medications cause those headaches.
PAGEID 72.

He estimates that he can lift 40 pounds, id., or “a

handful of brick,”

PAGEID 78, although not repetitively.
2

PAGEID

78. He can still engage in many of his usual activities, such as
yard work, although it now takes him longer to complete those
chores.

PAGEID 73. He socializes with friends and neighbors “a

couple times a week.”

Id. He is limited by fatigue to standing for

one-half hour. PAGEID 77-78.
II.
The Medical Evidence of Record
Plaintiff’s treating cardiovascular specialist is Anthony
T. Chapekis, M.D.
plaintiff

had

done

On October 4, 2009, Dr. Chapekis noted that
reasonably

well

since

his

hospitalization

although his anoxic brain injury left him with attention problems
and memory loss. PAGEID 302, 340-41.

Plaintiff had no clear

limiting exertional symptoms, although he continued to experience
fatigue. Id.

From a cardiac standpoint, plaintiff was quite

stable. Id.
Plaintiff was examined by clinical neuropsychologist Ken
Bain, Ph.D., in November and December 2009 upon referral by Dr.
Chapekis.

PAGEID 362-67. Dr. Bain diagnosed amnestic disorder and

anoxic brain injury secondary to cardiac arrest. Dr. Bain noted
evidence

of

moderate

problems

with

word-finding

capabilities

although speech was coherent and relevant. PAGEID 363.

Auditory

comprehension was normal, although long-term semantic recall was
moderately

to

severely

impaired

in

the

knowledge and general fund of information.
improved

with

problems.

Id.

cueing,

which

indicated

areas

of

vocabulary

Id. Test performance
significant

retrieval

Visual attention was superior; auditory attention

was noticeably lower.

Id.

There were deficits in the area of

distractibility and recent memory was limited.

PAGEID 363-64.

There were mild to moderate deficits in sequencing, organization
and speed of information processing, but performance was average in
the areas of social judgment, abstract verbal and mathematical
3

reasoning, constructional praxis and word generation capabilities.
PAGEID 364-65.

There were no significant neurobehavioral problems

in the areas of preservation, impulsivity, inappropriate social
behavior or impaired self-awareness.

PAGEID 365. Range of affect

was normal and plaintiff displayed an appropriate sense of humor.
Reality testing was intact; there was no evidence of bizarre
ideation.

Id. According to Dr. Bain, plaintiff would be unable to

return to his job as a mason on a full-time basis because of his
cognitive difficulties with attention, recent memory functioning
and speed of information processing and because of his problem with
endurance. PAGEID 366.

This same combination of cognitive and

physical deficits arising from the May 2009 cardiac episode would
preclude any full-time competitive employment for at least another
nine to twelve months. Id. “It remains to be seen to what extent
his cognitive deficits may improve significantly to enable him to
handle the cognitive demands of his former job.” Id. Dr. Bain
referred plaintiff to the Bureau of Vocational Rehabilitation to
explore other types of employment, PAGEID 366-67, although Dr. Bain
suggested that plaintiff’s history of a learning disability and his
lack of a high school diploma, combined with his physical and
cognitive

deficits,

might

preclude

any

type

of

full-time

competitive employment. PAGEID 367.
State agency psychologist Todd Finnerty, Psy.D., reviewed
the record and completed a psychiatric review technique form in
January 2010.

PAGEID 374-87.

Considering plaintiff’s diagnosed

amnestic anoxic brain injury secondary to a cardiac arrest by
reference to Listing 12.02 (Organic Mental Disorders), PAGEID 374,1
Dr. Finnerty concluded that plaintiff did not meet the “B” criteria
of the Listing because he had only a mild restriction in his
activities of daily living, mild difficulties in maintaining social

1

Dr. Finnerty also considered Listing 12.09 (Substance Addiction
Disorders). PAGEID 374.

4

functioning, moderate difficulties in maintaining concentration,
persistence, or pace, and no episodes of decompensation. PAGEID
384.

Dr. Finnerty also completed a mental residual functional

capacity assessment in which he concluded that plaintiff would be
moderately impaired in his abilities to understand, remember and
carry

out

detailed

instructions,

to

maintain

attention

and

concentration for extended periods, to perform activities within a
schedule,

maintain

regular

attendance

and

be

punctual

within

customary tolerances, to make simple work-related decisions, to
complete a normal work day and work week without interruptions from
psychologically based symptoms and to perform at a consistent pace
without an unreasonable number and length of rest periods and to
respond appropriately to changes in the work setting. PAGEID 47778. Dr. Finnerty found that plaintiff’s statements were only
partially credible because he apparently failed to report his
history of alcohol abuse to Dr. Bain. PAGEID 479. According to Dr.
Finnerty, plaintiff would have difficulty running a business and
working with customers but that, as evidenced by plaintiff’s
activities of daily living and Dr. Bain’s testing, plaintiff
retained the capacity to perform simple, repetitive tasks without
fast paced production quotas. Id. Dr. Finnerty also found that Dr.
Bain’s assessment of plaintiff’s condition was inconsistent with
plaintiff’s standardized test scores. Id. In March 2010, Roseann
Umana, Ph.D., affirmed Dr. Finnerty’s assessment. PAGEID 396.
In January 2010, the file was reviewed by state agency
physician Anton Kreihofner, M.D., PAGEID 388-95, who opined that
plaintiff could occasionally lift/carry twenty pounds, frequently
lift/carry ten pounds and sit, stand or walk for up to 6 hours in
an 8-hour workday. Plaintiff could only occasionally climb ramps
and stairs and balance and could never climb ladders, ropes and
scaffolds.

Plaintiff

should

avoid

all

including machinery and heights. PAGEID
5

exposure

to

hazards,

392. In May 2010, Ralph

Graham,

M.D.,

another

state

agency

physician,

affirmed

Dr.

Freihofner’s assessment. PAGEID 397.
In September 2010, Dr. Chapekis reported that plaintiff’s
anoxic

brain

injury

continued

to

plague

him.

The

doctor

discontinued plaintiff’s prescribed statin medication because of
plaintiff’s ill defined complaints of myalgias and muscle weakness,
notwithstanding plaintiff’s continued hyperlipidemia. Dr. Chapekis
also noted complaints of atypical chest pain.
recommended

further

testing

and

Dr. Chapekis

re-evaluation

by

a

neuropsychologist given changes in his mental status. PAGEID 446.2
III.
Administrative Decision
In his decision, the administrative law judge found that
plaintiff’s

severe

impairments

consist

of

amnestic

disorder

secondary to cardiac arrest with anoxia, and cardiomyopathy with
defibrillator installed. PAGEID 52. Finding that plaintiff does not
have an impairment or combination of impairments that meets or
medically

equals

any

listed

impairment,

PAGEID

53,

the

administrative law judge went on to find that, through the date
that his insured status lapsed, plaintiff retained the residual
functional capacity to perform light work limited to simple tasks
2

After the administrative law judge issued his unfavorable decision,
plaintiff’s counsel submitted additional materials to the Appeals Council.
PAGEID 225-229. Included in those materials are a letter from plaintiff’s
wife, dated February 15, 2011 and describing the effects of plaintiff’s
claimed fatigue and cognitive impairments, PAGEID 226, and notes from a
February 21, 2011 office visit with Steven D. Nelson, M.D., which – apart from
an elevated blood pressure reading – reflects essentially negative findings.
PAGEID 227-29. Evidence submitted to the Appeals Council may not be
considered by the District Court for purposes of substantial evidence review
of the administrative law judge’s decision. Bass v. McMahon, 499 F.3d 506,
512-13 (6th Cir. 2007); see also Cline v. Comm’r of Social Security, 96 F.3d
146, 148 (6th Cir. 1996); Cotton v. Sullivan, 2 F.3d 692 (6th Cir. 1993); Casey
v. Secretary of Health & Human Services, 987 F.2d 1230, 1233 (6th Cir. 1993).
Moreover, plaintiff does not explain why testimony or other information from
plaintiff’s wife was not submitted to the administrative law judge. In any
event, plaintiff does not ask for remand of the action pursuant to Sentence 6
of 42 U.S.C. § 405(g) for consideration of new and material evidence.

6

featuring

no

production

quotas.

PAGEID

55.

Relying

on

the

vocational expert’s testimony, the administrative law judge also
found that, although plaintiff could not perform any past relevant
work, he was able to perform a significant number of jobs in the
national economy, including such light jobs as textile inspector,
mail clerk and packing machine inspector and such sedentary jobs as
automatic grinding machine operator, dowel inspector and food and
beverage order clerk. PAGEID 57-58. Accordingly, the administrative
law judge concluded that plaintiff was not disabled within the
meaning of the Social Act at any time prior to the lapse of his
insured status.

PAGEID 58.
IV.
Discussion

Pursuant to 42 U.S.C. §405(g), judicial review of the
Commissioner’s decision is limited to determining whether the
findings

of

the

administrative

law

judge

are

supported

by

substantial evidence and employed the proper legal standards.
Richardson v. Perales, 402 U.S. 389 (1971). Substantial evidence is
more than a scintilla of evidence but less than a preponderance; it
is such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion. See Buxton v. Halter, 246 F.3d
762, 772 (6th Cir. 2001); Kirk v. Secretary of Health & Human
Servs., 667 F.2d 524, 535 (6th Cir. 1981). This Court does not try
the case de novo, nor does it resolve conflicts in the evidence or
questions of credibility. See Brainard v. Secretary of Health &
Human Servs., 889 F.2d 679, 681 (6th Cir. 1989); Garner v. Heckler,
745 F.2d 383, 387 (6th Cir. 1984).
In determining the existence of substantial evidence,
this Court must examine the administrative record as a whole. Kirk,
667 F.2d at 536. If the Commissioner’s decision is supported by
substantial evidence, it must be affirmed even if this Court would
decide the matter differently, see Kinsella v. Schweiker, 708 F.2d
7

1058, 1059 (6th Cir. 1983), and even if substantial evidence also
supports the opposite conclusion. Longworth v. Comm’r Soc. Sec.,
402 F.3d 591, 595 (6th Cir. 2005).
In his Statement of Errors, plaintiff contends that the
administrative law judge violated the “treating physician rule” in
his evaluation of Dr. Bain’s opinions and instead substituted his
own lay opinion. In a related argument, plaintiff also contends
that

the

administrative

plaintiff’s

limitations

law
in

judge
the

failed

to

include

hypotheticals

posed

all
to

of
the

vocational expert. Plaintiff also argues that it was improper to
reject Dr. Bain’s opinions without also securing the testimony at
the

hearing

plaintiff’s

of

an

expert

able

psychological

to

address

impairments.

the

severity

Finally,

of

plaintiff

challenges the administrative law judge’s credibility assessment.
1.

Evaluation of Dr. Bain’s Opinions
The

opinion

of

a

treating

provider

must

be

given

controlling weight if that opinion is “well-supported by medically
acceptable clinical and laboratory diagnostic techniques” and is
“not inconsistent with the other substantial evidence in [the] case
record.”
treating

20 C.F.R. § 404.1527(d)(2). Even if the opinion of a
provider

is

not

entitled

to

controlling

weight,

an

administrative law judge is nevertheless required to determine how
much weight the opinion is entitled to by considering such factors
as the length, nature and extent of the treatment relationship, the
frequency of examination, the medical specialty of the treating
physician, the extent to which the opinion is supported by the
evidence, and the consistency of the opinion with the record as a
whole. 20 C.F.R. § 404.1527(d)(2)-(6); Blakley v. Commissioner of
Social Security, 581 F.3d 399, 406 (6th Cir. 2009); Wilson, at 544.
Moreover, an administrative law judge must provide “good reasons”
for discounting the opinion of a treating provider, i.e., reasons
that are “sufficiently specific to make clear to any subsequent

8

reviewers the weight the adjudicator gave to the treating source’s
medical opinion and the reasons for that weight.”

Rogers v.

Commissioner of Social Sec., 486 F.3d 234, 242 (6th Cir. 2007),
citing Soc. Sec. Rul. 96-2p, 1996 WL 374188, at *5.

This special

treatment afforded to the opinions of treating providers recognizes
that
these sources are likely to be the medical
professionals most able to provide a detailed,
longitudinal picture of [the claimant’s]
medical impairment(s) and may bring a unique
perspective to the medical evidence that
cannot be obtained from the objective medical
findings alone or from reports of individual
examinations,
such
as
consultative
examinations or brief hospitalizations.
Id.

See also Wilson v. Commissioner of Social Sec., 378 F.3d 541,

544 (6th Cir. 2004).
The administrative law judge did not characterize Dr.
Bain

as

a

treating

provider

but

instead

referred

neuropsychologist as a “consultative examin[er].”

to

PAGEID 53.

the
A

treating provider is a claimant’s “‘own physician, psychologist, or
other acceptable medical source who provides [a claimant] . . .
with medical treatment or evaluation and who has, or has had, an
ongoing treatment relationship with you.’”

Kornecky v. Comm’r of

Soc. Sec., No. 04-2171, 167 F. App’x 496, 506 (6th Cir. Feb. 9,
2006),

quoting

20

C.F.R.

§

404.1502

[emphasis

in

original].

Generally, the United States Court of Appeals for the Sixth Circuit
has declined to find that an ongoing treatment relationship exists
after just two or three examinations. See, e.g., Boucher v. Apfel,
No. 99-1906, 2000 WL 1769520, at *9 (6th Cir. Nov. 15, 2000)
(finding that a doctor did not qualify as a treating source and did
not have an ongoing treatment relationship with the claimant even
though the doctor had examined claimant three times over a two-year
period); Yamin v. Comm’r of Soc. Sec., 67 F. App’x 883, 885 (6th
9

Cir. 2003) (“These two examinations did not give [the physician] a
long term overview of [the claimant’s] condition.”). See also Helm
v. Comm’r of Soc. Sec., Case No. 5025, 2011 WL 13918, at *3 n.3
(6th Cir. Jan. 4, 2011) (noting that “it is questionable whether a
physician who examines a patient only three times over a four-month
period is a treating source – as opposed to a nontreating (but
examining) source”).

In this case, Dr. Bain offered his opinions

on January 4, 2010 after administering tests in November and
December 2009. PAGEID 362.

In the opinion of this Court, Dr.

Bain’s relationship with plaintiff was properly characterized as
that of a consultative examiner rather than that of a treating
provider

whose

on-going

treating

relationship

provides

the

longitudinal insight that warrants the special deference accorded
the opinions of treating providers. The administrative law judge
did not, therefore err, in failing to accord controlling weight to
Dr. Bain’s opinions.
Although Dr. Bain’s opinions were not entitled to the
deference

accorded

to

those

of

treating

providers,

the

administrative law judge was nevertheless obliged to consider those
opinions.

20 C.F.R. § 404.1527(a)(2).

In the case presently

before the Court, the administrative law judge found, first, that
Dr.

Bain’s

opinions

“appeared

to

[plaintiff’s] past employment.”
administrative

law

judge

be

primarily

PAGEID 56.

found,

Dr.

considering

In any event, the

Bain’s

opinions

were

inconsistent with plaintiff’s activities and his own testimony.
Id.

The Court concludes that these findings enjoy substantial

support in the record.
The Court also disagrees with plaintiff’s contention that
the

administrative

law

judge

improperly

substituted

his

own

evaluation of the medical evidence when he found that plaintiff has
the residual functional capacity to perform a wide, but limited,
range

of

light

work.

The
10

residual

functional

capacity

determination is expressly reserved to the Commissioner. 20 C.F.R.
§§404.1527(e)(2), 404.1546.

The report and opinion of the state

agency psychologist, Dr. Finnerty, that plaintiff could perform
simple, repetitive tasks without fast paced production quotas,
PAGEID 479, provides substantial support for the administrative law
judge’s residual functional capacity assessment.
2.

Hypotheticals Posed to the Vocational Expert
In yet another argument related to the administrative law

judge’s assessment of plaintiff’s residual functional capacity,
plaintiff argues that the hypotheticals posed to the vocational
expert were flawed because they did not include “more limitations
regarding [plaintiff’s] memory, concentration and ability to stay
on task . . . .”

Statement of Errors, p. 14.

As the Court noted supra, the administrative law judge’s
assessment of plaintiff’s residual functional capacity enjoys
substantial support in the record.

Thus, a hypothetical that

includes the limitations found by the administrative law judge is
properly posed to the vocational expert.

See Felisky v. Bowen, 35

F.3d 1027, 1036 (6th Cir. 1994)(the Commissioner may rely on
vocational testimony based on a hypothetical that “accurately
describes the plaintiff in all significant, relevant respects. .
.”). Accord Varley v. Sec. of Health & Human Svcs., 820 F.2d 777,
779

(6th

Cir.1987).

In

formulating

a

proper

hypothetical,

an

administrative law judge must incorporate only those limitations
that he has found to be credible.

Stanley v. Secretary of Health

& Human Servs., 39 F.3d 115, 118-19 (6th Cir. 1994).
In

the

case

presently

before

the

Court,

the

administrative law judge included in the hypotheticals all the
limitations found by him.

Because, for the reasons stated supra,

the Court concludes that those findings enjoy substantial support
in the record, the Court also concludes that the administrative law

11

judge did not err in relying on the testimony of the vocational
expert.
3.

Failure to Call a Medical Expert
Plaintiff also argues that the administrative law judge

should have secured the assistance of a medical expert to evaluate
plaintiff’s

impairments

by

reference

addresses organic mental disorders.

to

Listing

12.02,

which

The primary function of a

medical expert is to explain medical terms and the findings in
medical

reports

in

more

complex

cases

in

terms

that

the

administrative law judge, a who is not a medical professional, may
understand. See, Richardson v. Perales, 402 U.S. 389, 408 (1972).
The Commissioner’s regulations provide that an administrative law
judge “may also ask for and consider opinions from medical experts
on the nature and severity of [the claimant’s] impairment(s) and on
whether

[the]

impairment(s)

equals

the

requirements

of

any

impairment listed in appendix 1 to this subpart.” 20 C.F.R. §
404,1527(f)(2)(iii).
The Commissioner’s operations manual indicates that it
falls within the administrative law judge’s discretion whether to
seek the assistance of a medical expert. HALLEX I-2-5-32 (September
28, 2005). “The primary reason an administrative law judge may
obtain medical expert opinion is to gain information which will
help him or her evaluate the medical evidence in a case, and
determine whether the claimant is disabled or blind.” Id. The
operations manual indicates that an administrative law judge “may
need to obtain an medical expert’s opinion” in the following
circumstances:
• the administrative law judge is determining whether a
claimant’s impairment(s) meets a listed impairment(s);
• the administrative law judge is determining the usual
dosage and effect of drugs and other forms of therapy;
• the administrative law judge is assessing a claimant’s
failure to follow prescribed treatment;

12

• the administrative law judge is determining the degree
of severity of a claimant’s physical or mental
impairment;
•
the administrative law judge has reasonable doubt
about the adequacy of the medical record in a case, and
believes that an ME may be able to suggest additional
relevant evidence;
• the medical evidence is conflicting or confusing, and
the administrative law judge believes a medical expert
may be able to clarify and explain the evidence or help
resolve a conflict;
• the significance of clinical or laboratory findings in
the record is not clear, and the administrative law judge
believes a medical expert may be able to explain the
findings and assist the administrative law judge in
assessing their clinical significance;
• the administrative law judge is determining the
claimant’s residual functional capacity, e.g., the
administrative law judge may ask the medical expert to
explain or clarify the claimant’s functional limitations
and abilities as established by the medical evidence of
record;
• the administrative law judge has a question about the
etiology or course of a disease and how it may affect the
claimant’s ability to engage in work activities at
pertinent points in time, e.g., the administrative law
judge may ask the medical expert to explain the nature of
an impairment and identify any medically contraindicated
activities; or
• the administrative law judge desires expert medical
opinion regarding the onset of an impairment.
HALLEX I-2-5-34 (September 28, 2005). An administrative law judge’s
decision whether a medical expert is necessary is inherently
discretionary. An administrative law judge abuses his discretion
only when the testimony of a medical expert is “required for the
discharge of the administrative law judge’s duty to conduct a full
inquiry into the claimant’s allegations. See 20 C.F.R. § 416.1444.”
Haywood v. Sullivan, 888 F.2d 1463, 1467-68 (5th Cir. 1989). See
also, Foster v. Halter, 279 F.3d 348, 355 (6th Cir. 2001) (“An
administrative

law

judge

has

discretion

to

determine

whether

further evidence, such as additional testing or expert testimony,
is necessary”).
13

Here, the administrative law judge did not abuse his
discretion in failing to call a medical – or psychological – expert
to testify at the administrative hearing. The administrative record
includes the opinions of the two state agency psychologists who,
after reviewing the record and Dr. Bain’s opinions, concluded that
plaintiff’s mental impairments do not meet or equal any listed
impairment, including Listing 12.02.

See PAGEID 374.

In short,

the administrative law judge did not err in this regard.
4.

The Administrative Law Judge’s Credibility Determination
Finally, plaintiff contends that the administrative law

judge

erred

in

his

evaluation

of

plaintiff’s

credibility.

A

claimant’s subjective complaints must be supported by objective
medical evidence in order to serve as a basis for a finding of
disability. Casey v. Secretary of Health and Human Services, 987
F.2d 1230 (6th Cir. 1993). See also 42 U.S.C. §423(d)(5)(A). In
evaluating subjective complaints, the Court looks to the record to
determine

whether

there

is

objective

medical

evidence

of

an

underlying medical condition. If so, then, the Court must determine
(1) whether objective medical evidence confirms the severity of the
complaint

arising

from

the

condition;

or

(2)

whether

the

objectively established medical condition is of such severity that
it can reasonably be expected to produce the alleged complaint.
Stanley v. Secretary of Health and Human Services, 29 F.3d 115, 117
(6th Cir. 1994) (quoting Duncan v. Secretary of Health and Human
Services, 801 F.2d 847, 853 (6th Cir. 1986).
Plaintiff contends that he cannot work because of fatigue
and memory problems. The administrative law judge found that
plaintiff’s allegations “are not entirely credible”:
The claimant testified that he is currently
working on a part-time basis as a bricklayer
and that [he] earned between $7000 and $8000
this year. He does not address his ability to
perform simpler jobs that require less thought
and exertion.
He is capable of performing
14

many functional activities.
He is able to
drive, stand, and walk. He is able to attend
to his personal care. He does many activities
of daily living, although he alleges some of
them take longer now.
He is also able to
fish, hunt, play pool, and socialize with
friends and neighbors.
PAGEID 55.
evidence,

The administrative law judge carefully considered the
applied

the

appropriate

standard

for

considering

plaintiff’s subjective allegations and made findings regarding
plaintiff’s credibility that enjoy substantial support in the
record.

The Court is without authority to disturb those findings.
In short, the Court has carefully reviewed the record in

this action and concludes that the decision of the administrative
law judge is supported by substantial evidence. It is therefore
RECOMMENDED that the decision of the Commissioner be AFFIRMED and
that this action be DISMISSED.
If any party seeks review by the District Judge of this
Report and Recommendation, that party may, within fourteen (14)
days, file and serve on all parties objections to the Report and
Recommendation,

specifically

designating

this

Report

and

Recommendation, and the part thereof in question, as well as the
basis for objection thereto. 28 U.S.C. §636(b)(1); F.R. Civ. P.
72(b). Response to objections must be filed within fourteen (14)
days after being served with a copy thereof. F.R. Civ. P. 72(b).
The parties are specifically advised that failure to
object to the Report and Recommendation will result in a waiver of
the right to de novo review by the District Judge and of the right
to appeal the decision of the District Court adopting the Report
and Recommendation. See Thomas v. Arn, 474 U.S. 140 (1985); Smith
v. Detroit Federation of Teachers, Local 231 etc., 829 F.2d 1370
(6th Cir. 1987); United States v. Walters, 638 F.2d 947 (6th Cir.
1981).
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Date July 19, 2012

s/Norah McCann King
Norah McCann King
United States Magistrate Judge

16