Sievert v. Commissioner of Social Security

Filing 23

REPORT AND RECOMMENDATION that the decision of the Commissioner be AFFIRMED and that this action by DISMISSED. Objections to R&R due by 2/22/2013. Signed by Magistrate Judge Norah McCann King on 2/4/2013. (kjm1)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

BRIDGET M. SIEVERT,
Plaintiff,
vs.

Civil Action 2:12-CV-257
Judge Smith
Magistrate Judge King

MICHAEL J. ASTRUE,
COMMISSIONER OF SOCIAL SECURITY,
Defendant.

REPORT AND RECOMMENDATION
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. 15, Defendant’s Memorandum in Opposition
(“Commissioner’s Response”), Doc. No. 18, and plaintiff’s Reply, Doc.
No. 22.
Plaintiff Bridget M. Sievert filed her application for benefits
on January 10, 2008, alleging that she has been disabled since March
1, 2000.

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 May 3, 2010, at which
plaintiff, represented by counsel, appeared and testified, as did
Jerry A. Olsheski, who testified as a vocational expert.

PAGEID 72.

In a decision dated August 10, 2010, the administrative law judge
found that plaintiff was not disabled at any time prior to March 31,
2007, the date she was last insured for disability insurance purposes.
PAGEID 57, 66.

That decision became the final decision of the

Commissioner of Social Security when the Appeals Council declined
review on February 8, 2012.

PAGEID 44-47.

Plaintiff was 42 years of age on the date she was last insured.
PAGEID 65.

She has at least a high school education and is able to

communicate in English.
a legal secretary.

Id.

PAGEID 97.

She has past relevant work experience as
She has not engaged in substantial

gainful activity since March 2, 2000.
I.

PAGEID 36.

Evidence of Record
Plaintiff was diagnosed with fibromyalgia in January 2004 by

Harold E. Cook, M.D.

PAGEID 400-02.

Upon physical examination by Dr.

Cook, 15 of 18 fibromyalgia tender points were positive, Patrick’s
test was negative and SLR was negative; there was mild tenderness of
the paraspinal muscles in the intrascapular and the lumbar regions.
PAGEID 401.

Dr. Cook recommended a sleep study and physical therapy;

he prescribed Pamelor, 10 mg, two to four times a day.

PAGEID 401.

Plaintiff began physical therapy on February 17, 2004 for
complaints of pain in the hips, waist, shoulders and knees.
387-400.

PAGEID

On February 24, 2004, plaintiff reported that her chief

complaint was pain in the knees; her neck and shoulders were feeling
better.

PAGEID 395.

On March 18, 2004, plaintiff reported

significant improvement in her affect and mood.

PAGEID 393.

On March

25, 2004, plaintiff reported that she had “been doing a lot of work at
2

home – cleaning house and bedroom.”
plaintiff felt that
PAGEID 391.

PAGEID 392.

On April 23, 2004,

“her activity level ha[d] [increased] 25%.”

On April 23, 2004, the physical therapist noted good

steady progress, a reported decrease in pain from 8 to 5-6 on a 10point scale and less fatigue;

plaintiff reported that she was feeling

better, both physically and mentally.

PAGEID 389.

A March 2004 sleep study showed obstructive sleep apnea, a
respiratory disturbance index of 14.9 and low oxygen saturation of 68
percent.

PAGEID 446.

Plaintiff’s sleep apnea was not alleviated by

either a CPAP or BiPAP using even a variety of masks and fittings.
PAGEID 445-47.

Consequently, on April 19, 2005, plaintiff underwent

an uvulopalatopharyngoplasty, tonsillectomy, septoplasty and bilateral
inferior turbinate out-fracture and cryoprobe.

PAGEID 426-27, 431.

In July 2005, plaintiff reported increased energy and better sleep.
PAGEID 565.
March 2007 and January 2008 sleep studies documented continued
sleep fragmentation secondary to obstructive sleep apnea syndrome.
PAGEID 531-36.
75 percent.

The January 2008 study showed low oxygen saturation of

PAGEID 532.

Plaintiff has reported to an emergency room for migraines, at
times accompanied by acute chest and abdominal pain and vomiting, on a
number of occasions. See PAGEID 412-13, 591-612.

See PAGEID 412-13.

July 2005 and September 2007 x-rays of plaintiff’s hips show
moderately severe degenerative osteoarthritis of the left hip with
joint space narrowing.

PAGEID 548, 580.

In July 2005, Steven L.

Delaveris, D.O., plaintiff’s treating physician, noted that
3

plaintiff’s left hip popped, clicked and caused pain upon Patrick
Faber maneuver and external rotation of the left hip.

PAGEID 565.

Upon examination in September 2007, plaintiff was able to flex her hip
to 100 degrees, abduct to 30 degrees, internally rotate 10 degrees and
externally rotate 20 degrees.

PAGEID 580.

manipulation of the hip.

The condition worsened after the date

Id.

She reported pain with any

plaintiff was last insured for disability insurance purposes.
PAGEID 553.

See

On April 8, 2008, plaintiff underwent a left total hip

arthroplasty.

PAGEID 683-686.

In October 2007, plaintiff saw Carl C. Berasi, D.O., for
complaints of pain in her knees.

PAGEID 681.

Examination revealed no

effusion, full range of motion, mild crepitus, normal medial and
lateral retinacular laxity and intact collateral and cruciate
ligaments.

Id.

A McMurray’s test was negative.

Id.

X-rays revealed

early spurring and joint space narrowing and probable early
degenerative arthritis in both knees.

Id.

Plaintiff underwent

cortisone injections on December 19, 2007 and January 9, 2008.

PAGEID

574, 576.
The administrative record contains no mental health records for
the period of March 1, 2000 through February 8, 2005.

On February 9,

2005, plaintiff began treatment with Marjorie Curtis-Gallagher, M.D.
PAGEID 639-41.

At that time, plaintiff’s depression was characterized

as “mild,” and her mood was “fairly stable.”

PAGEID 639.

Dr.

Curtis-Gallagher diagnosed bipolar 2 disorder and personality
disorder, NOS. Plaintiff’s condition did not meet the diagnostic
criteria for major depressive disorder.
4

Id.

In April 2008, Dr.

Curtis-Gallagher noted that plaintiff experienced “mild decreased
concentration” occasionally.

Id.

According to Dr. Curtis-Gallagher,

plaintiff had “no significant restriction of daily activities,”
“[t]here [was] no impairment in her interests, habits, or behavior,”
and “[s]he ha[d] no problems with social interactions.”
41.

PAGEID 640-

Plaintiff was “able to tolerate stress of daily living and, I

believe, would be able to work, but in preferably a more-supportive,
low-stress environment.”

Id.

A state agency psychologist reviewed the record in May 2008 and
opined that plaintiff was moderately limited in her “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.”
659.

PAGEID

Plaintiff would also be moderately limited in her ability to

“respond appropriately to changes in the work setting.”

Id.

That same month, a state agency physician reviewed the record and
opined that plaintiff could lift and/or carry 20 pounds occasionally
and 10 pounds frequently, could stand and/or walk for a total of six
hours in an eight hour workday, and could sit for about six hours in
an eight hour workday.

PAGEID 664.

Plaintiff could occasionally

climb ramps and stairs, stoop, kneel, crouch, and crawl, but could
never climb ladders, ropes, or scaffolds.
II.

PAGEID 665.

The Administrative Hearing
Plaintiff testified at the administrative hearing that she

stopped working in July 2000 because of extreme fatigue, chronic pain,
a skin condition caused by allergies and chemical sensitivities in the
5

office and a general feeling of malaise.

PAGEID 81-82.

She also had

trouble with concentration, focus and keeping up with the pace of her
job.

PAGEID 92.

It is the severe fatigue and chronic pain,

difficulty sitting or standing for long periods of time, difficulty
walking and bending, and the need rest frequently and nap that keep
her from working.

PAGEID 96.

Plaintiff also believes that her

allergies prevent her from working in an office or outdoors.

Id.

Plaintiff’s pain has worsened since she stopped working in 2000.
PAGEID 83.

She attributes the pain to a pituitary disorder,

fibromyalgia, knee problems and migraines.

PAGEID 81, 85-88, 94-95.

She began treatment with human growth hormone in 2003, which somewhat
alleviated the pituitary disorder.

PAGEID 83-84.

The pain caused by

her fibromyalgia is aggravated by increased activity.

PAGEID 84.

Her

persistent knee pain is treated with medication and injections.
PAGEID 87-88.
Plaintiff also testified that she suffers from migraines fairly
regularly and, as a result, has to visit the emergency room
approximately once a year for treatment.

PAGEID 94.

She experienced

migraines even while working full-time, although they could be
controlled with medication if caught early.

Id.

Plaintiff testified that her sleep apnea improved, but was not
eliminated, since surgery. She still experiences severe fatigue and
pain.

PAGEID 95.
Prior to the date that plaintiff was last insured, she was unable

to “do a whole lot physically.”

PAGEID 88.

She could occasionally

prepare a light meal, drive short distances, fold laundry and do
6

dishes; she could vacuum for brief periods, do a “little bit” of
gardening, travel to her son’s swim meets and use a computer.
88, 90-91.
at all.”

PAGEID

There were times, however, that she could “barely function
PAGEID 89.

Plaintiff’s son helped her carry heavy objects

and her former husband did the grocery shopping.

PAGEID 88, 90.

In late 2007, plaintiff underwent a divorce and suffered
consequent depression.

PAGEID 91.

Even prior to her divorce, her

depression affected her ability to concentrate at work.

PAGEID 92.

The vocational expert testified that plaintiff’s past relevant
work experience as a legal secretary was sedentary and skilled.
PAGEID 97-98.

Asked to assume a claimant with plaintiff’s vocational

profile and a residual functional capacity for a reduced range of
light work that is not fast-paced and does not have strict timelimited tasks, the vocational expert responded that such a claimant
could not perform plaintiff’s past relevant work, but could perform
other unskilled, light jobs, including such jobs as assembler (500,000
jobs nationally), hand packer (275,000 jobs nationally) and production
inspector (250,000 jobs nationally).

PAGEID 97-99.

III. The Administrative Decision
In his decision, the administrative law judge found that
plaintiff’s severe impairments consist of “fibromyalgia, migraines,
sleep apnea, osteoarthritis, and affective disorder.”

PAGEID 57.

Through the date that she was last insured, however, plaintiff’s
impairments neither met nor equaled any listed impairment.

PAGEID 58.

The administrative law judge went on to find that, through the date
that she was last insured, plaintiff had the residual functional
7

capacity (“RFC”) to
sit, stand, and walk for 6 hours in an 8 hour workday. She
could lift 10 pounds frequently and 20 pounds occasionally.
She could occasionally climb stairs, stoop, kneel, crouch,
and crawl.
She could not climb ladders, ropes, or
scaffolding.
Mentally, she was limited to work that did
not have strict time-limited tasks and was not fast paced.
PAGEID 60.

In making this finding, the administrative law judge gave

“great weight and significance” to the opinion of plaintiff’s treating
mental health provider, Dr. Curtis-Gallagher, because it was
“consistent with and supported by the objective medical evidence of
record.”

PAGEID 63.

The administrative law judge also gave “great

significance” to the opinion of the state agency psychologist.
64.

PAGEID

The administrative law judge also adopted the physical functional

capacity assessment of the state agency physicians because that
assessment was “consistent with and well supported by the evidence of
the record as a whole.”

Id.

Further, the administrative law judge

provided extensive consideration of plaintiff’s subjective complaints
of pain, but found that plaintiff could not “be found credible
regarding the excessive pain and symptoms she allege[d].”

Id.

Relying on the testimony of the vocational expert, the
administrative law judge found that plaintiff was unable to perform
her past relevant work as a legal secretary, but could perform a
significant number of jobs in the national economy despite her
impairments and lessened capacity.

PAGEID 66-67.

Accordingly, the

administrative law judge concluded that plaintiff was not disabled
within the meaning of the Social Security Act at any time prior to the
lapse of her insured status.

PAGEID 66.

8

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); Longworth v. Comm’r of Soc. Sec., 402 F.3d 591, 595
(6th Cir. 2005).

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. Haler, 246 F.3d 762, 772 (6th Cir. 2001); Kirk v. Sec’y
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. Sec’y 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.
F.2d at 536.

Kirk, 667

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
1058, 1059 (6th Cir. 1983), and even if substantial evidence also
supports the opposite conclusion.

Longworth, 402 F.3d at 595.

Plaintiff, who is proceeding without the assistance of counsel,
challenges both the decision of the Appeals Council as well as the
decision of the administrative law judge.

9

A.

The Appeals Council and New Evidence

Plaintiff argues that she should have been granted another
hearing before the Appeals Council and that the evidence she submitted
to the Appeals Council, which was never presented to the
administrative law judge, should have been considered by the Appeals
Council and should now be considered by this Court.

See Statement of

Errors, pp. 2-4.1
On February 8, 2012, the Appeals Council declined to review the
decision of the administrative law judge.

PAGEID 44-46.

When the

Appeals Council denies a claimant's request for review, the decision
of the administrative law judge becomes the final decision of the
Commissioner.

Casey v. Secy. of Health and Human Servs., 987 F.2d

1230, 1233 (6th Cir. 1993) (citing 20 C.F.R. § 404.955).

Under such

circumstances, a court called upon to review the final decision of the
Commissioner of Social Security is confined to a review of the
administrative law judge’s decision and the evidence presented to the
administrative law judge.

See Jones v. Comm’r of Soc. Sec., 336 F.3d

469, 477 (6th Cir. 2003) (citing Wyatt v. Sec’y of Health & Human
Servs., 974 F.2d 680, 685 (6th Cir. 1992)).

This Court has no

authority to review the decision of the Appeals Council.

See Cline v.

Comm’r of Soc. Sec., 96 F.3d 146, 148 (6th Cir. 1996) (“[T]he district

 Plaintiff submitted numerous letters to the Appeals Council, see PAGEID 144,

1

322, 343, 345, 348, and approximately 80 pages of additional evidence that
the Appeals Council made part of the record. See PAGEID 44-49, 144-71, 322357, 784-829. Plaintiff has also attached 51 pages of new material to her
Statement of Errors and represents that she submitted these materials to the
Appeals Council, which failed to incorporate those materials into the record.
See Statement of Errors, p. 3.

10

court cannot consider that new evidence in deciding whether to uphold,
modify, or reverse the ALJ's decision.”).
A District Court may, under certain circumstances, remand a case
under Sentence 6 of 42 U.S.C. § 405(g) for further administrative
proceedings in light of new and material evidence.

Id.

The court . . . may at any time order additional evidence
to be taken before the Commissioner of Social Security, but
only upon a showing that there is new evidence which is
material and that there is good cause for the failure to
incorporate such evidence into the record in a prior
proceeding[.]
42 U.S.C. § 405(g).

A plaintiff has the burden under this provision

to demonstrate that the additional evidence presented is both “new”
and “material” and that there is “good cause” for the failure to
present this evidence to the administrative law judge.

See Hollon ex

rel. Hollon v. Comm’r of Soc. Sec., 447 F.3d 477, 483 (6th Cir. 2006).
Evidence is “new,” for purposes of this provision, only if it was
“not in existence or available to the claimant at the time of the
administrative proceeding.”
626 (1990).

Sullivan v. Finkelstein, 496 U.S. 617,

Evidence is “material” only if there is “a reasonable

probability that the [Commissioner] would have reached a different
disposition of the disability claim if presented with the new
evidence.”

Sizemore v. Sec’y of Health & Human Servs., 865 F.2d 709,

711 (6th Cir. 1988).

See also Faucher v. Sec’y of Health & Human

Servs., 17 F.3d 171, 174 (6th Cir. 1994).

A plaintiff may establish

“good cause” by demonstrating a reasonable justification for the
failure to acquire and present the evidence at the administrative
hearing.

Foster v. Halter, 279 F.3d 348, 357 (6th Cir. 2001).
11

This

standard applies to evidence submitted for the first time to the
Appeals Council.

Id.; Cline, 96 F.3d at 148.

The additional evidence submitted by plaintiff to the Appeals
Council includes, inter alia, medical records from 2010 and 2011,
testimony of Elana Christophides, M.D., given in a December 2008
deposition during the course of plaintiff’s divorce case, and an April
14, 2011 statement in which Dr. Delaveris indicated that plaintiff
should be excused from jury duty because she was not able to hold
full-time employment.

PAGEID 351, 784-800, 829.

Plaintiff has also

submitted an article on fibromyalgia, an internet profile for Dr.
Kevin Hackshaw, a 2009 decree of shared parenting, documents related
to plaintiff’s 2004 and 2010 bankruptcies, a guide on adult mental
impairments, medical records from Dr. Delaveris and William R. Fitz,
M.D., from 2010 and 2011, letters from plaintiff to the Appeals
Council, and a December 20, 2011 affidavit of Dr. Delaveris, who
opines that plaintiff “is disabled[] and that her disabilities are
severe and limit her functioning such that she cannot hold a job.”
See Doc. No. 15-1, p. 50.
Even assuming that plaintiff actually seeks a Sentence 6 order of
remand, plaintiff has not met her burden of establishing that such an
order of remand is appropriate.

As to the medical records that

predate the decision of the administrative law judge, plaintiff offers
no explanation why those records were not submitted at the
administrative hearing. Second, the medical records from 2010 and 2011
were generated long after March 31, 2007 – i.e., the date that
plaintiff’s insured status expired; plaintiff has not established that
12

such documents are material even if they establish a deterioration in
plaintiff’s conditions since the lapse of her insured status.

See

Smith v. Comm’r of Soc. Sec., 473 F. App’x 443, 445-46 (6th Cir. 2012)
(citing Ferguson v. Comm’r of Soc. Sec., 628 F.3d 269, 277-78 (6th
Cir. 2010)).

See also Oliver v. Sec. of Health & Human Servs., 804

F.2d 964, 966 (6th Cir. 1986).

The remainder of the documents

submitted by plaintiff are not material because there is not a
reasonable probability that the Commissioner would have reached a
different result had the new evidence been presented to the
administrative law judge.

In any event, plaintiff has not established

good cause for her failure to acquire this additional evidence in time
to present it to the administrative law judge.

Remand is therefore

not warranted under even Sentence 6 of 42 U.S.C. § 405(g).
B.

Treating Physician Rule

Plaintiff maintains that the administrative law judge erred in
giving controlling weight to the opinion of Dr. Curtis-Gallagher,
plaintiff’s treating psychiatrist, and in failing to give controlling
weight to the opinions of Dr. Pickstone, plaintiff’s current treating
psychiatrist, Dr. Delaveris, and Dr. Cook.

See Statement of Errors,

pp. 6-11.
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.”

20 C.F.R. § 404.1527(c)(2).

Even if the opinion of a

treating provider is not entitled to controlling weight, an
13

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(c)(2)-(6); Blakley v. Comm’r of Soc.

Sec., 581 F.3d 399, 406 (6th Cir. 2009); Wilson v. Comm’r of Soc.
Sec., 378 F.3d 541, 544 (6th Cir. 2004).

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

Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 242 (6th Cir.

2007) (quoting Soc. Sec. Rul. 96-2p, 1996 WL 374188, at *5).
In the case presently before the Court, Dr. Curtis-Gallagher
opined in April 2008

- i.e., after the lapse of plaintiff’s insured

status - that plaintiff was “able to tolerate stress of daily living
and . . . would be able to work, but in preferably a more-supportive,
low-stress environment.”

PAGEID 640-41.

The administrative law judge

gave “great weight and significance” to that opinion because it was
“consistent with and supported by the objective medical evidence of
record,”

PAGEID 63,

plaintiff’s RFC.

and incorporated it into his assessment of

Plaintiff argues that it was error to give Dr.

Curtis-Gallagher’s opinion controlling weight because that opinion was
flawed.

See Statement of Errors, pp. 6-11.
14

The administrative law

judge in this case noted and followed the appropriate standards,
performed the appropriate evaluation of the evidence and articulated
the bases for his decision to assign controlling weight to Dr. CurtisGallagher’s opinion.

The administrative record does not contain an

opinion from any other treating physician.2

The administrative law

judge’s decision therefore enjoys substantial support in the record.
This Court may not reverse that decision even if the record reflects
evidence supporting the contrary conclusion.

See Longworth,

402 F.3d

at 595.
C.

RFC

Plaintiff also argues that the administrative law judge erred
in his RFC determination.

See id. at p. 24.

An RFC determination is

an indication of an individual's work-related abilities despite their
limitations.

See 20 C.F.R. § 416.945(a).

The RFC is an

administrative finding of fact reserved to the Commissioner.

20

C.F.R. §§ 404.1527(d)(2), (3), 416.927(d)(2), (3); Edwards v. Comm'r
of Soc. Sec., 97 F. App'x 567, 569 (6th Cir. 2004).

It represents the

most, not the least, that a claimant can do despite her impairments.
20 C.F.R. §§ 404.1545(a); Griffeth v. Comm’r of Soc. Sec., 217 F.
App'x 425, 429 (6th Cir. 2007).

In assessing a claimant's RFC, an

administrative law judge must consider all relevant record evidence,
including medical source opinions, on the severity of a claimant's
impairments.

See 20 C.F.R. §§ 404.1527(d), 404.1545(a).

Furthermore,

2

In this regard, plaintiff argues that the opinion of her current
psychologist, with whom she has treated since 2010, should have been given
controlling weight. Statement of Errors, p. 10. That psychologist’s opinion
is not included in the administrative record and, even if it were, is not
material because it pertains to a period well beyond the lapse of plaintiff’s
insured status on March 31, 2007. See Casey, 987 F.2d at 1233.
15

courts have stressed the importance of medical opinions to support a
claimant's RFC, and cautioned administrative law judges against
relying on their own expertise in drawing RFC conclusions from raw
medical data.

See Isaacs v. Astrue, No. 1:08-CV-828, 2009 WL 3672060,

at *10 (S.D. Ohio Nov. 4, 2009) (quoting Deskin v. Comm’r of Soc.
Sec., 605 F.Supp.2d 908, 912 (N.D. Ohio 2008).
In the case presently before the Court, the administrative law
judge found that plaintiff had the RFC to
sit, stand, and walk for 6 hours in an 8 hour workday. She
could lift 10 pounds frequently and 20 pounds occasionally.
She could occasionally climb stairs, stoop, kneel, crouch,
and crawl.
She could not climb ladders, ropes, or
scaffolding.
Mentally, she was limited to work that did
not have strict time-limited tasks and was not fast paced.
PAGEID 60.

In making this RFC assessment, the administrative law

judge gave “great weight and significance” to the opinion of Dr.
Curtis-Gallagher and adopted the opinions of the state agency
physician and psychologist.

PAGEID 60, 64.

No doctor offered an

opinion of other or greater limitation of function than those
expressed by Dr. Curtis-Gallagher and the state agency physician and
psychologist.

The administrative law judge adopted the medical

opinions of record in his RFC determination and there is no contrary
evidence in the record.

The administrative law judge’s decision is

therefore supported by substantial evidence and this Court may not
second-guess that decision.
D.

Credibility

The administrative law judge found that plaintiff’s subjective
complaints could not “be found credible regarding the excessive pain
and symptoms she allege[d].”

Id.

To the extent that plaintiff
16

challenges this finding, that challenge is without merit.

A

claimant's subjective complaints must be supported by objective
medical evidence in order to serve as a basis for a finding of
disability.
423(d)(5)(A).

Casey, 987 F.2d at 1234.

See also 42 U.S.C. §

In evaluating subjective complaints, it must be

determined whether there is objective medical evidence of an
underlying medical condition.

Stanley v. Sec’ of Health & Human

Servs., 39 F.3d 115, 117 (6th Cir. 1994).

If so, then the evaluator

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.

Id.;

Duncan v. Sec’y of Health & Human Servs., 801 F.2d 847, 853 (6th Cir.
1986).
The administrative law judge’s credibility determination is
accorded great weight and deference because of the administrative law
judge’s unique opportunity to observe a witness' demeanor while
testifying.

Buxton v. Halter, 246 F.3d 762, 773 (6th Cir. 2001)

(citing Gaffney v. Bowen, 825 F.2d 98, 973 (6th Cir. 1987)).
credibility determinations must be clearly explained.

However,

See Auer v.

Sec’y of Health & Human Servs., 830 F.2d 594, 595 (6th Cir. 1987).

If

the administrative law judge's credibility determinations are
explained and enjoy substantial support in the record, a court is
without authority to revisit those determinations.

See Felisky v.

Bowen, 35 F.3d 1027, 1036 (6th Cir. 1994); Beavers v. Sec’y of Health,
Educ. and Welfare, 577 F.2d 383, 386–87 (6th Cir. 1978).
17

In the case presently before the Court, the administrative law
judge noted and followed the appropriate standards, performed the
appropriate evaluation of the evidence and clearly articulated the
bases of his credibility determinations.

The administrative law judge

devoted almost five pages to his consideration of plaintiff's
subjective complaints, PAGEID 60-64, but nevertheless found that those
complaints were not credible.

The analysis and the credibility

determination of the administrative law judge enjoy substantial
support in the record.

The Court will not – and indeed may not -

revisit that credibility determination.

See Jones v. Comm’r of Soc.

Sec., 336 F.3d 469, 476 (6th Cir. 2003).
Having carefully considered the entire record in this action,
the Court concludes that the decision of the Commissioner 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.
U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b).

28

Response to objections

must be filed within fourteen (14) days after being served with a copy
thereof.

Fed. 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
18

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 Fed’n of
Teachers, Local 231 etc., 829 F.2d 1370 (6th Cir. 1987); United States
v. Walters, 638 F.2d 947 (6th Cir. 1981).

February 4, 2013

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

19