Castle v. Commissioner of Social Security

Filing 16

REPORT AND RECOMMENDATIONS re 3 Complaint filed by Stephanie R. Castle. It is RECOMMENDED that the decision of the Commissioner be AFFIRMED and that this action be DISMISSED. Objections to R&R due by 5/14/2015. Signed by Magistrate Judge Norah McCann King on 4/27/2015. (pes)

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

STEPHANIE R. CASTLE,
Plaintiff,
vs.

Civil Action 2:14-cv-877
Judge Graham
Magistrate Judge King

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 supplemental security
income.

This matter is now before the Court for consideration of

Plaintiff’s Statement of Errors, Doc. No. 11 (“Statement of Errors”),
and Memorandum in Opposition, Doc. No. 14 (“Commissioner’s Response”).
I.

Background
Plaintiff Stephanie R. Castle filed her application for benefits

on April 29, 2011, alleging that she has been disabled since March 1,
2003.

PAGEID 186-190.

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 March 19, 2013, at which
plaintiff, represented by counsel, appeared and testified, as did John
R.
Finch, Ph.D., who testified as a vocational expert.
1

PAGEID 92,

115-17.

In a decision dated April 11, 2013,1 the administrative law

judge concluded that plaintiff was not disabled from November 1, 1994,
through the date of the administrative decision.

PAGEID 60-72.

That

decision became the final decision of the Commissioner of Social
Security when the Appeals Council declined review on May 29, 2014.
PAGEID 49-51.
Plaintiff was forty-five years of age at the time of the
administrative hearing and decision.

PAGEID 60, 92, 96.

Plaintiff

has a tenth-grade education, is able to communicate in English, and
has no past relevant work.

PAGEID 71, 96.

Plaintiff has not engaged

in substantial gainful activity since her application date, April 29,
2011.
II.

PAGEID 62.
Administrative Hearing
Plaintiff has no prior relevant work experience. PAGEID 71. She

testified at the administrative hearing that she last worked in 2001
as a self-employed candle maker, but that she quit working because of
personal problems.

PAGEID 97.

It is her diabetes, which was diagnosed in 1996, that presents
her most difficult health problems.

PAGEID 99.

She experiences

stomach pains, and has episodes of vomiting. Her blood sugar level is
not controlled with medicine.

PAGEID 100, 101-02, 104.

She has

previously taken Dilaudid, morphine, Lantus, Novolog, Levemir and
Actos.

PAGEID 102-04.

taking Actos.

At the time of the hearing, she was still

PAGEID 104.

She has also taken Reglan daily, which

sometimes helps to settle her stomach pain.

PAGEID 103.

If plaintiff

stands “real long,” she experiences lower back pain and swelling and
1

This decision amended the original decision, issued on April 10, 2013, “and
addresses the entire evidentiary record[.]” PAGEID 60, 73-87.

2

numbness in her hands and feet.

PAGEID 104.

Plaintiff also experiences migraine headaches from time to time,
but not every week.

PAGEID 106, 108.

that they cause plaintiff to vomit.

These headaches are “so bad”
PAGEID 106.

When she has gone to

the hospital for migraines, she is given pain and anti-nausea
medication.

PAGEID 107.

Plaintiff does not have a regular treating physician because she
has no insurance.

PAGEID 105.

Instead, plaintiff goes to the

hospital when she is sick and gets her prescriptions on those
occasions.

PAGEID 105-06.

If she runs out of prescribed medication

but is not sick, she would not ordinarily go to the hospital to renew
the prescription.

PAGEID 106.

Plaintiff receives food stamps in the amount of $200.00 per
month, but receives no other assistance.

PAGEID 110.

She smokes

approximately one-half pack of cigarettes per day; her sister buys her
cigarettes.

PAGEID 112.

The vocational expert testified that a claimant with plaintiff’s
vocational profile and the residual functional capacity eventually
found by the administrative law judge would be able to perform a full
range of light, unskilled work.

PAGEID 115-116.

Assuming that

plaintiff’s testimony regarding either her headaches or stomach pain
is credible and would cause her to miss one day of work per month, the
vocational expert testified that such a claimant could not perform
that work.

PAGEID 116.

III. Evidence of Record2
Between March 23, 2011 and April 7, 2012, plaintiff visited the
2

The Court’s discussion of the evidence is limited to the issues presented in
plaintiff’s Statement of Errors.

3

emergency room eleven times.

PAGEID 229-30.

During these visits,

plaintiff complained of, inter alia, diabetic gastroparesis,
headaches, elevated glucose, vomiting, nausea, abdominal pain and
ketosis.

Id.

Plaintiff was hospitalized for two days beginning October 25,
2011 with complaints of intractable nausea, vomiting and dehydration.
PAGEID 381.

With “aggressive hydration and insulin therapy[,]”

plaintiff’s ketosis resolved.

Id.

plaintiff’s blood sugar level.

Sliding scale insulin improved

Id.

Consultative diabetic educators

“provided enough information including means of getting relatively
reasonably priced medications.”

Id.

It was specifically noted that

plaintiff conceded “that she has some prescriptions that she has not
filled yet at home however secondary to financial difficulties” and
that she does not have a family physician.

Id.

Plaintiff was hospitalized for three days beginning January 3,
2012 for complaints of abdominal pain, nausea and vomiting.
336-37.

PAGEID

The attending physician noted that “previous providers were

concerned over narcotic use without being compliant with required
toxicities screenings.”

PAGEID 337.

Plaintiff reported that “she

goes to urgent care facilities and emergency department for her home
medication needed for her non-insulin dependent diabetes.”

Id.

It

was also noted that plaintiff has smoked one pack of cigarettes per
day for more than 25 years.

PAGEID 338.

A gastric emptying study

revealed only 13% emptying from the stomach after 2 hours with
“significant gastroparesis.”

PAGEID 336.

During her hospital stay,

plaintiff’s pain and nausea “improved significantly.”

Id.

Plaintiff

was advised to schedule a diabetic follow-up with a family doctor and
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to check her sugars daily.

Id.

Plaintiff was hospitalized for five days beginning August 10,
2012, with a chief complaint of epigastric pain with persistent nausea
and vomiting.

PAGEID 474-75.

Admission notes characterize plaintiff

as a “diabetic with poor access to primary care and prescription
medications,”

id.,

and commented that plaintiff’s “pain and nausea

are manageable at present with oral Dilaudid and Zofran.”

PAGEID 474.

On discharge, plaintiff was instructed to “proceed with her basic
medical coverage application and attempt to establish with a new
[primary care physician] in the next couple of weeks for ongoing
diabetes care.”

PAGEID 474.

On January 6, 2013, plaintiff was again hospitalized for
complaints of abdominal pain and nausea.

PAGEID 489.

She was treated

with a modified diet, intravenous fluids, pain control, anti-emetics
and a proton pump inhibitor.

Id.

An abdominal x-ray revealed no

acute abnormality and an MRI of the abdomen revealed some nonspecific
abnormality, suggesting small ascites and pleural effusion.
laboratory evaluation was unremarkable.
improved with treatment.

Id.

Id.

Her

Plaintiff’s condition

Id.

Plaintiff was again hospitalized on February 7, 2013 for
complaints of nausea and protracted vomiting.

PAGEID 509.

The

attending physician noted that plaintiff “never sees a doctor on a
regular basis.

She just comes to the hospital when she is ill and she

gets her refills only when she is too sick and comes to the hospital.”
Id.

Treatment included saline and Reglan, a readjusted insulin

regimen and sleep. Plaintiff’s condition improved and her nausea,
vomiting and blood sugar level came under control.
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Id.

Plaintiff was

advised “on the necessity of following up with family physician or
diabetologist to have better control of her blood sugar[.]”

Id.

Plaintiff “understood and agreed with all this plan of care, but her
challenges, she does not have any primary care physician, and she said
she is still working on her SSI benefit paperwork.”

PAGEID 509-10.

Plaintiff was hospitalized for three days beginning February 19,
2013.

PAGEID 530.

“She states that she does not have insurance and

does not have a primary care physician, and that this is why she came
to the emergency department today.”

Id.

Plaintiff was treated with

IV fluid hydration, anti-emetics, analgesics and Reglan.

PAGEID 527.

Upon discharge, plaintiff “was counseled in depth on the need for
close follow up to ensure that her symptoms do not recur.

The patient

was also counseled in depth about the need for strict glycemic control
as well as an appropriate diet which will help prevent any more of
these vital signs.”
IV.

PAGEID 528.

Administrative Decision
The administrative law judge found that plaintiff’s severe

impairments consist of Type II diabetes mellitus and diabetic
gastroparesis.

PAGEID 62.

The administrative law judge also found

that plaintiff has a history of treatment for renal insufficiency,
migraine headaches, hepatitis C, hypertension, anxiety and depression,
but that these conditions are not severe within the meaning of the
Social Security Act.

PAGEID 62-66.

The administrative law judge went

on to find that plaintiff’s impairments neither meet nor equal a
listed impairment and leave plaintiff with the residual functional
capacity (“RFC”) to perform the full range of light work as defined in
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20 C.F.R. 416.967(b).

PAGEID 66-71.

The administrative law judge

relied on the testimony of the vocational expert to find that
plaintiff is able to perform a significant number of jobs in the
national economy.

PAGEID 71-72.

Accordingly, the administrative law

judge concluded that plaintiff was not disabled within the meaning of
the Social Security Act from April 29, 2011, through the date of the
administrative decision.
V.

PAGEID 72.

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
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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.

In her Statement of Errors, plaintiff challenges the
administrative law judge’s finding that she can perform a full range
of light work and, by implication, that she would not miss at least
one day of work per month because of her symptoms relating to her
severe impairments. Statement of Errors, PAGEID 549.

Plaintiff

specifically argues that the administrative law judge erred in finding
that plaintiff’s non-compliance suggests that her physical impairments
were tolerable until the symptomatology worsened to the point where
emergency treatment was required.

Id. Plaintiff contends that her

failure to seek regular medical care reflects her poor access to
primary care and prescription medications as well as her ineligibility
for any type of welfare benefits other than food stamps.

Id.

Because

she must therefore seek care at an emergency room or at a hospital,
the record establishes that she would miss at least one day of work
per month, a fact that, according to the vocational expert, would
preclude her from working. Id. Plaintiff’s arguments are essentially
challenges to the administrative law judge’s credibility
determination.

“It is submitted that Ms. Castle’s explanation for not

have a regular treating source and being forced to . . . use the
hospital and emergency room as her treating sources is supported by
the evidence.” PAGEID 550.
In evaluating a claimant’s credibility, an administrative law
judge should consider the objective medical evidence and the following
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factors:
1. The individual’s daily activities;
2. The location, duration, frequency, and intensity of the
individual’s pain or other symptoms;
3. Factors that precipitate and aggravate the symptoms;
4. The type, dosage, effectiveness, and side effects of any
medication the individual takes or has taken to alleviate
pain or other symptoms;
5.
Treatment,
other
than
medication,
the
individual
receives or has received for relief of pain or other
symptoms;
6. Any measures other than treatment the individual uses or
has used to relieve pain or other symptoms (e.g., lying
flat on his or her back, standing for 15 to 20 minutes
every hour, or sleeping on a board); and
7. Any other factors concerning the individual's functional
limitations and restrictions due to pain or other symptoms.
SSR 96-7, 1996 WL 374186 (July 2, 1996).

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’s 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)).
clearly explained.

However, credibility determinations must be

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.

9

1994); Beavers v. Sec’y of Health, Educ. & Welfare, 577 F.2d 383, 386–
87 (6th Cir. 1978).
In the case presently before the Court, the administrative law
judge evaluated plaintiff’s credibility as follows:
The undersigned finds the claimant’s recent
hospitalizations further evidence of [sic] her pattern of
treatment noncompliance. The claimant’s non-compliance
would not be expected were her physical impairments and
related symptoms severe with the meaning of the
Regulations, and strongly suggest that these conditions
were at least tolerable without the need to comply with
prescribed treatment recommendations until the claimant’s
symptomatology worsened to the point to [sic] where
emergency treatment was required. While the claimant’s noncompliance is not a basis for denying her claim, it is a
basis for heavily discounting her overall credibility. Due
consideration was given to the claimant’s non-compliance
with prescribed treatment in assessing her residual
functional capacity and determining that she is limited as
set forth above.
In addition to the general lack of objective evidence to
support her subjective complaints, other considerations
belie the claimant’s allegations of disability. For
example, there is evidence that the claimant stopped
working for reasons not related to her allegedly disabling
impairments. Specifically, the claimant indicated she
stopped working on June 30, 2011 because of personal
reasons not related to disability in her May 9, 2011
disability report (Exhibit 2E/2).
The claimant’s certified earnings record shows she earned
just $11,513.88 for her entire lifetime (Exhibit 3D). The
claimant alleges that she cannot work due to medical
disability, and that the impairments that led to her
disability first interfered with her ability to work on
March 1, 2003 (later amended to May 4, 2011)(Exhibits 1E,
8D). Her work history, however, reflects a twenty-seven
year pattern of not more than intermittent full- and parttime employment that precedes by several years her report
of impairments. Furthermore, the claimant’s certified
earnings record shows she earned a total of $11,513.88 for
her entire lifetime (Exhibit 3D). This evidence suggests
that medical impairments may not be the sole reason, or
even a material reason, for her current inability to
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sustain fill-time [sic] competitive employment. Rather, it
suggests that the claimant’s overall lack of interest in
working, unrelated to any medical condition, may more
properly account for her current lack of employment.
Considering the claimant’s sporadic work history, the
undersigned cannot reasonably infer that the claimant’s
current unemployment is due solely to her medical
impairments.
The claimant has not always been fully compliant with
treatment recommendations, as evidenced by her frequent
trips to the emergency room. The claimant’s non-compliance
with prescription medications would not be expected, were
the claimant’s impairments as severe or disabling as
alleged, and suggests that the claimant’s alleged symptoms
are tolerable without the need to follow these
recommendations. As noted earlier, while the claimant has
offered reasons for her noncompliance, such as financial
constraints, financial problems are not always an adequate
excuse [for] failure to seek regular medical treatment or
follow-up (Craig v Chater, 943 F. Supp. 1184, 1190 (WD Mo.,
1996). There is no evidence in the record that the claimant
ever attempted to visit a free medical clinic or requested
prescription medication assistance.
Finally, there is a pattern of conduct by the claimant
consistent with drug seeking behavior, including multiple
emergency department visits usually accompanied by requests
for narcotic pain medication. Moreover, January 3, 2012
treatment notes show her history of opioid dependency as
well as a concern by previous treating sources regarding
the claimant’s narcotic use, without compliance with
toxicity screenings (Exhibit 4F/2). In light of the
claimant’s history of opioid dependency, the possibility
of drug seeking behavior cannot be discounted. The
claimant’s drug-seeking behavior diminishes her credibility
as such behavior indicates that the claimant obtained
medical treatment solely to procure prescriptions for
narcotic pain medication rather than for legitimate
purposes and is inconsistent with her allegations of
disabling symptoms attributable to her alleged impairments.
In summary, while the claimant has medically determinable
impairments that could reasonably cause some symptoms and
limitations, the above evidence shows that the claimant’s
testimony regarding the extent of such symptoms and
limitations is not fully credible. However, the claimant’s
complaints have not been completely dismissed, but rather,
have been included in the residual functional capacity to
11

the extent that they are consistent with the evidence as a
whole.
Nevertheless, in considering the criteria enumerated in the
Regulations, Rules and case law for evaluating the
claimant’s subjective complaints, the claimant’s testimony
was not persuasive to establish an inability to perform the
range of work assessed herein. The location, duration,
frequency and intensity of the claimant’s alleged symptoms,
as well as precipitating and aggravating factors are
adequately addressed and accommodated in the residual
functional capacity set forth above.
PAGEID 70-71. The administrative law judge noted and followed the
appropriate standards, performed an appropriate evaluation of the
evidence, and clearly articulated the bases of his credibility
determination.
Plaintiff challenges the administrative law judge’s statement
that plaintiff’s “non-compliance would not be expected were her
physical impairments and related symptoms severe within the meaning of
the Regulations.” PAGEID 69 (emphasis added). However, the record,
considered as a whole, suggests that the administrative law judge
simply misspoke in this instance.

He had previously determined that

plaintiff’s Type II diabetes mellitus and diabetic gastroparesis were
severe impairments. In assessing plaintiff’s credibility, however, the
administrative law judge also found that those severe impairments were
not as severe or as disabling as plaintiff had alleged, in light of
her failure to follow recommended medical treatment.

PAGEID 62, 70.

To the extent that plaintiff might invite this Court to construe
her frequent trips to the emergency room and hospitalizations as
evidence of economic constraints rather than as evidence of noncompliance, the Court declines that invitation.

It is for the

administrative law judge in the first instance to evaluate the
12

evidence and to make credibility determinations. There exists
substantial support in the record for the administrative law judge’s
finding that plaintiff’s economic constraints neither explained nor
justified her failure to seek regular medical treatment. See also Sias
v. Sec’y of HHS, 861 F.2d 475, 480 (6th Cir. 1988) (finding that
claimant’s cigarette habit undermined claimant’s credibility that he
could not afford treatment); Jennings v. Colvin, No. 2:13-CV-246, 2015
U.S. Dist. LEXIS 156, at *4 (E.D. Tenn. Jan. 5, 2015)(same); Caesar v.
Comm’r of Soc. Sec., No. 1:12-cv-548, 2013 U.S. Dist. LEXIS 96928, at
*45-36 (S.D. Ohio July 11, 2013) (same).

The administrative law judge

devoted approximately three pages to his consideration of plaintiff’s
subjective complaints, PAGEID 68-71, and found that those complaints
were not entirely credible.

The analysis and 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).
13

Response to objections

28

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 the 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 waiver of the right to
appeal the judgment of the District Court.

See, e.g., Pfahler v.

Nat’l Latex Prod. Co., 517 F.3d 816, 829 (6th Cir. 2007) (holding that
“failure to object to the magistrate judge’s recommendations
constituted a waiver of [the defendant’s] ability to appeal the
district court’s ruling”); United States v. Sullivan, 431 F.3d 976,
984 (6th Cir. 2005) (holding that defendant waived appeal of district
court’s denial of pretrial motion by failing to timely object to
magistrate judge’s report and recommendation).

Even when timely

objections are filed, appellate review of issues not raised in those
objections is waived.

Robert v. Tesson, 507 F.3d 981, 994 (6th Cir.

2007) (“[A] general objection to a magistrate judge’s report, which
fails to specify the issues of contention, does not suffice to
preserve an issue for appeal . . . .”) (citation omitted)).

s/Norah McCann King
Norah McCann King
United States Magistrate Judge
April 27, 2015

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