Castle v. Commissioner of Social Security

Filing 18

ORDER adopting Report and Recommendations re 16 Report and Recommendations.. Signed by Judge James L Graham on 5/19/2015. (ds)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
Stephanie R. Castle,
Plaintiff,
v.

Case No. 2:14-cv-877

Carolyn W. Colvin,
Acting Commissioner of
Social Security,
Defendant.
ORDER
Plaintiff Stephanie R. Castle brings this action under 42
U.S.C. §§405(g) for review of a final decision of the Commissioner
of Social Security (“Commissioner”) denying her application for
supplemental

security

income.

The

ALJ

reviewed

the

medical

evidence in the record and held a hearing, at which plaintiff,
accompanied by counsel, and John R. Finch, Ph.D., a vocational
expert, testified. In an amended decision dated April 11, 2013, the
administrative law judge (“ALJ”) found that plaintiff had severe
impairments

consisting of type II diabetes mellitus and diabetic

gastroparesis.

PAGEID 62.

After considering the entire record,

the ALJ found that plaintiff has the residual functional capacity
(“RFC”) to perform the full range of light work defined in 20
C.F.R. §416.967(b).

PAGEID 66.

This matter is before the court

for consideration of plaintiff’s April 29, 2015, objections (Doc.
17) to the April 27, 2015, report and recommendation of the
magistrate judge (Doc. 16) recommending that the decision of the
Commissioner be affirmed.
I. Standard of Review
If a party objects within the allotted time to a report and

recommendation, the court “shall make a de novo determination of
those portions of the report or specified proposed findings or
recommendations

to

which

objection

is

made.”

§ 636(b)(1); see also Fed. R. Civ. P. 72(b).

28

U.S.C.

Upon review, the

court “may accept, reject, or modify, in whole or in part, the
findings or recommendations made by the magistrate judge.”

28

U.S.C. § 636(b)(1).
The court’s review “is limited to determining whether the
Commissioner’s decision ‘is supported by substantial evidence and
was made pursuant to proper legal standards.’”

Ealy v. Comm’r of

Soc. Sec., 594 F.3d 504, 512 (6th Cir. 2010) (quoting Rogers v.
Comm’r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007)); see also,
42 U.S.C. § 405(g) (“The findings of the Commissioner of Social
Security as to any fact, if supported by substantial evidence,
shall be conclusive.”).

Put another way, a decision supported by

substantial evidence is not subject to reversal, even if the
reviewing court might arrive at a different conclusion.
Bowen, 800 F.2d 535, 545 (6th Cir. 1986).

Mullen v.

“Substantial evidence

exists when ‘a reasonable mind could accept the evidence as
adequate to support a conclusion [and] . . . presupposes that there
is a zone of choice within which the decision-makers can go either
way, without interference by the courts.’”

Blakley v. Comm’r of

Soc. Sec., 581 F.3d 399, 406 (6th Cir. 2009) (internal citation
omitted).
decision

Even if supported by substantial evidence, however, “‘a
of

the

Commissioner

will

not

be

upheld

where

the

[Commissioner] fails to follow its own regulations and where that
error prejudices a claimant on the merits or deprives the claimant
of a substantial right.’”

Rabbers v. Comm’r of Soc. Sec., 582 F.3d

2

647, 651 (6th Cir. 2009) (quoting Bowen v. Comm’r of Soc. Sec., 478
F.3d 742, 746 (6th Cir. 2007)).
II. Objections
The ALJ found that plaintiff’s type II diabetes mellitus and
gastroparesis constituted severe impairments.

PAGEID 62.

Relying

on the opinions of Dr. Steve E. McKee, M.D., a state medical
consultant,

and

Dr.

Phillip

Swedberg,

M.D.,

an

independent

consulting physician who examined plaintiff, the ALJ concluded that
plaintiff was capable of performing a full range of light work.
PAGEID 67-68.

The ALJ noted that the objective medical evidence

showed that these conditions had been “relatively stable with
prescribed medications, when taken as actually prescribed” and that
the “record does not contain evidence of abnormal clinical and
laboratory findings sufficient to document any further degree of
loss of function.”

PAGEID 66.

Dr. Finch testified that, based on

the RFC found by the ALJ, plaintiff would be able to perform a full
range of light, unskilled work.

PAGEID 115-16.

In objecting to the ALJ’s determination that she was not
disabled, plaintiff relies on the evidence of her eleven visits to
the emergency room between March 23, 2011, and April 7, 2012, and
her hospitalizations on six occasions between October 25, 2011, and
February 19, 2013, due to her diabetes mellitus and gastroparesis.
Plaintiff notes the testimony of Dr. Finch that if she missed one
day of work per month due to her impairments, she could not perform
a full range of light, unskilled work.

PAGEID 116.

Plaintiff

argues that because her history of hospitalizations suggests that
she would miss at least one day of work per month, the ALJ should
have found that she was disabled.

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Doc. 17, p. 2.

Plaintiff also

objects to the finding of the magistrate judge that the ALJ properly
concluded that plaintiff’s frequent trips to the emergency room and
hospitalizations were due to her noncompliance with the treatment
instructions of her doctors regarding medications rather than her
inability

to

afford

the

diabetes.

medications

necessary

to

control

her

Doc. 17, p. 3.

The magistrate judge noted that plaintiff’s failure to comply
with the recommendations of her physicians concerning medication was
an issue related to plaintiff’s credibility that was for the ALJ to
decide. The court agrees with the legal and factual analysis of the
magistrate judge. In evaluating a claimant’s complaints, an ALJ may
properly consider the credibility of the claimant.

Walters v.

Commissioner of Social Security, 127 F.3d 525, 531 (6th Cir. 1997);
Soc. Sec. Rul. 96-7p, 1996 WL 374186 at *4 (Soc. Sec. Admin. July
2, 1996).
applicant

An ALJ’s findings based on the credibility of the
“are

to

be

accorded

great

weight

and

deference,

particularly since an ALJ is charged with the duty of observing a
witness’s demeanor and credibility.”

Walters, 127 F.3d at 531.

An

ALJ’s assessment of a claimant’s credibility must be supported by
substantial evidence.

Id.

One factor the ALJ may consider in

weighing a claimant’s credibility is the claimant’s treatment
history.

Soc. Sec. Rul. 96-7p, 1996 WL 374186 at *7.

“[T]he

individual’s statements may be less credible if the level or
frequency of treatment is inconsistent with the level of complaints,
or if the medical reports or records show that the individual is not
following the treatment as prescribed and there are no good reasons
for this failure.”
inferences

from

a

Id.
failure

However, the ALJ must not draw any
to

seek

4

or

pursue

regular

medical

treatment without first considering any explanations that the
claimant may provide, including the inability of the claimant to
afford treatment or to have access to free or low-cost medical
services.

Id. at *7-8.

The ALJ acknowledged plaintiff’s emergency room visits and
hospital treatment for diabetis and gastroparesis, but noted that
plaintiff’s conditions improved and became stable following the
treatment provided by the hospital. PAGEID 68-69. However, the ALJ
commented that “the objective evidence also documents that claimant
was consistently noncompliant with medical treatment directives.”
PAGEID 69.

The ALJ observed that plaintiff “still did not see a

primary care physician on a regular basis and just went to the
hospital when she was ill” and “only got refills of her medications
when she went to the hospital.”

PAGEID 69.

The ALJ stated that

plaintiff’s failure to take recommended 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

recommendations.”

without

PAGEID 70.

the

need

to

follow

these

The ALJ correctly noted that while

plaintiff’s pattern of treatment non-compliance was not a basis for
denying her claim, it “is a basis for heavily discounting her
overall credibility” and in assessing her RFC.
The ALJ considered

PAGEID 69.

plaintiff’s testimony that her financial

constraints and inability to pay for treatment were the reasons for
her non-compliance with the physicians’ recommendations concerning
medications.

PAGEID 65, 70.

However, the ALJ rejected this

testimony, noting that there was no evidence that plaintiff ever
attempted to visit a free medical clinic or that she ever requested

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prescription medication assistance.

PAGEID 65, 70.

The ALJ also

referred to plaintiff’s cigarette habit. Plaintiff testified at the
hearing that she smoked half of a pack of cigarettes per day, and
that the cigarettes were supplied by her sister.

PAGEID 112.

Plaintiff also reported on January 3, 2012, that she had smoked one
pack of cigarettes per day for more than twenty-five years.
PAGEID 338.

See

The ALJ observed that plaintiff did not have financial

constraints when it came affording her cigarette habit, and that,
although plaintiff testified that her smoking addiction was financed
by a friend, “the undersigned finds the claimant to be less than
fully reliable as a reporter.”

PAGEID 65.

The ALJ properly

considered plaintiff’s smoking habit as bearing on her credibility.
See Moore v. Comm’r of Soc. Sec., 573 F.App’x 540, 542-3 (6th Cir.
2014)(ALJ

properly

considered

plaintiff’s

failure

to

pursue

treatment in weighing her credibility where her claim that she could
not afford treatment for asthma was contradicted by her purchase of
cigarettes); Sias v. Secretary of Health & Human Servs., 861 F.2d
475, 480 (6th Cir. 1988)(ALJ correctly decided that plaintiff’s
claim of inability to afford support hose was not credible in light
of his cigarette habit).
In

addition,

the

ALJ

reasonably

rejected

plaintiff’s

explanation that she could not afford medication because other
evidence also undermined plaintiff’s credibility.

See Henry v.

Comm’r of Soc. Sec., 973 F.Supp.2d 796, 803 (N.D.Ohio 2013).

In

concluding that plaintiff’s statements concerning the intensity,
persistence and limiting effects of her symptoms were not credible
to the extent that they were inconsistent with the RFC, the ALJ
noted that: 1) plaintiff’s subjective complaints concerning the

6

severity of her symptoms were not supported by objective medical
evidence; 2) there was evidence that plaintiff stopped working in
2011 for personal reasons; 3) plaintiff (who was forty-five years
of age at the time of the ALJ’s decision) had earned $11,513.88 in
her entire lifetime, and her sporadic work history suggested that
her overall lack of interest in working, rather than her medical
impairments,

more

properly

accounted

for

her

current

lack

of

employment; and 4) plaintiff’s treatment records, which included
requests for narcotic pain medication during emergency room visits
and a history of opioid dependency, indicated that she obtained
hospital treatment solely to obtain prescriptions for narcotic pain
medication, not due to her allegedly disabling symptoms.

The ALJ

properly evaluated plaintiff’s credibility based on a consideration
of the entire case record.

Rogers, 486 F.3d at 247.

III. Conclusion
Having reviewed the record de novo, the court finds that the
ALJ’s

findings

concerning

plaintiff’s

credibility

and

his

determination that plaintiff is not disabled are supported by
substantial evidence.

The court hereby adopts and affirms the

magistrate judge’s report and recommendation (Doc. 16). Plaintiff’s
objections (Doc. 17) are denied.

The Commissioner’s decision is

affirmed, and this action is dismissed.

Pursuant to Sentence Four

of 42 U.S.C. § 405(g), the clerk shall enter final judgment
affirming the decision of the Commissioner and dismissing this
action.
Date: May 19, 2015

s/James L. Graham
James L. Graham
United States District Judge

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