Johnson v. Commissioner of Social Security

Filing 20

REPORT AND RECOMMENDATIONS re 3 Complaint filed by Donna J Johnson. It is RECOMMENDED that the decision of the Commissioner be affirmed and that this action be dismissed. Objections to R&R due by 6/29/2015. Signed by Magistrate Judge Norah McCann King on 6/12/2015. (pes)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
DONNA J. JOHNSON,
Plaintiff,
vs.

Civil Action 2:14-CV-925
Judge Marbley
Magistrate Judge King

COMMISSIONER OF SOCIAL SECURITY,
Defendant.
REPORT AND RECOMMENDATION
I.

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 supplemental security income.
This matter is now before the Court on plaintiff’s Statement of Specific
Errors, Doc. No. 16, the Commissioner’s Memorandum in Opposition, Doc. No.
18, and plaintiff’s Reply.

Doc. No. 19.

Plaintiff Donna J. Johnson filed her current application for benefits
on July 19, 2012, alleging that she has been disabled since April 1, 2012.
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 December 19, 2013. Plaintiff,
who was represented by counsel, appeared and testified, as did Jerry A.
Olsheski, Ph. D., a vocational expert, and Davonna Johnson, plaintiff’s
daughter. On January 9, 2014, the administrative law judge issued a written
decision concluding that plaintiff was not disabled at any time between
the date that the application was filed and the date of the administrative
decision. PageID 734-50. That decision became the final decision of the

Commissioner of Social Security when the Appeals Council declined review
on May 28, 2014.

PageID 715-19.

Plaintiff was 45 years of age on the date her application was filed.
See PageID 748, 946.

She has at least a high school education, is able

to communicate in English, and has past relevant work as a telemarketer.
PageID 748, 951.

Plaintiff has not engaged in substantial gainful activity

since July 19, 2012, her application date. PageID 736.
II. Administrative Decision
The

administrative

law

judge

found

that

plaintiff’s

severe

impairments consist of obesity, enlarged bulky uterus and uterine fibroids
(status-post uterine artery embolization), history of phlebitis, deep
venous thrombus of left lower extremity, chronic occlusion of the celiac
artery with history of celiac artery thrombosis/thrombocytosis, chronic
obstructive

pulmonary

schizoaffective

disease

disorder,

(“COPD”),

substance

major

abuse

depressive

disorder

and

disorder,
borderline

intellectual functioning. PageID 736. Plaintiff’s impairments, whether
considered singly or in combination, neither meet nor equal a listed
impairment, PageID 738, and leave plaintiff with the residual functional
capacity (“RFC”) for light work
except that the claimant should avoid concentrated exposure to
extreme temperatures, breathing irritants, such as fumes,
odors, dusts, or gases, and poor ventilation, and hazards, such
as unprotected heights, dangerous machinery, and commercial
driving.
From a mental standpoint, she could understand,
remember, and carry out simple instructions where pace and
productivity is [sic] not dictated by an external source over
which the claimant has no control, such as an assembly line or
conveyor belt. The work should not require strict production
quotas. She could make judgments on simple work matters and
respond appropriately to usual work situation and changes in a
routine work setting that is repetitive day to day with few and
expected changes. She could respond appropriately to
supervision and the occasional interaction with coworkers and
the public on trivial matters, defined as dispensing and sharing

2

factual information not likely to generate an adversarial
setting. She could not work in a team or in tandem with coworkers.
PageID 740-41. Relying on the testimony of the vocational expert, the
administrative law judge found that this RFC permits the performance of
a significant number of jobs in the national economy, including such
representative jobs as hand packer, packing and filling machine operator,
and mail clerk. PageID 749.

Accordingly, the administrative law judge

concluded that plaintiff was not disabled.
III. Standard
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.

Jones v. Comm’r of Soc. Sec.,

336 F.3d 469, 475 (6th Cir. 2003); 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. Bass v. McMahon, 499 F.3d 506, 509 (6th Cir. 2007).
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, Tyra
v. Sec’y of Health & Human Servs., 896 F.2d 1024, 1028 (6th Cir. 1990)(citing
Kinsella v. Schweiker, 708 F.2d 1058, 1059 (6th Cir. 1983)), and even if

3

substantial evidence also supports the opposite conclusion. Longworth, 402
F.3d at 595.
In her Statement of Specific Errors, plaintiff contends that the
administrative law judge failed to properly consider plaintiff’s obesity,
improperly relied on a single Global Assessment of Functioning (“GAF
score”) to the exclusion of other GAF scores in the record, and erred in
evaluating plaintiff’s credibility as it relates to her mental impairments.

IV.

Evidence of Record
A.

Physical Impairments

In February 2012, plaintiff’s body mass index (“BMI”) was recorded
as 35.74.

PageID 1113.

Plaintiff presented to an emergency room on February 17, 2012 with
complaints of chest pain, shortness of breath and abdominal pain. She
reported a history of asthma, and complained of worsening pain with
coughing. On examination, plaintiff had 100% oxygen saturation on room air
and she was able to speak in full sentences when walking. Her lungs were
clear but slightly diminished in both bases. Her abdomen was soft and bowel
sounds were present. She had diffuse tenderness, but no organomegaly
(abnormal enlargement of organs). She had full strength in her extremities.
A chest x-ray showed no acute disease. PageID 1043-45. A breathing treatment
was administered.
Plaintiff presented to an emergency room on August 1, 2012 for upper
abdominal pain and was subsequently admitted. On examination, plaintiff’s
lungs were clear and her epigastrium abdomen was soft and tender.

4

Neurological

and

musculoskeletal

examinations

were

normal;

she

was

psychiatrically appropriate. PageID 1161-67.
In September 2012, state agency physician Leigh Thomas, M.D.,
reviewed plaintiff’s file.

PageID 823-24.

Dr. Thomas opined that

plaintiff could occasionally lift/carry twenty pounds, stand or walk about
six hours in an 8-hour workday, and sit up to 6 hours in an 8-hour workday.
She

could

frequently

climb

ramps

and

stairs

and

crawl,

and

could

occasionally climb ladders, ropes or scaffolds, and stoop; she should avoid
concentrated exposure to extremes of cold and heat, humidity, fumes, odors,
and hazards. PageID 823-24.
On

December

18,

2012,

plaintiff

underwent

a

uterine

artery

embolization for fibroids, following which she complained of increased
swelling and pain at the site. She was prescribed antibiotics.

PageID

1239.
On February 25, 2013, state agency physician Michael Lehn, M.D.,
reviewed

plaintiff’s

plaintiff’s RFC.
B.

file

and

affirmed

Dr.

Thomas’

assessment

of

PageID 843-44.

Mental Impairments

In April 2010, i.e., two years prior to plaintiff’s alleged date of
onset of disability, plaintiff was evaluated by Sudhir Dubey, Psy.D. PageID
988-93.
989.

Plaintiff reported that she had been abused as a child. PageID

One of her four children had been murdered. Plaintiff acknowledged

a history of drug and alcohol abuse and a period of incarceration; she
reported that she has been clean since 2003. Id.

She lived with a friend

and relied on relatives to help her with activities of daily living. PageID
991. She can use a microwave and helps with house work. Id. Plaintiff denied

5

that psychological issues affected her work but reported that they did
affect her ability to retain work.
examination,

plaintiff’s

thoughts

PageID 989-90.
were

logical

but

On mental status
tangential.

She

reported mood swings and crying spells, as well as auditory and visual
hallucinations.

PageID 991. She denied suicidal or homicidal ideation or

anhedonia. She was oriented x 4 and recalled 3 digits forwards and 2 digits
backwards; she could remember no objects after a five minute delay. Dr.
Dubey diagnosed a schizoaffective disorder and borderline intellectual
functioning. He assigned her a GAF score of 55.2

PageID 992.

Dr. Dubey

concluded that plaintiff was moderately impaired in her ability to
withstand stress and pressure from work, understand and follow complex
directions, and perform complex tasks. PageID 993.
Plaintiff has undergone mental health treatment at Southeast, Inc.
(“Southeast”). The record contains a plan of care dated May 1, 2011, in
which plaintiff’s symptoms were listed as sleep disturbance, tearfulness,
isolation, psycho motor agitation, anxiety, panic attacks, attention
problems, irritability, “amotivation,” poor energy level, feelings of
hopelessness and helplessness, and hypervigilance. Plaintiff was diagnosed
with a mood disorder, not otherwise specified; cocaine dependence, in
remission; alcohol intoxication, in remission; and borderline intellectual
functioning. She was assigned a current GAF score of 48 and a highest GAF
in the past year of 50. PageID 997.
2

A GAF is a tool used by health-care professionals to assess a person’s
psychological, social, and occupational functioning on a hypothetical continuum
of mental illness. It is, in general, a snapshot of a person’s “overall
psychological functioning” at or near the time of the evaluation. See Martin v.
Commissioner, 61 Fed.Appx. 191, 194 n.2 (6th Cir. 2003); see also Diagnostic and
Statistical Manual of Mental Disorders, 4th ed., Text Revision (“DSM-IV-TR”) at
32-34. Individuals with scores of 51-60 are classified as having "moderate symptoms
... or moderate difficulty in social, occupational, or school functioning (e.g.,
few friends, conflicts with peers or co-workers)." DSM-IV-TR at 34

6

Plaintiff was evaluated that same month by Southeast psychiatrist
Abdul Hasan, M.D., who noted that plaintiff had not been seen in the clinic
since approximately March 2009. PageID 1536. She had repeatedly failed to
appear and had therefore not been on medication. Id.

Plaintiff reported

that her “principle problem is that she gets angry almost every day with
everyone.” Id.

Dr. Hasan noted that plaintiff had not been psychiatrically

hospitalized, but had been to NetCare on many occasions. She denied suicide
attempts, although she reported suicidal thoughts after her son was killed.
She apparently received mental health treatment while in prison. She
admitted past drug and alcohol abuse. On mental status examination,
plaintiff was not cooperative and her speech was loud, disjointed, and
unfocused. Her mood appeared to be irritable and somewhat sad.

She was

vague about hallucinations. She was alert and oriented x 3. No distress
or anxiety was noted.

Dr. Hasan diagnosed a mood disorder, not otherwise

specified, rule out bipolar II disorder, rule out schizoaffective disorder;
and borderline intellectual functioning.
score of 55.
Michele

He assigned plaintiff a GAF

PageID 1537.
Evans,

Ph.D.,

consultatively

evaluated

plaintiff

for

disability purposes on January 4, 2012.

PageID 1003-10.

Plaintiff

reported that she had been abused as a child.

PageID 1004. She was eligible

for special education services in school; she left school in the 11th grade
because she had a child. Id. Plaintiff acknowledged a history of marijuana
and cocaine abuse, but denied current use.

PageID 1005.

She lives with

a friend, PageID 1004, but does not socialize with neighbors. She can shop
and make her own purchases. She helps with household chores and uses the
microwave to cook. She does not use the stove because she forgets about
the food. She worked as a telemarketer for a couple of months and at a

7

warehouse for a few months before being laid off.

She denied difficulty

getting along with others or with her work quality. Dr. Evans found that
plaintiff’s thoughts were coherent. She was oriented x 4, she recalled no
items after delay and 4 digits forwards and 2 digits backwards. Plaintiff
was unable to perform serial 7s but did perform simple calculations using
her fingers. Dr. Evans diagnosed major depressive disorder and assigned
a GAF score of 51.

PageID 1008.

Dr. Evans opined that plaintiff would

have problems with complex work tasks.

PageID 1009.1

Plaintiff was seen again at Southeast in February and March 2012.
PageID 1112-18. On mental status examination in February, plaintiff was
generally anxious, with blocked cognition. Her behavior varied between
appropriate and withdrawn. PageID 1116-18. In March, plaintiff was pleasant
with an anxious mood and blocked cognition. PageID 1115. Her case was
terminated by the clinic in May 2012 due to lack of contact.

PageID

1110-11.
Tonnie Hoyle, Psy.D., reviewed plaintiff’s file in October 18, 2012.
PageID 813-26.

According to Dr. Hoyle, plaintiff was mildly restricted

in her activities of daily living, and had moderate difficulties in
maintaining social functioning and concentration, persistence and pace.
PageID 821.

Dr. Hoyle found that the report of Dr. Evans was consistent

with the medical evidence. The report from Dr. Dubey was given lesser weight
because of its age.

PageID 822. Dr. Hoyle opined that plaintiff is able

to perform tasks requiring up to 3 steps with no strict time or production

1

The administrative law judge considered the consultative reports of only Dr.
Dubey and Dr. Evans. The report from a third consultative examination, conducted
by Kent Rowland, Ph.D., on October 2, 2012, see PageID 819-22, was not considered
by the administrative law judge because plaintiff denied that she was the person
examined. PageID 745-46, 759.

8

demands and requiring only superficial interaction with the general public,
although plaintiff may react negatively to criticism. PageID

826.

Plaintiff was re-assessed for treatment at Southeast by Rebekah
MacCaughey, L.S.W., in November 2012. PageID 1519-23. Plaintiff reported
ongoing depression since early adolescence, which had worsened between 2004
and 2008 when three family members died unexpectedly while she was in
prison.

Plaintiff

reported

sadness,

crying

spells,

fatigue,

racing

thoughts, difficulty falling/staying asleep, disrupted appetite, weight
gain, and increased isolation. Ms. MacCaughey diagnosed major depressive
affective disorder, recurrent, severe, without mention of psychotic
behavior; cocaine dependence, in remission; non-dependent cannabis abuse,
in remission; and borderline intellectual functioning. She assigned a GAF
score of 50, which is suggestive of serious symptomatology.

PageID 1523.

State agency psychologist Karla Voyten, Ph.D., reviewed plaintiff’s
file on February 25, 2013, and affirmed Dr. Hoyle’s assessment. PageID
843-44.
When seen by Dr. Hasan at Southeast in July 2013, plaintiff reported
anxious/fearful

thoughts,

depressed

mood,

difficulty

concentrating,

difficulty falling asleep, diminished interest or pleasure, and racing
thoughts. She denied increased energy, hallucinations or thoughts of death
or suicide. On mental status examination, she exhibited no sign of psychosis
or mania. Her appearance was appropriate, she was oriented to person, place,
time

and

situation.

Her

behavior

and

psychomotor

behaviors

were

unremarkable, her speech was appropriate, her affect was constricted, her
mood was depressed, her memory was intact, her attitude was cooperative,
and her judgment/insight were fair. Dr. Hasan diagnosed a major depressive
affective disorder, recurrent episode; cocaine dependence, in remission;

9

and non-dependent cannabis abuse, in remission. He assigned a GAF score
of 55.

PageID 1533-35.

Eleanora Sikio-Klisovic, M.D., consultatively evaluated plaintiff
for “capacity” during her August 2013 hospitalization for COPD.
1650-56.

PageID

According to Dr.Sikio-Klisovic, plaintiff was in a frustrated

mood but mental status findings, including attention, orientation, affect,
and thought process, were otherwise normal. Plaintiff reported no suicidal
or homicidal ideation, her insight and judgment were appropriate, and there
were no gross deficits of cognition. PageID 1654-55.
V.

Administrative Hearing
At the administrative hearing, plaintiff testified that she lives

alone.

PageID 766.

Her daughter comes over every other week to help her

with laundry. PageID 767.

She can perform other chores, including house

cleaning, independently; she can care for her personal needs. PageID
767-68.

She enjoys reading, watching television, and going to the library.

PageID 787. She spends time with her grandchildren. PageID 788. She does
not

drive

but

relies

on

others

transportation. PageID 768-69.

to

transport

her

or

uses

public

She is able to go shopping. PageID 769-70.

She testified that she is compliant with court-ordered mental health
treatment. PageID 785-86.
Plaintiff reported that her last job ended when “a lot of people got
laid off.”

PageID 771. She cannot work because she becomes confused and

has difficulty understanding. She noted her boss got tired of explaining
to her how to perform her job duties “over and over.”

PageID 775.

Plaintiff testified that she suffers from depression caused, in part,
by the death of her son.

PageID 778. She also sometimes suffers from

10

anxiety or nervousness. PageID 779. She has difficulty breathing because
of her COPD, particularly in hot or cold temperatures, PageID 781, although
she acknowledged that she smokes ½ pack of cigarettes per day, PageID 794.
She can walk a city block but has problems standing because of the blood
clot in her leg. PageID 782.
Plaintiff’s daughter, Davonna Johnson, also testified at the hearing.
PageID 795- 801. Ms. Johnson sees her mother every day.

PageID 795, 798.

She assists her mother with dressing, grocery shopping and other chores.
PageID 798. Her mother suffers from bipolar disorder, and a blood disorder,
and has breathing issues. PageID 796. According to Ms. Johnson, plaintiff
cannot walk far because of shortness of breath. Id. She must take breaks
while performing housework and she cannot work around chemicals. Id. She
experiences depression and has problems with concentration. PageID 797.
Things must be repeatedly explained to her. Id.
V. Discussion
As noted supra, the administrative law judge found that plaintiff has
an RFC for a reduced range of light work. Plaintiff complains that, in
formulating this RFC, the administrative law judge failed to properly
consider plaintiff’s obesity. “Obesity is a complex, chronic disease
characterized by excessive accumulation of body fat.” Social Security
Ruling 02-01p, 2000 WL 628049 (Sept. 12, 2002). An administrative law judge
must consider the impact of a claimant’s obesity on her RFC. Id. Plaintiff’s
BMI of 35.74 is evidence of obesity. See id.
The administrative law judge included obesity in plaintiff’s severe
impairments, PageID 736, and expressly considered the impact of plaintiff’s
obesity:

11

With regard to the claimant’s obesity, the record indicates that
the claimant is 5’0” tall and weighed about 183 pounds, giving
her a [BMI] of 35.74 and placing her in the obese category.
Although there is no listing for obesity, the claimant’s weight
has been carefully considered within the parameters of Social
Security Rule 02-01p. While it is recognized that her weight may
well aggravate other complaints, it does not reasonably appear
that the extent of her obesity, even when considered in
combination with her other documented impairments, meets or
equals a listed impairment or would preclude all work or reduce
her functioning to the level contemplated by any Listing.
PageID 738. In finding that plaintiff has the RFC for a reduced range of
light work, the administrative law judge found as follows:
While the claimant does physical [sic] impairments that would
limit her physical abilities somewhat, such as obesity, deep
venous thrombosis of the left lower extremity, celiac artery
thrombus and COPD, physical exams regularly showed that she
retained full strength in the extremities and normal gait with
no evidence of neurological or sensory deficits.
PageID 748. This Court concludes that the administrative law judge properly
considered and evaluated plaintiff’s obesity. Significantly, plaintiff
does not suggest any greater functional limitation caused by her obesity
beyond those found by the administrative law judge.
Plaintiff next contends that, in formulating plaintiff’s mental RFC,
the administrative law judge over-relied on moderate range GAF scores and
improperly failed to credit GAF scores that suggested a greater degree of
limitation than that found by the administrative law judge.
Although

not

dispositive,

a

GAF

score

can

be

helpful

to

an

administrative law judge in formulating a claimant’s RFC. Howard v. Comm’r
of Soc. Sec., 276 F.3d 235, 241 (6th Cir. 2002); Kornecky v. Commissioner
of Social Security, 167 Fed. Appx. 496, 503 n. 7 (6th Cir. 2006). “[I]t
allows a mental health professional to turn medical signs and symptoms into
a general assessment, understandable by a lay person, of an individual's
mental functioning.” Kornecky, 167 Fed. Appx. at 503 n.7. In this case,

12

GAF scores suggestive of moderate symptomatology were rendered by Dr. Dubey
in April 2010, PageID 992, by Dr. Hasan in May 2011, PageID

1537, by Dr.

Evans in January 2012, PageID 1008, and again by Dr. Hasan in July 2013,
PageID 1535. GAF scores suggestive of serious symptomatology were rendered
only by an unidentified evaluator in May 2011, PageID 997, and by a social
worker in November 2012, PageID 1523. Both of these assessments were made
after plaintiff had been without mental health care for a significant period
of time. The administrative law judge noted most of these scores. See PageID
744-46. Plaintiff complains that the administrative law judge improperly
failed to mention the May 2011 GAF score of 48 by the unidentified evaluator;
however, an administrative law judge is not required to mention every piece
of evidence in the record. Kornecky, 167 Fed. Appx. at 507-08(“An ALJ can
consider all the evidence without directly addressing in his written
decision every piece of evidence submitted by a party”)(internal quotation
marks omitted); Heston v. Commissioner of Social Security, 245 F.3d 528,
534-35 (6th Cir. 2001). In any event, the administrative law judge’s
assessment of plaintiff’s mental impairments and RFC from a mental
perspective did not rely solely on those scores. The Court perceives no
error in this regard.
Finally, plaintiff complains that the administrative law judge
erroneously based his credibility determination on plaintiff’s financial
ability to undergo care and, in doing so, cited non-binding authority from
a different jurisdiction, Craig v. Chater, 943 F. Supp. 1184, 1190 (W.D.
Mo. 1996). The administrative law judge considered plaintiff’s credibility
as follows:
Several inconsistencies throughout the record further undermine
the credibility of the claimant’s allegations. As discussed
above, the record documents significant noncompliance with
follow-up recommendations, particularly as it relates to the

13

claimant’s Coumadin therapy. While the claimant indicated she
could not afford medical care due to financial problems and lack
of insurance, financial problems are not always an adequate
excuse for failure to seek regular medical treatment or
follow-up. . . . It is also noted that the claimant was made
aware of low-income options, which were available to the
claimant to ensure treatment. For example, in July 2012,
treatment notes document that the claimant had 100% financial
assistance through at least September 2012 from the Ohio State
University Medical Center; however, the claimant still failed
to show for a follow-up appointment. Further, Mr. Fenlon
assisted the claimant with obtaining social benefits, including
food bank assistance and house assistance, which suggests would
[sic] have been able to apply for medication assistance.
Additionally, the claimant told sources that she stopped
attending Coumadin treatment due to lack of finances but failed
to tell the clinics that she was unable to afford the services.
Rather, the claimant simply did not show up for appointments
resulting her [sic] in discharge. It could be argued that the
claimant’s mental symptomology [sic] played a role in her
noncompliance; however, she was deemed mentally competent to
make her own health care decisions, which contradicts this
argument.
The claimant also testified that her mental symptomology [sic]
was controlled with medication, indicating that she felt
“steady” with appropriate treatment. She testified that she was
doing fairly well from a mental standpoint, which belies
allegations of a disabling mental impairment. Moreover, at the
hearing, the claimant betrayed no evidence of pain or discomfort
while testifying at the hearing. While the hearing was
short-lived and cannot be considered a conclusive indicator of
the claimant’s overall level of pain on a day-to-day basis, the
apparent lack of discomfort during the hearing is given some
slight weight in reaching the conclusion regarding the
credibility of the claimant’s allegations and the claimant’s
residual functional capacity. Further, the claimant’s admitted
daily activities are not limited to the extent one would expect
given complaints of disabling symptoms and limitations. In
particular, the claimant was able to utilize public
transportation regularly. She enjoyed going to the library and
reading for pleasure. She was able to name specific authors that
she enjoyed reading. She also indicated that she enjoyed
spending time with her grandchildren. She testified that she
walked around the zoo with her family, although she required
breaks. In all, these activities suggest greater abilities in
not only physical functions but also mental functions, in
particular as it relates to concentration and social
functioning.
PageID 747-48 (citations in and to the record omitted).
In evaluating a claimant’s credibility, an administrative law judge

14

should consider the objective medical evidence and the following 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)).

However, credibility determinations must be clearly explained.

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. & Welfare,
577 F.2d 383, 386–87 (6th Cir. 1978).
In the case presently before the Court, the administrative law judge
considered the appropriate factors. In noting that the record documents
numerous instances of plaintiff’s non-compliance with treatment or of
failure to follow-up with treatment, the administrative law judge did not
base his finding on plaintiff’s inability to pay for such treatment. Rather,
the administrative law judge found that plaintiff’s assertions of financial

15

constraint as an explanation for her failure to pursue treatment were simply
unworthy of credit. Moreover, the administrative law judge’s reference to
a case from a different jurisdiction is simply immaterial to this Court
resolution of the issues presented in this case. Although plaintiff argues
in her Reply that her failure to pursue treatment is itself a manifestation
of her mental impairments, this Court concludes that the administrative
law judge’s credibility determination enjoys substantial support in the
record.

Under these circumstances, the Court will not – and indeed cannot

– disturb that determination.
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).

16

June 12, 2015
Date

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

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