Simpson v. Commissioner of Social Security

Filing 16

REPORT AND RECOMMENDATIONS re 3 Complaint filed by Teresa L. Simpson. It is RECOMMENDED that the decision of the Commissioner be AFFIRMED and that this action be DISMISSED. Objections to R&R due by 4/30/2015. Signed by Magistrate Judge Norah McCann King on 4/13/2015. (pes1)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
TERESA L. SIMPSON,
Plaintiff,
vs.

Civil Action 2:14-cv-1372
Judge Frost
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 applications for a period of disability,
disability insurance benefits, and supplemental security income.

This

matter is before the Court for consideration of Plaintiff’s, Teresa L.
Simpson, Statement of Errors (“Statement of Errors”), Doc. No. 14, and
the Commissioner’s Memorandum in Opposition, Doc. No. 15.
I.

Background
Plaintiff Teresa L. Simpson filed her applications for benefits

on May 16, 2012, alleging that she has been disabled since April 7,
2003.

PAGEID 54, 279-91.

The claims were denied initially and upon

reconsideration, and plaintiff requested a de novo hearing before an
administrative law judge.
An initial administrative hearing was held on September 24, 2013,
at which plaintiff, represented by counsel, appeared and testified.
PAGEID 104-14.

That hearing was continued to permit plaintiff to

obtain additional medical evidence.

PAGEID 109-14.

A supplemental

hearing was held on February 11, 2014, at which plaintiff, represented
by counsel, appeared and testified, as did Jerry A. Olsheski, Ph.D.,
who testified as a vocational expert.

PAGEID 87-103.

In a decision

dated March 4, 2014, the administrative law judge concluded that
plaintiff was not disabled from April 7, 2003, through the date of the
administrative decision.

PAGEID 54-76.

That decision became the

final decision of the Commissioner of Social Security when the Appeals
Council declined review on June 24, 2014.

PAGEID 37-39.

Plaintiff was 41 years of age on the date of the administrative
decision.

See PAGEID 76, 279.

She has at least a high school

education, is able to communicate in English, and has past relevant
work as a warehouse worker.

PAGEID 74.

Plaintiff was last insured

for disability insurance purposes on December 31, 2008.

PAGEID 56.

She has not engaged in substantial gainful activity since April 7,
2003, her alleged date of onset of disability.
II.

Id.

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

impairments consist of degenerative disc disease of the lumbar spine
at L4-5 and L5-S1, accompanied by a small disc herniation at L4-5; a
major depressive disorder, with anxiety; and a post-traumatic stress
disorder.

PAGEID 56.

The administrative law judge also found that

plaintiff’s impairments neither meet nor equal a listed impairment and
leave plaintiff with the RFC to
perform medium work as defined in 20 CFR 404.1567(c) and
416.967(c). Specifically she can lift and carry 50 pounds

2

occasionally and 25 pounds frequently, and sit, stand, and
walk for six hours each in an eight-hour work day.
She
retains the capacity to understand, remember, and carry out
simple to moderately complex tasks and instructions.
She
retains sufficient attention to complete such tasks for two
segments throughout an eight-hour work day.
She further
retains
the
capacity
to
respond
appropriately
to
supervisors and coworkers, adapt to simple change, and
avoid hazards in the work place.
PAGEID 64-68.

Although this RFC precludes the performance of

plaintiff’s past relevant work as a warehouse worker, the
administrative law judge relied on the testimony of the vocational
expert to find that plaintiff is nevertheless able to perform a
significant number of jobs in the national economy, including such
representative jobs as hand packer, packing and filling machine
tender, and cleaner.

PAGEID 74-75.

Accordingly, the administrative

law judge concluded that plaintiff was not disabled within the meaning
of the Social Security Act from April 7, 2003, through the date of the
administrative decision.

PAGEID 76.

III. 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

3

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.

In her Statement of Errors, plaintiff argues, first, that the
administrative law judge erred in evaluating the medical opinions of
record.

Plaintiff argues that the administrative law judge erred “in

refusing to give controlling weight or at least great weight” to the
July 8, 2003 and July 6, 2004 opinions of Gregory Fisher, M.D., to the
December 17, 2003 opinion of Robert Turner, M.D., to the March 30,
2005 opinion of R. Earl Bartley, M.D., to the January 20, 2006 opinion
of William Reynolds, M.D., and to the August 14, 2012 opinion of David
Rudy, M.D.1

Statement of Errors, pp. 7-11.

According to plaintiff, it

was error for the administrative law judge to discount these opinions

1

Both the administrative law judge and plaintiff refer to Dr. Rudy’s opinion
as the opinion of Julie Rutledge, M.D. See Statement of Errors, p. 10;
PAGEID 73. However, the opinion cited by plaintiff and the administrative
law judge was authored by Dr. David Rudy. See PAGEID 670-77.

4

and, by doing so, the administrative law judge improperly
“substitut[ed] his own opinion.”

Id. at pp. 10-11.

Dr. Fisher evaluated plaintiff on July 8, 2003, in connection
with an injury sustained by plaintiff in the workplace on October 12,
2002.

PAGEID 365-68.

On examination, Dr. Fisher noted very mild

tenderness/pain on palpation of the low back area.

PAGEID 366.

Plaintiff had a normal gait, straight-leg raising was negative,
sensation of the lower extremities was intact, motor power was 5/5
over the lower extremities, Faber tests were negative bilaterally, and
plaintiff manifested no obvious distress.

Id.

Dr. Fisher opined that

plaintiff had not reached maximum medical improvement and recommended
additional treatment, including physical therapy, aquatherapy, a homeexercise program, and anti-inflammatory medications and muscle
relaxants.

PAGEID 367.

Dr. Fisher also opined that plaintiff could

not return to her former position as a general laborer or warehouse
person because of her back condition, but that she would likely be
able to return to work in the future with limitations on lifting and
carrying up to 30-40 pounds with no repetitive movements such as
bending, stooping, or twisting.

PAGEID 368.

Dr. Turner evaluated plaintiff on December 17, 2003.
72.

PAGEID 370-

On examination, Dr. Turner noted that plaintiff did not appear to

be in distress while at rest.

PAGEID 371.

Plaintiff had “good

segmental motion,” no atrophy of the thigh, no motor loss, negative
straight leg raising and normal alignment of the lumbar spine; she
ambulated without difficulty.

Id.

Dr. Turner commented that

5

plaintiff had not reached maximum medical improvement but believed
that she would likely do so within three months.

Id.

According to

Dr. Turner, plaintiff could not return to her previous employment
because lifting 80 pounds to shoulder level would “be very difficult
for her to do.”

Id.

Dr. Turner also opined that plaintiff would be

“unable to lift more than 20 lb. on a regular basis; she is unable to
bend or stoop repetitively.” Based on plaintiff’s reported symptoms,
Dr. Turner believed that “returning to work with restrictions is not a
reasonable goal.”

Id.

Dr. Turner further opined that plaintiff

“would certainly be a candidate for vocational rehabilitation.”
PAGEID 372.
Dr. Fisher evaluated plaintiff for a second time on July 6, 2004.
PAGEID 373-76.

On examination, Dr. Fisher noted positive straight leg

raising on the left, complaints of mild discomfort and pain in the low
back area with palpation, motor power of 5/5, and decreased sensation
over the lateral aspect of the left thigh and calf area.
75.

PAGEID 374-

According to Dr. Fisher, plaintiff had not reached maximum

medical improvement for her 2002 back injury but she could not return
to her former work as a general laborer.

PAGEID 375.

Dr. Fisher also

opined that plaintiff could do “light duty status work” and that she
should avoid repetitive bending at the waist, stooping, kneeling, and
twisting activities of the back.

PAGIED 375-76.

He opined that

plaintiff “should not be lifting or carrying objects over 15 pounds,”
“should not be climbing stairs or ladders repetitively,” and could

6

stand and walk for one to two hours and sit for four to five hours
during an eight-hour workday.

PAGEID 376.

Dr. Bartley evaluated plaintiff on March 30, 2005.
83.

PAGEID 382-

On examination, Dr. Bartley noted an antalgic gait, tenderness in

the low back at L4-S1 and from left to right at the SI joint, weakness
in the left leg, decreased sensation at the L4-S1 dermatome, negative
straight leg raising, and a normal Babinski.

PAGEID 382.

Dr. Bartley

characterized the exam as consistent with mild radiculitis.
383.

PAGEID

Dr. Bartley commented that plaintiff had not reached maximum

medical improvement and recommended a trial of epidural steroid
injections followed by physical therapy.

Id.

He opined that

plaintiff could not return to her former job because it required
significant lifting.

Id.

“Current work restrictions would be

sedentary work with a lifting maximum of 10 pounds with limited
overhead lifting.

She is able to sit for four to six hours per day

with walking of one to two hours.
crawling.”

No squatting, kneeling, or

Id.

Plaintiff was examined by Dr. Reynolds on January 17, 2006.
PAGEID 419-20.

On examination, plaintiff had normal station and gait,

some tenderness in the lumbosacral area, equal deep tendon reflexes at
the ankles and knees, no measurable calf atrophy, no weakness of the
great toe extensors, negative Patrick’s test, negative straight leg
raising, and no Babinski sign.

PAGEID 419.

According to Dr.

Reynolds, plaintiff had reached maximum medical improvement and was
unable to return to her “former position of employment where she [was]

7

required to lift 70-80 pounds” because she had a lifting limitation of
10 pounds.

PAGEID 420.

Plaintiff was evaluated by Dr. Rudy on August 14, 2012.
670-77.

PAGEID

On examination, Lasegue test and straight leg raising was

positive on the left and plaintiff’s gait was “basically normal.”
PAGIED 671.
Id.

Knee jerk was “about 2+” on the left and 4+ on the right.

Dr. Rudy diagnosed lumbar radiculopathy with intermittent sensory

deficit, severe low back pain aggravated by brief periods of standing
and walking, horseshoe kidney (which does not qualify as a basis for
disability in the urinary system), unexplained urinary incontinence,
vascular headaches, and carpal tunnel syndrome which does not involve
serious debility of grip but which causes morning hypesthesia of the
fingers in the median nerve distribution.

PAGEID 672.

Dr. Rudy

opined that plaintiff
has disability due to her radiculopathy involving the left
lumbar region more than the right which appears to be
mainly L4-5 but also some characteristics of S1. The L4-5
has resulted in a decreased knee jerk.
There are no
pathologic reflexes. The ankle jerks were brisk. She has
a social disability with urinary incontinence but has not
been properly evaluated or diagnosed and it is doubtful
that it would be due to pelvic relaxation with only one
pregnancy with vaginal delivery.
Migraine headaches are
doubtful as to a source of true disability and they may
even satisfy the criteria for migraine but would be rather
called vascular headaches.
She cannot occupy a job which
calls for her to be on her feet indefinitely or to walk
indefinitely. She could do sedentary work. She could not
lift more than 25 pounds and could not carry it more than
about 50 yards.
PAGEID 671-72.
Plaintiff refers to Dr. Fisher, Dr. Turner, Dr. Bartley, and Dr.
Reynolds as treating sources and characterizes Dr. Rudy as a

8

consultative examiner.

See Statement of Errors, pp. 7-11.

All of

these doctors, however, were consultative examiners and are properly
classified as nontreating sources.

See 20 C.F.R. §§ 404.1502, 416.902

(“Nontreating source means a physician, psychologist, or other
acceptable medical source who has examined [the claimant] but does not
have, or did not have, an ongoing treatment relationship with [the
claimant].”); PAGEID 367 (Dr. Fisher stated that his July 2003 exam
was “an orthopedic independent medical evaluation” for the Bureau of
Workers’ Compensation); PAGEID 370 (Dr. Turner evaluated plaintiff at
the request of the Bureau of Workers’ Compensation); PAGEID 382 (Dr.
Bartley provided an “independent medical examination”); PAGEID 420
(Dr. Reynolds stated: “I have not provided care for this patient.

I

have seen this patient one time for the purpose of evaluating medical
impairment.”); PAGEID 672 (Dr. Rudy stated: “The claimant understood
that no doctor/patient relationship was implied or stated.”).
With regard to nontreating sources, the Commissioner’s
regulations provide that the agency will simply “give more weight to
the opinion of a source who has examined [the claimant] than to the
opinion of a source who has not examined” the claimant.
404.1527(d)(1), 416.927(d)(1).

20 C.F.R. §§

In evaluating the opinions of

nontreating sources such as Drs. Fisher, Turner, Bartley, Reynolds,
and Rudy, an administrative law judge should consider such factors as
“the evidence that the physician offered in support of her opinion,
how consistent the opinion is with the record as a whole, and whether
the physician was practicing in her specialty.”

9

Ealy v. Comm’r of

Soc. Sec., 594 F.3d 504, 514 (6th Cir. 2010) (citing 20 C.F.R. §
404.1527(d)).
The administrative law judge expressly considered the July 8,
2003 and July 6, 2004 opinions of Dr. Fisher, the December 17, 2003
opinion of Dr. Turner, and the March 30, 2005 opinion of Dr. Bartley,
but determined that these opinions could not be “assigned any
significant weight.”

PAGEID 72-73.

According to the administrative

law judge, these opinions were “intended as an assessment of the
claimant’s status for only a finite period of time during the
claimant’s convalescence from her original work-related injury” and
the “evidence fails to document that [the doctors’] limitations were
intended to be permanent restrictions.”

Id.

The administrative law

judge also found that the limitations opined by Dr. Fisher, Dr.
Turner, and Dr. Bartley “still permitted the claimant to engage in a
range of work, which is consistent with the finding reached in this
decision.”

Id.

The administrative law judge provided specific

reasons for discounting the opinions of Dr. Fisher, Dr. Turner, and
Dr. Bartley, and those reasons are supported by substantial evidence.
The administrative law judge also considered the January 20, 2006
opinion of Dr. Reynolds and assigned it partial weight.

PAGEID 73.

The administrative law judge assigned significant weight to Dr.
Reynolds’ “opinion that the claimant is unable to return to her past
relevant work,” but did not afford any weight to Dr. Reynolds’ opinion
that plaintiff would be limited to lifting only 10 pounds.
this regard, the administrative law judge explained that “it

10

Id.

In

appear[ed] that Dr. Reynolds relied quite heavily on the subjective
reports of symptoms and limitations provided by the claimant, and that
he uncritically accepted as true most, if not all, of what the
claimant reported.”

Id.

The administrative law judge also considered

the August 14, 2012 opinion of Dr. Rudy, but assigned that opinion no
significant weight for the same reasons that he discounted Dr.
Reynolds’ opinion.

Id.

The administrative law judge also found that

Dr. Rudy’s opinion was inconsistent with other credible opinion
evidence of record.

Id.

The Court finds that the administrative law

judge’s reasoning for discounting the opinions of Dr. Reynolds and Dr.
Rudy is supported by substantial evidence.

It is evident from the

opinions of Dr. Reynolds and Dr. Rudy that both doctors relied on
plaintiff’s subjective complaints in forming their opinions. See
PAGEID 419-20, 670-77. Moreover, Dr. Rudy’s opinion is inconsistent
with the opinion of Elizabeth Das, M.D., who opined that plaintiff
could lift and/or carry 50 pounds occasionally and 25 pounds
frequently and could stand/walk and sit each for about six hours in an
eight-hour workday.

PAGEID 171-73.

Plaintiff argues that, by discounting the opinions of Dr. Fisher,
Dr. Turner, Dr. Bartley, Dr. Reynolds, and Dr. Rudy, the
administrative law judge “substitut[ed] his own opinion” for that of
the medical opinions.
disagrees.

Statement of Errors, p. 11.

This Court

This is simply not a case in which the administrative law

judge interpreted raw medical records without the assistance of
medical opinions regarding a claimant's abilities.

11

See Deskin v.

Comm’r of Soc. Sec., 605 F. Supp. 2d 908 (N.D. Ohio 2008).

Rather,

the administrative law judge was called upon to evaluate the various
and in some respects conflicting medical opinions and to determine the
weight to be assigned to each.

The administrative law judge properly

engaged in this process and his findings in this regard enjoy
substantial support in the record.
Plaintiff next argues that, in light of these medical opinions,
she is “not completely sure where the ALJ found that the Plaintiff
could perform medium work.”

Statement of Errors, pp. 10-11.

It is

clear, however, that the administrative law judge expressly adopted
the opinion of Dr. Das, who opined that plaintiff could lift and/or
carry 50 pounds occasionally and 25 pounds frequently and stand/walk
and sit each for about six hours in an eight-hour workday.

PAGEID

171-73.
In her Statement of Errors, plaintiff next argues that the
administrative law judge erred in finding that plaintiff’s “mental
impairment does not meet or medically equal the criteria of listings
12.04 and 12.06.”

Statement of Errors, pp. 11-13. Listing 12.04

applies to affective disorders “[c]haracterized by a disturbance of
mood, accompanied by a full or partial manic or depressive syndrome.”
20 C.F.R. § Pt. 404, Subpt. P, App. 1, § 12.04.

To satisfy the

requirements of Listing 12.04, a claimant must meet the “paragraph A”
and “paragraph B” requirements or the “paragraph C” requirements of
the listing.

Id.

Listing 12.06 applies to anxiety related disorders

where “anxiety is either the predominant disturbance or it is

12

experienced if the individual attempts to master symptoms.”
12.06.

Id. at §

In order to meet Listing 12.06, a claimant must satisfy the

requirements of “paragraph A” and “paragraph B” or “paragraph A” and
“paragraph C” of the listing

Id.

In order to satisfy the “paragraph

B” criteria for either listing, the mental impairment must result in
at least two of the following: marked restriction of activities of
daily living; marked difficulties in maintaining social functioning;
marked difficulties in maintaining concentration, persistence, or
pace; or repeated episodes of decompensation, each of extended
duration.

See id. at §§ 12.04, 12.06.

“The term repeated episodes of

decompensation, each of extended duration . . . means three episodes
within 1 year, or an average of once every 4 months, each lasting for
at least 2 weeks.”

Id. at § 12.00(C)(4).

The administrative law judge dedicated three pages of his
decision to the evaluation of Listings 12.04 and 12.06, but found that
the severity of plaintiff’s mental impairment does not meet or
medically equal the criteria of either listing.

PAGEID 65-68.

In

evaluating the paragraph B criteria, the administrative law judge
found that plaintiff has mild restriction in activities of daily
living, no difficulties in social functioning and moderate
difficulties in concentration, persistence, or pace; she experienced
no episodes of decompensation of extended duration.

PAGEID 65-67.

Plaintiff appears to argue that she meets Listings 12.04 and
12.06 because she satisfies the “paragraph B” criteria.
of Errors, pp. 11-13.

See Statement

In this regard, plaintiff argues that the

13

administrative law judge erred in “minimizing the fact that the
plaintiff has been hospitalized three different times on suicide
attempts.”

Id. at p. 12.

Plaintiff equates these hospitalizations

with episodes of decompensation.

However, only one of plaintiff’s

hospitalizations lasted for an extended period of time.

See PAGEID

67; 708-20 (hospitalization from November 15 until November 20, 2012);
748-51 (hospitalization from February 25 until March 5, 2013); 752-57
(hospitalization from March 25, 2013 to April 8, 2013).

See also

PAGEID 170-74 (February 6, 2013 opinion by Caroline Lewin, Ph.D., that
plaintiff had not experienced any repeated episodes of decompensation,
each of extended duration).

The Court also notes that plaintiff has

not argued (nor has she cited any evidence) that she satisfies the
paragraph A criteria of Listings 12.04 or 12.06.
Plaintiff also argues that the administrative law judge erred in
his credibility determination.

Statement of Errors, pp. 14-17.

Plaintiff specifically argues that the administrative law judge erred
in discounting plaintiff’s credibility in light of her three suicide
attempts, the opinions of Drs. Fisher, Turner, Bartley, Reynolds, and
Rudy, and because “the large amount of medical documents in the file
support[s] that the Plaintiff has some very serious physical and
mental conditions.”

Id.

Plaintiff argues that it was error to find

that her “complaints are disproportionate and not supported by the
objective and substantial evidence of the record.”

Id. at p. 15.

Plaintiff further argues that it was error to discount her credibility
for “not want[ing] to undergo a very severe and complicated surgery”

14

and for not completing physical therapy because “she had to stop due
to chronic low back pain.”

Id. at p. 16.

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

Casey v. Sec’y of Health & Human Servs., 987 F.2d

1230, 1234 (6th Cir. 1993).

See also 42 U.S.C. § 423(d)(5)(A).

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'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)).
credibility determinations must be clearly explained.

However,

See Auer v.

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

15

See Felisky v.

If

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 summarized plaintiff’s subjective complaints and her testimony
at the administrative hearing, but found that plaintiff’s subjective
complaints and testimony were “not entirely credible.”

PAGEID 69-72.

The administrative law judge evaluated the medical evidence,
articulated the proper standard for evaluating a claimant’s
credibility, and dedicated four pages to the evaluation of plaintiff’s
credibility.

The administrative law judge provided numerous reasons

for discounting plaintiff’s credibility, including, inter alia, a lack
of objective medical evidence to support the extent of plaintiff’s
subjective complaints, the fact that plaintiff did not consistently
complain of any psychologically based symptoms until 2012, the absence
of disabling deficits in any area of mental functioning, the fact that
plaintiff returned to work within two days of her work-related injury
in 2002 and was laid off because no light duty work was available to
her at that time, the assessments of examining medical sources who
opined that plaintiff retains a sufficient functional capacity for
work, the fact that plaintiff was able to go for extended periods of
time without any prescription pain medication, the fact that plaintiff
was discharged from a number of pain management programs due to
noncompliance, and plaintiff’s failure to use a spinal cord
stimulator.

Id.

The administrative law judge’s reasoning and

analysis are supported by substantial evidence, as cited by the

16

administrative law judge.
Plaintiff also argues that the administrative law judge should
not have considered, in discounting her credibility, plaintiff’s
resistance to risky surgery and failure to complete physical therapy
when it increased her pain.

It was not improper as a matter of law

for the administrative law judge to consider that plaintiff refused
surgery and failed to complete physical therapy.

Even if error,

however, any such error in this regard was harmless considering the
remainder the administrative law judge’s credibility evaluation and
the deferential standard of review to which that evaluation is
entitled.

Notably, plaintiff has not challenged the overwhelming

majority of the administrative law judge’s credibility determination.
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.

The

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

This 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).
Finally, plaintiff argues, without citing the record or any
authority, that the administrative law judge erred in finding that the
claimant could perform medium work without “address[ing] in the order
what additional limitations he was applying to the medium RFC.”
Statement of Errors, p. 17.
without merit.

Plaintiff’s argument in this regard is

First, the administrative law judge’s RFC

17

determination specifically sets forth the limitations found by him.
See PAGEID 68.

Second, the hypothetical questions posed by the

administrative law judge to the vocational expert at the
administrative hearing included the limitations found in the RFC
determination.

PAGEID 100-01.

Plaintiff’s argument in this regard is

therefore without merit. See Varley v. Sec’y of Health & Human Servs.,
820 F.2d 777, 779 (6th Cir. 1987)(the administrative law judge may rely
on the testimony of a vocational expert in response to a hypothetical
question that accurately portrays the claimant’s individual physical
and mental impairments).
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 the failure to object
to the Report and Recommendation will result in a waiver of the right

18

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)).

April 13, 2015

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

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