IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

Cindy L. Dolan, :

Plaintiff : Civil Action 2:10-cv-00988

v. : Judge Watson

Michael J. Astrue, : Magistrate Judge Abel

Commissioner of Social Security,

Defendant :

REPORT AND RECOMMENDATION

Plaintiff Cindy L. Nolan brings this action under 42 U.S.C. §§405(g) and

1383(c)(3) for review of a final decision of the Commissioner of Social Security denying

her application for Disability Insurance Benefits and Supplemental Security Income

benefits. This matter is before the Magistrate Judge for a report and recommendation

on the parties’ cross-motions for summary judgment.

Summary of Issues. 

Plaintiff argues that the decision of the Commissioner denying benefits should be

reversed because:

• The administrative law judge committed reversible error in refusing to

give controlling weight or at least "great weight" to the opinions of the

treating doctors; and,

• The administrative law judge improperly assessed plaintiff's credibility.

Procedural History. Plaintiff Cindy L. Nolan filed her application for disability

insurance benefits on October 20, 2004, alleging that she became disabled on October 1,

2003, at age 45, by chronic pain with fibromyalgia, asthma, emphysema, migraines,

Case: 2:10-cv-00988-MHW-MRA Doc #: 20 Filed: 08/11/11 Page: 1 of 32 PAGEID #: <pageID>
2

thyroid condition, mild heart murmur, irregular blood pressure, knee and back

problems. (R. 398-400, 63.) The application was denied initially and upon

reconsideration. Plaintiff sought a de novo hearing before an administrative law judge. 

On May 7, 2008, an administrative law judge held a hearing at which plaintiff,

represented by counsel, appeared and testified. (R. 434.) A vocational expert and a

medical advisor also testified. On June 25, 2008, the administrative law judge issued a

decision finding that Nolan was not disabled within the meaning of the Act because she

retained the ability to perform a reduced range of jobs having light exertional demands. 

(R. 28.) On September 15, 2010, the Appeals Council denied plaintiff’s request for

review and adopted the administrative law judge’s decision as the final decision of the

Commissioner of Social Security. (R. 6-8.)

Age, Education, and Work Experience. Cindy L. Nolan was born August 3,

1957. (R. 398.) She has a high school education and completed one year of college. She

also completed adult education classes in clerical work. (R. 69.) She has worked as a

clerical worker, a manager at an automobile dealership, and as a sales person. She last

worked May 7, 2004., when she was laid off due to company cutbacks. (R. 54.) 

Plaintiff’s Testimony. The administrative law judge summarized Nolan's

testimony as follows:

The claimant testified that migraines and fibromyalgia keep her from

working. Her fibromyalgia is very painful even with medication. Her pain

affects her shoulders, low back, and thighs. It feels like a knife is being put

into her. Her legs swell every once in awhile, and she has difficulty

concentrating. She has to lie down to eliminate the pain. She might be able

Case: 2:10-cv-00988-MHW-MRA Doc #: 20 Filed: 08/11/11 Page: 2 of 32 PAGEID #: <pageID>
3

to walk one day for 30 minutes but the next day might be for 15 minutes,

each day is different.

The claimant additionally stated that her headaches have been occurring

every week for the past couple of months. They occur every time she gets

stressed. Her headaches feel like a mask is around her eyes and temples

and then goes like a tight rubber band around her head. These headaches

can last for two to three days. To relieve the headaches she takes allegro

and Tylenol and then lies down with a cold washcloth in her head.

The claimant also noted that her urinary incontinence is better with

medication She also gets real dizzy when standing up, and she would

have to sit back down. She also has a trigger finger if she does something

for a long period of time. 

(R. 25-26.) 

Medical Evidence of Record. The administrative law judge’s decision fairly sets

out the relevant medical evidence of record. This Report and Recommendation will

only briefly summarize that evidence.

Adena Health System. On September 24, 2003, plaintiff had a chest x-ray based

on complaints of dyspnea. The x-ray revealed no active cardiopulmonary pathology. (R.

178.) On November 7, 2003, plaintiff underwent a spect cardiolite of her heart because

of complaints of chest pain. The resting images showed no evidence of defect. (R. 177.) 

A dobutamine cardiolite pharmacological stress study was performed. Plaintiff’s

heart rate increased to 89% of her age predicted maximum hart rate of 174 and achieved

a double product of approximately 19,840. She had no clinical angina, but she had

transient nausea, which is a typical side effect of dobutamine. The electrocardiogram

portion of the study was negative for ischemia. (R. 179-80.) 

Case: 2:10-cv-00988-MHW-MRA Doc #: 20 Filed: 08/11/11 Page: 3 of 32 PAGEID #: <pageID>
4

On December 19, 2003, plaintiff underwent right and left heart catheterizations.

(R. 183-85.) Plaintiff had normal left ventricular end diastolic pressure consistent with

complaint left ventricle. There were normal right heart pressures. The right coronary

dominant system had normal appearing epicardial coronary arteries. (R. 185.)

On November 6, 2007, plaintiff underwent a laparoscopic-assisted vaginal

hysterectomy and salpingo-oophorectomy. (R. 369-79.) 

Southern Ohio Cardiology Associates, Inc. On November 17, 2003, S. B. Patel, 

M.D., a cardiologist, evaluated plaintiff for complaints of chest tightness and shortness

of breath. Her symptoms mostly occurred on exertion and lasted a few minutes after

she stopped exerting herself. Dr. Patel noted that although Nolan did not have any

significant risk factors for coronary disease, her symptoms were suspicious for angina.

He recommended that she undergo a pharmacologic stress test because she had not

completed the treadmill exercise test. (R. 189-91.) On December 9, 2003, Joseph Ghazal,

M.D., recommended that plaintiff undergo heart catheterization because of her

continued complaints of chest pain and shortness of breath. (R. 187-88.) On January 12,

2004, Dr. Patel indicated that from a cardiovascular standpoint, plaintiff was fairly

stable. (R. 186.) 

Robert Harris, D.O. A May 8, 2004 CT scan of Nolan’s abdomen showed minor

non-specific right basilar atelectatic streak. There was no acute abnormality in the

abdomen or pelvis. (R. 288.)

Case: 2:10-cv-00988-MHW-MRA Doc #: 20 Filed: 08/11/11 Page: 4 of 32 PAGEID #: <pageID>
5

John F. Seidensticker, M.D. On June 9, 2004, Nolan underwent a thyroid uptake

study and scan. There was evidence of a hypointense nodule in the inferior aspect of the

right lobe. (R. 200.) On July 7, 2004, Dr. Seidensticker examined plaintiff. Nolan

reported that in 1990 she had thyroid enlargement and underwent a subtotal

thyroidectomy, She has been on thyroid medication since that time. Her current dose of

Synthroid was 25 micrograms daily. Nolan reported being tired, short of breath, and

sweaty. Her medical history included the onset of migraines at age 16, asthma, reflux

symptomatology. She also reported neck, back, and knee pain. On physical

examination, Nolan was in no acute distress. Dr. Seidensticker described her overall

appearance as one of fair health. Her recent TSH level was normal. A recent thyroid

uptake and scan showed evidence of a hypointense nodule in the inferior aspect of the

right lobe of the thyroid gland. Dr. Seidensticker recommended that plaintiff receive an

ultrasound of the thyroid gland. (R. 195-97.)

On July 15, 2004, plaintiff had a thyroid ultrasound which revealed a hypoechoic

nodule within the left lobe of the thyroid of uncertain significance. (R. 199.)

On July 19, 2004, Dr. Seidensticker examined plaintiff. A recent ultrasound

revealed a 1 centimeter hypoechoic, but solid, nodule within the mid pole of the left

thyroid gland. Her total thyroid size was normal. Nolan reported that this was not a

good day. A current TSH was 6.64, and Dr. Seidensticker noted that the 25 micrograms

of Synthroid was not adequate. He increased her dose to 50 micrograms daily. 

Case: 2:10-cv-00988-MHW-MRA Doc #: 20 Filed: 08/11/11 Page: 5 of 32 PAGEID #: <pageID>
6

Cathy A. Bishop, D.O. On July 29, 2002, Dr. Bishop performed a complete

physical examination. No acute issues were identified. (R. 270.) 

On September 24, 2003, plaintiff complained of swelling all over and retaining

fluid. Previous lab work had not shown any evidence of kidney dysfunction. (R. 264.) 

On October 7, 2003, Dr. Bishop noted that plaintiff was recently diagnosed with

edema and polymyalgias and arthralgias. Plaintiff was having persistent edema and an

elevated sed rate. Dr. Bishop wanted to rule out a connective tissue disorder. (R. 263.)

On January 14, 2004, Dr. Bishop gave Nolan samples of Relpax for her migraines.

Plaintiff reported persistent shortness of breath with hypothyroidism. (R. 261.) On

February 16, 2004, Dr. Bishop indicated that the Relpax seemed to alleviating plaintiff’s

migraines. On March 24, 2004, plaintiff complained of fluid retention. (R. 259.) On April

7, 2004, plaintiff reported recurrent palpitations and chest pain. (R. 258.) On May 6,

2004, plaintiff had persistent water retention, mild shortness of breath, and bloating in

her abdomen. Nolan appeared mildly edematous in her face, abdomen, and legs. Dr.

Bishop referred her for a CT scan of abdomen. (R. 257.) On July 6, 2004, Dr. Bishop

noted that plaintiff had significant problems with pain and swelling. (R. 256.) 

On August 19, 2004, Nolan presented at Dr. Bishop’s office with increasing

shortness of breath, dizziness, and was orthostatic with systolic blood pressure at 82.

Plaintiff reported having more problems with her lower back. Her breathing had

become more labored. She had been diagnosed with early emphysema by pulmonary

function testing, and overall she had been feeling poorly. She was experiencing a lot of

Case: 2:10-cv-00988-MHW-MRA Doc #: 20 Filed: 08/11/11 Page: 6 of 32 PAGEID #: <pageID>
7

bloating in her abdomen. Plaintiff was admitted to the hospital for monitoring, getting

her blood pressure under control, watching her blood sugar, getting fluid off of her, and

checking her abdominal situation. (R. 205-06.) Plaintiff was discharged on August 22,

2004 in stable condition. A CAT scan of her head was negative. An upper GI was also

negative. She had normal carotids. (R. 203-04.) 

On August 30, 2004, Nolan was seen after her hospitalization for chronic

obstructive pulmonary disorder, shortness of breath, and irritable bowel. She continued

to have abdominal discomfort with intermittent diarrhea. (R. 254.) On October 20, 2004,

plaintiff reported persistent fatigue, which Dr. Bishop opined was most likely

secondary to fibromyalgia. Dr. Bishop indicated that she wanted plaintiff to begin an

exercise regimen. (R. 253.) 

In an April 21, 2005 letter to plaintiff’s attorney, Dr. Bishop noted that she had

treated plaintiff for thyroid tumors and cysts, hypothyroidism, gastroesohageal reflux

disease, heart palpitations and panic attacks, recurrent migraines, fibromyalgia type

pain, asthma, chronic sinusitis, persistent edema, and leg weakness. Dr. Bishop opined:

I believe that Cyndi is at the point where she has multiple subjective

complaints that have led her to be unemployable for several reasons.

Number one, she has multiple areas of tenderness both in the joints and

the muscles. She has pretty extreme edema to her legs that gets worse

when she sits. She has also worsening problems with headaches and

sinuses to the point where she does not function well. On physical

examination, Cyndi has the above findings, as well as a depressed mood.

Her affect, although appropriate, is slightly flattened and depressed. She

has pretty dramatic edema to her legs and she has a lot of puffiness

around her face. Her neck shows possible signs of enlarged thyroid.

Cardiac wise, there are no extreme or abnormal findings. Her lungs are

Case: 2:10-cv-00988-MHW-MRA Doc #: 20 Filed: 08/11/11 Page: 7 of 32 PAGEID #: <pageID>
8

essentially clear, unless she has an exacerbation of her asthma, which

comes frequently with the sinusitis. Her abdomen is slightly descended

and tender. She has multiple sites of myalgias and arthalgias with

palpation, particularly around her shoulders, hips, lower back and lower

extremities. These have been findings for a number of years and again we

have tried many medications, therapies and even specialty referrals

without much success.

(R. 250.) Dr. Bishop also completed a medical findings questionnaire. She indicated that

plaintiff had chronic back and leg pain, asthma, arthritis, and hypothyroidism. Dr.

Bishop opined that plaintiff could not walk a city block without rest. She could sit for 30

minutes at a time and stand for 15 minutes at a time. She could sit for a total of 4 hours

in a day. She could stand and/or walk for a total of 4 hours in a day. She could never

lift and/or carry weight in a competitive work environment. Nolan could occasionally

bend and climb stairs, but she could never squat, crawl, or climb ladders. She could

reach above shoulder level. She should avoid dusts, flames, perfumes, and smoke. Her

pain, fatigue, and other symptoms would constantly interfere with her attention and

concentration. Dr. Bishop first examined plaintiff on June 18, 1997. (R. 248-49.) 

On May 17, 2005, Nolan complained of persistent headaches, elevated blood

pressure, and recurrent chest discomfort. Dr. Bishop believed that the chest pain could

be related to her hypothyroidism. She continued to have edema in her legs causing

difficulty with range of motion. (R. 247.) On July 11, 2005, plaintiff reported increased

palpitations, shortness of breath, and chest discomfort. (R. 244.) 

On September 14, 2005, Nolan had numerous complaints including abdominal

pain, change in stools, chest pain, dizziness, and headaches. Dr. Bishop indicated that

Case: 2:10-cv-00988-MHW-MRA Doc #: 20 Filed: 08/11/11 Page: 8 of 32 PAGEID #: <pageID>
9

she had had numerous work ups, but she had not found any significant problems.

Nolan reported that her headaches were severe. Dr. Bishop referred Nolan for an MRI

and for a scope. (R. 243.) 

On January 25, 2006, plaintiff reported a 9-day history of constipation. She had

had significant nausea and one episode of vomiting. She reported a lot of abdominal

pain. Dr. Bishop believed that the Vicodin could be causing the constipation. (R. 241.)

On May 15, 2006, plaintiff reported continued abdominal pain. (R. 236.) On May 25,

2006, plaintiff reported persistent back and chest pain. She had had multiple tests,

including an endoscopy, colonoscopy, and MRIs, without any significant findings. Dr.

Bishop referred plaintiff for another CAT scan. (R. 235.) On July 19, 2006, plaintiff

complained of persistent numbness and tingling in her right arm and face for the past

few weeks. Dr. Bishop believed that this might be caused by Lyrica and instructed her

to reduce her dose. Plaintiff was tired all the time, although she had no chest pain,

shortness of breath, nausea, vomiting, fevers, or chills. 

Martin Fritzhand, M.D. On February 8, 2011, plaintiff underwent pulmonary

functioning testing. Plaintiff exhibited mild combined obstructive and restrictive

pulmonary disease with a bronchospastic component. (R. 215-16.) 

 William Kelley, M.D. On March 1, 2005, Dr. Kelley a state agency physician,

completed a physical residual functional capacity assessment. (R. 224-31.) Dr. Kelley

opined that plaintiff could occasionally lift and/or carry 50 pounds and frequently lift

and/or carry 25 pounds. She could stand and/or walk for a total of about 6 hours in an

Case: 2:10-cv-00988-MHW-MRA Doc #: 20 Filed: 08/11/11 Page: 9 of 32 PAGEID #: <pageID>
10

8-hour workday. She could sit for about 6 hours in an 8-hour workday. She was

unlimited in her ability to push and/or pull. She could never balance. She also should

avoid concentrated exposure to fumes, odors, gases, and poor ventilation and all

exposure to hazards. 

On June 2, 2005, W. Jerry McCloud reviewed the evidence of records and Dr.

Kelley’s assessment and concurred in his findings. (R. 231.) 

On September 21, 2005, x-rays of plaintiff’s thoracic and lumbar spines were

taken. There was evidence of disk space narrowing at multiple levels of plaintiff’s

thoracic spine. There was a mild degree of disk space narrowing at the L2-L3 level of

plaintiff’s lumbar spine. (R. 278.) A MRI of plaintiff’s thoracic spine indicated that

plaintiff’s disk space heights were relatively well maintained. There was no evidence of

herniated nucleus pulposus. There was no evidence of spinal stenosis, and no acute

abnormality was seen. (R. 277.) An October 11, 2005 MRI of Nolan’s brain was

unremarkable. (R. 276.) 

A May 30, 2006 CAT scan of plaintiff’s abdomen and pelvis showed cystic

enlargement of the left ovary. There was also a tiny amount of free fluid within the

pelvis. (R. 273.) 

Herbert M. Sinning, M.D. On September 16, 2005, Dr. Sinning evaluated plaintiff

following a referral from Dr. Bishop based on a change in bowel habits with

intermittent rectal bleeding. Nolan also complained of epigastric abdominal pain and a

previous diagnosis of GERD. On examination, plaintiff was diffusely tender in all four

Case: 2:10-cv-00988-MHW-MRA Doc #: 20 Filed: 08/11/11 Page: 10 of 32 PAGEID #: <pageID>
11

quadrants of the abdomen, but there was nothing specific. The rest of her physical

examination was within normal limits. (R. 315.) An October 18, 2005 colonoscopy was

normal. There was significant gastric irritation with regenerative changes and multiple

polyps related to chronic inflammation. (R. 309-12.) 

James Folk, M.P.T. On October 25, 2005, Mr. Folk completed a functional capacity

evaluation. Nolan reported that she was diagnosed with fibromyalgia in 2004. She

stated her pain ranged from a 3 to a 10 on a ten-point scale. Mr. Folk concluded that

Nolan had the ability to work at the sedentary strength range. She could not work at the

light strength range because she could not remain on her feet for six out of eight hours.

She was unable to lift at any height on a frequent or constant basis. Nolan had limited

mobility in her cervical spine, shoulders, lumbar spine, hips, and knees, which

restricted various types of employment. Given her frequent need for rest breaks and

shortness of breath during testing, Mr. Folk assumed her endurance was poor. (R. 316-

17.) 

Jennifer Dewar, M.D. On January 24, 2007, Dr. Dewar began treating plaintiff for

her multiple chronic medical problems. Nolan described her pain as being located from

head to toe, specifically in her neck, back, arms, leg, and stomach. When she was

inactive, her pain was a 3 or 4 on a ten-point scale, but if she attempted to do dishes or

engage in household cleaning, it rose to a 9. Nolan said that her pain was wellcontrolled on her current medication regimen. She reported that she slept well at night.

Nolan had a history of migraines, and she experienced symptoms two times per month.

Case: 2:10-cv-00988-MHW-MRA Doc #: 20 Filed: 08/11/11 Page: 11 of 32 PAGEID #: <pageID>
12

She also reported a history of depression and anxiety. She took Zoloft, which controlled

her symptoms. Nolan also reported hypothyroidism and a history of urinary

incontinence due to a prolapsed bladder. Dr. Dewar diagnosed fibromyalgia,

hypothyroidism, and urinary incontinence. (R. 321-23.) 

On February 19, 2007, Dr. Dewar examined plaintiff for follow up care of chronic

pain secondary to fibromyalgia. (R. 348-49.) On March 21, 2007, plaintiff reported that

her pain was a 3 on a ten-point scale. (R. 346-47.) On May 9, 2007, plaintiff reported

midepigastric abdominal pain. (R. 343.)

On December 18, 2007, Dr. Dewar completed a fibromyalgia residual functional

capacity questionnaire. Dr. Dewar first examined plaintiff in January 2007 and has seen

her every three months thereafter. Nolan had been seen at her practice since 1996.

Nolan was diagnosed with migraine headaches, irritable bowel syndrome,

osteoarthritis, hypothyroidism, GERD, depression, anxiety, asthma, and COPD. Nolan’s

prognosis was fair. Dr. Dewar noted that plaintiff had multiple tenderpoints. Other

symptoms included nonrestorative sleep, chronic fatigue, morning stiffness, muscle

weakness, irritable bowel syndrome, frequent, severe headaches, numbness and

tingling, breathlessness, anxiety, depression, and hypothyroidism. Nolan was not a

malingerer. Emotional factors contributed to plaintiff’s symptoms. Plaintiff experienced

daily pain. Medicated, plaintiff rated her pain as a 4 out of 10; without medications, her

pain was a 10. Dr. Dewar opined that plaintiff was incapable of even low stress work.

Side effects from her medications included drowsiness. Plaintiff could only walk one

Case: 2:10-cv-00988-MHW-MRA Doc #: 20 Filed: 08/11/11 Page: 12 of 32 PAGEID #: <pageID>
13

block before experiencing severe pain or requiring rest. She could not sit more 30

minutes at a time or stand for more than 30 minutes at a time. She could only sit or

stand/walk for about 2 hours in an 8-hour day. Dr. Dewar indicated that plaintiff

needed to walk for five minutes every hour. Plaintiff required 5-10 minute breaks every

30-45 minutes. Plaintiff could occasionally lift 10 pounds or less. She had significant

limitations in repetitive reaching, handling, or fingering. Plaintiff would likely be

absent from work more than four times a month. (R. 391-95.)

Siyun Li, M.D. On July 24, 2006, Dr. Li, a neurologist, examined plaintiff based

on her complaints of constant headaches and intermittent right-sided numbness. She

experienced numbness in her arm and leg and a tingling sensation in her left eye and

face. These symptoms lasted for about ten minutes and were followed by constant

headache lasting 45 minutes to 1 hour. She reported a history of migraines and

positional vertigo. Plaintiff’s MRI of the brain was normal. Dr. Li diagnosed basilar

migraine. He prescribed Topamax. (R. 338-40.) On October 23, 2006, Dr. Li indicated

that her headaches occurred less frequently, and her headaches were not as strong. She

denied having side effects from the Topamax. (R. 336-37.) On January 20, 2007, Dr. Li

noted that plaintiff Bishop "responded well with Topamax." (R. 333.) Since her last visit,

Bishop had "three bad headaches" that "were somewhat prolonged lasting 3 to 4 days

but they were all similar quality." Id. She denied dizziness or other symptoms. Id. A

neurological examination was unremarkable. Dr. Li's impression was that Bishop's

basilar migraine headaches were "well controlled with Topamax." (R. 334.)

Case: 2:10-cv-00988-MHW-MRA Doc #: 20 Filed: 08/11/11 Page: 13 of 32 PAGEID #: <pageID>
14

On February 8, 2007, Dr. Li completed a headaches residual functional capacity

questionnaire. (R. 327-32.) He had examined plaintiff three times since February 2006

and diagnosed her with basilar migraines. Nolan experienced headaches three times per

week. Other symptoms included vertigo, nausea and vomiting, photosensitivity, and

paresthesia. Nolan’s headaches lasted for about one hour. The headaches had improved

since taking Topamax. (R. 328.) But although the frequency of the headaches had

lessened their duration was longer. Dr. Li indicated that emotional factors somewhat

impacted the severity of her headaches, but her impairments were reasonably consistent

with her symptoms and functional limitations. (R. 330.) Dr. Li opined that plaintiff was

precluded from performing even basic work activities. Nolan would be required to

take unscheduled breaks lasting for two to three hours during an 8-hour workday two

to three times per month. Dr. Li believed that plaintiff was capable of low stress jobs.

Her impairment was likely to cause “good days” and “bad days,” and she would likely

be absent from work two days per month. (R. 331.)

On May 13, 2007, Dr. Li wrote to Dr. Bishop that Nolan had three headaches

since her last visit (January 20, 2007), but they were less severe. (R. 367.) Dr. Li said the

migraines were well controlled with Topamax. (R. 368.) On September 10, 2007, Nolan 

reported only two headaches since her May visit. They were "short lasting but more

severe" and were associated with dizziness. (R. 364.) Dr. Li's impression was that the

basilar migraine headaches were "well controlled with Topamax." (R. 365.) 

Case: 2:10-cv-00988-MHW-MRA Doc #: 20 Filed: 08/11/11 Page: 14 of 32 PAGEID #: <pageID>
15

On January 7, 2008, Dr. Li completed a medical questionnaire indicating that

Nolan suffered from complicated migraines and as a result was likely to miss four or

more days of month of work. She would need unscheduled work breaks 2-3 days a

month and would need to rest for up to 2-3 days before returning to work. (R. 397.)

On March 2, 2009, Dr. Li wrote to Dr. Dewar that Nolan was complaining of

daily headaches. Over the course of treatment, the pattern of plaintiff’s headaches had

changed. Her symptoms were now less severe, but her headaches were more persistent.

An MRI was essentially normal. (R. 425.) Dr. Li said that Nolan's basilar headaches had

improved with Topamax. Her chronic daily headaches were likely rebounding headaches. (R. 426.)

Dino DeLaurentis, D.O. On May 16, 2007, Dr. DeLaurentis, a urologist, examined

plaintiff and diagnosed mixed urinary incontinence, history of irritable bowel

syndrome, history of fibromyalgia, and possible interstitial cystitis. (R. 361.)

Administrative Law Judge’s Findings. 

1. The claimant meets the insured status requirements of the Social

Security Act through December 31, 2009.

2. The claimant has not engaged in substantial gainful activity since

April 21, 2005, the amended alleged onset date (20 CFR 404.

1520(b), 404.1571 et seq., 416.920(b) and 416.971 et seq.).

3. The claimant has the following severe impairments: fibromyalgia;

migraine headaches; obesity (20 CFR 404.1520(c) and 416.920(c)).

4. The claimant does not have an impairment or combination of

impairments that meets or equals one of the listed impairments in

Case: 2:10-cv-00988-MHW-MRA Doc #: 20 Filed: 08/11/11 Page: 15 of 32 PAGEID #: <pageID>
16

20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d),

404.1525, 404.1526, 416.920(d), 416.925 and 416.926).

5. After careful consideration of the entire record, I find that the

claimant has the residual functional capacity to perform light work

with standing/walking 2 hours at a time–6 hours a day; no

limitation on sitting; and no climbing ladders or working at

unprotected heights, around moving machinery, with exposure to

temperature and humidity extremes, and with exposure to dust,

fumes, and gases. Light work involves lifting no more than 20

pounds at a time with frequent lifting or carrying of objects

weighing up to 10 pounds (20CFR 404.1567(b) and 416.967(b)).

6. The claimant is capable of performing past relevant work as an

administrative assistant, a store manager, and general clerk, a

bookkeeper, a typist, a file clerk, a retail sales person, and a sales

representative. This work does not require the performance of

work-related activities precluded by the claimant’s residual

functional capacity (20 CFR 404.1565 and 416.965).

7. The claimant has not been under a disability, as defined in the

Social Security Act, from April 21, 2005 through the date of this

decision (20 CFR 404.1520(f) and 416.920(f)).

(R. 21-27.) 

Standard of Review. Under the provisions of 42 U.S.C. §405(g), "[t]he findings

of the Commissioner as to any fact, if supported by substantial evidence, shall be

conclusive. . . ." Substantial evidence is "'such relevant evidence as a reasonable mind

might accept as adequate to support a conclusion.'" Richardson v. Perales, 402 U.S. 389,

401 (1971)(quoting Consolidated Edison Company v. NLRB, 305 U.S. 197, 229 (1938)). It is

"'more than a mere scintilla.'" Id. LeMaster v. Weinberger, 533 F.2d 337, 339 (6th Cir.

1976). The Commissioner's findings of fact must be based upon the record as a whole. 

Harris v. Heckler, 756 F.2d 431, 435 (6th Cir. 1985); Houston v. Secretary, 736 F.2d 365, 366

Case: 2:10-cv-00988-MHW-MRA Doc #: 20 Filed: 08/11/11 Page: 16 of 32 PAGEID #: <pageID>
17

(6th Cir. 1984); Fraley v. Secretary, 733 F.2d 437, 439-440 (6th Cir. 1984). In determining

whether the Commissioner's decision is supported by substantial evidence, the Court

must "'take into account whatever in the record fairly detracts from its weight.'" Beavers

v. Secretary of Health, Education and Welfare, 577 F.2d 383, 387 (6th Cir. 1978)(quoting

Universal Camera Corp. v. NLRB, 340 U.S. 474, 488 (1950)); Wages v. Secretary of Health and

Human Services, 755 F.2d 495, 497 (6th Cir. 1985).

Plaintiff’s Arguments. Plaintiff argues that the decision of the Commissioner

denying benefits should be reversed because:

• The administrative law judge committed reversible error in refusing to

give controlling weight or at least "great weight" to the opinions of the

treating doctors. Plaintiff argues that the administrative law judge failed

to give any reason for rejecting the opinion of Dr. Li. Plaintiff maintains

that the administrative law judge provided an unsupported explanation

as to why Dr. Dewar’s opinion fails to meet the three prong test of the

treating physician rule. The administrative law judge incorrectly stated

that plaintiff’s medical records do not show that she had trigger points

indicative of fibromyalgia. Nolan relies on Dr. Dewar’s December 23, 2009

treatment note indicating that plaintiff had 12 tender points of

fibromyalgia. See R. 413. Plaintiff maintains that Drs. Dewar and Li have

an extensive treatment relationship with plaintiff lasting numerous years.

Drs. Dewar and Li examined her and referred her to testing and other

Case: 2:10-cv-00988-MHW-MRA Doc #: 20 Filed: 08/11/11 Page: 17 of 32 PAGEID #: <pageID>
18

specialists. Plaintiff further maintains that the opinions of Drs. Dewar and

Li are consistent with the remaining record. The only inconsistent

evidence is the testimony of Dr. Nusbaum, the medical expert, who gave

flawed testimony. Plaintiff argues that Dr. Nusbaum mischaracterized Dr.

Li’s records. Although plaintiff’s headaches were less severe, they were

more frequent. Despite improvement of her basilar migraines with

Topamax, Nolan still had chronic daily rebound headaches. On January 7,

2008, Dr. Li noted that Nolan continued to suffer from complex migraines

and would be absent four or more times because of her migraines.

Although her headaches were short, they were severe.

• The administrative law judge improperly assessed plaintiff's credibility.

The administrative law judge discredited plaintiff based on her assertion

that her pain was well-controlled on January 20, 2007 and that in February

2007 she stated she was not experiencing any side effects from her

medications. The administrative law judge concluded that these

statements contradicted her complaints of pain and other symptoms. Dr.

Li stated, however, that plaintiff would have both good and bad days. In

the January 24, 2007 medical report, plaintiff was not referring to her

migraine headaches, and lack of side effects does not support a finding

that her complaints of pain from migraine headaches is not credible. The

administrative law judge failed to note that Nolan had a strong work

Case: 2:10-cv-00988-MHW-MRA Doc #: 20 Filed: 08/11/11 Page: 18 of 32 PAGEID #: <pageID>
1

The Commissioner’s regulations define “medical opinions” as “statements from

physicians and psychologists or other acceptable medical sources that reflect judgments

about the nature and severity of your impairment(s), including your symptoms,

diagnosis and prognosis, what you can still do despite impairment(s), and your

physical or mental restrictions.” 20 C.F.R. § 404.1527(a)(2). Treating sources often

express more than one medical opinion, including “at least one diagnosis, a prognosis

and an opinion about what the individual can still do.” SSR 96-2p, 1996 WL 374188, at

*2. When an administrative law judge fails to give a good reason for rejecting a treator’s

medical opinion, remand is required unless the failure does not ultimately affect the

decision, i.e., the error is de minimus. Wilson, 378 F.3d at 547. So reversible error is not

committed where the treator’s opinion “is patently deficient that the Commissioner

could not possibly credit it;” the administrative law judge’s findings credit the treator’s

opinion or makes findings consistent with it; or the decision meets the goal of 20 C.F.R.

§ 1527(d)(2) but does not technically meet all its requirements. Id.

19

history that should have been considered in her favor when assessing her

credibility. Nolan has been compliant with her treatment and shown a

willingness to improve her conditions.

Analysis. Treating Doctors’ Opinions. Plaintiff argues that the Administrative

Law Judge erred in rejecting the opinions of Drs. Dewar and Li that plaintiff’s

impairments precluded work activity. 

Treating Doctor: Legal Standard. A treating doctor's opinion1 on the issue of

disability is entitled to greater weight than that of a physician who has examined

plaintiff on only one occasion or who has merely conducted a paper review of the

medical evidence of record. 20 C.F.R. § 404.1527(d)(1). Hurst v. Schweiker, 725 F.2d 53,

55 (6th Cir. 1984); Lashley v. Secretary of Health and Human Services, 708 F.2d 1048, 1054

(6th Cir. 1983). The Commissioner’s regulations explain that Social Security generally

gives more weight to a treating doctors’ opinions because treators are usually “most

Case: 2:10-cv-00988-MHW-MRA Doc #: 20 Filed: 08/11/11 Page: 19 of 32 PAGEID #: <pageID>
2

Section 404.157(a)(1) provides:

You can only be found disabled if you are unable to do any substantial

gainful activity by reason of any medically determinable physical or

mental impairment which can be expected to result in death or which has

lasted or can be expected to last for a continuous period of not less than 12

months. See §404.1505. Your impairment must result from anatomical,

physiological, or psychological abnormalities which are demonstrable by

medically acceptable clinical and laboratory diagnostic techniques. See

§404.1508.

20

able to provide a detailed, longitudinal picture” of the claimant’s medical impairments.

20 C.F.R. § 404.1527(d)(2). When the treating doctor’s opinion “is well-supported by

medically acceptable clinical and laboratory diagnostic techniques and is not

inconsistent with the other substantial evidence in your case record” the Commissioner

“will give it controlling weight. “ Id.

Even though a claimant's treating physician may be expected to have a greater

insight into his patient's condition than a one-time examining physician or a medical

adviser, Congress specifically amended the Social Security Act in 1967 to provide that to

be disabling an impairment must be "medically determinable." 42 U.S.C. §423(d)(1)(A). 

Consequently, a treating doctor's opinion does not bind the Commissioner when it is

not supported by detailed clinical and diagnostic test evidence. Warner v. Commissioner of Social Security, 375 F.3d 387, 390 (6th Cir. 2004); Varley v. Secretary of Health and

Human Services, 820 F.2d 777, 779-780 (6th Cir. 1987); King v. Heckler, 742 F.2d 968, 973

(6th Cir. 1983); Halsey v. Richardson, 441 F.2d 1230, 1235-1236 (6th Cir. 1971); Lafoon v.

Califano, 558 F.2d 253, 254-256 (5th Cir. 1975). 20 C.F.R. §§404.1513(b), (c), (d),

404.1526(b), and 404.1527(a)(1)2

.

Case: 2:10-cv-00988-MHW-MRA Doc #: 20 Filed: 08/11/11 Page: 20 of 32 PAGEID #: <pageID>
21

The Commissioner's regulations provide that she will generally "give more

weight to the opinion of a source who has examined you than to the opinion of a source

who has not examined you." 20 C.F.R. § 404.1527(d)(1). When a treating source's

opinion "is well-supported by medically acceptable clinical and laboratory diagnostic

techniques and is not inconsistent with the other substantial evidence in your case

record, we will give it controlling weight." 20 C.F.R. § 404.1527(d)(2). In determining

the weight to assign a treating source's opinion, the Commissioner considers the length

of the relationship and frequency of examination; nature and extent of the treatment

relationship; how well-supported the opinion is by medical signs and laboratory

findings; its consistency with the record as a whole; the treating source's specialization;

the source's familiarity with the Social Security program and understanding of its

evidentiary requirements; and the extent to which the source is familiar with other

information in the case record relevant to decision. Id. Subject to these guidelines, the

Commissioner is the one responsible for determining whether a claimant is disabled. 20

C.F.R. § 404.1527(e)(1).

Social Security Ruling 96-2p provides that "[c]ontrolling weight cannot be given

to a treating source's medical opinion unless the opinion is well-supported by medically

acceptable clinical and laboratory diagnostic techniques." Consequently, the decisionmaker must have “an understanding of the clinical signs and laboratory findings and

what they signify." Id. When the treating source's opinion “is well-supported and not

inconsistent with the other substantial evidence in the case record, it must be given

Case: 2:10-cv-00988-MHW-MRA Doc #: 20 Filed: 08/11/11 Page: 21 of 32 PAGEID #: <pageID>
22

controlling weight . . . .” The Commissioner’s regulations further provide that the

longer a doctor has treated the claimant, the greater weight the Commissioner will give

his or her medical opinion. When the doctor has treated the claimant long enough “to

have obtained a longitudinal picture of your impairment, we will give the source’s

[opinion] more weight than we would give it if it were from a non-treating source.” 20

C.F.R. §404.1527(d)(2)(I). 

The Commissioner has issued a policy statement about how to assess treating

sources’ medical opinions. Social Security Ruling 96-2p. It emphasizes:

1. A case cannot be decided in reliance on a medical opinion

without some reasonable support for the opinion.

2. Controlling weight may be given only in appropriate

circumstances to medical opinions, i.e., opinions on the

issue(s) of the nature and severity of an individual’s

impairment(s), from treating sources.

3. Controlling weight may not be given to a treating source’s

medical opinion unless the opinion is well-supported by

medically acceptable clinical and laboratory diagnostic

techniques.

4. Even if a treating source’s medical opinion is wellsupported, controlling weight may not be given to the

opinion unless it also is “not inconsistent” with the other

substantial evidence in the case record.

5. The judgment whether a treating source’s medical opinion is

well-supported and not inconsistent with the other

substantial evidence in the case record requires an

understanding of the clinical signs and laboratory findings

and what they signify.

Case: 2:10-cv-00988-MHW-MRA Doc #: 20 Filed: 08/11/11 Page: 22 of 32 PAGEID #: <pageID>
23

6. If a treating source’s medical opinion is well-supported and

not inconsistent with the other substantial evidence in the

case record, it must be given controlling weight; i.e., it must

be adopted.

7. A finding that a treating source’s medical opinion is not

entitled to controlling weight does not mean that the opinion

is rejected. It may still be entitled to deference and be

adopted by the adjudicator.

Even when the treating source’s opinion is not controlling, it may carry sufficient

weight to be adopted by the Commissioner:

Adjudicators must remember that a finding that a treating source medical

opinion is not well-supported by medically acceptable clinical and laboratory diagnostic techniques or is inconsistent with the other substantial

evidence in the case record means only that the opinion is not entitled to

"controlling weight," not that the opinion should be rejected. Treating

source medical opinions are still entitled to deference and must be weighed using all of the factors provided in 20 CFR 404.1527 and 416.927. In

many cases, a treating source's medical opinion will be entitled to the

greatest weight and should be adopted, even if it does not meet the test for

controlling weight.

SSR 96-2p.

The case law is consistent with the principals set out in Social Security Ruling 96-

2p. A broad conclusory statement of a treating physician that his patient is disabled is

not controlling. Garner v. Heckler, 745 F.2d 383, 391 (6th Cir. 1984). For the treating

physician's opinion to have controlling weight it must have "sufficient data to support

the diagnosis." Kirk v. Secretary of Health and Human Services, 667 F.2d 524, 536, 538 (6th

Cir. 1981); Harris v. Heckler, 756 F.2d 431, 435 (6th Cir. 1985). The Commissioner may

reject the treating doctor's opinions when "good reasons are identified for not accepting

Case: 2:10-cv-00988-MHW-MRA Doc #: 20 Filed: 08/11/11 Page: 23 of 32 PAGEID #: <pageID>
24

them." Hall v. Bowen, 837 F.2d 272, 276 (6th Cir. 1988); 20 C.F.R. § 404.1527(d)(2)("We

will always give good reasons in our notice of determination or decision for the weight

we give your treating source's opinion"); Wilson v. Commissioner of Social Security, 378

F.3d 541, 544 (6th Cir. 2004). Even when the Commissioner determines not to give a

treator’s opinion controlling weight, the decision-maker must evaluate the treator’s

opinion using the factors set out in 20 C.F.R. § 404.1527(d)(2). Wilson, 378 F.3d at 544;

Hensley v. Astrue, 573 F.3d 263, 266 (6th Cir. 2009). There remains a rebuttable

presumption that the treating physician's opinion "is entitled to great deference." Rogers

v. Commissioner of Social Security, 486 F.3d 234, 242 (6th Cir. 2007); Hensley, above. The

Commissioner makes the final decision on the ultimate issue of disability. Warner v.

Commissioner of Social Security, 375 F.3d at 390; Walker v. Secretary of Health & Human

Services, 980 F.2d 1066, 1070 (6th Cir. 1992); Duncan v. Secretary of Health and Human

Services, 801 F.2d 847, 855 (6th Cir. 1986); Harris v. Heckler, 756 F.2d at 435; Watkins v.

Schweiker, 667 F.2d 954, 958 n.1 (11th Cir. 1982). 

Treating Doctor: Discussion. With respect to Dr. Dewar, the administrative law

judge stated:

On December 18, 2007, Jennifer Dewar, M.D., opined that the claimant can

walk one city block, sit about two hours per day, 30 minutes at a time,

stand/walk a total of two hours, 30 minutes at a time. She would need to

take unscheduled breaks every 30 to 40 minutes, could lift ten pounds

occasionally, and be absent more than four days per month. Additionally,

Dr. Dewar states that the claimant is incapable of even “low stress” jobs

(Exhibit 27F). This opinion is also not supported by the evidence of record,

either objectively or subjectively. For instance, Dr. Dewar mentions that

the claimant has multiple tender points. Although the claimant has noted

Case: 2:10-cv-00988-MHW-MRA Doc #: 20 Filed: 08/11/11 Page: 24 of 32 PAGEID #: <pageID>
25

that she is tender everywhere that is not the same thing as having trigger

points indicative of fibromyalgia. In fact, as previously noted, the

claimant’s clinical examinations do not show trigger points. And Dr.

Dewar is also basing her opinion, at least in part, on the claimant’s

subjective but not credible symptoms. Therefore, controlling weight

cannot be given to Dr. Dewar’s opinion. 

(R. 25.) 

Substantial evidence supports the administrative law judge’s decision to accept

the opinion of Dr. Nusbaum rather than Dr. Dewar. Plaintiff relies on evidence that was

not before the administrative law judge to demonstrate that she had twelve trigger

points. Although the administrative law judge noted that Dr. Dewar wrote that plaintiff

had multiple tender points and discounted her opinion based on the failure to

document the trigger points required for establishing a diagnosis of fibromyalgia, the

administrative law judge concluded that plaintiff’s fibromyalgia constituted a severe

impairment. Dr. Dewar’s opinion was the result of plaintiff’s subjective complaints

rather than objective findings. 

The administrative law judge described plaintiff’s treatment with Dr. Li:

On July 24, 2006, the claimant was examined by Siyun Li, M.D., a

neurophysiologist. In addition to the numbness, she reported symptoms

of vertigo as well as intermittent double vision. On physical examination

the claimant’s blood pressure was 116/76, and heartbeat was regular.

Lungs were clear to ausculation. There were no visual abnormalities, and

motor strength was 5/5. Reflexes, sensory examination, and coordination

were intact. Gait was normal, and Romberg sign was negative. Dr. Li’s

impression was basilar migraine.

Dr. Li saw the claimant for follow-up on January 20, 2007. The

claimant stated that her migraines had responded well to the change in

the medication. There was no change in her clinical examination (Exhibit

20F, pp. 7-8.) 

Case: 2:10-cv-00988-MHW-MRA Doc #: 20 Filed: 08/11/11 Page: 25 of 32 PAGEID #: <pageID>
3

The hearing transcript refers to Dr. Li as "Dr. Lee."

26

(R. 23.) The administrative law judge did not explicitly discuss Dr. Li’s February 8, 2007

headaches residual functional capacity questionnaire. Dr. Nusbaum, the medical expert,

discussed the inconsistency of Dr. Li’s treatment notes and plaintiff’s allegations

concerning the severity of her pain during the hearing. Dr. Nusbaum testified:

She has a history of dizziness and headaches. Dr. Lee3

, in his evaluation,

felt she had basilar headaches, and that they were probably linked. She’s

been treated with Topamax. As Counsel pointed out, she had roughly five

headaches, per Dr. Lee, between January and September of 2007. Her

testimony is that those last two to three days, and that she’s incapacitated.

There seems to be a disconnect, as far as I am concerned, between that and

Dr. Lee’s description of good control.

(R. 479.) When questioned by plaintiff’s counsel, Dr. Nusbaum said that Nolan’s

symptoms improved on Topamax and that had she continued to have the more severe

symptoms she initially reported in July 2006, Dr. Li’s treatment notes would have so

indicated. Had “that degree of incapacity been present” a neurologist would not have

said there was good control of the headaches. (R. 482.) Dr. Nusbaum testified that

although there was evidence of continuing headaches, they were of “much less

frequency.” (R. 484.) Further, if the headaches were severe, Dr. Li would have said so.

Dr. Li’s treatment notes from May and September 2007 suggested further improvement

in the headaches and less frequency. Id. The administrative law judge adopted Dr.

Nusbaum’s opinion:

Dr. Nusbaum . . . stated . . . the claimant’s testimony regarding the

frequency of her basilar headaches conflicts with that of her physician’s

statement. . . . [A]lthough she has migraine headaches, she has not needed

Case: 2:10-cv-00988-MHW-MRA Doc #: 20 Filed: 08/11/11 Page: 26 of 32 PAGEID #: <pageID>
27

emergency room treatment or hospitalization for these headaches. . . . [Her

headaches] have not significantly interfered with her activities of daily

living.

(R. 23-24.) Following the hearing, plaintiff submitted a medication questionnaire

completed by Dr. Li. See R. 397. The administrative law judge did not discuss this

questionnaire in his decision. Because the administrative law judge failed to specifically

address Dr. Li’s residual functional capacity assessment (R. 327-32) in addition to the

questionnaire submitted after the hearing but before the decision was entered, this case

this is remanded for consideration of Dr. Li’s opinion.

Credibility Determinations: Controlling Law. Pain is an elusive phenomena. 

Ultimately, no one can say with certainty whether another person's subjectively

disabling pain precludes all substantial gainful employment. The Social Security Act

requires that the claimant establish that he is disabled. Under the Act, a "disability" is

defined as "inability to engage in any substantial gainful activity by reason of any

medically determinable or mental impairment which can be expected . . . to last for a

continuous period of not less than 12 months. . . ." 42 U.S.C. §423(d)(1)(A) (emphasis

added).

Under the provisions of 42 U.S.C. §423(d)(5)(A):

An individual's statement as to pain or other symptoms shall

not alone be conclusive evidence of disability as defined in

this section; there must be medical signs and findings,

established by medically acceptable clinical or laboratory

diagnostic techniques, which show the existence of a medical

impairment that results from anatomical, physiological, or

psychological abnormalities which could reasonably be

Case: 2:10-cv-00988-MHW-MRA Doc #: 20 Filed: 08/11/11 Page: 27 of 32 PAGEID #: <pageID>
28

expected to produce the pain or other symptoms alleged and

which, when considered with all evidence required to be

furnished under this paragraph (including statements of the

individual or his physician as to the intensity and

persistence of such pain or other symptoms which may

reasonably be accepted as consistent with the medical signs

and findings), would lead to a conclusion that the individual

is under a disability. Objective medical evidence of pain or

other symptoms established by medically acceptable clinical

or other laboratory techniques (for example, deteriorating

nerve or muscle tissue) must be considered in reaching a

conclusion as to whether the individual is under a disability.

The Commissioner’s regulations provide:

(a) General. In determining whether you are disabled, we

consider all your symptoms, including pain, and the extent

to which your symptoms can reasonably be accepted as

consistent with the objective medical evidence and other

evidence. By objective medical evidence, we mean medical

signs and laboratory findings as defined in §404.1528(b) and

(c). By other evidence, we mean the kinds of evidence

described in §§404.1512(b)(2) through (6) and 404.1513(b)(1),

(4), and (5) and (e). These include statements or reports

from you, your treating or examining physician or

psychologist, and others about your medical history,

diagnosis, prescribed treatment, daily activities, efforts to

work and any other evidence showing how your

impairment(s) and any related symptoms affect your ability

to work. We will consider all of your statements about your

symptoms, such as pain, and any description you, your

physician, your psychologist, or other persons may provide

about how the symptoms affect your activities of daily living

and your ability to work. However, statements about your

pain or other symptoms will not alone establish that you are

disabled; there must be medical signs and laboratory

findings which show that you have a medical impairment(s)

which could reasonably be expected to produce the pain or

other symptoms alleged and which, when considered with

all of the other evidence (including statements about the

Case: 2:10-cv-00988-MHW-MRA Doc #: 20 Filed: 08/11/11 Page: 28 of 32 PAGEID #: <pageID>
29

intensity and persistence of your pain or other symptoms

which may reasonably be accepted as consistent with the

medical signs and laboratory findings), would lead to a

conclusion that you are disabled. In evaluating the intensity

and persistence of your symptoms, including pain, we will

consider all of the available evidence, including your

medical history, the medical signs and laboratory findings

and statements about how your symptoms affect you. 

(Section 404.1527 explains how we consider opinions of your

treating source and other medical opinions on the existence

and severity of your symptoms, such as pain.) We will then

determine the extent to which your alleged functional

limitations and restrictions due to pain or other symptoms

can reasonably be accepted as consistent with the medical

signs and laboratory findings and other evidence to decide

how your symptoms affect your ability to work.

20 C.F.R. §404.1529(a). 

In Duncan v. Secretary of Health and Human Services, 801 F.2d 847, 853 (6th Cir.

1986) the Sixth Circuit established the following test for evaluating complaints of

disabling pain. First, the Court must determine "whether there is objective medical

evidence of an underlying medical condition." If so, the Court must then

examine: (1) whether objective medical evidence confirms

the severity of the alleged pain arising from the condition; or

(2) whether the objectively established medical condition is

of such a severity that it can reasonably be expected to

produce the alleged disabling pain.

Duncan, 801 F.2d at 853. Any "credibility determinations with respect to subjective

complaints of pain rest with the ALJ." Siterlet v. Secretary of Health and Human Services,

823 F.2d 918, 920 (6th Cir. 1987).

Credibility Determination: Discussion. The administrative law judge stated:

Case: 2:10-cv-00988-MHW-MRA Doc #: 20 Filed: 08/11/11 Page: 29 of 32 PAGEID #: <pageID>
30

After considering the evidence of record, I find that the claimant’s

medically determinable impairments could reasonably be expected to

produce the alleged symptoms; however, the claimant’s statements

concerning the intensity, persistence and limiting effects of these

symptoms are not credible to the extent they are inconsistent with the

residual functional capacity assessment for the reasons explained below.

The record as a whole does not substantiate the claimant’s

allegation of disabling impairment or combination of impairments. As

previously discussed, the objective medical evidence does not indicate the

presence of an impairment or combination of impairments capable of

producing severe, intractable levels of pain, fatigue, or other symptoms

that would preclude all work activity. In fact, there are very few positive

findings on clinical examinations.

Additionally, although the claimant originally alleged an onset date

of October 2003, she worked at substantial gainful activity from October

2003 until May 2004 which date the claimant first amended to, even

though she was laid off in May 2004 and did not stop working due to her

impairments. Then her representative noted that Dr. Bishop first saw the

claimant on April 14, 2005 and April 25, 2005, gave her opinion that would

disable the claimant (Exhibit 14F, pp 16-17), and therefore April 21, 2005

should be the “corrected” onset date. The claimant’s inability to determine

when she became unable to work does not help her credibility regarding

her symptomatology. 

Furthermore, the claimant has had migraines since age 16 (Exhibit

6F, p. 4) and yet has been able to work. And in January 2007 the claimant

reported that her pain is well controlled on the current regiment (Exhibit

19F, p.1). Also, in February 2007 the claimant stated that she was not

having any side effects from her medications (Exhibit 20F, p. 3). All of

these statements contradict the claimant’s testimony regarding

debilitating pain and other symptoms.

In fact, in Exhibit 6E the claimant stated that she was having 10 out

of 10 pain and fatigue six days out of seven. Yet with pain that severe for

that many days, one would think that the claimant would be hospitalized

more frequently with intravenous pain medications. And that severe 

symptomatology is not consistent with the claimant’s August 2004 report

to her physician that she does all of her activities of daily living (Exhibit

7F, p.3); or with her May 2005 statements that she knits, reads, takes care

of two cats, watches television, takes care of her personal needs, takes care

of her finances, makes quick meals, cleans, does the laundry, drives,

shops, and goes out to lunch once every three months (Exhibit 8E); or with

her May 2007 statement that she takes her mother to her mother’s doctor

Case: 2:10-cv-00988-MHW-MRA Doc #: 20 Filed: 08/11/11 Page: 30 of 32 PAGEID #: <pageID>
31

appointments (Exhibit 21F, p. 6), or with her November 2007 statement

that she is able to take public transportation (Exhibit 12E). The amount of

activities in which the claimant has been able to engage is not consistent

with symptoms so severe that all work activity would be precluded. 

These inconsistencies within the documentary record and the

claimant’s testimony diminish her credibility and do not support a further

reduction of the established residual functional capacity.

(R. 26-27.) Here, the administrative law judge properly considered plaintiff’s prior work

history. The administrative law judge noted that plaintiff had been able to work despite the

onset of migraines at age 16. Plaintiff acknowledged that she stopped working because she

was laid off rather than the onset of a disabling condition. Plaintiff testified that she would

have kept working had she not been laid off, and she collected unemployment

compensation while continuing to look for work. The administrative law judge’s

conclusion that plaintiff’s allegations of frequent and extreme pain were inconsistent with

her lack of treatment and daily activities is supported by substantial evidence in the record. 

For the reasons stated above, it is RECOMMENDED that this case be REMANDED

to permit the administrative law judge to consider Dr. Li’s opinion.

If any party objects to this Report and Recommendation, that party may, within

fourteen (14) days, file and serve on all parties a motion for reconsideration by the Court,

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)(B); Rule 72(b), Fed. R. Civ. P.

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 waiver of the right to appeal the judgment of the District Court. Thomas v. Arn, 474

Case: 2:10-cv-00988-MHW-MRA Doc #: 20 Filed: 08/11/11 Page: 31 of 32 PAGEID #: <pageID>
32

U.S. 140, 150-52 (1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981). See also, Small v.

Secretary of Health and Human Services, 892 F.2d 15, 16 (2d Cir. 1989). 

 s/Mark R. Abel 

United States Magistrate Judge 

Case: 2:10-cv-00988-MHW-MRA Doc #: 20 Filed: 08/11/11 Page: 32 of 32 PAGEID #: <pageID>