IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

CHRYSTAL MARLING,

Plaintiff,

vs. Civil Action 2:11-CV-522

Judge Frost

Magistrate Judge King

MICHAEL J. ASTRUE, Commissioner

of Social Security,

Defendant.

REPORT AND RECOMMENDATION

I.

Introduction and 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 disability insurance

benefits. This matter is now before the Court on plaintiff’s Statement

of Errors, Doc. No. 11, the Commissioner’s Memorandum in Opposition, Doc.

No. 14, and plaintiff’s Reply Memorandum, Doc. No. 15.

Plaintiff Chrystal Marling filed her application for benefits

on August 19, 2008, alleging that she has been disabled since July 19,

2008, as a result of bi-polar disorder and schizophrenia. PageID## 192-

94, 222. The application was denied initially and upon reconsideration,

and plaintiff requested a de novo hearing before an administrative law

judge.

A hearing was held on June 9, 2010, at which plaintiff,

represented by counsel, appeared and testified, as did Larry A. Bell, who

testified as a vocational expert. In a decision dated June 24, 2010, the

administrative law judge found that plaintiff suffers no severe physical

impairments and that her severe mental impairments, which consist of

bipolar disorder and schizophrenia, paranoid type with alleged

hallucinations, do not preclude the performance by her of her prior work

as a janitor. The administrative law judge therefore concluded that

plaintiff is not disabled within the meaning of the Social Security Act.

PageID## 95-112. That decision became the final decision of the

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Commissioner of Social Security when the Appeals Council declined review

on April 18, 2011. PageID## 84-87.

Plaintiff was 48 years of age at the time the administrative

law judge issued his decision. She has a ninth grade, “limited” education

and prior relevant work experience as an elder care sitter and janitor.

PageID## 223, 227, 238.

Plaintiff testified at the administrative hearing that she

last worked in July 2008 as a janitor. PageID# 125. She can no longer

work because of anxiety and panic attacks, PageID## 126, 135-36,

conditions that she first experienced when she was 17 years old and which

have become increasingly severe. PageID# 127. Plaintiff also has short

term memory problems and cannot concentrate. PageID# 128. Plaintiff

acknowledged a history of alcohol and drug abuse but testified that she

has abstained from both since 2002. PageID## 134-35. 

Plaintiff testified that she sees “witches and warlocks” and,

occasionally, spirits. PageID# 132. She is depressed; often, she does

not want to get out of bed or do anything. PageID# 134. She frequently

feels confused and lost. Id. Plaintiff received mental health care at

North Point Consulting and Behavioral Health Services by Elizabeth

McClure, a psychiatric nurse practitioner, for two years, and has

undergone counseling by Cathy Campbell, M.Ed., a licensed counselor at

Women’s Tri-County, every two weeks since October 2009. PageID# 128-29.

See PageID# 375. She sees a psychiatrist at North Point every three

months. PageID# 128. At the time of the administrative hearing, she was

taking Lamictal, Vistaril and Lithium, PageID# 129, which calmed her and

presented no side effects. PageID# 130. 

Plaintiff testified that she spends her time on a typical day

smoking cigarettes, watching television and sleeping 10 hours per day.

Id. Her husband and daughter do most of the household chores, although

she does the dishes and laundry. PageID# 137. Depression and lack of

energy prevent her from cleaning, dusting or vacuuming. Id. She

occasionally reads the Bible but has difficulty understanding what she

has read. PageID# 138. 

II.

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The Medical Evidence of Record.

Mental Impairments

Belmont Community Hospital

Plaintiff was hospitalized through emergency admission for a

psychiatric evaluation at the Belmont Community Hospital in September

2002. See PageID## 393-404. At the time of admission, her Global

Assessment of Functioning [“GAF”] was 20.1 PageID# 400. She was

discharged four days later with diagnoses of major depression with

psychotic features and post traumatic stress disorder, r/o schizoaffective disorder. Her GAF upon discharge was 55. PageID# 401. She

was prescribed medication and was directed to follow up with Tri-State

Health Care, Inc. PageID## 402-03.

Karen Campbell, M.A./Vic Cerra, Ed.D.

Karen Campbell, M.A., a psychology assistant working under the

supervision of psychologist Vic Cerra, Ed.D., performed a psychological

evaluation of plaintiff on April 3, 2008, at the request of the county

child welfare services agency. PageID## 280-91. Plaintiff was noted to

be guarded and suspicious. PageID# 283. She reported a decreased need for

sleep over the prior two weeks. Plaintiff reported a history of

emotional, physical and sexual abuse and symptoms of anxiety, depression

and paranoia. She had left school in the tenth grade after losing

interest in school and becoming pregnant. Her grades were average to

below average. PageID# 281. Plaintiff also reported an attempted suicide

by overdose at the age of 13, and three prior psychiatric

hospitalizations for “nervous breakdown,” marital problems, and psychotic

symptoms that included auditory and visual hallucinations and paranoia.

At the time of the examination, plaintiff was not using anti-psychotic

medications because she did not think that they worked. Id.

1

“The [Global Assessment of Functioning] GAF scale is a method of

considering psychological, social, and occupational function on a hypothetical

continuum of mental health. The GAF scale ranges from 0 to 100, with serious

impairment in functioning at a score of 50 or below. Scores between 51 and 60

represent moderate symptoms or a moderate difficulty in social, occupational,

or school functioning, whereas scores between 41 and 50 represent serious

symptoms or serious impairment in these areas.” Norris v. Comm’r of Soc. Sec.,

No. 11-5424, 2012 WL 372986 (6th Cir. Feb. 7, 2012).

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On clinical examination, plaintiff struggled to remain focused

and was observed smiling and talking to herself. Her mood appeared to be

depressed and her affect was congruent with her mood. PageID# 283. She

was fully oriented; her speech was relevant and coherent. She exhibited

normal psychomotor movement and maintained fair eye contact. Plaintiff’s

immediate, recent and remote memory processes were intact. She denied

hallucinations, delusional thinking, obsessive or compulsive thoughts or

behaviors, phobias and panic attacks. She did report that she worries

about everything and complained of depression and anxiety. Although she

reported past symptoms of mania, she denied recent episodes. Id.

On the WAIS-III, plaintiff achieved a verbal I.Q. score of 68,

a performance I.Q. score of 74 and a full scale I.Q. score of 68. PageID#

284. On the WRAT-4, plaintiff read at the 4th and 5th grade level; math

computation skills were at the 8th grade level. PageID## 285-88. The Beck

Anxiety Inventory indicated that plaintiff was experiencing mild symptoms

of anxiety, and the Beck Depression Inventory indicated that plaintiff

was experiencing moderate depressive symptoms. PageID# 289.

In a report signed by both Ms. Campbell and Dr. Cerra,

plaintiff was diagnosed with bipolar I disorder, most recent episode

depressed, moderate; schizophrenia, paranoid type; alcohol dependence in

full remission; and borderline intellectual functioning. Her GAF was 48.

PageID## 289-90. Ms. Campbell recommended that plaintiff participate in

individual counseling and be evaluated by a psychiatrist for medication.

PageID# 290.

North Point Consulting and Behavioral Health Services

In June 2008, plaintiff presented to North Point Consulting

and Behavioral Health Services (”North Point”) for problems with her

“nerves” and anxiety. PageID## 300-03. She reported low energy levels and

inability to concentrate. She also reported a decreased need to sleep. 

Plaintiff’s speech was rambling and pressured; she smiled inappropriately

and was guarded and argumentative. Plaintiff’s eye contact was average.

Her demeanor was mistrustful, preoccupied and paranoid. Her thought

processes were circumstantial, with flight of ideas, and she reported

auditory and visual hallucinations. Her mood was irritable and her affect

was labile. On clinical examination, plaintiff’s attention and

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concentration were moderately decreased and her intelligence was

estimated to be in the borderline range. PageID## 301-02. Her diagnosis

was the same as that of Dr. Cerra and Karen Campbell. She was assigned

a GAF score of 48. PageID# 302. Abilify was prescribed. PageID# 303.

At her next visit, plaintiff reported improved sleep and

lowered irritability, although she still had some anxiety. She denied

hallucinations. It was noted that her speech was less rambling and

pressured; she was less agitated and more trusting. PageID## 298-99. 

When seen on July 22, 2008 by psychiatric nurse practitioner

Elizabeth McClure, plaintiff reported that she had run out of Abilify and

had not been doing well. Plaintiff’s speech was spontaneous and mildly

pressured; her eye contact was direct and almost staring in nature. Her

affect varied and she was tearful at times. Ms. McClure changed

plaintiff’s medications. PageID# 296.

In September 2008, plaintiff reported to Ms. McClure that she

felt overwhelmed and stressed by a family situation. Her current

medication was not helping with her anxiety. Plaintiff’s speech was

spontaneous, her affect was flat, her eye contact was almost staring and

her voice lacked inflection. She denied visual or auditory

hallucinations. One of plaintiff’s medications was increased. PageID#

346.

In October 2008, plaintiff reported continuing mood

instability and irritability. Plaintiff’s speech was spontaneous; she was

more interactive during the interview with Ms. McClure and showed some

mild variation in her affect. Her thoughts were generally goal-directed.

Ms. McClure increased another medication. PageID# 343.

In November 2008, plaintiff continued to report problems with

anxiety and family and financial concerns. Plaintiff's speech was

spontaneous and she was more appropriate in her interactions. She was

able to respond more readily and showed some variation in affect. She

reported no side effects to her medications. PageID# 345.

In January 2009, plaintiff reported continuing agitation and

discord at home; her anxiety was particularly problematic. Plaintiff’s

speech was spontaneous, her thoughts were relevant and goal-directed, her

affect was restricted and her eye contact was good. Plaintiff reported

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mild auditory hallucinations. She denied side effects from her

medications. Ms. McClure prescribed an additional medication. PageID#

392.

In February 2009, nurse McClure asked plaintiff about a report

from a community support worker who, following a home visit, noted that

plaintiff’s hair was matted, her clothes were dirty and her house smelled

of dog waste. Plaintiff reported on-going episodes of depression which

occur approximately seven days per month. She also reported increased

problems with anxiety, paranoia and irritability. She heard someone

calling her name on occasion. Ms. McClure noted that plaintiff’s

grooming and hygiene were appropriate; her speech was spontaneous and her

affect was generally constricted. Plaintiff’s eye contact was almost

staring in nature; her thoughts were goal-directed. She reported such

depressive symptoms as not wanting to get out of bed, lack of interest

and social isolation. No medication side effects were noted. Nurse

McClure diagnosed bipolar II disorder and increased a medication. PageID#

391. 

In March 2009, plaintiff reported that she had not been doing

well and still had difficulty staying focused. She was increasingly 

irritable and argumentative at home and paranoid when she went out. She

was sleeping fairly well. Plaintiff’s speech was spontaneous and mildly

pressured, her affect was blunted and her eye contact was almost staring.

Nurse McClure diagnosed schizophrenia, paranoid type, and bipolar 1

disorder. PageID# 390. 

In April 2009, plaintiff reported less stress and depression

after being approved for bankruptcy. Plaintiff’s grooming and hygiene

were appropriate and her speech was spontaneous. Her affect showed a

little variability and she was more animated and talkative. Her thoughts

were goal-directed. PageID# 389.

In June 2009, plaintiff was feeling depressed and stressed. 

She reported crying spells every couple of days. Although she could not

accomplish much around the house, she looked forward to attending church

on Sundays. Plaintiff’s speech was spontaneous and her affect

restricted; her thoughts were relevant and goal-directed and her eye

contact was appropriate. Nurse McClure noted no sign of a thought

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disorder or perceptual disturbance. One of plaintiff’s medications was

increased. PageID# 388.

In July 2009, plaintiff complained that she was not doing

well. Focus and attention were difficult; she was irritated and agitated. 

Plaintiff's speech was spontaneous and her eye contact good. Her affect

was restricted and her thoughts were goal-directed. Nurse McClure noted

some mild thought blocking and distractability. Plaintiff’s medications

were changed. PageID# 387.

In August 2009, plaintiff reported that she struggled to keep

up with the housework and cook a few days per week. She felt good only

on Sundays after going to church. Ms. McClure noted that plaintiff’s

affect was mildly restricted but there was no sign of thought disorder

or perceptual disturbances. She increased one of plaintiff's medications.

PageID# 386.

In September 2009, plaintiff reported that she was out of one

of her medications. She had become increasingly afraid, thinking that a

rapist was following her. She went nowhere alone and felt that people

were watching her or talking about her. She also reported increased

irritability. Plaintiff's affect was restricted and her eye contact was

staring. According to Nurse McClure, plaintiff was paranoid and

delusional. PageID# 385. 

Later that same month, plaintiff reported continued visual

hallucinations, including “witches and warlocks.” She even saw them at

her church. She also reported auditory hallucinations. Plaintiff still

felt that she was followed when she left the house, and it was getting

harder to tolerate these problems. Nurse McClure diagnosed bipolar

disorder with psychotic features. Plaintiff’s medication was changed.

PageID# 384.

In October and November 2009, plaintiff’s medication was

increased in light of plaintiff’s continued reports of paranoia. PageID##

382-83.

Plaintiff continued to report visual hallucinations in

December 2009. She remained uncomfortable in public places and around a

lot of people. She also reported continued difficulty with motivation and

getting things done during the day. PageID# 381. 

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In January 2010, plaintiff complained that her medication was

not helping, although Nurse McClure noted that plaintiff was not having

any significant visual or auditory hallucinations. Plaintiff continued

to report low motivation and feelings of being followed. Plaintiff was

reported as brighter and more animated; she was able to laugh and joke

appropriately. Her thoughts were goal-directed. PageID# 380.

In February 2010, plaintiff reported feeling “up and down”

with increased stress for the prior several months. Her medication was

again adjusted. PageID## 378-79.

Women's Tri-County

Plaintiff was evaluated by Cathy J. Campbell, M.Ed.,LPCC, a

licensed counselor, at Women’s Tri-County on October 15, 2009. PageID##

367-75. Plaintiff reported paranoia, mood swings and sleep problems.

PageID# 372. She reported visual hallucinations and depersonalization.

Plaintiff's demeanor was mistrustful. Her eye contact was average, her

activity level was slowed, and her speech was clear. Her affect was flat.

She was diagnosed with schizoaffective disorder bipolar type/depressive

type. Counsellor Campbell assigned a GAF score of 40. PageID## 373-74. 

In February 1, 2010, plaintiff reported continuing

hallucinations despite medication, as well as paranoia. She also reported

increased stress due to financial worries. PageID# 365.

 In March 2010, Plaintiff reported that she no longer

experienced thought disturbance related to depression. She was advised

to increase her physical activity and to report her weight gain, which

plaintiff attributed to her medication, to her doctor. PageID## 362-63.

In May 2010, Counselor Campbell completed a mental residual

functional capacity questionnaire in which she indicated that had a

“marked” impairment in the areas of ability to accept instructions or to

respond appropriately to criticism from supervisors; to work in

coordination with or in proximity to others without distracting them or

exhibiting behavioral extremes; to respond appropriately to co-workers

or peers; to relate to the general public; to maintain socially

appropriate behavior; to perform and complete work tasks in a normal

work day or week at a consistent pace; to process subjective information

accurately and to use appropriate judgment; to maintain attention and

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concentration for more than brief periods of time; to perform at

production levels expected by most employers; to respond appropriately

to changes in the work setting; to behave predictably, reliably and in

an emotionally stable manner; and to tolerate customary work pressures.

Plaintiff had a “moderate” impairment in the areas of ability to work in

cooperation with or in proximity to others without being distracted by

them; to carry out instructions and complete tasks independently; to

remember locations and workday procedures and instructions; to be aware

of normal hazards and to take necessary precautions. Plaintiff was

unable to respond appropriately to stress. Finally, counselor Campbell

concluded that plaintiff’s impairment had lasted or was expected to last

12 months or more. PageID## 405-08.

Bureau of Disability Determination Review

John Waddell, Ph.D., reviewed the file on September 9, 2008

and concluded that plaintiff suffers the severe mental impairments of

schizophrenia, paranoid type, bipolar disorder and borderline

intellectual functioning. PageID## 306-08. However, there was no

evidence in the record of episodes of decompensation of extended

duration. PageID# 314. Accordingly, plaintiff’s mental impairments did

not meet the “B” or “C” criteria for Listings 12.03 or 12.04. PageID##

314-15. Dr. Waddell opined that plaintiff’s conditions neither meet

nor equal a listed impairment, PageID# 304, and that despite her severe

mental impairments plaintiff could nevertheless perform simple, routine

work in a low stress environment with no more than occasional superficial

interaction with others. PageID# 320. Dr. Waddell also characterized

plaintiff’s allegations as credible. Id.

Physical Impairments

Consultive Examination

William D. Padamadan, M.D., performed a consultative

evaluation of plaintiff at the request of the state agency on September

25, 2008. PageID## 322-28. Plaintiff complained of upper back and neck

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pain, which she attributed to a fractured clavicle in 1996. She also

reported a heart murmur. Dr. Padamadan found no diastolic or systolic

murmurs. Plaintiff was able to jog in place 100 times without any

cardiorespiratory or musculoskeletal symptoms. PageID# 322. Plaintiff

walked without problem; she had good range of motion of the shoulders,

elbows, wrists, fingers, hips, knees, ankles, spine and back. Straight

leg raising was negative in the supine and sitting positions. Knee and

ankle reflexes were intact. Squat test was normal. Plaintiff was able to

walk on her heels and toes. Motor strength, sensation and cranial nerves

were normal. Plaintiff’s hearing, speech, sight and communication skills

were normal. She was able to sit, stand and walk and her upper extremity

motions of reaching, handling, and fine and gross movements were intact.

PageID# 323. Dr. Padamadan opined, “Based upon this clinical evaluation

and in the absence of objective findings of any functional impairment,

I do not see any indication for limitation of physical activities.”

PageID# 324.

Wheeling Health Right

On October 9, 2008, plaintiff complained of increased symptoms

of gastro-esophageal reflux disease [“GERD”], chronic muscular neck pain

and breathing problems. It was noted that plaintiff was a heavy smoker

but had no history of asthma. Upon examination, plaintiff’s neck was

supple, although she favored the right side, and the left side of her

neck was strained as a result. Her lungs were clear except for some

slight decreased breath sounds bilaterally. Plaintiff was diagnosed with

allergic rhinitis and GERD. PageID## 360-61.

In December 2008, plaintiff complained of continued neck pain

and was concerned that she had throat cancer. Upon examination,

plaintiff’s lungs were clear. She had some left-sided trapezius muscle

tightness with no spasm or masses noted. Plaintiff was diagnosed with

muscle spasms in the neck and prescribed Flexeril. PageID## 358-59.

Plaintiff reported continued neck pain in February 2009.

Flexeril had only taken the edge off the pain. On clinical examination,

plaintiff had normal strength throughout; tone and reflexes were also

normal. There was tenderness to palpation of the left side of the neck

and the trapezius muscle. Plaintiff was diagnosed with

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hyperlipidemia/dyslipidemia and neck pain. Her neck pain was thought to

be musculoskeletal in nature given her grossly normal exam and lack of

neurological symptoms. She was instructed to try Tylenol, Advil or

heating pads for her symptoms. PageID## 355-57.

In May 2009 plaintiff, accompanied by her mother, was adamant

that a source be found for plaintiff’s neck pain. She denied range of

motion problems, visual disturbances, frank headache or migraine, but did

report some chronic thoracic back pain. On clinical examination,

plaintiff’s neck was supple with no muscle spasm noted; there was full

range of motion. Plaintiff’s pain could not be reproduced. Plaintiff was

diagnosed with neck pain, back pain, hyperlipidemia and dyslipidemia. 

The doctor saw “no reason for this vague neck pain that is apparently

quite debilitating. Perhaps she has an old injury.” PageID## 353-54. The

physician discontinued plaintiff’s prescribed Flexeril because plaintiff

“stated it doesn’t help her neck pain.” PageID# 354. He also

discontinued Nexium for complaints of heartburn because plaintiff’s

complaints of abdominal pain, bloating and severe heart burn after eating

had continued. “She tells me she belches after eating and this is

bothersome to her.” PageID# 353. A different medication was prescribed

because plaintiff stated that she “cannot deal with the heartburn.” 

PageID# 354.

X-rays of the cervical spine were normal; x-rays of the

thoracic spine revealed mild dextroscoliosis of the curvature. PageID#

352. A request for an MRI was determined, in light of plaintiff’s normal

musculoskeletal exam, not to be medically necessary. PageID## 350-51.

Bureau of Disability Determination Review

In January 2009, Willa Caldwell, M.D. a state agency

physician, reviewed the medical record and indicated that plaintiff does

not have a “severe” physical impairment. PageID# 348.

III.

Administrative Decision

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In his decision, the administrative law judge found that

plaintiff’s severe impairments consist of bipolar disorder and

schizophrenia, paranoid type, with alleged hallucinations. PageID# 97.

The administrative law judge found no severe physical impairment. 

The administrative law judge also found that plaintiff does

not suffer an impairment or combination of impairments that meets or

medically equals any listed impairment. Id. The administrative law judge

specifically considered, but rejected, any suggestion that plaintiff is

disabled under Listings 12.03 (schizophrenic, paranoid and other

psychotic disorders), 12.04 (affective disorder) or 12.05C (mental

retardation). With respect to Listings 12.03 and 12.04, the

administrative law judge found that plaintiff’s impairments met neither

the “B” nor the “C” criteria of the Listings. PageID## 98-99. In

considering Listing 12.05C, the administrative law judge acknowledged

that testing reflected qualifying I.Q. scores but found that the record

did not establish the remaining criteria of the Listing: 

While this IQ testing was considered to be valid,

the undersigned notes that the evidence does not

support a finding that the claimant had

significantly subaverage general[] intellectual

functioning with deficits in adaptive functioning

initially manifested prior to the age of 22. 

PageID# 99.

The administrative law judge went on to find that plaintiff

retains the residual functional capacity to

perform a full range of work at all exertional

levels but with the following non-exertional

limitations: that she should work in a low stress

environment with no production line or assembly

line type of pace and no independent decision

making responsibilities. She is limited to

performing unskilled work involving only routine

and repetitive instructions and tasks. She should

have no interaction with the general public and

minimal, no more than occasional, interaction with

co-workers and supervisors.

Id. In finding that plaintiff does not suffer a severe physical

impairment, the administrative law judge relied on the consultative

physical evaluation of Dr. Padamadan and on the records of Wheeling

Health Right. As they relate to plaintiff’s mental impairments, the

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administrative law judge’s findings were based on the psychological

evaluation of Karen Campbell and the treatment records of North Point and

Women’s Tri-County. PageID# 111. The administrative law judge declined

to give “significant weight” to Cathy Campbell’s extremely restrictive

mental residual functional capacity assessment “because, with a Master

of Arts degree, she is not an acceptable medical source pursuant to 20

CFR 404.1513, but her statements and opinions have been considered in

accordance with the regulations.” PageID# 109. The administrative law

judge also considered plaintiff’s subjective complaints but found that

those complaints were “not credible to the extent they are inconsistent

with” this residual functional capacity. Id. In light of this

credibility determination, the administrative law judge rejected Dr.

Waddell’s opinion that plaintiff’s allegations were credible, although

the administrative law judge adopted Waddell’s assessment of plaintiff’s

residual functional capacity. PageID# 111.

Relying on the vocational expert’s testimony, the

administrative law judge found that this residual functional capacity

would permit plaintiff to perform her past relevant work as a janitor.

PageID# 111. Accordingly, the administrative law judge concluded that

plaintiff is not disabled within the meaning of the Social Security Act. 

PageID# 112. 

IV.

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). 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.

Halter, 246 F.3d 762, 772 (6th Cir. 2001); 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. See Brainard v. Secretary of Health & Human

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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. 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, see Kinsella v. Schweiker, 708 F.2d 1058, 1059 (6th Cir.

1983), and even if substantial evidence also supports the opposite

conclusion. Longworth v. Comm’r Soc. Sec., 402 F.3d 591, 595 (6th Cir.

2005).

In her Statement of Errors, plaintiff contends that the

administrative law judge erred in his credibility assessment of

plaintiff, violated the treating physician rule by wrongly assessing

Cathy Campbell’s credentials and violating SSR 06-03P regarding Nurse

McClure’s assessment, erroneously rejected the Dr. Waddell’s credibility

assessment, erred at Step 3 of his sequential evaluation by not finding

that plaintiff satisfied the criteria for schizoaffective disorder as set

forth in Listing 12.03 and mental retardation as set forth in Listing

12.05C, and erred at Step 2 of the sequential evaluation by failing to

find that plaintiff’s GERD is a severe physical impairment. The Court

will consider plaintiff’s contentions – not in the order presented by

plaintiff – but as those contentions are relevant to the sequential

evaluation of disability.

GERD as a Severe Physical Impairment

Plaintiff argues that the administrative law judge erred in

failing to include GERD among plaintiff’s severe impairments. In finding

that plaintiff has no severe physical impairment, the administrative law

judge relied on the report of the consultative examiner, who found no

“indication for limitation of physical activities,” PageID# 324, and on

plaintiff’s treatment records at Wheeling Health Right. PageID# 111. 

Although those treatment records include some reference to GERD, PageID##

353-54, the record contains no evidence that the condition imposes any

work-related limitation of function. The administrative law judge’s

finding in this regard is therefore supported by substantial evidence.

The Listings of Impairments

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The administrative law judge also found that none of

plaintiff’s impairments, whether considered singly or in combination,

either meet or equal a listed impairment. In this regard, the

administrative law judge considered Listings 12.03, 12.04 and 12.05C. 

With respect to the first two Listings, the administrative law judge

found that plaintiff’s mental impairments failed to satisfy the “B” and

“C” criteria of the Listings and, specifically, that plaintiff had

experienced no repeated episodes of decompensation which have been of

extended duration, as required by the Listings. Plaintiff argues that

the administrative law judge erred in finding that plaintiff had not

established evidence of “[r]epeated episodes of decompensation, each of

extended duration” as required by the “B” and “C” criteria of Listings

12.03 and 12.04. Plaintiff specifically argues that such decompensation

is evidenced by the repeated changes in plaintiff’s medications, as

reflected in plaintiff’s North Point treatment records.

The Commissioner’s regulations define “episodes of

decompensation” as “exacerbations or temporary increases in symptoms or

signs accompanied by a loss of adaptive functioning, as manifested by

difficulties in performing activities of daily living, maintaining social

relationships, or maintaining concentration, persistence, or pace.” 

Listing 12.00C4. The regulation goes on to provide, inter alia, that

“[e]pisodes of decompensation may be inferred from medical records

showing significant alteration in medication . . . .” Id. In finding

that plaintiff had not established evidence of repeated episodes of

decompensation, the administrative law judge stated only that “claimant

has not been psychiatrically hospitalized since her alleged onset date,

and she has not experienced any loss of adaptive functioning.” PageID#

98. The administrative law judge made no mention of the changes in

plaintiff’s medications by North Point personnel.

This Court concludes that the matter must be remanded for

further consideration of whether plaintiff’s mental impairments meet or

equal Listing 12.03 or 12.04. It is not sufficient that Dr. Waddell, the

state agency psychologist, opined that plaintiff’s impairments neither

met nor equaled a listed impairment. Dr. Waddell conducted his review

of the record in September 2008 – i.e., only a few months after plaintiff

began her treatment at North Point. Dr. Waddell’s review lacked the

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benefit of almost two more years of treatment and counseling at North

Point and Women’s Tri-County.2

The Court also concludes, however, that there is substantial

support in the record for the finding that plaintiff’s diagnosed

borderline intellectual functioning does not satisfy Listing 12.05C. The

administrative law judge found that the record contained no evidence of

significantly subaverage general intellectual functioning with deficits

in adaptive functioning initially manifested prior to the age of 22. 

PageID## 98-99. Plaintiff appears to argue that plaintiff’s subaverage

IQ scores and reported panic attacks dating to the age of 17, see PageID#

127, are sufficient to satisfy this Listing. Under the Social Security

regulations, “loss of adaptive functioning” is “manifested by

difficulties in performing activities of daily living, maintaining social

relationships, or maintaining concentration, persistence, or pace.” 20

C.F.R., Pt. 404, Subpt. P., App. 1, §12.00C4. See also West v. Comm’r

Social Sec. Admin., 240 Fed. Appx. 692, 698 (6th Cir. 2007)(“Adaptive

functioning includes a claimant’s effectiveness in areas such as social

skills, communication, and daily living skills”). Present IQ scores do

not alone establish that a claimant suffered subaverage intellectual

functioning or deficits in adaptive functioning during the developmental

period. “A claimant must produce evidence beyond his present IQ scores

to show that he exhibited deficits during his developmental period.” 

Turner v. Comm’r of Soc. Sec., 381 Fed. Appx. 488, 491-92 (6th Cir.

2010), citing Foster, 279 F.3d at 354-55. Moreover, the mere fact that

plaintiff may have suffered panic attacks during the developmental period 

is not of itself evidence of deficits in adaptive functioning. The

administrative law judge did not err in concluding that plaintiff’s

cognitive functioning neither met nor equaled Listing 12.05C. 

The “Treating Physician Rule”

Opinions of treating physicians must be accorded controlling

weight if they are “well-supported by medically acceptable clinical and

2

As plaintiff notes, the administrative law judge failed to include

borderline intellectual functioning among plaintiff’s severe mental

impairments, although Karen Campbell (and Dr. Cerra), and Dr. Waddell

diagnosed that condition. However, plaintiff does not suggest how that

condition was not accommodated by the residual functional capacity found by

the administrative law judge.

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laboratory diagnostic techniques” and not “inconsistent with the other

substantial evidence in [the] case record.” 20 C.F.R. §404.1527(d)(2). 

Plaintiff argues that the assessment of plaintiff’s mental residual

functional capacity articulated by her counselor, Cathy Campbell, was

entitled to such deference. The administrative law judge accorded little

weight to that assessment because Ms. Campbell “is not an acceptable

medical source. . . .” PageID# 109. This Court agrees.

The sources who can provide evidence sufficient to establish

an impairment are, inter alios, licensed or certified psychologists. 

20 C.F.R. § 404.1513(a)(2). Plaintiff concedes that Cathy Campbell “may

not be a licensed psychologist.” Statement of Errors, p. 17. See also

O.R.C. § 4732.01(F)(a “licensed psychologist” is an “individual holding

a current, valid, license to practice psychology issued under Section

4732.12 or 4732.15 of the Revised Code”).3 She is therefore not a medical

source whose opinion was entitled to the deference to be accorded to that

of a treating physician.4

However, evidence from other sources, such as therapists, may

be considered to establish the severity of an impairment and how it

affects a claimant’s ability to work. 20 C.F.R. § 404.1513(d)(1). Among

the factors to be considered in evaluating the opinions of “other

sources” are the length of time and frequency of treatment, consistency

with other evidence, the degree to which the source presents relevant

evidence to support the opinion, how well the opinion is explained,

whether the source has a special expertise and any other factor

supporting or refuting the opinion. SSR 06-03p, 2006 WL 2329939, *4-5.

“[T]he adjudicator generally should explain the weight given to opinions

from these ‘other sources,’ or otherwise ensure that the discussion of

the evidence in the determination or decision allows a claimant or

3

Plaintiff refers to another decision of this Court, Arnold v. Astrue,

2010 WL 5812957 (S.D. Ohio October 7, 2010), in which a mental health

professional with the same academic degree as Cathy Campbell, i.e., M.Ed., was

treated as a medical source. However, an individual’s degree is not

determinative of whether the individual is a licensed psychologist. As noted,

plaintiff concedes that Cathy Campbell is not.

4

The fact that the administrative law judge erroneously referred to

Cathy Campbell’s degree as a “Master of Arts degree,” PageID# 109, is

immaterial.

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subsequent reviewer to follow the adjudicator’s reasoning. . . .” Id.

at *6. 

In the case presently before the Court, the administrative law

judge discounted Cathy Campbell’s assessment simply because she is not

a medical source. He failed entirely to evaluate her opinion by

reference to the other factors specified in SSR 06-03p; moreover, the

administrative law judge wholly failed to explain the weight given to her

opinion, as required by the Commissioner’s Rule. Under these

circumstances, too, the matter must be remanded for further

consideration.

Administrative Law Judge’s Credibility Determination

The administrative law judge found that plaintiff’s subjective

statements concerning her symptoms and limitations were not entirely

credible. PageID# 111. Plaintiff disagrees with that finding. 

An administrative law judge is not required to accept a

claimant’s subjective complaints, but may instead properly consider the

credibility of a claimant. See Walters v. Commissioner of Soc. Sec., 127

F.3d 525, 531 (6th Cir. 1997). Because the administrative law judge has

the opportunity to observe a witness’ demeanor while testifying, his

credibility determinations are accorded great weight and deference. 

Buxton v. Halter, 246 F.3d 762, 773 (6th Cir. 2001). However, credibility

determinations must be clearly explained. Auer v. Secretary of Health

and 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, the Court is without authority

to revisit those determinations. See Beavers v. Secretary of Health,

Educ. and Welfare, 577 F.2d 383, 386-87 (6th Cir. 1978). See also Felisky

v. Bowen, 35 F.3d 1027 (6th Cir. 1994). 

In the case presently before the Court, the administrative law

judge gave extensive consideration to the issue of plaintiff’s

credibility. PageID## 109-112. The Court cannot say that his findings

in that regard are not clearly articulated or lack substantial support

in the record. However, because those findings were based, at least in

part, on the administrative law judge’s evaluations of the assessments

of Dr. Waddell and plaintiff’s treating counselors, which this Court has

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concluded were deficient, the Court concludes that, on remand, the issue

of plaintiff’s credibility should also be reassessed.

It is therefore RECOMMENDED that the decision of the

Commissioner be REVERSED and that this action be REMANDED to the

Commissioner of Social Security for further proceedings.

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).

s/Norah McCann King

Norah McCann King

United States Magistrate Judge

July 10, 2012

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