UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

CHARLENE LONG,

Plaintiff,

Civil Action 2:11-cv-00343

v. Judge Algenon L. Marbley

Magistrate Judge Elizabeth P. Deavers

COMMISSIONER OF SOCIAL

SECURITY,

Defendant.

OPINION AND ORDER

This matter is before the Court for consideration of the June 13, 2012 Report and

Recommendation of the Magistrate Judge. (ECF No. 25.) The Magistrate Judge recommended

that the Court affirm the Decision of the Commissioner of Social Security (“Commissioner”). 

On July 2, 2012, Plaintiff filed her Objections to the Report and Recommendation. (ECF No.

27.) For the following reasons, Plaintiff’s Objections are OVERRULED and the Report and

Recommendation is ADOPTED. Accordingly, the decision of the Commissioner is

AFFIRMED.

I.

Plaintiff filed applications for both social security disability insurance benefits and

supplemental security income alleging disability since January 30, 2001 due primarily to her

mental impairments.1

 On July 12, 2007, Administrative Law Judge (“ALJ”) Paul R. Armstrong

issued a decision finding that Plaintiff was not disabled. In July 2008, the Appeals Council

1

 The June 13, 2012 Report and Recommendation contains a detailed summary of the

administrative testimony and medical evidence in this case. (See Report & Recommendation

2–11, ECF No. 25.) 

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remanded ALJ Armstrong’s decision. The remand order generally required further consideration

of the examining source opinions and Plaintiff’s mental impairments. On September 28, 2009,

ALJ Barbara Beran issued an administrative decision finding that Plaintiff was not disabled. The

Appeals Council denied review of this decision.

On June 13, 2012, the Magistrate Judge recommended that the Court affirm the decision

of the Commissioner. The Magistrate Judge first found that ALJ Beran complied with the

directives of the Appeals Council’s remand order. The Magistrate Judge then concluded that

substantial evidence supported the ALJ’s weighing of the medical evidence; that the ALJ did not

err in considering Plaintiff’s mental impairments and traumatic brain injury; and that substantial

evidence supported the ALJ’s credibility finding. Finally, the Magistrate Judge concluded that

ALJ Beran did not err in failing to obtain additional evidence.

Within her Objections, Plaintiff contends that ALJ Beran failed to give full force and

effect to the remand directives of the Appeals Council. Although Plaintiff’s Objections focus on

the Appeals Council’s remand order, Plaintiff’s Objections also, albeit minimally, touch on the

ALJ’s weighing of the medical evidence, credibility determination, and duty to develop the

record.

II.

If a party objects within the allotted time to a report and recommendation, the Court

“shall make a de novo determination of those portions of the report or specified proposed

findings or recommendations to which objection is made.” 28 U.S.C. § 636(b)(1); see also Fed.

R. Civ. P. 72(b). Upon review, the Court “may accept, reject, or modify, in whole or in part, the

findings or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1).

The Court’s review “is limited to determining whether the Commissioner’s decision ‘is

2

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supported by substantial evidence and was made pursuant to proper legal standards.’” Ealy v.

Comm’r of Soc. Sec., 594 F.3d 504, 512 (6th Cir. 2010) (quoting Rogers v. Comm’r of Soc. Sec.,

486 F.3d 234, 241 (6th Cir. 2007)); see also, 42 U.S.C. § 405(g) (“The findings of the

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

conclusive . . . .”). Put another way, a decision supported by substantial evidence is not subject

to reversal, even if the reviewing court might arrive at a different conclusion. Mullen v. Bowen,

800 F.2d 535, 545 (6th Cir. 1986). “Substantial evidence exists when ‘a reasonable mind could

accept the evidence as adequate to support a conclusion [and] . . . presupposes that there is a

zone of choice within which the decision-makers can go either way, without interference by the

courts.’” Blakley v. Comm’r of Soc. Sec., 581 F.3d 399, 406 (6th Cir. 2009) (internal; citation

omitted). Even if supported by substantial evidence, however, “‘a decision of the Commissioner

will not be upheld where the [Commissioner] fails to follow its own regulations and where that

error prejudices a claimant on the merits or deprives the claimant of a substantial right.’”

Rabbers v. Comm’r of Soc. Sec., 582 F.3d 647, 651 (6th Cir. 2009) (quoting Bowen v. Comm’r of

Soc. Sec., 478 F.3d 742, 746 (6th Cir. 2007)).

III.

Based on its review of the record, the Court finds that the Magistrate Judge adequately

addressed the issues raised within Plaintiff’s Objections. With regard to the Appeals Council’s

remand, the Magistrate Judge concluded as follows:

[O]n July 15, 2008, the Appeals Council granted Plaintiff’s request for review of

ALJ Armstrong’s initial administrative decision and remanded the case for further

consideration. On remand the Appeals Council required ALJ Beran to (1) consider

and explain the weight given to Dr. Tilley’s opinion; (2) evaluate Plaintiff’s mental

impairments in accordance with 20 C.F.R. §§ 404.1520a, 416.920a; (3) determine

whether alcoholism and drug addiction are material to the disability determination;

and (4) obtain additional evidence to complete the administrative record. (See R. at

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66.)

Examination of the record and the September 2009 administrative decision reveal

that ALJ Beran did not commit procedural error in responding to the Appeals

Council’s remand directives. First, ALJ Beran’s decision included both a detailed

summary of Dr. Tilley’s opinions and reasons why she gave Dr. Tilley’s opinions

little weight. (R. at 42–43.) Second, . . . ALJ Beran applied the special technique

required for mental impairments under the Regulations, including extensive

evaluations of Plaintiff’s daily activities; social functioning; and concentration,

persistence, and pace. (R. at 37–39); see also Nelson v. Comm’r of Soc. Sec., 195 F.

App’x 462, 468 (6th Cir. 2006) (holding that the special technique embedded within

20 C.F.R. §§ 404.1520a, 416.920a “centers on the ALJ’s rating the claimant’s degree

of limitation in three functional areas (activities of daily living; social functioning;

and concentration, persistence, and pace) and then enumerating episodes of

decompensation”). Third, ALJ Beran determined, after reviewing Plaintiff’s history

of alcohol and drug use, that drug and/or alcohol abuse was not material to the

disability decision.

Upon review of the Appeals Council’s mandatory directives, the closest call appears

to be whether ALJ Beran satisfied the directive to obtain additional evidence. The

Appeals Council’s instruction regarding additional evidence was somewhat vague,

and required the ALJ “to complete the administrative record in accordance with the

regulatory standards regarding consultive examinations and existing medical

evidence.” (R. at 66.) The regulatory standards the Appeals Council cited, 20 C.F.R.

§§ 404.1512–1513, 416.912–913, generally address the balance between the

claimant’s requirement to provide medical evidence and the Commissioner’s duty

to develop the record.

Here, following remand, ALJ Beran held her own administrative hearing at which

both Plaintiff and a vocational expert testified. Additionally, the record reflects that

the ALJ accepted and considered medical evidence related to matters that occurred

after ALJ Armstrong’s July 2007 decision. Although ALJ Beran did not obtain a

medical expert to provide testimony, or require another consultive examination, the

Appeals Council’s directive did not indicate that the ALJ was required to acquire

additional evidence of this nature. (See R. at 66.) Under these circumstances, and

given the general ambiguity of this mandate, the undersigned cannot conclude that

ALJ Beran erred in this regard.

(Report & Recommendation 17–19, ECF No. 25 (footnotes omitted).) The Court finds the

Magistrate Judge’s conclusion and reasoning to be persuasive. Moreover, as the Commissioner

stresses, the Appeals Council wrote many portions of its remand order in non-mandatory

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language.2

To the extent Plaintiff’s objections contest the ALJ’s weighing of the medical evidence

and credibility determination, such objections are unavailing. As the Magistrate Judge

recognized, the record reflects that the opinions of the examining sources in question were

inconsistent with other medical evidence. Additionally, these medical sources appeared to be

heavily reliant on Plaintiff’s subjective complaints in reaching their opinions. Moreover, based

on the entire record, substantial evidence supports ALJ Beran’s determination that Plaintiff’s

statement and testimony were not credible as to the extent of her symptoms and limitations.

Lastly, the Court finds that the ALJ developed a sufficient record. The Magistrate

Judge’s analysis on this issue is also persuasive:

Here, the ALJ did not err in failing to obtain additional evidence. ALJ Beran

reached her decision based on a record that contained extensive treatment and

counseling notes spanning from 2002 to 2009. This record included the treatment

notes of Plaintiff’s treating physicians. In addition to the opinions of Drs. Tilley and

Swearingen, the record contained the opinions and mental RFC assessments provided

by Dr. Waddell, which he issued well after Plaintiff’s alleged onset date. Dr.

Waddell appears to have accounted for Plaintiff’s possible exaggeration during her

earlier examinations. Additionally, the record contains the results of a 

neurobehavioral cognitive status examination from July 2007. Under these

circumstances, the undersigned cannot conclude that ALJ Beran abused her

discretion in failing to seek additional evidence.

(Report & Recommendation 27–28, ECF No. 25.) 

IV.

For the above reasons, as well as the reasoning outlined by the Magistrate Judge in her

Report and Recommendation, Plaintiff’s Objections (ECF No. 27) are OVERRULED and the

2

 For example, the remand order indicated that additional evidence “may include” a

consultive mental examination “if warranted and available . . . .” (R. at 66.) The remand order

also instructed the ALJ to obtain medical expert testimony “if necessary . . . .” (Id.)

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Report and Recommendation is ADOPTED (ECF No. 25). The decision of the Commissioner is

therefore AFFIRMED.

IT IS SO ORDERED.

 s/Algenon L. Marbley 

 ALGENON L. MARBLEY

 UNITED STATES DISTRICT COURT

DATED: September 12, 2012

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